[2021] KEHC 9632 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(APPELLATE SIDE)

(Coram: Odunga, J)

CIVIL APPEAL NO. 42 OF 2018

DAVID GITAU

JOSEPH KIVATI WAMBUA............................................................APPELLANTS

VERSUS

SMM & IKM

(Suing as the Legal Representatives of the

Estate ofEMM-DECEASED)........................................................RESPONDENTS

(Being an Appeal from the Judgment delivered by the Honourable A G Kibiru Chief Magistrate in Machakos CMCC No. 482 of 2015)

BETWEEN

1. SMM

2. IKM

(Suing as the Legal Representative of the

Estate of EMM (Deceased) Minor.................................................PLAINTIFFS

VERSUS

DAVID GITAU........................................................................1ST DEFENDANT

JOSEPH KAVATI WAMBUA...............................................2ND DEFENDANT

JUDGEMENT

1. The subject of this appeal is Machakos CMCC No. 482 of 2017, a suit instituted by the Respondents herein against the Appellant for damages arising from a road traffic accident which occurred on 3rd January, 2017.

2. On 7th March, 2018, a consent judgement was entered in this matter in which liability was entered for the Respondents against the Appellant at the ratio of 80:20 and the parties agreed that the plaintiff’s claim supporting documents be admitted as evidence without calling the makers and that the same be attached to the plaintiff’s submissions on the quantum. After recording the said consent, the court proceeded to give a date for judgement and on 11th April, 2018, the court awarded the Respondents a total of Kshs 765,760/- tabulated as follows:-

a) Pain and Suffering - Kshs. 120,000. 00

b) Loss of Expectation of Life - Kshs. 100,000. 00

c) Loss of Dependency - Kshs. 700,000. 00

d) Special Damages - Kshs. 42,200. 00

TOTAL - Kshs. 962,200. 00

Less 20% negligence - Kshs. 196,440. 00

Net Amount Awarded - Kshs. 765,760. 00

3. Guided by the decision of the Court of Appeal in Abok James odera t/a A. J. Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR, it was submitted that this Court is duty bound to reconsider, evaluate the evidence and draw its own conclusions whether or not the Appellants Appeal is well founded in fact and law.

4. In this case it was submitted that the trial court disregarded the Appellants evidence, the Appellants submissions before it and the several binding precedents as cited before him.

5. It was submitted that from the evidence adduced specifically the Certificate of Death and the eye-witness statement, the deceased died on the same day of the accident and in comparison with other binding precedents whereby the deceased died the same date of the accident, the trial Court’s award of Kshs. 120,000. 00 was quite exorbitant. The Appellants had submitted on an award of Kshs. 10,000. 00 and cited the case of Michimikuru Tea Factory vs. Charles Lautani (2013) eKLR whereby the Court awarded a sum of Kshs. 10,000. 00 under this heading in respect of a deceased who died on the same day of the accident. Similarly, in the persuading decision of Kimunya Abednego vs. Zipporah Musyoka & Another, Makueni HCCA 173 of 2017 (2019) eKLR, the learned Judge awarded the Plaintiff’s Kshs. 20,000. 00 for a deceased who died on the same day as the date of the accident and we thus pray that the award of Kshs. Be reduced to the more reasonable award of Kshs. 10,000. 00.

6. As regards the award for loss of Expectation of Life, it was submitted that the Appellants proposed the sum of Kshs. 60,000. 00 reliably citing the case of P. I. vs. Zena Roses Ltd & another, Eld HCCA No. 126 of 2009 whereby the Honourable Court awarded Kshs. 80,000. 00 for a deceased aged six years. It was submitted that the deceased herein was 2 years and 8 months as at the time of death, was too young to yet attend school and thus impossible to speculate the child’s future and therefore an award of Kshs. 60,000. 00 is reasonable.

7. As for loss of dependency, it was submitted that as regards minors, courts have mainly adopted a global figure to award under the Fatal Accident’s Act and such awards are mitigated by the age of the minor and the evidence adduced in court regarding the schooling and performance of the child in school which would call for certain expectations in the future. The Appellants had proposed a global award of Kshs. 150,000. 00 under this heading and relied on the case of Kenya Breweries Ltd vs. Saro, Msa HCCA No. 144 of 1990 and M. N vs. Paul Kiptoo ELD HCCA 75B of 2009where the Honourable Court awarded Kshs. 280,000. 00 as a global sum under the Fatal Accident Act for a deceased aged six (6) years.

8. In this case it was submitted that the deceased was too young to be attending school. The future of a minor is uncertain and it might be risky to assume what life he would have held into adulthood in the absence of any evidence calling for a forecast of the same. In light of the above, it was submitted that a global award of Kshs. 150,000. 00 under this head will suffice.

9. It was therefore sought that the lower court’s award be reduced to a much more reasonable award as proposed hereinabove and thereafter subjected to a deduction of the contributory negligence as per the Consent.

10. In opposing the appeal, it was submitted on behalf of the Respondents that on the issue of pain and suffering, the Respondent in his pleadings indicates that the accident took place at King’atuani Market,inKathiani and the deceased died at Shalom HospitalinMachakoswhile undergoing treatment. From the scene of the accident to the hospital, is a distance of over 30kms. The deceased must have been in excruciating pain while being taken to hospital, at the time of his treatment and finally at his death. It was submitted that an award of Kshs.200, 000/= was sufficient as the deceased must have undergone excruciating pain before he eventually died. The Respondent did quote two authorities to guide the court in making this award thus: -

1) Adan Abdi Noor (Deceased) –vs- Sigma Feeds

Nairobi – HCCC No. 47 of 2003 – Machakos where the Deceased died a few hours after the accident and was awarded Kshs. 150,000/=

2) Nelson N. Kioko & Others –vs- Mombasa Liners & Another Machakos – HCCC No. 211 of 2000 where the Deceased died on the same day of accident and was awarded Kshs. 100,000/=

11. In this case it was submitted that the sum of Kshs. 120,000/=, where the deceased’s death was not instant cannot be said to be excessive.

12. As for loss of expectation of life, it was submitted that the deceased herein died at a very tender age of 2 years 8 Months. He was very energetic and full of life. He would have grown to live out his life and must have had a very bright future ahead of him which was obviously lost as a result of the accident. While the Respondent proposed a sum of Kshs. 150,000/= and quoted two case laws in support of the said award, the trial court awarded a sum of Kshs. 100,000/= for loss of expectation of life. The Respondents relied on the case of Daniel Mwangi Kimemia & 2 Others –vs- J.G.M & Another, 2016, eLKR where the deceased was aged 4 years old and the court awarded Kshs. 100,000/=.

13. As regards the award for loss of dependency/Lost years, it was submitted that the deceased in this matter, although he had not attained the school going age, his parents had anticipated dependency on him. They had high hopes in him. All this was lost as a result of the accident. Every parent has expectations from their children. The Respondents relied on the case of Kenya Breweries Ltd vs. Saro (1991) Mombasa, where the appellate court opined that the parents of the deceased child, irrespective of the age, and irrespective of if there being no evidence of pecuniary contribution, they were entitled to an award under this heading. They also relied on the case of Daniel Mwangi Kimemia & 2 Others –vs- J.G.M. & Another,which relied on the same principle and awarded a sum of Kshs. 1,000,000/= under this head when deceased was aged 4 years. Though the Respondents proposed a sum of Kshs. 1,200,000/=, the court in its judgement awarded a sum of Kshs. 700,000/=.

14. It was submitted that the role of the Appellate court has been clearly established as it was stated in the case of John Wamae & 2 Others –vs- Jane Kituku Nziva & Anotherwhere the decision of the Court of Appeal in Bashir Ahmed Butt –vs- Uwais Ahmed Khan (1982 – 88) KAR 5.

15. In the Respondents’ view, the amount awarded as General damages has been tabulated, the law per the Fatal Accidents Act followed and a minimum amount reached as no compensation is enough to repay death. It has not been shown that the trial magistrate proceeded on the wrong principals or took into account irrelevant issues on arriving at his decision as he did. The trial Magistrate properly analysed the evidence before him and arrived at a reasoned judgment. This appeal, therefore lacks merit and ought to be dismissed with costs to the Respondent.

Determination

16. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123that:

“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

17. In this appeal, the Appellant is challenging quantum of damages.

18. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:

“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.”

19. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:

“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…”

20. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:

“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

21. The Appellant has taken issue with the award for pain and suffering on the ground that the evidence on record showed that the deceased passed away the same day and therefore the Respondents ought to have been awarded a lesser sum. In my view what determines the award under that head is how long the deceased took before he either passed away or lost consciousness. In the instant case, there was no cross-examination of the witnesses in order to bring out this evidence. A distinction ought to be made between a case where the deceased passes away instantly and where the death takes placed some times after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal. In this case the Appellant squandered the opportunity to bring out this aspect and there is no basis upon which I can fault the learned trial magistrate on his award for pain and suffering.

22. As for loss of expectation of life, the sum of Kshs 100,000. 00 based on authorities cannot be said to have been manifestly excessive in the circumstances even if this court, sitting as the trial court would have arrived at a different figure.

23. As for loss of dependency, the principles which ought to guide a court in awarding damages in fatal accident claims under the head of loss of dependency was dealt with by Ringera, J (as he then was) in Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989 where it was held that:

“The court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind that the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction that must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact that the award will be received in a lump sum and if otherwise invested, good returns can be expected.”

