[2023] KEHC 25213 (KLR)

Security Group Kenya Limited v Owino & another (Suing as Legal Representatives of the Estate of Christabel Alela Makokha - Deceased) (Civil Appeal E033 of 2021) [2023] KEHC 25213 (KLR) (Civ) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25213 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E033 of 2021

AN Ongeri, J

November 10, 2023

Between

Security Group Kenya Limited

Appellant

and

Godliver Night Owino

1st Respondent

Julius Makokha Mugeni

2nd Respondent

Suing as Legal Representatives of the Estate of Christabel Alela Makokha - Deceased

(Being an appeal from the judgment of Hon. D. W. Mburu (SPM) delivered on 18/12/2020 in Milimani CMCC no. 6077 of 2018)

Judgment

1. The respondent filed Milimani CMCC No. 6077 of 2018 claiming damages under both the Law Reform Act and the Fatal Accident Act for fatal injuries sustained by the deceased CHRISTABEL ALELA MAKOKHA on 14/1/2017 when she was involved in an accident with motor vehicle registration no. KCB 358B while a pedestrian along Kuwinda Mosque Road at Nairobi.

2. The parties settled on liability at 80:20% and the trial court assessed damages as follows;General damages for kshs.i.Pain and suffering 100,000ii.Loss of expectation of life 100,000iii.Loss of dependency 1,000,000iv.Special damages 95,050Total 1,295,050Less 20% liability 1,036,040

3. The appellant has appealed on the following grounds;i.That the trial court failed to consider the age of the deceased who was a minor.ii.That the trial court failed to provide a basis of the award of kshs.1,036,040. iii.That the trial court awarded damages that were inordinately high in the circumstances.iv.That the trial court ignored the principles applicable and relevant authorities in awarding general damages.v.That the trial court proceeded on wrong principles and failed to apply precedents and also conventional awards in similar cases.

4. The parties filed written submissions which I have duly considered.

5. In the case of Peters –Vs- Sunday Post [1958] EA 424 pg 429 the court stated as follows on the duty of the first appellate court;“It is a strong thing for an Appellate court to differ from the finding, on a question of fact, of a Judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence……to determine whether the conclusion originally reached upon it should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion.”

6. The sole issue for determination in this appeal is whether the damages for loss of dependency awarded by the trial court was inordinately high in the circumstances of this case.

7. I find that the deceased who was 2 years old was a pedestrian when she was hit by the motor vehicle registration no. KCB 358B.

8. The Appellants submitted that an award of Kshs.1,000,000 in respect of loss of dependency was inordinately high.

9. I find that the deceased died on arrival at the hospital. General damages of kshs.100,000 for pain and suffering were awarded and the same are not disputed.

10. Forloss of dependency, the deceased was 2 years old and her future could not be predicated and a global figure of Kshs. 1,000,000 was awarded.

11. In the case of Oshivji Kuvenji & Another -Vs- James Mohammed Ongenge [2012] eKLR the court said as follows on the issue of awarding damages in respect of a minor;“In as much as the Appellants in the instant case argue that a global sum would be the best suited to the deceased aged only six (6) years at the time of her death, I have not come across an authority that has overturned a decision of the trial court on account of granting general damages based on expected earnings and tabulated on a multiplier. It is clear that neither the High Court nor the Court of Appeal has adopted a uniform principle on how to tabulate general damages where the deceased is a minor.”

12. In the case of Chen Wembo & 2 others v I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) [2017] eKLR the court reduced an award fromKshs. 1,680, 080/= for loss of dependency for a minor aged 12 years to Kshs. 600,000 and stated as follows;“The deceased was aged 12 years at death. There is no evidence that he was in school or as to the level of his abilities and therefore future prospects. The award in respect of lost dependency in my view was excessive and erroneous. I hereby set it aside and substitute therefor a global award under the Fatal Accidents Act in the sum of Shs 600,000/= bearing in mind the awards under the Law Reform Act. I have upheld general damages for loss of expectation of life, pain and suffering whose total is Shs 100,000/=”.

13. I find that in the current case, the deceased was 2 years old and I find that an award of Kshs.1,000,000 was excessive.

14. I set aside the award of the Trial court on loss of dependency only. The rest of the award was not contested.

15. I reduce the award for loss of dependency to Kshs. 500,000 and I award the general damages as follows;General damages for kshs.Pain and suffering 100,000Loss of expectation of life 100,000Loss of dependency 500,000Special damages 95,050Total 795,050Less 20% liability 636,040

16. This appeal partially succeeded and for that reason, I direct that each party bears its own costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. ……………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent