[2022] KEHC 224 (KLR)

Muli & another v Nzioka & another (Suing as the Administrators of the Estate of the Late Michael Makau Nzioka) (Civil Appeal 98 of 2019) [2022] KEHC 224 (KLR) (17 March 2022) (Judgment)

Neutral citation: [2022] KEHC 224 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 98 of 2019

MW Muigai, J

March 17, 2022

Between

John Muli

1st Appellant

Samuel Muisyo

2nd Appellant

and

Margaret Wanza Nzioka

1st Respondent

Thomas Nzioka Wambua

2nd Respondent

Suing as the Administrators of the Estate of the Late Michael Makau Nzioka

(Being an appeal from the judgment of the Principal Magistrate Hon. Martha Opanga (SRM) delivered on 25 th day of June, 2019 in Kangundo Senior Principal Magistrate’s Court Civil Suit No.118 of 2018)

Judgment

1. Plaint Dated 2/05/2018By a Plaint dated 2nd May, 2018, the Respondents as the Plaintiffs suing as the administrators of the estate of Michael Makau Nzioka (Deceased) sued the Appellants as the Defendants in Kangundo PMCC No.118 of 2018. The Respondents sought damages both under the Fatal Accident and Law Reform Act, special damages of Kshs. 45,435/-, costs of the suit and interest.

2. The cause of action arose from a road traffic accident that occurred on 8th March, 2016 when the deceased is said to have been lawfully and carefully walking along Tala-Mbiuni road when motor vehicle registration number KCA 518Z knocked him down. The deceased succumbed to his injuries. According to the Respondents, the 1st Appellant was the registered owner of the said motor vehicle while the 2nd Appellant was the driver and/or the beneficial owner.

3. The particulars of negligence against the 2nd Appellant are pleaded at paragraph 5(a) to (g) of the Plaint. The Respondents pleaded the doctrine of res ipsa loquitor.

4. According to the Respondents, the deceased was survived by Thomas Nzioka Wambua (Father) and Margaret Wanza Nzioka (Mother). According to the Respondents, the deceased was aged 17 years, a source of inspiration and hope for the family and dependants to wit. As a result of the death, the dependants have suffered loss and have been deprived off their source of hope and the deceased has been denied his natural expectation of life.Joint Defence Dated 26/07/2018

5. The Appellants denied ownership of motor vehicle KCA 518Z and that the accident occurred. They denied the Respondents particulars of negligence, particulars of statute and special damages as pleaded in the Plaint. According to the Appellants, the doctrine of res ipsa loquitor is not applicable. The Appellant pleaded that if the accident occurred as pleaded then it was as a result of the deceased and Appellants negligence and pleaded particulars of negligence against them. The particulars of statute and special damages have been denied and the Appellants were put to strict proof.Evidence

6. PW1, PCPeter Ntandemo No.xxxxx of Kangundo Traffic base stated that an accident occurred on 8th March, 2016 at 3. 00 pm at Kathama area along Tala-Mbiuni road involving motor vehicle registration number KCA 518Z Isuzu lorry and a pedestrian. According to PW1, the police visited the scene. He stated that the police abstract was issued after a report had been made and statements written. He produced the police abstract as exhibit 1.

7. In cross-examination, PW1 stated that he did not have the OB. The matter was pending under investigation. He stated that he can’t tell who was to blame. He was not the investigating officer.

8. PW2, Thomas NziokaWambua, stated he did not witness the accident of 8th March, 2016 which claimed the life of his son. He placed reliance on his witness statement as evidence in chief. According to PW2, they used Kshs.90, 000/- for funeral expenses. He produced his list of documents as exhibit 1 to 11. He stated that his son who had a vision to be an engineer was in form four atAICKunikila. He blamed the driver for the accident.

9. In cross-examination, PW2 stated that he did not witness the accident. He obtained the grant of letters of administration ad litem but did not annex the birth certificate. In re-examination, PW2 stated his son name was Michael Makau Nzioka.

10. PW3, John Kakindu Makau adopted the contents of his witness statement as his evidence. According to PW3, the deceased was his neighbor and knew him. According to PW3, the deceased and him were heading the same direction when a lorry going to get sand came from behind, turned to a narrow road and that’s when it knocked down the deceased. He stated that the lorry drove away. It was PW3 testimony that the driver drove on a narrow path at a high speed. According to PW3, the deceased was on the right side of the road.

