[2022] KEHC 10309 (KLR)

Letayoro & another v JK (Suing as the Legal Representative of the Estate Of the C K (Deceased (Civil Appeal 13 of 2020) [2022] KEHC 10309 (KLR) (28 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10309 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Civil Appeal 13 of 2020

WK Korir, J

June 28, 2022

Between

Susan Letayoro

1st Appellant

Dennis Korir

2nd Appellant

and

JK (Suing as the Legal Representative Of The Estate Of the CK (Deceased

Respondent

((Being an appeal from the judgment delivered on 19th February, 2020 in Kabarnet CMCC No. 67 of 2018 by the N. M. Idagwa, Senior Resident Magistrate))

Judgment

1. This appeal stems from a compensatory judgement in regard to a fatal traffic accident that occurred on the January 6, 2015 along Eldama Ravine-Tenges road at Bonde area involving motor vehicle registration number KBW 874W belonging to the 1st appellant, Susan Leyatoro. CK, a two-year old girl (hereinafter simply referred to as the deceased) who was travelling in the motor vehicle which was being driven by the 2nd appellant, Dennis Korir, died as a result of the injuries sustained in the accident.

2. Arising from the said accident, the respondent, GJK, instituted a suit as the legal representative of the estate of the deceased against the appellants. She claimed damages under the Law Reform Act and the Fatal Accidents Act. She also prayed for interest on the decretal amount and costs of the suit. The parties recorded a consent judgement on liability at the ratio of 90:10 against the appellants and in favour of the respondent on February 2, 2019.

3. On February 19, 2020judgement on quantum was entered in favour of the Respondent as follows:“(a) Special damages - Kshs 10,000(b) Pain and suffering - Kshs 150,000(c) Loss of expectation of life - Kshs 300,000(d) Loss of dependency - Kshs 700,000Total - Kshs 1,160,000Less 10% - Kshs 116,000Total award - Kshs 1,044,000(e) The plaintiff is awarded cost of the suit”.

4. The appellants being dissatisfied with the decision of the trial court have preferred this appeal on the grounds set out in the memorandum of appeal dated March 9, 2020 as follows:i.That the trial Magistrate erred in law and in fact in awarding the plaintiff/respondent a sum in damages which is manifestly excessive and/or inordinately high as to be unjust.ii.The Learned Magistrate erred in law and in fact in failing to accord due regard to the appellants’ submissions on quantum on applicable principles for assessment of damages.iii.The trial magistrate erred in fact and in law in failing to consider authorities relied on by the appellants in their submissions.

5. Consequently, the appellants pray that the awards made by the trial court be set aside and substituted with reasonable awards. They also pray for the costs of the appeal.

6. The appeal proceeded by way of written submissions. In submissions dated March 22, 2022, the appellants state that all the three grounds of appeal relate to the quantum of damages awarded to the respondent. They also reiterate and rely on their submissions filed in the trial court.

7. The appellants submit that the award of Kshs 150,000 for pain and suffering was inordinately high considering that the deceased passed on immediately after the occurrence of the accident. In their opinion, an award of Kshs 20,000 would be sufficient and adequate compensation under this head. The appellants rely on the cases of GKN & another (Suing as Personal Representatives of the estate of GNL (Deceased)) v Civiscope Limited [2021] eKLR and Civiscope Limited v Gilbert Kimatare Nairi & Lilian Napudoi Nairi (Suing as Personal Representatives of the Estate of Gilbert Nairi Lemayian (deceased)) [2021] eKLR where the estates of the deceased persons were awarded Kshs 20,000 for pain and suffering.

8. As for the award of Kshs 300,000 for loss of expectation of life, the appellants contend that the award was excessive as the conventional award under this head is Kshs 100,000. The decision in the case of Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR (Deceased)) [2020] eKLR is cited in support of the submission that Kshs 100,000 is the conventional award for loss of expectation of life.

9. Finally, on the award of Kshs 700,000 for loss of dependency, the appellants assert that Kshs 400,000 would have been sufficient compensation for the estate of a two-year old child. In support of the contention, reliance was placed on the already cited cases of GKN & another (Suing as Personal Representatives of the estate of GNL (Deceased)) and Civiscope Limited where the estates of the deceased minors, who were aged two years at the time of their demise, were awarded Kshs 400,000 on this head.

10. On the issue of the costs of the appeal, the appellants submit that since costs follow the event they should have costs should their appeal succeed.

11. The respondent opposed the appeal. Through submissions dated March 14, 2022, it is submitted that upon reevaluating and reassessing the evidence adduced at the trial, this court will reach the conclusion that this appeal is unmerited. The respondent submits that an appellate court can only interfere with the quantum of damages awarded by a trial court where the same is inordinately high or low as to represent an entirely erroneous estimate; the court acted on some wrong principle of law; or the award is as a result of what the appellate court thinks is an entirely erroneous estimate of the damage suffered by the plaintiff. Further, that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the trial court merely because it would have awarded a different amount had it tried the case in the first instance. The decisions in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR; Savanna Saw Mills Ltd v George Mwale Mudomo [2005] eKLR; and Gitobu Imanyara & 2 others v Attorney General[2016] eKLR are cited as propounding the principles to be considered by an appellate court in determining whether or not to interfere with the damages awarded by the trial court.

12. According to the respondent, the global award of Kshs 700,000 was not only lawful but justified. Reliance is placed on the cases of Daniel Mwangi Kimemia & 2 others v JGM & another (the Personal Representatives of the estate of NK (DCD)[2016] eKLR and Crown Petroleum Limited v Peter Karanja [2019] eKLR where Kshs 1,000,000 and Kshs 800,000 were respectively awarded for loss of dependency in respect to the estates of deceased minors aged nine and four years.

13. In support of the trial court’s award of Kshs 300,000 for loss of expectation of life, the respondent relied on the case of Daniel Kuria Nganga v Nairobi City Council[2013] eKLR where a similar amount was awarded under this head.

14. The respondent finds no fault in the award of Kshs 150,000 for pain and suffering, and cites the cases of Beatrice Mukulu Kanguta & another v Silverstone Quarry Limited & another [2016] eKLR and Douglas Ooga Nyansimora v Sammy Mutunga Mkau & another [2016] eKLR where the estates of the deceased persons who died on the date of the accident were awarded Kshs 200,000 and Kshs 150,000 respectively.

15. Finally, the respondent rejects the claim that the trial magistrate did not consider the appellants’ submissions and points to the particular portions of the judgement where the appellants’ submissions and authorities were referred to by the trial court. This court is therefore urged to dismiss the appeal with costs.

16. The parties are in agreement that the only issue for the determination of this court in this appeal is whether the trial magistrate erred in her assessment of the damages awarded to the respondent. This is a first appeal. The duty of a first appellate court was captured in Selle & another v Associated Motor Boat Company Ltd & others[1968] EA 123 as follows:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such appeal are well settledBriefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowances in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.”

17. In the instant appeal, there is no dispute about the facts of the case so that the reassessment of the evidence does not come into play. What I am only required to do is to determine whether the trial magistrate applied the correct principles in assessing the damages under the three heads identified by the appellants. This will be accomplished by reading the judgement of the trial court and the submissions made at the trial by the advocates for the parties.

18. In Catholic Diocese of Kisumu v Tete[2004] eKLR the Court of Appeal identified the circumstances under which an appellate court can interfere with an award of damages as follows:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by thecourt below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.”

19. Again, in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KLR 457, the Court of Appeal stated that:“This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the judge:(a)proceeded on a wrong principle; or(b)misapprehended the evidence in some material respect.And a member of an appellate court when naturally and reasonably says to himself ‘what figure would I have made?’and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own.”

20. A close look at the grounds of appeal and the submissions of the parties before this court points to the fact that the appellants are asking me to set aside the awards of the trial court on three heads on the ground that they were inordinately high. The principles to guide this court are as per the already cited decisions of the Court of Appeal.

21. In making the award of Kshs 150,000 for pain and suffering, the trial magistrate relied on the case of General Motors East Africa Limited v Eunice Alila Ndeswa & another [2015] eKLR where a similar award was made. She mentioned that the appellants had proposed an award of Kshs 10,000 on this head. The appellants argued that the deceased passed away immediately after the occurrence of the accident and it was presumed that she did not suffer pain.

22. There is no dispute that the deceased passed away immediately upon the occurrence of the accident and in such circumstances the award for pain and suffering should be lesser than that awarded where the deceased dies after some length of time. After all, this compensation is made in respect to the pain and suffering undergone by the deceased before succumbing to the injuries sustained in the accident. From the judgement of the trial court it is clear that reliance was placed on an authority cited by the respondent. It has not been argued by the appellants that the cited decision was irrelevant maybe because the deceased in that case did not die on the spot or a few hours after the accident. The authorities referred to by both sides in this appeal shows that awards for pain and suffering range from Kshs 100,000 to Kshs 200,000 and the award by the trial court was within this range. In the circumstances, the amount awarded to the estate of the deceased in the matter before this Court cannot be said to be inordinately high. The appellants have therefore not established any ground that can make this court interfere with the decision of the trial magistrate.

23. As regards the Kshs. 300,000/= awarded for loss of expectation of life, the appellants argue that the amount was excessive as the conventional award is Kshs 100,000. In Kenya Red Cross v IDS (Suing as the Legal Representative of the Estate of MDR(Deceased)) [2020] eKLR the court did indeed award Kshs 100,000 stating that the amount was conventional. However, the respondent had cited the case of Daniel Kuria Nganga v Nairobi City Council[2013] eKLR where Kshs 300,000 was awarded on the same head.

24. A perusal of the submissions made by the parties at the trial shows that the appellants proposed an award of Kshs 80,000. The trial magistrate cannot be faulted for adopting the figure proposed by the Respondent and supported by a decided case because decided cases are taken into consideration whenever a court assesses damages. However, it was advisable for the magistrate to state why she was going by the amount proposed by one side and not that proposed by the other side. Whatever the case, there is no merit in the appellants’ argument that the award under this head was excessively high so as to warrant interference with the same by this court.

25. Turning to the award for loss of dependency, I note that the parties were in agreement at the trial that damages under this head were awardable. The appellants had proposed Kshs 300,000 as the ideal compensation under this head. On her part, the respondent was asking for Kshs 1,200,000 and had relied on the decisions cited in this appeal. The judgement of the trial court shows that the cited authorities were considered before the figure of Kshs 700,000 for loss of dependency was arrived at. There is no way that the award of Kshs 700,000 can be said to be inordinately high when the same was based on decided authorities in which up to Kshs 1,000,000 had been awarded on the same head.

26. I have said enough to show that the appellants have not made a case for the disturbance of the general damages awarded by the trial court under the various categories. This appeal therefore fails and is dismissed. In line with the principle that costs ordinarily follow the event, I direct the appellants to meet the Respondent’s costs for this appeal.

Dated, signed and delivered at Kabarnet this 28th day of June, 2022. W. Korir,Judge of the High Court