[2022] KEHC 1650 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIVASHA

CIVIL APPEAL NO 69 OF 2019

PETER KIMANI WAINAINA &TERESIA KANYI KIMONDO

(Suing as the administrators of the estateof John Kimani Ndungu [deceased]......APPELLANTS

VERSUS

SUSAN KANYI MEME.......................................................................................1ST RESPONDENT

LEWIS KIPNGENO...........................................................................................2ND RESPONDENT

(Being an appeal from the judgment and decree of Hon. Esther K. Kimilu Principal Magistrate

in Naivasha CMCC 985 of 2018 delivered on 5th November 2019).

JUDGMENT

Background

1. The appeal is from a judgment of Naivasha Principle Magistrate Hon. Esther K. Kimilu delivered on 5th November, 2019 in Civil Suit No.985 of 2018. The Appellants were the Plaintiffs whereas the Respondents were the Defendants in the said suit.

2. The claim arose from a Plaint filed on 18th October, 2018 seeking damages both under the Law Reform Act and Fatal Accidents Act where the Plaintiffs sued as the administrators of the estate of John Kimani Ndungu [deceased] aged 35 who met his demise through a road traffic accident at Nairobi-Naivasha Highway at Nyambari area occasioned by the 2nd Respondent who drove, controlled and or managed Motor vehicle KBR 273V that it veered off the road and knocked the deceased. The deceased left two dependants, namely the 1st Appellant (his father) and the 2nd Respondent (his mother). Together with general damages, the Plaintiff also prayed for special damages amounting to Kshs 67,500/- costs of the suit and interest on the three prayers.

3. The 1st Respondent denied being the registered owner of the motor vehicle, KBR 273V and alleged that the 2nd Respondent was the owner of motor vehicle, KBR 273V. The Respondents denied that the injuries sustained by the deceased were caused solely by themselves. They denied liability for damages for pain and suffering and denied receiving any demand and/or notice of intention to sue as alleged in the Plaint.

·In her judgment, the learned trial magistrate arrived at a finding in favour of the Appellants under three headings;

a) Pain and suffering Kshs. 50,000/-

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

c) Loss of dependency Kshs. 808,320/-

d) Special damages of Kshs. 68,650/-

e) Less 30% (Kshs. 308,091)

f) Grand Total Kshs. 718,879

4. As to costs, the learned magistrate stated that costs would be at court rates.

5. The Appellants appealed against this decision citing five (5) grounds of appeal as contained in the Memorandum of Appeal dated 8th November, 2019 which can be summarized as follows:

a) That the learned magistrate erred in law and fact in failing to consider adequately or at all the submissions by the Appellants and the authorities submitted.

b) That the learned magistrate erred in law and fact in apportioning liability at 70:30 in absence of any evidence supporting such a finding.

c) That the learned magistrate erred in law in resorting to the minimum wage reserved for unskilled workers in the agricultural industry instead of Regulation of wages (General) (Amendment) Order 2017.

d) That the learned magistrate erred in law in awarding damages which were so inordinately low as to represent an entirely erroneous estimate of the compensation due to the deceased estate.

Summary of evidence

6. Two witnesses testified for the Plaintiff’s case, being the 1st plaintiff and Paul Kabue Muchai as PWI and PW2 respectively.

7. PW1, Peter Kimani Wainainaadopted his statement. He testified that the deceased was his son and was aged 35 years at the time of his death. That on 2/5/2018 he received a phone call informing him that the deceased had been knocked down by a vehicle at Nyambari area. He then made his way to the scene where he found his son dead at the scene and his body was off the tarmac road toward Naivasha. He testified that it was motor vehicle KBR 273V that knocked the deceased. He waited until the police arrived at the scene, examined the scene and took the body to Uplands Funeral Home. He stated that he spent KShs. 30,000/- for funeral arrangements as visitation and food for visitors, KShs11,000/- for mortuary charges, KShs1,500/- on eulogy, KShs. 2,300/- for ambulance, KShs. 6,000/- for post mortem, coffin at KShs.13,000/- and hearse transport at KShs.10,000/-.

8. PW1 testified that he went to Lari Police Station where he was issued with a Police Abstract which reflected that KBR 273V hit the deceased. He was later issued with a Death Certificate in respect of the deceased. A search at the NTSA showed that one Susan Kanyi Meme the 1st Defendant/Respondent was the registered owner of the car. He said he paid his advocate KShs 25,000/- for succession purposes and was later issued with the letters of administration ad litem to sue the Defendants.

9. PW1 stated that the deceased was a casual labourer averaging Kshs.600/- wage per day. He stated that the deceased would assist him financially and was expecting such support even into old age but this was cut short due to the accident.

10. In cross-examination, PW1 stated that he was an eyewitness as he found the subject vehicle and the body of the deceased when he visited the scene. He produced receipts: For food to feed mourners amounting to KShs. 30,000/-, a receipt for Kshs.1500/- for Eulogy, receipt for Kshs. 13,000/- for coffin and a receipt for Kshs. 2300/- from St. John ambulance.

11. PW 2, Paul Kabue Muchai adopted his statement as evidence in chief. He testified that he knew the deceased and that he was a resident of Nyambari area. Hi evidence was that on 2/5/2018 at around 12:30 pm he saw a lorry coming from the Naivasha direction while a car was approaching from the Nairobi direction when the small car veered off the tarmac and knocked a male adult who was standing alongside the tarmac road. The small vehicle threw the deceased into the air who fell to the ground. The car stopped and he and others rushed to the scene and learnt that the victim not only died on impact but that he was his cousin. He noted the small car details as KBR 273V. He blamed the driver of the car for driving at excessive speed in a densely populated area and for failure to keep a proper look out. PW2 also blamed the 1st Respondent as the registered owner of KBR 273V.

12. In cross examination,PW2 stated that he was an eyewitness and was interrogated by the police having found PW2 at the scene. He stated that he was not indicated as a witness of police but was one. He stated that the deceased was opposite the bus stage when he was hit.

13. The defence called one witness, DW1, Lewis Kipngeno Bor who was the driver to motor vehicle registration No. KBR 273V. He relied on his written statement recorded on 26/4/19 as evidence in chief. He stated that he was the registered owner of KBR 273V a Toyota Premio. That he did not know the 1st Respondent. That he was driving on the left lane heading to Nakuru and the deceased was in the middle of the road crossing from left to right. The deceased then decided to head back to the left as he (DW1) approached.

14. In cross examination, DW1 stated that he spotted the deceased while about100 metres away as he approached at moderate speed. He stated that the deceased was hit by the left side of his car as he swerved to the right. He stated that he drove off immediately to report the accident.

15. The trial court found for the Plaintiffs (Appellants). Liability was awarded at the ratio of 70:30 against the Defendants.

16. In arriving at this finding, the trial court considered the testimony of all the witnesses who testified and surmised that since PW2, an eyewitness to the events of 2/5/2018 had witnessed what had transpired at the scene, his evidence was believable. The trial court then awarded Kshs. 50,000/ for pain and suffering whilst noting that the deceased died on the same date. For loss of expectation of life, the trial court considered that the deceased was 35 years old at his death and awarded a conventional sum of Kshs. 100,000/-. For loss of dependence the trial court referred to the death certificate and assumed a life expectancy of 20 years, a multiplicand of 1/2 and minimum wage for unskilled labour which set the unskilled labourer at Kshs. 6,736/.

Submissions

Appellant’s submissions

17. The Appellants abandoned his appeal against liability. They only challenged general damages under two heads, namely loss of dependency as having been awarded under the wrong scale and lack of awarding burial expenses. In this regard, this court will only to relevant submissions that touch on issues in contestation.

18. As for loss of dependency, Appellants submitted that the trial court misdirected itself in that it misappropriated the deceased as a wage earner in the agricultural industry and erroneously applied Kshs. 6,736/- as the minimum wage whereas the deceased was a casual labourer and the court was obligated to award Kshs. 11,926. 40 as per the Regulation of wages (General) (Amendment) Order 2017 which has general labourers working in municipalities or town council of Limuru. In so submitting, the Appellant relied on the Naivasha HCCA No. 47 of 2016, Peter Ngigi Kuria & Another versus Thomas Ondili Oduol [2019] eKLR.

19. The Appellant further faulted the learned magistrate in failing to award funeral expenses having prayed for Kshs.30,000/- without receipts. Reliance was put on Kericho HCCC No.88 of 2003-Betsy Chebet (Suing as a Personal Representative of the Estate of Kenneth Kipkoech Langat –V- Premier Dairy Limited & Benjamin Kiprugut Koech where the court took judicial notice that Kenyan communities at funerals feed the mourners and awarded the convectional figure of KShs. 30,000/-. They contended that the trial court did not consider relevant factors that accompany funeral preparations. Further reliance was put on the case of Nakuru HCCC No.26 of 2005 Alice O. Alukwe vs Akamba Public Road Services Ltd & 3 others[2013] eKLRwhere the court stated that in the absence of receipts evidencing funeral expediture, a court may make reasonable awards.

Respondent’s submissions

20. The Respondents filed their written submissions on 24th November, 2021. They urged the court not to disturb the award of the trial court noting that the learned trial magistrate had applied judicial pronouncements that settled the principles to be applied if a court must disturb the trial court’s award. For instance, the case of Mbogo vs Shah [1968] EA at page 93 was cited to buttress the submission that a Court will not interfere with the discretion of an inferior court unless it is satisfied that its decision is clearly wrong having taken a misdirection in so arriving at a wrong conclusion.

21. Further the authority of Kemfro Africa Limited t/a Meru Express Services Gathogo Kanini vs A.M.M. Lubia & Another (1982-88) 1 KAR 777was cited where it was held that the principle of disturbing a quantum of damages must be satisfied in showing that an irrelevant factor was taken into account or the court left out a relevant one or the amount awarded as damages is so inordinately low or so inordinately high that it is wholly an erroneous estimate of the damages.

22. The Respondents mooted that the only point of contention was the applicable minimum wage. They relied on the authority of Naivasha HCCA No. 47 of 2016, Peter Ngigi Kuria & Another versus Thomas Ondili Oduol [2019] eKLRto rebut the Appellants’ assertions in that nowhere in the learned judge’s decision was it mentioned what constitutes a municipality so as so to accord the deceased herein the parameters set out in the Regulation of Wages (General) (Amendment) Order 2017.

23. In response to ground four, the Respondents argues that there are numerous authorities from the High Court and Court of Appeal that assert that special damages must be specifically proved and as such the Appellants having not proved that they spent Kshs. 30,000/- as funeral expenses, the award cannot be made. Reliance was put on Kemfro Africa Ltd T/A Meru Express Services Gathogo Kanini v A.M. Lubia C.A. 21 OF 1984 (1882-1988)1 KAR 727and Maritim & Another vs Anjere (1990-1994) EA at 316 where it was stated that special damages must not only be pleaded but must also be specifically proved.

24. To further buttress the above point, the Respondents pointed that that funeral expenses were not pleaded in the plaint and as such, could not be awarded. In this respect the case of Nairobi Civil Application 283 of 96David Bagaine vs Martin Bundi [1997] eKLRwas cited to assert that a court cannot award a claim that was neither pleaded nor proved.

Analysis and determination

25. It is now settled principle that the duty of the first appellate court is to reconsider the evidence of the trial court, re-evaluate it and make its own conclusions. Again, an appellate will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on misapprehension of the evidence or the trial court acted on wrong principles in arriving at its findings. The Court of Appeal in the case of Selle & Another vs Associated Motor Boat Co. Ltd &Another (1968) EA 123held that:

“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (See also LAW JA, KNELLER & HANCOX AG JJA IN MKUBE VS NYAMURO [1983] KLR, 403-415, AT 403).

26. From the evidence adduced before the trial court as well as the respective submission, I distil only one issue for determination namely, whether the learned trial magistrate erred in the calculation of loss of dependency and in not awarding funeral expenses.

27. In the revered case of Peters v. Sunday Post[1958] E.A. 424 at p. 429, E Sir Kenneth O’Connor P.said:-

“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.”

28. Loss of dependency is awarded under the Fatal Accident’s Act. The principles to be considered were stated in Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988(unreported) by Rtd Ringera, J as :-

“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased.The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

29. The deceased herein was aged 35 years as at the time of his death. He is said to have been a casual labourer. There was no proof of what he earned and therefore, his earnings would be premised on minimum wage provided by the law. The trial court considered his age at 35 years and sided with the defence in classifying the deceased as unemployed, unmarried and that there was no proof of income and that as a casual labourer there is no guarantee that every day, he would get some work to do.

30. The trial court further considered that he would live up to 60 years of age, and having regard to the vagaries of life, he would be expected to work for another 20 years. The trial court adopted a multiplier of 20 years and a dependency ratio of . The court noted that the deceased had dependants namely his parents.

31. According to PW1, Peter Kimani Wainnina who was the deceased’s father, the deceased was a casual laborer who moved from one place to another eking a living from any job he found. In his statement, he stated as follows’

“He was a casual laborer doing whatever odd jobs that were available at the centre. He used to earn an average of Ksh. 600/- per day.”

32. From the above description of the work that the deceased did, it is clear he was a general labourer who is defined as a person contracted to do “any physical job with non-skilled, hands-on tasks, such as cleaning, moving or landscaping.” (www.indeed.com definition). He moved from place to another seeking and begging for any job he could do which such occupation fits into the definition I have given. What this implies is that the wage ought to have been tabulated under Labour Institutions Act, 2007 which provides for the Regulation of Wages (General) (Amendment) Order, 2018which came into force on 1st May, 2018 where wages for general labourers are provided. The deceased having died on 5th May, 2018 was subject to the Regulation.

33. There is no contestation that he hailed from Limuru Municipality, which accords the wage of a general labourer at Ksh. 12,522. 70. The Appellants submitted under Regulation of Wages (General) (Amendment) Order, 2017 which prescribed the minimum wage for a general labourer at Ksh. 11, 926. 40. The court is however mandated to apply the correct law which is the 2018 Regulation. I therefore tabulate the deceased’s earnings at Ksh. 12,522. 70. I would however not disturb the multiplicand and the expected earning life used for the balance of the parameters used in tabulating loss of dependency. The same was reasoned given that the deceased was unmarried, had no children and used to support his parents.

34. Hence, the award under this head would be as under:

Ksh.12,522. 70 × 12×20× = Ksh.

35. As regards funeral expenses, I need not labour on this as the law now is well settled; that even if a Claimant does adduce documentary evidence, the court will normal award a conventional figure which now in Kenya is almost settled at Ksh, 30,000/ for an average funeral. I add, this figure could change depending on the circumstances of the case. In the instant case, there was totally no reason as to why the learned trial magistrate failed to award a conventional figure whilst it is a custom in this country to feed and expend in funerals.

36. The case of Kericho HCCC No.88 of 2003Betsy Chebet (Suing as a Personal Representative of the Estate of Kenneth Kipkoech Langat) Vs Premier Dairy Limited & Benjamin Kiprugut Koech the court took judicial notice that Kenyan communities at funerals feed the mourners and awarded the convectional figure of KShs. 30,000/ buttresses my observation.

37. No other figure was contested. In this regard, I find this appeal with merit. I award damages to the Appellants as follows:

a) Pain and suffering - KShs 50,000/-

b) Loss of expectation of life - KShs 100,000/-

c) Loss of dependency - KShs1,502,724/-

d)Funeral expenses - Kshs. 30,000/-

e) Special damages of - KShs. 68,650/-

Sub-total - Kshs. 1,751,374/-

Less 30% - (Kshs. 525,412. 20)

Grand Total - Kshs. 1,225,961. 80

38. In sum, this appeal succeeds and judgment is hereby entered for the Appellants against the Respondents for the sum of Ksh. 1,225,961. 80. The costs of this appeal are awarded to the Appellants at 70%.

Dated and Delivered at Naivasha this 3rd Day of February, 2022.

G. W. NGENYE-MACHARIA

JUDGE

1. Mr. Wainaina for the Appellants.

2. Wanjiru for the Respondents.