[2019] KEHC 6139 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 570 OF 2016

PAMIGO LIMITED..................................................................APPELLANT

VERSU

PHELESTUS HOKA LIBULELE

(Suing as legal representative of the estate ofALEX OLINDI OPANDE

(Deceased)................................................................................RESPONDENT

JUDGMENT

The Appeal herein arises from the judgment of the trial court in the Chief Magistrate’s Court at Milimani in Civil Suit number 3389 of 2011. In the said suit the plaintiff who is the Respondent in this Appeal filed the plaint dated the 10th August, 2011 seeking both general and special damages, costs of the suit and interest against the defendant the Appellant herein following an accident that occurred on the 21st November, 2008 at the Appellant’s premises as a consequence of which the deceased Alex Olindi Opande lost his life.

The Respondent pleaded that the deceased was an employee of the Appellant, at the material time and that it was a term of contract of employment between the Appellant and the deceased that, the appellant would take reasonable precautionary measures for the safety of the deceased while he was engaged upon his work and not to expose him to a risk of damage and/or injuries of which it knew or ought to have known; to provide and maintain adequate and suitable measures for the safety of the deceased and to provide and maintain a safe system of work.

That on the material date, the deceased was engaged upon his lawful duties as an employee at a construction site along Langata Road when he sustained severe injuries that eventually led to his death and his estate has suffered loss and damage.

The particulars of breach of contract and those of negligence are set out in paragraphs 6 and 7 of the plaint while those pursuant to statute are set out in paragraph 8 of the plaint. The Respondent claimed damages under both the Fatal Accidents Act and The Law Reform Act.

In denying the claim, the Appellant filed a statement of Defence on 13th January, 2012 which it later amended on 6th day of June, 2014. In the said defence, the Appellant denied that the deceased was its employee at the material time as alleged or at all and put the Respondent to strict proof. It also denied that there existed any contractual relationship express or implied between it and the deceased. The occurrence of the accident was also denied.

In the alternative, the Appellant pleaded that if the alleged accident occurred, the same was caused by negligence on the part of the deceased and has set out the particulars of negligence by the deceased at paragraph 6 of the amended defence. It prayed for the dismissal of the suit.

The Respondent filed a reply to the defence on the 12th day of February, 2012 in which it reiterates the contents of the plaint verbatim.

On the 17th November, 2015, parties recorded a consent on liability at 70%:30% in favour of the Respondent as against the Appellant and therefore the matter proceeded on assessment of damages with the Respondent testifying as the sole witness in support of her case. In its judgment delivered on 5th August, 2016, the trial court entered judgment on quantum as follows:

a) Pain and suffering at Kshs. 30,000/-,

b) Loss of expectation of life at kshs. 100,000/-,

c)Loss of dependency at Kshs. 2,100,000/- less

30% leaving a total of Kshs. 1,771,000/-

plus costs of the suit.

In its memorandum of appeal filed on 2nd September, 2016, the Appellant has listed six (6) grounds of appeal which are all on quantum of damages, the parties having recorded a consent on liability on 9th November, 2015. The Appellant averred that the learned Magistrate erred in law and infact in awarding the Respondent the amounts shown above under the various categories.

It has urged the court to set aside the decision of the learned Magistrate and allow the appeal.

The appeal was disposed of by way of written submissions which both parties filed and which this court has duly considered.

On pain and suffering the Appellant submitted that since the deceased died on the spot, a sum of Kshs. 10,000/- should suffice under this head. It has relied on the case of Patricia Mona & another Vs. Samuel Oput Omondi & another (2014) eKLRwhere the court awarded a similar amount.

On her part, the Respondent submitted that since the deceased died a few hours after the accident, the award of Kshs. 30,000/- made by the trial court was proper considering the amount of pain that he endured.

The court has considered the submissions under this head, the deceased died the same day of the accident but there is no concrete evidence how long after the accident. In my view, the sum awarded by the learned Magistrate is reasonable and the same is upheld.

On loss of expectation of life, both parties seem to be in agreement that the sum of Kshs. 100,000 awarded by the trial Magistrate was reasonable save that the Appellant contended that there was no evidence adduced to proof the age of the deceased. The court has perused the proceedings of the trial court and among the documents produced is a burial permit which shows the age of the deceased as 39 years. Am persuaded that the document is prima facie proof of his death in the absence of any other evidence to the contrary. I therefore uphold the sum of Kshs. 100,000/-under that head.

On loss of dependency, the appellant submitted that the sum of Kshs. 2,400,000/- awarded was too high. It has urged the court to be guided by the principles set out in the case of West (HI) & Sons Limited Vs. Shepherd (1964) Ac 326 in assessing damages which are that; the awards must be reasonable, there should be some uniformity in the general method of approach and so far as possible, comparable injuries should be compensated by comparable awards.

It also relied on the case of Alice O. Alukwe Vs. Akamba Public Road Services Ltd and 3 others (2013)eKLR which are the same principles laid down by the court of Appeal in the case of Hassan Vs. Nathan Mwangi Kamau transporters and 4 others (2008) eKLR (G & F) 90.

