[2017] KEHC 2898 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCA NO. 88 OF 2013

W. E. TILLEY MUTHAIGA LIMITED………….…1ST APPELLANT

DOMINIC OMONDI OBUOYO……………….…..2ND APPELLANT

VERSUS

NELSON OWEN ONGAYO (Suing as the Personal Representative

of the Estate of JACOBOMOIMBO

ONGAYO)DECEASED.......................................RESPONDENT

(Being an appeal against the judgment and decree of the learned Principal Magistrate Hon. T. A. Obutu delivered on the 27th September 2013 in KISUMU CMCC No. 296 of 2009)

JUDGMENT

The respondent, suing on behalf of the estate of his late brother Jacob Omoimbo Ongayo, obtained from the appellants special and general damages arising from an accident that occurred on 20th September 2009 in which his said brother suffered fatal injuries. The claim was brought under the Law Reform Act and the Fatal Accidents Act.

The respondent was the only witness in the case. His testimony was that on the material day he and his brother now deceased were passengers in matatu KBA 896 when at a place called Nyamasaria a Canter lorry KAR 143E belonging to the 1st appellant and which was being driven by the 2nd appellant veered to their side as it was overtaking. The vehicles collided and his brother sustained fatal injuries. He stated that as a result of his brother’s death he together with his siblings lost dependency as they solely depended on him for food and school fees. He stated that the deceased who was 33 years old and the eldest in the family earned about 15,000/= a month as a sugar cane farmer though he never kept records. He tendered a certificate of a death, a copy of records a grant of letters of administration ad litem, a police abstract, an introduction letter from his chief, 6 receipts for a sum of Kshs.8,470 and stated that they incurred Kshs.52,000/= funeral expenses and Kshs.15,500/=. He blamed the appellants for the collision stating that the 2nd appellant was charged with causing death by dangerous driving.

The appellants did not adduce evidence in the matter.

After considering the respondent’s evidence and submissions from Counsel for both parties the learned trial magistrate found the appellants wholly liable for the accident and awarded the respondent damages as follows-

1. Law Reform Act

Loss of expectation of death -100,000

Pain and suffering - 20,000

2. Fatal Accidents Act

Loss of dependancy - 2,160,000

3. Special damages 70,670

Total -2,350,670

Being aggrieved the appellants appealed. The appeal was canvassed through written submissions.

As the first appellate court I have considered the evidence in the trial court, the Memorandum of Appeal and the submissions of Learned Counsel. The appellants did not give evidence at the trial and indeed did not cross examine the respondent. His evidence that the appellant’s motor vehicle veered into the path of the vehicle the deceased was travelling in was not rebutted. Secondly although the appellants joined a third party to the proceedings they did not adduce any evidence in respect of their claim against that party. I am satisfied negligence was proved on a balance of probabilities. No evidence was adduced upon which a finding of contributory negligence could be properly made. In the circumstances the learned magistrate’s finding on liability was correct. The appeal on that ground is dismissed.

On the quantum of damages it has long been held that an appellate court will only interfere if the trial magistrate either acted on a wrong principle or awarded so much or so little damages as to be a wrong estimate of the damage; or he considered matters he ought not to have considered or left out matters he ought to have considered thereby arriving at a wrong decision-see Butler v Butler (1984) KLR 225.

Applying the above principle to this case I see no ground upon which I can upset the award under the Law Reform Act. However the learned trial magistrate clearly erred in awarding damages under the Fatal Accidents Act. As correctly submitted by Counsel for the appellants and as stipulated under Section 4 (1) of that the Fatal Accidents Act damages under the Act can only be claimed for the benefit of a child, a spouse or a parent of the person who died as a result of the action complained of. The respondent is a brother of the deceased and neither he nor his siblings qualify for damages under the Act. Accordingly the sum awarded under that head shall be set aside.

For special damages the rule of the thumb is that they must be specifically pleaded and strictly proved. The respondent proved the specials claimed for the police abstract and death certificate as well as hospital expenses and those shall be allowed. However although he produced the grant ad litem he did not tender proof that he paid 15,500 to obtain it. This expense could have been proved through a court receipt and advocates receipt if one was involved. That amount shall be stuck out.

The learned magistrate made an award for burial expenses for the claimed sum of Kshs46,000. As was held by the Court of Appeal in Joseph Ayiga Maruja &Another V Simeon Obaya [2005]eKLR “the courts have recognized that a reasonable award ought to be made in respect of funeral expenses”.The respondent gave a breakdown of how the sums claimed were expended although he did not produce receipts. I am persuaded that the sum claimed was reasonable and shall uphold the award. In the premises I make orders as follows-

a)That the appeal on liability is dismissed

b)That the appeal on special damages is dismissed

c)That the appeal on general damages is partially successful and the damages awarded under the Fatal Accidents Act are set aside.

d)Damages under the Law Reform Act are upheld

e)That the appellants shall get the costs of this appeal and the costs of the respondent in the lower court shall be reduced to the extent of his success noting that the damages awarded under the Fatal Accidents Act are hereby set aside.

It is so ordered

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

In the presence of:-

N/Afor the Appellant

N/A for the Respondent

Serah Sidera – Court Assistant