[2019] KEHC 3554 (KLR)
The appellate court found that the trial court's assessment of the deceased's income at Kshs. 10,000 per month was reasonable, given the evidence that the deceased was active and self-sustaining despite his age. The court relied on established principles that allow for reasonable estimates of income in the absence...
Source-derived case information.
- Citation
- [2019] KEHC 3554 (KLR)
- Parties
- Appellant: Panal Freighters Ltd; Appellant: Abdi Hassan Ndaba; Respondent: Patrick Nyongesa Watiekale
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- HK Chemitei
- Legal Topics
- Fatal Accidents, Assessment of Damages, Loss of Dependancy, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Panal Freighters Ltd
Appellant
Abdi Hassan Ndaba
Appellant
Patrick Nyongesa Watiekale
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court's award of Kshs. 1,025,600 in general and special damages was excessive in the circumstances.
- 2 Whether the trial court erred in assessing the deceased's income and applying the appropriate multiplier.
Ratio Decidendi
The appellate court found that the trial court's assessment of the deceased's income at Kshs. 10,000 per month was reasonable, given the evidence that the deceased was active and self-sustaining despite his age. The court relied on established principles that allow for reasonable estimates of income in the absence of direct proof, and found no basis to interfere with the quantum of damages awarded. The appeal was dismissed as the award was not excessive or based on extraneous considerations.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KITALE
CIVIL APPEAL NO. 16 OF 2018
(Being an appeal arising from Judgment and Decree delivered by Hon. P.C Biwott SPM dated 31st May, 2018 in Kitale CMCC No. 394 of 2016 )
PANAL FREIGHTERS LTD....................................1ST APPELLANT
ABDI HASSAN NDABA..........................................2ND RESPONDENT
VERSES
PATRICK NYONGESA WATIEKELE.........................RESPONDENT
J U D G M E N T
1. The late MOSES MAIMA was involved in a road traffic accident on the 10th day of November, 2015 along Kitale Endebbes road as he cycled along the said road. He was hit by the appellant’s motor vehicle registration number KBE 935L RENAULT ZD 6805. He died two days later at Kitale District hospital while undergoing treatment.
2. The Respondent brought suit against the Appellant on behalf of the estate. The trial court after a full trial awarded him a sum of kshs. 1,025,600 being general and special damages. The appellant being dissatisfied with the said quantum has appealed against the same. The issue on liability is uncontested.
3. The appellant has argued that the award was excessive in the circumstances considering the age of the deceased and specifically that there was no prove of income. They argued that there was no prove that the deceased was trading on charcoal and thus he would earn such an amount. They urge the court to interfere with the award.
4. The Respondent on his part has agreed with the trials courts finding and that there was no departure from the established principles governing such claims. He argued that though they had prayed for the sum of Ksh.15,000, they were contended with the sum of Kshs. 10000 under the heading of loss of income. They also said that they did not appeal on the loss of consortium.
5. Having perused the record and the entire proceedings as well as the submission by the parties, it is trite law that the appellate court shall interfere with the decision of the trial court if the award was manifestly excessive or too low in the circumstances or if it considered extraneous matters. See KEMFRO Africa Ltd & Another VS. Lubia & Another (No. 2 ) 1985 eKLR.
6. The decision of D A. Onjancha J inNairobi HCC No. 2145 OF 2007, Grace Wairimu Kurara& 3 Others VS. Mater Hospitalrelied on by the trial court as well as the Respondent in my view applied in all fours in this matter. In that matter the deceased was 65 years old and sickly before his death. He was given 10 years by the trial court whereas in the instant case the trial court awarded 8 years although the deceased was not ailing. He appeared strong as shown by the fact that he could still ride his bicycle.
7. In the cited authority the deceased was a livestock and maize farmer and had some land. After a lengthy discourse the court awarded him a global sum of kshs. 20,000 as there was no proof of income.
8. Taking cue from the said authority, although there was no direct prove if income, the deceased must have been sustaining himself despite his age. The fact that he was hid while pedal cycling in my considered view showed that this was a strong man capable of venturing for himself. There was no evidence that he relied on any other source for his survival.
9. In the premises, I do not think that the trial court can be faulted. An average income of Kshs. 10,000 monthly is reasonable in the circumstances. It is in fact mentioned that the deceased would be involved at times in the sale of chickens.
10. For the foregoing reasons, I do not find any merit in the appeal. The award was not excessive in the circumstances. The appeal is hereby dismissed with costs to the Respondent.
Dated, signed and delivered In open court at Kitale this 23rd day of July, 2019.
__________________
H. K. CHEMITEI
JUDGE
23/7/19
In the presence of:-
Barongo for Applicant
Wanyama holding brief for Onyancha for Respodnent
Court Assistant – Kirong
Judgment read in open court.