[2022] KEHC 13600 (KLR)

Signon Group Limited & 2 others v Patel (Suing as the Personal representative of Parmanand Manibhai Patel (Civil Appeal E01 of 2020) [2022] KEHC 13600 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13600 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E01 of 2020

RN Nyakundi, J

October 12, 2022

Between

Signon Group Limited

1st Appellant

Signon Aviation

2nd Appellant

Edwin Kemboi

3rd Appellant

and

Hermal Parmanand Patel (Suing as the Personal representative of Parmanand Manibhai Patel

Respondent

(Being an appeal against the judgment of Hon. C. Menya (S.R.M) at Eldoret CMCC No. 758 of 2018 delivered on 11th September, 2020)

Judgment

1. The appeal before me is against the award of damages by the trial court in the sum of Kshs.2,096,000/= for general damages. Liability was agreed by consent at 20% to 80% in favour of the Respondent.

Background 2. By a plaint dated July 3, 2018, Hemal Parmanand Patel, the Administrator of the estate of the deceased herein sued Siginon Group Limited, Siginon Aviation and Edwin Kemboi for the wrongful death of the deceased.

3. The claim arose out of a fatal road accident that occurred on 18/9/2017 when the deceased Parmanand Manibhai Patel was lawfully travelling aboard motor vehicle registration number KBK XXXU along the Eldoret- Kapsabet road when neat Eldoret airport, the 3rd Appellant drove motor vehicle registration number KBL XXXk in reckless manner and caused it to ram into motor vehicle registration number KBK XXXU. As a result, the deceased suffered fatal injuries.

4. The judgment was delivered on 11/9/2020. Aggrieved by the judgment, the Appellant filed a memorandum of appeal on the August 7, 2020. The appeal is mainly on the Trial Court’s finding on quantum. The grounds of appeal are that: -1. The learned trial Magistrate erred in awarding a sum in respect of loss of dependency which was inordinately high and without precedent hence occasion a miscarriage of justice2. The learned trial Magistrate erred in fact and in law in disregarding the Defendant/Appellant’s written submissions on the quantum of damages awardable to the deceased in view of insufficient proof of dependency.3. The learned trial Magistrate erred in fact and law in assessing and awarding Kshs.2,500,000/=under loss of dependency notwithstanding that the deceased did not have dependants save for the adults surviving children.4. The learned trial Magistrate erred in law and fact by failing to appreciate the guiding principles in determining quantum of damages thereby importing her own standards which guided her judgment in error.5. The learned trial Magistrate concluded the deceased was earning Kshs.70,000/= per month without any evidence on record.6. The Court misdirected itself in assessing damages under the law Reform Act and Fatal Accident Act yet in her judgment she adopted the global approach in assessing damages.

THE RESPONDENT’S SUBMISSIONS 5. The Respondent opposed the appeal and filed their submissions dated 21/3/2022 on 22/3/2022.

6. On damages, the Respondent submitted that assessment of damages is at the discretion of the trial court, the appellate Court cannot interfere with the exercise of discretion thereof except where the trial court committed an error in principle or made an award that was inordinately high or low as to be wholly erroneous estimate of damages.

7. The Respondent argued that the award given by the trial Court is in tandem with the principles laid out by Lord Morris in the case of Hest (H) and Sons LtdvSheperd (1964) AC 326 as quoted in Duncan Kimathi KaraganiavsNgugu David & 4others HCCC No. 75 of 2012.

8. The Respondent submitted that the deceased was 69 years old at the time of his death and was past the retirement age. The Respondent submitted that the trial Magistrate had adopted the global approach in assessing damages. The Respondent argued that the decision whether to adopt a multiplier or global award approach is entirely the discretion of the Court but must be dictated by the circumstances of each case. The Respondent submitted that, adopting the multiplier method by the trial Court would only set the Court on a journey of speculation as the deceased was aged 69 way past the retirement age and thus not easy to ascertain how many years he would have actively worked.

9. The Respondent submitted that the deceased had dependants as evidenced by PW1’s testimony in which she testified that her mother is disable and that she entirely depended on the deceased for livelihood.

10. The Respondent submitted that the deceased operated a hardware in the Shayona Merchandise and approximately earned Kshs.70. 000/=. The Respondent urged Court to award Kshs.2,500,000/= for loss of dependency as had been pleaded in the trial Court.

11. On pain and suffering, the Respondent submitted that the award of Kshs.20,000/= was appropriate as the deceased died on the same day and underwent some form of suffering before his death.

12. On loss of expectation of life, the Respondent submitted that the deceased was 69 years old and that at the time of his death he was of good health. The Respondent argued that the trial Court’s finding of Kshs.100,000/= was sufficient.

13. On whether there was double compensation, the Respondent submitted that the issue of double compensation does not arise in the instant case since the awards granted are under different laws. The Appellant argued that she pleaded for loss pf dependency under the Fatal Accidents Act, and the trial Magistrate adopted the global sum approach as opposed to mathematical approach.

14. The Appellants did not file any written submissions

DETERMINATION 15. This being a first appeal, this court has the duty to analyze and re-examine the evidence adduced in the lower court and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify and make allowance for the said fact. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

16. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] KLR at 403, where Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

17. From the proceeding in the trial court PW1 Hemal Patel, testified that the deceased operated a hardware in the name of Shayona Merchandise located at Kaiboi area and he earned approximately Kshs.70,000/= per month and filed KRA returns. PW1 further testified that the deceased had three children and was in good health. PW1 told the Court that the deceased’s wife is disabled and that she solely depended on him. PW1 produced the Certificate of business registration marked as PEX5, the business permit marked as PEX6 and KRA returns and audited accounts of the said business marked as MFI7.

18. In regard to the issue of damages awarded under the Law Reform Act, the court in West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR observed that-“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”

19. The trial court awarded Kshs.20,000/= for pain and suffering. The deceased died on the spot. The generally accepted principle is that very nominal damages will be awarded for pain and suffering.

20. In my view the award of Kshs. 20,000/= for pain and suffering is not manifestly excessive as there are High Court authorities to support it. The award will therefore stand.

21. On loss of expectation of life, the trial Court awarded the global sum of Kshs. 100,000/= which I find no reason to disturb.

22. In the present case the deceased was 69 years at the time of his death. At the Appellants had proposed a sum of Kshs. 250,000/= whereas the Respondent had suggested a multiplier of 8 years bearing in mind that the deceased used to earn Kshs.70,000/= per month from his business.

23. The learned trial Magistrate however, noted that the deceased was past the retirement age and would not therefore approximate with certainity how many more years he would have actively worked in view of him being 69 years old. The trial Magistrate in her wisdom adopted the global sum approach and awarded the Respondent Kshs. 2,500,000/= for the lost years. The trial Magistrate had the discretion to adopt either the multiplier approach or the global sum approach.

24. In the judgment delivered in the lower court, the trial Magistrate gave reasons for adopting the global sum approach. It is therefore this Court’s finding that she did not err in so doing. She took notice that the deceased was past the retirement age before adopting the global sum approach in making an award for loss of dependency.

25. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, the Court held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

26. I must point out that the discretion in assessing general damages payable will only be disturbed if the trial Court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low. it is not the work of an appellate court to disturb the award made by the Trial Court without any sound reasons. Taking into consideration the fact that the deceased was married and his wife was disabled and depended on him. It is my finding that the trial court’s award of Kshs. 2,500,000/= for loss of dependency was therefore not inordinately high hence the appeal fails on this ground.

27. The appellants in its memorandum of appeal alleged that the trial Magistrate disregarded its submissions and relied entirely on the respondents’ submissions. I have carefully considered the judgment of the trial court. It is clear that the submissions of all the parties were well considered by the said Court. The fact that the trial Court failed to agree with the submissions of the appellant’s Counsel does not mean that they were not considered.

28. The upshot is that this Court finds that the appeal herein lacks merit and the same is dismissed in its entirety. The costs of the lower court case and this appeal are awarded to the respondents. Interest is also awarded to the respondents at court rates.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiMuma Nyagaka & CO. Adv for appellantsNdinya Omollo & CO. Adv for respondents