[2024] KEHC 16064 (KLR)

Ndone & another (Suing as the Legal Representatives of the Estate of John Wavata Muvunzya - Dcd) v Kenya Wildlife Services (Civil Appeal E003 of 2024) [2024] KEHC 16064 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16064 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E003 of 2024

LM Njuguna, J

December 19, 2024

Between

Sarah Mutho Ndone

1st Appellant

Andrew Matheka

2nd Appellant

Suing as the Legal Representatives of the Estate of John Wavata Muvunzya - Dcd

and

Kenya Wildlife Services

Respondent

(Appeal arising from the amended decision of Hon. S.K.Ngii PM in the Magistrate’s Court at Siakago Civil Suit No. E075 of 2022 delivered on 05th January 2024)

Judgment

1. The appellants filed a memorandum of appeal dated 08th January 2024 challenging the above cited decision of the trial court and seeking the following orders:a.That the appeal be allowed with costs;b.That the judgment of the Principal Magistrate be set aside and the court be pleased to reassess general damages payable to the estate of the deceased; andc.That the costs of the appeal be borne by the respondent.

2. The appeal is premised on the grounds that:a.The learned trial magistrate erred in law and fact in his analysis of the evidence in holding that the appellants were not entitled to an award of Kshs.5,000,000/=;;b.The learned magistrate erred in law and fact in failing to consider conventional awards for general damages in similar cases of death;c.The learned magistrate erred in law and fact by disregarding serious issues of law and fact that were raised before him by the appellant, which he ought to have considered before arriving at his decision;d.That the trial magistrate erred in law and facts in failing to consider the appellant’s submissions on quantum; ande.The learned magistrate proceeded on demonstrably wrong principles in reaching his decision.

3. Through a plaint dated 03rd August 2022, the appellants, who are the widow and son of the deceased, sought judgment against the respondent for general and special damages together with costs. It was the appellants’ case that on 27th February 2022, the deceased was attacked by a hippopotamus at Riakanau village and it occasioned him fatal injuries. They alluded negligence to the respondent for abdicating its mandate by failing to keep the wild animals within the confines of a national park or conservancy.

4. The respondent filed a statement of defense in which it denied the allegations made in the plaint and stated that the plaint does not disclose a cause of action. It attributed the deceased’s injuries to his own negligence. The appellant filed a reply to defense wherein he reaffirmed the averments made in the plaint and urged the court to strike out the respondent’s statement of defense.

5. At the hearing, PW1 was Sarah Muthio Ndone, widow of the deceased who stated that the deceased was guarding his tomato farm when he was attacked by a hippopotamus and he sustained fatal injuries. That the area chief wrote a letter to buttress their efforts towards seeking recompense for the loss of the deceased. That the appellants obtained a compensation form from the respondent’s offices at Embu County but the officers there advised that they report the matter at the Karaba police station, which they did. That they obtained a grant ad litem and they incurred costs for that and funeral expenses. Through their suit, they sought general damages under both the Fatal Accidents and the Law Reform Acts.

6. It was her testimony that the deceased was a 54-year-old fisherman at the time of his death and he was earning Kshs.20,000/= per month. He stated that they were issued with the compensation form after the matter was reported at the respondent’s office. That the respondent failed in its mandate, among others, to educate the public on how to co-exist with wild animals. That their home is very far from any National Park thus the deceased couldn’t have intruded the territory of wild animals.

7. On cross-examination, she stated that she was not present during the incident that occurred at 1am. That it was well known that the area had hippos and that the deceased was guarding his crops against them. That hippos can be easily scared away from destroying crops by screaming. That she did not have a marriage certificate to prove her marriage to the deceased, neither did she have her children’s birth certificates to prove that the deceased was their father. That she also did not have any proof of earnings of the deceased.

8. The respondent did not call any witnesses. The parties filed their written submissions in which the appellants urged the court to award general damages of Kshs.5,000,000/=. The trial court considered the evidence and the circumstances of the case and awarded special damages of Kshs.54,950/=. It also awarded a global sum of Kshs.1,500,000/= as general damages for loss of dependency, Kshs.150,000/= for loss of expectation of life and Kshs.30,000/= for pain and suffering.

