[2020] KEHC 3972 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL APPEAL NO. 150 OF 2018

MUNYAO NDILI............................................................................1ST APPELLANT

CHRISTINA MUTINDA NYALA................................................2ND APPELLANT

-VERSUS-

LILIAN NDULUVE & BEATRICE WAUSI MWANIA

(suing as the legalrepresentatives of the estate of)

GEOFFREY NDUNDA MULI........................................................RESPONDENTS

(An Appeal from the Judgment of Hon.C.ONyawiri (SRM) in the Senior Resident Magistrate’s Court at Makueni, Civil Case No.169 of 2015, delivered on 17th October 2018).

JUDGMENT

1. The Respondents filed a suit in the lower court seeking general damages under the Law Reform Act (LRA) and the Fatal Accidents Act (FAA) on behalf of the Estate of Geoffrey Ndunda Mulipursuant to a fatal road accident on 02/06/2014 (material day) along the Wote-Makindu road. They also prayed for special damages, costs of the suit and interest.

2. The Appellants filed a joint statement of defence denying the claim. The matter later proceeded for hearing and judgment was delivered on 17th October 2018. The learned trial Magistrate found the Appellants 100% liable and assessed damages as follows;

Pain & suffering........................................Kshs.20,000/=

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

Loss of dependency...................................Kshs.2,912,000/=

Special damages........................................Kshs. 20,500/=

Total………………………………...…...Kshs. 3,052,000/=

3. Aggrieved by the award, the Appellants through Muchui & co. advocates filed this appeal and listed 6grounds as follows;

a) That,the learned trial Magistrate erred in law and fact by adopting as multiplicand an amount that was not pleaded by the plaintiffs in their amended plaint.

b) That,the learned trial Magistrate erred in law and fact by holding that the deceased operated a business earning Kshs.100,000/= per month which finding was not at all supported by the evidence adduced.

c) That,the learned trial Magistrate erred in law and fact by failing to appreciate that the evidence tendered only established a multiplicand of Kshs.82,000/=.

d) That,the learned trial Magistrate erred in law and fact by adopting Kshs.182,000/= thus including Kshs.100,000/= being income from the deceased’s alleged business, in determining the multiplicand for purposes of computing general damages for loss of dependency while evidence adduced in court reflected that the estate did not lose income generated from the deceased’s business as it is an ongoing concern.

e) That,the learned trial Magistrate erred in law and fact by completely ignoring the Appellant’s written submissions and authorities cited by the Appellants in determining the multiplicand.

f) That,the amount awarded to the Respondents as general damages for loss of dependency is so manifestly excessive and erroneous as to warrant disturbance on appeal.

4. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

5. On ground (a), the Appellants fault the trial magistrate for veering off from the pleadings and considering, as multiplicand, an amount that was never pleaded. They urge this court to replace Kshs.182,000/- with Kshs.82,000/= which they submit was within the pleaded amount and was strictly proved. They rely inter alia on the case of Raila Amolo Odinga & Anor. –vs- IEBC & 2 Others (2017) eKLR where the Supreme Court held that;

“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”

6. On ground (b), they submit that ownership is a factual issue and the Respondents’ averment that the deceased was a business owner ought to have been supported by production of registration of a business name in the name of the deceased. They contend that the business name registration certificate produced as evidence is registered in the name of one of the Respondents herein.

7. They also submit that the bank statements produced run from 01/02/2014 - 16/08/2014 yet the deceased died on 02/06/2014. They contend that this evidence established that the deceased was not the owner of the business and that business did not cease its operations due to the passing on of the deceased.

8. On grounds (c) & (d), they submit that the income pleaded was Kshs.131,374/= per month but the evidence adduced was that the deceased was an employee of NSSF earning a gross salary of Kshs.122,000/= and the payslip showed that the net salary was Kshs.82,000/=. They contend that there was no additional evidence showing that the deceased earned an additional income of Kshs.100,000/= vide a business he owned.

9. On grounds (e)&(f), they submit that the trial court ignored their submissions about the certificate of registration and bank statements hence arriving at an award for loss of dependency that is manifestly excessive and erroneous.

