[2022] KEHC 13735 (KLR)

Moffat v Nyanchama & another (suing as personal representatives and legal administrators of the estate of Kenneth Kiptoo Langat (Deceased) (Civil Appeal 1 of 2020) [2022] KEHC 13735 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13735 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal 1 of 2020

AN Ongeri, J

October 7, 2022

Between

Nyasende Moffat

Appellant

and

Hellen Rayori Nyanchama & another (suing as personal representatives and legal administrators of the estate of Kenneth Kiptoo Langat (Deceased)

Respondent

(Being an appeal from the Judgment and Decree of Hon. Rugut (SRM) in Kericho CMCC No. 7 of 2017 delivered on 11/12/2019)

Judgment

1. The Respondents in this case Hellen Nyanchama and Joseph Mosaisi were the Plaintiffs in Kericho CMCC No 7 of 2017.

2. The Respondents sued the Appellant Nyasende Moffat as the legal administrators of the estate of Kenneth Kiptoo Langat (deceased) seeking both general damages and special damages under the Law Reform Act as well as under the Fatal Accident Act for fatal injuries suffered by the deceased on 16/6/2016 while travelling as a fare paying passenger in motor vehicle Registration No KCE 051E Toyota Probox along Ngoina-Roret Road.

3. The Respondents alleged in the plaint that the accident was caused by the Appellant’s motor vehicle Registration No KCD 085H Mitsubishi FH which was so negligently, carelessly and/or recklessly driven, controlled and/or managed by the Appellant’s driver, servant and/or agent that it lost control and collided with motor vehicle Registration No KCE 051E Toyota Probox in which the deceased was travelling.

4. The Appellant did not enter appearance or file a defence and neither did he participate in the trial.

5. The Trial court awarded damages as follows.a.Pain and suffering 50, 000b.Loss of expectation of life 150, 000c.Loss of Dependency 1, 872, 000d.Special damages 169, 500Total Kshs 2, 241, 500/=

6. The Appellant who is aggrieved by the judgment of the trial court has appealed to this court on the following grounds;i.That the learned trial magistrate erred both in law and principle by applying erroneous principles in computation of damages payable thus arriving at erroneous and grossly excessive estimates of general damages payable thus occasioning miscarriage of justice.ii.That the award of general damages awarded to the Respondent was manifestly and inordinately excessive in the circumstance.iii.That the learned trial magistrate acted in error when the same opted to apply a multiplicand approach of minimum wage of Kshs 12,000/=, a multiplier of 39 years.iv.That the learned trial magistrate erred in law and principle and failed to discount the award of Kshs 200,000/= made under the heading of pain and suffering and loss of expectation of life, from the award under loss of dependency, thus making grave prejudicial omission thereby causing double entitlement/enrichment.v.That the learned trial magistrate erred in law and principle, when the same made an award of Kshs 50,000/= for pain and suffering yet the deceased died on the spot.vi.That the learned trial magistrate erred in law and principle, when the same failed to properly evaluate evidence on record thus arriving at an erroneous decision.

7. The parties filed written submissions in this appeal which I have duly considered.

8. The Appellant contended that the Respondents failed in discharging the evidentiary burden placed upon them and the mere allegation of a fatal injury did not automatically shift the burden of proof or liability to the other party.

9. The Appellant cited the case of Statpack Industries v James Mbithi in Nairobi Civil Appeal No 152 of 2003.

10. The Appellant contended that damages must be within the limits set out by comparable cases.

11. The Appellant cited the case of Stanley Maore v Geoffrey MwendaNyeri CA No 147 of 2002.

12. The Appellant reiterated that the amount awarded as general damages was inordinately high and warranted the court’s interference.

13. The Appellant contended that the multiplier (lost years) of 39 years as adopted by the trial Court was erroneous and unrealistic given the reduced life expectancy due to the vagaries of life. The Appellant proposed a multiplier of 33 years.

14. The Appellant contended that the multiplicand (income) of Kshs 12,000/= as adopted by the trial Court was erroneous.

15. The Appellant contended that according to theRegulation of Wages (General Amendment Order 2017) contained in Legal Notice No 112 of 2017, the minimum wage applicable in all other areas other than Nairobi, Mombasa and Kisumu cities and all former municipalities and town councils of Mavoko and Limuru was Kshs 6,896. 15/=.

16. The Appellants contended the fact that the deceased was earning a monthly income of Kshs 30,000/= from his business in the informal sector no documentation was furnished to support this allegation yet a wide array of documents would suffice to prove the said amount such as a business permit or cash book showing various returns.

17. The Appellant submitted that the failure of the trial court to deduct the award made under loss of life expectancy from the final award was tantamount to double compensation on the part of the dependents.

18. The Appellant did not contend Kshs 169,500/= awarded as special damages.

19. The Appellant proposed a sum of Kshs 1,129,791. 80/= (less a percentile as the Respondent was largely to blame) as general and special damages.

20. The Respondent opposed the appeal and reiterated that the parties recorded a consent on liability in the ratio of 75%:25% in favour of the Plaintiffs against the Defendants. The consent was subsequently adopted by the trial Court.

21. The Respondent contended that the deceased was engaged in business in the informal sector and the trial Court was right in adopting a multiplier of 39 years. The Respondent cited the case of Commercial Transporters Ltd v Dorcas Adoyo Owiti & Anor [2017] eKLR.

22. The Respondent reiterated that the deceased was engaged in the informal sector and would earn a monthly income of Kshs 30,000/=

23. The Respondent conceded that no documentation was furnished to support the monthly income of Kshs 30,000/= and relied on the case of Jacob Ayiga v Simon Obayo(2005) eKLR.

24. The Respondent submitted on the issue on double compensation by citing the holding of the court in the case of David Mbuba & Another v Victoria Mwongeli Kimwalu & Another [2018] eKLR.

25. The Respondent therefore urged the court to uphold the judgment of the lower court and dismiss the appeal herein.

26. This being a first appeal, the duty of this court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court.

27. In Abok James Odera t/a A J Odera & Associates V John 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.”

28. InGitobu Imanyara & 2 Others V Attorney 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.”

29. The issues for determination in this appeal are as follows;i.Whether the trial court applied erroneous principles in computation of the damages payable to the Respondentsii.Whether the award of damages was manifestly and inordinately excessive in the circumstances of this case.

30. On the issue as to whether the trial court applied erroneous principles in the computation of the damages payable to the Respondents, the Appellant said that the trial court applied a multiplicand approach of a minimum wage of Kshs 12,000/= and a multiplier of 39 years.

31. The Appellant also submitted that the trial court failed to discount the award of Kshs 200,000/= made under the heading of Loss of Expectation of life from the award of Loss of Dependency.

32. The Appellant also further submitted that the award of Kshs 50,000/= for pain and suffering was excessive since the deceased died on spot.

33. However, I have perused the evidence adduced before the trial court and I find that the trial court took into account the issues raised by the Appellants.

34. The Appellant did not file any defence against the Respondent’s claim and neither did he appear in court to contest the Respondent’s testimony.

35. I find that the award by the trial court was not erroneous and neither was it excessive.

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

37. InCatholic Diocese of Kisumu V Tete [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.”

38. Similarly, inKen Odondi & 2 Others v James Okoth Omburah t/a Okoth Omburah & Company Advocates[2013] eKLR, the Court of Appeal stated as follows; “We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.”

39. I find that the Appellant is attempting to adduce evidence at appeal stage.

40. The Appeal herein lacks in merit and the same is dismissed with costs to the Respondents.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 7TH DAY OF OCTOBER, 2022. A. N. ONGERIJUDGE