[2022] KEHC 15188 (KLR)

Osman v Momany (Suing on behalf and for the Estate of David Osumo Mokoro Momanyi) (Civil Appeal 8 of 2015) [2022] KEHC 15188 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 15188 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal 8 of 2015

SN Mutuku, J

September 20, 2022

Between

Hamud Mohammed Osman alias Osman Hamud

Appellant

and

Kennedy Getiro Momanyi

Respondent

Suing on behalf and for the Estate of David Osumo Mokoro Momanyi

(Being an appeal from the judgement and order of Hon. E.A Mbicha Resident Magistrate on 27th June, 2014 in principal Magistrate Court at Kajiado Civil Suit 120 of 2013)

Judgment

Introduction 1. The Respondent is the father of the deceased, David Osumo Mokoro Momanyi, who died in a road traffic accident that occurred on 25th July, 2012 involving Motor Vehicle Registration No. KBN 959B Toyota Premio in which the deceased was a passenger. The Respondent sued the Appellant in the lower court blaming the Appellant and/or his servants for the accident. He was seeking damages.

2. Liability is not contested. It was consented by the parties and apportioned at 80:20 in favour of the Respondent (deceased’s estate) as against the Appellant. The only issue for determination in the lower court was damages, both general and special. The lower court awarded these as follows:i.Pain and suffering ……………………………….. Kshs. 20,000. ii.Loss of expectation of life…………………….... Kshs. 130,000. iii.Loss of dependency …………………………... Kshs. 2,180,224. iv.Special damages ……………………………………… Kshs. 109,350. Total ………………………………………………… Kshs. 2,439,574.

3. The Appellants was aggrieved by the Judgement and Decree of the lower court (E.A Mbicha, Resident Magistrate) issued and delivered on 27th June, 2014 and brings this appeal against the said judgement raising the following grounds of Appeal:i.That the Learned trial Magistrate erred in law and fact in awarding loss of dependency at 2,180,224 yet there was no proof of future earnings other than the Kshs. 7,000/- specifically proved.ii.That the Learned Trial Magistrate erred in law and in fact in awarding Kshs. 130,000/- on loss of expectation of life and overlooking the Defendant’s submissions.iii.That the Learned Trial Magistrate erred in law and in using 2/3 yet there was no proof of marriage by the deceased instead of 1/3.

4. The Appellant seeks to have judgement set side and or substituted with an appropriate judgement on loss of dependency and loss of expectation of life and that appeal be allowed with costs.

Submissions 5. This Appeal was canvassed by way of written submissions. Both parties have filed their submissions. The Appellant’s submissions are dated 30th November, 2018. He has submitted, through his counsel, that the trial magistrate erred in law and in fact in awarding loss of dependency at 2,180,224, arguing that the amount was excessive and that there was no evidence adduced to prove that the deceased was earning Kshs. 14,563. 90. He argued that it was not in dispute as per the Plaintiff’s exhibits produced at the hearing that the deceased used to repair machines at Kajiado District Hospital where he was being paid Kshs. 7,000 per work done. He contended that evidence shows that the deceased would go to work twice or thrice a month but would sometimes go without work for a month.

6. He argued, further, that the trial court graded the deceased under Artisan Grade III and not ungraded artisan as provided for under the Minimum Wage Rates and questioned the criteria used by the lower court in grading the deceased. He argued that the lower court erred in using a multiplicand of 14,563. 90. In support of his arguments, he cited the case of Joseph Mwangi Machera Irungu & another -vs- Wahome Githinji & another [2015] eKLR. It is his argument that that the amount awarded under loss of dependency would therefore be calculated as follows:7000*12*20*2/3=Kshs. 1,120,000.

7. The Respondent’s submissions are dated 14th October, 2019. He has argued that the main ground for appeal is that the magistrate erred in law and in fact in awarding loss of dependency at Kshs. 2,180,224; that in computing this figure, the court would look at the age of the victim, and income/grade of the victim at the time of death; that at the time of death the deceased had completed a diploma in computer studies from Mombasa Polytechnic and had been contracted at Kajiado District Hospital at least 3 times a month on each visit would be paid Kshs. 7,000; that the same would give an aggregate of Kshs. 21,000 but that the lower court found the amount of Kshs. 14,563. 90 reasonable.

