[2023] KEHC 23400 (KLR)

Oduma & another v Ramoya & another (Civil Appeal E005 of 2023) [2023] KEHC 23400 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23400 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal E005 of 2023

WM Musyoka, J

October 13, 2023

Between

Wilberforce Alista Oduma

1st Appellant

Mary Pamela Odawo

2nd Appellant

and

Ainea Ramoya

1st Respondent

Nemis Masiko Mogere

2nd Respondent

(An appeal arising from the judgment of Hon. Lucy Ambasi, Chief Magistrate, CM, delivered on 31st August 2022, in Busia SRMCCC No. E203 of 2021)

Judgment

1. The suit at the primary court was initiated by the respondents against the appellants, for compensation, on account of damages arising from a road traffic accident, where they prayed for general damages, special damages, and costs. The respondents are the administrators of the estate of the deceased, who was a lawful passenger in motor vehicle registration mark and number KBT 216S, owned and controlled by the appellants, when the same had an accident along the Nakuru-Eldoret highway, after colliding with motor vehicle registration mark and number KBT 385N, causing his death. The appellants filed a defence, in which they denied liability. They averred, in the alternative, that the accident was solely caused or substantially contributed to by the negligence of the driver of motor vehicle KBT 385N.

2. A trial was conducted. The respondents testified. The 1st appellant testified, and called a witness, who challenged evidence on the pay slip placed on record by the respondents. A judgment was delivered on 31st August 2022. Liability was assessed at 100%. A total of Kshs. 18,160,000. 00, being Kshs. 10,000. 00 for pain and suffering, Kshs. 100,000. 00 for loss of expectation of life, Kshs. 18,000,000. 00, for loss of dependency, and Kshs. 50,000. 00 special damages, was awarded.

3. The appellants were aggrieved, hence the instant appeal. In the memorandum of appeal, dated 20th February 2023, they aver that the damages awarded were excessive; the general damages were contrary to the evidence tendered; the loss of dependency was founded on a forged pay slip; wrong principles were used to assess loss of dependency; and their submissions were not considered.

4. No directions were ever given, for disposal of the appeal by way of written submissions. Both sides, nevertheless, filed written submissions. The appellants urge me to revisit the judgment of the trial court with respect to loss of dependency, general damages, and special damages. They have cited several judicial authorities to support their contentions. The respondents urge that the awards by the trial court be upheld.

5. The main contention is around the award for loss of dependency. Firstly, on the basis that the trial court relied on a forged pay slip; secondly, the multiplicand and multiplier used were wrong; thirdly, the dependency ratio was also wrong; and fourthly, there was no proof of the dependency.

6. I will begin with the matter of the pay slip. The respondents produced a pay slip which showed that the deceased earned Kshs. 75,443. 60. A copy of that pay slip was attached to the list of documents that were filed with the plaint. The said monthly income was not specifically pleaded in the plaint. The defence made a general denial of the averments in the plaint, but there was no specific traverse relating to the specific earnings pleaded in the plaint. When the respondents testified, they were not cross-examined on the said earnings. It was only at the defence hearing, that the appellants introduced a witness, DW2, who claimed to be an investigator, who presented a report alleging that the pay slip relied on by the respondents was forged, and the genuine pay slip established a monthly pay of Kshs. 35, 000. 00, inclusive of house allowance.

7. Did the trial court have evidence before it that the pay slip relied on by the respondents was forged? I do not think so. The genuineness of that pay slip, which was disclosed at the inception of the suit, was not made an issue in the statement of defence. It was not made an issue at trial, when the respondents testified. Indeed, they were not cross-examined on its genuineness, and the appellant did not object to its production as an exhibit. It only became an issue when the defence case opened. There was an element of ambush in the manner the evidence of DW2, the alleged investigator was presented. The respondents had no opportunity to counter that evidence, as there was no advance notice, as at the time the respondents case closed, that such evidence would be adduced. There was no prior disclosure of that evidence before the matter went to trial.

8. Secondly, and more fundamentally, the appellants did not provide any proof that the pay slip presented by the respondents was forged, and that the one presented by themselves was the genuine one. The authenticity or genuineness of both documents could only come from the alleged makers of the pay slips, the employer of the deceased. When the respondents testified, and produced the alleged forged pay slip, the appellants did not object, and insist on the maker of that pay slip being called, they acquiesced to its production, and they cannot now turn around and submit that it was forged. The appellants did not even produce the so-called genuine pay slip, for what was placed on record was a report, with a copy of the alleged genuine pay slip crudely embedded somewhere in the body of the report, not as an attachment or annexure or appendix. If they really desired to demonstrate that the pay slip produced by the respondents was false, nothing would have been easier than to compel attendance by a witness from the deceased’s employers on that point. The trial court did not err in concluding that the said pay slip was not false, and in relying on it.

9. The second aspect to it is on the multiplicand. The appellants view is that the court used the figures in the alleged forged pay slip to identify the multiplicand. I have already held that there was no proof that that pay slip was false. It was properly relied on. It was the best evidence available, as between what the respondents presented and what the appellants availed. The trial court was justified to work with the figure of Kshs. 75,443. 60, which was the deceased’s net pay as per the pay slip proved in evidence.

10. On the multiplier adopted of 30, the deceased was said to have been aged 31 years, as at the time of his death. The official retirement age for civil servants in Kenya is 60 years. Generally, that is taken to be the age of retirement even in the private sector, with room, depending on performance, for some employees in the private sector, to go on up to 65 and even 70. So, for the 31-year-old, it would be expected that he would go on working until 60, which meant that he had 29 years to go. When the uncertainties and vicissitudes of life are taken into account, that period is often reduced. See John Muchiri Njoroge & another vs. Prisca Mmbone & another [2019] eKLR (Kamau, J) and Petrocity Enterprizes (U) Ltd vs. Roseline Sikudi suing as legal representative of the estate of Pascal Ngadi (deceased) & 2 others [2017] eKLR (Korir, J). For a deceased person in the age bracket of 30 to 40, the multiplier would range between 15 and 25. I believe a multiplier of 30 was on the higher side, and that of 20 would have been more reasonable. See John Jembe Mumba vs. Seif Mbaruku t/a Takrim Bus & another Mombasa HCCC No. 523 of 2001 (Khaminwa J), Alexander Okinda Anangwe vs. Reuben Muriuki Kahuha & others [2015] eKLR (Ougo J), Samuel Mwangi Wachira & Another vs. Rahab Wanjiru Macharia & Another [2015] eKLR (Sergon J) and Jacob Ayiya Maruja & Another vs. Simon Oboyo & another [2005] eKLR (Omolo, Tunoi & Githinji JJA).

11. On the dependency ratio, the trial court worked with 2/3. It reflects the amount of the deceased’s income that would ordinarily be spent on his dependents. Where he has no dependent, the ratio would usually be 1/3, as much of his income would be spent on himself, a little on others, whereas where he has a spouse or children, he would be expected to spent more on his family. A man has legal obligations to maintain and support his spouse and or children, and even parents. The appellants concede that he had children, even though they dispute the dependency of the 1st respondent, and express doubts about the marital status of the 2nd respondent. To the extent that the deceased was survived by children, there would be justification for the ratio or 2/3, whether the respondents herein are considered to be dependents or not. There was no dispute that the 1st respondent was the father of the deceased. It was his word that the 2nd respondent was a spouse of the deceased, the father of her children. With that sort of evidence, the trial court needed nothing else to be satisfied that she was indeed such a spouse. Wives and minor children need not prove dependency on their husbands and fathers, for men, as stated above, have a legal and statutory obligation to provide for their wives and children. For parents, there would be need for proof of dependency, for children are not obliged by the law to provide and support their parents, except where they are old, sickly and indigent, and the existence of those conditions need some proof. Some evidence of the dependency of the 1st respondent should have been adduced.

12. The argument about general damages eludes me, for the trial court did not award general damages as a head, but awarded damages for pain and suffering, loss of expectation of life and loss of dependency, all of which fall under general damages. Whereas the appellants submitted on the way the court handled loss of dependency, they were silent on pain and suffering, and loss of expectation of life. I suppose that they had no concerns regarding those 2, and I shall not expend my energies on them.

13. The appellants raise the issue of special damages in their written submissions. However, the grounds of appeal, in the memorandum of appeal, do not have anything to do with special damages. A party is bound by its pleadings, and it can urge its appeal only on the grounds set out in its pleadings. The appellants are bound by the grounds set out in their memorandum of appeal. So, I shall not expend my energies addressing their submissions on special damages.

14. In view of everything, I shall allow the appeal to the limited extent of tinkering with the multiplier of 30, by reducing it to 20. That then shall mean that the loss of dependency shall work out as follows: 20 x 75,443. 60 x 2/3 x12 = Kshs. 12,070,976. 00. The total works out to 12,070,976. 00 +10,000. 00 + 100,000. 00 + 50,000. 00 = Kshs. 12,230,976. 00. Each party to bear its own costs. The appeal is disposed of in those terms. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 13THDAY OF OCTOBER 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Chumba, instructed by the Kitiwa & Company, Advocates for the appellants.Mr. Gabriel Fwaya, Advocate for the respondents.