[2022] KEHC 14344 (KLR)

Ouru Super Stores Limited v Nyakundi & another (Suing as Personal Representative & Legal Administrators of the Estate of Edna Kwamboka - Deceased) (Civil Appeal E18 of 2021) [2022] KEHC 14344 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14344 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E18 of 2021

JN Njagi, J

February 11, 2022

Between

Ouru Super Stores Limited

Appellant

and

Hezron Moncare Nyakundi

1st Respondent

Lydiah Kwamboka Nyakundi

2nd Respondent

Suing as Personal Representative & Legal Administrators of the Estate of Edna Kwamboka - Deceased

(Being an appeal from the judgment and decree of Hon. M. O. Wambani, CM, in Nyamira CIVPs Court Civil Case No. 170 of2017 delivered on 16/2/2021)

Judgment

1. The respondents had instituted suit against the appellant at the lower court in their capacity as the legal representatives of the estate of the late Edna Kwamboka in which they were claiming general damages under the Fatal Accidents and Law Reform Act, special damages and costs of the suit and interest, after the deceased was fatally knocked down by the appellant’s motor vehicle registration No. KBT 896Z while travelling as a pillion passenger aboard a motor cycle registration No. KMDL 691 L. Parties in the case entered consent on liability in the ratio of 30:70 in favour of the respondents. Thereafter the trial magistrate assessed damages as follows:Pain and suffering…………….…..Ksh. 20,000/=Loss of expectation of life………Ksh. 150,000/=Loss of dependency…….…..…Ksh. 5,120,000/=Special damages…………………Ksh. 100,550/=Sub Total…………………….….Ksh. 5,390,550/=Less 30% contribution…….…Ksh. 1,617,165/=Net sum………….................Ksh.3,773,385/=The appellant was aggrieved by the award and filed the instant appeal.

2. The grounds of appeal are that:1. That the trial magistrate erred in law and in fact by failing to take into account the weight of the evidence adduced before court thus making wrong conclusion.2. That the trial magistrate erred in law and fact by awarding damages which were inordinately too high in the circumstances.3. That the trial magistrate applied wrong principles of law in the entire judgement.4. That the trial magistrate erred in law and in fact by not considering the appellant's submissions in her judgment.5. That the trial magistrate erred in law and in fact in not considering the evidence tendered thus awarding damages which were too high in the circumstance.

3. The appeal was canvassed by way of written submissions of the advocates for the appellant, Nyachiro Nyagaka & Co. Advocates and those of the advocates for the respondents, Ochoki & Co. Advocates.

The Case for the Respondent 4. It was the case for the respondent that the deceased died on the spot of the accident. That she was aged 28 years. That she was unmarried and left behind three minor children. That she was in the business of selling second hand clothes and was earning Ksh. 30,000/= per month.

The Award 5. The trial magistrate in awarding Ksh. for pain and suffering relied on the case of Simion Bogonko v Alfred Mongare Mecha & Another (2019) eKLR where Maina J. awarded a similar sum where the deceased had died on the spot. On loss of expectation of life the magistrate awarded Ksh. 150,000/= while making reliance on the case of Jackson Kariuki Ndegwa v Peter Kungu Mwango (2016) eKLR where Mulwa J. awarded a similar amount.

6. On loss of dependency, the court adopted a multiplier of 32 years upon considering that the retirement age is 60 years. It relied on the case of Benedeta Wanjiku Kimani v Changwon & Another (2013) eKLR where the Court of Appeal applied a multiplier of 16 years where the deceased was aged 44 years.

7. The trial court found that there was no documentary evidence to prove the monthly income of the deceased. It adopted a monthly income of Ksh. 20,000/= which it regarded as reasonable. The award for loss of dependency worked out as follows:20,000 x 12 x 32 x 2/3 = 5,120,000/=.

Submissions for Appellant 8. The advocates for the appellant submitted that the trial court erred in awarding Ksh. 20,000/- for pain and suffering when the deceased had died on the spot of the accident. The advocates relied on the case of Henry Omweri Oroo & Another v Samuel Mungia Kahiga & Another HCC 76 of 2013 where the court declined to award damages on pain and suffering as the deceased had died on the spot and had no awareness of pain before he succumbed to the injuries.

