[2021] KEHC 6163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CIVIL APPEAL NO. 24 OF 2020

MPAKA MURIUKI JAPHETH......................APPELLANT

VERSUS

HMM.....................................................1st RESPONDENT

TM (Suing as the legal representative of the estate of

LGM (deceased)..................................2nd RESPONDENT

(An appeal from the Judgment and Decree of Hon. Titus Gesora (S.P.M) in Maua CMCC No.155 of 2018 delivered on 06/02/2020)

JUDGMENT

1. Before the trial court was a claim commenced by a Plaint dated 19/11/2018, in which the respondents sued the appellant seeking general and special damages under both the Law Reform Act and Fatal Accident Act, costs of the suit and interests thereon.

2. The gist of the claim was pleaded to be that on or about 26/02/2018, the deceased was lawfully walking on the pedestrian pavement along Maua-Laare Road when the appellant so carelessly and/or negligently drove motor vehicle registration number KAZ 736 S Toyota DX that it veered off the road and knocked her down thereby fatally injuring her. It was additionally pleaded that the deceased was at the date of the accident a brilliant class 7 pupil at [Particulars Withheld] Primary School aged 13 years, who aspired to become a medical doctor in future. She was enjoying robust health and would have lived a long and fruitful life which was unlawfully cut short by the appellant’s negligence with the consequence that her dependants and estate suffered loss.

3. The appellant strenuously denied the claim by his statement of defence dated on 28/02/2019 and prayed for the respondent’s suit to be dismissed. Liability was settled by consent and after conclusion of the trial, the trial court found that the respondents had proved their case on a balance of probability and deserved an award of general damages of Kshs 50,000 for pain and suffering, Kshs 100,000 for loss of expectation of life, Kshs 1,500,000 for loss of dependency, special damages of Kshs 145,400 plus costs and interests.

4. Aggrieved by the said decision, the appellant filed his Memorandum of Appeal on 02/03/2020 listing 10 grounds of appeal. The appellant complained that the trial court misdirected itself when it failed to consider the provisions set out in the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013 and further erred in awarding the estate of the deceased an excessive and erroneous sum of Kshs 100,000 for loss of expectation of life. The trial court was faulted for awarding the estate of the deceased an excessive and erroneous sum of Kshs1,500,000 for loss of dependency for a minor who had no capacity to support anyone. It was also complained that the trial court misdirected itself by failing to consider the appellant’s submissions together with the authorities cited thereon and overly relying on the respondent’s irrelevant authorities thereby arriving at an unjust and erroneous decision. The trial court was faulted for awarding the estate of the deceased a sum of Kshs 50,000 for pain and suffering without taking into consideration the fact that the deceased died the same day. It was also contended that the trial court erred by failing to consider conventional awards in cases of a similar nature by using the multiplier approach instead of the global award approach.

5. In summary, the evidence by PW1 HMM,the deceased father, and the only witness to testify in the matter, was that on 26/02/2018, at about noon, he was at Kilili area when he received a call informing him that his daughter LGM, a standard 7 pupil at [Particulars Withheld] Primary School, had been knocked down by motor vehicle registration number KAZ 736 S Toyota Corolla Station Wagon along Maua-Laare Road as she was going back to school. He rode his motor cycle to Maua Methodist Hospital where the said Lena had been admitted and found doctors attending to her but she unfortunately passed on the same day at 4. 00 pm. The deceased was survived by him and her mother namely TM. The driver of the motor vehicle registration number KAZ 736 S was charged with a traffic offence of causing death by dangerous driving which was pending before court as at the date the witness gave evidence. During cross examination, he confirmed that the deceased who was in class eight had no salary and that only few people contributed minimally towards the funeral expenses. During re-examination, he stated that he spent money for burial. He produced the documents in the list of documents dated 19/11/2018 as exhibits in court in support of their case which were marked accordingly.

6. At the trial, the appellant closed his case without calling any witnesses.

7. Directions were issued on 14/07/2020 that the appeal be canvassed by way of written submissions which were respectively filed on 17/11/2020 and 16/02/2021. The appellant’s submissions were to the effect that the sums awarded for pain and suffering, loss of expectation of life and loss of dependency were inordinately high. The trial court is faulted for exceeding its discretion by taking into account irrelevant factors and failing to take into account relevant factors thereby awarding an inordinately high award in the sum of Kshs1,500,000. It is contended that the future of the deceased, who was a primary school pupil, was unpredictable as the evidence that she was a school going child is insufficient proof of a bright future. The court is therefore urged to substitute the amount of Kshs1,500,000 being for loss of dependency, be substituted with a sum of Kshs 600,000 while the sum of Kshs 50, 000 for pain and suffering and the sum of Kshs 100,000 for loss of expectation of life were contested as not having been properly made with any submissions being offered therefor. It is concluded that the appeal should be allowed and the costs therein awarded to the appellant.

8. The appellant cited the cases of Ogutu v Makairo 3Bs Trading Co Ltd (1985) eKLR, Kenya Wildlife Services v Geffrey Gichur Mwaura (2018) eKLR, and Chen Wembo & 2 others v IKK & anor (Suing as the legal representatives and administrators of the estate of CRK(Deceased) (2017) eKLR in support of his submissions that for a minor the future cannot be foretold with certainty and what quantum of damages were awarded in comparable cases. No submissions were offered for the fault against the award for pains and suffering as well as loss of expectation of life, and I would have, if not for my mandate to appraise the evidence afresh, inferred the ground abandoned.

9. On their part, the respondents submitted that the sums awarded under pain and suffering, loss of expectation of life and loss of dependency were not manifestly excessive and should not be disturbed. The general position taken, based on the decision in Gitobu Imanyara vs A G , (2016)e klr, is that this court as an appellate court ought to be disinclined to disturb the exercise of discretion by the trial court on matter of quantum of damages, unless a demonstration is made that the trial court acted upon wrong principles or that the sum awarded was evidently to large and exorbitant or to small and a misery as to evidence an outright erroneous assessment of damages.

10. On the award for pains and suffering, in particular, it was asserted and argued that the deceased remained conscious and thus was in pain and suffered such pain from the time of the injury, at about noon, till about 4pm when she died and thus the award was not only merited but the sum was also reasonable, it being stressed that it not whether this court could award a different figure but rather if the sum was too high. The respondent cited to court the decisions in joseph Kivati Wambwa vs SMM (2021) eklrand JNK vs Board of Governors (2018) eklrwhere the sums of Kshs 120,000 and 50,000 were awarded for the victims who died on the same day of the accident and urged the court to find that the award was properly made.

11. On loss of expectation of life awarded in the sum of Kshs 100,000, even though the appellant offered no submissions, the respondent reminded the court that parties had made different proposals to the court below and the decided cases were then cited for the assertion that the award was indeed reasonable. The decision in joseph Kivati Wambwa vs SMM (2021) eklrin which a sum of Kshs 120, 000 was upheld was cited to urge the court to uphold the award here and dismiss the appeal.

12. It was concluded that the appeal should be dismissed with costs to the respondents as the appellant has failed to make out a case to warrant the disturbing the awards made by the trial court. As said before, the respondents relied on Gitobu Imanyara & 2 others v Attorney General(2016) eKLR, Twokay Chemicals Limited v Patrick Makau Mutisya & anor (2019)eKLR, JKK & RK (Suing as the legal representatives of the estate of LCK) v Gilgil Hills Academy (2019) eKLR, Joseph Kivati Wambua v SMM & IKM (Suing as the legal representatives of the estate of EMM-Deceased) (2021) eKLR and China National Aero-Technology International Engineering Corporation v RL (Suing as the legal representatives of the estate of SL-Deceased)((2020) eKLR in support of their submissions.

13. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. It is also an established principle of law that an appellate court should be slow to interfere or reverse the findings made by the trial court, particularly on factual conclusion and exercise of discretion including assessment damages, unless it is satisfied that the court acted on no evidence or on a misapprehension of the evidence or applied the wrong legal principles in reaching its decision.

14. I have ascertained that although the grounds of appeal as listed are 10 in number, the real contention is whether the sums awarded for pain and suffering, loss of expectation of life and loss of dependency were excessive and erroneous. The principles on when an appellate court would interfere with the findings by the trial court on assessment and award of quantum of damages are now trite as settled by the court of appeal in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 in the following terms:

“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 leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

15. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47,the Court of Appeal held that:

“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

16. In this appeal, the appellant contends that the awards made under the three heads were excessively high and erroneous. I propose to deal with each head of damages separately.

17. On the award for pains and suffering, the accident occurred is agreed to have happened at about noon and according to the Trauma card from Maua Methodist Hospital, the deceased was admitted at said hospital at 2. 10 pm. The mortuary record from the said hospital reveals that the deceased died at 6. 00 pm. PW1 in his evidence stated that the deceased who had been involved in a road accident at around noon on 26/02/2018 died later at Maua Methodist hospital at around 4. 00 pm. This clearly shows that she was conscious for some hours and axiomatically suffered pain before her death. It cannot be correct thus that and I therefore find that the award of Kshs 50,000 for pain and suffering was not only due and recoverable but also modest and reasonable.

18. What about the award for loss of expectation of life in the sum of Kshs 100,000? I have noted that the trial court in coming to the assessment and award considered both the appellant’s and the respondent’s submissions and authorities in equal measure. At page 57 of the record of appeal, the trial court in its judgement observed: -

“the deceased was a class 8 pupil who had no salary for whom plaintiff’s counsel asks me to apply a global figure and has cited two cases to support this. HCCA No. 132 of 2016 (Machakos) and HCC No. 337 of 2009 (Nakuru) where Ksh.1. 5 Million and Ksh.20 Million were awarded respectively. The defence agrees that the global figure approach is acceptable. The cases cited by the defendant have much smaller amounts but that does not negate the position that the global figure approach is acceptable. The plaintiff has asked for Ksh.2 Million. There is no suggestion from the defence.”

19. It is to this court clear from this excerpt that due regard was given to submissions by both sided and the allegation by the appellant that the trial court overly relied on the respondent’s submissions and authorities is clearly unjustifiable, unfounded and thus misplaced. I find no merit in fault over this award and I reiterate that no demonstration of a befitting error has been made to justify an interference with the award by the trial court.

20. On the third limb, whether the sum of Kshs 1,500,000 awarded for loss of dependency was excessive and erroneous, I find that the trial court used a comparative approach to reach the decision it did. But even then the law remains that the awards, being an exercise of discretion, stands unless and until there be demonstration that the award was too high or is fraught with lack of regard for the due principle. In Daniel Mwangi Kimemi & others v Representative of the estate of N.K(deceased) (2016) eKLR, the court made an award of Kshs1,000,000 for loss of dependency of a deceased who was aged 9 years. In the recent decision cited by the respondent of China National Aero-Technology International Engineering Corporation v RL(Suing as the legal representatives of the estate of the late SL (2020) eKLR,the appellate court declined to interfere with the trial court’s award of Ksh.1,400,000 for loss of dependency of a deceased who was aged 13 years. The question then emerges, what is the basis of asserting that the award was exorbitant and thus erroneous? In Kenya Breweries Limited V Saro (1991) (eKLR) the Court of Appeal rendered itself thus:

“We would respectfully agree with Mr. Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen-year-old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four-year-old one who has not been to school and whose abilities are yet not ascertained. That, we think, is a question of common sense rather than law. But the issue of some damages being payable in both cases is no longer an open question in Kenya. Thisis because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and do invariably take care of their aged parents. That must be why we still do not have “homes” for the aged; we think an African son or daughter may well find it offensive to have his/her parents cared for by strangers in a “home” while he or she is still able to look after them. At the national level, the concept now finds expression in the popular phrase “being mindful of other people’s welfare”. If any legal authority is required in support of our views we would quote this court’s decision inSheikh Mushaq v Nathan Mwangi Kamau Transporters & Five others[1985 – 1986] 4KCA 217, wherein the late Nyarangi, delivered himself as follows:-

“In general, in Kenya children are expected to provide and to provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do that by the established customs of the various African and Asian communities in Kenya. This particular custom is broadly accepted, respected and practiced throughout Kenya both by Africans and Asians. I would say the application of the custom at family level is the basis of the national ethos of being mindful of others’ welfare. In the Asian community, the custom is supported by the Hindu religion whose influence on the life of the Hindu religion whose influence on the life of the Hindu community is well night total. That is common knowledge. With regard to Africans, the courts in Kenya exercise their respective jurisdictions inter alia to the extent the circumstances of Kenya and its inhabitants permit and subject to the qualifications those circumstances render necessary. The trial judge’s contemptuous remarks about the custom of the people is contrary to section 3(1) of the Judicature Act cap 8 and therefore to be regretted and disapproved. The custom could not possibly be said to be repugnant to justice and morality. The custom is well within the tenets of the great religious of Hinduism, Christianity and Islam. It is a custom the practice of which appeals to ordinary people in Kenya, is not malevolent and the trial judge’s view that it is “outrageous and pernicious” is not well-founded and must be rejected. ...”

“In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is not evidence of pecuniary contribution. The High Court authorities which were cited to us, such asAbdullahi v Githenye [1974] EA 110,Maurice Miriti v Feroze Construction Co LtdHCCC No ... 1979, NRB, (unreported) and so on, all go to support the contention that damages are payable irrespective of age and such like considerations. InAbdullahi v Githinye,supra, the deceased girl was only 7 years old. Kneller, J (as he then was) awarded shs 8,000/- in 1974. InMiriti v Firoze, supra, the boy was in a nursery school. Nyarangi, J (as he then was) awarded a total of Shs 70,000/= in 1982 for loss of expectation of life. We are satisfied that the learned judge was right in awarding damages to the respondent following the death of his son and we reject ground of appeal that the learned judge erred in holding that the respondent was entitled to claim damages under the Fatal Accidents Act. The respondent was entitled to do so under section 3 and 4(1) of that Act and under the authorities to which we have referred.”

21. Applying the above test to this case, it is important to note that the deceased, a class 8 pupil aged 13 years who was attending [Particulars Withheld] Primary School was a brilliant pupil, as shown by the score sheet for her class for end of year 2017, was aspiring to become a medical doctor and she was trying to achieve enough marks to join the Equity Wings to Fly Program but all her dreams and desires were shattered by her untimely death. Her parents also reasonably expected that she would finish school, enter the job market and help them in their old age. The deceased is not different from the African child the court of appeal has always had in mind and the trial court was in fact bound to apply the principle that damages are due and payable. The assessment thereof however fell to the discretion of the trial court and I am not persuaded that it ran into any error to invite my interference.

22. I am satisfied that the trial court applied the correct legal principles in arriving at an award of Kshs 1,500,000 for loss of dependency which in my view is reasonable and consistent with past awards.

23. In conclusion, I have not found any justification to disturb the trial court’s assessment of damages under both the Fatal Accidents Act and the Law Reform Act. I find the appeal is unmeritorious and I find that it should be dismissed. I dismiss it with costs to the respondent.

DATED, SIGNED AND DELIVERED AT MERU, VIRTUALLY, BY MS TEAMS, THIS 14TH DAY OF JUNE 2021

IN PRESENCE OF

MR. NKUNJA FOR RESPONDENT

MS KABUTE FOR APPELLANT

PATRICK J O OTIENO

JUDGE