[2023] KEHC 25270 (KLR)

Trailink Fabricators & another v Makana (Suing as the personal representative of the Estate of Samson Oirere Ombati (Deceased) (Civil Appeal E018 of 2020) [2023] KEHC 25270 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25270 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E018 of 2020

A Mshila, J

November 10, 2023

Between

Trailink Fabricators

1st Appellant

Gabriel Thuku Kamau

2nd Appellant

and

Miriam Moraa Makana (Suing as the personal representative of the Estate of Samson Oirere Ombati (Deceased)

Respondent

(Being an appeal from the judgment delivered by Honourable G. Onsarigo (SRM) on 6th February, 2020 in Kikuyu NO. 298 of 2016)

Judgment

Background 1. By an Amended Plaint filed on 22/08/2018, the Respondent herein being the personal representative to the estate of SAMSON OIRERE OMBATI (Deceased) sued the Appellants claiming compensation for the fatal injuries sustained by the deceased on or about 30th January, 2014 when the deceased was a lawfully standing at Uthiru Bus Stage along Nairobi-Nakuru Road near Uthiru Market, when the 2nd Appellant so negligently drove motor vehicle registration number KAV 500T Mercedes Benz Truck trailer that he caused the same to veer off the road to the pedestrian bus stop and violently knock down the deceased causing him fatal injuries.

2. The Appellants filed their Defence denying any liability for the accident. In particular, the Appellants averred that the accident was caused solely and/or substantially contributed to by the negligence of the deceased.

3. Parties recorded a consent on liability to be shared in the ratio of 80:20 in favour of the Respondent.

4. The matter proceeded to a full hearing. At the conclusion of the trial, the Honourable Trial Magistrate entered judgment in favour of the Respondent as against the Appellants as follows:a.Pain and suffering…..........................................Kshs. 20,000/=b.Loss of expectation of life…………………….Kshs. 100,000/=c.Loss of dependency…………………………...Kshs. 4,388,460/=Total Kshs. 4,508,460/=Less 20% Kshs. 901,692/=Kshs. 3,606,768/=

5. The Appellants are dissatisfied with the lower Court’s judgment and have preferred the present Appeal. In their Memorandum of Appeal, they have listed six grounds of appeal as follows:a.The Learned Magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.b.The Learnėd Magistrate erred in law, fact and principle in awarding quantum of damages based on a wrong Multiplicand resulting in an award that was inordinately high in the circumstances of the case.c.The Learned Magistrate erred in fact, law and principle and misapprehended the evidence adduced in awarding quantum of damages based on a dependency ratio of 2/3 whereas there was no proof of dependency.d.The Learned Magistrate erred in fact and in law and misapprehended the evidence adduced in determining the issue of liability as between the plaintiff and the defendant therein.e.The Learned Magistrate erred in fact, law and principle in determining the multiplier applied in assessing the award of damages therein thereby arriving at an erroneous and excessively high award on quantum.f.The learned Magistrate generally erred and misdirected himself in law when he abrogated his duty to adjudicate as per evidence produced and as per the law, principle and facts in assessing the quantum of damages in the matter.

6. The court directed the parties to canvass the appeal by filing and exchanging written submissions; hereunder is a brief summary of the rival submissions.

Appellants’ Submissions 7. The Appellants submit that the awards of Kshs. 20,000/= under pain and suffering and Kshs. 100,000/= for loss of expectation of life are not disputed and the same should not be disturbed. In regard to loss of dependency, the Appellants submit that the trial court misinterpreted the regulations when it adopted the minimum wage of Kshs. 21,942. 30 as per the Regulation of Wages Order 2017 for drivers in cities as opposed to Kshs. 17,982. 10 for drivers in other areas. It was further submitted that the Respondent did not produce copies of birth certificates and/or marriage certificates to prove dependency. In regard to multiplier, the Appellants opined a multiplier of 20 years would be enough given the vicissitudes of life and the nature of business the deceased was involved in.

Respondent’s Submissions. 8. The Respondent in her advocate’s written submissions submitted that the award of damages is an exercise of discretion by the trial court based on the evidence and impressions on demeanor of witnesses made by the trial court which the appellate court lacks. Reliance was placed in the case of Simon Tavern vs Mercy Mutitu Njeru (2014) eKLR. It was submitted that it is improper for the Appellants’ to allege that the trial court failed to consider its submissions as the trial court had all the evidence, submissions and authorities presented to it and it considered the same when making its decision. In any case no evidence was produced to show that the deceased was of ill health as to affect the award made. In the circumstances, the appeal lacks merit as the award is not excessive and the same should be dismissed with costs and the trial courts decision be upheld.

Trial Court’s Evidence 9. During the hearing at the trial court, Miriam Moraa Makana (PW1) the deceased’s wife testified that her husband was going to work around 6 am when he was knocked down by the lorry. She stated that the deceased was in the company of their child who came and informed her of the accident. That at the scene she found police officers and that the deceased’s body was taken to City Mortuary where a post mortem was conducted. She adopted her witness statement. She indicated that she was also issued with the letters of administration. She prayed for damages as she was left with two young children as well as costs.

Issues For Determination 10. Having read and considered the trial court record, the submissions by both parties and the case law relied upon, this court has identified the following issues for determination;-a.Whether the trial magistrate considered the Appellants’ submissions.b.Whether the damages awarded were excessive.

11. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. InSelle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

Analysis Whether the trial magistrate considered the Appellants’ submissions. 12. On whether the trial court considered the Appellants evidence and submissions, there can be no doubt that the trial court considered the said submissions. In any case the Appellants did not call any witnesses. A perusal of the impugned judgment shows that the trial court considered the Appellants’ submissions and made a determination on the matter before it.

Whether the damages awarded were excessive;. 13. On quantum, the Appellants allege that the Learned Trial Magistrate awarded damages that were excessive considering the circumstances and the evidence tendered.

14. General damages awarded at the lower court can only be interfered with if it is:-“so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the (court) proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” (See Butt –vs- Khan, Nairobi Civil Appeal NO. 40 of 1977).

15. A similar view was expressed in by the Court of Appeal inGitobu Imanyara & 2 others v Attorney General (2016) eKLR thus:-[I]t is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

16. The trial court considered the evidence before it and awarded Kshs. expectation of life under the Law Reforms Act. These awards are not in dispute as both parties are agreeable to the same.

17. Under the Fatal Accidents Act the trial court further awarded Kshs. 4,388,460/= for loss of dependency which award is subjected to 20% liability.

18. On Multiplicand; The Appellants’ argue that the trial court relied on the monthly pay for drivers in cities which is Kshs. 21,942. 30 as per the regulations whereas the court should have used Kshs. 17,982. 10 for drivers in other areas as the deceased is alleged to have been a driver at Egesa Travellers Sacco earning Kshs. 30,000/= but no supporting documents were provided.

19. This court finds no good reason to interfere with the minimum wage adopted by the trial court in the sum of Kshs. 21,942. 30 being the monthly pay as per the Regulation of Wages Order 2017 for drivers in cities as the deceased was based in Nairobi.

20. On Dependency Ratio; The Appellants proposed that the court should adopt a dependency ratio of 2/3 if the same is proved by way of birth certificate and marriage certificate and a multiplier of 20 years as the 25 years adopted by the trial court was unrealistic given the deceased’s nature of business.

21. Dependency is a matter of fact and must be proved by evidence as was held in the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:-“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

22. In this regard, the dependency ratio of 2/3 will not be disturbed as the Respondent produced Child Health Cards for her two children where she is indicated as the mother and the deceased is listed as the father.

23. On Multiplier: This court also finds no good reasons adduced by the Appellants so as to interfere with the multiplier of 25 years as the trial court in adopting the same is found to have taken into account the vagaries of life and also considering the deceased was aged 31 years.

24. In the instant case, this court is satisfied that the damages awarded by the trial was reasonable. In arriving at this conclusion, this court is alive to what Kneller J.A, stated in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1985] that:-“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 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 a wholly erroneous estimate of the damage.”

25. In Gicheru v Morton & another [2005] 2 KLR 333, the Court of Appeal again stated that:-“in order to justify reversing of the trial court’s amount of damages, it is necessary that the appellate court be convinced either that the trial court acted upon some wrong principle of law, or that the amount awarded is so extremely high or so very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damage to which the appellant was entitled.”

26. The same Court similarly observed in Denshire Muteti Wambua v Kenya Power and Lighting Co. Ltd [2013] eKLR, that:-Monetary awards can never adequately compensate a litigant for what they have lost in terms of bodily function especially where this is permanent. But awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness.

27. Having applied these principles to this appeal, and also having considered the fact that deceased was aged 31 years old and has left behind a young family and the case law relied upon, this court finds no reason to interfere with the trial court’s awards. Only in clear cases should an appellate court interfere with a trial court’s assessment of damages. The appellate court should not impose its own view on what it would have awarded had it been the one trying the matter at first instance.

28. Having now re-evaluated the evidence on record as this court is required to do, this court is satisfied that the Learned Trial Magistrate in arriving at his decision correctly applied the principles of law and exercised its discretion in this matter. The Appellants have not satisfied this court that the trial court applied wrong principles of law leading to awards that were either extremely low or high to represent an entirely erroneous estimate of the awards the Respondent was entitled to.

Findings And Determination 29. For the forgoing reasons this court finds the appeal to be devoid of merit in its entirety; the appeal is hereby dismissed with costs to the Respondent.

Orders Accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantWanza – holding brief for Miss Mwangangi – for AppellantsOndieki – for Respondent