[2022] KEHC 16154 (KLR)

Ongaya & another (Suing as the Legal Representatives of the Estate of Thomas Oluchiri Omukweso) v Ndaiga & another (Civil Appeal 417 of 2019) [2022] KEHC 16154 (KLR) (Civ) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16154 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 417 of 2019

JK Sergon, J

December 9, 2022

Between

Thomas Nziu Ongaya

1st Appellant

Ideon Malenya

2nd Appellant

Suing as the Legal Representatives of the Estate of Thomas Oluchiri Omukweso

and

Nicholas Alex Ndaiga

1st Respondent

Buhler Limited

2nd Respondent

(Being an appeal against the judgment of the Chief Magistrate’s court in NAIROBI CMCC NO.5771 OF 2018 delivered on 12/07/2019 by Hon. Obura CM)

Judgment

1. At the onset, the appellants herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 15th June, 2018 pursuant to a road accident on 11th September 2017 along Jogoo Road and sought for reliefs against the respondents in the nature of general and special damages plus costs of the suit and interest thereon..

2. The appellants pleaded in their plaint that the deceased was a lawful pedestrian crossing the road at Church Army stage on or about September 11, 2017 when the 1st respondent, operating motor vehicle KBW 726Y on his own initiative as a representative of the 2nd defendant, so carelessly drove, controlled, or maneuvered the said motor vehicle as a result of which it ran over the deceased, causing severe injuries to which he later succumbed.

3. The appellants further pleaded in their plaint that the said accident was caused by the negligence of the 1st respondent which he is directly liable and for which the 2nd respondent is vicariously liable.

4. It was also pleaded by the appellants that the deceased was 45 years old at the time, in good health, and earning Kshs.30,000/= each month to support his estate and dependants. As a result of the injuries he got, his estate and dependants suffered loss and damage.

5. The respondents filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the appellants in the sum of Kshs.1,531,905/=.

6. The appellants being aggrieved preferred this appeal and put forward the following grounds:i.That the learned trial magistrate grossly misdirected herself in treating the evidence and submissions by the plaintiffs/appellants superficially and consequently arrived at a wrong conclusion.ii.That the learned erred in law and in fact by taking into account an irrelevant factor as the multiplicand in her computation of the award under the Loss of dependency thus making an erroneous award on quantum.iii.That the learned erred in law and in fact by disregarding the evidence on record and adopting a very low multiplicand without any basis.iv.That the learned erred in law and in fact by adopting a very low multiplier all factors considered and thus arrived at an erroneous award on quantum.v.That the learned erred in law and in fact by disregarding the evidence on record and failing to make an award for reasonable funeral expenses.vi.That the learned erred in law and in fact by disregarding and failing to appreciate the evidence on record, thus failing to arrive at her decision on quantum in a judicious manner.

7. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

8. The appellants vide their submissions dated 12th June, 2022 submitted that the appeal is solely on the issue of quantum and can be condensed into the following 3 grounds:i.The learned trial magistrate erred in law and in fact by disregarding the evidence on record and adopting a very low multiplicand without any basis.ii.The learned trial magistrate erred in law and in fact by adopting a very low multiplier, all factors considered and thus arrived at an erroneous award on quantum.iii.The learned trial magistrate erred in law and in fact by disregarding the evidence on record and failing to make an award for reasonable funeral expenses.

9. The appellants contend that they had instructions to abandon grounds 2 & 3 above and focus on the first ground alone being multiplicand that was adopted by the trial court. On this the appellant relied on the case of Andy Forwarders Services Ltd & 2 Others v Godfrey Githiri Njenga(2018) eKLR reiterated the principles to be taken into account by an appellate court in determining whether it is justified in disturbing the quantum of damages awarded by a trial judge as follows:“In considering this ground, the court takes guidance from the case of Kemfro Africa Ltd T/A Meru Express Services V Am Lubia & Another[1987] KLR 27 cited by the respondent in his submissions, wherein the court wisely reasoned as follows:““the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge...it must be satisfied either that the judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages.”It is worthwhile to appreciate that an award of damages is purely a matter of the court’s discretion. However, the court should not make an award that is unreasonably low or high. The case of Butt v Khan (1977) 1 KAR contextualizes this principle hereunder:““An Appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

10. The appellants submitted that in computing for loss of dependency, the trial court adopted the contents of a handwritten letter dated 17th October 2017 from Kabansora Millers Holdings Limited which showed the deceased earned a daily wage of between Kshs.622 –Kshs.1000/= depending on the work done but surprisingly the trial court made findings that the deceased may have not worked all days, assessed the deceased average wages for 21 days at Kshs.500/= per day which translated to Kshs.10,500/= .

11. It is the appellants submissions that there was no evidence to the effect that the deceased only worked for 21 days in a month and that under the Employment Act at Section 27 (2) provides that an employee shall be entitled to one rest day in every period of seven days therefore the court should have deducted not more than four days from the 30 days and therefore they should have found that the deceased worked for 26 days in a month.

12. The appellants relied on the case Joseph Mwangi Wanyeki v Alex Muriithi Mucoki & Anor(2019) eKLR where Justice Nyakundi held as follows:“In my view, the meaning given to the words income or revenue received during the lifetime of a deceased person should not be subjected to a restrictive interpretation, so as to arrive at an erroneous high or low award of damages. Harold Luntz in his book on the assessment of damages on personal injury and death observed that “there need not been a contractual right to receive payment as long as there was reasonable chance that the claimant would have earned the money, thus a waiter may claim tips, he would have received.”

13. The appellants therefore urged the court to set aside the finding of the trial court on the award of loss of dependency and find that the deceased was earning a sum of Kshs.811 for 26 days in a month thus a monthly income of Kshs.21,086/= and the award for loss of dependency therefore ought to be as followsKshs.21,086x12x13x2/3=2,192,944/=

14. It is the appellants’ submission that the award for Loss of dependency ought to have been Kshs.2, 192,944 and therefore urge the court to award the same.

15. In retort, the respondents submitted that in the absence of proof of earning, the court normally adopts the minimum statutory wage prevailing at the time as the multiplicand and that the one that was applicable at the time was provided in the Regulation of Wages (General) (Amendment) Order, 2011; Kenya Gazette Supplement No.48, Legal Notice No.64 dated 10th June 2011 where the basic minimum wage for a general labourer was set at Kshs.7,586/= per month.

16. The respondents relied on the case of Rachael Wambui Nganga & Another v Rahab Wairimu Kamau (2020) eKLR“if the income of the deceased/injured person is not proved, then the court may base the earnings of such a person on the applicable minimum wage…… Based on the foregoing, I find that the trial court did not err in reverting to the applicable minimum wage in the absence of proof of earnings of the respondent in the circumstances and I accordingly uphold the award.”

17. The respondents submitted that the courts arrival of 13 years as multiplier and dependency of 2/3 has not been challenged by the appellants, so they urge the court to uphold the same.

18. The respondents further submitted that the award under this head should be worked out as follows:Kshs.7,589x13x12x2/3=Kshs.788,944/=

19. The respondents therefore urge the court to revise the award for loss of dependency to Kshs.788,944/=

20. Accordingly, the first Appellate Court should re-evaluate the evidence and make its own conclusions albeit it must bear in mind that it did not have the opportunity of seeing or hearing the witnesses first hand. See the case of Selle & Anor v Associate Motor Boat Co. Ltd 1968 EA 123.

21. The Court of Appeal inCatholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, in appreciating that the assessment of damages is a discretion of the trial court held that:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

22. No challenge was made on the award of the Ksh.150,000/= for loss of expectation of life and pain and suffering at Ksh.100,000/= for the death which it was conceded occurred shortly after the accident as well as special damages at Kshs.38,000/=. I uphold these awards.

23. With this in mind, I have analyzed the evidence as this court is obliged to do so as to draw my own inferences and conclusions on the matter. I will consequently put my mind to the only issue for determination by this court in my view is whether the trial court acted on wrong principles of law in making the award of Kshs.1,092,000. 00/= for loss of dependency.

24. In dealing with an appeal on quantum I stand guided by the decision of the Court of Appeal in Bashir Ahmed Butt V Uwais Ahmed Khan[1982-88] KAR 5 where the court held that;“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

25. The appellants in faulting the trial court on the award of Kshs.1,092,000/= for loss of dependency, contend that a multiplicand of Kshs.10,500/= was erroneous as the evidence adduced in court was to the effect that the deceased used to earn a daily wage of between Kshs.622 –Kshs.1000/= and that the average median for the two figures is Kshs.811 and that it is the figure that the court should have taken into account in determining the daily deceased daily wage.

26. 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). That is what the trial court evidently did in the judgement for which I find no error.

27. In the case ofFrancis Righa v Mary Njeri (Suing as the Legal Representative of the estate of James Kariuki Nganga (2021) eKLR, the court of Appeal had this to say on the choice of multiplier and multiplicand to be adopted in assessing damages for loss of dependency;‘‘…on the choice of a multiplier and multiplicand, we take it from the decision of the court in the case of Roger Dainty versus Mwinyi Omar Haji & Another2004 that to ascertain a reasonable multiplier in each case, the court should consider relevant factors like the income of the deceased, the kind of work he was engaged in before his death, the prospects of promotion and his expectations of working life.’’

28. I find that the trial court properly took into consideration the age, good health and physical wellness of the deceased in adopting the multiplier, multiplicand and dependency ration before computing and awarding the sum of Kshs.1,092,000/= for loss of dependency.

29. Further to that the respondents herein had satisfied the decretal sum, being Kshs.1,531,905/= and that the parties had executed a consent marking the primary suit as fully settled ,which was not objected to and also is a clear indication that the appellants are satisfied with the same.

30. In the case of KCB Limited v Specialized Engineering Co. Ltd {1982} KLR the court held:“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or in misapprehension or ignorance of suit facts in general for a reason which would enable the court to set aside an agreement.”

31. The upshot and conclusion from the foregoing analysis and findings is that the appeal is devoid of merit and it is dismissed with costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………for the Appellants……………………………for the 1st Respondent……………………………for the 2nd Respondent