[2022] KEHC 13850 (KLR)

Rono v Chebet & another (Suing as the Legal Representatives of the estate of Priscillah Komen Kiprotich (DCD) (Civil Appeal E099 of 2021) [2022] KEHC 13850 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13850 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E099 of 2021

RN Nyakundi, J

October 12, 2022

Between

Vincent Kibiwott Rono

Appellant

and

Abraham Kiprotich Chebet

1st Respondent

Lorna Jepchirchir Kiprotich

2nd Respondent

Suing as the Legal Representatives of the estate of Priscillah Komen Kiprotich (DCD

Judgment

1. The appellant herein was the respondent in Iten CMCC No 17 of 2019 which was instituted by way of a plaint dated August 14, 2019 as a result of a road traffic accident which occurred on January 24, 2019 along the Eldoret - Eldama Ravine Road. The deceased, one Prisciliah Komen Kiprotich(DCD) was a passenger aboard motor vehicle registration number KBG 035L Toyota Matatu when at Maji Mazuri area, the said motor vehicle was involved in an accident and rolled and as a consequence thereof, she sustained fatal injuries.

2. The trial court heard the matter to its logical condition and delivered judgment in the following terms;The suit was heard and judgment was finally delivered in the following terms;a)Liability apportioned at 100%b)Pain and suffering Kshs 70,000/=c)Loss of expectation of life Kshs 100,000/=d)Under the fatal accidentsact loss of dependency Kshs 33,273x12x9x2/3 Kshs 2,395,674/=Sub Total Kshs 2,935,674/=Plus, costs and interest.

3. The appellant being dissatisfied with the decision of the trial court instituted the present appeal vide a memorandum of appeal dated August 20, 2021 which was based on the following grounds;1. That the learned trial magistrate erred in law and in fact by failing to appreciate the applicable principles used in assessment of damages under the Fatal Accidents Act.2. That the learned trial magistrate erred in law and in fact by adopting a multiplier of nine (9) years without taking into account the vicissitudes and vagaries of life.3. That the learned trial magistrate erred in law and in fact by adopting a multiplicand of Kshs 33,273. 25/= instead of adopting a multiplicand of Kshs 8,286. 10/= which was the deceased's net pay as evidenced by the pay slip produced in court as an exhibit.

Appellant’s case 4. The appellant filed submissions dated July 30, 2022. It is the appellant’s case that it is now trite law that in assessing damages under Fatal Accident Act, damages under law reform must be taken into account in the case where the dependant who will benefit under the latter Act. To buttress this submission, he relied on the Court of Appeals’ finding inNairobi Civil Appeal No 14 OF 1989 Maina Kaniaru vs Josephat Muriuki [1995] eKLR. Further, he submitted that The Insurance (Motor Vehicle Third Party Risks) Amendment Act, 2013 now legislates the above judicial position by providing for a formula for compensation in fatal claims by taking into account the multiplier, multiplicand and the dependency ratio which is indeed the common approach taken in computing general damages under the Fatal Accidents Act. The appellant submitted that only dependants can sue and benefit under this Act. Section 4 describes a dependant as:'the wife, husband, parent and child of the person whose death was so cause'.

5. The appellant submitted that PW1, who said he was the deceased's widower testified that the deceased was aged 51 years at the time of her death. Further, that the trial court erred when it applied a multiplier of 9 years, being the full remaining years that the deceased had until her retirement at 60 years. It was his case that the trial court did not take into account life's uncanny and unpredictable circumstances, i.e the vagaries of life that would lower the chances of survival for the deceased.

6. The appellant submitted for the application of a multiplier of 5 years while relying on the case of Easy coach Bus Services & another v Henry Charles Tsuma & another (suing as the administrators and personal representatives of the estate of Josephine Weyanga Tsuma - deceased) [20191 eKLR. He also cited the case of Francis Nzivo Munguti & another v Agnes Nechesa Preston [2016] eKLR in support of this submission.

7. The appellant challenged the award for loss of dependency and submitted that the deceased had taken loans, based on the deductions from the payslip thus the sum of Kshs 8, 286/= was taken home. His starting salary was Kshs 37,710/- as an assistant chief. The notion here is that the deceased had already applied and/or utilized the loan amounts therefore the loans were now being recovered and in awarding the same, the learned trial magistrate erred by not factoring in these deductions and this therefore led to double compensation as the loan proceeds had already been utilized by the deceased. He relied on the case of Janet Chonge Walumbe & 2 Others - vs- Julius Mwaniki & Another (2019) eKLR -Machakos HCCC No 332 of 202 where the said position was opined by the High Court. The appellant urged the court to award for loss of dependency as follows; Kshs 8,286. 10/=x2/3 x 12x 5 years = Kshs 331,444/=

Respondent’s case 8. I note that the appeal is on quantum and therefore the relevant submissions to the suit are on that issue alone. The respondent’s case is that the deceased was an assistant chief and used to earn the sum of Kshs 37,710 per month as per the payslips produced in evidence. She was the sole provider of her family and all of whom by reason of her untimely death lost support, any financial provisions, companionship and suffered loss and damage. Her dependants included the husband, son and daughters who suffered a great loss as a result of the deceased death. There were birth certificates to support evidence of the existence of the deceased children and who are of tender age and pursuing schooling. A marriage certificate, the letter from the chief and birth certificate showed that the deceased had a husband and children who depended on her.

9. The dependency ratio of 2/3 adopted by the court was reasonable as the deceased was eh sole bread winner of her family and relatives. He cited Nakuru HCCC No 99 of1994 – John Mwangi vs Patrick Kariuki & Anor in support of this submission.

10. The deceased being a civil servant and an assistant chief would have worked up to the retirement age of 60 years. The multiplier of 9 years of age was thus reasonable. In coming to the multiplier of 9 years the court considered vagaries and vicissitudes of life. The respondents referred to a payslip which is found at page 027 of the record of appeal which shows that the deceased was earning Kshs 37,710 and after taxes the court adopted an income of Kshs 33,273. 25. In the respondents’ view the award is reasonable considering that the deceased's income was reduced from Kshs 37,710 to Kshs 33,273. 25 to factor in taxes.

11. With regards to the award for damages for loss of expectation, the respondent submitted that the same was reasonable as the deceased was aged 51 years of age and had the prospects of staying longer in this world. He cited Mombasa HCCC No 478 of1994 Kiptampan Lockorir vs Kadenda Kenya and Another where the deceased was aged 45 years at the time of his death and the court made an award of Kshs 150,000 for loss of expectation of life.

12. On damages for pain and suffering the respondent submitted that the subordinate court made an award of Kshs 70,000 under this head. The deceased suffered a lot of pain and suffering before her death and therefore the award of Kshs 70,000 made by the court was reasonable. He cited Mombasa16RD of1997 Mwalla Katana Mwagongo vs Kenya Post and Telcomwhere the court made a sum of Kshs 100,000 as damages for pain and suffering.

13. The respondents’ submission on special damages was that the court made an award of Kshs 370,000/- which was specifically pleaded and proven.

Issues for determination whether the trial court erred in using a multiplier of 9 years 14. This being the first appellate court, I am required to re-evaluate evidence adduced before the trial court and arrive at an independent determination. This position was held in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others (1968) EA 123 where the court stated as follows: -'An appeal to this court from the trial court is by way of retrial and the principles upon which the court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions thought it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.'

15. Therefore, this court can only interfere with assessment by the trial court where it is satisfied that the court took into account an irrelevant factor or left out a relevant factor or the award was either inordinately high or low as to amount to an erroneous estimate of the damage or that the assessment was not based on evidence.

