[2022] KEHC 13675 (KLR)

Munguti & another v Simiyu & another (Suing as administratrix of Estate Of the late Frank Mwasi Mwabaga) (Civil Appeal 45 of 2019) [2022] KEHC 13675 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13675 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 45 of 2019

RN Nyakundi, J

October 12, 2022

Between

Francis Nzivo Munguti

1st Appellant

South Siouxfarm

2nd Appellant

and

Linda Mutiembu Simiyu

1st Respondent

Janet Nduta Simiyu

2nd Respondent

Suing as administratrix of Estate Of the late Frank Mwasi Mwabaga

(Being an appeal from the Judgment/Decree of the Honourable N. Wairimu (SPM) delivered on 25TH September, 2018 in Eldoret CMCC No. 579 of 2007)

Judgment

Coram: Hon. Justice R. NyakundiNgala & CO. Adv for respondentsNyairo & CO. Adv for appellants

1. This is an appeal against quantum only. On July 17, 2007 the respondents herein who were the plaintiffs in the lower court filed suit by way of a plaint dated June 20, 2007 seeking general damages and special damages for injuries sustained by Frank Mwasi Mwabaga (deceased) from a road traffic accident that occurred on the May 29, 2006 along Eldoret- Nakuru Highway at Nabkoi Junction involving motor vehicle registration number KAD 986U ZB Mercedes Benz lorry said to have been driven by the 1st defendant and owned by the 2nd defendant, now appellants and motor vehicle registration number KAV 249K in which the deceased was travelling in as a lawful passenger.

2. The appellants filed a joint statement of defence denying the allegations made by the respondents/plaintiffs. The issue of liability was settled in HCCA No 97 and 104 of 2010 where liability was apportioned at 100% against the appellants.

3. The trial court after hearing the parties and scrutinising the evidence before it awarded the respondents general damages at Kshs 4, 742,352/- under the Fatal Accidents Act and the Law Reform Act and special damages of Kshs 91,650/= plus costs.

4. Aggrieved by the trial court’s award of general damages, the appellants filed their memorandum of appeal dated March 29, 2019 on the April 5, 2019 setting out the following grounds:1)That the learned trial magistrate erred in law in failing to appreciate the applicable principles in assessment of damages under the Fatal Accidents Act cap 32, Laws of Kenya and the Law Reform Act cap 26, Law of Kenya thereby arriving at an erroneous decision.2)The learned trial magistrate erred in law and in fact in failing to properly/ adequately evaluate the evidence and exhibits tendered on quantum thereby arriving at an erroneous decision.3)The learned trial magistrate erred in law and in fact by relying on insufficient evidence in awarding damages.4)The learned trial magistrate erred in law and in fact in entering judgment in favour of the respondents for loss of dependency when no such dependency was proven as required by law.5)The learned trial magistrate erred in law and in fact for using a multiplier of 22 years without taking into account the retirement age, she applied comparable authorities and the appellants submissions on record.6)The learned trial magistrate erred in law and in fact in finding that the deceased earned Kshs 25,752/= without any basis.7)The learned trial magistrate erred in law and in fact in making an award of Kshs 4,532,352/= as loss of dependency when no sufficient proof/ or evidence of deceased’s income was tendered.8)The learned trial magistrate erred in law in failing to deduct the amount awarded under the Law Reform Act, cap 26, laws of Kenya from that awarded under the Fatal Accidents Act, cap 32, laws of Kenya which awarded amounted to double compensation.9)The learned trial magistrate erred in law and in fact in awarding special damages in the sum of Kshs 91,650/= which amount was not specifically proved.10)The learned trial magistrate erred in law and in fact in awarding the respondents Kshs. 4,742,352/= as general damages which amount was manifestly high in the circumstances as the amount is an erroneous estimate of the loss/damage recoverable by the respondents.11)The learned trial magistrate erred in law in failing to consider the appellants’ submissions and authorities cited hence arriving at erroneous decision.

5. The appeal was canvassed by way of written submissions. The appellant filed theirs on July 25, 2022 whereas, the respondents did not file any.

Appellants’ Submissions 6. It was submitted that an award of damages is not meant to unjustly enrich a party but try and restore a party to the state he or she was in before the accident occurred. The appellants cited the case of Rahim Tayab & another v Anna Mary Kinaru [1987-88] KAR 90.

