[2023] KEHC 24815 (KLR)

Mugetha v Maina (Suing as administrator of the Estate of Judy Wathioba Munene) (Civil Appeal 22 of 2019) [2023] KEHC 24815 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24815 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 22 of 2019

LM Njuguna, J

November 3, 2023

Between

Samuel Mwangi Mugetha

Appellant

and

Alexander Wachira Maina (Suing as administrator of the Estate Of Judy Wathioba Munene)

Respondent

(An appeal from the Judgment of Hon. E.O. Wambo SRM in Kerugoya CMCC No. 92 of 2015 delivered on 28th March 2019)

Judgment

1. Vide Memorandum of appeal dated 18th April 2019, the appellant seeks orders that the appeal be allowed, the judgment of the trial court on award of loss of dependency be set aside and be substituted with another award and costs. The appeal is premised on the grounds that the learned Magistrate erred in law and fact:a.In the manner that he assessed damages for loss of dependency and in awarding damages that were excessive in the circumstances;b.In adopting the global sum award approach whereas the respondent and appellants had proposed the multiplier approach; andc.By failing to consider the appellant’s submissions on loss of dependency.

2. The background of the case is that the plaintiff/respondent filed plaint dated 09th April 2015 seeking judgment against the defendant/appellant for special damages of Kshs. 51,700/=, damages under the Fatal Accidents Act and the law Reform Act and interests on the awards. The particulars of negligence were that on 30th August 2014, the plaintiff/respondent and his wife, the deceased, were lawful pillion passengers on motorcycle registration number KMCY 633Y Haojin being ridden by one Michael Waweru Mwangi along Makutano-Mwea Road when at Wamumu area, the defendant/appellant so negligently and carelessly drove his motor vehicle registration number KBZ 870Q Toyota Premio in a manner that he lost control and knocked down the plaintiff/respondent and his wife, causing the deceased to sustain fatal injuries. That he holds the defendant/appellant liable for the accident and the loss and damage that came with it.

3. The defendant/appellant filed a statement of defense, denying the allegation made in the plaint and blamed the motor cycle rider for the accident and gave particulars of negligence on the part of the rider.

4. At the trial, PW1, the plaintiff/respondent stated that the deceased was sitting between him and the rider on the motor cycle when the appellant’s motor vehicle approached and hit them from behind. That he sustained injuries on the pelvis, face and right ear but the deceased died on the spot. That members of the public assisted him and the rider to Our Lady of Lourdes Mwea Mission Hospital and later to Kikuyu PCEA Hospital where he was admitted for eleven days. He stated that the deceased is survived by two children aged 16 years and 9 years and that they all depended on her income from selling rice and farming which was about Kshs. 500,000/=. That after the death of his wife, he took out letters of administration and now seeks damages as prayed in the plaint. He produced documents in support of his case. On cross-examination, he stated that neither he nor his wife were wearing reflector jackets and helmets. That he depended on the income of his wife for daily upkeep, school fees for the children and domestic use. That some of the proceeds from the business of the deceased were used to buy farm inputs but he did not have receipts to show for this expenditure. He also did not produce any school fees payment receipts or invoices and receipts as proof that the deceased ran the business as alleged.

5. PW2 was the motor cycle rider who stated that on the material day, he carried the deceased and the plaintiff/respondent on his motor cycle and they headed towards Embu when a motor vehicle hit them from behind. That they were assisted by members of the public to get to Our Lady of Lourdes Hospital where he was admitted for four days. That after he was discharged, he went to Kimbimbi Hospital as he was still in pain. That he was injured in his stomach area and the back, the result of which is that he cannot lift a heavy load. He stated that the driver of the motor vehicle that hit them was not trying to overtake but the vehicle was being driven at high speed. On cross-examination, he stated that he knew his pillion passengers and that they were regular customers. That he could tell from the impact that the vehicle was being driven at high speed.

6. PW3, the officer in-charge of traffic Sagana, stated that a fatal accident involving the motor cycle and the motor vehicle was reported at the station. That he visited the scene and blamed the rider for the accident as he was overlapping. He produced police abstracts. From his sketch plan, he stated that the motor cycle rider had entered the road after overlapping, thereby causing the accident and the motor cycle and its occupants were thrown about three meters outside the road. On cross-examination, he stated that the motor cycle rider did not have valid insurance or driving licence and that both PW1 and PW2 confirmed that they had left the road at some point during their journey.

7. DW1, the appellant, stated that on the material day at Wamumu area, he was driving at about 50KPH on his rightful lane when a motor cycle emerged and entered his lane from the pedestrian sidewalk of the road. That he tried to apply brakes but the distance was too short. That neither the rider nor the passengers were wearing reflector jackets and the accident happened around 9. 00p.m. at night. He denied having lost control of his motor vehicle. That he did not leave his lane on the road at any point and he blamed the motorcycle rider for the accident.

8. The trial court awarded a global sum of Kshs 3,000,000/= as general damages for loss of dependency, noting that the earnings of the deceased were unascertainable because of the fluctuations of the market.

9. In this appeal, the parties were directed by the court to file their written submissions and both sides complied.

10. The appellant, in his submissions, relied on the case of Kemfro Africa Ltd v. Lubia & Another (1987) eKLR where the court discussed circumstances that would warrant disturbing the quantum of damages awarded by the trial court. It was his case that the award of general damages for loss of dependency was given arbitrarily by the trial court and that this court should revise it and apply the multiplier method with minimum wage as the multiplicand. He cited the case of Catholic Diocese of Machakos & Another v. Janet Munaa Mutua & Another (2021) eKLR where the scope of application of the global sum was limited. Further reliance was placed on the cases of Kiranga Gatimu v Layo Abdi Aziz (Suing as a personal representative of the Estate of the Late Abdi Aziz Roba) (2017) eKLR and Florence Kavutha Malusi) Muthii Malusi (Suing As Administrator Of The Estate Of Jeremiah Nyamu Musyoka (Deceased) v Transami (Kenya) Ltd (2004) eKLR as submitted before the trial court and the cases of Monica Njeri Kamau v Peter Monari Onkoba (2019) eKLR, Amazon Energy Limited v Josephine Martha Musyoka & another (2019) eKLR and Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd (2013) eKLR in this appeal. He urged the court to apply a multiplier of 13 years, multiplicand of Kshs. 9,808/= (minimum wage) and ⅔ dependency ratio to award Kshs. 1,020,032/=. In the alternative, he submitted that if the court should find that the global sum approach is most suitable, then Kshs. 1,000,000/= would be sufficient compensation under this head.

11. It was the respondent’s submission that the appellate court should not disturb the award of damages by the trial court unless the same was based on wrong principles of law or was inordinately high or low. Reliance was placed on the cases of Gitobu Imanyara & 2 Others v. Attorney General (2016) eKLR and Savanna Saw Mills Ltd v. Gorge Mwale Mudomo (2005) eKLR. On the argument that the global sum approach was most appropriate, he relied on the cases of Mary Khayesi Awalo & Another v Mwilu Malungu & Another (1999) eKLR, Albert Odawa v Gichimu Gichenji (NKR HCCA 15 of 2003 (2007) eKLR, Frankline Kimathi Baariu & another v Philip Akungu Mitu Mborothi (suing as the Administrator and Personal Representative of Antony Mwiti Gakungu Deceased) (2020) eKLR and Mwangi (Suing as the administrators of the estate of Peter Maina Mwangi (Deceased)) v Arim (Civil Appeal E045 of 2021) (2022) KEHC 3295 (KLR). He urged the court to uphold the findings of the trial court.

12. From the foregoing, I gather that the only issue for determination is whether the trial court was right in awarding a global sum instead of applying multiplier method under the head of general damages for loss of dependency.

13. While sitting as an appellate court, it is expected that I re-evaluate the evidence and make a finding vis-a-vis the finding of the trial court. In the case of David Njuguna Wairimu v. Republic (2010) eKLR the Court of Appeal held thus:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

14. The trial court awarded a global sum of Kshs. 3,000,000/= under the head of loss of dependency, and in the view of the magistrate,“.... it has become the standard practice of the courts to apply a colossal sum….”The trial magistrate did not state sufficient reasons for awarding a global sum, neither did the court consider precedents. Contrary to this finding, it is my view that since the deceased is said to have been a businessperson, the trial court ought to have first considered the possibility of applying the minimum wage as multiplicand. It is not in doubt that PW1 was unable to prove the earnings of the deceased but the minimum wage meant for situations such as these. It is also proved that the deceased was 39 years old and was survived by two children who were minors at the time of the accident, therefore a dependency ratio of ⅔ is most appropriate.

15. The appellant submitted that the logical gauge to use in applying minimum wage in this case is under the prescribed minimum wages for the agricultural industry under the column for farm clerk or foreman under the Regulation of Wages (Agricultural Industry (Amendment) Order, 2015 as Kshs. 9,808/=. However, the applicable minimum wage as of 2014 when the deceased died is found in the Regulation of Wages (Agricultural Industry (Amendment) Order, 2013 and it is Kshs. 8,757/=. I could consider this minimum wage in applying the multiplier method. However, this introduces the predicament of finding the most suitable multiplier. In that case, this court would choose to be guided by several cases in choosing the most appropriate multiplier, for instance, the cases of Paul Ouma v Rosemary Atieno Onyango & Peter Juma Amolo (suing as the legal representative in the estate of Joseph Onyango Amolo (deceased) [2018] eKLR, Elizabeth Chelagat Tanui & Another v Arthur Mwangi Kanyua [2013] eKLR and Pleasant View school Limited v Rose Mutheu Kithopi & Another [2017] eKLR and I would have applied a multiplier of 21 years with a ⅔ dependency ratio.

16. If I compute quantum using the multiplier method as discussed hereinbefore, the general damages for loss of dependency will be greater than the award of the trial court. To this end, I am apprehensive of the rules of procedure and note that there was no cross-appeal filed, therefore, it would be unconscionable to enhance the award of the trial court. I also note that in his submissions, the appellant suggested that this court awards a global sum of Kshs. 1,000,000/= in place of the award of the trial court. I do not think that the argument holds water as the same is unfounded and the appellant seems to be on a phishing expedition. In all fairness, I would be inclined to apply the multiplier method as against the global sum but to do so would be prejudicial to the appellant yet he himself lures the court towards that direction.

17. Being adequately guided by the decisions in the cases of Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR and Savanna Saw Mills Ltd v. Gorge Mwale Mudomo (2005) eKLR, it is my considered view that in the circumstances, the award of the trial court is not inordinately high or low, for that matter.

18. Consequently, I find that the appeal lacks merit and is hereby dismissed with costs to the respondent.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………for the Appellant……………………………………………for the Respondent