[2022] KEHC 3295 (KLR)

Mwangi (Suing as the administrators of the estate of Peter Maina Mwangi (Deceased)) v Arim (Civil Appeal E045 of 2021) [2022] KEHC 3295 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3295 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E045 of 2021

TM Matheka, J

July 8, 2022

Between

Michael Mwangi Kagwe and David Kariigi Mwangi

Appellant

Suing as the administrators of the estate of Peter Maina Mwangi (Deceased)

and

Joel Munungi Arim

Respondent

(Appeal from the Judgment of JM Kalo Chief Magistrate delivered on the 29th April 2021 in NKR MCCC 34 of 2019)

Judgment

1. This Appeal relates only to the issue of quantum. The appellant’s appeal was filed on 13th October, 2021 vide Memorandum of Appeal dated 6th May, 2021.

2. The Appellants who were the plaintiffs before the trial court pleaded that deceased was fatally injured following a road traffic accident that occurred on 8th July, 2018. He was hit by Motor Vehicle Registration Number KBV 750 Nissan while he was lawfully walking along Nakuru-Nairobi highway at and or near Stem area.

3. The Appellants claimed the deceased’s estate together with his Dependants suffered loss and damage as a result of the deceased’s death.

4. The issue of liability was settled by Parties consent in the ratio 50:50. After conducting the hearing, the trial magistrate on 29th April,2021 entered Judgement for the Appellants against the Respondent as follows:a.Liability – 50%b.General damages ( Pain & Suffering Ksh.20,000/=,Loss of expectation of Life Ksh.100,000/= and Loss of Dependency Ksh.600,000/= totaling)- Ksh.720,000/=c.Special Damages- Ksh.66,190/=d.Costs of the Suite.General Damages and costs to attract interest at court rates from the date of the Judgement until payment in full.f.Special Damages to attract interest at court rates from the date of filing suit until payment in full.

5. The Appellants were aggrieved by the above Judgement on Quantum and proffered this appeal on four grounds;-1. That the Learned trial Magistrate erred in Law and in fact by not properly, robustically, as expected and or dutifully analyzing and or considering the pleadings, evidence, submissions and other relevant materials on record while arriving at his decision/judgement on quantum and damages awardable.2. That the Learned trial Magistrate erred in Law and in fact by arriving at finding/award on damages that it s not well reasoned, supported, anchored and or in tandem with the evidence on record, submissions, other relevant materials on record and the applicable law and principles for award of damages.3. That the learned trial Magistrate erred in Law and in fact by not properly and or judiciously exercising his discretion when awarding damages for pain and suffering, loss of expectations of life and or loss of dependency/lost years.4. That the Learned trial Magistrate erred in Law and in fact by awarding damages for pain and suffering, loss of expectations of life and or loss of dependency/lost years that were manifestly and or inordinately loss and not supported by the materials evidence, submissions on record and the applicable law and principles for award of damages.

6. The Appellants thus prayed that :-1. This Appeal be allowed and the judgement/decree of the Honourable court delivered on or about 29th April, 2021 be reversed, reviewed and or set aside.2. This Honourable Court be pleased to revisit the award of damages for pain and suffering, loss of expectation of life and loss of dependency/ lost years and come up with an enhancement appropriate and independent determination award in respect thereto.3. That the costs of this appeal be borne by the respondent4. Any other remedy that this Honourable court might deem fit to grant.

7. On 16th December 2021, this court gave directions that the appeal be canvassed by way of Written Submissions.

Appellant’s Submissions 8. The appellants counsel filed written submissions on 18th January, 2022. In their submissions the appellants submitted on three heads. Namely;

