[2023] KEHC 25150 (KLR)

Njeri v Nyamesa & another (Suing as the legal representatives of Jane Kwamboka Machogu (Deceased)) (Civil Appeal E020 of 2022) [2023] KEHC 25150 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25150 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E020 of 2022

LW Gitari, J

November 9, 2023

Between

Lucy Njeri

Appellant

and

Charles Mochogu Nyamesa

1st Respondent

Samwel Oende Machogu

2nd Respondent

Suing as the legal representatives of Jane Kwamboka Machogu (Deceased)

Judgment

1. This appeal arises from the judgment of the trial court in Chuka Chief Magistrate’s Court Civil Case No. E018 of 2020 that was delivered on 8th September, 2021. The grounds of appeal as set out in the Memorandum of Appeal dated 13th October, 2021 are as follows:a.That the Learned Magistrate misapprehended the law and relied on wrong principles thus arrived at a manifestly erroneous decision on quantum which was excessive.b.That the Learned Magistrate erred in law and fact while calculating loss of dependency by applying a multiplier approach in assessing damages when there was no proof of earning thereby arriving at a wrong and erroneous award of Kshs. 1,800,000/= which was excessive in the circumstances.c.That the Learned Magistrate ignored the case law and the written submissions by the Appellant thereby arriving at an erroneous decision.

2. Based on the above grounds, the Appellant thus prayed for:a.That this Appeal be allowed and the decision and judgment of the Learned Chief Magistrate in Chuka CMCC No. E018 of 2020 on quantum for loss of dependency be set aside.b.That this Honourable Court be pleaded to re-evaluate the evidence and make its own finding and judgment with regard to quantum on loss of dependency.c.That the Appellant be awarded the costs of the Appeal herein.

3. Before the trial court, the Respondents’ instituted a suit against the Appellant as the legal representatives of Jane Kwamboka Machogu (deceased). Their claim was contained in the Plaint dated 11th September, 2020 and filed on 18th September, 2020. It was the Respondents’ case that on or about 10th February, 2020, the deceased was a passenger aboard the Appellant’s motor vehicle travelling along Chuka-Meru road when at Godka area, the Appellant’s driver, agent, servant, and/or employee so negligently drove, managed, and/or controlled the Appellant’s motor vehicle that he cause or permitted the same to get out of control and overturn as a consequence of which the deceased was injured and died from the injuries sustained after three days.

4. The Respondents averred that the Appellant ought to be held vicariously liable for the tortuous acts and/or omission committed on the deceased. The Respondents thus claimed for general damages under the Fatal Accidents Act and the Law Reform Act, special damages of Kshs. 20,650/=, interests, and costs of the suit.

5. The Appellant denied the allegations contained in the Plaint and put the plaintiff into strict proof thereof. It claimed that if there occurred any such incident on the material day, then the same was wholly caused and/or substantially contributed by the deceased’s negligence.

6. The Appellant submitted that liability ought to be apportioned at 50:50 and proposed an award to be made as follows:a.Special damages Kshs. 20,000/=b.Pain and Suffering Kshs. 50,000/=c.Loss of Expectation of Life Kshs. 100,000/=d.Loss of Dependency Kshs. 850,000/=Total Kshs. 1,020,000/=Less: 50% Liability Kshs. 510,000/=Net Total Kshs. 510,000/=

7. On the other hand, the Respondents submitted that the Appellant ought to be held 100% liable and proposed the following awards:a.Pain and Suffering Kshs. 100,000/=b.Loss of expectation of life Kshs. 100,000/=c.Loss of dependency 30,000x18x12x2/3 Kshs. 4,320,000/=d.Special damages Kshs. 20,000/=e.Reasonable Funeral Expenses Kshs. 50,000/=Gross Kshs. 4,590,000/=Less double entitlement Kshs. 100,000/=net award Kshs. 4,490,000/=

8. In awarding the damages for personal injury in this case, the trial court ruled in relevant part as follows:a.Liability – 100%i.Pain and suffering - Kshs. 50,000/=ii.Loss of expectation - Kshs. 100,000/=iii.Loss of dependency - Kshs. 1,800,000/=iv.Special damages - Kshs. 100,000/=Less double entitlement - Kshs. 100,000/=c.Plus costs and interest

9. The Appeal was canvassed by way of written submissions which I have highlighted below.

The Appellant’s Submissions 10. It is the Appellant’s submission that she was aggrieved by the award made by the trial court under the head of loss of dependency. That the learned magistrate erred in adopting a monthly wage for the deceased which was not supported by any evidence and consequently awarded an amount that was exorbitantly high in the circumstances. Further, that the level of dependency was not proved at all. The Appellant thus submitted that the assessment of damages under this head would best be achieved by adopting the global award approach since the facts of the case did not support the multiplier approach. to buttress this position, the Appellant cited the cases of:a.Gilbert Kimatare Nairi & another (suing as personal representative of the Estate of Lemayan Richard Kimatare (Deceased)) v. Civiscope Limited [2021] eKLR;b.Frankline Kimathi Maariu & another v. Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu – deceased [2020] eKLR;c.Moses Mairua Muchiri v. Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR;

11. It was thus the Appellant’s submission that under the loss of dependency, and while alive to the fact that no evidence whatsoever was adduced as to the income and/or earning of the deceased and the nature of dependency claimed, an award of Kshs. 850,000/= would suffice as she had proposed during trial. The Appellant thus prayed for this Court to set aside the trial court’s award and instead substitute it with an award of Kshs. 850,000/=.

The Respondents’ Submissions 12. On their part, the Appellant submitted that it was not controverted that the deceased was a business woman. That DW1 conceded in his statement, which was adopted as his evidence in chief, that he was carrying bananas and ferrying them from Meru to Narok using a lorry/truck. That he further conceded that the deceased was aboard the subject motor vehicle as a passenger and not a loader. Further, that the Respondents’ statement, which was adopted in evidence, clearly states that “the deceased hired the defendant’s lorry to transport her wares” and this evidence was not challenged or controverted.

13. Relying on the cases of Aphia Plus v. Cephas Najuma & Anor [2015] eKLR, Bendetta Wanjiku Kimani v. Changnon Cheboi & Anor [2013] eKLR, and Guyo Jullo and Anor v. Lilian Kanyua [2019] eKLR, it was the Respondents’ submission that the adoption of a multiplier of 15 years, a multiplicand of two-thirds and earnings of Kshs. 15,000/= was neither unreasonable nor inordinately high.

14. Finally, the Respondents stated that it would be an anomaly to state that the trial court did not consider the Appellant’s submissions. Referring to page 69 of the Record of Appeal, it was the Respondents’ submission that the court need not reiterate the contents of the parties’ submissions for it to be seen to have read the same. It was thus the Respondents submission that the appeal ought to fail with costs to them.

Issues for Determination 15. I have examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the parties’ respective Counsel. In my view, the main issues that arise for determination by this Court are:a.Whether the trial court erred in adopting the multiplier approach in assessing the award of damages under the head of loss of dependency; and if not,b.Whether the award of Kshs. 1,800,000/= as general damages for loss of dependency was exorbitant in the circumstances; andc.Whether the trial court considered the Appellant’s submissions before arriving at its decision.

Analysis 16. This is a first appeal. It is therefore this Court’s duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. This was the holding in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

17. PW1 was PC Sammy Oluonya attached at Chuka Police Station. It was his testimony that on the material day, there occurred a self-involving accident along Chuka-Meru road that involved motor vehicle registration number KBY 432E. PW1 visited the scene of the accident and according to him, the brakes of the said motor vehicle failed and the deceased, who was a passenger in the said motor vehicle, was injured and taken to Chuka General Hospital. PW1 stated that the Appellant herein was the owner of the subject motor vehicle. He produced the police abstract as P. Exhibit 1.

18. PW2 was Parius Mogire, the son of the deceased. He relied on the statement by one Samuel Machogu that is dated 11th September, 2019 as his evidence in chief. He produced in evidence the deceased’s postmortem examination form, the deceased’s death certificate, A grant of letters of administration ad litem, demand letter, receipt, copy of search records, receipt of Kshs. 20,000/=, chief’s letter and birth certificates. It was PW2’s testimony that the deceased was a bread winner and used to maintain and provide for the family as their father had died earlier. On cross examination, PW2’s stated that he had no proof that the deceased was earning Kshs. 30,000/= per month from selling bananas which she got from Meru and sold in Narok.

19. For the defence case, DW1 was John Nderi Maina. He stated that on the material day, he was the driver of the subject motor vehicle and was heading to Narok. He adopted his statement dated 13th July, 2021 as his evidence in chief. On cross examination, he admitted that the deceased was a passenger in the vehicle that he was driving on the material. He further stated that there were two vehicles that were trying to overtake that led to the accident. That he had not included the owners of the said motor vehicles as third parties. On re-examination, DW1 stated that he tried to avoid the accident but the subject motor vehicle lost control and the other vehicles drove off.

20. The Appellant has not challenged the assessment of 100% liability against her for the subject accident. The only bone of contention raised by the Appellant in this case is the trial court’s finding on quantum of damages under the head of loss of dependency. In the case of Mbogo & Another vs Shah [1968] EA 93, it was held that an award of damages entails exercise of judicial discretion which should be exercised judicially and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Court.

21. I am also guided by the case of Kigaragar v Agripiana Mary Aya [1982-1988] KAR 768, where the Court of Appeal held that an appellate court would interfere with the Trial Court’s decision if it was shown that the sum awarded was demonstrably wrong or that the award was based on wrong principle or it was so manifestly excessive or inadequate, that a wrong principle may be inferred.

On whether the trial court erred in adopting the multiplier approach instead of the global sum approach 22. From the proceedings of the lower court, PW2 testified that prior to her death, the deceased was a business woman who used to get bananas from Meru and transport them to Narok where she sold them. That he was the son of the deceased and that he had two brothers, Peter and Brian Mogire. PW2 further stated that the deceased was the sole brad winner of the family as their father had died earlier and that she used to earn Kshs. 30,000/= per month from her banana selling business.

23. The claim that the deceased was a business woman was not controverted by the Appellant before the trial court. As noted by the trial court, this Court also notes that no documentary evidence was produced by the Respondents to prove that her monthly earnings/income. As such, the deceased’s earnings could not be ascertained. Since no documentary evidence was produced as proof of the deceased’s monthly income, the trial court could have adopted either the multiplier approach or global sum approach. He adopted the former approach. This was a matter that fell in the discretion of the magistrate.

24. In the case of Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji Nku Hcca No.15 of 2003 [2007] eKLR, where the court made the following observation;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a 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 the 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.”

25. Whereas the trial court in this case did not give reasons for adopting the multiplier approach, it ascertained that the deceased was 42 years old, was a business woman and had left behind a family that depended on her. Having ascertained these facts, it is my view that the learned trial magistrate did not misdirect himself in adopting the multiplier approach.

On whether the award of Kshs. 1,800,000/= as general damages for loss of dependency was exorbitant 26. In Jacob Ayiga Maruja & Another v. Simeon Obayo [2005] eKLR, the Court of Appeal opined as follows with regard to proof of earnings:“In our view, there was more than sufficient material on record from which the learned Judge was entitled to, and did draw the conclusion that the deceased was a carpenter and that his monthly earnings were about Shs. 4,000/= per month. We do not subscribe to the view that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.”

27. In this case, it is the Appellant’s submission that after acknowledging that the Respondents failed to prove the deceased’s earning/income, the trial court applied the wrong principles by plucking a figure from nowhere and adopting the same as monthly income for the deceased. In my view, the trial court did err in using the multiplicand of Kshs. 15,000/= without giving a reason on how it arrived at the same sum. As has been the practice by courts, it ought to have been guided the minimum income as provided under the Regulation of Wages Order applicable at the time.

28. In this case, the deceased died on 13th February, 2020. As such, the trial court ought to have adopted the minimum income for general workers outside the Nairobi, Mombasa and Kisumu cities and the Municipalities of Mavoko, Ruiru and Limuru under Regulation of Wages (General) (Amendment) 2018 which was Kshs. 7290. 95/=.

29. On the multiplier, the court noted that the deceased was 42 years old and could have retired at the age of 60 years. The learned magistrate adopted a multiplier of 15 having due regard to the uncertainties of life. In this regard, it is notable that the deceased was a business woman. Barring the vagaries and uncertainties of life, an average Kenyan man or woman can engage in business of selling goods beyond the age sixty (60) years as there is no retirement age. As such, I don’t agree with the trial court’s reasoning that the deceased would have retired at the age of 60 years. However, it is my view that a multiplier of fifteen (15) was reasonable in the circumstances of the case. I am therefore not persuaded that this Court should interfere with the multiplier adopted.

30. On the dependency ratio, I am of the view that the application of two thirds in this regards was justified. As stated herein above, it was PW2’s testimony that he was the son of the deceased and that he has two brothers. PW2 further stated that the deceased was the sole bread winner as their father had earlier passed on. I am therefore of the opinion that the learned magistrate applied the right principles to arrive at the same.

31. From the above, I opine that the award under the head of loss of dependency under the Fatal Accident’s Act ought to have been for a sum of Kshs.874,914 made up as follows:-Kshs. 7290. 95/= x 12 x 15 x 2/3= 874,914. 00

On whether the Appellant’s Submissions were considered by the trial court 32. On this final ground in support of the appeal, it is my view that the learned magistrate did consider the submissions of the Appellant as stated at page 9 of the impugned judgment. As correctly submitted by the Respondent, the learned magistrate did not have to produce the submissions of the parties in verbatim for it to be said that he considered them. This ground of appeal should therefore fail.

Conclusion 33. The upshot of the foregoing is that the present appeal is merited.I order that:-a.The Judgment of the trial magistrate on the quantum of damages is set aside.b.It is substituted with an award of Kshs.874,914. 00c.The finding on liability at 100% is upheld.d.Pain and suffering – Kshs.50,000/-e.Loss of expectation of life- Ksh.100,000/-f.Special damages – Ksh.60,000/-g.Each party will bear its own costs of this appeal

DATED, SIGNED AND DELIVERED AT CHUKA THIS 9TH DAY OF NOVEMBER 2023L.W. GITARIJUDGE9/11/2023Ms Muchoba for ApplicantRespondent – AbsentJudgment has been read out in open court.L.W. GITARIJUDGE9/11/2023