[2022] KEHC 1430 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA A T NYERI

CIVIL APPEAL NO.22 OF 2020

MOSES MAINA WAWERU..............................................................................................APPELLANT

VERSUS

ESTHER WANJIRU GITHAE (Suing as the personal representative of the Estate of the late

DAVID GITHAE KIRIRIO TAITI.................................................................................RESPONDENT

(Being an appeal from the judgement and decree of Hon. D.M. Ireri, Senior Principal Magistrate, in OthayaSRMCC No. 32 of 2018delivered on27th May, 2020)

JUDGMENT

1. The respondent had sued the appellant at the lower court after her husband, the deceased herein, was fatally crashed by a motor vehicle belonging to the appellant. Parties entered consent on liability at the ratio of 80:20 in favour of the respondent. The trial magistrate subsequently awarded the estate of the deceased a global sum of Ksh. 2,000,000/- in general damages for loss of dependency. The appellant was aggrieved by the award and filed the instant appeal.

2. The grounds of appeal are that the learned magistrate erred in law and in fact in:

a) Awarding manifestly excessive and undeserved general damages to the respondent under the Fatal Accidents Act of Kenya Shillings Two Million, One Hundred and Twenty Thousand only (Kshs. 2,120,000/-);

b) Using a global award of Kenya Shillings Two Million (Kshs. 2,000,000/-) where income of the deceased had not been proved and/or subjected to mandatory statutory deductions;

c) Using a very high global award despite the fact that the deceased was 68 years;

d) Failing to consider conventional awards in cases of similar nature.

3. The evidence adduced at the lower court indicated that the deceased was a farmer and a businessman. That he died at the age of 68 years and left behind a wife, the respondent, and adult children.

Submissions –

4. The advocates for the appellant, Kimondo Gachoka & Co. Advocates, submitted that the general method of approach for assessing damages is that comparable injuries should be compensated by comparable awards -see Denshire Muteti Wambua v Kenya Power & Lighting Co. Limited (2013) eKLR. That the award of Ksh. 2 million on loss dependency was overly excessive especially considering that the deceased was 68 years old and dependency was not actual since the businesses he was said to have been engaged in survived him. Furthermore, that he had no minor children.

5. Counsel cited comparative authorities in the following cases:

-Dora Mwawandu Samuel (Suing on her behalf and on the behalf of the Estate of Samuel Muweliani Jumamosi (Deceased) vs Shabir M. Hassan[2021] eKLR where the court awarded a 59 year old farmer a global sum of Kshs. 400,000/-.

-Moses Wetangula & Another vs Eunice Titika Rengetiang [2018] eKLRwhere the court awarded a global sum of Kshs. 500,000/- for a 42 year old retired officer of the Kenya Defence Forces.

-Rishi Hauliers Limited vs Josiah Boundi Onyancha [2015] eKLR where the court awarded a global sum of Kshs. 500,000/- to a 50 year old.

6. To show that the award was inordinately high, Counsel contrasted the award in the instant case to the award in Ainu Shamshi Hauliers Limited v Moses Sakwa & Another (Suing as the Administrators of the estate of Ben Siguda Okach (Deceased)(2021)eKLR where a global sum of sh 2,000,000/- was awarded for the death of a 40 year old man who left behind a 29 year old wife and two young children aged 6 and 4 years. That the said award was upheld on appeal as the court was of the opinion that the award was not inordinately high based on the young family the deceased left behind.

7. The appellant further submits that there was a double award under the Law Reform Act and the Fatal Accidents Act and thus the award ought to take into account a deduction between the two acts to remedy the double award occasioned. To support this contention, the appellant relies on the cases of Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited[2015] eKLR, Sremo Korir & Another vs SS (Suing as the legal representative of the Estate of MS (Deceased)[2019] eKLR; Patrick Barasa vs Serah Wambui Karumba (Suing as the legal representative of the Estate of Late Albert Chebaya[2019] eKLR and Francis Wainaina Kirungu (Suing as the personal representative of the Estate of John Karanja Wainaina (Deceased) vs Elijah Oketch Adellah [2015]eKLR.

8. The advocates for the respondent, Gathoni Kimunya & Co. Advocates, on the other hand submitted that the advanced age of the deceased cannot be considered as a factor to deprive justice to the deceased and the court ought to fairly compensate him for the benefit of his estate. That the respondent produced evidence confirming that the deceased was in active business. That on the deceased’s demise, the business came to an end as the respondent was not a party to the contracts the deceased was engaged in and for that reason she could not continue with the business.

9. The respondent submits that the award of Ksh.2 million was not manifestly excessive as to warrant interference by this court. That the appellant has not shown that the trial magistrate took into account an irrelevant factor or failed to appreciate relevant evidence or factor in making the award. She relies on the case of China Civil Engineering & Construction Company (K) Limited vs Mwanyoha Kazungu Mweni & Mweni Kazungu Mweni (Both suing on behalf of the Estate of Ndegwa Mzungu Mweni (Deceased) (2019) eKLRwhere the court, (Nyakundi J.), upheld a global award of Ksh. 700,000/- for loss of dependency made to a deceased who was a 79 year-old farmer.

Analysis and Determination –

10. The appellant in his submissions did not raise the issue whether or not the trial court erred in adopting the global sum approach in making the award of damages. His arguments were that the sum awarded was excessive. The issues for determination in the appeal are therefore:

(a) Whether the damages awarded were manifestly excessive.

(b) Whether there was a double award under both the law Reform Act and the Fatal Accidents Act.

11. Being a first appeal, the court relies on a number of principles as set out by the Court of Appeal in Selle and Another vs Associated Motor Boat Company Ltd & Others[1968] 1EA 123 that:

“…..the 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 allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

12. It was also held in Mwangi vs Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

13. Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-

“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”

14. Therefore, this Court is under a duty to revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it that the trial court had the advantage of hearing the parties.

Whether the award was manifestly excessive –

15. The appeal herein lies on quantum. Notably, assessment of damages are matters that are within the discretion of the trial court and the appellate court ought to respect that discretion if properly exercised. This was aptly expressed by the Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenya) vs Kiarie Shore Stores Limited [2015] eKLR thus:-

“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate court will not disturb an award of damages unless it is so inordinately high or law as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages.”

16. The appellant argued that the award of Kshs.2 million on loss of dependency was excessive and relied on several authorities where the courts made awards ranging between Ksh. 400,000/- and 500,000/-. The respondent relied on an authority where an award of Ksh.700,000/- was made.

17. In awarding a global sum of Ksh.2 million, the trial magistrate held that:

“I hereby award the plaintiff a global sum of Shs.2,000,000/=which I consider reasonable and moderate in the circumstances for loss of dependency after taking into account deceased’s age at the time of his death, the inflation rate, age of authorities referred to and further taking into account that the plaintiff will also benefit under the Law Reform.”

18. Loss of dependency is a question of fact. The creteria to be used in determining an award for loss of dependency for a deceased who left behind dependants is the number of dependants, the age of the dependants and the level of dependency. In my view the award ought to be higher where the dependants are young. The age at which the deceased died is also a relevant factor.

18. The deceased herein left behind a widow and adult children. There was no evidence that the adult children were dependent on the deceased. It would appear that only the widow was dependent on the deceased.

19. Looking at the case law cited in this appeal and taking into account the principle that comparable injuries ought to be compensated by comparable awards, I find that the sum of Kshs.2,000,000/- awarded by the trial court was inordinately high. I am of the view that the award in the case ofChina Civil Engineering & Construction Company (K) Limited vs Mwanyoha Kazungu Mweni & Mweni Kazungu Mweni where a sum of Kshs.700,000/- was made is a proper guide in determining the proper estimate for an award in the age bracket that the deceased died at. The respondent herein produced documents that showed that the deceased was actively involved in business of making supplies to local hotels and other institutions. That kind of business cannot have survived the deceased contrary to what is submitted by the appellant. Taking into consideration that the deceased died at the age of 68 years and left one dependant, I am of the view that an award of Kshs.800,000/- is reasonable for loss of dependency.

Whether there was double award under the Law Reform Act and the Fatal Accidents Act -

18. The trial court awarded Kshs.20,000/- for pain and suffering and Ksh.100,000/- for loss of expectation of life. These were damages under the Law Reform Act. The court then proceeded to make an award for loss of dependency under the Fatal Accidents Act. The question is whether there was double award under the two Acts.

19. The question of double compensation under the two Acts was explained by the Court of Appeal in Hellen Waruguru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited[2015] eKLR where it was held as follows:-

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.

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 of 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.

20. From the foregoing passage, it is clear that what is required of the court is not to deduct one award from the other but to take into account the possibility of double compensation. The judgement of the trial court in this matter indicates that while the magistrate made the award for loss of dependency under the Fatal Accidents Act, he took into account that the respondent would benefit under the Law Reform Act. In this regard, I am not persuaded that the sum awarded by the trial court under the Law Reform Act ought to be deducted from the Fatal Accidents Act. As such there was no double compensation under the two Acts.

21. The upshot is that the appeal on the loss of dependency is merited. I substitute the award made by the trial court with an award of Kshs.800,000/-.

Orders accordingly. The appellant to have the costs of the appeal.

DELIVERED, DATED AND SIGNED AT NYERI THIS 17TH DAY OF MARCH, 2022.

J.N. NJAGI

JUDGE

In the presence of:

No appearance: - for Appellant

Miss Kimunyo: -for Respondent

Court Assistant: - Kinyua

30 days Right of Appeal.