[2023] KEHC 25736 (KLR)

Okoyo (suing as Legal Administrator of the Estate of Gregory Ouma Okoyo – Deceased) v Nyamongo (Civil Appeal E057 of 2021) [2023] KEHC 25736 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25736 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E057 of 2021

RE Aburili, J

November 20, 2023

Between

Esther Achieng Okoyo (suing as legal Administrator of the Estate of Gregory Ouma Okoyo – Deceased)

Appellant

and

Cleophas Nyamongo

Respondent

(An appeal arising out of the Judgement and Decree of the Honourable S.N. Telewa in the Chief Magistrate’s Court at Kisumu delivered on the 28th April 2021 in Kisumu CMCC No. 263 of 2020)

Judgment

Introduction 1. The appellant herein Esther Achieng Okoyo sued the respondent vide a plaint dated 7. 7.2020 seeking general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs and interests of the suit for fatal injuries sustained by Gregory Ouma Okoyo following a road traffic accident that occurred on the 8th November 2019 along the Ahero – Kisumu road.

2. In its judgement delivered on the 28. 4.2021, the trial court found in favour of the appellant and awarded her a total of Kshs. 1,887,085 general damages.

3. Aggrieved by the trial court’s adoption of Kshs. 9,000 as the minimum wage in its calculation under the Fatal Accident’s Act, the appellant filed the instant appeal vide the Memorandum of Appeal dated 25th May 2021 and filed on the 27th May 2021. The appellant raised the following grounds of appeal:a)That the learned magistrate erred in law when in the circumstance of the appeal as was before her, she awarded Kshs. 1,800,000 on quantum of damages for loss of dependency, which amount is inordinately low, without considering the evidence that was presented by the appellant during trial.b)The learned magistrate erred in law, when she completely ignored the evidence presented by the appellant particularly on the deceased income and instead opted to adopt a minimum wage of Kshs. 9,000 without any basis hence leading to a wrong decision.c)The learned magistrate erred in law when in her judgement she found that the deceased was working and held that the appellant did not prove the earnings of the deceased by way of evidence.d)The learned magistrate erred in law when she misapprehended the proceedings before her and decided the case based on no evidence at all but purely on conjecture and speculation and ignored empirical evidence of the loss and damages that was suffered by the appellant.e)The learned magistrate erred in failing to hold that the deceased was working and rely on the documentation presented and apply the correct minimum wage.f)The learned magistrate erred in dismissing the claim for loss of earnings without any basis.g)The learned magistrate erred in awarding Kshs. 170,100 instead of what was proved by way of evidence.

4. The parties filed submissions to canvass the appeal.

The Appellants’ Submissions 5. The appellant through her counsel submitted that she led evidence that the deceased was a trained as a tile installer/settler who earned Kshs. 28,800 per month and as such, the trial court misdirected itself in relying on the minimum wage of Kshs. 9,000 in calculating the quantum of damages.

6. The appellant relied on the case of Alex Koech & Another v Nelson M. Mulama (suing as the legal representative of the estate of Kevin Kinyanjui, Deceased) [2018] eKLR where the Court of Appeal applied earnings of Kshs. 20,000 for a vegetable vendor who had no documents to support his earnings which was never controverted during the trial. Reliance was also placed on the case of Martin Maitima M’Amathi v Simon Njoroge Njuguna & Another (suing as the legal representative and administrator of the estate of Francis Njuguna Njoroge, Deceased) [2018] eKLR where the Court of Appeal found that the uncontroverted evidence submitted in the witness statement was sufficient and applied a multiplicand of Kshs. 20,000 without any document being produced in support of earnings.

7. The appellant’s counsel further submitted that the court applied Kshs. 9,000 as minimum wage which was not the applicable minimum wage in 2019 especially as the deceased’s skills were defined as per the documents produced and that being a tile settler, the deceased was classified as ungraded artisan who at the time of the accident was eligible for the minimum wage of Kshs. 18,319. 50 for Kisumu, Nairobi and Mombasa and Kshs. 16,907 for other former municipalities as per the Notice dated 19th December 2018.

8. The appellant’s counsel submitted that the deceased worked in many towns and was not stationed in only one region and accordingly, a minimum wage of Kshs. 18,319. 50 ought to be applied.

9. On special damages, it was submitted that the appellant had pleaded Kshs. 535,000 but the court only awarded Kshs. 171,100 despite the fact that the receipts were produced in proof of the same.

The Respondent’s Submissions 10. The respondent’s Counsel submitted that the trial magistrate did not misapprehend the law when she adopted the government minimum wage of Kshs. 9,000 and that despite proving the deceased’s source of income, the appellant did not produce the deceased’s payslip so as to prove what income he earned, a multiplier of 25 years and a multiplicand of 2/3. The respondent relied on the case of Ben Kiptemego v Jospeh Karanja [2009] eKLR where the court declined to interfere with the trial magistrate’s award of damages in a case where the court stated that it would have made a lower award.

11. The respondent’s counsel also relied on the case of Siyaram Enterprises & Another v Samuel Nyachani Nyachani [2015] eKLR where the plaintiff did not adduce evidence of earnings and the High Court upheld the decision of the lower court to adopt a monthly salary of Kshs. 9,000 and took that amount to be the minimum government wage.

12. Reliance was also placed on the case of Oyugi Judith & Another v Fredrick Odhiambo Ongong & 3 Others [2014] eKLR where Majanja J. held that where a person is employed and salary was not determined, his or her wage may be determined by reference to the government wage guidelines issued from time to time.

13. The respondent’s counsel submitted that the trial court properly rendered itself when it used the minimum wage to make an award under loss of dependency to arrive at an incontrovertible income assessment and thus the instant appeal ought to be dismissed with costs.

Analysis and Determination 14. I have considered the grounds of appeal and the submissions filed. I have also perused the impugned judgment and evidence adduced before the trial court in support of the plaint. This being a first appellate court, the role of this court is provided for under section 78 of the Civil Procedure Act and as interpreted in many judicial pronouncements among them, the case of Kenya Ports Authority v Kushton (K) Ltd (2009) 2 EA, 212 where the Court of Appeal stated, inter alia that:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusion through it should always bear in mind that it has neither heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

15. Assessment of damages is in the discretion of the trial court. therefore, on whether the first appellate court can interfere with the discretion exercised by the trial court, in the case of Mbogo v Shah [1968] EA page 93 De Lestang VP (as he then was) observed at page 94 that:“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

16. However, in Peters v Sunday Post Ltd [1958] EA 424, the Court held that:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”

17. This appeal is against the application by the trial court of Kshs. 9,000 as the deceased’s minimum wage in calculating the quantum of damages under the Fatal Accidents Act. This court’s role, therefore, is to interrogate whether the material placed before the trial court was sufficient to prove the earnings of the deceased.

18. In Philip Mutua v Veronicah Mule Mutiso [2013] eKLR it was held that where income is not proved, the income of an unskilled worker ought to apply.

19. In this case, I observe that there is uncontroverted evidence on record that the deceased was a professional tile installer/settler as described by a letter from Ingraput Building & Construction. there was no contrary evidence. This letter was sufficient in the circumstances to prove the skill of the deceased and therefore it would be wrong to describe him as an unskilled worker. For the above reason, I find that the deceased was not an unskilled worker for the Minimum wage to apply.

20. The appellant adduced evidence before the trial court, by way of a recommendation letter, showing that the deceased was a skilled labourer initially employed by Ingraput Building & Construction as a tile settler and steel fixer earning Kshs. 36,000 per month as at February 2019. The appellant further produced a letter signed by one Walter Ayodo Gowi, his colleague, showing that the deceased was earning Kshs. 7,200 per week that would amount to Kshs. 28,800 in a month, for a contractual work he was engaged in. No pay slips were produced by the appellant as prove of his monthly earnings.However, there was no contrary evidence that he earned kshs 7200 per week hence kshs 28,800 per month..

21. The Court of Appeal in Jacob Ayiga Maruja & Another v Simeone Obayo [2005] eKLR observed that -“We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earning 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."

22. In Oyugi Judith & Another vs. Fredrick Odhiambo Ongong & 3 Others [2014] eKLR that“Where a person is employed and the salary is not determined, his or her income may be determined by reference to the government wage guidelines issued from time to time.”

23. The documentary evidence supporting the deceased employment was the letter from the Ingraput Building & Construction stating that the deceased was a tile settler and steel fixer earning Kshs. 36,000 per month as at February 2019. The deceased’s bank account records could easily have been obtained to show these earnings. These were not availed.

24. The Labour Institutions Act No 12 of 2007 applies minimum wages to workers of various categories where no other terms of employment are evident. It provides at Section 48(1) as follows:“(1)Notwithstanding anything contained in this Act or any other written law—(a)the minimum rates of remuneration or conditions of employment established in a wages order constitute a term of employment of any employee to whom the wages order applies and may not be varied by agreement.”

25. The accident occurred on 8th November 2019 hence the applicable Wage Order is the Legal Notice 2 of 2019, The Regulation of Wages (General) (Amendment) Order, 2018 that provided for a minimum wage of Kshs. 18,319. 50 for an ungraded artisan, which the deceased was as per the certificate of achievement showing that between March 2006 and March 20028, the deceased successfully completed the training course in tiles installation and tile settler.

26. Accordingly, I find that the trial court used the wrong minimum wage in calculating quantum of damages. The correct calculation would be as follows:

27. 18,319. 50 x 2/3 x 12 x 25 = 3,663,900

28. As regards special damages, it is trite that special damages must not only be specifically pleaded but must be strictly proved. See the Court of Appeal in Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR.

29. The appellant submitted that she had pleaded Kshs. 535,000 but the court only awarded Kshs. 171,100 despite the fact that the receipts were produced in proof of the same. I have perused the receipts produced by the appellant herein and I find no fault in the special damages awarded as they total to the amount in the receipts attached.

30. The upshot of the above is that this appeal succeeds to the extent that the Judgement and Decree of the Honourable S.N. Telewa in the Chief Magistrate’s Court at Kisumu delivered on the 28th April 2021 in Kisumu CMCC No. 263 of 2020 on quantum of damages under the Fatal Accidents Act is hereby set aside and substituted with the following judgment and award:Pain & Suffering - 50,000

Loss of life expectation - 200,000

Special Damages - 170,100

Under Fatal Accidents Act - 3,663,900

Sub-Total - 4,084,000

Less 15% - agreed - 612,600

Net Total - 3,471,400

31. The appellant shall have costs of the suit in the lower court and interest on special damages from date of filing suit until payment in full. Interest on general damages as awarded herein shall be calculated from the date of judgment in the lower court until payment in full.

32. I have deducted 15% contribution on general damages and not on special damages for the reason that contribution does not apply to special damages. The following decisions guide courts in making such a decision:i.the case of Hashim Mohammed Said & another vs. Lawrence Kibor Tuwei [2018] the court held:-“The special damages in my mind should not be subjected to the apportionment."ii.in the case of A.O Bayusuf &Sons Limited vs. Samuel Njoroge Kamau [2008] eKLR the court held that special damages ought not be subjected to a reduction based on the apportionment of liability.iii.Mara Tea Factory Limited v Joshua Makworo Onkoba [2021] eKLR“On the award of special damages, the appellant faulted the trial magistrate for failing to subject special damages to the apportionment of liability. The award of special damages does not need to be subjected to apportionment of liability.I agree with the holding of the court in Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment."iv.See also Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR.

33. On costs of this appeal, I observe that the appellant’s costs in the lower court are considerably increased by the increased award hereto and that the appeal was only against quantum of damages on only one aspect of the claim under the Fatal Accidents Act.

34. Accordingly, I find that in the interest of justice, each party shall bear their own costs of this appeal.

35. The lower court file and copy of this Judgment to be returned to the lower court and served on the trial magistrate forthwith.

36. File Closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE