[2022] KEHC 14440 (KLR)

Mogaka v Mayieka & another (Suing as the legal administrators of the Estate of Wycliff Kamanda Onkundi (Deceased)) (Civil Appeal E024 of 2021) [2022] KEHC 14440 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14440 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E024 of 2021

JN Njagi, J

February 11, 2022

Between

Rob Robinson Mogaka

Appellant

and

Julius Onkundi Mayieka

1st Respondent

Lilian Moraa Onkundi

2nd Respondent

Suing as the legal administrators of the Estate of Wycliff Kamanda Onkundi (Deceased)

(Being an appeal from the judgment and decree of Hon. M.O. Wambani, CM, in Nyamira CM’s Court Civil Case No. 175B of 2015 dated 23/3/2021)

Judgment

1. The respondents had instituted suit against the appellant at the lower court in their capacity as the legal representatives of the estate of the late Wycliff Kamanda Onkundi in which they were claiming general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs of the suit and interest, consequent upon the deceased being fatally knocked down by motor vehicle registration NO xxxx belonging to the appellant while the deceased was riding a motor cycle registration number xxxx along Nyamira- Miruka road. The parties in the case recorded consent on liability in the ratio of 23. 75 in favour of the respondent. The trial magistrate thereafter assessed damages as follows:I. Pain and suffering Kshs 20,000/=II. Loss of expectation of life Kshs 150,000/=III. Loss of dependency Kshs 2,880,000/=IV. Funeral expenses Kshs 50,000/=V. Special damages Kshs 20,000/=Sub Total Kshs 3,120,000/=Less 25% contribution Kshs 78,000/=Net sum Kshs. 2,340,000/=The appellant was aggrieved by the award and filed the instant appeal.

2. The grounds of appeal are that:1. The learned magistrate erred in law in making a finding of excessive damages against the defendant.2. The learned magistrate erred in law and fact in holding that the defendant was liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.3. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to general damages of Kshs 3,120,000/= without concrete documentary evidence.4. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to special damages of Kshs 20,000/= without documentary evidence.5. The learned magistrate erred in law and fact by holding the income of the deceased to be Kshs 12,000/= in contravention to the law applicable regarding minimum wage for unskilled labourers.6. The learned magistrate erred in law and fact by calling the defendant to controvert the plaintiff's evidence on income yet the law on the same is very clear in the absence of proof of income.7. The learned magistrate erred in law and fact by holding the age of the deceased to be 19 years without any documentary evidence and adopting a multiplier of 30 years without taking into account the vagaries of life.8. The learned magistrate erred in law and fact by adopting a dependency ration of 2/3 instead of the applicable ratio in law thereby arriving at an excessive award without taking into consideration of the age of the dependents.9. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to net damages of Kshs 2,340,000/=10. The learned magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages.11. The learned magistrate erred in law and fact in failing to appreciate as follows;i.That the plaintiffs' pleadings and the evidence tendered in support thereof was incapable of sustaining the excessive award of damages.12. The learned magistrate erred in law and fact in entering judgement in favour of the plaintiffs against the defendant in spite of the plaintiff's miserable failure to establish their case more especially on quantum.13. The learned magistrate erred in law and fact in failing to appreciate the legal position to be considered. The court award is unsustainable and baseless in the circumstances.'

3. The appeal was opposed by the respondents through the written submissions of their advocates, Khan & Associates Advocates.

4. The advocates for the appellant, Mose, Mose, Mose & Co Advocates, identified three issues on the appeal:1. The award on loss of expectation of life.2. The multiplicand adopted by the trial court.3. The dependency ratio adopted by the trial court.

5. On the issue of the multiplicand, the advocates for the appellant submitted that the trial court adopted the income for the deceased to be the minimum wage as provided under the law. That the magistrate awarded Ksh 12,000/= as the minimum wage. However, that the minimum wage for an unskilled worker working in a place like Nyamira as provided by the Regulation of Wages (General Amendment Order 2017) is Ksh 6,986. 15/= and not Ksh 12,000/= as awarded by the trial court. Therefore, that this court should interfere with the award and substitute the multiplicand awarded by the trial court to Ksh 6,986. 15/=.

6. On dependency ratio adopted by the trial court of 2/3 the advocates submitted that there was no legal justification for adopting it. That the ratio of 2/3 is usually adopted where the deceased had a family. That the deceased in this case was not married. That the trial court erroneously adopted the dependency ration of 2/3 without any evidence that the deceased had dependants. That the proper ratio to adopt for an unmarried person is 1/3. To support that proposition, the advocates relied on the case of Dismas Muhami Wainarua vs Sopon Kasirimo Maranta (suing as administrator and or personal representativeof the estate of Partinini Supon (Deceased) (2021) eKRL where Mwita J held that the dependency ratio should be lower where the deceased was unmarried, and where he was married and had children it ought to be higher.

7. The advocates also cited the case of Albert Kubai Mbogori vs Violet Jeptum Rahedi (2017) eKLR where the court adopted a ratio of 1/3 and relied on the case of Boru vs Onduu (1982- 1988) KAR 299, wherein the court stated that:'The extent to which the family is being supported must depend on the circumstances of each case. To ascertain if the judge will analyse the available evidence as to how much the deceased earned and how much the spent on his family. There can be no rule or principle in such a situation.'

8. Counsel urged the court to adopt a dependency ratio of 1/3.

9. In respect to the award on loss of expectation of life, the advocates submitted that the trial magistrate erred in failing to offset the award it made under the loss of expectation of life from that of loss of dependency. The advocates relied on the case of Charles Omwenga Ongiri & another vs Daniel Muniko (2017) eKLR where the court held that:'As to whether the court erred in not offsetting the award on loss of expectation of life from that of loss of dependency, I think the appellants are right. That is the general practice in law and its purpose is to avoid instances where a litigant benefits twice from both the Law Reform Act and the Fatal Accidents Act.'

10. The respondent on the other hand submitted that the court adopted a multiplier of 19 years on the basis that the retirement age is 60 years. That the figure was reasonable considering that the deceased was not in formal employment subject to retirement age.

11. It was submitted that the court adopted a multiplicand of Kshs 12,000/= based on the minimum wage. That the figure cannot be said to be too high or without basis as it is now trite law that in the absence if prove of income the court has to resort to minimum wage.

12. It was submitted that the deceased was a motor cycle rider. That a motor cycle rider is a skilled worker as held in the case of Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu (2021) where the court further expressed the view that boda boda riders belong to the category comparable to that of mechanist (motor vehicle repairer), laundry operators, light truck drivers etc.

13. It was submitted that the deceased was working in Nyamira township thereby falling under column 3 of the Regulation of Wages (General) (Amendment) Order 2015 at the time of the accident where the minimum wage in the stated category as stated in the case cited above is Kshs 13,259. 30/=. That in the circumstances the multiplicand adopted by the trial court cannot be said to be too high.

14. Counsel submitted that PW1 testified that the deceased used his earnings to support him, his wife and the deceased's other siblings. Therefore, that a large income would go towards their upkeep. That a dependency ratio of 2/3 adopted by the trial court was reasonable. That in Alice O Olukwe v Akamba Public Road Services Ltd (2013) eKLR, the court adopted a dependency ratio of 1/2 where the deceased was unmarried and without child children.

15. It was submitted that the award of Kshs 150,000/= for loss of expectation of life was reasonable. Counsel supported this with the award inCaroline Leah Awino v Stephen Miheso Ashikoyo (2014) eKLR where the court upheld an award of similar amount under this hearing where the deceased died at 75 years.

16. Counsel submitted that an award of pain and suffering and loss of expectation of life under the Law Reform Act does not amount to duplicity. That there is no requirement in law for the award to be deducted from an award under the Fatal Accidents Act. Counsel referred to the case of Richard Matheka & another v Susan Aoko & Another (suing as the administrator of the estate of Joseph Onyango Owiti (Deceased (2016) eKLR where Majanja J held that:'The principle does not mean a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act hence the issue of duplication does not arise regarding that aspect of the award.'

17. Counsel submitted that the appeal lacks merit and urged the court to dismiss it with costs.

Analysis and determination 18. The principles upon which an appellate court may interfere with an award of damages awarded by a lower court are well settled. In Butt v Khan (1977) IKLR the Court of Appeal held that:'An appellate court will not disturb an award for damages unless it is 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.'

19. In Kemfro Africa Limited t/a Meru Express Services & Gathongo Kanini vs AM Lubia & Olive Lubia (1982-88) 1 KAR 727 at page 730, Kneller JA stated that:'The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka (1967) EA 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto (1970) EA 414, 418, 419. This court follows the same principles.'

20. I have considered the grounds of appeal and the submissions by the respective advocates for the parties. In making an award of Kshs 150,000/= for loss of expectation of life, the trial court relied on the case of Caroline Leah Awino v Stephen Miheso (2014) eKLR where a similar award was made. In Jackson Kariuki Ndegwa (suing as the administrator of the estate of Fabiu Munga Kariuki (deceased) v Peter Kungu Mwango (2016) eKLR a similar amount was also made under this hearing. The award can therefore be supported by authorities from previous awards of the High Court. It has not been established that the award was inordinately high.

21. PW1 testified that the deceased was a boda boda motor cycle operator. That he used to earn Kshs 15,000/= per month. That he used to assist PW1 and his siblings with money for up keep. PW1 admitted that he had no evidence to prove that the deceased was earning an income. The trial court adopted a multiplicand of Kshs 12,000/= as the minimum wage as per the Regulation of Wages (General) (Amendment) Order 2018.

22. Counsel for the appellant submitted that the trial court was wrong in adopting Ksh 12,000/- as the minimum wage for an unskilled labourer in 2018. He submitted that the minimum wage for that kind of a worker in Nyamira in 2017 was Kshs 6,896. 15/= as per the Regulation of Wages (General)(Amendment) Order 2017.

23. Counsel for the respondent countered this and said that the deceased, as a boda boda, rider was not in the category of an unskilled worker and adopted the reasoning in Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu (supra) that a boda boda rider is a semi-skilled worker in the same category as motor vehicle repairers, laundry operators, and light truck drivers. That the deceased was working within Nyamira township thus falling under column 3 of the Regulation of Wages (General) (Amendment) Order 2015 which was applicable at the time of the accident. That the minimum therein was Ksh 13,259,30/- which is higher that the Ksh 12,000/= adopted by the trial court. That in the circumstances the multiplicand adopted by the trial court cannot be said to be too high.

24. The evidence that the deceased was a boda boda operator was not controverted. I find the argument that a boda boda operator is a semi-skilled worker to be persuasive. At least he is required to pass a driving test and have a driving licence before he can be allowed to ride a motor cycle on the road. Such a person cannot be placed in the category of an unskilled worker. I am persuaded by the argument that a boda boda operator is in the same category as laundry operators and light truck drivers. The minimum wage for that category of workers in Nyamira as per the government minimum wages order 2015 was Kshs 10,841. 50/=. I will adopt that as the income of the deceased. The multiplicand of Ksh 12,000/adopted by the trial court is set aside.

25. The deceased was unmarried. The trial court adopted a dependency ratio of 2/3 on the basis that the deceased was providing for his parents and siblings. It is trite law that the dependency ratio where the deceased was unmarried is 1/3. In Dismas Muhami Wainarua v Sopon Kasirimo Maranta (Suing as administrator and on personal representative of the estate of Partinini Supon (deceased) (2021) eKLR, it was held that the dependency ratio should be lower where the deceased was married and where he was married and had children it ought to be higher. There was no justification in this matter in adopting a dependency ratio of 2/3. The same is set aside and replaced with a dependency ratio of 1/3.

26. The award on loss of dependency is therefore as follows:10,842 x 12 x 30 x 1/3 = 1,301,040.

27. The Court of Appeal in Hellen Warunguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited, Nyeri CA Civil Appeal No 22 of 2014 [2015] eKLR, has explained the concept of double compensation under the Law Reform Act and the Fatal Accidents Act. It stated that: -'This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased's estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise. The confusion appears to have arisen because of different reporting of the Kemfro case (supra) which was heavily relied on by Mr Kiplagat. The version he relied on is from [1982-881 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [19871 KLR 30 as Kemfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that: -An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction." The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh 100,000 awarded for Loss of life expectation to Sh 70,000 despite confirmation in its judgment that there was no dispute on the award. Mr Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction.'

28. In light of the above I a m not persuaded that the award under the Law Reform Act should be offset from the award made under the Fatal Accidents Act. The estate of the deceased was entitled to compensation for pain and suffering and to loss of expectation of life. In my view the awards thereof were not as high as to suggest double compensation. I thereby see no reason to deduct the award from the award on loss of dependency.

29. The outcome of the appeal is therefore as follows:1. The award on loss of expectation of life is upheld.2. The multiplicand of Ksh 12,000/= adopted by the trial court is set aside and replaced with one of Ksh 10,842/=.3. The dependency ratio of 2/3 adopted by the trial court is set aside and replaced with one of 1/3. 4.The award on loss of dependency is set aside and replaced with an award of Ksh 1,301,040/=.

30. The award is as follows:1. Pain and suffering Kshs 20,000/=2. Loss of expectation of life Kshs 150,000/=3. Loss of dependency Kshs 1,301,040/=Total Kshs. 1,471,040/=Less 25% contribution Kshs 367,760/=Kshs 2,340,000/=4. Add funeral expenses Kshs 50,000/=Add special damages Kshs 20,000/=Net balance Kshs 1,173,280/=Each party to bear its own costs to the appeal.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF FEBRUARY 2022. J. N. NJAGIJUDGEIn the Presence of: -Miss Kerubo for the Appellant – VirtuallyN/A for the RespondentsCourt Assistant30 days Right of Appeal