[2024] KEHC 7823 (KLR)

Machau v Wangui (Civil Appeal E140 of 2022) [2024] KEHC 7823 (KLR) (30 June 2024) (Judgment)

Neutral citation: [2024] KEHC 7823 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E140 of 2022

S Mbungi, J

June 30, 2024

Between

Francis Wanjiru Machau

Appellant

and

Mercy Nyambura Wangui

Respondent

Judgment

1. This appeal arises from the Judgement of Hon. R. Orora (RM) delivered on 19th December, 2019 in Kiambu Chief Magistrates’ Civil case No. 409 of 2019 which sought to compel the Appellant to pay the Respondent/Plaintiff special and general damages amounting to Kshs. 2, 613,000/- together with costs and interests hence precipitating the appeal herein where the appellant seeks the following orders:i.That the appeal be allowed.ii.That the whole Judgement of the Honourable Magistrate R. Orora in Kiambu CMCC No. 409 of 2019 be set aside and the same be assessed afresh.iii.That the costs of this appeal be awarded to the appellants.iv.That such further orders may be made by this Honourable Court may deem fit to grant.

2. The Appellant’s nine grounds as stated in the Memorandum of Appeal dated 27th June, 2022 are as follows: -a.That the learned Magistrate erred in law and in fact in awarding a minor (4 years) damages through a multiplier method as opposed to a global award.b.That the learned magistrate erred in law and in fact when she failed to apply a multiplicand in computation of the judgement.c.That the learned magistrate erred in law and in fact in finding that a 4-year-old could have worked for 30 years after studying for 20 years.d.That the learned magistrate erred in law and in fact in awarding general damages of Kshs. 2,613,000/- for a 4-year-old minor.e.That the learned magistrate erred in law and in fact in relying on the minimum wage in computing loss of dependency for a minor who was 4 years.f.That the learned magistrate erred in law and in fact in awarding loss of dependency despite there being no dependants.g.That the learned magistrate erred in law and in fact in awarding special damages of funeral expenses of Ksh. 45,000/-. Despite not being pleaded or proved.h.That the leaned magistrate’s decision was unjust, unfounded and legally unsound and based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.i.The learned magistrate erred in law and in fact in unduly disregarding the dates of the accident in the plaint and during hearing and hence arrived at a wrong holding in the circumstances.

3. The Court on 15th February, 2024 directed parties to file and exchange written submissions. Parties complied. The Appellant’s submissions were not dated while the Respondent’s submissions were dated 13th May, 2024.

ISSUE FOR DETERMINATION 4. The Appellant addressed the following issues in his submissions: -a.Whether the learned magistrate erred in law and in fact in awarding a minor (4 years) damages through a multiplier method as opposed to a global award.b.Whether the learned magistrate erred in law and in fact in finding that a 4-year-old could have worked for 30 years after studying for 20 years.c.Whether the learned magistrate erred in law and in fact in awarding loss of dependency despite there being no dependants and relying on minimum wage in computing loss of dependency for a minor of 4 years old.d.Whether the learned magistrate erred in law and fact by awarding special damages that were not pleaded.

5. The respondent addressed one issues in her submissions in the appeal :-a.Whether the damages awarded by the trial magistrate were manifestly excessive.

Appellant’s case as per submissions 6. The counsel for the appellant submitted that the judgement which is the subject of this appeal is contrary to statute, is exaggerated, erroneous and is not based on any legal reasoning and urges the court to re-asses the loss of dependency downwards to a reasonable global award of Kshs. 500,000/- and only award special damages pleaded and proved.

7. That if the trial court Judgement is left to stand, a great miscarriage of Justice will be occasioned to the Appellant and urges the Court to allow this appeal with costs.

8. As to Whether The Learned Magistrate Erred In Law And In Fact In Awarding A Minor (4 Years) Damages Through A Multiplier Method As Opposed To A Global Award., the appellant submitted that the court cannot disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate and submit that the trail court awrded an inordinately high award based on the wrong principles of law .

9. He submits that the deceased in the suit was a 4 year old minor and under this head the courts award damages based on a global award and the multiplier approach is discouraged.

10. He submits that an award of damages based on multiplier approach to a minor of 4 years is speculative and not based on any reasoning. He submited that the trial court ought to have considered the age of the dependants before using the multiplier approach. He submitted that the Multiplier approach cannot be used without a ratio as a reasoning for awarding loss of dependency is pegged on the existence of persons that ordinarily depended on a person and or the loss , which mandate the use of the multiplier and ratio and the lack of the ratio in the trial court decison invalidates the award. To buttress the above assertion the Apellant relied on various decsions Gitobu Imanyara & 2 others v Attorney General(2016 )Eklr; Albert Odawa vs Gichimu Gichenji (NKU HCCA No. 15 of 2003(2007)Eklr; Chabhadiya Enterpreises Ltd & aother V sarah Alusa Mwachi (2018)Eklr and Mary Khayesi Awalo & Another V Mwilu Malungu & Another (1999)Eklr.

11. He further submitted that the trial court in its Judgement held that the minor would have completed his education at about 24 years and worked from 25 – 60 years hence adopted a multiplier of 30 years. This reasoning by the court was unfounded and cannot be applied while awarding damages.

12. He asserts that this holding on the ages a minor would have lived, schooled and worked up to has always been held as uncertain, unless proper reliance can be placed on what the court based its reasoning on. The uncertainties of life are such that it is impossible to determine what the job market would be like when a minor of 4 years would have finished school to then reach an award that immediately they finish, they would have been employed and then take into consideration the minimum wage, as the trial court did in this instance.

13. The appellant submits that the kind of speculation can not be based on any legal reasoning and opens a leeway for inconsistencies. When the length of dependency is not known as was in this instance, the court awarding the amount engaged in speculation hence the same should be abandoned.

14. The Appellant submits that loss of dependency is normally awarded in cases involving the death of a bread winner or someone who was financially supporting their dependents and when determining such, the court considers various factors including age, life expectancy, income, earning capacity and financial contributions to dependents.

15. The minor herein was a dependant at the age of 4 years and could not have been a bread winner to be depended upon by his family. This position was held in “Nguku Julius alias Julius Kioko Nguli v Stephen Musau Kilonzo & another (2019) eKLR“There is no two-thirds rule as dependency is a question of fact. The sum to be awarded is never a conventional one but compensation for pecuniary loss …”Dependancy..” or ….”dependency” is the relation of a person to that by which he is supported… The extent to which a family is being supported must depend on the circumstances of each case and to ascertain it the Judge will analyze the available evidence as to how much the deceased earned and how much he spent on his wife and family”

16. The above case shows that the principles guiding the issuance of loss of dependency is that, there has to be proof of dependence before death which was not the case in this instance hence the court erred in awarding the same and thus the appellant urges the Honourable Court to set aside the said award in its entirety.

17. The appellant’s counsel submits that is trite law that special damages must be specifically pleaded and proved. In Maritim & another vs Anjere (1990 – 1994) EA 312 at 316 held that “it is trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed”.

18. He further submits that the amount of Kshs. 45,000/- awarded as funeral expenses was not pleaded in the plaint hence the amount should be struck out.

Respondent’s case as per the submissions. 19. The Respondent submits that Appellant did not enter appearance and/or file its statements of defense opposing the Respondent’s claim at the trial court and thus the matter proceeded undefended and the trial court awarded Judgement.

20. The Respondent submits that a look at the Appellant’s Memorandum of Appeal dated 27th June, 2022 and the subsequent Appellant’s undated written submissions, the appeal herein lies only on quantum, specifically the trial court award on loss of dependency which was awarded at Ksh. 2,613,000/- and awarded on funeral expenses of Kshs. 45,000/-.

21. The Respondent’s assert that the Appellant’s argument that for such a child of very tender years, such as in the instant appeal, the multiplier method is inappropriate. They proposed an award of a global sum thereof of Kshs.500,000/-.

22. The Appellant argues that the learned magistrate at the trial court erred in law and in fact in awarding a minor of four years’ damages through a multiplier as opposed to a global award. In Seremo Korir & another vs SS (Suing as the legal representative of the estate of MS Deceased) 2019 eKLR, the court said “22. In the lower court’s Judgement, the learned trial magistrate applied the minimum wage scale of Kshs. 12,000/- as the multiplicand. The learned trial magistrate further held that the deceased was a pupil based on a letter from the deceased school and that the deceased was 12 years old, a fact that was not contested. It was the Appellant’s submissions that where the issue of the amount earned by a deceased and their profession is unsettled, courts adopt a lump sum/global sum instead of delving into estimating incomes and professions. On the other hand, the Respondent submitted that the learned trial magistrate had the discretion to either adopt the multiplier method or the global assessment method”.27. “in this case, I am in agreement with the submissions of the Respondent that courts have the discretion to apply either the global sum, separate heads or mixed approaches in awarding damages and that it is not cast in stone that just because the deceased was a minor, then courts can only apply the global/lump sum approach”

23. From the above it is clear that the choice of whether to adopt a multiplier or a global award approach is entirely a matter of discretion of the court, but dictated by the circumstances of the case.

24. The Respondent submitted that the deceased was a bright boy and the future prospects were good. The deceased’s parents were hopeful that the deceased would go through school join the labour market at the age of 24 years and worked up to the retirement age of 60 years. The deceased was in good health and nothing could have prevented him from working up to the retirement age of 60 years. The deceased therefore lost 36 years of active employment. The trial court considered uncertainties of life and adopted 20 years of active employment that the deceased had lost. Therefore, the multiplicand approach adopted by the trial court was reasonable and proper and this court should uphold.

25. The Respondent asserts that if this Honourable court is inclined to adopt the global award approach in awarding general damages, she asks this court to be persuaded by the case of Nairobi Bottlers Ltd & another vs MW (suing as the legal representative of the estate of KMW) eKLR “the advocates for the Appellant suggested a global award of Kshs. 200,000/- while relying on the case of Kenya Brewaries Ltd vs Saro Msa HCCA 75B of 2009 where a lumpsum award of Kshs. 280,000/- was made for a deceased aged 6 years. The authorities cited by the Appellant are old and are distinguishable from the circumstances of this case. I am content to cite more recent cases. See S.M.K.V Jossephat Nkari Magaka Civil Appeal no. 66 of 2011 where an award of Kshs. 800,000/- was made on appeal under the head of loss of dependency in 2017 for a child aged 6 years and Civil Appeal No. 18 of 2014 Daniel Mwangi Kimemi & 2 others vs JGM & SMM where award of Kshs. 1,530,000/- given for a 9 year-old was revised downwards on appeal to Ksh. 1,000,000/- in 2019. See also Antony Konde Fondo & another v RMC (The representative of FC (Deceased) 2020 eKLR the court awarded Kshs. 900,000/- for a child aged 7 years … Based on these decided case, I award a global sum of Ksh. 1,000,000/- as reasonable compensation on lost years or dependency….”

26. The Respondent submits that taking into account inflation and the awards in the above-cited court decisions, the Honourable court should find a global sum of Kshs. 1,600,000/- reasonable.

27. The Respondent submits that the Appellant has not challenged the award on special damages save for funeral expenses. The award of Kshs 50,000/- as funeral expenses has been objected to on the basis that it was not specifically proved. In Jacob Ayiga & another vs Simon Obayo (2005) eKLR, the court had awarded funeral expenses despite lack of proof by way of receipts, on grounds that funeral expenses must be incurred in every case where someone died.

28. Additionally to the point is the Court of Appeal’s decision in Premier Diary Limited vs Amarjit Singh Sagoo & another (2013) Eklr, where it was held that:“we do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned Judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/- was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more than this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150, 000/- which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses.We are of the respectful opinion that the Judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages”.

29. The Respondent submits that in light of the foregoing jurisprudence, the award of funeral expenses in the circumstances of this case was properly made.

DECISION 30. Being a first appeal, the court relies on a number of Principles as set out in Selle and another vs. Associated Motor Boat Company Ltd & others (1968) 1 EA 123: “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 allowance 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 into account particular circumstances or probabilities materially to estimate the evidence.”

31. In Gitobu Imanyara & 2 others vs Attorney General (2016) eKLR the Court of Appeal stated 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 allowance in this respect.”

32. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles as was espoused in the case of Mburu & another V Kinga Civil appeal 277 of 2023 (2024) KEHC 1889 (KLR).That on first appeal, the Court is under a duty to reconsider and re -evaluate the evidence on record and draw its own conclusions; That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witness testify before it; and That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

33. I have looked at the memorandum of appeal, pleadings, proceedings of the lower court and submissions filed by the parties.

ISSUES FOR DETERMINATION1. Whether the trial court erred in adopting the multiplier approach in the assessment of general damages.2. Whether the trial court erred by not adopting multiplicand in assessing general damages.3. Whether the trial court erred in concluding that the deceased had dependants whilst was aged 4 years at the time of death.4. Whether the general damages assessed by the trial court were inordinately high or excessive in the circumstances.5. Whether the trial court erred in awarding the claim on funeral expenses when it was not pleaded.

DETERMINATION Issue one (1)There is enough case law showing that a court has the discretion either to use Global sum approach or the Multiplier approach when assessing general damages depending on the circumstances of each case. As shown by the authorities cited by the counsels. Therefore, the trial court did not in any way misdirect itself in adopting the multiplier approach.

Issue two (2)It is my view that, when a court elects to adopt the Multiplier approach in assessing general damages, for loss of dependence/lost years has to determine the Multiplicand which is essentially the monthly earnings of a deceased.The trial court applied the minimum wage as provided by the minimum wage regulations in place at that time which was Kshs. 6,415/- as the multiplicand so the court does not understand why the Appellant in his ground 2 of appeal says that the learned magistrate failed to apply multiplicand in computation of the judgement. Therefore, this ground fails.

Issue three (3)I agree with the Respondent’s counsel that the minor herein was a dependant for he was aged 4 years. In assessing dependency, the court considers various factors including: - the age and life expectancy, income and earning capacity and financial contributions to dependents.It would be difficult and speculative to determine what a minor aged 4 years would become in life, to perfectly conclude that he will have dependants one might grow to be a responsible person or a wreck of a person, only God knows the destiny of every human being. Therefore, there was no basis/evidence which the trial court would safely rely on to conclude that the minor would have dependants in the future when he grows up, if he gets to be in view of uncertainties in this life.

Issue four (4)The trial court using the multiplier approach, assessed the loss of dependency at Kshs. 2, 308,000/-. The Appellant submits that the amount was exaggerated and erroneous for it was based on wrong legal reasoning and request the court to reassess the same using Global award approach to a sum of Kshs. 500,000/-. 34. The Respondent while supporting the Multiplier approach used by the trial court, is not averse to this court adopting the Global awards approach and reassess the general damages at Kshs. 1, 600,000/-. And asked the court to be guided by the case of Nairobi Bottlers Ltd & another vs MW (suing as the legal representative of the estate of KMW) eKLR “the advocates for the Appellant suggested a global award of Kshs. 200,000/- while relying on the case of Kenya Brewaries Ltd vs Saro Msa HCCA 75B of 2009 where a lumpsum award of Kshs. 280,000/- was made for a deceased aged 6 years. The authorities cited by the Appellant are old and are distinguishable from the circumstances of this case. I am content to cite more recent cases. See S.M.K.V Jossephat Nkari Magaka Civil Appeal no. 66 of 2011 where an award of Kshs. 800,000/- was made on appeal under the head of loss of dependency in 2017 for a child aged 6 years and Civil Appeal No. 18 of 2014 Daniel Mwangi Kimemi & 2 others vs JGM & SMM where award of Kshs. 1,530,000/- given for a 9 year-old was revised downwards on appeal to Ksh. 1,000,000/- in 2019. See also Antony Konde Fondo & another v RMC (The representative of FC (Deceased) 2020 eKLR the court awarded Kshs. 900,000/- for a child aged 7 years … Based on these decided case, I award a global sum of Ksh. 1,000,000/- as reasonable compensation on lost years or dependency….”I have considered the above cited authority, I opine that after taking all factors into consideration, a global sum of Kshs. 1,000,000/- is a reasonable award for general damages as compensation for lost years under the Fatal Accidents Act.In making award for loss of dependency/lost years, under the Fatal Accidents Act, I have considered the award for loss of expectation of life made under the Law Reform Act.The Appellant from his submissions seems to have no problem with the awards made by the trial court on pain, suffering and loss of expectation of life.

Issue five (5) 35. The Appellant, questioned the rationale which the trial court used to award the Respondent Kshs. 45,000/- for funeral expenses which was not pleaded in the plaint. He cited the case of Maritim & another vs Anjere (1990 – 1994) EA 312 at 316 held that “it is trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed”.

36. The Respondent’s counsel cited the case of the Court of Appeal’s decision in Premier Diary Limited vs Amarjit Singh Sagoo & another (2013) Eklr, where it was held that:“we do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned Judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/- was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more than this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150, 000/- which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses.We are of the respectful opinion that the Judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages”.

37. It is my view that it is almost impossible to minute every expense expended during funeral preparation a lot is expended in terms of time and money. It is not in dispute that costs have to be incurred. Due to fluidity of keeping track of the expenses. It is not easy to claim the expenses incurred as special damages. Where actual expenses cannot be ascertained I believe it is not wrong for court to award reasonable amount to cover the expenses taking into account the circumstances of each case.

38. Given the cost of living, I find the award of Kshs. 45,000/- awarded by the trial court as funeral expenses was reasonable so I have no reason to disturb the award.

39. Receipts were produced to prove the sum of Kshs. 60,750/- awarded in special damages. The award on special damages is therefore upheld.

40. In the foregoing the appeal succeeds to the extent that the award for loss of dependency/lost years is reduced to Kshs. 1,000,000/- as the appeal has partly succeeded, each party to bear its own costs.

Right of appeal within 30 days explained.

Delivered, dated and signed on the 30th day of June, 2024 by Hon. Mr. Justice S. Mbungi virtually at Kakamega High Court.S. MbungiJudgeIn the presence/absence of:Appellant/advocate ………………………….Respondent/advocate ………………………..Court assistant ……………………………….