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

10. The appellant submitted that parties are bound by their pleadings and that no new matters should be placed before this court on appeal if they were not canvassed at the trial. They relied on Order 2 Rule 10(1) of the Civil Procedure Rules and the cases of Joseph Munyoki Kalonzo v Kenya Wildlife Services [2015] KEHC 2233 (KLR), Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] eKLR, Kenya Wildlife Service v Jefrisi Indimuli Obati & Mary Wanjiku Njau [2020] KEHC 4432 (KLR) and Jediel Murithi Njeru (Suing as the legal representative of the estate of Josphat Karii Njeru (Deceased) v Kenya Wildlife Services [2021] KEHC 8878 (KLR). It was their argument that the respondent should be held 100% liable and the damages awarded should be enhanced.

11. The respondent relied on the cases of Arrow Car Limited v Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR) and Kenya Wildlife Service v Abraham M’ngai M’itumitu (Suing as the Legal Representative of the Estate Judy Gakii M’ngai) [2021] KEHC 7105 (KLR) and argued that the compensation sought should not be too high neither should it be too low. It argued that with reference to comparable awards, the amount granted by the trial court should be upheld since Kshs.5,000,000/= is too high.

12. The issue for determination is whether the appeal has merit.

13. The appellate court makes its decision purely based on the record and findings of the trial court as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...”

14. The evidence adduced before the trial court showed that the deceased was killed by a hippo, a wild animal which the respondent was responsible for. The widow of the deceased testified that when she went to report the matter at Karaba police station, it was on instruction of officers from the respondent, even though she had sought compensation through the mechanisms provided under Section 25 of the Wildlife Conservation and Management Act. she testified that the deceased was a farmer and fisherman who earned Kshs.20,000/= monthly although she did not have any document to prove these earnings.

15. The trial magistrate relied on the death certificate which shows that the deceased died on the same day he was attacked, thus he awarded Kshs.30,000/= for pain and suffering. As general damages for loss of expectation of life, the trial court noted that the deceased was 54 years old and it awarded Kshs.150,000/=. I find the awards under these 2 heads to be reasonable in the circumstances. Moreover, in the case of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR it was 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 Kshs.100,000/= while for pain and suffering the award ranges from Kshs.10,000/= to Kshs.100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

16. For general damages for loss of dependency, the appellant had prayed for an award of Kshs.5,000,000/= under Section 25(3) of the Wildlife Conservation and Management Act. The trial court stated that in the plaint, the appellant prayed for damages under the Law Reform Act and The Fatal Accidents Act thus the amount sought could not be granted. The trial court also considered the possibility of applying the multiplier method and found that it was untenable since there was no proof of earnings. It found it best to apply a global sum of Kshs.1,500,000/=. The trial magistrate was guided by the cases of Moses Mairura Muchiri v. Cyrus Maina Macharia (suing as the personal representative of the Estate of Mercy Nzula Maina (deceased) (2016) eKLR and Ndeti & another (Suing on their own behalf and as administrators of the estate of Gerald Ndeti Mutua (Deceased)) v Mwangangi & another [2022] KEHC 15732 (KLR) in awarding the global award. He also noted that there was no proof that the deceased’s child was a minor thus it was not tenable to apply a dependency ratio.

17. The reasoning of the trial magistrate is sound and I agree with it. I have also considered the cases the learned magistrate relied on in his decision and find that the awards arrived at under the different heads are reasonable. In their submissions, the appellants urged the court to consider the cases of Joseph Munyoki Kalonzo v Kenya Wildlife Services [2015] KEHC 2233 (KLR) and Jediel Murithi Njeru (Suing as the legal representative of the estate of Josphat Karii Njeru (Deceased) v Kenya Wildlife Services [2021] KEHC 8878 (KLR) where the claimants were awarded Kshs.5,000,000/= where the deceased were killed by wild animals. In those cases, the claimants claimed compensation under Section 25(3) of the Wildlife Conservation and Management Act. In this case, the appellants claimed damages under the Law Reform Act and the Fatal Accidents Act. The court’s hands were tied as regards the legal regime under which the claim was brought and I do agree with the reasoning of the trial court in this regard.

18. That being said, I find that the appeal lacks merit and it is hereby dismissed. The findings of the trial court are hereby entirely upheld.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19THDAY OF DECEMBER, 2024. L. NJUGUNAJUDGE……………………… for the Appellant……………………… for the Respondent