10. On ground (a), the Respondents submit that the additional income of Kshs.100,000/= was captured in the witness statement of Pw2. They also submit that Pw2 was not cross examined on whether the issue of additional income was supported by pleadings and there was no objection to production of documents in support of the same. They rely inter alia on the case of Maurice O. Okuthe –vs- South Nyanza Sugar Co. Ltd (2019) eKLR where the Court held that;

“5. The starting point is the issue of limitation. I have confirmed that the issue was not raised in the suit. The issue is also not part of the grounds of appeal before this court. The issue was raised for the first time on appeal and through the Respondent’s written submissions. The parties as well as the trial court did not therefore express themselves on it. Guided by the respective Supreme Court and Court of Appeal binding decisions in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR and Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR the issue of limitation, having not formed part of the suit by way of pleadings or otherwise, is a non-issue and cannot be raised for the first time on appeal. The issue is hereby dismissed. I must also clarify that my finding in Kenindia Assurance Co. Ltd vs. Otieno, Ragot & Co. Advocates (2017) eKLR is distinguishable. In the Kenindia Assurance’scase I was dealing with a Reference/Appeal from the Taxing Officer where the issue of limitation had not been raised and dealt with before the Taxing Officer. The reason I decided to deal with the issue was that the Taxing Officer had no jurisdiction to determine such a substantive matter. The issue fell within the exclusive preserve of the High court. That is not the position herein. The trial court had jurisdiction to determine the issue of limitation and since the issue did not form part of the pleadings or proceedings before the trial court this court has no jurisdiction to entertain the same at an appellate level.”

11. They also cited the case of Kenya Ihenya Company Ltd & Another -vs- Njeri Kiriba [2019] eKLR where the Court of Appeal held that;

“26. As a general rule a court ought not to make pronouncement on issues not raised in the pleadings filed by parties. See Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others[2014] eKLR. Nevertheless, a court may base a decision on an unpleaded issue where it appears at the trial that the issue has been left to the court for decision. In the case of Odd Jobs vs. Mubia [1970] EA 476. Law, J.A (as he then was), at page 478 paragraph 9-11 had this to say: -

“On the point that a court has no jurisdiction to decree on an issue which has not been pleaded, the attitude adopted by this court is not as strict as appears to be that of courts in India. In East Africa the position is that a court may allow evidence to be called and may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the unpleaded issue has in fact been left to the court for decision...”

12. On ground (b), they submit that the evidence from Pw2 was that the business was started by the deceased even though it was registered in her name. They also submit that there was evidence to show that the earnings from the business had gone very low after his demise. They contend that the Appellants’ issue at trial was not the income of Kshs.100,000/= but the assumption that the business continued to thrive after deceased’s death. They also contend that since the business was that of supplying books to schools, it is a matter of general and/or local notoriety that suppliers of goods and services are not paid immediately.

13. On grounds (c) & (d), they submit that the deceased’s net earnings as per the payslip were Kshs.94,119/= but the trial court adopted Kshs.82,000/=. They submit that an addition of Kshs.94,119/= to Kshs.100,000/= (from the business) gives a total of Kshs.194,119/= hence they are more entitled to complain about the multiplicand.

14. On grounds (e) & (f), they submit that the Appellants did not address themselves to Pw2’s evidence to the effect that business had gone low after deceased’s demise and that the nature of business attracted late payments.

Analysis and determination

15. This is a first appeal and its now settled that the duty of a first appellate court is to analyze and re-evaluate the evidence on record in order to reach it’s own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. See Selle & Another –vs- Associated Motor Boat Company Limited & Others (1968) E.A 123:

16. Having considered the grounds of appeal, the rival submissions and entire record, it is my considered view that the only issue for determination is whether the multiplicand adopted by the trial court was erroneous. Liability has not been contested.

17. Awarding damages is largely an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR it was held that;

“An appellate court will not disturb an award for damages unless it is 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.

18. The Respondents pleaded that the deceased was a self-employed businessman who used to earn Kshs.131,374/= per month.

19. The deceased’s wife (Pw2) testified that the deceased was employed by NSSF and had a gross income of Kshs.122,000/=. He was also earning Kshs.100,000/= from his business of supplying books. She produced inter alia, a bank statement as PEx 8, a certificate of business registration for Geo-Dulve Trading Co. as PEx 10 and a pay slip as PEx11.

20. In cross-examination, she said that the business was still in existence but the earnings had really gone down. She agreed that the business was registered in her name. She said that there was an employee at the business but he left after the deceased’s death. She also said that the deceased was an employee at NSSF working 5 days a week.

