[2022] KEHC 15370 (KLR)

Mutungi v Abdi & another (Suing as the legal representatives of the Estate of Adan Kore Abdi - Deceased) (Civil Appeal 53 of 2020) [2022] KEHC 15370 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15370 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 53 of 2020

JK Sergon, J

November 11, 2022

Between

Patrick Mutungi

Appellant

and

Ahmed Kore Abdi

1st Respondent

Batula Kore Abdi

2nd Respondent

Suing as the legal representatives of the Estate of Adan Kore Abdi - Deceased

(Being an appeal from the judgment and decree of Honourable D.M. Kivuti (Mr.) (Senior Resident Magistrate) delivered on 22nd March, 2019 in CMCC no. 5594 OF 2012)

Judgment

1. The respondents who were the plaintiffs in CMCC no 5594 of 2012 instituted the suit against the appellant and one Kaizen Self Help Group ('the 1st defendant') in their capacity as the legal representatives of the estate of Adan Kore Abdi ('the deceased') through the plaint dated September 18, 2012 seeking both general and special damages as well as costs of the suit and interest.

2. The 1st defendant was sued in its capacity as the registered owner of the motor vehicle registration number xxxx ('the subject motor vehicle') while the appellant was sued as the driver of the subject motor vehicle at all material times.

3. The respondents pleaded in the plaint that sometime on or about June 5, 2011 while the deceased was lawfully walking along and off Nairobi-Mombasa Road near Maungu area in Nairobi, the subject motor vehicle being negligently driven by the appellant, lost control and veered off the road, knocking down the deceased and causing his death. The particulars of negligence are laid out under paragraph 5 of the plaint.

4. The appellant entered appearance and put in his statement of defence dated November 2, 2012 to deny the averments made in the plaint.

5. Going by the record, upon the request of the respondents, interlocutory judgment was entered against the 1st defendant on October 30, 2018 for failure to enter appearance and/or file a statement of defence.

6. At the trial, the respondents and the appellant testified respectively.

7. Upon close of submissions, the trial court entered judgment in favour of the respondents and against the appellant and the 1st defendant jointly and severally, in the following manner:a.Liability 80%: 20% in favor of the respondentsb.General damagesi.Pain and suffering Kshs 10,000/=ii.Loss of expectation of life Kshs 100,000/=iii.Loss of dependency Kshs 700,000/=Total Kshs 810,000/=Less 20% contribution Kshs 648,000/=c.Special damages Kshs 20,500/=Grand Total Kshs 668,500/=

8. Being aggrieved by the abovementioned judgment, the appellant has now approached this court by way of an appeal. His memorandum of appeal dated January 28, 2020 features the following six (6) grounds of appeal:i.The learned trial magistrate erred in assessing general damages for pain and suffering in the sum of Kshs 10,000/=.ii.The learned trial magistrate erred in assessing general damages for loss of expectation of life in the sum of Kshs 100,000/=.iii.The learned trial magistrate erred in assessing general damages for loss of dependency in the sum of Kshs 700,000/=.iv.The said assessment and award of general damages is manifestly excessive and inordinately high as to amount to a miscarriage of justice.v.The said assessment and award is out of keeping with other Kenyan awards for comparable injuries.vi.There is no good or proper basis for the said assessment of damages.

9. The appeal was canvassed through written submissions.

10. In his submissions, the appellant contends that the trial court erred in awarding damages for loss of dependency in the absence of any proof of dependency, and especially since the respondents being brothers of the deceased would not be entitled to an award under that head.

11. To buttress his argument, the appellant cites the case of John Mungai Kariuki & another v Kaibei Kangai Ndethiu & 2 others [2020] eKLR where the court rendered that:'The brothers and sisters of the deceased are not dependants for purposes of the statute and language of the statute cannot be read, even by creative interpretation, to expand the list of dependants to include siblings of the deceased.'

12. The appellant further contends that should this court be inclined to uphold the award of damages under the head of loss of dependency, that the same be tabulated on a multiplier of 6 years, a multiplicand of Kshs 4,348 pursuant to the minimum wage regulations for a herdsman, and a ratio of 1/3, constituting an award in the sum of Kshs 104,352/=.

13. In retort, the respondents urged this court to uphold the respective awards made since the same are in line with comparable awards made under the various heads and are therefore reasonable.

14. The respondents further submit that there is ultimately no reasonable basis for interfering with the award on damages and cites the case of Catholic Diocese of Kisumu v Tete [2004] eKLR in which the Court of Appeal stated the following:'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 difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.'

15. For the above reasons, the respondents urge this court to dismiss the appeal with costs and to uphold the decision by the trial court wholly.

16. I have considered the rival submissions and various authorities cited on appeal. As is required of an appellate court, I have re-evaluated the evidence which the trial court had the opportunity to consider, as well as the trial court’s findings on the same.

17. It is apparent that the appeal lies against the assessment of damages, specifically the awards made under the heads of pain and suffering, loss of expectation of life and loss of dependency.

18. The law sets out that an award of the trial court can only be interfered with in the following scenarios as articulated in the renowned case ofKemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No 2) [1985] eKLR quoted in the submissions by the respondent, thus:a.Where an irrelevant factor was taken into account.b.Where a relevant factor was disregarded.c.Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

19. Under the head of damages for pain and suffering, the respondents proposed the sum of Kshs 30,000/= with reference to the case of Laban Njogu Wainaina v David Kariuki Kingori & another HCCC No 4148/1989 and the case of Fredrick Gataka v George Kibinyi and Njoroge HCCC No 1993 of 1990. In both instances, the respective courts awarded the sums of Kshs 10,000/= each at the instance of deceased persons who died on the date of the material accidents.

20. The appellant on his part suggested the sum of Kshs 10,000/= as constituting a reasonable award and cited the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR in which the court awarded a similar sum under that head.

21. The learned trial magistrate awarded the sum of Kshs 10,000/= upon reasoning that the deceased had died on the date of the accident.

22. Upon my consideration of the foregoing circumstances as well as the pleadings and evidence, it is clear that the sum awarded by the learned trial magistrate is equivalent to that suggested by the appellant, who is now challenging the award made.

23. In my view, the award made under that head is reasonable and echoes awards previously made in respect to persons who died on the date of the accident or even immediately following the accident, similar to the deceased in the present instance. I therefore see no reason to interfere with that award.

24. In respect to the award under the head of loss of expectation of life, the respondents on the one hand suggested the sum of Kshs 200,000/= whereas the appellant proposed the sum of Kshs 100,000/=, the latter of which was the sum awarded by the learned trial magistrate.

25. The courts have been known to grant the conventional sum of Kshs 100,000/= under the above head. Upon considering the conventional award of Kshs 100,000/= made in the case of Mumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate ofPatrick Kweyu Ashuma (Deceased) & another [2018] eKLR I am convinced that the sum awarded by the learned trial magistrate constitutes adequate damages for loss of expectation of life and is also equivalent to the sum which was proposed by the appellant. I will therefore not disturb it.

26. This brings me to the award made under the head of loss of dependency.

27. On the one part, the respondents proposed the sum of Kshs 600,000/= upon tabulating a multiplier of 10 years, a multiplicand of Kshs 15,000/= and a ratio of 1/3.

28. The appellant on the other part echoed its submissions on appeal that in the absence of proof of dependency, no sum ought to be awarded under that head.

29. As earlier indicated, the learned trial magistrate proceeded to award the sum of Kshs 700,000/=.

30. Upon my re-examination of the pleadings and evidence, it is apparent that the respondents herein were siblings of the deceased.

31. Upon my further re-examination of the pleadings and evidence, no mention was made as to the dependants of the deceased in terms of parents, children or spouses.

32. The proviso of Section 4(1) of the Fatal Accidents Act states that:'Every action brought by nature of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused…and shall be brought by and in the name of the execution or administrator of the person deceased.'

33. Moreover, the above position was reaffirmed by the court in the case of John Mungai Kariuki & another v Kaibei Kangai Ndethiu & 2 others [2020] eKLR cited in the submissions by the appellant, thus:'The brothers and sisters of the deceased are not dependants for purposes of the statute and language of the statute cannot be read, even by creative interpretation, to expand the list of dependants to include siblings of the deceased.'

34. In view of all the foregoing circumstances, I concur with the reasoning by the appellant that given their status, the respondents were not entitled to any award under that head since they are not considered to be dependants for purposes of the above statute, and in the absence of any credible evidence of dependency by any other persons.

35. The upshot therefore is that the appeal partially succeeds. Consequently, the award of Kshs 700,000/= made on general damages for loss of dependency is hereby set aside.

36. For the avoidance of doubt, the judgment on appeal is as follows:a.General damagesi.Pain and suffering Kshs 10,000/=ii.Loss of expectation of life Kshs 100,000/=b.Special damages Kshs 20,500/=Gross Total Kshs 130,500/=Less 20% contribution Kshs 26,100/=Net Total Kshs 104,400/=c.The respondents shall have interest on the special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full.d.Parties to bear their respective costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondents