[2022] KEHC 14264 (KLR)

Tombe Tea Factory Limited v Marasi & another (Suing as personal representatives and legal administrators of the estate of Boniface Marasi Mumbo) (Civil Appeal E29 of 2021) [2022] KEHC 14264 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14264 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E29 of 2021

JN Njagi, J

February 11, 2022

Between

Tombe Tea Factory Limited

Appellant

and

Joash Mumbo Marasi

1st Respondent

Martha Kemunto Ayiera

2nd Respondent

Suing as personal representatives and legal administrators of the estate of Boniface Marasi Mumbo

(Being an appeal against the judgment and decree of Hon. W.C.Waswa, RM, in Nyamira CMCC No.142 of 2017 delivered on 31/3/2021)

Judgment

1. The respondents had instituted suit against the appellant at the lower court in their capacity as the legal representatives of the estate of their late son, Boniface Marasi Mumbo who died after the motor cycle he was travelling on was knocked down by a motor vehicle belonging to the appellant. Parties in the case recorded consent on liability to the ratio of 40:60 in favour of the respondent. The trial court in assessing general damages found that the deceased had died 16 days after the accident and awarded Ksh.200,000/= for pain and suffering. It found that the deceased was a nurse by profession and adopted a salary of Ksh.25,000/= as the multiplicand. The court considered that the deceased had died at the age of 24 years and adopted a multiplier of 26 years.The final award of the court was as follows:-1. Pain and suffering Kshs. 200,000/=2. Loss of expectation of life Kshs. 100,000/=3. Loss of dependency Kshs. 2,600,000/=4. Special damages Kshs. 235,604/=Total Kshs. 3,135,604/=Less 40% contribution Kshs. 1,254,241/=Total award Kshs. 1,881,362/=The appellant was aggrieved by these findings and filed this appeal.

2. The grounds of appeal are that:1. The learned trial magistrate erred in law and in fact, in awarding a sum of Kshs. 200,000/= for pain and suffering without realizing that the deceased was pleaded to have died on the same date of the accident, and without bearing in mind that the plaintiffs were bound by their pleading.2. The learned trial magistrate erred in law and in fact, in holding that the deceased was a nurse while that was never pleaded and thus reached an erroneous award.3. The learned trial magistrate erred in law and in fact, in failing to hold that the deceased was working as a peasant as pleaded and thus reached an erroneous award.4. The learned trial magistrate erred in law and in fact, in failing to find and hold that the plaintiff departed from his pleading that the deceased was a hardworking peasant at the time of his death and purported to lead evidence that the deceased was a nurse.5. The learned trial magistrate erred in law and in fact, and grossly misdirected in failing to consider and make any decision on the issue of the plaintiff’s departure from his pleading in paragraph 5 of the plaint regarding the deceased’s occupation and thus reached an erroneous direction.6. The learned trial magistrate erred in law and in fact in reaching conclusions on the appellant’s occupation as a nurse without any pleading and sufficient evidence on record tending to show that the deceased ever worked as a nurse anywhere or was so working at the time of his death.7. The learned trial magistrate in law in holding that the applicable minimum wage was that of a nurse while indeed it ought to have been that of a general worker under regulation of wages (general) (amendment) order.8. The learned trial magistrate erred in law and in fact in holding that the applicable multiplier was 26 years without any regard to the submissions and authorities cited before him and thus reached an erroneous award.9. The learned trial magistrate erred in law and in fact in applying a multiplier of 26 years without considering any precedents, life exigencies and the accelerator effect.

3. The appeal was canvassed by way of written submissions of the respective advocates’ cases for the parties. Peter M. Karanja advocate was appeasing for the appellant while the firm of Ochoki & Co advocates represented the respondents.

Submissions by Appellant - 4. The appeal is on three items:1. the award on pain and suffering;2. the multiplier; and3. the multiplicand

5. The advocates for the appellant submitted that the basis of the award of Ksh.200,000/= for pain and suffering was that the trial court found that the accident occurred on the 17/9/2016 and that the deceased died 16 days later on the 2/10/2016. Counsel however submitted that the date of the accident and the date of death as pleaded in the plaint was 2/10/2016. That the written statement of PW1 was that the accident occurred on 2/10/2016. That the postmortem report indicated the date of death as 2/10/2016. That though the police abstract indicated the date of the accident as 17/9/2016, this was not pleaded and there was no amendment of pleadings to show that date. That parties had recorded a consent on liability on the basis that the accident occurred on 2/10/2016. Counsel submitted that parties are bound by their pleadings and cannot depart from them except by amendment. That the trial court made an error in making a finding contrary to what was pleaded. That this court should make a finding that the accident occurred on the date pleaded and that the deceased died on the same date of the accident, in which case his suffering was not prolonged. That in the premises, the award for pain and suffering ought to have been considerably less at Ksh.10,000/=. Counsel urged the court to award Ksh.10,000/= under this heading.

6. Counsel submitted that the respondent had pleaded that the deceased was a peasant. That the trial court found that the deceased was a nurse by profession. That there was no pleading that the deceased was a nurse. That it is only PW1 who in his evidence brought up the issue that the deceased was a nurse. Counsel submitted that such departure from pleadings is not allowed by law except though amendment. That despite the counsel making their submissions to that end and referring the court to general authorities on the issue, the trial magistrate did not address the issue. That the trial court made an error.

7. Counsel referred to several authorities where courts have held that a party is bound by his pleadings and cannot depart from them except by amendment. Among the cases cited was Mumias Outgrowers Company Limited v Regina Achieng Okoth (Suing as legal representative of estate of Joseph Odhiambo Jalango (Deceased) (2016)eKLR where the plaintiff had pleaded that the deceased was a rider while in court it was testified that he was a pedestrian. The court held that parties are bound by their pleadings and while dismissing the plaintiff`s case stated that:Since the pleadings define of the contest before the trial court, the parties are not permitted to depart from their pleadings unless an amendment is allowed or it appears from the course of the proceedings that the parties have left an unpleaded issue for determination by the court….In Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others NRB CA Civil appeal no. 219 of 2013 (2014) the court of appeal cited with approval the decision of the supreme court of Nigeria in Adetoun Oladeji (NIG) Limited v Nigeria Breweries PLCSC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings;(1)it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments in the pleadings goes to no issue and must be disregarded. In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.

8. Other cases cited on the same subject are Galaxy Paints Company Limited v Falcon Guards Limited (1999)eKLR,Boniface Kinyua Kathuri v David Munyoki (2020)eKLR and Dianga Distributors (K) Limited v Kenya Seed Company Limited (2015)eKLR.

9. Counsel submitted that the trial court in determining the salary of the deceased applied an Appendix 11 for Registered Nurses. That the said appendix was not produced at the trial but was only introduced by the respondent in their submissions. That the law requires that evidence be produced in support of the issues in contention at the hearing or by consent. Therefore, that the appendix was not evidence and could not be the basis upon which the multiplicand was determined.

10. Counsel cited several authorities where courts have held that submissions do not amount to evidence. These include the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another (2014)eKLR where the Court of Appeal held that:We have already found that the 1st respondent failed to discharge his burden of proof of the existence of facts claimed of the companies, what they owned and whether property sales indeed took place, followed by transfers. So what we conclude is that the learned trial judge simply lifted the figure of sh.80,161,720/= from the 1st respondent’s submissions and awarded it against the appellant. This was wholly in error. Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.

11. Other cases cited on the same subject were, inter alia, East African Portland Cement, CFC Stanbic Limited & Another v Peter Ividah Muliro (2019)eKLR and Nganga & Another v Owiti & Another(2008) 1KLR (EP) 749.

12. In view of the exposited law, counsel urged this court to find that the deceased was a general worker in Tinga area of Nyamira county and apply a multiplicand of the minimum wage for a general worker in a rural set-up which in 2016 was Ksh.5,844. 20.

13. The advocates submitted that the trial court applied a multiplier of 32 years without laying any basis. That the court failed to consider their authorities that they cited on multiplier where the High Court applied 20 years as multiplier for deceased persons aged between 23 and 25 years.

14. Counsel urged the court to reduce the multiplier applied by the trial court to 20 years.

Submissions by Respondent – 15. The advocates for the respondent submitted that the post mortem report, the death certificate and the evidence of the respondent indicated that the deceased died 16 days after the accident. That in their submissions before the lower court they had relied on the case of David Kahuruka Gitau & Another v Nancy Ann Wathithi Gitau & Another (2016)eKLR where Mativo Upheld an award of Ksh. 100,000/= for pain and suffering for a deceased who died 30 minutes after the accident and in doing so held that:It is not in dispute that the deceased sustained serious injuries and that the deceased died after about 30 minutes. This raises a fundamental question of what each unit of pain and suffering is worth. This question has in my view been authoritatively discussed in an article in the International Review of Law and Economics[19] entitled "Pain and Suffering in Product Liability Cases: Systematic Compensation Or Capricious Awards" by W. Kip Viscussi who argues that:-"Pain and suffering is generally recognized as being legitimate component of compensation but one for which we have no accepted procedure of measurement......Pain and suffering is by no means a negligible component of awards.....The general implication is that pain and suffering awards are not entirely random or capricious."The position laid down in Rose vs Ford[20] is that where the period of suffering is short, only nominal damages are awarded. That was in 1935 and 500 pounds was awarded for a two days suffering. I am persuaded that the amount of Ksh. 100,000/= awarded under the said head is not in my view excessive nor has it been shown to be erroneous or unreasonable. I find no reason to fault the award under this head.

16. Therefore, that the magistrate did not err in awarding Ksh. 200,000/= under this head for a deceased who died 16 days after the accident.

17. The advocates submitted that the deceased was a qualified nurse as evidenced by his academic documents that were produced in court as Exhibit 8. That the 1st respondent testified that the deceased was working at a hospital in Nairobi. That considering that the deceased had completed his studies and even successfully applied for a licence, he was most likely employed under job group J which is the entry level for a registered nurse 11. That the wage of Ksh.25,000/= adopted by the trial court is actually the minimum wage for an enrolled nurse in Kenya. The advocates cited the case of Siyaram Enterprises & Another v Samuel Nyachani Nyachani (2015)eKLR where the plainfiff did not adduce evidence of earnings and the High Court upheld the decision of the lower court in adopting a monthly salary of Ksh,9,000/= and took that amount to be the minimum government wage. In that case the court held that:With regard to issue of proof of income, majority of Kenyans are not in formal employment. To have expected the Respondent to produce receipts or pay slips to prove income would have been unreasonable.

18. It was submitted that the multiplier of 26 years adopted by the trial court was not inordinately high. That the choice of a multiplier is a matter that is at the discretion of the court which must however be exercised judiciously. The advocates cited the case of Susan Wanjugu Muchemi v James Kabathi Mwangi(2009)eKLR where the court adopted a multiplier of 26 years for a deceased aged 29 years. The advocates concluded that the trial magistrate exercised his discretion properly in arriving at the amount awarded to the respondents. They urged the court to dismiss the appeal.

Analysis and determination– 19. The appeal herein is on award of general damages. The principles upon which an appellate court may disturb an award of damages made by a lower court are settled. In the case of Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs A.M.M. Lubia & Ano. (1982-88)1 KAR 777, the Court of Appeal set out the said principles 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 a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either 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 a wholly erroneous estimate of the damage.’

20. In Butt –v- Khan

21. The appeal is on three grounds- on the award on pain and suffering, on the multiplicand adopted by the court and the multiplier. I will thereby proceed to consider the appeal on the three grounds.

Pain and suffering - 22. The appellant argued that the award of Ksh.200,000/- under this head was excessive as it was pleaded that the deceased had died on the same day of the accident. That consent on liability was recorded on the basis of pleadings that the deceased had died on the same date of the accident. That it was not open to the court to find that the accident occurred on 17/10/2016 without an amendment by the respondent. That the trial court made an error in making a finding contrary to what was pleaded.

23. Counsel for the appellant cited several authorities to the trial magistrate to support the position of the law that parties are bound by their pleadings. The law as it stands is that parties are not permitted to depart from their pleadings except by amendment of pleadings. A consent on liability had been recorded based on the pleaded date of the accident and death that they took place on 2/10/2016. No amendment had been sought on the date of death. It was therefore not open for the trial court to adopt any other date of death other than the one pleaded. The magistrate therefore erred in finding that the deceased died two weeks after the accident. I will therefore go by the pleaded date and hold that the deceased died on the same day of the accident.

24. The appellant submitted that the award of Ksh. 200,000/- for pain and suffering was excessive. That a minimal sum of Ksh.10,000/-would be sufficient as the pain was not prolonged.In Sukari Industries Limited vs. Clyde Machimbo Juma [2016] eKLR it was held that:“... it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years..."

25. Even if the deceased in this case had died on the same day of the accident he must have undergone some pain. The sum of Ksh 10,000/-that was suggested by the appellant is on the lower side. In the case of David Kahuruka Gitau & Another v Nancy Ann Wathithi (supra) the court upheld an award of Ksh100, 000/- where the deceased had died 30 minutes after the accident. I am of the view that a similar amount would be reasonable under this heading.

Award on multiplicand – 26. The respondent had pleaded that the deceased was a peasant but in court led evidence that the deceased was a nurse by profession. I have already indicated above that parties are bound by their pleadings and that they are not permitted to depart from the same except by amendment. There was no amendment of pleadings to the effect that the deceased was a nurse. It was therefore a misdirection on the part of the trial court to amend the pleadings on behalf of the respondent at the time of writing judgment to hold that the deceased was a nurse. The finding that the deceased was a nurse was erroneous. The court ought to have gone by the pleaded career that the deceased was a peasant.

27. There was no evidence adduced before the trial court on the income that the deceased was earning as a peasant. In the premises, the option is to revert to the minimum wage guidelines as contained in the Regulation of Wages (General) (Amendment) Order 2015 so as to estimate the income of the deceased. According to Legal Notice No117 the minimum wage in the deceased`s area of residence at the time of his death was Ksh.5,845/-. The multiplier of Ksh.25,000/- that was adopted by the trial court was without basis. I set the income of the deceased at Ksh.5,845/- per month.

Multiplier – 28. The deceased died at the age of 24 years. He was unmarried. The respondent had proposed a multiplier of 32 years while the appellant had proposed 20 years. The trial court adopted a multiplier of 26 years.

29. The choice of a multiplier lies at the discretion of the court. However, like every aspect of discretion it has to be exercised judiciously.

30. Both counsels for the parties cited authorities to support their respective positions on the proper multiplier. The respondent cited the case of Susan Wanjugu Muchemi v James Kabathi Mwangi (supra) where a multiplier of 26 was used for a deceased aged 29 years.

31. The appellant relied on the following authorities: Eldoret HCCA No. 45 of 2016 Alex Koech & another v Patrick K. Ngugi (suing as the administrator of the estate of -John Muya, (Deceased) (2018) eKLR where the deceased was aged 24 years and the High Court agreed with the reasoning given by the trial court that there are risks in life which include illnesses which may lead to premature death in adopting a multiplier of 20 which it up held. (2020) eKLR where the deceased

Muranga HCCA No. 15 of 2018 Elijah Maina Adline Wambui Wanjiru & Another (2020)eKLR where the deceased was aged 25 years old and the High Court reduced a multiplier of 30 adopted by the lower court holding that the court must be guided by the age of the deceased, life expected, vicissitudes of life and the acceleration of the lump sum payment, to one of 20 years as being more reasonable.

Nairobi HCCA No. 140 of 2014 Jenifer Wambui v Stephen Njoroge & Another (2017) eKLR where the High Court upheld a multiplier of 20 years where the deceased was aged 24 years at the time of death.

Machakos HCCC No. 45 of 2015 Mary Wanjiru Maina (Suing as administrator Ad Litem of the estate of the late Jane Wanjiru Maina v Lilian W. Macharia & Anotherwhere the deceased was aged 25 years and the High Court applied a multiplier of 20 years.

Nairobi HCCC No. 258 of 2010Rose Wangui Machua & Another v Japhet Mbiuki (2016) eKLR where the deceased was 23 years old and the court applied a multiplier of 20 years.

32. I have in addition considered the decision in the case of Crown Bus Services Ltd v Jamila Nyongesa & Amida Nyongesa (as legal representatives of Alvin Nanjala (Deceased) (2020)eKLR where the court adopted a multiplier of 35 years to a deceased who was 21 years.

33. The deceased herein died at a very young age. It is possible that he may have lived for many more years even when vicissitudes of life are taken into consideration. In my view, the multiplier of 26 years that was adopted by the trial court cannot be said to be unreasonable or way off the mark. The multiplier of 26 is therefore upheld. The award on the loss of dependency is therefore as follows:5,845 x 12 x 26 x 1/3 = 607,880.

34. In the foregoing, the outcome of the appeal is as follows:1. The award on pain and suffering is set aside and is substituted with one of Ksh.100,000/-.2. The multiplicand adopted by the trial court of Ksh25,000/- is set aside and is substituted with one of Ksh.5,845/-.3. The appeal on the multiplier adopted by the trial court is unsuccessful.4. The award on loss of dependency is set aside and substituted with an award of Kshs. 607,880/=

35. The final award is therefore as follows:-1)Pain and suffering Kshs. 100,000/=2)Loss of expectation of life Kshs. 100,000/=3)Loss of dependency Kshs. 607,880/=Total Kshs. 807,880/=Less 40% contribution Kshs. 323,152/=Total award Kshs. 484,728/=Add special damages Kshs. 235,604/=Net balance Kshs. 720,332/=Orders accordingly. Each party to bear its own costs to the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Karanja for the Appellant – VirtuallyMiss Shilwatso holdinb brief for Mr. Ochoki for Respondents – Virtually30 days R/A.