8. The Respondent argued that under the Labour Institution Act No. 12 of 2017, the Regulation of wages (General)- (amendment) Order 2011, Artisan Grade 1 is entitled to Kshs. 16,109. He urged this honourable court to find that the award given was not excessive. He relied on the court of Appeal decision in Bashir Ahmed Butt -vs- Uwais Ahmed Khan (1982-88) KAR 5.

Determination 9. I have considered the record, the grounds of appeal, submissions and authorities cited and proceedings before the lower court as expected of this court sitting on first appeal. It is clear to me that liability is not a contested issue this having been settled by parties through a consent. To my mind, as can be discerned from the Appellant’s raised 3 grounds of appeal, the only issue before this court is that of quantum of damages.

10. I have considered rival submissions on the issue of damages. It is contested that the trial court graded the deceased as Artisan Grade III without a basis. Evidence shows that the deceased was trained in IT and used to work at Kajiado District Hospital repairing equipment and used to be paid Kshs 7,000. Evidence shows that he used to work two or three times in a month and in some months, he could go without work.

11. It seems to me that this was casual work and that the deceased used to work necessity calls, that is when there were machines to be repaired. This seems to be the challenge facing the lower court, how to treat this income which was not monthly. To resolve the issue, the trial court graded the deceased as a Grade III Artisan under the Regulations of Wages (General Amendment) Order 2012 Legal Notice No. 71 of 2nd July 2012.

12. I have read that Legal Notice. It does not describe persons qualified in IT. From the letter dated 12th April 2013 from the Ministry of Public Health and Sanitation, the deceased used to earn Kshs 7,000. His services were on a regular need basis. In my view and going by the evidence, it seems that the deceased would earn Kshs 21,000 if he worked three times in a month. But there were months when he would not earn that money when work was not forthcoming.

13. In Fredrick Ochieng Odero v Nakuru Teachers Training College [2018] the court observed that:“Ungraded artisan is defined as one who carries out simple repairs and maintenance work with a reasonable proficiency in a particular trade or trades although not in possession of any Trade Test Certificate”.

14. I have considered authorities on the issue of reversing an award of damages. For instance, in Rook vs. Rairre[1941] 1 ALL ER 297 it was held that in order to justify reversing the award of damages, the Court must be convinced that the trial Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

15. It is clear to this court that the deceased was earning. When he worked three times he would earn Kshs 21,000, going by the amount of Kshs 7,000 per work done. Some months he would skip because of lack of work. If this court were to adopt the grading of the lower court and call the deceased an artisan for the reasons that he does not fall in any of the other categories in the referred to Legal Notice, it is clear to me that the correct schedule under that Legal Notice would have been that of municipality and not Nairobi, Mombasa or Kisumu. This would give us Kshs. 13,385. 40 for Artisan Grade III.

16. To my mind, this amount is not excessive in the circumstances of this case.

17. For the above reasons, loss of dependency should be calculated as follows:Kshs 13,385. 40 x 12 x 20 x 2/3 = 2,141,664

18. On the second ground, I have considered Appellant’s submissions where it is proposed Kshs. 100,000. I am alive to the reasoning in Butt v Khan [1978] eKLR 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 trial court proceeded on wrong principles, or that it misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. In this regard the Appellant has not demonstrated any wrong principle used by the lower court in awarding an amount of Kshs. 130,000. For that reason, I will not interfere with the said award.

19. I find no basis for the third ground challenging the use the 2/3 instead of 1/3. It is clear to me that both submitted on a 2/3 ratio.

20. Consequently, this appeal succeeds partially as shown in this judgment. The figures are as follows:Pain and suffering………………………………………... Kshs. 20,000. Loss of expectation of life …………………………….. Kshs. 130,000. Loss of dependency …………………………………… Kshs 2,141,664. Special damages …………………………………………. Kshs. 109,350. Total …………………………………………………… Kshs. 2,401,014. Less 20% (Kshs. 480,202. 80)Amount payable …………………………………..Kshs. 1,920,811. 20

21. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 20TH SEPTEMBER 2022. S. N. MUTUKUJUDGE