[2022] KEHC 27064 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO. 83 OF 2019

BETWEEN

SHELTER SOLUTIONS LIMITED………………….………….. 1ST APPELLANT

FRANCIS NJUGUNA ………………………………….………… 2ND APPELLANT

AND

VICTOR OUMA OCHOLA…………….…………….………… 1ST RESPONDENT

BOB OTIENO OCHOLA……………………………………….. 2ND RESPONDENT

(Suing as a personal representatives of the estate ofJENIFA ADHIAMBO-DECEASED)

(Being an Appeal from the judgment and Decree in Ndhiwa Principal Magistrate’s PMCC No. 375 of 2019 by Hon. Vincent Kiplagat–Resident Magistrate).

JUDGMENT

1. The appellant herein, were the defendants in Ndhiwa Principal Magistrate’s PMCC No. 375 of 2019. This was a claim that arose from a road traffic accident where Jenifa Adhiambo was fatally injured. On 5th August, 2019 parties entered consent on liability at the ratio of 60%: 40% in favour of the respondents. The learned trial magistrate delivered judgment dated 3rd September, 2019 and awarded Kshs.810, 472. 60 special and general damages after factoring 40% contributory negligence.

2. The appellants were aggrieved by the said judgment and filed this appeal. They were represented by Peter Karanja, advocate. They raised nine grounds of appeal as follows:

a) The quantum of general damages in respect of lost dependency is inordinately high erroneous, oppressive and punitive and amounts to a miscarriage of justice.

b) The learned trial magistrate ignored and/or paid lip service to the appellant’s submissions and especially the precedents cited therein.

c) The learned trial magistrate erred in law when he held without any reference to any precedent or legal basis that the multiplier applicable was 9 years and then proceeding to award damages based on that arbitrary multiplier.

d) The leaned trial magistrate erred in law when he applied the minimum wage of a general worker applicable to workers in Nairobi, Mombasa and Kisumu, while there was no evidence that the deceased worked in any of those areas.

e) The learned trial magistrate erred in law when he applied the minimum wage of a general worker using the 2017 minimum wage guidelines that came into operation long after the death of the deceased instead of applying the minimum wage prevailing at the time of the deceased’s death namely the Regulation of wages (General) (Amendment) Order 2015.

f) The learned trial magistrate erred in law and fact in applying a multiplier of 9 years without considering the authorities referred to him or taking them into account thereby applying the wrong principles in the assessment of the suitable multiplier and thereby making an award which was so high as to amount to an error in law in this particular case.

g) The learned magistrate erred in law and fact in holding, without any evidence or precedent, that the retirement age for Kenyans is 65 years.

h) The learned magistrate erred in law in failing to realize that comparable awards ought to be made in comparable cases, including an award of a multiplier and thus reached an erroneous decision.

i) The learned trial magistrate erred in fact and in law in failing to appreciate the principles governing the award of special damages in ignoring and/or paying lip service to the appellants’ submissions thereon.

3. The appeal was opposed by the respondents through the firm of Veronica Migai & Company, Advocates.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The deceased herein died at the age of sixty five. She was said to be a businesswoman earning Kshs.50, 000. 00. However there was no proof of the said earning. The learned trial magistrate was therefore correct to invoke the prescribed minimum wage.

6. The appellants however contended that he ought to have used the Regulation of Wages (General) (Amendment) Order 2015 instead of the Regulation of Wages (General) (Amendment) Order 2017.

7. At the time of the death of the deceased herein, which was 10th February 2017, the Regulation of Wages (General) (Amendment) Order 2015 were the ones in force. The minimum wage for unskilled labour was provided as Kshs. 5,844. 20 per month. The Regulation of Wages (General) (Amendment) Order 2017 commenced on 1st May, 2017. That means that at the time of death of the deceased herein the 2017 Regulations were not applicable.

8. I have perused the authorities cited by parties on the issue of multiplier. I am persuaded to set aside the multiplier of 9 years and substitute with that of 5 years.

9. The award for loss of dependency will work out as follows:

Kshs. 5,844. 20x12x2/3x5= Kshs.233, 768. 00.

10. The award in special damages was contested. Special damages must be pleaded and strictly proved before they are awarded. At the hearing, three receipts were produced which were for a total of Kshs. 310,000. 00 made up as follows:

a) Transport of body Kshs.30,000. 00

b) Coffin Kshs. 30,000. 00

c) Tents, tables, chairs & food by Samco Catering Services Kshs. 250,000. 00

The special damages were pleaded in the amended plaint and were proved by production of receipts. I will not therefore disturb this award.

11. The total award will be as follows:

a) Special damages Kshs. 310,000. 00

b) Loss of dependency Kshs. 233, 768. 00.

c) Pain and suffering Kshs. 10,0000. 00

d) Loss of expectation of life Kshs. 100,000. 00

Subtotal Kshs. 653,768

Less 40% (Kshs.261, 507. 20)

Net Kshs.392, 260. 80

12. The respondent is therefore entitled to Kshs. Kshs.392, 260. 80. Since the appeal has partially succeeded, the appellant will be entitled to half costs of this appeal.

DELIVEREDandSIGNEDatHOMA BAYthis17th day of March, 2022

KIARIE WAWERU KIARIE

JUDGE