[2022] KEHC 1784 (KLR)

REPUBLC OF KENYA

IN THE HIGH COURT OF KENYA

AT MARSABIT

CIVIL APPEAL NO. E011 OF 2021

RODGERS KINOTI ..................................................................................................APPELLANT

VERSUS

LINUS BUNDI MURITHI & ROSE DAHABO MURITHI (Suing as thelegalrepresentatives

of the estate of Dennis Karani Murithi (Deceased).............................................RESPONDENTS

(Being an appeal from the judgment and decree of Hon. Collins Ombija, RM, in Marsabit PMCCC No. E002 of 2021 delivered on 16/9/2021)

JUDGMENT

1. The respondents had sued the appellant at the lower court seeking to recover general and special damages after their son, the deceased herein, was killed in a road traffic accident after the motor cycle he was riding was hit by a motor vehicle belonging to the appellant. Parties filed consent on liability at the ratio of 80:20 in favour of the respondents. The deceased had died at the age of 19 years. He was unmarried and was said to have been a businessman and a boda boda operator. In assessing damages for loss of dependency, the trial court used a dependency ratio of one-half (1/2). The appellant was aggrieved by that finding and filed this appeal.

2. The grounds of appeal are that:

1. The learned trial Magistrate erred in law and in fact by adopting a half (1/2) dependency ratio in calculating loss of dependency yet the deceased was 19 years old, unmarried and without a child.

2. The learned trail Magistrate ignored the Appellant’s written submissions and authorities cited with regard to the issue of dependency ratio.

3. The appeal was canvassed by way of written submissions. The firm of Oundo Muriuki & co Advocates appeared for the appellant while the firm of M/S Khan & Associates Advocates represented the respondents. The advocates for the appellant submitted that the respondents did not prove the extent to which they were dependent on the deceased. That the trial magistrate did not explain the reason why he arrived at a dependency ratio of ½ when the deceased was unmarried. That it was unfair to assume that the deceased would give ½ of his income to his parents. That the dependency ratio of ½ was unjustified.

4. It was submitted that dependency is a matter of fact. To support this the advocates cited the case of Dickson Taabu Ogutu (suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & Another(2020)eKLR where the Court of Appeal held that:

The onus was on the appellant to prove that their aged parents were indeed dependent on the deceased and the extent of loss they have suffered considering the fact at the time of the hearing the appellant, also their son, had a job at the County Governor’s office. We reiterate the holding in Albert Kubai Mbogori v Violet Jeptum Rahedi [2017] eKLR;

“The degree of dependency on the deceased’s income is a matter of fact. In Boru –vs-Onduu [1982-1988] KAR 299, the Court expressed that,

“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.”

5. The advocates submitted that the trial magistrate failed to consider their submissions that the appropriate dependency ratio where the deceased is unmarried is 1/3. They had referred the trial court to the case of Dickson Taabu Ogutu (supra) where the court held that:

The appellant did not plead in the Plaint that the deceased had a wife nor prove the extent to which his aged parents were dependent on the deceased nor the loss suffered. In those circumstances find that the learned Judge did misapprehend the facts nor apply the wrong principles of law in holding that the appropriate life dependency ratio is 1/3. He did not err and we have no basis to interfere with his decision.

6. They had also relied on the case of Dismas Muhami Wainarua v Sopon Kasirimo Maranta (Suing as administrator and or personal representative of the estate of Partinini Supon (Deceased) (2021)eKLR where the court held that:

44. The deceased left behind parents. He must have supported them in some way. In that regard the ratio could not have been 2/3. The respondent’s counsel agreed that the dependency ratio of 2/3 was on the higher side and suggested a ratio of ½. Although the deceased was not married, it would be difficult to assume without evidence that he gave ½ of his income towards his parents’ support. The ratio of 1/3 would be appropriate.

7. The advocates in this appeal further cited the case of Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu (2021)eKLR where it was held that:

24. In this instance, the deceased was unmarried and the Appellant’s grievance that the trial court fell into error by adopting 2/3 ratio is well taken. The deceased was survived only by his parents who were said to be farmers. Going by the evidence of the first Respondent at the trial, he is in fact the owner of the motorcycle that the deceased rode and used for boda boda business. If he was able to purchase a motorcycle out of farming proceeds, then I am persuaded that the deceased’s parents were reasonably able to cater for most of their needs and therefore given that the deceased was a young man who had not married as observed above, a dependency ratio of 1/3 was fair in the circumstances.

8. The advocates urged the court to replace the dependency ratio of ½ with one of 1/3.

9. The advocates for the respondent had at the lower court made submissions in support of a dependency ratio of 2/3. They had relied on the case of Lochab Transporters Limited V Arison Obara & Another,Civil Appeal No.101 of 2017 where a dependency ratio of 2/3 was used for a boda boda operator.

10. In this appeal the advocates for the respondent supported a dependency ratio of ½. They submitted that courts have acknowledged the importance of children in the context of African communities where there is expectation by parents that children will take care of them in old age. In this respect they cited the case of Sheikh Mushtaq v Nathan Mwangi Kamau Transporters & Others, (1985-1988)1KAR 217 where Nyarangi J held that:

In general, in Kenya children are expected to provide and do provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do that by the established customs of the various African and Asian Communities in Kenya. This particular custom is broadly accepted, respected and practised throughout Kenya both by Africans and Asians. I would say the application of the custom at family level is the basis of the national ethos of being mindful of others’ welfare. In the Asian community, the customs is supported by the Hindu religion whose influence on the life of the Hindu community is well-nigh total. That is common knowledge. With regard to Africans, the courts in Kenya exercise their respective jurisdictions inter aliato the extent the circumstances of Kenya and its inhabitants permit and subject to the qualifications those circumstances render necessary. The trial judge’s contemptuous remarks about the custom of the people is contrary to section 3(1) of the Judicature Act, Cap 8 and therefore to be regretted and disapproved. The custom could not possibly be said to be repugnant to justice and morality. The customs is well within the tenets of the great religions of Hinduism, Christianity and Islam. It is a custom the practice of which appeals to ordinary people in Kenya, is not malevolent and the trial judge’s view that it is ‘outrageous and pernicious’ is not well founded and must be rejected.

11. The advocates cited authorities where courts have adopted a dependency ratio of ½ where the deceased were unmarried and had left behind dependants. The case of James Mulandi v Lochab Brothers Limited, Civil Appeal, No. 136 of 2014 (2020)eKLR, was cited where Odunga J held that:

29. I appreciate the views expressed in Marko Mwenda vs. Bernard Mugambi & Another (Nairobi HCCC No. 2343 of 1993) that:

“Like in every African child, the deceased child is expected to continue assisting her parents financially many years into the unknown future.”

30. However, in this case account must be taken of the fact that the deceased was unmarried and there was a possibility that he would with time marry and have his own family.

31. Accordingly, whereas parents have an expectation of being assisted by their children, 2/3rd dependency ratio is on the higher side. However, being unmarried it is not unreasonable to assume that he could have been contributing to his parents ½ of his income. Accordingly, I adopt the one half as the dependency ratio. As regards the multiplier, even from the Respondent’s own submissions, it would seem that 25 years was reasonable.

12. They also relied on the case of Lucy Wambui Kihoro (Suing as personal representative of the estate of Douglas Kinyua v Elizabeth Njeri Oboung, civil suit No.237 of 2013 (2015)eKLR, where Mabeya J held that:

The deceased was not married and was survived by the Plaintiff who did not furnish evidence on how much the deceased expended on her. But it is most likely that as a son he must have been taking care of her needs. The Plaintiff testified that before his demised the deceased was paying the school fees for his sibling. In Mary Kerubo Mabuka Vs Newton Mucheke Mburu & 3 others(2006) eKLR the court used a multiplier of 20 years on a 26 year old unmarried lady and a dependency ratio of ½. Similarly, in the case of Alice O. Alukwe Vs Akamba Public Road Services Ltd (2013) eKLR, the court used a dependency ratio of ½ on an unmarried lady aged 24 years.

13. The advocates for the respondent urged the court to maintain the dependency ratio of ½ adopted by the trial court.

Analysis and Determination –

14. The appeal is on quantum of general damages. The principles which guide the court in determining whether or not to disturb an award of damages made by a lower court are well settled. The same were stated by the Court of Appeal in Bashir Ahmed Butt –vs- Uwais Ahmed Khan (1982 – 88) KAR 5that:-

“An Appellate court will not disturb and award of damages unless it is as inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles of that he misapprehended the evidence in some material aspect and so arrived at figure which was inordinately high or low.”

15. The evidence in this matter is that the deceased died at the age of 19 years. He was unmarried and was survived by his parents, the respondents herein. His father PW1 in his evidence stated that the deceased was awaiting to join college but he was in the meantime in the business of transporting goods using a motor cycle and using the same motor cycle to carry passengers.

16. I have considered the evidence that was adduced before the lower court and the submissions by the respective advocates for the parties. The issue for determination is whether the trial court erred in adopting a dependency ratio of ½ as opposed to the 1/3 proposed by the appellant.

17. Both advocates for the parties have cited authorities from the High Court supporting their respective positions. One authority, Dickson Taabu Ogutu was from the Court of Appeal. The question is the extent of dependency that the respondents were dependent on the deceased.

18. It is trite law that dependency is a question of fact to be established in each case – see James Mukolo Elisha & Another V Thomas Martin Kibisu, Court of Appeal at Nairobi Civil Appeal No. 31 of 2006.

19. It is clear that opinion is divided among High Court judges on whether dependency ratio where the deceased is unmarried ought to be ½ or 1/3. I have reviewed other cases where dependency ratio for unmarried persons were considered. InJoseph Ndirangu Thuo & Another v Kamau Ngugi (Suing as legal representative and administrator of the estate of Peter Waweru (2019)eKLRMwongo J. used a dependency ratio of ½ for an unmarried lady and cited the cases of Mary Kerubo Mabuka v Newton Mucheke Mburu & 3 others (2006) eKLRwherethe court used a dependency raio of ½ on a 26 year old unmarried lady; Alice O. Alukwe v Akamba Public Road Services Ltd (2013) eKLR where the court used a dependency ratio of 1/2 on an unmarried lady aged 24 years and Lucy Wambui Kihoro (Suing as Personal Representative of Deceased, Douglas Kinyua Wambui) v Elizabeth Njeri Obuong [2015] eKLR where the Court similarly used a dependency ratio of ½ on an unmarried son aged 30 years.

20. In Steve Ongingo & Another v Susan Adongo Otieno & Another (2018)eKLR Cherere J. used a dependency ratio of ½ where the deceased was unmarried. Also in Attorney General v Savinah Francis (Suing as the personal representative of the estate of Peter Muse Muema (2020)eKLR Ong`undi J. used a dependency ratio of ½.

21. In H. Young & Co. East Africa Limited v Lawrence Ayako Orero (Suing as legal representative of the estate of Dominic Cornel Moemi (Deceased) & Another (2019)eKLR Ougo J. applied a dependency ratio of 1/3.

22. The guiding factor in determining the dependency ratio where the deceased is unmarried is the re-statement by the Court of Appeal in Dickson Taabu Ogutu (supra) that:

“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.”

23. In that case, where the deceased was unmarried, the court used a dependency ratio of 1/3.

24. In the instant case the trial court did not give any reason as to why it opted for dependency ratio of ½ as opposed to the appellant`s submission of 1/3. The deceased in the matter was survived by his parents. He had just finished form 4 and was preparing to go to college. The respondents never led evidence on the extent to which they were dependent on the deceased. As dependency is a question of fact the extent of it was not proved.

25. The income of the deceased was assessed at Ksh10,000/-. I do not think that the deceased would have spent half of that sum on his parents. With the hard economic times that we are living in, I fear that young men of today do not have that strong commitment to spend a large portion of their income on their parents as used to happen in the past. Majority of them only provide the basic needs. In the premises, I am of the view that the dependency ratio of ½ adopted by the trial court was on the higher side. I consider a dependency ratio of 1/3 to be more reasonable.

26. The upshot is that I find merit in the argument by the appellant that the dependency ratio of ½ adopted by the trial court was not justified. I therefore substitute the dependency ratio adopted by the lower court with 1/3. It is so ordered.

27. The appellant to have the costs of the appeal.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 3RD DAY OF MARCH , 2022

J. N. NJAGI

JUDGE

In the presence of:

N/A for Appellant

N/A for Respondents

Court Assistant: Peter

30 days Right of Appeal