11. In cross-examination, PW3 stated that he witnessed the accident but he did not go to the police station and the police did not look for him to record a statement.

12. DW1, Samuel Muisyo stated that he the driver and relied on his witness statement as his evidence. He produced his supporting documents as exhibit 1 to 5.

13. In cross-examination, DW1 stated that he had been a driver since 2006. He stated that he knew the accident occurred on 8th March, 2016. According to DW1, his motor vehicle was detained but he didn’t see the accident. He stated that he was only told that it happened. According to DW1, the road is narrow and his motor vehicle was large bodied.

14. DW2, George Musembi Kinyui adopted the contents of his witness statement. In cross-examination, DW2 stated that he was owner of the lorry. He stated that he did not witness the accident.Trial Court’s Judgement

15. The Trial Magistrate in this judgment held that the Appellant’s driver did not need to have noticed that he had knocked down someone when negotiating the corner on a narrow road, the driver was not on the proper look out, failed to hoot to alert anyone that might have been around the corner or may have been at an unreasonably high speed on a rough narrow road. The Trial Magistrate held the driver 100% liable for the accident.

16. Regarding quantum of damages, the Trial Magistrate awarded the deceased damages of Kshs.200, 000/- for pain and suffering, Kshs.100, 000/- for loss of expectation of life. On loss of dependency, the Trial Magistrate adopted a global sum of Kshs.3, 000,000/-. The Trial Magistrate found that only Kshs.20, 075/- was proved as special damages. She awarded costs of suit and interest.Appeal Dated 22/07/2019

17. Aggrieved by the Judgment, the Appellants have appealed citing the following grounds:-(1)THAT the Learned Trial Magistrate erred in law and in fact by failing to find that the deceased was liable.(2)THAT the Learned Trial Magistrate erred in law and in fact in making a finding as to liability and setting it at 100% as against the Appellants in the Respondents favour while disregarding;i.the credibility of the alleged eye witness called by the Respondents to testify as to the exact occurrence of the accident;ii.the failure of the Respondents eye witness to record a statement with the police regarding the accident;iii.the evidence of the Appellant controverting the statement of the Respondent’s alleged eye witness;iv.the consequences of the finding of no liability on the part of the Appellants by police investigations into the cause of the accidentv.the Respondent had not discharged their burden of proving that the Appellants were wholly negligent, caused and/or liable for the accidentvi.the authorities of the Appellants which stipulate the rationale for arriving at liability in these circumstances.(3)THAT the Learned Trial Magistrate erred in law and in fact by disregarding the authorities of the Appellant which stipulate the rationale for arriving at the appropriate quantum of damages.(4)THAT the Learned Trial Magistrate erred in fact and in law by awarding exorbitant and excessive quantum of damages not based on any authority.(5)THAT the Learned Trial Magistrate erred in law and in fact by awarding exorbitant and excessive quantum of damages for loss of dependency not based on any authority.(6)THAT the Learned Trial Magistrate erred in law and fact by awarding damages under the Law Reform Act and Fatal Accident Act whereas the deceased was a minor. 7. THAT in the alternative and without prejudice to the above, the Learned Trial Magistrate erred in fact and law by awarding inordinate damages for pain and suffering not based on any evidence or authority.

8. THAT further in the alternative and without prejudice to the above, the Learned Trial Magistrate erred in fact and law by awarding inordinate damages for loss of expectation of life not based on any evidence or authority.

18. The Appellants urge the court to set aside the Judgment and decree of the Trial Court and substitute with a Judgment dismissing the Respondents case with costs to the Appellants.Appellants Submissions

19. Regarding liability, it is submitted that PW3 who stated he was an eye witness did not record a statement with the police hence PW3 evidence was not credible. It is submitted that the driver came to know about the accident when he was directed by unknown people to Kathama Police Post. According to the Appellants, the only probable conclusion would be that the deceased was hanging onto the back of the lorry, lost his grip and fell off.

20. According to the Appellant, the motor vehicle was inspected and found to have been in proper working order with no defect indicative of an accident as per DEX 3, the Inspection Report. Reliance was placed on the postmortem report and the death certificate which establish that the deceased suffered severe blood loss and multiple injuries.

21. It is submitted that the Respondents failed to prove that the Appellants were to blame for the accident but in the event that the court finds that the Appellants were liable, the liability should be apportioned equally at ration 50:50 basis.

22. On quantum of damages awarded, it is submitted that the award of Kshs. 200,000/- for pain and suffering was inordinately high taking into account that the deceased died on the same day the alleged accident occurred. Reliance was placed on the cases of T.O.A vs. George Onyango Ogam & AnotherHCCC No. 115 of 2006 where the deceased aged 11 years died after 3 days and the court awarded Kshs.20,000/- and in Kamunya vs. Kibe [2004] eKLR where the deceased died 3 days after the accident, the court awarded Kshs. 10,000/-. Reliance was also placed on the case of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi[2019] eKLR where the court held that the conventional award for pain and suffering range from Kshs.10,000/ to Kshs.100,000/- with higher damages being awarded if the pain and suffering was prolonged before death.

23. According to the Appellants, the award for loss of expectation of life and pain and suffering are not payable since the beneficiaries under the Law Reform Act and Accident Act are the same. It is submitted that the awards are subsumed under the loss of dependency. Reliance was placed on the case of Edner Gesare Ogega vs. Aiko Kebiba[2015] eKLR where the Judge placed reliance on the writing of PS Atiyah on Accidents Compensation and the Law 2ndEdition that the award should be deducted from the award under the Fatal Accident Act as well as what the court held inKemfro vs. A.M Lubia and Olive Lubia[1982-1988]KAR 727 and in Paul Ouma vs. Sarah Akinyi & Monica Achieng Were (Suing as the Legal Representative in the Estate of Paul Otieno Were( Deceased) [2018]eKLR.

24. In addition, the Appellants submitted that taking into account the vagaries, vicissitudes and imponderables of life, a long and healthy life was not a guarantee and since no academic reports were tabled in court to show the deceased was a bright student, the award for loss of expectation should be set aside.

25. According to the Appellants, the global sum award of Kshs. 3,000,000/- for loss of dependency was exorbitant noting the age of the deceased and no academic reports were tendered in court to demonstrate the deceased academic capabilities or prowess. The Appellants have urged the court to substitute the award to Kshs.400,000/- by pacing reliance on the case of PI vs. Zena Roses Ltd & Another[2015]eKLR where the court awarded a global figure of Kshs.300,000/-.Respondents Submissions

26. Regarding liability, it is submitted that PW1 stated that the police visited the scene of the accident having taken statements while PW3 witnessed the accident. It is submitted that PW3 stated that the motor vehicle while negotiating a corner veered off the road and the rear part of the motor vehicle hit the deceased causing him to crash on the ground. That according to PW3 the motor vehicle was being driven at a high speed.

27. According to the Respondents, it is not in dispute that the traffic accident occurred and the deceased sustained severe body injuries that led to his demise. It is submitted that the Appellants cannot be heard to be denying the occurrence of the accident yet they reported to their insurer as per the Claim Form. According to the Respondents, the argument that the deceased stole a lift on the motor vehicle is based on speculation since the Appellants stated that they never witnessed the accident.

28. It is submitted that the driver simply did not properly lookout when driving the motor vehicle. According to the Respondents, the failure by the Appellants to call an eye witness leaves the Respondents evidence unchallenged. Reliance was placed on the case of Linus Nganga Kiongo & 3 Others vs. Town Council of Kikuyu [2012]eKLR where Odunga J referred to Lessit J holding in Mortex Knitwear Mills LtdMilimani HCC 834/2002.

29. The Respondents urge the court to uphold the Trial Magistrate’s holding of 100% liability against the Appellants.

30. On the award of damages for pain and suffering, it is submitted that the Appellants did not submit on this award hence are dishonest for the Appellants to challenge it. The Respondents urge the court to disregard the new authorities cited in support of the Appellants appeal. Reliance was placed on the case of Gabriel Maina Mungai vs. Jane Wanjiku Mwaura [2019] eKLR, Civil Appeal No.83 of 2017.

31. According to the Respondents, the methodology to calculate the award under loss of dependency is not in contention but the amount awarded under the head. It is submitted that the deceased was endowed with sufficient intelligence to at least attain a degree in college and secure a job to enable the deceased earn a reasonable monthly salary.

32. According to the Respondent, it is not a must for the Trial Magistrate to consider the authorities cited by the parties but to discretionarily find the relevant one if any and if none to rely on others appropriate for each particular case. Reliance was placed on the case of Peter Namu Njeru vs. Philomena Mwagoti [2016] eKLR.

33. Regarding the award in both Law Reform Act and Accident Act, it is submitted that the Trial Magistrate did not err to award both damages. Reliance was placed on the case of Hellen Waruguru Waweru (Suing as the Legal Representative of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Ltd [2015] eKLR and in Chen Wembo & 2 Others vs. IKK & Another (Suing as the Legal Representatives and Administrators of the Estate of CRK (Deceased) [2017] eKLR where the court has disagreed with the Appellants assertions herein. According to the Respondent, if the Trial Magistrate did not consider the award under the Law Reform Act, she could have awarded a higher figure under the Fatal Accident Act.

34. The Respondents urge the court to uphold the Trial Court awards since they were not inordinately high as to present an entirety erroneous estimate of compensation to which the Respondent was entitled.Determination

35. I have considered the submissions and cases relied upon by parties herein.

36. This being a first appellate court, its role is well captured in the case of Selle vs. Associated Motor Boat Co[1986] EA 123 as follows:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are 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 the 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

37. In this appeal, the Appellants have challenged both liability and quantum of damages awarded by the Trial Magistrate. The issue for determination will therefore be whether the Respondents proved their case on a balance of probabilities against the Appellants.

38. It is trite that the legal burden of proof lies with the person who alleges. The Plaintiff(s) bear the legal burden of proof to prove the claim against the Defendant(s). Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

39. Once the Plaintiff(s) discharges the legal burden of proof, the burden is then shifted to the Defendant(s) to adduce evidence against the Plaintiff(s) claims. This burden is well captured under Sections 109 and 112 of the same Act as follows:“Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

40. The above legal provisions are well captured in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another[2005] 1 EA 334 and Evans Nyakwana –vs- Cleophas Bwana Ongaro[2015] eKLR.

41. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:-“Denning J, in Miller vs. Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

42. According to Kimaru J. in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that:-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”Liability

43. The Appellants assert that the Trial Magistrate should have dismissed the suit for want of proof and in the alternative apportioned equal liability between the driver and deceased. The Respondents support the 100% liability apportioned to the Appellants.

44. The court in Khambi & Another vs. Mahithi and Another [1968] EA 70, held that:“It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge”

45. In my view PW3, DW1 and DW3 evidence leads me to a plausible conclusion on a balance of probability that DW1 was negligent. In the Plaint, the Respondents pleaded particulars of negligence against DW1 but DW1 has only stated that he was not aware of the accident.

46. According to PW3, the lorry came from behind at a high speed, turned to a narrow road and that is when the deceased was knocked down. In his witness statement, PW3 stated that the deceased was walking on the right side, off the road when the driver negotiated a corner on the left recklessly and at a high speed permitting the motor vehicle rear right side to veer off and consequently hit and throw the deceased to the far right and violently crashed on the ground. According to PW3 the driver drove away.

47. In his evidence, DW1 stated that the he knew that the accident occurred on 8th March, 2016 in the evening but went on to state that he did not see the accident and was only told that it had happened. In his witness statement, DW1 stated that upon reaching Kahama area, he was stopped by unknown people and notified that the lorry he was driving had caused an accident. He has stated that he was directed to take the lorry to Kahama Police Post where according to DW1, he was shown a young man in an ambulance ready to be taken to hospital.

48. I am in agreement with the Respondents that the Appellants claim that the deceased had stolen a ride on the motor vehicle is based on speculation since the Appellants asserted that they did not witness the accident and such evidence is introduced in the written submissions which cannot be admissible. I find that there is sufficient evidence to lay blame on DW1 who has left PW3’s evidence unchallenged. The argument by DW1 that he was not aware of the accident does not controvert PW3 evidence. It is not in dispute that the accident occurred as it was reported to the police. The fact of PW.3 not recording a statement before testifying in Court is not fatal, his testimony was subjected to cross-examination and its veracity was tested by the Trial Court and credibility of the witness tested too. Infact since the deceased was injured and the lorry Reg. No. KCA 518Z sped off, it must have been PW.3 who alerted police who came to the scene and hence DW.1 was informed to go to the police station.

49. I associate myself with the case of Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, where court held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his court at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object ....Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently...”

50. In my view, the fact that PW3 did not record a statement with the police does not make him an incredible witness. PW3 stated that the deceased knew the deceased and on the material day, the deceased was walking ahead. Based on the Claim Form, the Appellants reported the accident to their insurer. PW1 produced a police abstract whose contents have not been disputed. The occurrence of the accident has not been disputed.

51. In my view the facts lead to a plausible inference that DW1 was aware of the accident but decided to drive away as stated by PW3. DW1 failed to have a proper look out permitting the motor vehicle which he said was large bodied to hit and knock down the deceased.

52. In my view the statement to be recorded with the police officer was to assist the investigating officer in the traffic and/or criminal case against DW1. The case before this court is a civil claim where the Respondents are seeking compensation for damages. PW3 filed a witness statement dated 2nd May 2018 where he has blamed DW1 for the accident.

53. PW3 lay blame on DW1 hence the burden of proof shifted to the Appellants to controvert the Respondents evidence but none of the particulars of negligence were in my view controverted. According to the Appellants the doctrine of res ipsa loquitor was inapplicable.

54. In Public Trustee vs. City Council of Nairobi[1965] EA 758, it was held that:“The maxim res ipsa loquitor applies only where the causes of the accident are unknown but the inference is very clear from the nature of the accident and the defendant is therefore liable if he does not produce the evidence to counteract the inference. If the causes are sufficiently known, the case ceases to be one where the facts speak for themselves and the court has to determine whether or not, from the known facts, negligence is to be inferred.”

55. The Court of Appeal in Joyce Mumbi Mugi vs. Co-operative Bank of Kenya Limited & 2 Others Civil Appeal No. 214 of 2004 expressed itself as hereunder:“In her plaint and the amended plaint as well, the appellant had pleaded the doctrine of res ipsa loquitor…If a “matatu” is driven in a normal and at reasonable speed, there would be no reason why it would run into a hippopotamus or veer off the road and smash into a tree. If a vehicle does any of those things, some explanation ought to be offered by the driver of the vehicle. The explanation may be that the driver, for some reason of his own, was not in control of the vehicle; or it may be that the hippopotamus suddenly ran into the path of the vehicle; or it may be that through no fault of the driver, there was a sudden tyre burst, the driver lost control and the vehicle veered off the road and ran into a tree. But the explanation has to be there. The explanation can be given by the driver; or it can be given by a passenger who was in the vehicle and saw what happened; or it can be given by a bystander who saw the hippopotamus suddenly dash onto the road in front of on-coming vehicle.”

56. I find that the doctrine of res ipsa loquitor is applicable in this case. PW3 stated that the motor vehicle which was at a high speed side passed him and knocked down the deceased. The only evidence adduced by DW1 was that he was unaware of the occurrence of the accident. In my view PW3 was credible witness whose evidence was unshaken by the Appellants.

57. In cross-examination, DW2 admitted that he is the owner motor vehicle registration KCA 518Z Isuzu lorry hence vicarious liable for the acts of his driver.

58. I find that the Trial Magistrate did not err on finding that the Appellants were 100% liable. The judgment on liability is upheld.Quantum

59. The Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan(1982-88) KAR set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely 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...’

60. In the case of Southern Engineering Co. Ltd vs. Musungi Mutia [1985] KLR 730, the court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

61. In Power Lighting Comp. Ltd & Another vs. Zakayo Saitoti Naingola & Another [2008] eKLR, the court said:“On quantum court the in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages (1) Damages should not be inordinately too high or too low; (2) They are meant to compensate a party, for the loss suffered but not to enrich a party, and a such they should be commensurate to the injuries suffered; (3) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts; (4) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment …”Pain and suffering

62. Regarding the award of Kshs.200, 000/- for pain and suffering by the Trial Magistrate, the Appellants submitted that it was inordinately high. According to the Appellants, the conventional award for such damages range between Kshs.10, 000/- to Kshs.100, 000/- as per the court in Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi (supra) hence Kshs.200, 000/- was excessive.

63. The Appellant proposed Kshs.20, 000/- on the basis that the deceased died on the same day the accident occurred. According to PW3, after the accident the deceased was taken to a nearby dispensary on a bike and later to Machakos Hospital where he heard the deceased death took place. The death certificate show that the deceased died on the same day. The cause of death is shown to be severe blood loss due to multiple injuries due to blunt trauma force. The postmortem also confirms the injuries.

64. In my view the deceased endured a lot of pain before his demise. It was PW3 testimony that the deceased crashed on the ground after being knocked by the motor vehicle which in my view the crash must have inflicted a lot of pain on the deceased’s body.

65. I have perused the Appellants submissions before the Trial Court and I note that they did not submit under this head of damages or rely on any court decisions. The Trial Magistrate considered the court decisions relied upon by the Respondents where the deceased are said to have passed on the same day.

66. Indeed, the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete – Kisumu Civil Appeal No. 284 of 2001 reiterated what it had earlier held in the case of Kemfro vs. Lubia (1982-88) that:-“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…”

67. I find no reason to disturb the award under this head that is supported by authorities from the Respondents. It is not inordinately high as claimed by the Appellants.Loss of expectation of life

68. The Trial Magistrate award under this head also suffer the same fate as the award for pain and suffering. The Appellants failed to submit against the award. I note that the Trial Magistrate placed reliance on the court decisions supplied by the Respondents which according to me are within the range. I find no reason to disturb the award of Kshs.100, 000/- for loss of expectation of life.Whether the awards for loss of expectation of life and pain and suffering is to be subsumed under Loss of dependency

69. According to the Appellants the awards are to be subsumed under the award for loss of dependency. I disagree with the Appellants argument.

70. I note the extract from the writings of P.S Atiyah relied upon by the Judge in Edner Gesare Ogega vs. Aiko Kebiba [2015] eKLR, the author has used the word “may be deducted from an award under the Fatal Accident Act…” which connotes not mandatory.

71. I find the position has been settled by the Court of Appeal in //Hellen Waruguru Waweru (Suing as the Legal representatives of Peter Waweru Mwenja (Deceased) vs. Kiarie Shoe Stores Ltd [2015] eKLR where the court noted the confusion in regard to the concept of double compensation put across by Kemfro Africa Limited case. The learned Judges expressed themselves as follows:-“The same case, however, is more fully reported in [1987] KLR 30 as Kemfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that: -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 for 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.” The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh. 100,000 awarded for Loss of life expectation to Sh. 70,000 despite confirmation in its judgment that there was no dispute on the award. Mr. Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction.”

72. Similarly, I associate myself with the decision of Majanja J.in Richard Matheka Musyoka & another vs. Susan Aoko & another (suing as the administrators’ ad litem of Joseph Onyango Owiti (Deceased) [2016] eKLR and Meoli J. in Chen Wembo & 2 others vs. I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) (supra).

73. I find the Appellants argument is misconceived. The ground fails.Loss of dependency

74. As regards the award of damages for loss of dependency, the Court of Appeal in Chunibhai J. Patel and Another vs. P. F. Hayes and Others[1957] EA 748, 749, stated the law on assessment of damages under the Fatal Accidents Act and held as follows:“The Court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i.e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase. (Emphasis added)”

75. It therefore follows that the method to find loss of dependency is the multiplicand (annual net income) multiplied by a suitable multiplier (expected working life lost by the deceased by the premature death), and further by a dependency ratio (ratio of the deceased’s income utilized on her dependents).

76. However I note that Ringera J. in Mwanzia vs. Ngalali Mutua Kenya Bus Ltdand quoted in Albert Odawa vs. Gichumu Githenji NKU HCCA NO.15 OF 2003 (2007), KLR was of the following view;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.” See //Moses Mairua Muchiri vs Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina (Deceased) [2016] eKLR.”

77. The Trial Magistrate noted that the Respondents urged her to adopt a monthly income of Kshs.45, 000/- and computed the award as follows; Kshs.45, 000 x 12 x 40 x 1/3= Kshs. 7,200,000/-and in the alternative to adopt a global sum award of Kshs.6, 000,000/-.

78. I note that before the Trial Court, the Appellants urged the court to award a global sum of Kshs. 350,000/- based on the court decision of Charles Ouma Otieno & another vs. Benard Odhiambo Ogecha (Suing As Brother And Legal Representative & Administrator of the Estate Of The Late Oscar Onyango Ogecha (Deceased) [2014] eKLR.

79. The Trial Magistrate in adopting a global sum of Kshs.3,000,000/- was guided by the court decision of Sheikh Mushtaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 others[1986] eKLR where a child aged 17 years was awarded damages of Kshs.320,000/- damages for lost years using a multiplier of 16.

80. Nyarangi JA. in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] eKLR emphatically stated:-“..In general, in Kenya children are expected to provide and do 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 practised throughout Kenya both by Africans and Asians…”

81. In my view this is not a suitable case where the multiplier approach would apply but a global sum approach. PW2 only produced a letter from AIC Kunikila Secondary School where in the letter it was indicated that the deceased was a very hardworking, focused and a very disciplined student with very high ambitions. According to PW2, the deceased was a Form Four student which means he was in his final year at the school and later joined college or university. However it is not certain whether he would have joined the institutions. The deceased would have been expected to pass his exams and qualify for admission at an institution.

82. According to PW2, the deceased had a vision to be an engineer. I note that no school records were tendered in court to show his performance in relevant subjects that would have led him to join an engineering course. However in my view that does not mean that the deceased would not have succeeded and joined an engineering course. In my view the Trial Magistrate rightly applied a global sum approach.

83. Was the award exorbitant and excessive?

84. In P I vs. Zena Roses Ltd & another [2015] eKLR G.W Ngenye-Macharia J stated that:-“In my view, it is true to say that the future of a minor is unknown as opposed to that of an adult who is engaged in an occupation that earns him or her a living. It can also be contrasted with that of a middle aged person who may be in college or in whose life there is indication of what kind of livelihood he would engage himself/herself in when he grew up. For the case of minors, it is my view that tabulation for damages for loss of future earnings and lost years can be gauged depending on what evidence is brought before the court.For instance, a good case can be argued where evidence is shown that the minor is in school, well performing and that it is hoped, based on his or her performance, would engage himself or herself in this or that occupation.That is why evidence before a trial court must not be led in a casual manner thinking that the court would make an assumption of what earnings the minor may get in future or what he would become once he grew up. It is not sufficient to just state that the minor was either in kindergarten, primary or secondary school. A good case would be argued when evidence is brought to show or persuade the court that despite the fact that the minor was in the tender years of school, it was hoped that he would have a good future when he grew up. In the present case unfortunately, no iota of evidence was tendered to demonstrate what the performance of the deceased was both in school and in life.”

85. It is noteworthy that the future of a minor is uncertain. We cannot say with precision what the child will turn out to be but just speculate based on the circumstances before court. The Learned Judge awarded the Plaintiff a global sum of Kshs.300, 000/- since the plaintiff did not also lead evidence stating what he expected the future of the deceased to be.

86. In this instant case PW2 stated that the deceased had a vision to be an engineer despite not producing school performance records. In my view based on the evidence on record, a global sum of Kshs. 3,000,000/- was exorbitant and excessive. The court decision of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR relied upon by the Respondent in my view was not comparable since the deceased was ager 60 years.

87. InFrancis Odhiambo Nyunja & 2 others vs. Josephine Malala Owinyi (Suing as the legal Administrator of the Estate of KOR (Deceased) [2020] eKLR that the deceased was aged seventeen (17) years, at the time of the alleged accident, and was in Form 3 in high school. The court found a global sum of Kshs.1, 500,000/- was sufficient compensation. See Charles Makanzie Wambua vs. Nthoki Munyao & Prudence Munyao (suing as personal representatives of the Estate of Lilian Katumbi Nthoki (Deceased)[2020] eKLR and in Twokay Chemicals Limited vs. Patrick Makau Mutisya & another [2019] eKLR, the appellate court upheld a global sum of Kshs. 1,500,000. 00 for loss of dependency.

88. The awards in the above three court decisions were delivered after the impugned judgment herein hence suitable for comparison and in my view establish fair compensation for the deceased who was aged 17 years in a secondary school.

89. Consequently, I find the appeal against the award of Kshs.3, 000,000/- for loss of dependency excessive and it is substituted with an award of Kshs. 1,500,000/-.

90. The award of Kshs. 20,075/- as special damage has not been challenged.Disposition

91. Accordingly, the award that ought to have been made to the Respondents was as hereunder :-a.Pain and suffering Kshs. 200,000/-b.Loss of expectation of life Kshs. 100,000/-c.Loss of dependency Kshs. 1,500,000/-d.Special damages Kshs. 20,075/-Kshs. 1,820,075/-

92. The appeal has succeeded partly against the award for loss of dependency. The court will award half costs of the appeal to the Appellants. The Respondents will have full costs of the Trial Court.

93. The general damages shall attract interest at court rates from the date of judgment of the Trial Court while special damage will attract interest from the date of filling the suit.

Judgement accordingly.DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 17THDAY OF MARCH, 2022. M.W MUIGAIJUDGEIN THE PRESENCE OF:Miss Oluma for the AppellantsNo Appearance - for the RespondentsGeoffrey - Court AssistantMiss Oluma : We seek 30 days stay of execution for the party to process payment.COURT: 30 days stay of execution granted.M.W MUIGAIJUDGE