[2022] KEHC 11425 (KLR)

Robinson Odhiambo Kotula [Suing on behalf the Estate of Silfastus Juma Achilla] v Kenya Power & Lighting Company Ltd (Civil Appeal E117 of 2021) [2022] KEHC 11425 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11425 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E117 of 2021

KW Kiarie, J

July 13, 2022

Between

Robinson Odhiambo Kotula [Suing on behalf the Estate of Silfastus Juma Achilla]

Appellant

and

Kenya Power & Lighting Company Ltd

Respondent

Judgment

1. Robinson Odhiambo Kotula, the appellant herein was the plaintiff in Oyugis Senior Principal Magistrate’s SPMCC No. E28 of 2020. He had sued on behalf of the estate of Silfastus Juma Achilla for compensation after the latter died after electrocution by a live wire from the respondent company’s cables. The learned trial magistrate delivered judgment dated 18th November, 2021 where the appellant was awarded Kshs. 394, 340/= general damages.

2. The appellant was aggrieved by the said judgment and filed this appeal. The appellant was represented by the firm of Odhiambo & Associates Advocates. He raised the following grounds of appeal:a.That the honourable magistrate erred in law and fact in awarding kshs.100, 000/- as damages for pain and suffering which award is inordinately too low and is an erroneous estimate.b.The honorable magistrate erred in law and fact in awarding kshs.100,000/- as damages for pain and suffering in spite of the evidence that the deceased went through pain for a about 1 hour before breathing his last.c.The honorable magistrate erred in law and fact in awarding kshs.100, 000/- as damages for pain and suffering which was manifestly too low and incommensurate with the finding by the court that the deceased stared at his inevitable death for 1 hour.d.The honourable magistrate erred in law and fact awarding kshs.100, 000/- as damages and pain and suffering which award is too low in light of the circumstances of the death.e.The honorable magistrate erred in law and fact in not award the plaintiff on behalf of the widow, Ann Auma Juma, damages for pain and suffering in spite of evidence that the widow went through psychological trauma upon discovering her husband’s body.f.The honourable magistrate erred in law and in fact in ignoring the binding decision of Christopher York Robinson vs. Genail Investments INC & another [2019] eKLR I by the High Court on damages for pain and suffering are awardable to a defendant/widow who suffers psychological trauma following the death of a loved one/husband.g.The honourable magistrate erred in law and in fact in using the multiplier of 5 years while disregarding the evidence that the deceased was energetic and in good health and could have lived longer.h.The honourable magistrate erred in law and fact in not awarding special damages for funeral and burial expenses as a matter of course.i.The honourable magistrate erred in law and fact in not awarding special damages for funeral and burial expenses on the basis of lack of receipts yet the established legal principle is that the dead must be buried and burial and expenses must be incurred in burial preparations.j.The honorable magistrate erred in law and in fact in ignoring the binding decision of R.K.O. & another v Kenya Power & Lighting Company Ltd [2015] eKLR by the High Court.k.The honorable magistrate erred in law and fact in disregarding the evidence of the plaintiff that no receipts were issued for the animals slaughtered and other foods prepared during burial of the deceased.l.The honourable magistrate erred in law and fact in failing to do justice before her.

3. The respondent was represented by Peter M. Karanja Advocate who prayed for the dismissal of the appeal for lack of merits.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The grounds of appeal are essentially on:a.General damages for pain and suffering;b.General damages for pain and suffering on behalf of the widow;c.Damages for loss of dependency and the multiplier adopted; andd.Failure to award special damages for burial expenses.

6. An appellate court will not disturb an award of damages unless it be shown that the trial court proceeded on wrong principles or that he misapprehended the evidence in some material respect thus arriving at an erroneous award. in Butt vs. Khan [1981] KLR 349 at page 356 Law J.A. Said:…an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.One of the complaints by the appellant is that the award on pain and suffering was inordinately low. In Retco East Africa Limited vs. Josephine Kwamboka Nyachaki & another [2021] eKLR High Court at Nyamira ( Esther N. Maina J.) the held thus:“The deceased must have suffered considerable pain. The awards for pain and suffering are usually nominal but each case must be determined on its own merits. In the persuasive case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR, the court observed: -“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”I have considered the cases relied on by the parties herein. In this case where the deceased died 30 minutes after the accident an award of Kshs. 100,000/= for pain and suffering is not only fair but reasonable as the court is also enjoined to consider passage of time and inflation. Kshs. 10,000/= proposed by the appellant is what was awarded in the eighties and the nineties. The award under that head is upheld.”This is a persuasive case. Having looked at other decided cases, I wholly agree with this approach. The award of Kshs.100, 000/= for pain and suffering cannot be said to be inordinately low. I therefore have no reason to interfere this award.