21. In re-examination, she said that the business was started by the deceased and was being run by him.

22. It is evident that the NSSF employment income was not pleaded but the Respondents produced a pay slip in support of the same. The figure of Kshs.82,000/=, which the Appellants agree was strictly proved and have even urged this court to adopt, has been derived from the employment income. In my view, the Appellants have reneged on their own ground (a) of appeal. Be that as it may, I am guided by the Court of Appeal decision in the Kenya Ihenya Company Ltd case (supra),in not dealing with issues not raised in the appeal.

23. The payslip sailed through without any objection hence leaving the issue for determination by the trial court. On the other hand, despite submitting that the deceased’s net earnings as per the payslip were Kshs.94,119/=, the Respondents did not file a cross appeal. It must therefore be taken that they are content with the trial court’s use of Kshs.82,000/= as the net employment income.

24. As for the business income, it is true that the company is registered in the name of the deceased’s wife, the 1st Respondent herein. I have looked at the bank statements and noticed that most of the cheque deposits were made by either the deceased or a person known as Jonathan Nthuli. This shows that the deceased was actually involved in the running of the company as per the testimony of Pw2.

25. This company is registered in the name of Pw1 Lilian Nduleve Ndunda, and not the deceased. They must have been running it together. It was not wound up after the deceased’s death. My view is that it is still trading and generating income. In the pleadings (amended plaint) at paragraph 5 this is what was pleaded:

“At the time of his death the Plaintiff was 58 years old, he was self employed and a business person. He used to earn Kshs.131,374/= per month. The late Geoffrey Ndunda Muli was a hardworking, creative and enterprising man with promising prospects for the future. He

a) Lilian Nduleve Ndunda wife adult

b) Beatrice Wausi Mwania wife adult

c) Elizabeth Musyawa Ndunda daughter adult

d) Nelly Mutuli Ndunda daughter adult

e) Juliana Minoo Ndunda daughter adult

f) Kamene Ndunda daughter adult

g) Victor Muli Ndunda son adult

h) Irene Mbula Ndunda daughter adult

i) Pauline Kalondu Ndunda daughter adult

j) Stephen Kilonzo Ndunda son adult

k) Grace Muloi Ndundadaughter adult

26. The learned trial Magistrate used a multiplicand of Kshs.182,000/= (82,000/= + 100,000/=) which is far much above the Kshs.131,374/= which had been pleaded by the Respondent. He could not give a figure that was higher than what had been pleaded without an amendment. This was an error which must be corrected. The multiplicand of Kshs.182,000/= is therefore set aside.

27. Coming to the business, Pw2 said the income from the business was Kshs.100,000/= considering what had been pleaded as the monthly earning of the deceased without mention of his NSSF employment the money from the business would be Kshs.131,374 – 82,000/= = Kshs.49,374/=. Was this proved?

28. To prove the business earnings Pw2 produced bank statements for the company from February 2014 – August 2014. The deceased died on 2nd April 2014. The company was according to Pw2’s evidence supplying books in school. this is what she said:

“He used to do business also of supplying books in school and was earning about Kshs.100,000/= from the business.”

29. It is not clear whether he was making Kshs.100,000/= per month. Can one give a fixed return for a business? Books in schools are not bought every month. Secondly, the deposits in the bank could be the gross earnings before the profits are determined. Pw2 did not talk of profits being made by the company. I have also seen the copies of the payslips produced herein. The gross salary of the deceased was Kshs.122,269/=. His net salary was Kshs.30,553 – Kshs.31,374/55. This means what he carried home from his job earnings was about Kshs.31,000/= per month.

30. From my re-evaluation of the evidence, the appropriate multiplicand should have been Kshs.100,000/=. Accordingly the loss of dependency is calculated at 100 x 12x2x2/3 = 1,600,000/=.

31. The net award should therefore be:

Pain and suffering – Kshs.20,000/=

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

Loss of dependency – Kshs.1,600,000/=

Special damages – Kshs.20,500

Total - Kshs.1,740,500/=

32. The judgment entered on 17th October is hereby set aside and substituted with a judgment for Kshs.1,740,500/= (One million, seven hundred and forty thousand, five hundred shillings only). Plus, costs and interest.

(b) The Appellants will get half of the costs of the appeal.

Delivered, signed & dated this 29th day of July 2020, in open court at Makueni.

........................

H. I. Ong’udi

Judge