[2017] KEHC 5398 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NUMBER 68 OF 2014

NAOMI NYAMBURA KARANJA.................................APPELLANT

(Suing as the Administrators of the Estate of SIMON

KARANJA MIRINGU(DECEASED)

VERSUS

ZACHARIA MUTERU KADUNGA....................1ST RESPONDENT

MUCHIRI NJUGUNA............................................2ND DEFENDANT

(Being an appeal against the judgment of the Honourable Ngeno Chief Magistrate,

in Nakuru CMCC No. 47 of 2009 delivered on the 28th May 2014 between Naomi

Nyambura Karanja (Suing on behalf of the estate of the late Simon Karanja

Miringu -VS- Zacharia Muteru Kagunda & Mucheru Njuguna)

JUDGMENT

1. The appellant herein was dissatisfied with the Judgment of the trial court delivered on the 28th May 2014 in Nakuru CMCC No. 47 of 2009. The appeal is against the award of damages to the plaintiffs following the death of one Simon Karanja Miringu deceased on the 17th April 2008 in a road accident along the Naivasha-Nakuru road when the vehicle KAZ 561Z in which the deceased was a passenger was involved in an accident with another KAB 172Q.

2. By a consent of parties, liability was apportioned at 75% against the defendants jointly and severally.

Upon assessment of damages, the trial court awarded to following damages for:

Loss of dependancy - Kshs.500,000/=

Loss of expectation of life - Kshs. 96,000/=

Pain and Suffering - Kshs. 20,000/=

Spacial damage - Kshs. 96,545/=

It is submitted by the appellant that the award for loss of dependancy is inordinately too low and has urged that the same be enhanced.

3. The deceased was 34 years old and left behind five children who fully depended on him. He was a businessman and farmer.

It is submitted that in the absence of documentary evidence on income, the court ought to have used the wages guidelines for the year 2006 and a sum of Kshs.7,000/= per month was proposed. It was also proposed a multiplier of 26 years upon a dependancy ratio of 2/3.

The appeal is opposed and the Respondents supported the global award by the trial court of Kshs.500,000/=.

4. Being the first appellate court, I am under a duty to revisit and reconsider the evidence adduced before the trial court and come up with my own findings and conclusions. See Selle -vs- Associated Motor Boat (1968) e KLRwhere the Court of Appeal observed that:

“An appeal court cannot properly substitute its own factual findings for that of a trial court unless there is no evidence to support the findings or unless the judge can be said to be plainly wrong----”

5. In the Further Amended plaint dated the 13th January 2012, the income of the deceased was stated as Kshs.15,000/= per month from his business, but in his evidence in chief, PW1 the plaintiff/appellant did not produce any documents to support the deceased income and earnings of Kshs.15,000/= per month as pleaded.

In assessing damages under the Fatal Accidents Act on loss of dependancy the trial Magistrate had this to say:

“For loss of dependancy I base my award by the number of dependants the deceased left behind five issues who were all minors at the time of death. I will award the estate Kshs.500,000/= in that respect.”

6. I do not agree with the appellants advocate, Ms. Nancy Njoroge that the trial Magistrate failed to use the laid down principles in the assessment of damages and thus arrived at an erroneous estimate of damages. It is true that in some circumstances, a global award ought to be applied more so when there is no proof of a deceased's income. See Rishi Hauliers Ltd -vs- Josiah Oundi Onyanja (2015) e KLR.

In the case, the court observed that the respondent did not provide any basis of establishing the deceased earning, but that did not mean that the deceased never earned any income.

In such instances, it is prudent for the court to adopt a global approach.

In adopting the global award of damages, the court rationalised that the deceased did not provide full particulars of the children nor their ages to enable the court to calculate an appropriate multiplier.

7. In Mwanzia -vs- Ngalali Mutua & Kenya Bus Services Ltd, quoted in Albert Odawa -vs- Gichumu Guchanji NKR HCCA No. 15 of 2003 (2007) e KLR J. Koome(as she then was) observed that:

“----The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma.

It must be abandoned where facts do not facilitate its application ---”

On the other hand, In Mary Khayesi Awalo & Another -vs- Mwilu Malungu & Another ELD HCCC No. 19 of 1997 (1999) e KLRthe court rendered that:

“--- It is better to opt for the principle of lumpsum award instead of estimating his income in the absence of proper accounting books.”

8. As such, different Judicial officers opt for different methods in assessment of loss of dependency. It is in each court's discretion and circumstances of each case. In the present appeal, it is my finding that the global approach was inappropriate in the circumstances, as particulars of the dependants was stated as well as the deceased's income.

Further in the case Theta Tea Company Ltd -vs- Florence Njau Njambi (2000) eKLR, the Court of Appeal observed that:

“---It would be a great injustice to a lot of Kenyans if the court would subscribe to the view tht the only way to prove a profession of a person or income whereby production of documents, as having earned their livelihood in various ways without any documentation---”

9. In the case Nakuru HCCC No. 5 of 2012 Patrick Kanai Waweru (Suing as the Legal representative of the Estate of Grace Njoki Kanai) -vs- George Ogwella & 2 Othersin very similar circumstances I failed to apply the global award in assessing the loss of dependency where the deceased 34 years old left behind five children, and applied the principles stated in Beatrice Thairu -vs- Hon. Ezekiel Bargetuny & Another HCCC No 1438 of 1990 (unreported).It is entirely upon the courts discretion.

It was pleaded evidence adduced that the deceased was a farmer, and businessman. His death certificate indicated that he was a pastor. It is evident that the deceased was not just an idler. Pastors earn some income from their churches. From business and farming, an income is earned. I therefore find no reason why the trial court did not try to determine a reasonable income given the above activities. The appellants submissions before the trial court urged that the Minimum Wages of Kshs.7,000/= for the year 2006 be applied. The trial court failed to do so, nor considered the proposals given on the multiplier and multiplicand by the appellant.

It is my finding that the trial magistrate failed in that regard and therefore applied the easier mode of the global approach.

10. For those reasons, and relying on theCourt of Appeal Case Kiruga & Another (1988) e KLR and Kemfro Africa Ltd -vs- A.M. Lubia (1982-88) I KAR 725,I proceed to set aside the assessment of damages on loss of dependancy and reassess the same on the principles stated in the Beatrice Thairu Case (Supra) and followed in numerous decisions.

11. The deceased was 34 years old at time of death. He would have lived a healthy working life upto the age of 60 and beyond. He left five minor children and a wife. A 2/3 dependency ratio would be most appropriate. On the matter of multiplier, the appellant has proposed 26 years.

The respondent did not make any proposals and relied fully on global award. I have considered several authorities on both issues, among them In HCC No.5 of 2012 Patrick Kanai Waweru (Supra). The court applied a multiplier of 24 years for a 34 year old deceased who was a businesslady.

In PNM & Another -vs- Telcom Kenya Limited & Others(2015) e KLR,the court applied a multiplier of 30 years for 26 year old deceased. In my discretion I shall apply a multiplier of 24 years.

In doing so, I have also considered servitudes of life, expected working life and the extent and ages of the dependants being taken care of and a wife, the income of the deceased and the expectation of his working life.

See – Roger Dainty -vs- Mwinyi Omar Haji & Another (2004) e KLR (CA).

12. The earnings of a deceased person as I have stated above ought not be proved by documentary evidence only See Theta Tea Co. Ltd (Supra).

The Basic Wages Regulations and Guidelines applicable for the period are the 2006 guidelines as per Legal Notice No. 70 of 2009. For unskilled labour the Wages was Kshs.5,665/=. Based on this, I shall apply an income of Kshs.6,000/= per month, being an average sum.

Thus Loss of dependency works to:

12 X 6,000 X 24 X 2/3 = Kshs.1,152,000/=

To that extent the appeal succeeds. The trial courts award on loss of dependency is set aside and substituted with a sum of Kshs.1,152,000/=.

The above sum will be reduced by 25% as per the consent order recorded on liability, thus Kshs.864,000/=.

13. The court will not touch the other awards on both general and special damages as they are not subject of the appeal. They shall remain as awarded.

As the appeal has succeeded the appellant shall be awarded costs of the appeal.

Dated, Signed and Delivered this 18th Day of May 2017.

J.N. MULWA

JUDGE