[2022] KEHC 15832 (KLR)

Litein Tea Factory Co Limited v Chelangat & another (Civil Appeal 23 of 2017) [2022] KEHC 15832 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15832 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 23 of 2017

AN Ongeri, J

November 11, 2022

Between

Litein Tea Factory Co Limited

Appellant

and

Leah Chelangat

1st Respondent

Geoffrey Kipkurui

2nd Respondent

(Being an Appeal from the Judgment and Decree of Hon. S. M. Mokua (CM) in Kericho CMCC No.253 of 2014 delivered on 1/8/2017)

Judgment

1. The Respondents herein Leah Chelangat and Geoffrey Kipkurui (suing as Legal Representatives of the Estate of Robert Kiplangat alias Moses (Deceased) filed CMCC No. 253 of 2014 against the Appellant herein Litein Tea Factory Co. Limited.

2. The Respondents were seeking General Damages and Special Damages under the Fatal Accidents Act and the Law Reform Act for Fatal Injuries sustained by the deceased on 19/4/2014 while he was travelling in Motor Vehicle Reg. No. KBK 768X belonging to the Appellant.

3. The Accident occurred along Rungut-Roret Road when the said Motor Vehicle lost control and it overturned seriously injuring the deceased who died on 21/3/2015.

4. The Appellant denied the claim in his statement of defence. The parties entered into a consent on liability and apportioned the same at 70:30% in favour of the Respondents against the Appellant.

5. The Trial Court assessed damages as follows:-i.Pain and Suffering……………………….….= 100,000/=ii.Loss of Expectation of Life………………….= 120,000/=iii.Loss of Dependency ……………………….= 3,477,446/=iv.Special Damages……………………………= 27,300/=v.Funeral Expenses.……………………………. = 58,000/=Total……….. = 3,782,746/=Less 30% Liability………..= 2,647,922. 20

6. The Appellant is opposed against the quantum of damages on the following grounds;i.Thatthe learned magistrate erred in law and fact by awarding excessive damages by adapting a dependency ratio of 2/3 instead of 1/3 considering that the deceased was unmarried.ii.Thatthe learned magistrate erred in law and fact by awarding excessive damages by adapting a multiplier of 35 years without taking into consideration the vagaries of life.iii.Thatthe learned magistrate erred in law and fact by awarding excessive damages by adapting a multiplicand of Kshs. 12,419. 45/= as the deceased’s monthly income without tangible proof of earnings.iv.Thatthe learned magistrate erred in law and fact by condemning the defendants to special damages of Kshs. 58,000 without documentary evidence.v.Thatthe learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendants and thereby arriving at a wrong and erroneous conclusion condemning the defendants to excessive general and special damages.vi.Thatthe learned magistrate erred in law and fact in failing to appreciate the principle that comparable injuries should attract comparable awards thereby arriving at an erroneous finding and/or determination on damages.

7. The parties filed written submissions which I have considered.

8. The Appellant conceded that the issue of liability was settled vide a consent dated 13/6/2017 whereby the parties agreed on a ratio of 70%:30% in favour of the plaintiff as against the defendants.

9. The Appellant argued that the appellate court was not obliged to accept and follow the trial court findings on facts and evidence, more so, where it appeared that the court failed to take into account crucial issues. The Appellant relied on the case of Selle & Anor v Associated Motor Boat Co. Ltd. & Others (1968) EA 123.

10. The Appellant contended that the learned trial magistrate proceeded on wrong principles and misapprehended the evidence.

11. The Appellant contended that the deceased was aged 21, a student and did not have any income at the time of his demise.

12. The Appellant urged that the court should adopt a global figure of Kshs. 500,000 or should the court be so inclined to award on the basis of a multiplicand notwithstanding the absence of tangible evidence the court should adopt a modest sum of Kshs. 6,000.

13. The Appellant contended that the deceased died soon after the accident and therefore proposed Kshs. 50,000 under pain and suffering.

14. The Appellant conceded that since the deceased died at the age of 21 years, a multiplier of 35 years would suffice taking into account the vagaries of life.

15. The Appellant argued that the instant suit was filed under two regimes that is the Law Reform Act and the Fatal Accidents Act, hence an award from the former ought to be subtracted from the latter to avoid double compensation to the same estate.

