[2022] KEHC 2659 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 20 OF 2019

MULTIPLE HAULIERS E.A LTD…………………………....… APPELLANT

-VERSUS-

DAMARIS MUTHINI DAVID…………..………….………..1ST RESPONDENT

ESTHER MUTHEO MUTUKU …………………..…..…… 2ND RESPONDENT

(Being an appeal from the original judgment of Hon. A. Ndungu (SRM) in Makindu Senior Principal Magistrate’s Court PMCC Case No.14 of 2017 pronounced on 19th March, 2019).

JUDGMENT

1. This appeal arises from the judgment of the magistrates’ court delivered on 19th March 2019 in which the learned magistrate entered judgment for the respondents (who were the plaintiffs) as follows –

“Accordingly I enter judgment in favour of the plaintiff against the defendant as follows –

Loss of dependency ………………………Kshs.4,645,784/=

Loss of expectation of life ……………Kshs. 100,000/=

Pain and Suffering …………………….Kshs. 150,000/=

Special Damages …………………….Kshs. 100,270/=

Total ……………………………………Kshs. 4, 996,054/=

Less 10% Liability ………………..Kshs. 499,605. 40/=

Total……………………………………Kshs.4,496,468. 60/=

Accordingly I enter judgment in favour of the plaintiff against the defendant for an award of Kshs.4,496,448. 60. The plaintiff is also awarded costs of this suit and interest at court rates”.

2. Dissatisfied with the above award of damages, the appellant who was the defendant in the trial court has come to this court through counsel M/s Nguli & company on appeal on the following grounds –

1) The learned magistrate misdirected himself on the assessment of quantum of general damages. The same is inordinately high and not commensurate to the conventional and global awards awarded for the death of a 32 year old.

2) The learned magistrate erred in law and in fact in failing to appreciate the age of the deceased in awarding loss of dependency and in applying a very high multiplier.

3) The learned magistrate failed to give due regard to all issues raised in the appellant’s submissions.

3. The appeal was canvassed through filing of written submissions and I have perused and considered the submissions of both Nguli & company advocates for the appellant and Muia & company advocates for the respondents.

4. I note that the appeal herein is on quantum of damages only, as liability was agreed to and recorded by consent at 90%:10% in favour of the respondents, and is not contested on appeal.

5. I will start by reminding myself the legal principle that the power of awarding damages, is an exercise of discretionary power on a trial court and an appellate court will be slow to interfere with the exercise of that discretionary power, except in

very limited situations - see the case of Butt –vs- Khan (1982 – 88) KAR 5, wherein it was stated that it has to be shown either that the trial court acted upon wrong a principle of law, or that the amount awarded was so extremely high or so extremely low as to make in the judgment of the court an entirely erroneous estimate of the damage to which the plaintiff is entitled.

6. In the present case, the main complaint of the appellant relates to the magistrate’s finding on the age of the deceased, and the consequent multiplier used by the trial court to arrive at the figure of damages for loss of dependency, as well as the ratio of dependency.

7. I start with the age of the deceased. From the pleadings, the amended plaint, the deceased at paragraph 9 was said to be aged 29 years. In the evidence however, Pw1 Esther Mutheo the wife of the deceased stated in her evidence in chief that the deceased was 32years old when he died, and that the age of 29 indicated in the death certificate and in the amended plaint was an error. She maintained the same evidence in cross examination. Thus in my view, the established age of the deceased was 32 years at the time of death and not 29 years as found by the trial court. The finding of the trial court on the age of the deceased was thus a material error which this court is entitled to correct on appeal, as it was an erroneous finding not backed by the evidence on record.

8. The second complaint of the appellant is on the multiplier used by the trial court to arrive at the amount of damages awarded. According to counsel for the appellant, the error of the multiplier had two elements, first, according to counsel, it should not have been found by the magistrate that the deceased would work up to 60 years. Secondly, that the erroneous finding on the age made the magistrate award damages up to age 63.

9. In my view, the age of 60 has now become the general retirement age in Kenya, and the deceased not having been noted to have had any life threatening health condition, the age of 60 determined by the magistrate for active working life was not unreasonable.

10. I agree with counsel that the erroneous finding of the age of the deceased at death being 29 years instead of 32 years resulted in the court erroneously awarding damages for loss of dependency by an excess of 3 years to 63 years. I will thus reduce the multiplier by 3 years. However, the ratio of dependency of 2/3 in my view is reasonable in the circumstances of this case.

11. The appellant’s counsel also contends that the award for loss of expectation of life be retained at Kshs.100,000/= and that for pain and suffering be reduced to Kshs.50,000/= while that for special damages be retained at Kshs.100,270/=. This is not a ground of appeal and I find no basis for interfering with the award on pain and suffering as I see no error committed by the trial magistrate.

12. Consequently, and for the above reasons, I allow the appeal in part and vary the amount for loss of dependency which will be Kshs.18,733 x28 x 2/3 x12 = 4,196,192.

13. Thus the award will now be as follows –

Loss of dependency …………………….. Kshs.4,196,192/=

Loss of expectation of Life ………………Kshs. 100,000/=

Pain and Suffering ………………………..Kshs. 150,000/=

Special damages……………………………Kshs.100,270/=

Total ………………………………………….Kshs.4,546,462

Less 10% Liability ……………………… Kshs 454,646. 20

Total …………………………………………Kshs.4,091,815. 80

14. I thus enter judgment for the respondents for the above amount. The respondents are awarded 80% of the costs of appeal.

Delivered, signed & dated this 1st day of February, 2022, in open court at Makueni.

………………………………….

George Dulu

Judge