[2021] KEHC 7854 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CIVIL APPEAL NO. 18 OF 2020

SIDI KAZUNGU GOHU &

BETTY MAPENZI KAPOMBE

(Legal representatives of the estate ofGEORGE YONGO KATANA (Deceased)....APPELLANTS

VERSUS

FATUMA ABDI MOHAMED

MOHAMED GAFO..............................................................................................RESPONDENTS

(Being an appeal against the judgement of Hon. W. M. Chepseba, Chief Magistrate in Malindi CMCC No. 78 of 2019 – delivered on 21/2/2020)

Coram: Justice Reuben Nyakundi

Wambua Kilonzo & Co. Advocates

M/s Kairu % McCOURT Advocates

JUDGEMENT

This appeal is against assessment of damages arising out of judgement of Honourable W.K. Chepseba (CM) in CMCC No. 78 pf 2019 at Malindi delivered on 24/2/2020. The appellant is aggrieved in all frontiers of the heads of damages on pain and suffering, loss of dependency, special damages and funeral expenses.

It’s generally deductible rom the seven grounds of appeal in whichever lens the appellant expects this court to view the matter, it all boils down that he is dissatisfied of the quantum for reason of being manifestly low.

Principally the claim at the trial court was as a result of the wrongful and negligent act of the respondent which culminated in the claimant suffering fatal injuries. Therefore, at common law, the claimant has a right to seek compensation from the respondent. The first part on liability was therefore settled by a consent order between the parties as adopted by the trial court at a ratio of 10% : 90% contributory negligence for the benefit of the claimant to entitle him a better percentage in the final assessment of damages. Pursuant to that consent, liability is not in issue in this appeal.

Background

This case at the trial was basically adjudicated by way of a pretrial conference consent held on 30/9/2019 whereby, both parties agreed to admit all the necessary evidential material together with written submissions. That left the learned trial magistrate to come up with the findings on assessment of damages for the appellant.

From the record, the appellant relied upon the police abstract, chief’s letter, death certificate, motor vehicle search certificate, grant of Letters of Administration and witness statements to discharge the burden of proof on assessment of damages. Clearly, in that situation where parties had relieved themselves of a protracted litigation the respondent filed no further documents to contest the ones produced and admitted by consent. That was something which merited careful consideration of the matter suitably at an early stage.

The court herein on appeal shall contend to exercise its jurisdiction wholly dependent on that disclosed material and evidence in determining the appeal.

Determination

The starting point of any discretion of an appeal case is always a reminder to the principles on the duty of the court as propounded in Selles v Associated Motor Boat Co. Ltd [1968] EA 123 and Williamson Diamonds Ltd vs Brown [1970] EA 1, Peters v Sunday Post [1957] EA.

The key features of these authorities are that an appellate court is obliged to analyze and re-evaluate the evidence adduced before the trial court, independently, draw its own conclusions of course without overlooking or disregarding the findings of the trial court, and to bear in mind that unlike the trial court, it did not have the opportunity of hearing and seeing witnesses testify.

This leads one to the formulation of the court in KeMFRO Africa Ltd t/a Meru Express Service, Gathugo Kanini v A.L. Lubia and Olive Lubia [1987] KLR 27 [1982-88], Hassan vs Nathan Mwangi Kamau Transporters [1985] KLR 250 CAK put in part as follows:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge were held to 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 the damages should likewise also add the observations made by the court in Rahma Tayab & Another v Anna Mary Kinaru [1987-88] 1KAL 90. This is what I can describe as the clean break principle which lies at the heart of the matter on assessment of damages “that the general method of approach should be for comparable injuries should as far as possible, be compensated by comparable awards keeping in the correct level of awards in similar cases.”

This rule reinforces the fact that inordinately high or low award of damages not commensurate with the loss and damages suffered by the claimant should at all times not to be entertained. The annotation to the current law under the Law Reform (Miscellaneous Provisions Act) and Fatal Accidents Act, a claim is usually made by the executor or administrator to the estate of the deceased to seek compensation on behalf of the estate and for the benefit of the dependants respectively.

The provisions are intended to enable the defendant who is a wrongdoer be held liable for his or her negligent acts which caused the premature death of the deceased. Nevertheless, although assessment of damages remains in the realm of discretion and a daunting task for that matter for the trial courts, there are clear principles which have been developed over time to guide such exercise of discretion.

In this respect the court in Cookson v Knowtes [1979] AC 556 at 575 held that “the court has to make all best estimates that it can having regard to the deceased’s age and state of health and to his actual earnings immediately before his death, as well as to the prospects of any increases in his earnings due to promotion or other reasons, but it has always been recognized, and is clearly sensible, that when events have occurred, between the date of death, and the date of trial, which enable the court to rely on ascertained facts rather than a mere estimates, they should be taken into account in assessing damages.”

In its original form the Fatal Accidents Act as construed in the case of Wangui Kiberenge Kibugi v Peter Kinyanjui CA 2899 of 1993 Ringera J enumerated the following principles which are now considered as settled thus

(i) The court must find as a fact what the annual loss dependency is and in so doing it, must be remembered that the relevant income of the deceased is the net earnings and as there is no communal fraction to be applied, each case depends on the evidence before the court.

(ii) The annual loss of dependency must be multiplied by a figure representing a reasonable number of years purchase and in adopting the said multiplier, the court must have regard to such personal circumstances of both the deceased and the dependants as age, expectation of working life, expected length of dependency and the vicissitudes of life.

(iii) The capital sum so arrived at must be discounted by a reasonable amount to allow for lump sum payment and, where, appropriate the widow’s remarriage.

(iv) Where the beneficiaries under the estate of the deceased are the same persons as the dependants under the Fatal Accidents Act, the award under the Law Reform Act must be offset from the oversee award on the principle that gains to the estate must be discounted in order not to over compensate the claimants.

I assume that in reference to this appeal, in which the trial court is being attacked for applying wrong principles or misapprehending the evidence, at the outset, securing the appellant objective is to analyze the facts with the outlined guidelines in the cited cases.

The most common mistake is on how the court operates in the great majority of cases to make choices on the multiplier-multiplicand approach, in an attempt to calculate the loss of income to the deceased estate.

The needs, generated by such choices in determining a multiplier is the period or a number of years for which earnings are stated to have been lost. The workings can either be weekly, monthly or annually depending on the facts of each case as presented by the burden bearer to the suit. A further parameter is the use of a multiplicand, which is applied to calculate the net income of the claimant to the deceased estate. That is to say the net income derived from the evidence during the life time of the deceased, after statutory deductions provided for to generate available income to expend on various items. That means income the deceased could have spent excluding to himself or herself with the balance thereof forming the multiplicand. This is a perfectly sound rational where the needs of the deceased and the consideration of exclusive expenses set aside for the spouse and his or her children.

In the instant case, Counsel Wambua submitted that the electives made on the multiplier-multiplicand by the learned trial magistrate defied all odds with regard to the applicable principles on comparable similar awards. This approach argued counsel denied the deceased estate a fair compensation for the loss of dependency. It was also in his submissions that the net income of Ksh.6000/= applied by the learned trial magistrate was a numerical figure not supported with any evidence on record.

The question which begs for an answer is whether there is a need to qualify and affirm the judgement of the trial court on lost years in light of all the submissions, and the factors listed in Wangui Kiberenge case and Cookson guidelines? In my view assessment of damages for loss of dependency should be approached the same way the Act provides and on account of the settled principles.

The strength of the case before the trial court was based on documentary evidenced admitted by consent. This is simply for the court to have recognized the interplay of section 62 of the Evidence Act to justify a departure from the yardstick of oral evidence with all its force and use of cross-examination to test the cogency or velacity of the claimant’s testimony.

In my view the learned trial magistrate was bound to apply the deceased substantial earning power from the admitted evidence by this consent. The wife and children undoubtedly were entitled to fair income provision including sums which will enable her to provide for herself and children to leave them in a comparable position had the deceased life not been terminated. The case of Gammel v Wilson & Others and Furness and Another and S. Massey Ltd [1982] AC 27 has set a high threshold to entitle the estate of the deceased a fair compensation notwithstanding the vicissitudes of life.

In the case at bar there is no dispute the deceased died at the age of 34 years and therefore all facts being constant he could have enjoyed life up to the age above 60 years, unless evidence shows otherwise on the shortening of his life.

I have had the benefit of reading the judgment of my brother Hon. Chepseba unhappy as I may sound, there is very little information and common grounds with which I can concur with him in so far as the particular points on multiplier-multiplicand approach is concerned. First, the evidence shows that the deceased income from his business was on or about 600 per day. Prima facie that piece of evidence was never controverted by the respondent. It is not in dispute that the deceased died at the age of 34 years. But without any supporting case law and evidence on the choice of multiplier of 16 years and a multiplicand of 6000/= as the driving force behind the income of the deceased, the learned trial magistrate went ahead to assess damages for lost years in favour of the appellant.

On reflections there are other equitable comparable cases which militate in favour of the appellant as against the findings by the learned trial magistrate. It is true that the appellant had problems gathering financial statements and books of accounts, but it was not open to the court to disregard that evidence and without justification pluck out a figure of Ksh.6000/= as the monthly income of the deceased. In light of the principles in the case of Jacob Ayiga & Another v Simon Obayo (suing as the personal representative of the estate of Thomas Ndaya Obayo (Kisumu CA No. 167 of 2002), a trial court ought to have taken judicial notice that not every award should be supported significantly in terms of receipts, bank accounts, statements of accounts and other documentary evidence on receivables and spendable income.

It is impossible to do justice to the claimants, if their present value and their future value was estimable only with strict proof on books of accounts or bank accounts statements. At one level this view is readily understandable given the fact that in this country widespread workforce is in the informal sector. The judges have been enjoined to take this into account when making orders for financial ancillary relief to the claimants in personal injury claims. The wholly exceptional nature of the earnings must be, to borrow a phrase by the Court of Appeal in Jacob Ayiga case which describes the characteristics or circumstances which would bring about a departure from inequality and discrimination under Article 27 of the Constitution. Hence these principles do make it clear that the standard applied against the appellant on assessment of lost years was a misapprehension of the relevant factors by the learned trial magistrate, giving rise to an erroneous estimate of the assessment.

The question, therefore is whether, in the very sense of the award, the error made by the court should be left to stand. The factors expressed to be relevant to the question at hand with regard to the award is for the court to interfere with the decision taking into account the terms in the case of KeMFRO Africa Ltd and Kanga v Manyoka [1961] ES 705. To buttress the finding of the court I rely on the case ofMombasa Maize Millers Ltd v W.I.M, the deceased was stated to be aged 34 years at the time of death not married but blessed with a child, a multiplicand of Ksh.15,000/= and a multiplier of 20 years with loss of dependency of 2/3 was applied to calculate the award on lost years. Similarly in Naomi Nyambura Karanja suing as the administrators of the estate of Simon Karanja Mirungu (Deceased) v Zacharia Muteru Kadunga & Another [2017] eKLR the court upheld a multiplier of 24 years for a deceased aged 34 years at the time of his death; to calculate loss of dependency. The court in P.N.M. & Another v Telcom Kenya Ltd & Others [2015] eKLR applied a multiplier of 30 years for 26 years old deceased. In Patrick Kanai Waweru suing as legal representative of the estate of Grace Njoki Kanai v George Ogwilla & 2 Others HCCC No. 5 of 2012on loss of dependency the court applied a multiplier of 24 years for 34 years old deceased, whose evidence showed she was involved in business during her life time.

For all these comparable awards and the evidence there were no reasons given by the learned trial magistrate to completely depart from the submissions of the parties and the, permissible principles on assessment of damages. The result was that the award was so low that it amounted to an erroneous estimate of the compensation.

In light of what I have stated above, the only remedy is for this court to set aside the award on loss of dependency and have it substituted with the following fresh assessment. I take the approach that the variance of the gross income of Sh.18,000/= per month and the functional minimum wage Ksh.12,000/= to be an appropriate minimal multiplicand for calculation of the net income and a multiplier of 24 years and dependency ration of 2/3. That therefore would give rise to loss of dependency calculable as follows; 12,000 x 24 x 12 x 2/3 = 2,304,000/=.

The emphasized portion of 12,000/= seem to exclude the considerations of the claim in respect of expenditure of a social nature and any statutory deductions that there may be relevant to the personal needs of the deceased. That net income therefore available as spendable financial contribution to the family as well as his children.

The next relevant issue objected to in this appeal is on the award in which the learned trial magistrate assessed Ksh.50,000/= for loss of expectation of life. The focus of this claim shifts to the specific principle succinctly stated in Yorkshire Electricity Board v Naylor [1968] AC 529 where Lord Morris of Borth Gest stated “it is to be observed and remembered that the principles to be considered and whose which were being referred to by vis court Simon L.C in his speech were not the prospects of employment or of social status or of relative pecuniary affluence but the prospects of a positive measure of happiness or of a predominately happy life.”

It is important to note that such awards in this jurisdiction indicate a trend of conventional sum award under this head on loss of expectation of life. In Henry Musuluma Ali & Another v Omar Shariff & Salim Konde Wast HCCA No. 34 of 2015the Court of Appeal uphold a sum of Sh.100,000/= for loss of expectation of life. Equally in Zachary Abusa Magoma v Julius Asiago Ogentoto & Another [2020] eKLR the court on appeal assessed loss of expectation of life to a sum of Sh.100,000/= to the deceased estate. The trial court in that case found at first instance Ksh.50,000/= was appropriate under this limb. In my view this is in contrast to all those appreciated principles which govern the awards with comparable cases within the local limits of the courts.

In determining the award of Ksh.50,000/= the law is that the learned trial magistrate in making the decision to depart from the laid down principles ought to have given reasons for doing so, in order for the parties to know and understand why the assessment was being made in exception to the guiding threshold on such cases.

In Kenya, it is both a constitutional dictate and duty under Article 10 of the Constitutionand Order 21 rule 1, 2, 3, 4 and 5 of the Civil Procedure Rules to give factually supported and reasoned decisions in both criminal and civil cases in all the judgements pronounced by the court. When a judge or magistrate pronounces a judgement the rationale to provide reasons provides the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.

In the present case it’s hard to understand or believe that the learned trial magistrate would have granted the award without marshalling reasons in support of the decision. Where issues are involved formulating reasons focus, the mind of the trial magistrate and in particular, guides him or her more likely to the decision which is based on the evidence and facts of the case. In this way an appellate court is guided accordingly in considering the merits or demerits of the appeal.

In consonant with the principles in Peters v Sunday Post, I therefore urge learned magistrates that while huddled up in their conclaves turning on pages of records of evidence and volumes of submissions of learned counsels to promote confidence in the legitimacy of their judgements by furthering transparency and accountability in entrenching the duty to give reasons for their decisions.

I am convincingly persuaded by the set guidelines in Breen v AEU [1971] 1 ALL ER 1148 where Lord Denning observed interalia “that the giving of reasons is a fundamental requirement of fairness and is necessary for the satisfactory of parties. The concepts of fairness and justice are interchangeable and one cannot be achieved without the others. Reasons are the link between the decision and the mind of the decision maker.”Similarly, in R v Crown court at Harrow Exp Dake [1994] 1 ALL ER 315 Pill J held, “A refusal to give reasons might amount to a denial of natural justice.”

In the circumstances of this case the award of damages on lost years and loss of expectation of life went against the grain of fairness, justice and good governance as highlighted under Article 10 of the Constitution.

In substance it may be mentioned straightaway the award of compensation complained of by the appellant are not distinguishable on whether the learned trial magistrate took into account a relevant or irrelevant factors or considered wrong principles in the absence of giving reasons for the decision. Consequently, the court is enjoined to apply Butt vs Khan and Channan Singh and Gujjan Singh v Channan v Singh and Hand [1954] 22 EACA 12 and KeMFRO Africa (Supra) to interfere and set aside the decision for loss of expectation of life and lost years. It would be plausible in that regard to vary the award of Ksh.50,000/= on loss of expectation and have it substituted with a fresh award of Ksh.100,000/= for the benefit of the claimant.

As a practical result of this the award on loss of dependency commonly referred to as lost years earlier on I did disturb the award entirely for it represented an erroneous estimate of the compensation payable to deceased’s estate as demonstrated elsewhere in this judgement.

In computing damages for pain and suffering together with general expenses that task itself on review, peculiar as its I find no strong grounds to disturb the findings and the decision arrived at by the learned trial magistrate.

Generally speaking, as much as I share the legitimate expectation of the appellant for a higher assessment under the head of damages for pain and suffering, it’s to me an onerous task to quantify pain and suffering for a victim who dies instantly on being injured. The same also applies to funeral expenses where the victim family would in any event have received community contributions which accrues from well-wishers to facilitate funeral and burial expenses.

The capital sum raised from well-wishers should not form part of the benefits that the estate of the deceased should be accorded compensation or reimbursement as a result of the premature death of the deceased. Whatever method of calculation adopted an action for specific damage, the sum which would have been spent by the family in exclusion of “harambee money” should be strictly proved to avoid double benefit to the estate of the deceased.

As the balance sheet of the record shows, it follows that the appellant’s appeal partially succeeds in terms of the original awards under the assessment for loss of dependency and loss of expectation of life. The position I have taken is that on the reasons stated elsewhere they cannot be held to withstand scrutiny of the appellate court. I have no hesitation in holding that the appeal succeeds to that extent for judgement against the respondents to be entered as follows:

(a) Liability as per the consent judgement apportioned at a ratio of contributory negligence of 10% : 90%.

(b) Pain and suffering at Ksh.20,000/=.

(c) Loss of expectation of life Ksh.100,000/=.

(d) Loss of dependency – 12,000 x 24 x 12 x 2/3 = 2,304,000/=.

(e) Special damages Ksh.1,850/=.

(f) Funeral expenses Ksh.40,000/=.

Total decretal sum Ksh.2,465,850/=

Less 10% contribution.

(g) The appellant also awarded interest and costs of assessed damages from the date of judgement of the trial court till payment in full.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 6TH DAY OF APRIL, 2021.

...................................

R. NYAKUNDI

JUDGE

NB:

In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March 2021 by Her Ladyship, The Acting Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby waiving Order 21(1) of the Civil Procedure Rules. (wambuakilonzoadvocates@gmail.cominfo@kairumccourt.com )