Award for pain and suffering 9. The Appellants’ counsel submitted that the award herein of Ksh,20,000/= was not based on any supporting evidence and inordinately low because of the following reasons:-1. No explanation reason and or rationale were given as to how the award was arrived at. It was the Appellants submissions that reasons for the award must be given. For this proposition he cited the cases of Tononoka Rolling Mills Limited v Jackson Wambua Nzioka [2019] eKLR, Parodi Giorgio v John Kuria Macharia [2014] eKLR& Eastern Produce (K)Limited(Kapsumbeiwa Tea Estate) v Stephen Inyasa Makhaya [2019] eKLR.2. The award went against decided cases and did not factor in the prolonged period of pain and suffering that the deceased underwent before he died. He relied on the case of Acceler Global Logistics v Gladys Nasamba Waswa & Another [2020]eKLR where the court cited the position in Rose v Ford where the court held that where the period of suffering is short ,only nominal damages are awarded but where the period of suffering is long, substantial damages are awarded.He submitted that noting the deceased died one day after the accident an award of Kshs.150,000/=will suffice as adequate compensation under this head. He relied on the cases of Beatrice Nyanchama Obuya v Hussein Dairy Limited [2010] eKLR where the deceased died shortly after the accident and award of 20,000/= was awarded.Kenya Power Limited v James Matata & 2others (suing as the legal representatives of the estate of Nyange Masaga (deceased) [2016] eKLR where an award of Kshs. 80,000/= was awarded to the deceased who died few hours after the accident.Patrick Kanai Waweru (Suingas the legal administrator of the estate of Grace Njoki Kanai v George Ogwella & 2 others [2016] eKLR where the court awarded Ksh.100,000/= to the deceased who died 2 hours after the accident.Acceler Global Logistics v Gladys Nasambu Waswa & Another[2020]eKLR where an award of Kshs. 50,000/= was awarded to the deceased who died on the spot.Sophia Wairimu Njoroge & Another v George Karongo & Another [2017] eKLR where the deceased died one day after the accident and he was awarded Kshs.100,000/=

Award for loss of Expectation of Life 10. The Appellants’ Counsel submitted that an award of Kshs.100,000/= was low considering the court did not base the same on proper evaluation of evidence and failed to take into account the nature of the deceased occupation and his age of 39 years. He proposed that a sum of Kshs.200, 000/= will suffice as adequate compensation under this head. He cited the cases of Acceler Global Logistics v Gladys Nasambu Waswa & Another [2020] eKLR where the court upheld an ward of Kshs. 170,000/= for a deceased aged 41 years.Philip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR where the deceased aged 65 years was awarded a sum of Kshs. 100,000/= under this head.Elisha Busienei v Paul Yator [2012] eKLR where the deceased aged 88 years was awarded a sum of Ksh.100,000/=Abson Motors & 2others v Sinema Kitsao & Another (administrators of the estate of the late Kitsao Kajefwa Kitunga [Deceased][2016] where a deceased aged 85 years was awarded Kshs. 100,000/= under this head.

Award for Loss of Dependency/Income 11. He submitted that an Award of Kshs.600,000/= was not based on proper evaluation of the evidence on record. Because;1. The trial erred by stating that no documentary evidence was adduced to prove that the deceased was a painter yet work testimonials, certificates and contract of the deceased was produced as P. Exhibit 12 & P. Exhibit 14. He relied on the case of Kipkebe Limited v Dismas Nyangau Omayio [2011] eKLR where the court stated that judicial officers are always expected to act on the material or evidence before them and not to advance fanciful theories in the absence of evidence led or legal basis to support such theories.2. The magistrate erred on principle by not evaluating the evidence on record which position invites this court to interfere with its finding. He relied on the case of Abdimana Abulwahab & Another v G S M M (Suing as legal administrator of the estate of the late S W N) [2018] eKLR & Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another[2015] eKLR where the court interfered with the findings of the trial court on grounds that it failed to consider and evaluate the evidence on record.3. Had the trial court considered the evidence on record especially noting the deceased was a painter cum counselor he would have awarded a higher award.4. The court ought to have used the multiplier approach as opposed to the global sum since there was evidence that the deceased was a painter. He relied on the case of Catholic DioceseofMachakos & Another v Janet Munaa Mutua & Another [2021] eKLR where the court held that global awards are generally suitable in cases involving minor, adolescents whose income cannot be ascertained. That the court of appeal in Jacob Ayiga Maruja & Another v Simeon Obayo [2015] eKLR held that the only way to prove the profession of a person was not only through production of certificates and the only way of proving earnings was equally not by production of documents as this stand would do a lot of injustice to many Kenyans who are even illiterate and did not keep records yet earn their livelihood in various ways. That in Philip Mutua v Veronicah Mule Mutiso [2013] eKLR the court stated that where income is not proved the income of an unskilled worker ought to apply according to the Regulations of wages (General)(Amendments)Order 2015. That in Ephantus Wachira Kithaka v Susan Mukami Kinyua & Another (Suingas the legal representatives of theEstateofDaniel Kinyua Karwigi (Deceased) [2019] eKLR the court adopted a multiplier approach by basing the income of a charcoal seller on regulation of wages .In B.O.G Karima Girls High School & Another v RWK& Another [2015]eKLR the court similarly adopted a multiplier approach and based the income of a boda boda rider on regulation of wages.5. Assuming the court was right in adopting the global approach then an award of Ksh.600, 000/- was low given the age and occupation of the deceased. He was guided by the following authorities;Abson Motors & 2 Others v Sinema Kitsao & Another (Administrators of the estate of the Late Kitsao Kajefwa Kitunga [Deceased] [2016] eKLR where the court awarded the deceased aged 85 years Kshs.400,000/= under this head.China Civil Engineering & Another v Mwanyoha Kazungu Mweni & Another [2019]eKLR where the deceased whose occupation was unknown and aged 79 years was awarded a global sum of Kshs.700,000/=;Amazon Energy Limited v Josephine Martha Musyoka & Another [2019] eKLR where the court expressed its discomfiture with the lump sum/global award approach by stating that:-“In making a global award, the trial court should always ask itself whether the award made is close to an award that could have been made using the multiplier approach taking into account the age of the deceased, and using the minimum wage of a general worker, where the earnings of the deceased cannot be ascertained. It will be unjust for the lump sum to be much higher than the award to the estate of a deceased whose earnings have been established and a multiplier approach used...”

12. The Appellants ‘counsel proposed that that an award under this head should be worked out as follows Kshs.12,522. 70(Minimum Wage) x 12 (Months) x 21 Years (Multiplier) x 1/3 (Dependency)= Kshs. 1,051,906. 80/=

13. He prayed that an award of Kshs. 2,536,185/= for loss of dependency will suffice.

Respondent’s Submissions 14. The Respondent filed his submissions on 16th February, 2022.

15. The submissions were on the following heads:-

Pain & Suffering 16. The Respondent’s Advocate submitted that the trial court’s award of Kshs. 20,000/= was sufficient noting the deceased died a day after the accident. He relied on the cases of James Gakinya Karienye & Another (Suingas the legal representative of theEstateofDavid Kelvin Gakinya (Deceased) v Perminus Kariuki Githinji [2015] eKLR where the court awarded Kshs.10,000/= to the deceased who died immediately after the accident.Kamunya v Kibe [2004] eKLRwhere the court awarded Kshs. 10,000/= to the deceased who died 3 days after the accident.

Loss of Expectation of Life 17. He submitted that this award is based on the principle that the deceased has been deprived of normal expectation of life due to the wrongful act of tortfeasor. That the practice by the courts is to award a conventional figure under this head depending on the age of the deceased. They submitted that the court has set precedent that award herein is a conventional figure of Kshs.100, 000/=. Reliance was placed on the cases of Leonard Nturibi Ambutu& another v Rufus Jk Kihato &another [2018] eKLR where the court held that an award of Ksh.100,000/= to be reasonable damages and certainly the conventional sums awarded by the courts.Mercy Muriuki &another v Samuel Mwangi Nduati &another (suing as the legal administrator of the estate of the late Robert Mwangi)[2019] eKLR where the court stated that the conventional award for loss of expectation of life is Kshs.100,000/= while for pain and suffering range from Kshs.10,000 to Kshs. 100,000/= .

18. It was therefore the Respondent’s submissions that this court should uphold the lower court’s award under this head.

Loss of Dependency 19. The respondent’s counsel argued that this award is provided for under the Fatal Accidents Act and is meant to compensate the Estate of the deceased for the loss of income that would have benefited the dependents of the deceased had he lived. He cited the provisions of section 4 of the Fatal Accident Act and submitted that the contention that the deceased was working as a painter earning Kshs. 20,000/= was unproved. He stated that PW2 testified that the deceased used to send him Kshs.2, 000/= but did not produce any documentary proof.

20. The advocate submitted that from the pleadings and evidence on record, the deceased was aged 39 years old at the time of the accident, single and without children. That on 16th September, 2019, PW2 who was the father to the deceased testified that his son used to give him Kshs.2000/= every month which was a demonstration that he depended partially on the deceased for his livelihood. He argued that the appellants did not adduce any proof of deceased’s continuous occupation as a painter and stated that owing to the fact that actual appellants dependence on the deceased and deceased’s earnings cannot be ascertained then the trial court was right in adopting a global sum approach .

21. Reliance was placed on the case of John Mwangi Macharia v Jeniffer Keiya Mutegi [2020]eKLR where deceased’s earning was uncertain and the court adopted the same approach.

22. It was their position that multiplier is just a method of assessing damages as it was held in the case Albert Odawa v Gichumu Githenji:Nakuru HCCA No.15 of 2003 (2007) eKLR.

23. The Respondent urged this court to uphold the trial’s court award under this head.

Analysis and Determination 24. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985]eKLR thus:“The principles 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 of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the 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 damage.”

25. In Gitobu Imanyara & 2others v Attorney General[2016] eKLR, the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349}} when it held as per Law, J.A that:“An appellate court will not disturb an award of damages unless it is so 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.”

26. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera[2016] eKLR stated that “comparable injuries should attract comparable awards”.

27. The issues that arise for determination in this matter are;i.Whether the trial court erred in adopting the global sum approach instead of multiplier approach; &ii.Whether the awards made by the trial court under different heads were manifestly/inordinately low.

Issue No.1- Whether the trial court erred in adopting the global sum approach instead of multiplier approach 28. In the case of BoardofGovernors of Kangubiri Girls High School& Another v Jane Wanjiku Court of Appeal sitting at Nyeri In Civil Appeal No. 35 of 2014eKLR pronounced itself as follows:“The choice of a multiplier is a matter of the courts discretion which discretion has to be exercised judiciously with a reason”

29. In Mwanzia v Ngalali Mutua Kenya Bus Ltd and quoted in Albert Odawa v Gichumu Githenji NKU HCCA No. 15 of 2003 (2007), KLR, Justice Ringera was of the following view;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma.It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

30. This reasoning was adopted in Mary Khayesi Awalo & Another v Mwilu Malungu & AnotherELD HCCC No. 19 of 1997 [1999] eKLR where Nambuye J., stated that:-“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.

31. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, stated:“(23)In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.[24].the global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

32. It is thus not mandatory for a court to use multiplier approach while assessing damages. The deceased in this case was said to be a painter and no documentary proof was adduced to prove his earnings. Guided by the above authorities, I am of the considered view that the trial court did not err in adopting a global sum approach.

Issue No. 2- Whether the awards made by the trial court under different heads were manifestly/inordinately low. Pain & Suffering & Loss of Expectation of Life 33. The Appellant urged this court to interfere with the courts award of Kshs.20,000/= & Kshs.100,000/= for pain & suffering and loss of expectation of life respectively on grounds that the same were not based on proper evaluation of evidence on record, parties’ submissions, the applicable law and principles for award of damages. The appellants also argued that the awards herein were inordinately low.

34. The respondent on their part urged this court to uphold the trial’s court award under these heads.

35. It was further the appellants’ submissions that the trial court ought to have considered the pain and suffering the deceased underwent before he died while making its award.

36. The authorities cited by parties under this heads are relevant and persuasive in nature.

37. In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR the Court observed that:-“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

38. Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased)[2021] eKLR quoted with approval the case in Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where the Court stated as follows-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

39. Generally higher damages are awarded where there was prolonged pain and suffering before death. In this case it was evident that the deceased did not die on the spot. For this reason, the minimum award of Kshs. 20,000/= was inordinately low and it is my view that had the trial magistrate applied herself to that fact the usual award of Kshs.100,000/= for such circumstances would have been made.

40. With respect to loss of expectation of life the usual sum is Kshs.100, 000/= for loss of expectation of life. I did not find any reason to interfere with the same as it is neither excessive nor so low as to amount to an injustice.

Loss of Dependency 41. The Court of Appeal in Gerald Mbale Mwea v Kariko Kihara & Another Civil Appeal No. 112 of 1995 stated that the issue of dependency is always a question of fact to be proved by he who asserts.

42. According to the Appellants’ joint statement dated 21st January, 2019 they stated that the deceased was an industrious man who worked as a painter and also as a trained counselor with a monthly income of about Kshs.20,000/= per month and which money he used to support himself and also them.

43. During hearing the 1st Appellant Michael Mwangi Kagwe, father to the deceased testified that the deceased used to send him Kshs.2000/= per month which he used to take care of himself and his family. That he and his wife used to depend on the deceased for upkeep.

44. In cross examination he stated that the deceased used to do odd jobs and sometimes he could stay without work.

45. There was therefore no proof that deceased employment was continuous and that he used to earn the said Kshs.20, 000/=.

46. The appellants urged the trial court to adopt a multiplier approach and use the minimum wage regulation to determine the income of the deceased. The court did not adopt this position.

47. Before this court the appellants have urged this court to set aside the award under this head on grounds that it was erroneous and inordinately low given the age and occupation of the deceased. The Appellants urged the court to be guided by the cases of Abson Motors & 2 others v Sinema Kitsao & another (administrators of the estate of the late Kitsao Kajefwa Kitunga [Deceased] [2016] eKLR & China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR.

48. There was no evidence that the deceased was in employment earning the salary stated in the submissions. Following the authority’s cited and the principles upon which this court could interfere with the trail magistrate’s determination, I find no reason to interfere with the choice of the global sum award or the sum awarded.

49. The Appeal succeeds in part, the sum awarded for pain and suffering is reviewed to Kshs. 100,000/=.

50. The appellant will have one third the costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY 2022. MUMBUA T. MATHEKA,JUDGE.CA EdnaGuto for RespondentN/A for appellant