[2017] KEHC 1961 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO.83 OF 2012

PAYLESS CAR HIRE & TOURS LTD.......................................1ST APPELLANT

JACKSON NYONGESA WAFULA...........................................2ND APPELLANT

VERSUS

LUCY NJERI NJENGA.................................................................RESPONDENT

JUDGEMENT

1. The Respondent Lucy Njeri Njenga had sued the Appellants Payless Car Hire and Tours Ltd and Jackson Nyongesa Wafula arising from an accident involving her deceased husband Patrick Njogu Kinyua (deceased) and Motor vehicle registration number KAT 565F, Nissan Sunny owned by the 1st respondent and being driven by the 2nd on the 17th of February 2010 along Eldoret Webuye road.

2. Parties entered into a consent judgement on liability at 75% - 25% in favour of the respondent.

3. The trial Court then assessed quantum. It is the judgement on quantum that is the subject of this appeal. The trial Court awarded the sum of Kshs.624,510.

4. Being aggrieved by the judgement on quantum the appellants preferred this appeal on grounds that;

a.The trial Magistrate erred in fact and Law by making an award that was excessive.

b.The trial Court applied the wrong principles in arriving at the sum awarded for loss of dependency.

c.The trial Court erred in applying a multiplier of 25 years without taking into account the imponderances and contingencies of life.

d.The Court failed to consider the award under fatal accident Act when arriving at an award under the Law reforms.

e.The trial Magistrate erred in awarding damages for loss of consortium without giving due regard to the age and possibility of the respondent remains.

f.The specials – funeral expenses were never pleaded nor proved.

5. This being the first appellate Court it has considered the evidence afresh, examined and analysed the same. The deceased was said to have been a matatu driver aged 35 years (in the pleadings) and earning Kshs.15,000/-. He had the plaintiff as his widow and two children then aged 13 and 8 years respectively.

6. Parties filed their submissions on quantum;

Plaintiff’s submissions

(i) Specials Kshs.3,080 (Exhibit 7,8,9)

(ii) Funeral expenses Kshs.50,000/-

(iii) Pain & suffering Kshs.50,000/-

(iv) Loss of expectation of life Kshs.150,000/-

(v) Damages under fatal accident Kshs.15,0000X12X2/3=Kshs.3,000,000

(vi) Loss of Consortium – 100,000/-

(vii) Costs

Defendant’s

(i) Loss of expectation of life – Kshs.70,000/-

(ii) Loss of dependency 3,000X12X20X1/5=144,000/-

7. On appeal the Appellants who were defendants in the lower Court admit that liability had been settled at 75% - 25% in favour of the respondent and the issue for determination is on quantum.

However the Appellants challenge – the trial Court ‘s decision since; there was no proof of employment, no proof of specials, no proof of marriage between the plaintiff/respondent and the deceased, there was no evidence on whether the deceased died instantly or not and further that the award on loss of consortium was based on hearsay evidence. It was also submitted that the deceased dependent on his wife for his day to day expenses and therefore a dependency ratio of 1/3 was reasonable.

8. The respondent on the other hand urged the Court to affirm the trial Court’s finding.

9. While considering this appeal I am minded of the holding in Kemfro Africa Ltd t/a Meru Express Services (1976) and Another Vs Lubia & Another (No.2) (1987)KLR where the Court stated.

“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; it must be satisfied that either that 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 wholly erroneous estimate of the damage

10. PW1 who is the respondent gave lengthy evidence and was cross examined. She produced receipts for;

a.Motor vehicle search Kshs.500/-

b.Mortuary receipt Kshs.2,700/-

c.Amount for obtaining grant paid to Counsel Kshs.10,000/-

She also produced the grant as the administrator of the Estate. She stated that between her and the deceased they had 2 children. Her husband earned Kshs.700/- a day and gave her Kshs.500/- a day for upkeep of the family. She was 36 years of age and did not intend to marry.

During cross examination she gave age of deceased as 43 years. She further said the deceased paid rent, adopted her first son as his own and since the death of the deceased, she now works to fend for the family.

PW2 Francis Mungai –

Stated in evidence that he was the deceased Employer. He confirmed the deceased earned Kshs.700/- a day. He knew PW1 as the deceased wife.

11. Having considered the evidence above and the fact that the defendant now Appellant did not adduce any evidence to controvert the evidence of the respondent and her witness, coupled with the admission of liability I am inclined to find as follows;

a.The respondent (Plaintiff) was the wife of the deceased and had obtained a grant of representation and had sued on her behalf and on behalf of the family of the deceased.

b.The deceased was in gainful employment earning Kshs.700 a day.

c.A part from his wife he had 2 other dependants and

d.The wife had lost consortium because of the death of the husband.

12. Having arrived at the above I am not inclined to upset the findings of the lower Court. I find the 2/3 dependancy ratio reasonable and the multiplier although high I take note that the Court did not consider the evidence of income and used Kshs.3,000/- as income which was indeed below the minimum wage.

On my part I am satisfied that the deceased earned Kshs.700/- a day and take Judicial notice that ordinarily in the informal sector there are no pay slips. The evidence of PW2 suffices. There is no cross appeal I shall say no more on the issue of the deceased income. In the circumstances therefore I will uphold the decision of the trial Court. The appeal is declined. Costs to the Respondent.

DATED and DELIVERED at BUNGOMA this 2nd day of November, 2017

ALI-ARONI

JUDGE