7. Parties are bound by their pleadings. InGlobal Vehicles Kenya Limited vs. Lenana Road Motors [2015] eKLR the Court of Appeal stated:Pleadings serve several fundamental purposes. Firstly, they define the nature and contours of the dispute that the parties have submitted to the court for resolution.Secondly it is through pleadings that the fair hearing that is promised by Article 50(1) of the Constitution is actualized. That provision guarantees every person who has a dispute that can be resolved by the application of the law, the right to have it decided in a fair and public hearing by a court or independent and impartial tribunal or body. That right to a fair hearing comes alive in pleadings, which make known to each party the exact case it has to prove or rebut.Thirdly, pleadings contribute immensely to speedy resolution of dispute and cost-efficient delivery of justice. Because pleadings ensure that the dispute is focused and precisely defined, they not only eliminate ambushes and surprises, but also wastage of time and unnecessary expenses involved in calling witnesses to prove or disprove matters that are not in dispute before the court. It can therefore be argued that pleadings also contribute immensely to the realization of the cardinal constitutional principle that justice shall not be delayed.Since the appellant did not plead damages for pain and suffering for the widow, it will not be open on appeal to argue that the same was not awarded. Courts will only consider an issue that has been pleaded.The appellant had pleaded Kshs.314, 000/= funeral expenses but was awarded Kshs.4, 700/= which was specifically proved. This claim falls in the category of special damages which must not pleaded but also proved. However, the requirement for strict proof has lately been relaxed owing to the obtaining emotional circumstances during the preparations and at the time of funerals. In the case of Muthike Muciimi Nyaga (Suing as Administrator of the Estate of James Githinji Muthike (Deceased)) vs. Dubai Superhardware [2021] eKLR the High Court (J. N. Mulwa) took judicial notice of funeral expenses and held as follows:This expense is a special damage. It is trite that special damages must not only be pleaded but also strictly proved. A sum of Kshs. 50,000/= was pleaded in the plaint as funeral expenses. There is a long list of authorities to that effect. 22. However, with hardships and difficulties faced by deceased’s mourning families, it has now become necessary and trite to allow, without strict prove, reasonable funeral expenses.The Court of Appeal in the case ofJacob Ayiga Maruja & another vs. Simeon Obayo [2005] eKLR rendered itself thus:We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses” and proceeded to allow an expense of Sh.60, 000/= towards funeral expenses in the case.In the case of Premier Dairy Limited vs. Amrit Singh Sago & Another, C.A No. 312/2009 the Court of Appeal took judicial notice of the fact that:It would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern of the bereaved family is that a close relative has died and the body needs to be interred according to the custom of a particular community involved. 24. Guided by the above pronouncements, I set aside the trial court’s Nil award on funeral expenses, and substitute the same with an award of Kshs. 50,000/= as funeral expenses.I subscribe to this school of thought. It is only fair to award burial expenses even where the same has not been proved as long as the award is modest. In the instant case therefore, in addition to the amount proved, I make a further award of Kshs.100, 000/= which in my view is a reasonable sum.

8. The deceased herein died at the age of 72 years. I have looked at several authorities that have dealt with deceased persons of about the same age as the deceased herein at the time of death. The In Wilson Saiya vs. David Winga Odongo (Suing as the legal representative of Helida Awino Odongo - Deceased)[2018] eKLR the court observed:From the various case law on record I am persuaded that the multiplier of 10 years for a 72-years old is on the higher side. I will hence also set it aside and substitute it with a multiplier of 5 years.In the instant case therefore, I will not interfere with the multiplier adopted by the trial court.

9. Since the appeal has partially succeeded, the appellant will have half costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 13THDAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE