[2023] KEHC 26401 (KLR)

Matunda Fruits Bus Services Ltd v Owino & another (Suing as the Legal Representatives of the Estate of the Late Stephen Omondi Odol) (Civil Appeal 91 of 2019) [2023] KEHC 26401 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26401 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 91 of 2019

HM Nyaga, J

December 13, 2023

Between

Matunda Fruits Bus Services Ltd

Appellant

and

Phoebe Achieng Owino

1st Respondent

Millicent Okoth Ogito

2nd Respondent

Suing as the Legal Representatives of the Estate of the Late Stephen Omondi Odol

(Appeal against judgment and decree on quantum from the Judgment of Hon. Wahome, Chief Magistrate delivered on 30th April,2019 in Molo Chief Magistrate’s Civil Case Number 242 of 2018)

Judgment

1. The appeal arises from a judgment and decree entered in the aforesaid suit. The Respondents sued the Appellant for both general and special damages in respect of a road traffic accident which occurred on 31st December 2027 at Migaa, along the Nakuru–Eldoret Road. The Appellant was sued as the lawful and beneficial owner of the Motor Vehicle Registration Number KCC 003 A which was allegedly negligently driven and as a result was involved in the said accident and subsequently caused the death of the deceased who was a lawful passenger aboard the said motor vehicle.

2. The parties recorded a consent on liability in the ratio of 95:5% in favour of the Respondents as against the Appellant. Thereafter the 1st Respondent testified on quantum.

3. The trial court upon hearing the evidence of the Respondents on quantum, delivered a judgement on 30th April,2019, assessing damages as follows: -1. Pain and suffering- Ksh. 20,000/=2. Loss of Expectation of life- Ksh. 150,000/=3. Loss of Dependency – Ksh. 1,292,600/=4. Special Damages- Ksh. 46,300/=Sub Total- Ksh. 1,508,900/=Less 5% contribution –Ksh, 75,445/=Net Total – Ksh. 1,433,455/=

4. The Appellant is aggrieved with the judgment of the Learned Trial Magistrate on whole quantum and it lodged this appeal on 23rd May,2019 setting out the following grounds of appeal:I.That the Learned Trial Magistrate erred in law and in fact in awarding a higher amount on general damages without considering the evidence and the submissions on general damages given on behalf of the Appellant while considering his judgement.II.That the Learned magistrate erred in law and in fact in disregarding the evidence adduced by the Appellant thereby arriving at a wrong decision as to the quantum payable to the Plaintiff.

5. The appellant urged this court to allow this appeal, set aside the judgment on quantum in the subordinate court and award it costs of this Appeal.

6. The appeal was canvassed by way of written submissions.

7. The appellant’s counsel filed their written submissions dated 11th October, 2022 whereas the Respondents’ counsel filed her written submissions dated 24th July,2023.

Appellant’s Submissions 8. It was submitted that it is trite law that assessment of general damages is a discretionary exercise. However, the same must be exercised judicially and upon some legal principles.in support of this position reliance was placed on the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another vs Lubia & another (No 2) [1985] eKLR

9. The Appellant argued that the trial court failed to exercise its discretion by awarding quantum of Ksh. 1,292,600. 00 as loss of Dependency that is inordinately high.

10. The appellant posited that the trial court arrived at the above award without any basis or justification. They contended that the trial court erred by adopting a multiplier approach for a 14-year-old deceased.

11. It was the Appellant’s position that the trial court ought to have adopted a global award approach in determining loss of dependency as the deceased monthly income could not be established. In buttressing their submissions, reliance was placed on the following cases: -a.Albert Odawa v Gichimu Gichenji (NKR HCCA 15 of 2003 [2007] eKLR- where it was stated that the multiplier approach is just a method of assessing damages as opposed to being a principle of law, and can and should be abandoned where the facts do not favour its application.b.Moses Mairua Muchiri V Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased)), [2016] eKLR where Ngaah, J stated thus:i.“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”c.Charles Ouma Otieno & another -Vs- Benard Odhiambo Ogecha (Suing As Brother And Legal Representative And Administrator of The Estate Of The Late Oscar Onyango Ogecha (Deceased) [2014] eKLRwhere the court held:i.“I am of the considered view that the learned trial magistrate fell into error in making awards under separate heads. As it were, the future of the deceased who was aged 14 years old as at the time of the accident was uncertain. There was no knowing what he would have become had he lived his life to the full; nor how much he would earn; nor was there any way of knowing whether or not he would be able to support his brother, the respondent herein. The answer on the first issue is that the trial court fell into error in assessing damages under various heads instead of awarding a lump sum.

12. The Appellant submitted that Ksh. 800,000/= is sufficient compensation for loss of dependency. They placed reliance on the following cases: -a.Chen Wembo & 2 Others v I K K & Anor (Suing as the legal representatives and administrators of the estate of C R K (Deceased) [2017] eKLR where a lump sum award of Kshs. 600,000/= was made, the deceased was 12 years’ old.b.Chhabhadiya Enterprise Ltd & another v Gladys Mutenyo Bitali (Suing as the Administrator and Personal Representative of the Estate of Linet Simiyu – Now (Deceased) [2018] eKLR the deceased child was 12 years old and the court awarded a global sum of Kshs. 700,000/=.c.Mwangangi & another v FKM (Suing as Legal Representative of the Estate of the Late AMK) (Civil Appeal E11 of 2021) [2021] KEHC 291 (KLR) (22 November 2021) (Judgment) where the court awarded a global award of Ksh. 800,000/= as loss of dependency for a deceased who was 12 years old.

13. The Appellant prayed for costs based on Section 27 of the Civil Procedure Act.

Respondents’ Submissions 14. The Respondents submitted on all awards made by the trial court but considering the Appeal only limited itself on the award under loss of dependency in the appellants’ submissions, I will only consider the Respondent’s submissions in this regard.

15. The respondents concurred with the lower court award on loss of dependency and prayed that this court upholds the same. The respondent submitted that at the trial court he had submitted that the deceased was 14 years old and was attending Nakuru Primary School, and that a letter produced from the school showed that the deceased was position 2 out of 73. It was further his submissions that the deceased was a bright student and his future prospects could be said to be good.

Analysis & Determination 16. Under Section 78(2) of the Civil Procedure Act, the appellate court shall have the same powers and shall perform nearly the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted herein.

17. Accordingly, the first Appellate Court should re-evaluate the evidence and make its own conclusions albeit it must bear in mind that it did not have the opportunity of seeing or hearing the witnesses first hand. See the case of Selle & Anor vs Associate Motor Boat Co. Ltd. 1968 EA 123.

18. No challenge was made on the lower court’s awards for pain and suffering, loss of expectation of life and special damages. I therefore I uphold these awards.

19. This appeal is on quantum of damages only, and only in respect to the award for loss of dependency under the Fatal Accidents Act.

20. Assessment of damages is at the discretion of the trial court, and this court cannot interfere with the exercise of such discretion except where the trial court committed an error in principle or made an award that was inordinately high or low as to be wholly erroneous estimate of damages. See Kemfro Africa Ltd Vs Gathogo Kanini vs A.M.M Lubia & Another where it was stated as follows: -“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

21. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR, the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that: “An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

22. The Court of Appeal in Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”.

23. On loss of dependency, the Appellant argues that the trial Court ought to have adopted a global or lump sum amount instead of a multiplier approach.

24. Thus, the issue at hand is whether the trial Court erred in failing to adopt a global sum award.

25. In the case of Board Of Governors of Kangubiri Girls High School& Another vs Jane Wanjiku Court of Appeal sitting at Nyeri In Civil Appeal No. 35 of 2014 eKLR pronounced itself as follows:“The choice of a multiplier is a matter of the courts discretion which discretion has to be exercised judiciously with a reason”

26. In Mwanzia vs Ngalali Mutua Kenya Bus Ltd and quoted in Albert Odawa vs Gichumu Githenji (supra), Justice Ringera was of the following view;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

27. In Seremo Korir & Another vs SS (Suing as The Legal Representative of the Estate of MS, Deceased) [2019] eKLR, the court said:“In the lower court’s judgment, 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’s school and that the deceased was 12 years old, a fact that was not contested. It was the appellants’ submission 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.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”

28. In Oshivji Kuvenji & Another vs. James Mohammed Ongenge [2012] eKLR stated:“In as much as the Appellants in the instant case argue that a global sum would be the best suited to the deceased aged only six (6) years at the time of her death, I have not come across an authority that has overturned a decision of the trial court on account of granting general damages based on expected earnings and tabulated on a multiplier. It is clear that neither the High Court nor the Court of Appeal has adopted a uniform principle on how to tabulate general damages where the deceased is a minor.”

29. In the instant case the trial court was guided by the Abdi Kadir Mohammed & Another v John Wakaba Mwangi (2009) eKLR, where the court considered a multiplier approach in awarding loss of dependency in the case of a 12-year-old minor.

30. From the above cases, it is clear that the method adopted by the trial court cannot be faulted.

31. The next issue for me to determine is as to whether the award made was inordinately high as argued by the appellant.

32. In assessing loss of dependency, the age of the deceased is important. In using the multiplier approach, the court is obligated to consider the multiplicand, the multiplier and the dependency ratio to arrive at the loss. The extent of dependency is a question of fact to be established in each case.

33. According to the death certificate that was produced as Exhibit 3 the deceased was 14 years old at the time of his death. PW1 testified that the deceased was a class 7 pupil at Nakuru primary school and she produced a report from the said school as exhibit 5 confirming this position. It was her further testimony that the deceased was position 2 out of 73 and she produced card from Mukuru primary school as exhibit 4 which showed that the deceased was position 2. It was her testimony therefore that the deceased was a bright child and she hoped he would finish school and help her and his siblings.

34. I will first consider whether the multiplier adopted by the trial court was too high.

35. According to the death certificate that was produced as Exhibit 3 the deceased was 14 years old at the time of his death.

36. The court in this matter adopted a multiplier of 25 years for a deceased who was 12 years old. The court stated as follows:“The deceased herein was aged 12 years old. He was a bright and confident child, as is demonstrated by the fact he would personally take interest in an Agricultural Show and attend the same unaccompanied. His father testified that he was a clever and respectful boy. Clearly therefore, his future prospects can be said to have been quite good. He would probably complete his education at 22 years if he proceeded to University and probably become gainfully employed at 24 years. Being a Kenyan, he would be expected to contribute towards his parents’ welfare and probably share his earnings with his siblings as well. …He would then enter the labour market at 24 years and probably work upto the normal retirement age of 55 years. This would give him a working life of 31 years...I am of the view that a multiplier of 25 years would be reasonable.

37. Daniel Kuria Nganga vs Nairobi City Council {2013] eKLR the court adopted a multiplier of 37 years for a deceased who was 18 years at the time of death. In arriving at this multiplier the court referred to the following authorities;a.HCCC 1202 of 1992 Kinyosi Kitungi Vs. Simon Okoth Obok & Another where Justice Mary Ang’awa took a multiplier of 35 years for a 16-year-old deceased female minor who died following a road traffic accidentb.HCCC 739 of 2003 Caroline Anne Mwangi Vs. Paul Ndungu Muroki where Justice Mary Ang’awa gave a multiplier of 20 years for a 34-year-old deceased male who died following a road traffic accident.c.HCCC 231 of 2007 Henry Karanja Vs. Joseph Endire Nrb where Justice Sitati while giving a multiplicand of 25 years in a matter where the deceased was 32 years old at the time of death observed as follows:“‘the deceased was only 32 years old when she died. She had risen to the level of supervisor at her place of work…. with the retirement age raised to 60, I think that taking the vicissitudes of life into account, a multiplicand of 25 years seems reasonable.’”

38. In Xh White Water Ltd vs Joseph Kimani Kamau & Another (2017) eKLR, the court adopted a multiplier of 30 years upon considering vagaries of life for a nurse who died at 21 years.

39. In Ruth Wangechi Gichuhi vs Nairobi City County (2013) eKLR, the court applied a multiplier of 30 years for the deceased aged 22 years at time of death.

40. Guided by the above authorities, I am of the opinion that a multiplier of 25 years that was adopted by the court was not too high.

Multiplicand 41. The deceased was only 14 years old. He was obviously not married. The application of 1/3 dependency ratio by the trial court was therefore reasonable.

The Deceased’s Income 42. It is in no doubt that the deceased was not in any gainful employment at the time of his death. PW1 testified that the deceased was a class 7 pupil at Mukuru Primary School and she produced a report from the said school as exhibit 5 confirming this position. It was her further testimony that the deceased was position 2 out of 73 and she produced card from Mukuru primary school as exhibit 4. It was her testimony therefore that the deceased was a bright child and she hoped he would finish school and help her and his siblings.

43. The respondents proposed that in view of absence of proof of income, this court should adopt the sum of Ksh. 12,926. 55/= per month based on the Regulation of Wages (General amendment) order, 2017. The trial court upheld the same.

44. The court, in my view, correctly referred to the statutory wage guidelines in force at the material time when approximating the deceased income in this matter. It must be remembered that this is just but one method that the court used to arrive at a decision that it thought was fair and just.

45. I therefore find that there are no justifiable grounds to warrant the setting aside of the finding of the trial Court on the award on loss of dependency.

46. Even if the court was to adopt a global award as proposed by the appellant, I would still have ended up giving an award that would be in the range awarded by the trial magistrate. It must be remembered that the plaintiffs/respondents lost a child. No amount of compensation can adequately console them for that loss.

47. Consequently, I find that the Appeal is devoid of merit and I hereby dismiss it with costs to the Respondents.

48. Orders Accordingly.

DATED AND DELIVERED AT NAKURU THIS 13TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMs Oganga for RespondentN/A for Appellant