[2022] KEHC 16137 (KLR)

Musyimi v Lamba & another (Suing as legal representatives of Estate of Musingila Mutambu - Deceased) (Civil Appeal 71 of 2019) [2022] KEHC 16137 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16137 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 71 of 2019

GMA Dulu, J

December 7, 2022

Between

Wilson Mumo Musyimi

Appellant

and

Jane Mulanga Lamba

1st Respondent

Mutunga Musingila

2nd Respondent

Suing as legal representatives of Estate of Musingila Mutambu - Deceased

(Being an appeal from the Judgment of Honourable Ruguru SRM delivered on 4th April 2018 in Makueni CMCC No. 80 of 2017)

Judgment

1. In a judgment delivered on April 4, 2018 in a case where liability had been recorded by consent as 80% against the defendant and 20% against the plaintiff, the court awarded damages as follows –a.Pain and Suffering Kshs 30,000/=b.Loss of expectation of life Kshs 100,000/=c.Loss of dependency Kshs 1000,000/=d.Special damages Kshs 31,360/=Sub-total Kshs 1,161,360/=Less 20%Total Kshs 929,088/=

2. Dissatisfied with the quantum damages awarded, the appellant has come to this court on appeal through counsel M/s Masire & Mogusu on the following grounds –a.The magistrate erred in law and fact in awarding loss of dependency of Kshs 1,000,000/= which amount was excessive, exorbitant and unwarranted in light of evidence adduced.b.The magistrate erred in law and in fact in awarding pain and suffering liability at Kshs 30,000/= which amount was not strictly proved.c.The magistrate erred in law and in fact in awarding special damages, at Kshs 31,360/= which amount was not strictly proved.d.The trial magistrate erred in law and in fact by failing to deduct the award of loss of expectation of life Kshs 100,000/=e.The magistrate erred in law and in fact by failing to take into consideration the appellant’s written submissions on record.f.The magistrate’s findings and decision were against the weight of the evidence adduced.

3. I note that the respondent also filed a cross-appeal challenging quantum of damages awarded.

4. The appeal was canvassed through written submissions. In this regard, I have perused and considered the written submissions filed by counsel for the appellant as well as those filed by counsel for the respondent.

5. This is an appeal challenging the quantum of damages awarded. I am thus bound to be guided by the legal principle that has been applied consistently by courts in considering whether or not to interfere with an award of damages by a trial court, which principle was restated in the case of Kemfro Africa Ltd t/a Meru Express Services & Another –vs- AM Lubia and Another (1982) – 88) IKAR 727 at page 730 wherein Kneller JA as he then was stated as follows –"The principle to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal for East Africa to be that it must be satisfied that either the Judge in assessing damages took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

6. Coming to our present case, none of the parties tendered oral evidence at the trial. It was recorded by consent that all the documents filed by the plaintiffs (now respondents) be admitted as evidence. Parties’ counsel then filed written submissions on quantum of damages.

7. With regard to damages awarded under the Law Reforms Act for pain and suffering, the trial magistrate awarded Kshs 30,000/=.

8. The evidence from the documents filed was that the deceased suffered serious brain injuries, but there is no certainty that he died on the spot. He died same day. In my view, he must have suffered pain before he died, and the figure of Kshs 30,000/= awarded as damages for pain and suffering was reasonable.

9. On loss of life expectancy, the magistrate awarded Kshs 100,000/=. In doing so, the magistrate considered the amounts requested by both sides. This is an amount awarded by courts for the loss of the opportunity to live. Courts have awarded even Kshs 400,000/= under this head depending on the age of the deceased and other associated circumstances. In my view, the award is reasonable in the circumstances of the case.

10. I now turn to the award under the Fatal Accidents Act, that is loss of dependency in which the trial magistrate awarded a global figure of Kshs 1,000,000/= without using the multiplier/multiplicand method. The appellant’s counsel argues that this figure was too high, while the respondents’ (cross –appellant) counsel contends that it is very low.

11. There is no dispute as to the age of the deceased. He was aged about 25 at death. The evidence on his income was scanty. Though he was said to be repairing the Wote - Machakos road at the time of death, and also said to be earning Kshs 20,000/= a month, even the name of his employer was not indicated. It is trite that where employment or business income is not established, courts have to go by a reasonable figure as no healthy person can be said to be unable to earn an income. Courts have thus been going by the minimum wage principle.

12. In the present case, the court went by a global figure approach rather than multiplier/multiplicand approach which in my view was an error, as the multiplier/multiplicand approach could easily be applied herein. In my view therefore, the magistrate erred, and should have gone by the multiplier method using the minimum wage applicable in 2014 which is about 5,500/= as there is no evidence that the deceased was a skilled machine tool operator as alleged by counsel for the respondents. The Kshs 5,500/= is the multiplicand.

13. The multiplier to be used in my view should be 30 years, which translates to working life of up to 55 years of age.

14. The award for loss of dependency herein for a person with two living parents will thus be 5,500 x 1/3 x30x12= 660,000.

15. In my view, the special damages awarded by the trial court was what was pleaded and proved. I will thus retain the award.

16. On the issue as to whether the award under the Law Reform Act should be deducted from the award under the Fatal Accident Act, going by the reasoning in the case of Kemfro Africa (supra), such deduction will only be justified, if there is undue enrichment to the winning party. In the present case, I find no such undue enrichment. The magistrate was thus justified in not applying the deduction principle.

17. Consequently, I allow the appeal in part by only interfering with the award under loss of dependency. The award will therefore be as follows –i.Pain and suffering Kshs 30,000/=ii.Loss of expectation of life Kshs 100,000/=iii.Loss of dependency 5,500 x 1/3x30x12 Kshs 660,000/=iv.Special damages Kshs 31,360/=v.Subtotal Kshs 821,360/=vi.Less 20% Liability Kshs 164,272Total Kshs 657,088/=

18. The appellant will pay 60% of the costs of appeal.

DELIVERED, SIGNED & DATED THIS 7THDAY OF DECEMBER, 2022, VIRTUALLY IN OPEN COURT AT MAKUENI.………………………………….GEORGE DULUJUDGE