[2022] KEHC 17260 (KLR)

Nanline Company Limited v Owino & another (Being Sued as Legal Representative of the Estate of Henry Ouma Owino) (Civil Appeal E053 of 2021) [2022] KEHC 17260 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17260 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E053 of 2021

SN Mutuku, J

December 1, 2022

Between

Nanline Company Limited

Appellant

and

Peris Odhiambo Owino

1st Respondent

Daniel Odhiambo Owino

2nd Respondent

Being Sued as Legal Representative of the Estate of Henry Ouma Owino

(Being an appeal from the judgement of the chief magistrate court at Kajiado delivered on 2nd September, 2021(Hon. Cheloti SRM) in Kajiado CMCC No. 94 of 2019)

Judgment

Introduction 1. The Respondents, who are the legal representatives of the estate of the late Henry Ouma Owino, deceased, sued the Appellant, the registered owner of motor vehicle number KCJ 339X claiming damages as a result of the negligence of the Appellant or its authorized driver, agent, servant and/or employee in causing the accident that claimed the life of the deceased.

2. They claimed that the deceased was lawfully riding motor cycle registration number KMEH 370C along Kitengela Namanga Road on August 7, 2018 when the accident occurred. The Respondents sought from the court general damages under the Fatal Accident Act and the Law Reform Act, special damages in the sum of Kshs 60,550/=, costs and interest of the suit.

3. By a judgment delivered on September 2, 2021, the lower court apportioned liability 80% to 20% in favour of the Respondents and awarded Kshs 3,686,400 for loss of dependency, Kshs 16,000 for pain and suffering, Kshs 80,000 for lost of expectation of life, Kshs 48,440 special damages, costs and interest, giving a total of Kshs 3,830,840.

Memorandum of Appeal__ 4. The Appellant was aggrieved by the Judgement of the judgment of the lower court and has come on appeal to this court on the following grounds:i.That the Learned Magistrate erred and misdirected herself in law, principle and facts when she misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the loss of dependency.ii.That the Learned Magistrate erred in law and in fact in arriving at a decision that was against the weight of evidence on record and weight of law as a result, she arrived at an erroneous decision.iii.That the Learned Magistrate erred in law and fact by taking into account irrelevant and extraneous factors, hence she reached an erroneous verdict.

5. The Appellant seeks to have the appeal allowed and the judgement on the loss of dependency be set side and that the award on general damages be revised to commensurate levels as per the evidence on record. He also seeks that costs be allowed both in the lower court and in the appeal to the Appellant.

6. The appeal was canvassed by way of written submissions.

Submissions 7. The Appellant filed his submissions dated June 16, 2022. He has raised the following two issues:i.Whether the learned magistrate erred in adopting a multiplicand of Kshs. 19,200/-.ii.Whether the learned magistrate erred in adopting a multiplier of 25 years.

8. The Appellant submitted that the evidence of the Respondent is that the deceased was earning Kshs 1,000/- per day but no documentation was provided in support of the same; further that the motor cycle was not owed by the deceased and therefore since the motor cycle was hired the reasonable amount the deceased was earning would have been Kshs 500/- per day giving a total monthly figure of Kshs 4,000/-.

9. The Appellant cited various authorities as shown in their submissions including Petronila Muli v. Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR and asked the court to categorize boda boda riders as mechanists, laundry operators and light tractor drivers, etc. in the former Town Council of Kajiado who wage was Kshs. 13,431. 30/- according to the Regulation of Wages (General) (Amendment) Order, 2018.

10. On the second issue, the Appellant submitted that the deceased was 25 years old when he died and a multiplier of 20 years is therefore reasonable. He cited various authorities, as shown on the face of the submissions, where the court applied a multiplier of 20 years. The Appellant submitted that an amount of Kshs. 2,240,000/-, calculated as 14,000 x 20 x 12 x 2/3, would be sufficient as an award for loss of dependency.

11. The Respondents filed their submissions dated April 15, 2022. They have submitted the lower court arrived at its decision after exercising its discretionary power. They submitted that a court sitting on appeal does not interfere with the exercise of discretion by the trial court unless it is satisfied that the 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 failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo and another -v- Shah [1968] E.A. 93).

12. On the issue of liability, the Respondents submitted that whereas they availed an eye witness, PW3, who testified on how the accident happened, the Appellant’s eye witness disowned the statement that was filed in court. It was their argument therefore that the court relied on the testimony of a police officer DW1, who was not at the scene and or investigate the accident.

13. On the issue of quantum, the Respondents submitted that an award of Kshs 20,000/- for pain and suffering was reasonable as the deceased died on the spot.

14. On loss of expectation of life, they submitted that the award of Kshs 200,000/- was guided by the age of the deceased and the authorities relied on.

15. On the issue of loss of dependency, the Respondents argued that the deceased was 25 years old and had a family; that the court’s application of Kshs 19,600 multiplicand was after considering the minimum wage of the occupation of the deceased; that the multiplier of 30 years took into account the retirement age in Kenya which is 60 years and that 30 years would have put the deceased at age 55 years which was reasonable. It was their submissions that the award is not excessive and/or unreasonable and therefore the appeal is without merit.

Determination 16. As stated in Mark Oiruri Mose vs. R. (2013) eKLR, this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and therefore I will give allowance for that.

17. I have considered the entire record of the lower court, the grounds of appeal, submissions and authorities cited. From my understanding, the Appellant is not contesting liability, which the trial court apportioned at 80% t0 20% in favour of the deceased. From the two issues that the Appellant has raised, it is contesting the method used to calculate quantum as a result of which the trial court arrived at the quantum shown in the judgment.

18. I have considered the issue that the award for loss of dependency is excessive. Peris Adhiambo (PW1) testified that her late husband was earning Kshs 1000 per day for 7 days of the week and that the motor cycle was not his. What this means is that out of that amount, the deceased would pay for the hire of the motor cycle. The amount is no stated. To my mind, half of that figure, being Kshs 500 as stated by the Appellant is reasonable to me. Even if this court were to assume that the deceased was working the entire 7 days of the week, his take home would have been Kshs 14,000. To my mind, this is a reasonable figure to work with given that the boda boda riders are not categorized under the Wages Regulations. I am not able to understand the reasoning behind the use of Kshs 800 adopted by the trial court

19. The Appellant further argued that the multiplier awarded by the lower court of 30 years was excessive and that the court should have awarded a multiplier of 20 years as per the authority they relied on. On this issue, the trial court exercised its discretion and stated that it had considered the vicissitudes of life and the age of the deceased which was 25 years and went ahead to award 30 years as the multiplier. For a 25-year-old boda boda rider, it is not erroneous to allow 30 years of active service because this would have made him 55 years old. It is my view that the trial court did not rely on the wrong principle in respect of this issue and further that the multiplier used is not too low or too high to interfere under the circumstances. Therefore, in my view and after taking into account the evidence on record, the award ought to be calculated as follows: Kshs 14,000 x 30 years x 12 x 2/3 = Kshs 3,360,000 for loss of dependency.

20. I note that the award for pain and suffering is not contested. Let it remain at Kshs 20,000. Likewise, loss of expectation of life remains at Kshs 100,000. Special damages remain at Kshs 60,550, all giving a total of Kshs 3,540,550 less 20% = Kshs 2,832,440/=.

21. Consequently, this appeal succeeds in as far as the award for loss of dependency has been readjusted as shown in this judgment. The total award payable to the Respondents by the Appellant is Kshs 2,832,440/=.

22. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 1ST DAY OF DECEMBER, 2022. S. N. MUTUKUJUDGE