16. The Appellant urged the court to reassess the quantum, to allow the appeal and set aside the judgment of the lower court delivered on 1/8/2017.

17. The Respondents in opposition to the appeal contended that the record of appeal was incomplete thus the appeal was incompetent, for failure to include the decree appealed from and pleadings which are part of mandatory documents that form the record of appeal.

18. The Respondents therefore reiterated that the instant appeal was incompetent and urged the court to strike it out with costs.

19. The Respondents argued that adopting a multiplier of 35 years was reasonable and took into account the uncertainties of life.

20. The Respondents argued that the deceased was working at Litein Tea Factory earning a net salary of Kshs. 12. 419 and a pay slip was produced in support of this assertion.

21. The Respondents argued that the deceased would use his earnings to support his wife and mother hence a large percentage of his income would go towards their upkeep and a dependency ratio of 2/3 as adopted by the trial court was reasonable in the circumstances.

22. The Respondents contended that the deceased succumbed to injuries after a year of excruciating pain and were adamant that an award of Kshs. 100,000 was too low.

23. The Respondents submitted that the appeal herein was fatally defective and/or lacks merit and there was no basis whatsoever for faulting the Trial Court’s findings on quantum.

24. The Respondents urged the court to strike and/or dismiss the appeal with costs.

25. This being a first appeal, the duty of the first Appellate Court is to re-evaluate the evidence and to arrive at its own conclusion whether to support the Trial Court’s finding bearing in mind that the Trial Court had the advantage of seeing the witnesses.

26. In the case of Abok James Oderat/aA.j Odera & AssociatesvJohn Patrick Machira T/a Machira & Co. Advocates [2013] eKLR, the Court of Appeal stated as follows; “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

27. Similarly, in Gitobu Imanyara & 2othersvAttorney General [2016] eKLR, the Court of Appeal stated that; “This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that 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 an appeal are well settled. Briefly 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 witnesses and should make due allowances in this respect.”

28. The issues for determination in this appeal are as follows;i.Whether the award of damages was erroneous.ii.Whether the award of damages was excessive.iii.Whether the Trial Court failed to consider the Appellant’s Defence.

29. On the issue as to whether the award of damages was erroneous, the Appellant submitted that the deceased was 21 years old and still a student with no dependents.

30. The Appellant therefore proposed an award of General Damages as follows:Kshs.Pain & Suffering…………………………=50,000/=Loss of Expectation of life……………=100,000/=Loss of Dependency………………….=840,000/= with an alternative global award of Kshs. 500,000/=Total……=990,000/=========Less loss of Expectation of life ………=(100,000/=)Total ……=890,000/==========

31. The Respondents submitted that the deceased was indeed working at Litein Tea Factory earning a net salary of kshs.12,419/= and that there was no error of fact or law in adopting a monthly income of Kshs. 12,419 as a multiplicand which was proved in evidence.

32. The Respondents further submitted that a dependency ration of 2/3 was reasonable since the deceased was married to the 1st Respondent and without children.

33. I find that there is no evidence that the Court took into account extraneous facts in accessing the quantum of damages.

34. The deceased was 21 years and therefore a multiplier of 35 years is reasonable.

35. I also find that a multiplier of Kshs.12,419 was not erroneous since there is evidence that the deceased was employed as a firewood stacker and was earning Kshs.12,419. 45 at the time of the Accident.

36. The deceased also died after one year and therefore an award of Kshs.100,000 is appropriate for pain and suffering.

37. I find that the award was not erroneous or excessive.

38. The circumstances under which an appellate court can tamper with the award of a trial court are as follows;i.Thatthe trial court acted on wrong principles of the law; orii.Thatthe award was so high or so low as to make it an entirely erroneous estimate of the damage.

39. In Catholic DioceseofKisumuvTete [2004] eKLR, the Court of Appeal stated 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 the Court 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.”

40. On the issue as to whether the defence was taken into account by the Court, I find that the parties entered into a consent on liability and the Trial Court assessed quantum of damages based on the evidence adduced.

41. I find that the Appeal herein lacks in merit and the same is dismissed with costs to the Respondents.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11THDAY OF NOVEMBER, 2022A. N. ONGERIJUDGE