[2019] KEHC 5761 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

CIVIL APPEAL NO. 34 OF 2016

SAMUEL KABUTHIA NDANA…...……………………... APPELLANT

VERSUS

JENIFFER WAWIRE NJERU…………..…………...1ST RESPONDENT

CECILIA MUTHONI NJERU……………...……….2ND RESPONDENT

(both suing on behalf of the dependants of the estate of EDWARD CHEGE MWANGI)

(An appeal against the judgment of the Chief Magistrate Embu in CMCC No. 97 of 2005)

J U D G M EN T

A. Introduction

1. The appellant being dissatisfied with the judgement of the Embu Chief Magistrate lodged this appeal dated challenging the entire judgment of the court. It is contended that the appellant was wrongly held to be fully liable for the accident whereas the respondent ought to have been given a share of the blame.

2. The appellant faults the magistrate for awarding excessive damages for loss of dependency resulting from the application of wrong principles in the assessment. It was further contended that the award of special damages was not supported by receipts as required by the law.

3. The respondents filed a suit on behalf of the deceased estate for general damages for pain and suffering and loss of amenities, special damages of Kshs. 31,975/= as well as costs of the suit. The case was determined in favour of the respondents against the appellant at 100% liability and damages were awarded at Kshs. 30,000/= for pain and suffering, Kshs. 150,000/= for loss of expectation of life, Kshs. 4,800,000/= for loss of dependency and special damages of Kshs. 31,975/= leading to a cumulative award of Kshs. 5,010,975/= plus costs of the suit.

4. The parties disposed of the appeal by way of written submissions.

B. Appellant’s Submissions

5. It was submitted that the trial magistrate erred in wholly blaming the appellant for the accident as the rider of the motorcycle was partly to blame for the accident for he was speeding and as such liability should have been apportioned at 30:70.

6. On pain and suffering, the appellant submitted that the award of Kshs. 30,000/= for pain and suffering was excessive considering the deceased died immediately. He proposed an award of Kshs. 10,000/= and supported this with the case of Nairobi Civil Case No. 91 of 2014 James Gakinya Karienye & Aor v Perminus Kariuki Githinji where the same was awarded.

7. It was further submitted that the award for general damages for loss of expectation of life of Kshs. 150,000/= was excessive and proposed Kshs. 60,000/= guided by the decision in David Ngunje Mwangi v The Chairman of the Board of Governors of Njiri High School [2001] eKLR where the deceased was aged 17 years and the court awarded Kshs. 60,000/=.

8. The appellant submitted that the multiplicand of Kshs. 30,000/= was excessive and proposed Kshs. 5,218/= which was the minimum wage of unskilled workers at the time. It was further argued that there was no supporting evidence from the respondents for the multiplicand adopted for assessment of the damages for loss of dependency. The appellant further contended that the court ought to have used a multiplier of 8 years as opposed to 20 years considering that the deceased was 47 years at the time of death. He further argued that the only dependants of the deceased were his wife and three minors and thus a ratio of ? would be applicable.

9. The appellant further submitted that the respondents only provided a receipt for Kshs. 500/= and that was all they were entitled to in special damages.

C. Respondents’ Submissions

10. It is the respondent’s submission that the appellant’s liability was uncontroverted especially as the appellant was convicted in a traffic case and that further the evidence adduced by the driver of motor vehicle KAX 994 W at the traffic court, which was heavily relied on by the appellant indicated that the deceased was not overtaking as alleged.

11. The respondent stated that they provided receipts totalling to Kshs. 31,975/= as evidence of special damages. Regarding the general damages awarded to the respondents, it was their submission that the reasoning of the trial magistrate was justified based on the evidence adduced during trial.

12. The respondent further submitted that they founded their claims on the Law Reform Act and Fatal Accidents Act and that the trial magistrate followed the principles laid in the case of Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Anor Nairobi HCCC No. 1638 of 1988 (UR) regarding assessment of the damages.

13. It was further argued that the fact that the deceased wages was not documented should not be a ground to alter the trial magistrates’ award in assessment of damages for loss of dependency. The case of Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLRwhere the court held that documentary evidence was not the only evidence to prove an individual’s earnings was relied on.

D. Analysis & Determination

14. The duty of a first Appellate Court as was held in the cases of Mwana Sokoni v Kenya Bus Service Ltd (1985) KLR 931 and Selle v Associated Motor Boat company Ltd [1968] EA 123is to analyse and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.

15. It is the respondents’ case that on the material date the deceased was riding his motorcycle along the Makutano-Mwea road and that the appellant was driving his car behind him with both heading to the same direction. The appellant was said to have been driving at an excessive speed and hit the deceased from behind. The appellant was later charged and convicted in Traffic Case No. 240 of 2013 of the offence of causing death by dangerous driving.

16. The issues for determination in this appeal are as follows: -

a) Whether the court’s finding against the appellant on full liability was proved.

b) Whether the magistrate overlooked some material or relied on wrong principles in assessing he damages thus arriving at an excessive award.

c) Whether special damages were proved.

17. The appellant’s contention was that the respondent was partly liable for the accident for he was speeding arguing that liability should be apportioned at the ration of 30:70. The evidence of the respondent exonerated the deceased for causing the accident in that it was said the appellant is the one who was over speeding and hit the respondent from behind. It is noteworthy that the appellant was arrested, charged and convicted of the offence of careless driving and fined Kshs. 50,000/= in default of which he would serve a twelve (12) months imprisonment. This was after going through a full trial in the traffic case.

18. The appellant testified that the respondent was overtaking his vehicle when he hit the side mirror and that he was carrying a luggage of three sacks on the motor cycle that hit the vehicle of the appellant causing the respondent to fall down and was thereby run over by another vehicle. The appellant said he was driving at 50 – 60 kilometres which the magistrate did find worthy of credibility.

19. The appellant’s evidence was disapproved by PW1 who investigated the accident and blamed the appellant for the accident. He charged him with a traffic offence for which the appellant was convicted.

20. The appellant did not adduce evidence to support his allegations that it is the respondent who was on the wrong or even imply that the accident occurred on the tarmac so as to blame the respondent.

21. I find that the respondent proved full liability against the appellant and that no basis has been laid for apportionment.

22. It is the appellant’s submission that the trial magistrate erred in law and fact in his assessment of the general damages due to the respondents. The principles that guide this court in deciding whether to disturb quantum of damages accessed were set out in the case of KEMFRO AFRICA LTD t/a MERU EXPRESS SERVICES v AM LUBIA & ANOTHER [1987] KLR 27 where Kneller J.A held:-

“the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge... be that it must be satisfied that either that the judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages.”

23. On loss of dependency, the appellant faulted the trial court on the application of an excessively high multiplicand, multiplier and dependency ratio. He contended that there was no evidence on record of how much the deceased earned. The evidence was that the deceased was engaged in informal employment. The respondent did not adduce any evidence to prove the earnings of the deceased. He said that he earned Kshs. 90,000/= from his business and saved Kshs. 30,000/= a month. No evidence of the business of the deceased was tendered.

24. The magistrate did not give any basis of using Kshs. 30,000/= as the multiplicand considering that there was no evidence of earnings.

25. In my view, the court overlooked the principle that “he who alleges must prove” anchored in Section 107 of the evidence Act and proceeded to assess damages based on assertions that were not proved.

26. In making the award the magistrate used the multiplier of twenty (20) years. This cannot be faulted because the deceased was aged 47 years at the date of the accident given the normal retirement age of sixty (60) years in the Civil Service.

27. The deceased was married with a wife and three minor children whom he supported. In my considered view, the appropriately applied in this case.

28. I am aware that the Court of Appeal in the case of Jacob Ayiga Maruja (supra) held that documentary evidence was not the only evidence to prove earnings. However, due to the inconsistencies highlighted above, I am of the view that this case was not fit for using the multiplier method in arriving at the damages payable.

29. It was held in the case of Mwanzia v Ngalali Mutua Kenya Bus Ltdand quoted in Albert Odawa v Gichumu Githenji NKU HCCA No.15 Of 2003 (2007), KLR,Justice Ringera was of the following view;

“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

30. This reasoning was adopted in Mary Khayesi Awalo & Another v Mwilu Malungu & Another ELD HCCC NO. 19 OF 1997 [1999] EKLRwhere Nambuye J., stated that: -

“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”

31. In the case of Kenya Wildlife Services v Geoffrey Gichur Mwaura [2018] eKLR the court held that a global sum of Kshs 700,000/= for loss dependency under the Fatal Accident Act would suffice in the case where the deceased was aged 13 years old.

32. In the case of John Wamae & 2 others v Jane Kituku Nziva & another [2017] eKLR, the court held that a trial court’s award be set aside and replaced with a lump sum of Kshs. 400,000/= as general damages where the deceased was aged 61 years old.

33. I believe the best approach with respect to the case before the trial court was to apply the doctrine of a global sum as was held in the preceding cases. In my considered view, the award of Kshs. 4,800,000/= for loss of dependency was assessed based on wrong principles and resulted in an inordinately high award taking into consideration of the facts of this case.

34. I hereby set aside the award for loss of dependency and apply the global sum principle whereby I assess a sum of Kshs. 1,300,000/= for loss of dependency under the Fatal Accident Act as adequate compensation. The said sum replaces the earlier award.

35. The trial magistrate awarded Kshs. 30,000/= for pain and suffering and Kshs. 150,000/= for loss of expectation of life. In the case of Rose vs Ford, (1937) AC 826 it was held that damages for loss of expectation of life can be recovered on behalf of a deceased’s estate. Further, in Benham vs Gambling, (1941) AC 157 it was further held that only moderate awards should be granted under this head for the following reasons: -

“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”

36. 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 Kshs. 100,000/= while for pain and suffering the conventional awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present case PW1 testified that the deceased died at the scene of the accident and I find that an award of Kshs. 50,000/= for pain and suffering was adequate. I hereby uphold the figure of Kshs. 50,000/= awarded by the magistrate. Similarly, it is my view that the award of Kshs. 150,000/= was also inordinately high. It is hereby set aside and replaced with damages of Kshs. 100,000/=.

37. It is trite law that for special damages awarded must be specifically pleaded and also strictly proved. It was held as follows in the case of Maritim & Another –v- Anjere (1990-1994) EA 312at 316 in this regard: -

“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”

38. The Plaintiffs pleaded special damages of Kshs 31,975 and produced a receipt of Kshs. 500/= only. The figure Kshs. 30,000/= was for funeral expenses for which no receipt was produced.

39. The Court of Appeal in the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, heldinter alia: -

"We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. In this case, we think the Shs.117,325/= awarded by the learned trial Judge as “funeral expenses and other expenses” were wholly unreasonable in the circumstances and we note that the respondent did not give a complete break-down of what he spent the money on. We accordingly reduce that figure to Shs.60,000/= which is just above half of the sum claimed. We, however, must not be understood to be laying down any law that in subsequent cases, Shs.60,000/= must be given as the reasonable funeral and other expenses. Those items are and must remain subject to proof in each and every case and the Shs.60,000/= we have awarded herein apply strictly to the circumstances of this case."

40. Relying on theMaruja case (supra), I find that an award for funeral expenses can be made even in the absence of receipt as long as the amount awarded is reasonable. This is for the reason that expenditure for burial in the African society is rule rather than exception. I find the amount pleaded as funeral expenses of Kshs. 30,000/= to be reasonable and I hereby uphold the same.

41. The upshot of the above is that the trial court’s decision is set aside and replaced with the award below: -

a) Loss of Dependency Kshs. 1,300,000

General damages for pain & Suffering Kshs. 50,000

Loss of Expectation of life Kshs. 100,000

Special damages Kshs. 31,975

TOTAL Kshs. 1,481,975

b) Costs of the lower court suit is hereby awarded to the respondents.

c) Each party to meet their costs for this appeal.

42. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 10TH DAY OF JULY, 2019.

F. MUCHEMI

JUDGE

In the presence of: -

Mr. Mbwiria for Mr. Mwangi for Appellants

Ms. Ndorongo for Achola Jaoko for Respondents