[2023] KEHC 27616 (KLR)

Ngonga & 2 others v Mombasa County Government (Civil Appeal 16 of 2020) [2023] KEHC 27616 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27616 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 16 of 2020

F Wangari, J

November 17, 2023

Between

Lucas Okiya Ngonga

1st Appellant

Patricia Athieno Onganga

2nd Appellant

James Onyango Okiya

3rd Appellant

and

Mombasa County Government

Respondent

(Being an Appeal from the Judgement of Honourable F. Kyambia SPM on 17th January, 2020 in Mombasa CMCC No. 1875 of 2017 Lucas Okiya Ngonga & 2 Others vs County Government of Mombasa)

Judgment

1. This is an appeal from the judgement of the Learned Senior Principal Magistrate Hon. F. Kyambia in Mombasa CMMC 1875 of 2017 given on 17th July, 2020.

2. The Appellant being dissatisfied with part of the said judgement preferred the present appeal and raised five (5) grounds of appeal which are set out as follows: -a.That the Learned Trial Magistrate erred in law and in fact in failing to allow the Plaintiff’s claim for damages under the Fatal Accidents Act despite the evidence showing the Estate of the Deceased and the Plaintiffs were entitled for loss of dependency;b.That the Learned Trial Magistrate erred in law and in fact in failing to appreciate that even in the absence of documentary proof for the Deceased’s earnings, the Plaintiffs were entitled to damages for loss of dependency;c.That the Learned Trial Magistrate erred in law and fact by failing to find that in the absence of documentary proof of earning, the court has the discretion to award a global sum as damages for loss of dependency;d.That the Learned Trial Magistrate erred in law and fact by failing to appreciate that the Plaintiffs as dependants were entitled to an award of damages for loss of dependency;e.That the Learned Trial Magistrate misapprehended the principles for award of damages under the Fatal Accidents Act thereby arriving at a wrong Decision.

3. The Appellants thus prayed that the Decision by the Trial Court dismissing the claim for damages for loss of dependency be set aside and be substituted with an award of Kshs. 3,505,280/= under the Fatal Accidents Act Cap 32 of the Laws of and that the Appellants be awarded costs of the appeal.

4. This being a first appeal, this court is under a duty to re-evaluate and re-assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

5. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd [1968] EA 123 and Peters v Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

6. In Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022) (Ruling), Justice R. E. Aburili, J. held as follows;In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that: “[A]n appeal to this Court from a trial by the High 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 allowances in this respect”

7. Directions were taken that the appeal be canvassed by way of written submissions. The Appellants duly complied by filing detailed submissions together with citing decided cases in support of their position. They are dated 27th April, 2023. The court notes that on 18/7/2023, the Respondent indicated that it could not be mapped in the e-platform. Indeed, this particular file is not reflected in the e-platform. I note that the Appellants’ submissions were brought in physically. Therefore, I have not had the benefit of the Respondent’s submissions.

Analysis and Determination 8. I have considered the appeal lodged, the Appellants’ submissions, the authorities cited as well as the law and I discern the following issues for determination: -a.Whether the Trial Magistrate erred in failing to award damages for loss of dependency under the Fatal Accidents Act;b.If the answer to (a) is in the affirmative, what reliefs and/or remedies should the court issue?c.Who bears the cost?

9. The appeal is only on part of the Trial Court’s judgement under the head of loss of dependency. Though not part of the grounds of appeal, the Appellants in their submissions raised an issue on the award of special damages and the court shall thus consider the efficacy of the prayer on special damages as well. It is thus not in dispute that the only complaint the Appellants have is on the Trial Court’s failure to award damages for loss of dependency. I shall thus not disturb the other awards under the Law Reform Act.

10. In answering the first issue, consideration of Fatal Accidents Act, Chapter 32, Laws of Kenya is imperative. The preamble thereof is categorical that it is an Act of Parliament for compensating the families of persons killed in accidents. In its applicability to this appeal, reference to section 4 (1) of the Act thereof is necessary. It provides as follows: -4 (1) Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:Provided that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within three years after the death of the deceased person.(2)…

11. The categories of the people for whom the action under this Act ought to benefit are specified. They are wife, husband, parent and child of the deceased. Section 7 provides who and in whose name this action is brought. Paragraph 4 of the plaint dated 24th October, 2017 and filed on 13th November, 2017 confirms the capacity of the Appellants to institute the suit before the Trial Court and which capacity extends to this appeal. Further confirmation is discerned from the letters of administration ad litem found at page 19 of the Record of Appeal.

12. Having settled on capacity, I now turn to the merit of the appeal. The Trial Court’s judgement is impeached for failure to make an award under this Act for the loss of dependency. At pages 84 and 85 of the Record of Appeal, the Trial Court in its judgement rendered itself as follows: - “…I have considered the above submissions. None of the witnesses either on their viva voce evidence or the statements they recorded stated that the deceased was working and earning. There is no basis on which the court can adopt the multiplier approach to assess damages of loss of dependency. The claim for loss of dependency therefore must fail…”

13. Dependency is a matter of fact and must be proved by evidence. In Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR, it was held as follows: -“…Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent…”

14. The Trial Court’s concern ought not to have been whether the deceased was working or not but rather whether the Appellants had proved dependence. PW2, the deceased’s father testified to that effect and the court is satisfied that dependency was proved. Having found as above, the next consideration would be what formula to assess the dependency ought to be applied. There are two methods which courts apply in assessing dependency. The first method is the multiplier approach and the second is the global sum award. Multiplier is mostly adopted where the deceased earnings were ascertainable or could be ascertained based on his or her occupation before death.

15. Still on multiplier, where the deceased earnings can be ascertained through pay slips, the amount earned commonly known as multiplicand is multiplied by a certain number of years called multiplier and depending on how much the deceased was supporting his or her family before death, the dependency ratio is applied. Where the deceased earnings could not be ascertained immediately to lack of proof of earnings, if his or her profession is known or can be ascertained, the minimum wage regulation is adopted. The law is that where there is no evidence of income the court is free to resort to the minimum wage and it matters not that the work is informal or menial. (Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR).

16. The global sum award is adopted where the deceased earnings could not be ascertained and as such, the court adopts a global figure. Either way, this award ought to be made once dependency is proved. The court thus finds that the Trial Court failed to make an award under the head of loss of dependency.

17. On this second issue, having found as above, it is the court’s duty to re-assess the evidence on record and make the appropriate award. Which approach should the court take? Multiplier or global sum award? According to the Appellants, they resorted to multiplier approach both before the Trial Court and this court. In Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd & Another cited with approval in Albert Odawa v Gichimu Githenji [2007] eKLR, Ringera, J (as he then was) held as follows: -“…The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 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…”

18. Though it was pleaded that the deceased was a casual as well as a farmer earning approximately Kshs. 30,000/= per month, there was no evidence to support the above. It was not specified in what field he was a casual for the court to resort to multiplier approach using the minimum wage. As such, I am in agreement with the Trial Court’s finding that there was no basis on which the court could adopt the multiplier approach.

19. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu (deceased) [2020] eKLR the court while dealing with a similar issue stated as follows: -“…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. 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…”

20. This court would therefore make a global award. The death certificate shows that the deceased was twenty (20) years old at the time of death. It is not in dispute that he would have progressed in life and get his own family and be a benefit to his family and the society at large. In Daniel Mwangi Kimemi & 2 others v J G M & another (the personal representatives of the estate of N K (DCD) [2016] eKLR, the court made a global award of Kshs. 1,000,000/= to a minor who was twelve (years) of age. Taking all the factors into consideration among them inflation, a global award of Kshs. 1,500,000/= would suffice under the head of loss of dependency.

21. Before delving on the issue of costs, I note that the Appellants in their submissions sought to be awarded Kshs. 38,600/= as special damages as they had proved the same. However, this was not among the grounds of appeal. Submissions cannot take the place of evidence and since grounds of appeal are framed in the same way pleadings are, it is presumed that a ground not taken cannot be ventilated unless an amended memorandum of appeal is filed to include that ground.

22. Be that as it may, I note that the Trial Court found for a fact that special damages of Kshs. 38,600/= had been proved. However, the court in its disposition indicated special damages as Kshs. 8,600/=. This being the case, I invoke the provisions of section 99 of the Civil Procedure Act and correct the same to read Kshs. 38,600/=.

23. On the issue of costs, a careful reading of Section 27 indicates that it is trite law that they follow the cause or event as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540. It is, that costs must follow the event unless the court, for some good reasons, orders otherwise. The import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exist some other good reasons and or cause for not awarding costs to the successful party. I see no reason to deny the Appellants costs of this appeal as they have succeeded. I thus award the Appellants costs of the appeal.

24. Flowing from the above, I proceed to make the following disposition: -

a.The appeal is hereby allowed on terms that the Trial Court’s decision not to award loss of dependency under the Fatal Accidents Act is hereby set aside and, in its place, a global award of Kshs. 1,500,000/= is hereby entered in favour of the Appellants.b.The award of special damages of Kshs. 8,600/= is hereby corrected to read Kshs. 38,600/=;c.The awards in (a) and (b) above shall attract interest from the date of this judgement till payment in full;d.The Appellants are awarded costs of the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 17TH DAY OF NOVEMBER, 2023. .....................................F. WANGARIJUDGEIn the presence of:Juma Advocate h/b for Ms. Osewe Advocate for the AppellantsN/A for the RespondentMr. Barille, Court Assistant