[2018] KEHC 6409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL APPEAL NO. 48 OF 2014

VINCENT KIPKORIR TANUI

(Suing as the administrator and/or

Personal representative of the Estate of

SAMWEL KIPROTICH TANUI (Deceased)................................APPELLANT

VERSUS

MOGOGOSIEK TEA FACTORY CO. LTD......................1ST RESPONDENT

WILFRED CHERUIYOT ................................................. 2ND RESPONDENT

(An appeal from the judgment and decree of Hon. L.N. Kiniale (SRM) in Kericho CMCC No. 66 of 2012)

JUDGMENT

1. The appellant in this matter was the plaintiff in Kericho CMCC No. 66 of 2012. The suit was a claim for damages under the Law Reform Act and the Fatal Accidents Act following a road traffic accident that occurred on 8th November 2007 along the Litein-Mogogosiek road in which a pedestrian, Samuel Kiprotich Tanui, sustained fatal injuries. The accident involved the deceased and motor vehicle registration number KAU 816 P Isuzu lorry owned by the 1st defendant and driven by the 2nd defendant for whose acts the 1st defendant was vicariously liable.

2. In her judgment dated 14th November 2014, Hon. L. Kiniale, SRM, entered judgment for the plaintiff in the sum of kshs.228,500 made up as follows:

a. Pain and suffering – Kshs.20,000/-

b. Loss of expectation of life – Kshs.200,000/-

c. Special damages – Kshs.8,500/-

Total Kshs.228,500/-

3. The court also awarded the plaintiff the costs of the suit.

4. Dissatisfied with the judgment of the court, the appellant filed a Memorandum of Appeal dated 1st December 2014 in which he raised seven grounds of appeal. However, in his submissions at the hearing of the appeal, the appellant abandoned all but grounds 2 and 3 of his appeal, which are as follows:

1. …

2. That the learned resident magistrate erred in fact and in law in failing to consider and analyse the evidence adduced by the appellant thus rendering an untenable judgment.

3. That the learned resident magistrate erred in law and in fact in failing to award damages under the Fatal Accidents Act yet the same was pleaded and proved.

5. As this is a first appeal, I am under a duty to evaluate the evidence before the trial court and reach my own conclusion.

6. The plaintiff/appellant called 3 witnesses. PW1 was the Base Commander, Bureti Traffic Base, No.49273, Sgt Martin Thuku, stationed at Litein Police Station. He was called to produce the police abstract in respect of the accident involving motor vehicle registration number KAU 816 P Isuzu lorry at the Mogogosiek Tea Factory area, and the pedestrian, Samuel Kiprotich Tanui. He did not have any information with respect to the circumstances of the accident.

7. PW2 was the plaintiff, Vincent Kipkorir Tanui, a brother of the deceased. He had not witnessed the accident involving his brother.

8. He produced a death certificate in respect of the deceased, who was 40 years old at the time of his death. He was not married but his family, father, mother, three brothers and sisters ranging in age between 37 and 56 years were, according to the evidence of the plaintiff, his dependants.

9. The deceased was a watchman at the time of his death, earning Kshs. 10,000/- per month. No documentary evidence, however, was produced in respect of his earnings.

10. PW3, Emily Chelangat, testified that on the material day at around 7. 30 p.m., she had witnesses the motor vehicle hit a man. He had been walking ahead of her on the road. The vehicle had hit him from behind, after it left the road. In cross-examination, she stated that the lorry was driving at high speed. She and the deceased were walking in the same direction as the lorry.

11. The plaintiff then closed his case and the matter was adjourned to enable the defendant call its witnesses. The defendant did not, however appear to present its defence and its case was closed on 9th October 2014.

12. In her judgment dated 14th November 2014, Hon. L. N. Kiniale, Ag SRM identified 3 issues for determination in the matter:

i. Whether the accident occurred as alleged;

ii. Who should be held liable for the accident;

iii. The quantum of damages to be awarded.

13. After analysing the evidence tendered in court, the trial court concluded that an accident did occur as alleged. As for who was liable for the accident, she found that the doctrine of res ipsa loquitor applied, and that the plaintiff’s evidence was uncontroverted. She therefore concluded that the 2nd defendant, for whose tortious act the 1st respondent was vicariously liable, was to blame fully for the accident.

14. With respect to the quantum of damages to be awarded the trial court found that the contention that the deceased was employed as a watchman earning 10,000/- per month was not supported by any evidence. Further, there was no evidence of dependency as the deceased, who was 40 years old and unmarried, was not shown to have supported any of his brothers or sisters, all of whom were over 18. She therefore made an award of Kshs,228,500 as detailed above.

15. The parties filed written submissions in support of their respective cases. In his submissions, the appellant argued grounds 2 and 3, which related to the failure by the trial court to make an award in damages for loss of dependency under the Fatal Accidents Act, yet the issue had been specifically pleaded and evidence thereon had been led.

16. The appellant submitted that he had, in his evidence, testified that the deceased had dependants whom he enumerated, and who had lost any expectation of dependency. The issue of dependency had not been questioned or controverted by the respondents. According to the appellant, the trial court had disregarded the fact that most parents depend on the support of their children, especially in their old age, as do siblings who are not well off. She had failed to consider section 4 (1) of the Fatal Accident s Act which defines a dependant to include a wife, husband, parent and child of the deceased.

17. The appellant relied on the decision in Leonard O. Ekisa & Another vs Major K. Birgen (2005) eKLR to submit that the deceased made contributions towards his parents’ welfare and shared his earnings with his siblings. He further relied on the decision of Nyarangi JA in Sheikh Mushtag Hassan vs Nathan Mwangi Kamau Transporters & Others (1982 – 88) 1 KAR 946 as well as Kenya Breweries Ltd vs Sro (1991) KLR 408. His submission was that in the African setting, whether married or not, a child is expected to support his parents, and under section 4 (1) of the Fatal Accidents Act, parents are dependants.

18. As for the quantum that the trial court should have awarded under the Fatal Accidents Act, the appellant submitted that the deceased was employed as a watchman, earning Kshs. 10,000/- per month. He did not need to prove his earnings by documentary evidence, the appellant relying in this regard on David Kogogo M’mugaa vs Francis Muthomi (2012) eKLR in which the court cited the decision in Jacob Ayiga Maruja and Francis Kerani vs Simeon Obayo (suing as the administrators of the Estate of Thomas Ndaya Obayo CA No.167 of 2002 where the court rejected the notion that only documentary evidence could prove earnings. The appellant therefore proposed a multiplicand of Kshs. 10,000/- and a multiplier of 20 years. The rationale for this was that there was no evidence that the deceased was suffering from any illness and would have been expected to work till the age of 60 years. He urged the court to make an award of Kshs. 800,000/- based on a calculation of 10,000 x 1/3 x 20 years.

19. Other than the failure of the trial court to make an award under the Fatal Accidents Act, the appellant was satisfied with the award of the trial court, and he urged that it should remain undisturbed.

20. In their submissions in reply dated 27th October 2017, the respondents urged the court to dismiss the appeal. In their view, the appellant had not proved that the persons named in his evidence were dependants of the deceased. They were adults and their names did not appear in the chief’s letter produced in evidence.

21. It was also their submission that the deceased was working as a watchman, and in their view, watchmen face many dangers in life. Due to the vagaries of life, the deceased would have lived to an age which the respondents do not state in their submissions. Indeed, in what is clearly inattention to the submissions they were making, the respondents submit that a multiplier of 40 years would be an adequate figure in calculating loss of dependency in respect of the deceased. They urged the court to dismiss the appeal with costs.

Analysis and Determination

22. I have considered the record of appeal and the submissions of the parties. The sole issue for determination in this appeal is whether the trial court erred in failing to make an award in damages for loss of dependency under the Fatal Accidents Act.

23. The deceased was aged 40 years at the time of his death. He was unmarried and was working as a watchman. In the view of the trial court, loss of dependency had not been proved, and as there was no proof of his earnings as a watchman, his estate was not entitled to any damages under the Fatal Accidents Act.

24. In his decision in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988, Ringera J. stated as follows:

“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

25. Section 4 (1) of the Fatal Accidents Act provides that an action under the Act may be brought for the benefit of the wife, husband, parent and child of the person whose death was caused as a result of the tortious act of another, thus including parents among the dependants of a deceased person. In his decision in Leonard O. Ekisa & Another vs Major K. Birgen (2005) eKLR, Dulu J observed as follows:

“Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country. Expenses on children also do not need to be proved by documents. It is not possible to keep receipts for each of such expenditures.”

26. The law is that an award under the Fatal Accidents Act can be made in respect of a child of 6 years, on the reasoning that the child would have grown up and assisted its parents-see Civil Appeal No. 144 of 1990 Kenya Breweries vs Ali Kahindi Saro (Kenya Breweries Ltd –vs Saro (1991) KLR, 408) and Ahmed vs NKS and Another Suing on Behalf of the Estate of JMS Deceased HCCA No. 152/2013where the court held that damages were clearly payable to the parents of a deceased child, irrespective of the age of the child, and irrespective of whether or not there is evidence of pecuniary contribution. It would be remiss, in my view, to deny damages under the Fatal Accidents Act in a case such as is before me on the basis that the deceased, who was an adult of 40 years, was not married. I therefore take the view that the trial court erred in not making an award in damages under the said Act.

27. What should be the quantum of damages to be awarded to the estate of the deceased, and the multiplier to be used? The trial court noted that there was no documentary evidence to prove that the deceased was earning Kshs 10,000 as a watchman. In its decision in Jacob Ayiga Maruja and Francis Karani vs Simeon Obayo (Suing as the administrator of the Estate of Thomas Ndaya Obayothe Court of Appeal sitting in Kisumu observed as follows:

“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

28. Where there is no documentary evidence of earnings, the practice of our courts has been to take the minimum wage as the multiplicand-see Mombasa Civil Appeal No. 53 of 2013- Abdalla Rubeya Hemed vs Kajumwa Mvurya & Kulala Mvurya (suing as legal representative of the estate of Jumaa Mvurya Mwamtutu (Deceased).There was no evidence before the court of the minimum wage in 2012, but in my view, a sum of kshs.5,000/- is reasonable in the circumstances.

29. In the present case, the deceased was working as a watchman. He was 40 years of age. Despite the argument by the respondent that the vagaries of life would have shortened his life expectancy, I see no basis for that assertion, and in my view, he could be expected to live to at least 50 years, and I take the view that a multiplier of 10 years is reasonable in the circumstances. As he was unmarried, he may have been expected to use at least a third of his income on his parents. I am therefore inclined to make an award under the Fatal Accidents Act for loss of dependency as follows:

5,000x12x10x1/3=200,000

30. The appellant was satisfied with the award made by the trial court under the Law Reform Act. Accordingly, the final award to the appellant shall be as follows:

a. Pain and suffering – kshs.20,000/-

b. Loss of expectation of life – kshs.200,000/-

c. Special damages – Kshs.8,500/-

d. Damages for loss of dependency under the Fatal Accidents Act - Kshs 200,000

Total- Kshs.428,500/-

31. The appellant shall also have the costs of this appeal and interest on the damages and costs from the date of judgment until payment in full.

Dated Delivered and Signed at Kericho this 18th day of May 2018.

MUMBI NGUGI

JUDGE