[2020] KEHC 1684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HIGH COURT CIVIL APPEAL NO.103 OF 2018

1. NDUNGU WAMBUI CHRISTINE

2. GRACE NGILA

3. BENSON WAMBUA.......................................................................APPELLANTS/APPLICANTS

VERSUS

MUUSI NZIVO MAINGI AKA MUUSI UZIVO & DAVIDMAINGINZIVO

(joint Legal Representatives of Estate of Christine Mumbua)..............................RESPONDENTS

J U D G E M E N T

1. This appeal arose from the decision made by Hon. K. Sambu, Senior Principal Magistrate in Mwingi Senior Resident Magistrate’s Court Civil Suit No.157 of 2017. In that suit the Respondents’ herein had sued the Appellants for tort of negligence. The Respondent’s suit arose from a road traffic accident that occurred on 30th April, 2017 involving motor vehicle Registration No.KBU 438U owned by 2nd Appellant but registered in the name of 1st Appellant and driven by the 3rd Appellant. The Respondents had brought the action as Legal Representative of Estate of Christine Mumbi (Deceased) who was a passenger in the ill-fated motor vehicle.

2. The trial court upon trial found that the Appellants were 100% liable for the accident in line with the finding on liability in a related matter to wit Mwingi Senior Resident Magistrate’s Court Civil Case No.159 of 2017.

3. On quontum, the trial court gave the following awards under the following heads:-

i. Loss of expectation of life Ksh.100,000/=

ii. Pain and Suffering – Ksh.150,000/=

iii. Loss of expectation of life 2/3x12x14,435. 75x30 –

Ksh.3,464,580

iv. Special damages – Ksh. 46,500

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Total Ksh.3,761,080

Plus costs and interests

4. The Appellant were dissatisfied with the above decision and filed this appeal raising the following grounds namely:-

a. That the learned trail Magistrate erred in law and fact in failing to appreciate and consider the pleadings and evidence adduced on quontum of damages.

b.That the trial court failed to consider the submissions filed and authorities filed.

c. That award given lacked basis and was an erroneous estimate of damages and excessive.

5. In their written submissions through counsel, the Appellants have submitted that the award given on the pain and suffering was excessive and contend that an award of Ksh.50,000/= could have been fair as the deceased died a day after the incident. They have relied on the decision of D.M.M. (suing as the legal representative ofL.K.M –vs- Stephen Johana Njue and Another [2015]eklr where the deceased died after four days and the estate was awarded Ksh.50,000/= for pain and suffering.

6. On loss of depency, the Appellants have faulted the trial Magistrate for adopting a Multiplier of 30 years without taking into consideration visitudes of life. In their view a multiplier of 20 years would have been reasonable and have relied on the decision of the Estate of the late Jane Wanjiru Maina –vs- Lilian W.Macharia & Another [2019] eklr.

7. The Appellants have also contended that the dependency ration of 2/3 was a bit high given that the deceased’s husband had also perished in the same accident and a dependency ratio of 2/3 awarded. In their view a dependency ration of 1/3 would have been fair and have relied on the case of Benedeta Wanjiku Kimani –vs- Changwony Chebol & Another [2013] eklr.

8. The Respondents have opposed this appeal through written submissions by their learned counsel. They contend that in computing loss of dependency the courts should take into account deceased income, age and whether he had dependants. They submit that the deceased worked at EPZ Ltd Athi River earning a salary of Ksh.14,436. 75. They aver that she could have retired at 60 years and that they tendered her payslip in evidence which confirmed what the income the deceased received from her employment. In their view the trial court gave a proper award using a proper multiplier of 30 years.

9. They submit that special damages of Ksh.46,500/= were proved to the required and that the award given of Ksh.100,000/= for loss of expectation of life was justified given that the deceased died at young age of 30 years.

10. On the award of pain and suffering, the Respondents have supported the award of Ksh.150,000/= submitting that the deceased died after 2 days. They have further supported the dependency ration of 2/3 given by the trial court and have cited the decision in Rosemary K. Kasina –versus- Kenblest Ltd.(Nbi HCC No.587 of 2003) to buttress their contention.

Analysis an Determination

11. This appeal is basically about quontum. The issue of liability is not contested in this appeal.

12. The Appellants have in their first ground of appeal alleged that the trial court did not consider their pleadings, evidence adduced and the submissions filed. I have looked at the pleading and in their joint defence, the Appellants denied liability to the accident that caused fatal injuries to the deceased. However in in their submissions herein, they appear to have abandon that ground and instead put weight to their grievance about the quantum awarded.

13. To begin with the award on pain and suffering, there is a contest as to whether the deceased died after one day or two days. The Appellants insist that she died after a day but the Respondents contend that she died after 2 days. This court has looked at the evidence tendered in court both orally and through documents (exhibits). It is quite apparent that the accident occurred on 30th April, 2017 the deceased died on 1st May 2017 while undergoing treatment. The trial appears to have misapprehended this material fact by holding that the deceased died on 2nd May, 2017. The award of Ksh.150,000/= appears to have based on that error. This court finds that the Appellant’s grievances on that regard is founded. This court finds that the award of Ksh.150,000/= on that head was based on an erroneous estimate on when the deceased passed on. This court finds that the award was excessive and the same is set aside. An award of Ksh.100,000/= in my view is fair in the circumstances.

14. On the multiplier used by the trial court, it is not contested that the deceased was aged 30 years. The documentary evidence to wit the Death Certificate (Ex.2), showed that she was 30 years old. The payslip tendered [P. Ex. 4 (a)] showed that her net pay was Ksh.14,435/=. The Appellants have taken issue with the multiplier used by the trial court and have contended that a multiplier of 20 years should have been used instead. This court has considered the fact that though currently retirement age for civil servants is begged at 60 years, at private sector given the vicissitudes of life, and periodic economic upheavals it is rather too much to expect one to retire age of 60 years I am persuaded by authority of Kenya Power& Lighting Co.Ltd. –versus- Benard Kilonzo(suing as the administrator of the Estate of the late Maurice Mutinda Kilonzo (deceased) [2012] eklr where the court adopted a multiplier of 25 years where the deceased died at 21 years old. This court finds that on the basis of the above a multiplier of 25 years would have been fair and appropriate.

15. On the question of dependency ration of 2/3 I am not persuaded that the trial court fell into error in arriving at that ratio. I am also not persuaded by the Appellants’ contention that the ratio should have been reduced to 1/3 on ground that the husband and the father of the dependant also died during the accident. The principle applicable on the ration applicable do not change in such circumstances. The Appellants have no basis to be dissatisfied in that regard.

In the premises this appeal is partly allowed for the reasons aforestated. For purposes of (clarity the Respondents are awarded as follows:

i. Pain and Suffering - Ksh.100,000/=

ii. Loss of expectation of life - Ksh.100,000/=

iii. Loss of dependency at the ratio of 2/3: 14,435 x 25 x 2/3 –

Ksh.2,165,250/=

iv. Special damages - Ksh. 46,500/=

Total - Ksh.2,411,750/=

The Appellants are awarded half costs of this appeal. The orders given by the trial court or how the amount shall be administered for the benefit of the minor shall be maintained.

Dated, SignedandDeliveredatKituithis12thday of November, 2020.

R. K. LIMO

JUDGE