7. The appellants further submitted that the respondents failed to show that they indeed depended on the deceased. The appellants urged court if it were to hold otherwise to apply the ratio of 1/3 as was held in the case ofDKM (Suing as Legal Representative to the Estate of J MM-Deceased) v Mehari K Towolde [2018] eKLR. The appellants submitted that the multiplicand to be used is the net in come of the deceased at the time of death. The appellants maintain that the deceased’s basic salary was Kshs 18,548/= per month and his net salary was Kshs 9,750/=. The appellants further submitted that the correct amount to have been used by the trial court in assessing dependency is Kshs 9,750/= and not Kshs 25,752/= which was without any basis. The appellants further submitted that the trial magistrate erred in law and in fact in using a multiplier of 22 years without taking into account vicissitudes of life and life expectancy. The appellants urged this court to find that 10 years should have been the appropriate multiplier. The appellants relied on the findings in Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] eKLR.

8. On loss of expectation of life, the appellants submitted that the award of Kshs 200,000/= was excessive. The appellants submitted that a conventional award of Kshs 100,000/= would have been sufficient in the circumstance. The appellants placed reliance on the case of Benham v Gambling (1941) AC 157 and the case of Mercy Muriuki & another v Samuel Mwangi & another (Suing as the Legal Administrators of the Estate of the late Robert Mwangi [2019] eKLR.

9. Regarding special damages, it was submitted that special damages must not only be specifically pleaded but must also be strictly proved. The appellants submitted that what was pleaded as special damages by the respondents was; police abstract Kshs 200/=, death certificate Kshs 190/=, funeral expenses Kshs 100,000/= and advocates fees Kshs 20,000/=. The appellants maintain that none of the particulars of special damages which were specifically pleaded were strictly proved during the hearing of the respondent’s case. The appellants relied on the case of Samwel Martin Njoroge Kamuyu v Wycliffe Yabwesta Likhaya [2020] eKLR.

10. The respondents did not file any written submissions.

Determination 11. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified see Selle & another vs Associated Motor Boat Company Ltd & others [1968] EA 123.

12. It is not disputed that on May 29, 2006 along Eldoret- Nakuru Highway at Nabkoi Junction an accident occurred involving motor vehicle registration number KAD 986U ZB Mercedes Benz lorry said to have been driven by the 1st defendant and owned by the 2nd defendant, now appellants and motor vehicle registration number KAV 249K in which the deceased was travelling in as a lawful passenger.

13. As assessment of damages is at the discretion of the trial court, this court cannot interfere with the exercise of discretion thereof except where the trial court committed an error in principle or made an award that was inordinately high or low as to be wholly erroneous estimate of damages. See Kemfro Africa Ltd & Gathogo Kanini vs AMM Lubia & another as follows: -“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

14. The question is whether this court should interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

15. The trial magistrate awarded Kshs 4,732,352/= under the Fatal Accidents Act and Law Reform Act and Kshs 91,650/= as special damages. The appellants regard the awards as inordinately high. The appellants main contention is on the award on the dependency ratio and the proof of earnings. No challenge was made on the award of Kshs 10,000/= pain and suffering.

16. Damages under the Fatal Accidents Act. The formula for dependency, is the multiplicand, that is, the annual net income multiplied by a suitable multiplier of expected working life lost by the deceased by the premature death, and further by a factor of the dependency ratio, that is the ratio of the deceased’s income utilized on his dependants. see Beatrice Wangui Thairu -vs- Hon Ezekiel Barngetuny & another Nairobi HCCC No 1638 of 1988 (UR) where Ringera J (as he then was) stated:“The principles applicable to an assessment of damages under the Fatal Accidents Acts are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

17. The appellants have submitted that the trial court erred in using Kshs 25,752/= as the deceased’s earnings. The appellants have also faulted the trial magistrate for not taking into consideration vicissitudes of life and life expectancy in determining loss of dependency.

18. In this case, there was proof that the deceased worked with Kenya Power & Lighting Company as a store keeper II. This fact was not disputed. PW1 the deceased wife testified that the deceased’s basic salary was Kshs 18,548/=. On cross-examination PW1 told court that the deceased basic salary was Kshs 9,750/=. The payslip produced in court as exhibit PEXh6 it is clear that the deceased’s basic salary was Kshs 18, 548 whereas his net pay was Kshs 9,750/=. But the trial court adopted the sum of Kshs 25,752/=. In light of the evidence adduced, the trial court applied the wrong principle in assessing the multiplicand applicable in loss of dependency in this case. As such, the discretion thereto is amenable to interference by this court. I set aside the multiplicand adopted by the trial court.

19. The appellants’ further contend that the multiplier of 22 years adopted by the trial magistrate failed to take into account the vicissitudes of life and life expectancy. The appellants argue that from the payslips on record, the deceased was to retire on November 19, 2028 exactly 22 years from the date of the accident. The evidence on record from the materials placed before court indicates that the deceased was 33 years at the time of his death and that he worked as a store keeper for Kenya Power & Lighting Company.

20. The appellants also argue that the dependency ratio of 2/3 was not proved. Section 4(1) of the Fatal Accident Act, defines a dependant as wife, husband, parent and child of the deceased. The appellants argue that the respondents pleaded that the deceased left behind dependants being the 1st respondent, her daughter and her mother-in-law but did not adduce any documentary evidence to prove the same. At the trial court PW1 testified that the deceased left behind a minor behind his daughter. PW1 produced her certificate of birth as evidence of the same. PW1 further testified that the deceased used to support his mother one Christina Wekombo prior to his death. I do note also that the respondent, her child and mother-in-law were listed as dependants in the letter by the Assistant-Chief dated July 26, 2006. I therefore find no basis of interfering with the 2/3 ratio as decreed by the trial court.

21. The appellants’ have also faulted the trial magistrate for adopting the multiplier of 22 years without take into account the vicissitudes of life and life expectancy. The appellants argue that from the payslips on record, the deceased was to retire on November 19, 2028 exactly 22 years from the date of the accident. The evidence on record from the materials placed before court indicates that the deceased was 33 years at the time of his death and that he worked as a store keeper for Kenya Power & Lighting Company.

22. In light of vicissitudes of life, which are in the realm of unknown: Bearing in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. I here by find that the trial court did not err in adopting a multiplier of 22 years for the deceased who died at the age of 33 years. I reject the ground of appeal on multiplier.

23. The evidence shows that the deceased earned a gross salary of Kshs 18, 548/=. The net income for our purposes is therefore Kshs 9,750/=. In the upshot, the appropriate multiplicand is Kshs 9,750/=. Accordingly, loss of dependency is calculated thus:Kshs 9,750 x 12 x 22 x2/3 = Kshs 1,716,000

24. For loss of expectation of life, as held in the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the administrator of the late Robert Mwangi) [2019] eKLR referred to in the trial court’s judgment, nominal damages should be awarded if death followed immediately after the accident. In the present case the trial magistrate awarded Kshs 200,000/= for loss of expectation. This court finds no good ground adduced to disturb the award made under the loss of expectation of life.

25. As regards special damages the respondents pleaded Kshs 200/= for the police abstract, Kshs 190/= for the death certificate, Kshs 100,000/= as funeral expenses and Kshs 20,000/= as advocates charges in seeking grant of letter of administration totalling to Kshs 120,390/=.

26. It is trite law that special damages must not only be specifically pleaded but also strictly proved.

27. In Union Bank of Nigeria PLC v Alhaji Adams Ayabule & another [2011] JELR 48225 (SC) (SC 221/2005 (16/2/2011)), Mahmud Mohammed, JSC delivering the judgment of the Supreme Court of Nigeria stated:"I must emphasise that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a court is not entitled to make an award for special damages based on conjecture or on some fluid and speculative estimate of loss sustained by a plaintiff…. Therefore, as far as the requirement of the law are concerned on the award of special damages, a trial court cannot make its own individual arbitrary assessment of what it conceives the plaintiff may be entitled to. What the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award."

28. In Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR the Court of Appeal awarded the plaintiff Kshs 60,000/= for funeral expenses and held thus.”“We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We however must not be understood to be laying down any law that in subsequent cases Kshs 60,000 must be given as reasonable funeral expenses. Those items are and must remain subject to proof in each and every case and the Kshs 60,000/= we have awarded herein apply strictly to the circumstances of this case.”

29. In the present case for funeral expenses the respondents produce a receipt of advertising on KBC Radio for Kshs 3,800/=, receipt for coffin for Kshs 10,000/=, receipt for clothing for Kshs 4,700/=, receipt for transport for Kshs 59,000/=, receipt for preserving the body for Kshs 5,500 and receipt for embalming the for Kshs 3,100/=, receipt for newspaper advert for 6,000/=, receipt for wreath for kshs 4000/=, receipt for scan photos for 300, book of condolences for Kshs 300/= and receipt for frame for Kshs 350/= totalling to Kshs 97,050/=. The respondents however, did not produce any receipt for the advocates fees. I also not that the trial court did not include the receipt for the coffin amounting to Kshs 10,000/=. In view of the foregoing am hereby inclined to disturb the award of Kshs 91,650/= given by the trial magistrate and in its place award the respondents Kshs 97,050/= as funeral expenses.

30. In conclusion, the appeal herein is allowed partially and judgment entered for the respondent in the following terms:a)Loss of dependency - Kshs 1,716,000/=b)Pain and suffering - Kshs 10,000/=c)Loss of expectation of life - Kshs 200,000/=d)Special damages - Kshs 97,050/=Total - Kshs 2,023,050. 00/=Each party to bear its own costs of this appeal.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGE