[2022] KEHC 12460 (KLR)

Muiruri & another (Suing as the administrators of the estate of John Mwirigi Karanj) v Muka (Civil Appeal 41 of 2019) [2022] KEHC 12460 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12460 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 41 of 2019

RM Mwongo, J

June 16, 2022

Between

Forence Waithira Muiruri

1st Appellant

Mary Wanjiru Mwirigi

2nd Appellant

Suing as the administrators of the estate of John Mwirigi Karanj

and

Dorcas Wanga Muka

Respondent

(Being an appeal arising from the judgment and decree of the Honorable K Bidali delivered on August 21, 2019 in Naivasha CMCC No 959 of 2017)

Judgment

Background 1. In the lower court, the parties consented to apportioned liability of 85:15 in favour of the Appellant, following the filing of a suit to recover damages for a fatal accident suffered by the deceased on July 14, 2017. The trial court awarded damages under the Law reform act and fatal accidents act, as hereunder:Pain and suffering Kshs 50,000. 00Loss of expectation of life Kshs 100,000. 00Loss of Dependency (multiplicand of 6896. 15) Kshs 551,692. 00Special damages Kshs 89,140. 00Total Kshs 672,207. 20

2. The appellants had asked for Kshs 2,558,700/- in their written submissions in the lower court. As such, they are dissatisfied with the award as being inordinately low. Their main contention is that the trial court used a multiplicand based on a casual worker’s salary

3. The plaintiff had given evidence that the deceased had two jobs: one as a night watchman earning 12,000/- per month; and the other as a daytime boda boda operator earning 800/- per day. In her written submissions she urges the court to enhance the multiplicand to Kshs 11,926. 40 and award loss of dependency as follows: 11,926. 4 x 12x10x2/3 = 954,112. 00.

4. The grounds of appeal are:1. That the learned magistrate erred in law and fact in failing to consider adequately or at all the authorities submitted2. That the learned trial magistrate erred in law resorting to the minimum wage reserved for unskilled workers when there was ample evidence the deceased was a night watchman and boda boda operator.3. That the learned trial magistrate erred in law and fact by applying a minimum wage that was applicable in other areas whereas Naivasha was a former municipality.4. That the earned magistrate erred in law awarding damages which were so inordinately low.

5. This court’s duty as the first appellate court is to re-evaluate and review all the evidence availed in the lower court and come to its own conclusions, being careful to note that it did not itself hear the testimony or see the demeanour of witnesses.

6. The plaintiff testified as PW1 and availed one witness as PW2. The defence availed no witnesses. The appellant argues that there was ample evidence provided by the plaintiff that the deceased was holding two jobs.

7. I have carefully perused the record and note as follows. PW1 testified, inter alia, that:“Deceased was 53 years at the time of his death. He was a night watchmen employed by the Naivasha sub county with a monthly salary of Kshs 12,000. He was also a daytime motor bike rider with a daily income of Kshs 800”

8. On his part, PW2, Peter Omari a friend of the deceased, testified:“…At the time of the deceased’s death, we were being paid kshs 12,000 as our salary as night watchman.The deceased used to work from around 6. 30 am to around 5. 00 pm as a boda boda and at night he would go to guard the slaughter houe. As boda boda rider we used to make between kshs 800-1000 as income on a good day, for carrying passengers for reward. On a bad day we would make about ksh 600 per day”

9. In cross examination, PW1 said she did not have any bank statements or payslips. She was not able to produce the deceased’s Driving License. PW2 in cross examination said they were not given payslips as they were not on permanent employment, and instead used cash vouchers.

10. The trial court stated that there was no proof of earnings and applied casual labour remuneration from the 2017 Regulation of Wages General Order. This was based on the plaintiff’s List of documents, one of which was a letter of recommendation from the Naivasha County dated December 30, 2014 indicating that the deceased worked as a casual worker.

11. The letter from the Naivasha Sub-County reads, inter alia, as follows:“Re: John Mwirigi Karanja- ID No 6037318The above mentioned was engaged as a casual worker in the defunct Municipal Council of Naivasha in the year 2001 in the enforcement section. He had his contract renewed to date owing to his hard work in any task he is given…”

12. The trial court found that there was no evidence of earnings as sought by the plaintiff and adopted a figure of Kshs 6,896. 15 as the minimum wage for unskilled /general worker/labourer.

13. Although the respondent alleges that the above letter was never served on them and they are seeing it for the first time on appeal, it is clear that it was amongst the bundle of documents availed to the trial court, and referred to by the learned trial magistrate in his judgment.

14. It is trite law that it is for he who asserts to prove. Appellant must prove the earnings disputed, and the respondent must prove the absence of the Sub County letter.

15. Other than the general assertions by PW1 and PW2 that the deceased was both a watchman and boda boda rider, I do not see any evidence that the deceased was employed in either of those jobs. It appears incredible, as stated by PW2, that the deceased would work daily from 6. 30 am to around 5. 00 pm as a boda boda rider, and work at night as a watchman. This suggests that the deceased never rested.

16. The only documentary evidence supporting the deceased employment was the letter from the Naivasha Sub County, stating that he was a casual worker. In his witness statement, PW2 stated that they were paid their salary via their bank accounts. The deceased’s bank account records could easily have been obtained an exhibited to prove the monthly earnings from the Sub County. These were not availed.

17. I therefore agree with the trial Magistrate that the proved income was that of a casual worker based on the Sub County letter, and the provisions of the Labour Institutions Act No 12 of 2007. That statute, by force of law, applies minimum wages to workers of various categories where no other terms of employment are evident. It provides at Section 48(1) as follows:“(1)Notwithstanding anything contained in this Act or any other written law—(a)the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order applies and may not be varied by agreement;”

18. The minimum statutory wage in 2017 for casual worker is in the Regulation of Wages (General) Order 2017, LN No 112, which was deemed to have come into operation on the 1st May, 2017. It provides as follows:“General labourer including cleaner, sweeper, gardener, children's ayah, house servant, day watchman, messenger in All former Municipalities and All Other Areas cities Town Councils of Mavoko, Ruiru and Limuru; Monthly contract per month: Kshs 11,926. 40All Other Areas Monthly contract per month: Kshs 6,896. 15” (Emphasis supplied)

19. The trial court adopted the wage of Ksh 6,896. 15 for “all other areas”. That was incorrect as the Naivasha Sub County letter relied upon clearly indicated that the deceased “was engaged as a casual worker in the defunct Municipal Council of Naivasha”

20. On this point I agree with the appellant that the trial court used the wrong wages figure of 6,896. 15 for all other areas instead of that for the former (defunct) Municipal Council of Naivasha of Kshs 11,926. 40. I calculate the loss of dependency based on the accepted multiplier of 10 years as follows:11,926. 40 x 12 x 10 x = 954,112. 00.

Disposition 21. As this was the only aspect in contention in the appeal, the appeal succeeds, and the trail court’s judgment is set aside on that aspect alone.

22. The award of the trial court is substituted with the award hereunder:Pain and suffering Kshs 50,000. 00Loss of expectation of life Kshs 100,000. 00Loss of Dependency (multiplicand of 11,926. 40) Kshs 954,112. 00Special damages Kshs 89,140. 00Sub-Total Kshs 1,193,252. 00Less 15% contribution Kshs 178,987. 80Total Kshs. 1,014,264. 20

23. The appellants shall have costs of the appeal.

24. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 16TH DAY OF JUNE, 2022. ................................R MWONGOJUDGEDelivered in the presence of:1. Wainaina for the Appellant2. Chelule for the Respondent3. Quinter Ogutu - Court Assistant