16. The appellant proposed the application of a multiplier of 5 years as opposed to one of 9 years on the basis that the relevant factor to be taken into account was that of the period of dependency of the widower, as opposed to the working life of the deceased. In E M K & another v E O O [2018] eKLR the court held;Lastly, on the multiplier, the deceased was aged 51 years when he died as shown in the death certificate produced by PW3 as an exhibit. Everything being equal he would have worked to the official retirement age of 60 years. But due allowance must be given for the vagaries, vicissitudes and uncertainties of life, and due regard must also be had of the fact that the payment under this head is also being made in a lump sum. The plaintiffs’ advocates propose a multiplier of 11 years while the defendant’s advocates proposed 8 years. I find that a multiplier of 8 years would be reasonable.

17. Taking into consideration the vagaries and vicissitudes of life, I find that a multiplier of 8 years would have been more reasonable. On this ground the appeal succeeds.

Whether the trial court erred in its adoption of a multiplicand of Kshs 33,273. 25 18. The appellants’ basis for challenging this award was that the respondent had taken out loans and after deductions, Kshs 8,286/- was his take home salary. In D K M (Suing as Legal Representative to the Estate of J M M – Deceased) vs Mehari K Towolde [2018] eKLR the court stated that,'The plaintiff had urged the court to use a multiplicand of Ksh 56,235 which was the gross pay. The payslip annexed shows there were some deductions and the defendant urged the court to use the net salary of Ksh 28,726. The letter from the Ministry of Medical Services showed total earnings as Ksh 56,235. The net pay for February 2005 indicates Kshs 29578 as net salary. The court cannot calculate the loss of dependency based on the total pay as the deductions do not necessarily go to the benefit of the dependants. The court adopts Ksh 29,534 as per the multiplicand.Therefore the multiplicand will be a proportion of the deceased’s net income as was also held in the case of Chunibhai J Patel and Another v PF Hayes and Others [1957] EA 748, 749, quoted in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased) v Kiarie Shoe Stores Limited [2015] eKLR where the Court of Appeal stated the law on assessment of damages under the Fatal Accidents Act which we cite in part as follows: 'The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase.'

19. I have perused the record of appeal and the payslip that was produced in court indicated that the net income of the deceased was Kshs 8,286. 10/-. The trial court in its determination only considered the income after deduction of taxes and did not consider the loan deductions therein. The question arising therefrom is whether the court should consider deductions other than the statutory deductions in determining a multiplicand. In Kisumu Civil Appeal Number 48 of 2016 - Mary Osano (Personal Representative of the estate Charles Otwori Ogechi - Deceased) vs Simon Kimutai [2020] eKLR, the same court stated as follows:'Counsel for the appellant submitted that the deceased’s net pay as evidenced by a copy of his payslip was Kshs 53,550 per month, with a house allowance of Kshs 45,000 per month which totals to Kshs 98,550. The statutory deductions as contained in the payslip are; PAYE at Kshs 23,947; NHIF at Kshs 320 and NSSF at Kshs 3748 which totals to Kshs 28,015. The rest do not amount to statutory deductions as the learned judge erroneously held. In our assessment, the rest of the deductions were either in the form of savings or payment of loans, none of which are to be factored in when determining a multiplicand.'

20. I find that the trial court did not err in its determination of the multiplicand. The issue of ratio of dependency is not disputed. The appeal succeeds to the extent that the multiplier is reduced from 9 years to 8 years.

21. Therefore, the award for damages for loss of dependency is as follows; Kshs 33,273. 25 x 12 x 8 x 2/3 = Kshs 2,129,488/-

22. I conclude as did the learned trial magistrate that the principles applied in assessing quantum was within the guidelines in the cited authorities. The review has been occasioned as stated elsewhere in the particular facts on multiplier/multiplicand formula. The appeal succeeds to that extent with costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiM/S Kimondo Gachoka & CO. Adv for appellantM/S Mwinamo Lugonzo & CO. Adv for respondent