[2022] KEHC 13849 (KLR)

Njuka v Gituma (Civil Appeal 24 of 2021) [2022] KEHC 13849 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13849 (KLR)

Republic of Kenya

In the High Court at Vihiga

Civil Appeal 24 of 2021

WM Musyoka, J

October 7, 2022

Between

Nicodemus Owotsi Njuka

Appellant

and

Lawrence Mwirigi Gituma

Respondent

(An appeal arising from the Judgment of Hon. SO Ongeri, Principal Magistrate, delivered on 3rd December 2019, in Vihiga PMCCC No. 7 of 2019)

Judgment

1. This is one of the matters that I took over from F Amin J on June 16, 2022. It was due for judgment on January 20, 2022.

2. The suit at the primary court was initiated by the respondent against the appellant for compensation, on account of damages arising from a road traffic accident, where he specifically prayed for general damages, loss of consortium, special damages, costs and interests. The respondent was the administrator of the estate of the deceased, who had been a fare paying passenger in a motor vehicle belonging to the appellant, K*H, when the same collided with another, on October 25, 2018, along Kapsabet-Chavakali, causing her death. The appellant filed a defence, in which he denied liability. He averred, in the alternative, that the deceased contributed to the accident by her own negligence and that of the driver of the second vehicle, particulars of which he gave in the defence.

3. A trial court was conducted, in which the respondent testified and called a witness. He said the deceased was his wife. He produced various documents, including a police abstract, copy of records, and various receipts to support his claim for special damages. His witness was an eyewitness, who said that he saw the accident happen. The witness said that he was the one who assisted the deceased get to hospital. The appellant did not call any evidence. A judgment was delivered on December 3, 2019. A total of kshs 3,704,819. 00, being kshs 20,000. 00 for pain and suffering, kshs 150,000. 00 for loss of expectation of life, kshs 3, 829, 465. 00 for loss of dependency and kshs117,000. 00, making a total of kshs 4,116,466. 00, less contributory negligence.

4. The appellant was aggrieved, hence the instant appeal. In the memorandum of appeal, dated January 11, 2020, he avers that the award under the Law Reform Act, cap 26, laws of Kenya, and the Fatal Accidents Act, cap 32, laws of Kenya, was excessive; the multiplier of 32 was excessive and unjustified; the award of kshs 3,829, 460. 00 for loss of dependency was excessive and erroneous; his submissions on general damages were not considered; and the award of kshs 4,516,466. 00 was not supported by evidence.

5. Directions were given on September 20, 2021, for disposal of the appeal by way of written submission. There has been compliance. Both sides have filed written submission.

6. The appellant submits that the trial court applied the multiplier of 32 without considering the vicissitudes and vagaries of life, arguing that there was no guarantee that the deceased would have worked till her retirement age. He cited John Muchiri Njoroge & another v Prisca Mmbone & another [2019] eKLR (Kamau J), to submit that the vicissitudes and vagaries of life do not always guarantee a person the entire balance of their working life. He proposes a multiplier of 15 years for a 28-year-old, basing himself on Petrocity Enterprizes (U) Ltd v Roseline Sikudi suing as legal representative of the estate of Pascal Ngadi (deceased) & 2 others [2017] eKLR (Korir J). On the multiplic and of kshs 14,658. 85, the appellant submits that there was no concrete proof on how much the deceased earned. He submits that the certificate of death indicated that she was a housewife, and that there was no evidence that she was in employment or business. He submits that in the absence of such evidence, the trial court should have used the minimum age as the multiplicand, citingAllan Owiti Awuor & Anor v Tabitha Micere Mathu (suing as the personal representative of the estate of Peter Mathu Ng’ang’a [2021] eKLR (Mwita J). He submits that since the death occurred in 2018, the Regulation of Wages (General)(Amendment) Order, 2018 applied. He submits that as she worked as a general hotel worker, the minimum wage for a general labourer, of kshs 7,240. 95 sufficed. On dependency ratio, he submits that the deceased was working, but was not a sole breadwinner. He submits that the dependency ratio should have been worked out at 1/3, citing In the Estate of Joshua Mulinge Itumo (suing for and on behalf of the Estate of Damaris Nduku Musyimi (Deceased) v Bash Hauliers Limited & another [2021] eKLR (Odunga J). On loss of expectation of life, he submits that the conventional figure is kshs100,000. 00, and cites Virginia Simpano Mukami (suing as the legal representative of the estate of William Lasiti Mungai Ole Kure(Deceased) v Attorney General & another [2020] eKLR (Githua J)

