[2022] KEHC 15064 (KLR)

Rukahu & another v Maluku (Suing as legal representative of Silus Maluki Kiminda) (Civil Appeal 58 of 2019) [2022] KEHC 15064 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15064 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 58 of 2019

GMA Dulu, J

November 3, 2022

Between

Samuel Maina Rukahu

1st Appellant

Thomas Rukahu

2nd Appellant

and

Wainji Maluku

Respondent

Suing as legal representative of Silus Maluki Kiminda

(Being an appeal from the Judgment delivered by Hon. A. Ndung’u Senior Resident Magistrate Makindu on the 24th day of July, 2019)

Judgment

1. In a judgment delivered on 24th July 2019 the learned magistrate awarded damages to the respondent in the sum of fKshs.3,098,213/= after deducting 10% contributory negligence of Kshs.344,245/= as liability had been recorded by consent as 90% against the appellants and 10% against the respondent.

2. Dissatisfied with the award of damages, the appellants who were the defendants in the trial court, have come to this court on appeal on the following grounds –1. The learned trial magistrate erred both in law and facts in finding that the respondent was entitled to pay the plaintiff and awarded loss of expectation of life at Kshs.100,000/=, loss of dependency Kshs.3,111,248/= pain and suffering at Kshs.150,000, special damages Kshs.81,410/=.2. The learned trial magistrate erred in fact and in law in failing to consider the appellant’s submissions on quantum.3. The learned trial magistrate erred in fact and in law in failing to consider the appellant’s and respondent’s submissions on multiplicand.4. The learned trial magistrate erred in fact and in law in awarding quantum contemporaneously under the Law Reforms Act and Fatal Accidents Act.5. The learned magistrate erred in law and in fact in awarding damages that were so inordinately high in view of the circumstances of the case.6. The learned trial magistrate erred in law by failing to consider conventional awards for similar cases.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & company advocates for the appellants, and Kinyua Mwaniki & Wainaina advocates for the respondents.

4. This is an appeal on quantum of damages. I thus have to start by stating that the principles upon which an appellate court can interfere with the award of damages by a trial court have been considered in many decided court cases. In my view, it will suffice if I cite only the case of Kemfro Africa Ltd t/a Meru Express Services(1976) and Another –vs- Lubia & Another (No. 2)(1985) e KLR, in which it was stated that the award of general damage is an exercise of discretionary power of a trialcourt. An appellate court will thus only interfere with the award if the trial court took into account an irrelevant factor or left out of account a relevant factor, or that the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

5. It is also a principle of law that it is desirable that, so far as possible comparable similar injuries should be compensated by comparable awards – see Millicent Atieno Ochuonyo –vs- Katola Richard (2015) e KLR.

6. I have perused and considered the evidence on record on proof of quantum of damages herein. The burden was on the respondent to prove the quantum of damages to be awarded by the court on the balance of probabilities, even though liability had already been recorded by consent of the parties.

7. Only one witness testified herein. It was the respondent whose evidence was that the deceased who was her husband, and died in a road traffic accident in a motor vehicle driven by a driver (agent) of the owner of the vehicle. The deceased was a permanent employee at the time of accident and the witness produced a payslip from Kenya Pipeline Ltd, showing his earnings for February 2011. According to this witness the deceased left behind a wife (the witness) and four (4) children aged between 28 years and 12 and 6 years olds. The witness also testified that the family depended on the deceased, and that they incurred medical and funeral expenses. She relied on several documents which were not contested and said that the deceased was 48 years old at the time of death.

8. This being an appeal on quantum of damages, I have to consider each element of the quantum of damages, before coming to a final decision on the appeal.

9. With regard to damages under the Law Reform Act, the trial court awarded Kshs.150,000/= for pain and suffering. I note that at the trial the appellant’s counsel asked for an award of Kshs.10,000/= under this head. On appeal, the same figure is mentioned but not specifically asked for.

10. In assessing the amount, the magistrate relied on several decided court cases such as Millicent Kimuri and Benson Wanjohi Njogu (suing as administrators of the estate of Ephantus Murimi Wanjohi (deceased) –vs- Mbisi Linah Catherine and Another (2015) e KLR where the court awarded Kshs.100,000/= where the deceased died on the same date of accident.

11. In the present case, the deceased was injured at Sultan Hamud area and died later at Aga Khan Hospital same day of the accident. I agree with the magistrate that the deceased suffered a lot of pain and discomfort before death. The figure of Kshs.150,000/= therefore, awarded under this head taking into account inflation is not excessive.

12. With regard to loss of life expectancy, the magistrate awarded Kshs.100,000/=. For a 48 years healthy person and taking into account conventional awards, this figure cannot be said to be inordinately high.

13. I now turn to awards under the Fatal Accidents Act. Loss of dependency is an award in general damages awarded to dependants, who were supported materially by the deceased. It is based on income or reasonable income of the deceased, the number of years of productive life, and a ratio of the income which was used or he or she used to support the family.

14. At the trial, the appellants’ counsel submitted that the dependants were the wife and two children aged 13 and 9 years. He asked for dependency ratio of 1/3, a multiplicand of Kshs.33,360/= and multiplier of 8 years. Thus they asked for an award of Kshs.1,077,120/= on less 10% liability. They also asked for deduction of amounts awarded under the Law Reform Act.

15. On his part, the magistrate applied a multiplicand of Kshs.55,558 and multiplier of 12 years and a dependency ratio of 2/3 arriving at a figure of Kshs.3,111,248/= less 10%.

16. I note that the payslip of the deceased showed total monthly earnings of Kshs.71,605. 30. The deductions included statutory taxes, pension contributions, and other voluntary non-permanent deductions. It is obvious that some of these deductions were a form of savings for the future benefits of the dependants, which have been cut or discontinued at the point of death.

17. In my view, therefore, like the learned trial magistrate, it cannot be legal or fair to peg the multiplicand on the net salary. Only statutory deductions of PAYE and NHIF and KPOWU (trade Union) contributions be discounted. Thus I find that the trial court was correct in arriving at Kshs.55,558/= as the multiplicand.

18. As for the multiplier, the age of the deceased at 48 on death was not disputed. There is no evidence of ill health. He was on permanent and pensionable terms. The 12 years multiplier for a working life up to 60 years is reasonable.

19. The dependency ratio of 2/3 based on the evidence on record where the deceased was the sole bread winner, was also not unreasonable. I thus also uphold that finding and award of the trial court under this head.

20. From the evidence on record, the general damages awarded, were what was pleaded and proved on the balance of probabilities, and I find no error made by the trial court in assessing damages.

21. On whether the award of damages made under the Law Reforms Act should be deducted from the award under the Fatal Accidents Act, I will state that courts including the case of Kemfro (supra) relied upon by the appellants’ counsel, have held that there is no legal requirement for a scientific deduction. It is only where there is undue advantage or enrichment to plaintiffs, due to the two awards, that a deduction is to be made. I do not see any element of undue enrichment herein in the awards made by the trial court under the two statutes. I will thus not disturb the award on this account, as requested.

22. Consequently, and for the above reasons, I find no merits in the appeal. I dismiss the appeal and uphold the decision of the trial court. The appellants will jointly and severally pay the respondent’s costs of appeal.

DELIVERED, SIGNED & DATED THIS 3RDDAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI..................................GEORGE DULUJUDGE