[2022] KEHC 10169 (KLR)

Mokaya & another v CKO (Suing as the legal representative of the Estate of VBI alias RO) (Civil Appeal E032 of 2021) [2022] KEHC 10169 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10169 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E032 of 2021

FA Ochieng, J

July 7, 2022

Between

Jones Makori Mokaya

1st Appellant

Benson Makendo

2nd Appellant

and

CKO (Suing as the legal representative of the Estate of VBI alias RO)

Respondent

(Being an appeal from the Judgment/Decree of Hon. S. K. Arome – SRM Keroka dated and delivered on 14 th April 2021 in the original Keroka PMCC NO. 90 of 2019)

Judgment

1. The trial court held the Defendants 100% liable for the accident. Thereafter the trial court made the following awards in favour of the Plaintiff: -i.Loss of Dependency – Kshs. 1,000,000/=ii.Loss of Expectation of Life – Kshs. 300,000/=iii.Pain & Suffering – Kshs. 100,000/=iv.Special Damages – Kshs. 118,000/=TOTAL Kshs. 1,518,000=

2. Having awarded Kshs. 1,000,000/= for Loss of Dependency, under the Fatal Accidents Act, the Learned Trial Magistrate deducted from the total award, the sum of Kshs. 300,000/= which had been awarded in respect of Loss of Expectation of Life, under the Law Reform Act. Ultimately, therefore, the total sum awarded was Kshs. 1,218,000/=.

3. The Appellants have challenged the findings on both the issue of liability and the quantum of damages.

Liability 4. The Appellants submitted that the Respondent did not prove liability. They submitted that the Plaintiff did not adduce evidence to prove that it was the Defendants who were to blame for the accident.

5. To the contrary, the Appellants noted that it was their witness who testified that the deceased was knocked when she was crossing the road.

6. I have perused the record of proceedings. I believe that the Appellants’ Advocate must have mixed up matters. I say so because in this case, the Defendants closed their case without calling any witness.

7. Secondly, the deceased was not crossing the road at the material time. Pw2 testified that she was in the company of the deceased at the time the accident took place. Pw2 said that the deceased boarded the vehicle, and it started moving before Pw2 joined her onboard.

8. It was the evidence of Pw2 that the deceased was thrown out of the vehicle while the vehicle was in motion.

9. On the basis of the evidence on record, the trial court had no basis upon which it could have disregarded the evidence of the prosecution, as it was uncontroverted. The Defendants did not adduce any evidence which the trial court would have been compelled to assess, as against the evidence produced by the Plaintiff.

10. However, I also note that the case set out in the plaint was that the deceased was travelling in the Defendant’s vehicle at the material time, when the said vehicle veered off the road and rolled. The accident was said to have occurred because the vehicle was driven negligently and/or carelessly.

11. In her witness statement, Pw2 talked about the vehicle veering off the road. She did not mention anything about the vehicle having rolled.

12. Meanwhile, when Pw2 testified in court, she said that she was with the deceased on the material day, when they were planning to go to hospital. The two of them were to board a vehicle, which would ferry them to the hospital. According to the oral testimony: -“I was following V, to board the vehicle. She boarded the vehicle. When I was about to board, the vehicle started moving. I did not know there was a driver inside.V was thrown out of the vehicle while the vehicle was in motion. She sustained injuries. She was taken to hospital. I picked her where she fell out of the vehicle. The driver told us to board as he went to answer a call of nature. I blame the owner and the driver.”

13. There was no mention by Pw2, about the vehicle either veering off the road, or rolling.

14. But, then again, the Defendants did not raise any questions about the gap between the witness statement and the oral evidence tendered by Pw2. In the light of the failure by the Defendants to challenge the evidence concerning how the accident happened, it follows that there was no basis upon which the Plaintiff’s evidence could be discounted by the court.

15. I therefore find that the deceased was lawfully travelling in the Defendants’ vehicle at the material time, when it was involved in an accident.

16. The deceased was a passenger, and there is nothing to suggest that she contributed to the causation of the accident in any manner, whatsoever. In my considered view, the Appellants were not right to submit, as they did before me, that it is not clear who between the Plaintiff and the Defendants, was responsible for the accident.

17. This case is distinguishable from that of Lakhamshi v Attorney General [1971] EA 118, as the parties in that case were both drivers of the respective vehicles which were involved in the collision. In that case, Spry V. P. noted:-“Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers, both guilty of negligence, yet where it is not possible, it is proper to divide the blame equally between them.Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.”

18. Therefore, if the Appellants had wanted the court to find the deceased negligent, they should have led evidence to prove such alleged negligence.

19. Meanwhile, based on the evidence of Pw2, negligence was properly inferred on the part of the Appellants’ driver. I find no reason in law to fault the trial court’s finding on liability.

Quantum 20. It is well settled that an appellate court should only interfere with an award of damages if the trial court had applied the wrong principles when calculating the sum awarded as compensation. The failure to take into account a relevant factor is a ground for interfering with an award.

21. Similarly, when the trial court took into account an irrelevant factor, an appellate court would be entitled to interfere with the award.

22. In principle, the appellate court must not substitute the award of the trial court simply because it held the view that if it had been in the place of the trial court, it would have arrived at a different figure. There are instances when the award was either inordinately high or inordinately low; if compared with other awards made in other cases: in such instances, the appellate court would be justified to set aside the award.

23. Finally, if the appellate court found that the trial court had misapprehended the evidence in some material respect, that could lead to the setting aside of an award which was based on the misapprehended facts.

24. The Appellants submitted that the Insurance (Motor Vehicles Third Party Risks) Act specifically provides, in its schedule, a structured compensation chart. They went on to state as follows: -“For the death of a minor aged 5 – 12 years, compensation should be calculated at 15% of the maximum amount of Kshs. 3,000,000/= as provided for by Section 5 (b) (iv).”

25. That submission was never made before the trial court; and therefore it did not inform the decision from which the Appellants have mounted the present appeal.

26. It is my considered opinion that the Appellants cannot advance a new argument at this stage, and use it to criticize a decision which was made in the absence of such new argument. A decision rendered in the first instance is not a judgement on an appeal.

27. As I am called upon to determine an appeal, I decline to entertain the new argument which had not been canvassed at the trial court.

28. In this case the deceased was 11 years old at the time of the fatal accident. The appellants have submitted that the sums awarded by the trial court were inordinately high. They stated that the prospects of the life of the deceased were not put across, and that therefore there was no telling what she would become later in life.

29. Nobody can state with any degree of certainty that his or her child would definitely live until he or she becomes an adult; and that the said child would become a successful professional. Life is always fraught with imponderables.

30. A child could become ill and die of natural causes. An intelligent child could proceed to obtain a degree, but thereafter become irresponsible, so that he or she failed to offer financial support to the parents and siblings.

31. But even a child who grows into adulthood, and who remains responsible as an adult, cannot have any guarantee that he or she would get a job, leave one that was offering a decent income. It therefore boils down to speculation, when a parent states that the death of his child who was a minor, had caused him to suffer some huge loss.

32. I appreciate that it is the dream and prayer of every parent that his or her child will grow into adult-hood; and would then secure a well-paying job. However, before the child can grow into an adult, and then secure gainful employment, the parents would have to invest in him or her.

33. Due to all the imponderables, it has generally been accepted that the use of the multiplier method, when computing damages following the demise of a minor is not realistic. Therefore, I find that the parties herein were right to agree that the use of a global figure would be more appropriate in the circumstances prevailing.

34. In assessing a reasonable global figure, the court cannot aim at precision, because that cannot be attained when there are so many imponderables. In the circumstances, the court derives guidance from precedents.

35. In the case of Seremo Korir & another v Stephen Kirianki Nkanyaana HCCA No. 55 of 2018 Sitati J. awarded the sum of Kshs. 500,000/= as General Damages to compensate the family of the deceased, who was 12 years old. The Learned Judge set aside the award of Kshs. 1,680,000/= which the trial court had granted for loss of dependency.

36. In the case of Rosemary Onyango & another v Mohamed Jenjewa Ndoyo & another HccaNo. 55 of 2017, R. Nyakundi J. reduced to Kshs. 500,000/=, the award for loss of dependency, in respect to a child who was 7 years and 8 months old. The trial court had awarded Kshs. 1,000,000/=.

37. In the case of Registered Trustees Maua Methodist Hospital v Penina Thirindi Koome HCCANo. 15 of 2020, E. M. Muriithi J. reduced the award from Kshs. 2,500,000/=, to Kshs. 1,000,000/=. In that case, the child was 6 years old. Muriithi J. took into account the following decisions, when determining that appeal: -1. Daniel Mwangi Kimemi & 2 others v J G M & Another [2016] eKLR; wherein Gikonyo J. had awarded Kshs. 1,000,000/=, for a child aged 9 years.2. Chabhadiya Enterprise Ltd & another v Gladys Mutenyo Bitali [2018] eKLR; wherein Njagi J. awarded Kshs. 700,000/=, for a child who was 12 years old.3. Anthony Konde Fondo & another v R M C [2020] eKLR; wherein Nyakundi J. awarded Kshs. 1,000,000/=, for a child who was 6 years old.

38. I have given due consideration to all the above cited authorities.

39. It is clear that the compensation for the minors aged between 6 and 12 years, ranges between Kshs. 500,000/= and Kshs. 1,000,000/=.

40. Based on the said authorities, I find that the trial court’s assessment of the General Damages was within the accepted range. Accordingly, it cannot be said that the trial court had erred.

41. In the result, the appeal lacks merit, and is dismissed with costs to the Respondent.

42. I uphold the judgement of the Learned Trial Magistrate.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 7THDAY OF JULY 2022. FRED A. OCHIENGJUDGE