7. On his part, the respondent submits that the award under the Law Reform Act and Fatal Accident Act is not excessive, for there is no legal requirement that the award under the Law Reform Act ought to be deducted from the award under Fatal Accident Act. He cites Guyo Jillo & Another v Lilian Kanyua [2019] eKLR (Chitembwe J) and Stanwel Holdings Limited & another v Rachael Haluku Emanuel &another[2020] eKLR (Nyakundi J) to support proposition. On the multiplier of 32, he submits that there are different approaches. One awarding under various heads, while the other is the global award. He cites Beatrice Wangui Thairi v Ezekiel Barngetuny & another Nairobi HCCC No 1638 of 1988 (Ringera J) (unreported), Charles Ouma & another v Bernard Odhiambo Ogeche [2014] eKLR (Sitati J) and Board Of Governorsof Kangubiri Girls High School & another v Jane Wanjiku Murithi & another [2014] eKLR (Visram, Koome & Otieno, JJA).

8. From the oral submissions, it emerges that the contest is around the multiplier, the multiplicand, the ratio of dependency and loss of expectation of life. On multiplier, the standard approach is to rely on the official age of retirement, which is now 60 years old. However, as stated in John Muchiri Njoroge & another v Prisca Mmbone & another [2019] eKLR (Kamau J) and Petrocity Enterprizes (U) Ltd v Roseline Sikudi suing as legal representative of the estate of Pascal Ngadi (deceased) & 2 others [2017] eKLR (Korir J), vagaries and vicissitudes of life are brought to bear, reducing the age of retirement. The standard multiplier for a 28-year-old would be a figure in the range of 15 to 20 years. I would settle for 20 years. The multiplicand depends on what the deceased was earning. Where there is uncertainty about it, the court relies on the minimum wage, as set out in the relevant regulations or legislation. Both sides are agreed on this. The regulations for 2018 would apply, and the applicable figure ought to be kshs 8,366. 65, for a cook/waiter working away from a municipality or twon council. On the dependency ratio, I rule that the deceased was not the sole breadwinner for the family, and both she and the respondent jointly provided for their family, and, therefore, going by In the Estate of Joshua Mulinge Itumo (suing for and on behalf of the Estate of Damaris Nduku Musyimi (Deceased) v Bash Hauliers Limited & another [2021] eKLR (Odunga J), only 1/3 of the earnings went to support the family. On the loss of expectation of life, the conventional award is kshs 100,000. 00. I have seen the authority that the trial court relied on to award kshs 150,000. 00 under this head, Franco Mwirigi v Patrick Musyoki Munyoki & Duncan Mbole Munyoki (suing on behalf of the estate of Maurice Wambua (Deceased)[2018] eKLR Korir J), and note that no reasons were assigned in that case for upholding the award of kshs 150,000. 00 by the trial court.

9. In view of everything, I shall allow the appeal on the following terms:a)The multiplier is reduced to 20 years;b)The multiplicand is reduced to kshs 8, 366. 35;c)The dependency ratio is reduced to 1/3;d)The loss of expectation of life is reduced to kshs100,000. 00e)The loss of dependency works out as follows: 20 x 8366. 35 x 1/3 x 12 = kshs 1, 003, 962. 00.

10. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7th DAY OF October 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Bii, instructed by the Kimondo Gachoka & Company, Advocates for the appellant.Mr. Mukisu, instructed by Mukisu & Company, Advocates for the respondents.