24. The same Judge in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), in which Ringera J. as he then was, held at page 248 that:

“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

25. In this case the deceased was aged 6 years. The principles which ought to guide a court in awarding damages for lost years were set out succinctly by the Court of Appeal in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others Civil Appeal No. 123 of 1983 [1986] KLR 457; [1982-1988] 1 KAR 946; [1986-1989] EA 137 as:

(1) Parents cannot insure the life of their children;

(2) The death of a victim of negligence does not increase or reduce the award for lost years;

(3). The sum to be awarded is never a conventional one but compensation for pecuniary loss;

(4) It must be assessed justly with moderation;

(5) Complaints of insurance companies at the awards should be ignored;

(6) Disregard remote inscrutable speculative claims;

(7) Deduct the victim’s living expenses during the “lost years” for that would not be part of the estate;

(8) A young child’s present or future earning would be nil;

(9) An adolescent’s would real, assessable and small;

(10) The amount would vary from case to case as it depends on the facts of each case including the victim’s station in life;

(11) Calculate the annual gross loss;

(12) Apply the multiplier (the estimate number of the lost years accepted as reasonable in each case;

(13) Deduct the victim’s probable living expenses of reasonably satisfying enjoyable life for him or her; and

(14) Living expenses reasonable costs of housing, heating, food, clothing, insurance, travelling, holiday, social and so forth.

26. That is my understanding of the holding of the Court of Appeal in Kenya Breweries Ltd vs. Saro [1991] KLR 408 that;

“…in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those in awardable in the case of a four year old one who has not been to school and whose abilities are not yet ascertained. That, we think, is a question of common sense rather than the law. But the issue of some damages being payable in both cases is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parent are proud of and are entitled to keep intact. It is an accepted fact of life in Kenya that even young children do help in the family, say by looking after cattle or caring for younger followers, and once the children become adults they are expected to and invariably take care of their aged parents.”

27. Githinji, J (as he then was) in William Juma vs. Kenya Breweries Ltd. Nairobi HCCC NO. 3514 of 1985 however appreciated that:

“In this country, the courts have taken into account the nature of our society and have correctly held that parents expect financial help from their children when they grow up. It is recognised that in our society children render useful services in the house or in the shamba, which relieves parents from financial expenditure on, say an employed worker. Those free services can be converted into money. The courts therefore have been awarding a lumpsum figure to compensate parents of young children for pecuniary loss they have suffered or expect to suffer.”

28. In DMM (Suing as the Administrator and Legal Representative of The Estate of LKM vs. Stephen Johana Njue & Another [2016] eKLR the court expressed itself as hereunder:

“In the circumstances, the sum of Kshs. 700,000/= was a product of, and was an erroneous estimate of damages. Taking all factors into account, a 16 year old in school and doing well would receive a compensation of between Kshs. 1,000,000/= to Kshs. 1,500,000/=. In my discretion, I find the sum of Kshs. 1,200,000/= to be adequate compensation for loss of dependency. Accordingly, I set aside the award of Kshs. 700,000/= awarded by the trial court for loss of dependency and in its place I award the sum of Kshs. 1,200,000/= for loss of dependency.”

29. I agree with Ringera, J in Marko Mwenda vs. Bernard Mugambi & Another Nairobi HCCC No. 2343 of 1993 that:

“In adopting a multiplier the Court has regard to such personal circumstances of both the deceased and the dependants as age, expectations of earning life, expected length of dependency and vicissitudes of life. The capital sum arrived at by applying the multiplicand to the multiplier is then discounted to allow for the fact of receipt in a lump sum at once rather than periodical payments throughout the expected period of dependency. The object of the entire exercise is to give the dependants such an award as would when wisely invested be able to compensate the dependants for the financial loss suffered as a result of the death of the deceased…The multiplier approach is just a method of assessing damages and not a principle of law or 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 ages of the dependants, the net income of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are unknown 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. Such sacrifice would have to be made if the multiplier approach was insisted upon in this case.”

30. It is therefore clear that in adopting the principles applicable to loss of dependency for the deceased who was aged 6 years old, instead of a lumpsum, the learned trial magistrate committed an error of principle. I associate myself with the decision of Mulwa Jin Simon Kibet Langat & Anor. vs. Miriam Wairimu Ngugi (Suing as the Administrator of the estate of Daniel Mwiruti Ngugi [2016] eKLR where she stated that:

“For young minors, it is not clear how a child may turn out to be when they mature despite good grades in school and high expectations of parents. Further, minors cannot be said to strictly have dependants. All children from all walks of life, given equal opportunities could become anything in future. It is not predictable.”

31. In my view, the trial court ought to have been guided by the decision in Chen Wembo & 2 Others vs. IKK & Another (suing as the legal representatives and Administrators of the estate of CRK (deceased) (2017) eKLR where the court awarded Kshs 600,000. 00 as lost years.

32. However, considering the ultimate decision arrived at, the award cannot be disturbed. In the premises, this appeal fails and is dismissed with costs.

33. It is so ordered.

Read, signed and delivered in open Court at Machakos this 26th day of January, 2021

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Musya for Mr Mulyuingi for the Appellant

Mr Kitindio Musembi for Mr Mulu for the Respondent

CA Geoffrey