[2022] KEHC 12974 (KLR)

Momanyi v Migiro (Suing as the Personal Representative and Legal Administrators (sic) of the Estate of Dadius Ondeiki Migiro) (Civil Appeal E053 of 2021) [2022] KEHC 12974 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12974 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E053 of 2021

JN Kamau, J

September 19, 2022

Between

Evarastus Gichana Momanyi

Appellant

and

Joseph Nyaboke Ondieki

Respondent

Suing as the Personal Representative and Legal Administrators (sic) of the Estate of Dadius Ondeiki Migiro

(Being an appeal from the Judgment and decree of Hon W.C. Waswa (RM) delivered at Nyamira in Chief Magistrate’s Court Case No E007 of 2021 on 28th June 2021)

Judgment

Introduction 1. In his decision of June 28, 2021, the learned trial Magistrate, Hon WC Waswa, resident Magistrate entered judgment in favour of the respondent herein against the appellant herein as follows:-Loss of dependency Kshs 2,000,000/=2/3 x 10,000 x 25 x12Pain and suffering Kshs 150,000/=Loss of expectation of life Kshs 150,000/=Special damages Kshs 82,500/=Plus costs of the suit and interest thereon.

2. Being aggrieved by the said decision, on July 21, 2021, the appellant herein filed a memorandum of appeal dated July 15, 2021. He relied on six (6) grounds of appeal.

3. The appellant’s written submissions were dated February 20, 2022 and filed on March 8, 2022 while those of the respondent were dated February 21, 2022 and filed on February 22, 2022.

4. The judgment herein is based on the said written submissions which both parties relied upon in their entirety.

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court is not bound necessarily to accept the findings of fact by the court below and that on appeal while it must reconsider the evidence, evaluate it itself and draw its own conclusions, it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

7. Having looked at the grounds of appeal and the respective parties’ written submissions, it appeared to this court that the only issue that had been placed before it for determination was whether or not the learned trial Magistrate awarded the respondents damages that were inordinately high and/or excessive so as to warrant interference by this court. The court therefore dealt with all the grounds of appeal together as they were related but under the separate and distinct heads shown hereunder.

A. Pain And Suffering 8. The appellant submitted that the sum of Kshs 100,000/= that the learned Trial Magistrate awarded under this head was excessive for the reason that no evidence was tendered to show that Daduis Ondieki Migiro (hereinafter referred to as “the deceased”) suffered any pain at the time of his death. He proposed that this court awards a sum of Kshs 10,000/=. In this regard, he placed reliance on the cases of Awadh Ahmed Awath vs Shakil Ahmed Khan [2020] eKLR and Crown Bus Services Ltd & 2 Others Jamilla Nyongesa & Another (Legal Administrators of the Estate of Alvin Nanjala (Deceased) [2020] eKLR where the courts therein awarded a sum of Kshs 10,000/= for pain and suffering.

9. On her part, the respondent submitted that an award of Kshs 150,000/= for pain and suffering was adequate as the deceased died about five (5) hours after the accident. She relied on the case of David Kahuruka Gitau vs Nancy Ann Wathithi Gitau & Another [2016] eKLR where the court awarded a sum of Kshs 100,000/= for pain and suffering where the deceased died after thirty (30) minutes and the case of Acceler Global Logistics vs Gladys Nasambu Waswa & Another [2020] eKLR where the Trial Court had awarded a sum of Kshs 100,000/= under this head. She thus urged this court not to disturb the award of Kshs 100,000/= that was awarded by the learned Trial Magistrate.

10. A perusal of the plaint that was dated January 15, 2021 and filed on January 28, 2021 showed that Dadius Ondieki Migiro (hereinafter referred to as “the deceased”) died on October 25, 2020, the same date he was involved in a fatal road accident with the appellant’s motor vehicle registration number KCW 241W (hereinafter referred to as “the subject motor vehicle”) which hit a motor cycle he was riding on along Kisii- Nyamira Road at Sun- siro area or thereabouts.

11. In the case of David Kahuruka Gitau vs Nancy Ann Wathithi Gitau & Another(Supra), the court awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident.

12. In the cases of Acceler Global Logistics vs Gladys Nasambu Waswa & Another (Supra) and Sukari Industries Limited vs Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others vs Hannah Wangui Makumi & Another [2021] eKLR, the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.

13. As was held in the case of Kiwanjani Hardware Limited & Another vs Nicholas Mule Mutinda [2008] eKLR, an appellant court will not disturb an award of damages unless the same was inordinately low or high so as to represent an erroneous estimate or was based on an entirely wrong principle.

14. Notably, there is no specific award for pain and suffering and the trial court has the discretion of awarding any figure provided that the same was comparable to similar awards. There is need to award higher figures in cases where a deceased has suffered for some time before succumbing to his or her injuries.

15. Nonetheless, courts must be conservative and exercise restraint in awarding extremely high sums as this has the potential of pushing insurance premiums to the detriment of fare paying passengers in public vehicles who would have to pay higher fares to travel and to the detriment of insureds of private motor vehicles who would have to dig deeper in their pockets to pay premiums to keep their vehicles on the roads.

16. According to the respondent’s testimony during trial, the accident occurred at 8. 00 pm and the deceased died at 1. 00 pm. He must have been in great pain for five (5) hours before he succumbed to his injuries. There was no other way that the respondent could have proved that the deceased suffered immense pain before his death apart from considering the period he was involved in the accident and the time he succumbed to death.

17. Accordingly, bearing in mind the inflationary trends, this court came to the conclusion the sum of Kshs 10,000/= that the appellant had proposed was too low but that a sum of Kshs 100,000/= for pain and suffering that the learned Trial Magistrate awarded was fair and reasonable. This court was therefore not persuaded that it should disturb this head.

B. Loss Of Exepectation Of Life 18. The appellant did not appear to have submitted on this issue and hence this court left the award that was given by the learned Trial Magistrate as it was.

C. Loss Of Dependency 19. The appellant cited the case of Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the personal representatives of the Estate of Mercy Nzula Maina (deceased) [2016] eKLR where the court held that if the multiplicand could not be ascertained with any precision, courts could make a global award.

20. This court found it prudent to address the claim for loss of dependency under the distinct heads to ascertain whether or not the learned Trial Magistrate applied wrong principles in having awarded the sum of Kshs 2,000,000/= under this head.

AA. Multiplicand 21. The appellant submitted that there was no clear evidence how the learned Trial Magistrate adopted an income of Kshs 10,000/= as a minimum wage. He pointed out that the respondent did not prove the deceased’s income as a boda boda rider at the sum of Kshs 20,000/= which he stated was speculative.

22. On the other hand, the respondent relied on the case of Jacob Ayia Mayuga & Another vs Simeon Obayo [2005] eKLR where the Court of Appeal held that documentary proof was not the only way to prove a deceased’s income and that taking such a stand would cause grave injustice to very many Kenyans who did not keep records.

23. She also placed reliance on the case of CA No 317 of 2003 Checkers Trading Ltd & Another vs Fatuma Kimanthi & Another (eKLR citation not given) where the Court of Appeal held that if a plaintiff’s evidence was not challenged, the court could rely on the same.

24. This court had due regard to the case ofJacob Ayia Mayuga & Another vs Simeon Obayo (Supra) in which it was held that it would cause such grave injustice to deceased persons in the informal sector who did not keep records and had no pay slips as some may be living hand to mouth. Absence of such documents did not mean that they did not eke and earn a living.

25. Accordingly, in view of the fact that the respondent did not provide any evidence of the deceased’s income, this court found it more fair to adopt a minimum wage as it was more objective and quantifiable in determining the deceased’s wage at the time of his death. Indeed, a global figure was more subjective and not quantifiable with exactness and/or with precision. It is for that reason that this court considered the minimum wage to assist it come to a fair and reasonable figure to calculate the deceased’s income.

26. In the Regulation of Wages (General) (Amendment) Order, 2017, that came into effect on May 1, 2017, the minimum wages for general labourers in Nairobi was Kshs 12,926. 55. In the Regulation of Wages (General) (Amendment) Order, 2018 that came into effect on 1st May 2018, the minimum wage for general labourers in Nairobi was Kshs 13,572. 90. This is where the deceased could have been best placed considering that there was no scale for Boda Boda riders. Ordinarily, a basic minimum would be less contentious when adopted in calculating the income of a person who had not been covered in the said regulations.

27. Notably, the appellant did not adduce any evidence to rebut the respondents’ evidence that the deceased was a boda boda rider and who was expected to have earned some form of income. Absence of documentary evidence such as a payslip or records did not mean that he did not get an income from his Boda Boda business.

28. Bearing in mind the minimum wage as at the time of the deceased’s death, it was the considered view of this court that the adoption of Kshs 10,000/= as his income by the learned Trial Magistrate was not inordinately high and/or manifestly high to have warranted interference by this court.

BB. Multiplier 29. The appellant submitted that it was practically impossible for the deceased to have lived for twenty five (25) years because he was involved in a risky venture which exposed him to factors such as pneumonia and accidents. He opined that a multiplier of twenty (20) years would have been reasonable consideration in view of vicissitudes and vagaries of life.

30. On the other hand, the respondent submitted that the appellant had proposed a multiplier of twenty (20) years and had relied on the case ofJenifer Wambui vs Stephen Njoroge & Another [2017] eKLR where the court therein adopted a multiplier of twenty (20) years where the deceased was twenty four (24) years.

31. She pointed out that she had proposed a multiplier of thirty five (35) years and consequently, the learned Trial Magistrate’s adoption of twenty five (25) years was reasonable.

32. According to the certificate of death that was tendered in evidence during trial, the deceased died at the age of twenty five (25) years. She adduced in evidence a certificate of death as proof of his age.

33. This court had due regard to the case FMM & Another vs Joseph Njuguna & Another [2016] eKLR in which the court therein adopted a multiplier of twenty three (23) years where the deceased was aged twenty six (26) years at the time of death.

34. Further, in the case of Solomon Ndungu Kabugi vs Zachariah Mureu Karume[2009] eKLR, the court adopted a multiplier of twenty (20) years where the deceased died aged thirty (30) years.

35. The retirement age in Kenya is sixty (60) years for most people in the public and private sectors of employment. Having been twenty five (25) years of age at the time of his death, the deceased would have probably worked for another thirty five (35) years in formal employment. However, he was self- employed where there was no retirement age.

36. Accordingly, taking into consideration the vagaries of life and in particular the risks involved as a boda boda rider, this court came to the conclusion that a multiplier of twenty five (25) years was reasonable in the circumstances of the case herein. Notably, it came to a similar conclusion in the case of Damacline Kwamboka Kunga vs Caroline Moraa Ogata & Another [2022] eKLR where it reduced a multiplier from thirty (30) years to twenty five (25) years where the deceased was also aged twenty five (25) years. This court therefore left the finding of the learned Trial Magistrate undisturbed.

CC. Dependency Ratio 37. It did appear to this court that the appellant was not challenging the dependency ratio. This court left the finding of the Learned Trial Magistrate undisturbed.

DD. Special Damages 38. The appellant did not also appear to have disputed the sum of Kshs 118,050/= being special damages. This court did not therefore interfere with the same.

Disposition 39. For the foregoing reasons, the upshot of this court’s decision was that the appellant’s Appeal that was lodged on July 21, 2021 was not merited and the same be and is hereby dismissed. The appellant will bear the respondent’s costs of this appeal.

40. Notably, a perusal of the record of appeal showed that it was only the respondent herein who was brought to this court. Going further, unlike in the respondent’s written submissions, the appellant did not still include Samwel Mogaka Migiro who, in the lower court, was indicated as having been one of the personal representatives and legal representatives to the deceased’s estate in its written submissions. It was not clear whether this was intentional or it was an inadvertent error on the part of the appellant’s Advocates.

41. As this court cannot and could not purport to or make any assumptions, it is hereby directed that the appellant shall pay the respondent’s costs of this appeal.

42. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF SEPTEMBER 2022J. KAMAUJUDGE