9. The advocates submitted that there was no justification in awarding Ksh. 150,000/= for loss of expectation of life. That the award was high in the circumstances.

10. On loss of dependency, the advocates submitted that the monthly income adopted by the trial court of Ksh. 20,000/= was without basis as there was no documentary evidence adduced to support the income of the deceased. That in the absence of such evidence the court ought to have reverted to the appropriate order for the minimum wage, in this case the Regulation of Wages (General) (Amendment) Order Legal Notice No. 197 which came into operation on 1/5/2015 since the deceased died on 1/3/2017.

11. It was submitted that special damages must be pleaded and specifically proved. That the respondent pleaded for special damages of Ksh. 90,550/= but the trial court awarded Ksh. 100,550/= That the award was made in error.

12. The advocates submitted that the trial magistrate erred by making double compensation under both the Law Reform Act and the Fatal Accidents Act by failing to deduct the award made under the Law Reform Act from the award made under the Fatal Accidents Act. They relied on the case of Sukari Industries Limited v Lensa Awuor Nyagumba & Another (2020) eKLR where the court held that:“11. It is therefore settled that there is no legal requirement for a court to engage in a mathematical deduction when dealing with the assessment of damages under the Law Reform Act and the Fatal Accidents Act as long that court bears in mind or considers the award made under the Law Reform Act for the non-pecuniary loss. The only instance where a Court may deduct the sums under the Law Reform Act from those awarded under the Fatal Accidents Act is when the beneficiaries of the deceased's estate under the Law Reform Act and the dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. In this case, that fact has not been proved hence the Appellant's position on the deduction cannot stand.”

Submissions for Respondent 13. The advocates for the respondents on the other hand submitted that the deceased herein had died on the spot. That the award of Ksh. for pain and suffering was reasonable as the trial court was properly guided by the cited authority of Simion Bogonko (supra) where Maina J. awarded Ksh. 20,000/= where the deceased had died on the spot.

14. The advocates submitted that the award of Ksh. 150,000/= for loss of expectation of life was supported by the award in the case of Jackson Kariuki Ndegwa (Suing as the administrator of the estate of Fabius Munga Kariuki v Peter Kungu Mwangi (2016) eKLR where a similar sum was made for loss of expectation of life. The advocates also relied on the case of David Kahuruka Gitau & Another v Nancy Ann Wathithi Gitau & Another (2016) eKLR where the court while upholding the trial court’s award of Ksh.100,000/= under this head observed that:“As for loss of life expectation, my review of authorities shows that the first time an award of Ksh. 100,000/= was made by Kenyan courts was by Justice Apaloo, then a Judge of the Court of Appeal in 1986. Many years later our courts are still awarding the same amount which for a long time has been taken as a conventional sum. In my view, time has come for our courts to consider inflation and adjust damages under the said head upwards. The learned magistrate awarded Ksh. 100,000/= under the said head. I find no reason to fault the said award.”

15. On the claim for loss of dependency, the advocates submitted that the monthly income of Ksh. 20,000/= adopted by the trial court was fair as the appellant had proposed Ksh15,000/=.

16. Counsel submitted that the trial court adopted a multiplier of 32 years upon considering that the current retirement age is 60 years.

17. It was submitted that the deceased had a family. That the dependency ratio of 2/3 was not contested and therefore that it should be maintained.

18. Counsel submitted that the respondents pleaded and proved the special damages of Ksh.100,550/=.

Analysis and Determination 19. The principles under which an appellate court may disturb an award of damages made by a lower court are settled. In the case of Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A.M.M. Lubia & Aother (1982-88)1 KAR 777 the Court of Appeal stated 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 were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either 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 a wholly erroneous estimate of the damage.”

20. In Paul Kipsang Koech & Another v Titus Osule Osore (2013) eKLR, Gikonyo J. restated the instances where the appellate court can disturb the trial court’s award on quantum as follows:“It is a well-established law that, assessment of quantum of damages in a claim for general damages, is a discretionary exercise. The law has, however, set the dimensions for the exercise of discretion; must be exercised judicially, with wise circumspect and upon some defined legal principles. Invariably, when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. The discretion, in assessing the amount of general damages payable will be disturbed if the trial court:a.Took into account an irrelevant factor orb.Left out of account a relevant factor or,c.The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

21. The appeal herein is on the awards on pain and suffering, loss of expectation of life, loss of dependency and special damages.

Pain and Suffering 22. It was the evidence of the 1st respondent that the deceased died on the spot. His counsel urged the court to award Ksh. 50,000/under this head and relied on the case of Alice O. Alukwe v Akamba Public Road Services Ltd & 3 Others (2013) eKLR where a similar sum was awarded for a deceased who died immediately after the accident. Counsel for the appellant on the other hand had proposed Ksh. 10,000/= and made reliance on the case of Simion Bogonko v Alfred Mong’are Mecha & Another (2019) eKLR where Maina J. reduced an award of Ksh. 100,000/= to Ksh. 20,000/= where the deceased had died on the spot. The trial magistrate awarded Ksh. 20,000/= under this head while relying on the said case of Simion Bogonko v Alfred Mong’are Mecha.

23. The award of the trial magistrate on pain and suffering was based on a cited authority. Even where a deceased person dies on the spot it is reasonable to assume that he/she undergoes some pain before death finally takes over. Hence, in Sukari Industries Limited vs. Clyde Machimbo Juma [2016] eKLR it was held that:“... it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased's estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years...”It has not been demonstrated that the award of Ksh. 20,000/= for pain and suffering was excessive. I have no reason to interfere with the award.

Loss of expectation of life 24. The trial court awarded Ksh. 150,000/= under this head while making reliance on Jackson Kariuki Ndegwa (Suing as administrator of the estate of Fabius Munga Kariuki v Peter Kungu Mwango (2016) eKLR where a similar sum was made. The appellant argues that the award is excessive. They had proposed Ksh. 100,000/= at the lower court where they made reliance on the case of Loise Wairimu Mwangi & Another v Joseph Wambue Kamau (2016) eKLR where a Ksh. 100,000/= was awarded under this head.

25. The award of Ksh.150,000/- for loss of expectation of life was supported by an authority from the High Court. In Caroline Leah Awino v Stephen Miheso (2014) eKLR a similar amount was made under this heading. The award therefore can be supported by similar awards from the High Court. Though our courts have at most times been awarding a conventional sum of Ksh. 100,000/= under this head, it has not been demonstrated that the award of Ksh150,000/= is inordinately high or unreasonable. I therefore decline to interfere with the award.

Loss of dependency 26. It was the evidence of the respondents that the deceased had three minor children who depended on her for their upkeep. That the deceased was a business lady selling second hand clothes earning an income of about Ksh. 30,000/= per month. The appellant submitted that the monthly earnings were not proved as there was no documentary evidence adduced to support the income. They had at the lower court proposed an income of Ksh. 15,000/=.

27. There is no requirement in law for the income of a deceased person to be proved by production of documentary evidence. In Jacob Ayiga Maruja & Another v Simeon Obayo (2005) eKLR the Court of Appeal held that:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings 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.”

28. I am properly guided by the holding of the learned Judges in the above case. It would be unfair to majority of Kenyans to demand that they prove their earnings by way of documentary evidence when majority of them are in the informal sector.

29. The appellant at the lower court proposed an income of Ksh. 15,000/= per month. That would work out to Ksh.500/= per day.In my view, that is a reasonable estimate for the earnings of a person engaged in mitumba business. The proposal by the appellant to adopt earnings of Ksh. 15,000/= per month were not way off the mark. Since there was no evidence to prove the earnings of the deceased, the trial court ought to have applied an income of Ksh. 15,000/= that was proposed by the appellant. I will thereby adopt a monthly income of Ksh. 15,000/=.

30. The deceased died at the age of 28 years. He left behind three minor children who were dependent on him. The appellant had proposed a multiplier of 20 years while the respondent had proposed 32 years. The respondent had relied on the case of Benedeta Wanjiku Kimani v Changwon Cheboi & Another (2013) eKLR where a multiplier of 16 years was applied to the deceased who died at the age of 44 years. The advocates also cited the case of Jackson Kariuki Ndegwa (supra) where the court applied a multiplier of 18 years for a deceased who died at the age of 36 years.

31. I have considered other cases where multipliers were applied to deceased aged in their 20s and early 30s.In Paul Ouma v Sarah Akinyi & Monica Achieng Were (Suing as the legal representatives of the Estate of Paul Otieno Were (Deceased), Makau J. adopted a multiplier of 26 years for a deceased who died at the age of 29 years.

32. Similarly, in Susan Wanjugu Muchemi v James Kabathi Mwangi (2009) eKLR the court adopted a multiplier of 26 years for a deceased aged 29 years.

33. In Machakos HCCC No. 51 of 2014 Florence Mueni Mbuva & Anor v China Wu Yi Ltd, as cited in David Mbuba & Another v Victoria Mwongeli Kimwalu & Another (2018) eKLR, where the deceased died at the age of 30 and was survived by a wife and two sons aged 3 & 6 years the court applied a multiplier of 27 years.

34. In Bash Hauliers v Dama Kalume & Another (2020) eKLR the court upheld a multiplier of 20 years where the deceased died at the age of 32 years.

35. Having regard to the above authorities on multiplier I am of the view that the multiplier of 32 years that was applied by the trial court was on the higher side. The court has to have regard to the vicissitudes of life. I reduce the multiplier to 27 years. The loss of dependency comes to:15,000 x 12 x 27 x 2/3 = 3,240,000/=.Whether award made under Law Reform Act should be deducted from the award under the Fatal Accidents Act -

36. The Court of Appeal in Hellen Warunguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) V Kiarie Shoe Stores Limited, Nyeri CA Civil Appeal No. 22 of 2014 [2015] eKLR, has explained the concept of double compensation under the Law Reform Act and the Fatal Accidents Act. It stated that: -“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased's estate under the Law Reform Act and dependents under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise. The confusion appears to have arisen because of different reporting of the Kemfro case (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the 1 ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kemfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that: -An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind orconsidered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction." The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh. 100,000 awarded for Loss of life expectation to Sh. 70,000 despite confirmation in its judgment that there was no dispute on the award. Mr. Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction."

37. In light of the above I am not persuaded that the awards under the Law Reform Act should be deducted from the award made under the Fatal Accidents Act. The estate of the deceased was entitled to compensation for pain and suffering and to loss of expectation of life. In my view the awards thereof were not as high as to suggest double compensation. I thereby see no reason to deduct the awards from the award on loss of dependency.

General damages 38. It is trite law that special damages must be specifically pleaded and strictly proved. The respondent pleaded special damages to the tune of Ksh. 90,550/= Receipts were produced to prove that sum. The trial court erred in awarding more than what was pleaded. The award on special damages is reduced to Ksh. 90,550/=

39. The upshot is that the awards on pain and suffering and loss of expectation of life are affirmed. The award for loss of dependency and special damages are reduced as stated above.

40. The final award is as follows:Pain and suffering…………….…..Ksh. 20,000/=Loss of expectation of life………Ksh. 150,000/=Loss of dependency…….…..…Ksh. 3,240,000/=Total………….……………….….Ksh. 3,410,550/=Less 30% contribution…….…Ksh. 1,023,000/=Ksh. 2,387,000/=Add special damages………….….Ksh. 90,550/=Net Award……….................Ksh.2,477,550/=

Orders accordingly. Each party to bear its own costs to the appeal.

Dated, signed and delivered virtually at Nairobi this 11th day of February, 2022. J. N. NJAGIJUDGEIn the presence of:Miss Muthaka holding Brief for Mr. Nyachiro for the AppellantMiss Shilwatso for the RespondentsCourt Assistant30 days Right of Appeal