[2022] KEHC 13756 (KLR)

Muhonja & another v Kiprono (Civil Appeal 153 of 2018) [2022] KEHC 13756 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13756 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 153 of 2018

WM Musyoka, J

October 7, 2022

Between

Maximillah Muhonja

1st Appellant

Ephrahim Ndolo Gwaliamba

2nd Appellant

and

Philip Kiprono

Respondent

(An appeal arising from the Judgment of Hon. T. Mwangi, Senior Principal Magistrate, delivered on 17th October 2018, in Kakamega CMCCC No. 95 of 2017)

Judgment

1. The suit at the trial court had been brought by the appellants against the respondent. The appellants had brought the case on behalf of the deceased and his estate, seeking compensation arising his death from a road traffic accident on July 20, 2014, which involved the deceased and the motor vehicle said to belong to the respondent. The deceased was a pedestrian, and he was hit and killed by the said vehicle, KBQ 198R-ZE 6008, along Webuye-Eldoret road. They attributed the accident to negligence on the part of the respondent or his agents. The respondent resisted the claim, denying the allegations of negligence and, in the alternative, attributing contributory negligence on the deceased.

2. Liability was settled by consent, on June 6, 2018, at 80:20 against the respondent. At the trial, only the 1st appellant testified. She talked about the expenses incurred during the burial of the deceased and other expenses, and on his earnings per month. She explained that the deceased died on the spot. Loss of dependency was awarded at Kshs 1,008,000. 00 based on a multiplier of 18 years, and a multiplicand of Kshs 7,000. 00 and a dependency ratio of 2/3. Loss of expectation of life was awarded at Kshs 150,000. 00 and specials at Kshs 86,200. 00. The total award worked out at Kshs 1,244,200. 00, reduced to Kshs 995,360. 00 after factoring contribution.

3. The appellants were aggrieved by the award. They raised issues around the multiplier of 18 years, failure to consider that the deceased would have continued to work until he attained the age of 65, failure to consider the submissions of the appellant, and reaching a wrong conclusion.

4. Directions were given on November 23, 2021, for canvassing of the appeal by way of written submissions. When the matter was mentioned on February 15, 2022, to confirm filing of submissions, none of the parties had filed written submissions, and I proceeded to determine the appeal in the absence of written submissions from the parties.

5. On the multiplier, the appellants had proposed 28 years, but the trial court settled on 18 years, on grounds that there was no evidence on the number of years he would have lived. No authorities were cited in the judgment, but the appellants had cited several authorities. In John Jembe Mumba v Seif Mbaruku t/a Takrim Bus & another Mombasa HCCC NO 523 of 2001 (Khaminwa J), the deceased was aged 38, and the court settled on a multiplier of 7. In Alexander Okinda Anangwe v Reuben Muriuki Kahuha & others [2015] eKLR (Ougo J), the deceased was 25 years old, she would have continued working for another 35 years till retirement, and the court assessed 32 years as the multiplier. In Samuel Mwangi Wachira & Another v Rahab Wanjiru Macharia & Another[2015] eKLR (Sergon J), the deceased was aged 30 years old, and a multiplier of 25 years was adopted. In Jacob Ayiya Maruja & Another v Simon Oboyo & another [2005] eKLR (Omolo, Tunoi & Githinji JJA), the deceased was aged 53, and a multiplier of 8 years was adopted. In Rabecca Savethi Mwangi v Eastern Bus Services Ltd & another Nairobi HCCC No 2750 of 1998, the deceased was 36, and a multiplier of 19 years was adopted.

6. There are not hard and first rules on adoption of a multiplier, and in my view the multiplier adopted of 18 years for a 32-year-old was within the range, and the trial court was not in error.

7. The second ground of appeal is related to the first, on multiplier, for the calculation of multiplier, is often pegged or based on the age at which the deceased would have probably stopped working. The age of possible retirement is considered taking into account the vagaries, vicissitudes and exigencies of life. In any case, where the deceased was in self-employment, as opposed to formal or permanent employment, with a net retirement age bracket, it is not possible to fix a retirement age. See Board of Governors of Kangubiri Girls High School and another v Jane Wanjiku Muriithi & another [2014] eKLR (Visram, Koome & Otieno-Odek JJA). The failure to consider the retirement age was, therefore, no consequence as the deceased was a hawker, and not in formal or permanent employment.

8. On failure to consider the appellants written submissions, I have gone through the judgment and noted that the trial court did consider the appellants’ written submissions. The trial court did not recite the submissions, and did not have to, so long as it considered all what ought to be considered, and arrived at the correct verdict. At page 21 paragraph 2 lines 8, 9 and 10, the trial court writes: “In the submissions dated July 21, 2018, I was urged to apply a multiple of 28. However, doing my best under the circumstances, I will apply a multiplier of 18 years.” That should be adequate proof that the trial court considered the submissions, but was clearly not persuaded by them.

9. On the last ground, of the trial court arriving at the wrong conclusions, I have read and read the judgment, as against the record of the testimony of the 1st appellant and the pleadings. The material that the 1st appellant placed before the court was very scanty. I agree with the trial court, that “she did not present evidence to prove her claim.” In my view the trial court was fairly generous in the circumstances. This is what the 1st appellant told the court, on cross-examination:“… The deceased died on the spot. He was aged 32 years at the time of death. I do not know the date of his birth. We were blessed with 2 children. I don’t have their birth certificates in court. He was a businessman but I don’t have any document to confirm that same or that he used to earn Kshs 10,000/= per month. I don’t know how much he earned per month. He used to pay school fee for the children but I have no document to confirm.”

10. Overall, I find no merit in the appeal herein. I accordingly dismiss it. There shall be no order on cost

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7TH DAY OF OCTOBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Mwebi, instructed by the C.M Mwebi & Company Advocates for the appellants.