The Appellant contended that the respondent did not produce any evidence to prove that the deceased was a mason and how much he earned. That she also did not prove the existence of the dependants and therefore her evidence on the Kshs. 15,000/- as the salary that the deceased used to earn was unsupported. They argued that the same was speculative. It maintained that in absence of proof, the court ought to have relied on regulation of wages applicable at the time of death of the deceased which they submitted, was Kshs. 8,193/- under the Labour Institutions Act no. 12 of 2007. They urged the court to apply a multiplicand of Kshs. 6,000/- as the Act came into force three (3) years after the death of the deceased.

The Appellant urged the court to disallow the claim under the Fatal Accidents Act as no dependency was proved.

It relied on the case of James Mukolo Elisha & Another vs. Thomas Martin Kibisu (2014) eKLR where the court of appeal set aside an award under Fatal Accidents Act as dependency was not proved. In urging the court to rely on the minimum wage, it cited the case of Bobmill Industries Limited & Another Vs. Kennedy Indakwe Eshiteni (2010) eKLR in which a sum of Kshs. 3,000/- was applied as minimum wage for a deceased who was a mason and prove of income had not been availed. A multiplier of 10 years was suggested still relying on the case of Bobmill Industries (Supra) where the court adopted a similar multiplier. In suggesting the 10 years, the Appellant urged the court to take into account the nature of the work that the deceased was engaged in and also the exigencies of life.

On her part, the Respondent submitted that a death certificate was produced in evidence to prove the age of the deceased.

The court notes that both the death certificate and the burial permit were produced as exhibits in that regard.

On the multiplicand, it was submitted that the sum of Kshs. 15,000/- is reasonable. The respondent contended that the Appellant did not adduce any evidence to the contrary yet it is the duty of the employer under Section 10(3) of the Employment Act to keep employment records. She also relied on Section 10(7) of the Employment Act which states that an employer has a duty to displace any allegation by an employee where the employer fails to produce employment records.

She relied on the case of Jacob Avigamaruja & another Vs. Simeon Obayo (2005) eKLRin which the court of Appeal held the view that production of documents is not the only way to prove earnings. On the multiplier, the case of Pleasant View School Limited Vs. Rose Mutheu Kithoi & Another (2017) eKLR was relied on, and the Respondent urged the court not to interfere with the 20 years adopted by the trial court and also cited the case of Kimunya Abednego alias Abednego Munyao Vs. Zipporah S. Musyoka & another (2019)eKLR where the court of Appeal upheld the trial court’s decision to adopt a multiplier of 20 years for a deceased aged 41 years and the case of Tobias Odoyo Oburu Vs. Ruth Moraa Oigo & another (2018) eKLR where a multiplier of 16 years was adopted for a deceased who was aged 39 years.

On the dependency ratio, the Respondent urged the court to rely on the Chiefs letter which confirmed the existence of the dependants and in so contending the case of Philomena Mutheu Nzyoka (suing as a legal representative of the estate of the late TKM Vs. Transporters Kenya Limited (2016) eKLRwas relied on.

On the dependency ratio the Respondent submitted that the 2/3adopted by the learned Magistrate is reasonable considering that the deceased had five dependants.

The court has considered the submissions of the respective parties in regard to damages under the Fatal Accidents Act.

On the issue of the multiplicand, the court notes that the Respondent did not tender any evidence to proof how much the deceased was earning. There is no justification as to how the figure of Kshs. 15,000/- was arrived at. Though the Respondent contends that the Appellant was under duty to produce employment records, no demand was made or notice to produce was served upon the Appellant for such a request. The Respondent was under duty to prove her case on a balance of probability. The court is persuaded by the appellant’s submissions that in absence of such proof, the trial court ought to have used the minimum wage of a mason at the material time, which was Kshs. 8,193/-.

On the issue of the dependants, the Respondent produced a letter from the Chief of Emuhaya District confirming that the Respondent was a dependant as well as his children. This letter was not disputed by the Appellant in any way or form. In my view, that was sufficient proof of dependency. I remind myself that this being a civil case, the proof is on a balance of probability and not beyond any reasonable doubt, the court is also guided by the case of Philomena Mutheu (supra).

On the multiplier, the court has looked at the authorities cited by both parties. It has also taken into account the age of the deceased and the nature of his work. As rightly argued by the Appellant, the deceased was engaged in manual work and chances of him doing it until the age of 60 was slim. The appellant has also asked this court to take into account the exigencies of life which I hereby do, but even then, the suggested multiplier of 10 years is on the lower side.

This court finds a multiplier of 16 years reasonable going by the case of Tobias Odoyo (Supra) which was relied on by the Respondent.

On the multiplier, the court notes that the deceased had five (5) dependants which meant that he must have been using a reasonable amount of his salary for their upkeep.

I find a ratio of 2/3 fair in the circumstances of this case.

The total amount under this head would be;8,193 X 16 X 2/3 X12

Making a total of Kshs. 1, 048. 704/-

For the reasons given above, I find that there are sufficient grounds for this court to interfere with the decision of the trial Magistrate to the extent shown. In the end, the appeal partly succeeds and Judgment is entered for the respondent as follows:

Liability 70:30%

Pain and suffering Kshs. 30,000/-

Loss of expectation of life Kshs. 100,000/-

Loss of dependency Kshs. 1,048,704/

Total 1,178,704

Less 30% - 825,092. 80cts.

Each party shall bear its own costs of the appeal.

Dated, Signed and Delivered at Nairobi this 27TH day of JUNE 2019.

.........................

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Applicant

…………………………. For the Respondent