[2019] KEHC 5895 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CIVIL APPEAL NO. 32 OF 2016

WANDERA GEORGE T/A ODINDIKO INVETMENTS...........APPELLANT

Versus

HARRISON SHIDA THOYA & BENDERA S BAYA (suing as the

Legal Representatives and/or Administrators of the Estate of

Linet Thoya Baya-Deceased).....................................................RESPONDENTS

[Being an Appeal from the Judgement delivered by Hon. D. Nyambu, SPM on 29th June, 2016 in Kilifi SPCCC No. 59 of 2013, Harrison Thoya & Bendera S. Baya (suing as the legal representatives and/or administrators of the estate of Linet Thoya Baya-deceased) v Wandera George t/a Odindiko Investments]

JUDGEMENT

1. LST, a sixteen-year-old girl was in Form 1 at [Particulars Withheld]Girls Secondary School when she succumbed to injuries sustained in an accident that occurred on 1st August, 2010 while she was travelling as a fare-paying passenger in motor vehicle registration number KBK 587Y belonging to the Appellant, Wandera George t/a Odindiko Investments. I will henceforth refer to LST as the deceased.

2. The respondents, Harrison Shida Thoya and Bendera S. Baya sued the Appellant in Kilifi PMCCC No. 59 of 2013 for compensation on behalf of the estate of the deceased. At the conclusion of the trial, the learned magistrate awarded the estate of the deceased Kshs.1,411,425 as damages made up of Kshs.100,000 for loss of expectation of life, Kshs.50,000 for pain and suffering, Kshs.61,425 as special damages and Kshs.1,200,00 for loss of dependency.

3. From the submissions filed by the parties it is apparent that this appeal is limited to the assessment of damages by the trial court.

4. Assessment of damages is within the discretion of the trial court. An appellate court will only interfere with an award of damages by a trial court in the circumstances outlined by the Court of Appeal in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No.2) [1985] eKLR 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 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 inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

Those are the principles I will apply in determining this appeal.

5. It is the Appellant’s case that its main contentions in this appeal are the use of the multiplier approach in calculating damages payable to the estate of the deceased for loss of dependency and the “double award” made to the same beneficiaries under the Law Reform Act and the Fatal Accidents Act.

6. Counsel for the Appellant faulted the trial magistrate for failing to consider the Appellant’s submissions at the trial. According to the Appellant’s counsel the trial court simply adopted a minimum wage of Kshs.10,000 and a multiplier of 30 years yet no evidence was tendered to demonstrate that the deceased was examining Kshs.10,000 per month.

7. In support of this contention, counsel for the Appellant cited the decision in Oyugi Judith & another v Fredrick Odhiambo Ong’ong & 3 others [2014] eKLR where an award for loss of dependency based on earnings not supported by evidence was set aside on appeal.

8. Counsel for the Appellant urged this court to find that the trial magistrate erred in adopting the multiplier approach as the global approach was the better approach in calculating damages for loss of dependency in this case. Counsel for the Appellant urged this court to reduce the award of loss of dependency from Kshs.1,200,000 to Kshs.600,000. In support of this proposal counsel cited the decision in the case of Albert Odawa v Gichimu Gichenji [2007] eKLR where a lump sum of Kshs.400,000 was awarded.

9. On his part, counsel for the Respondent urged the court not to disturb the decision of the trial court simply because the trial magistrate used the multiplier approach instead of using the global award approach. Cited in support of the argument is the decision of Joel Ngugi, J in Kiambu HCCA No. 100 of 2006, Henry Kuria Muniu & another v Silas Lenene Tonkei & another, where the learned Judge held that the trial magistrate had the discretion on which approach to use and could thus not be faulted for using the multiplier approach. An award of Kshs.1,109,280 for a minor aged 7 years was upheld in that case. Counsel’s position is that the award of Kshs.1,200,000 is not inordinately high.

10. Looking at authorities cited by the parties I agree with G.W. Ngenye Macharia, J when she stated in P. I. v Zena Roses & another [2015] eKLR that:-

“In my view, it is true to say that the future of a minor is unknown as opposed to that of an adult who is engaged in an occupation that earns him or her a living. It can also be contrasted with that of a middle aged person who may be in college or in whose life there is indication of what kind of livelihood he would engage himself/herself in when he grew up. For the case of minors, it is my view that tabulation for damages for loss of future earnings and lost years can be gauged depending on what evidence is brought before the court. For instance, a good case can be argued where evidence is shown that the minor is in school, well performing and that it is hoped, based on his or her performance, would engage himself or herself in this or that occupation. That is why evidence before a trial court must not be led in a casual manner thinking that the court would make an assumption of what earnings the minor may get in future or what he would become once he grew up. It is not sufficient to just state that the minor was either in kindergarten, primary or secondary school. A good case would be argued when evidence is brought to show or persuade the court that despite the fact that the minor was in the tender years of school, it was hoped that he would have a good future when he grew up. In the present case unfortunately, no iota of evidence was tendered to demonstrate what the performance of the deceased was both in school and in life. The plaintiff did not also lead evidence stating what he expected the future of the deceased to be.”

11. The learned Judge went ahead and stated that:-

“In the foregoing, I think, the most prudent principle to apply in awarding general damages for loss of dependency is to give a global sum. I will award Kshs.300,000 under this head.”

12. In the case at hand, the evidence placed before the Court was that the deceased was in Form One at Waa Secondary School. It was said that she aspired to be a teacher but nothing more was placed before the Court. How and why the trial magistrate picked a figure of Kshs.10,000 as reflecting the deceased’s earnings cannot be gleaned from the record. In my view, the trial magistrate therefore arrived at the figure of Kshs.1,200,000 being the award for loss of dependency based on the wrong principles. The lump sum approach was the most ideal approach for assessing damages for loss of dependency in the circumstances of this case.

13. The question that remains is whether an award of Kshs.1,200,000 for the estate of a child aged 16 years was reasonable. In Kenya Breweries Limited v Saro [1991] KLR 408 the Court of Appeal stated at page 411 that:-

“We would respectfully agree with Mr Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable in the case of a four year old one who has not been to school and whose abilities are not yet ascertained. That, we think, is a question of common sense rather than law.”

14. In Kiambu HC Civil Appeal No. 100 of 2016, Henry Kuria Muniu & another v Silas Lenene Tonkei & another (suing as Legal Representatives of the Estate of Sheila Nekison (deceased)), Prof. Joel Ngugi, J made an award of Kshs.1,019,280 for loss of dependency in respect of the estate of a seven-year-old child.

15. For the estate of a child who was 16 years old and already in Form One, an award of Kshs.1. 200,000 for loss of dependency cannot be said to be inordinately high. Although I have found that the formula used by the trial court in arriving at the figure of Kshs.1,200,000 was not appropriate in the circumstances of the case, I nevertheless find that a lump sum award of Kshs.1,200,000 in respect of the estate of a 16 year old child in secondary school is not inordinately high. I am thus not moved by the Appellant to engage my powers and disturb the award.

16. The other issue raised by the Appellant is alleged double award under the Law Reform Act and the Fatal Accidents Act. Counsel submitted that the trial magistrate erred by failing to deduct the award under the Law Reform Act from the award made under the Fatal Accidents Act since the beneficiaries under both Acts would ordinarily be the same and failure to carry out a deduction would amount to doubt compensation. This submission was supported by reference to the decisions in Kemfro v A. M. Lubia & another [1982-1988] KLR 727; Transpares Kenya Ltd & another v SMM (suing as Legal Representative of the Estate of EMM-deceased) [2015] eKLR; and Henry Kuria Muniu & another (supra).

17. The Respondent rejected the Appellant’s argument and submitted that it is not a requirement of the law that having made what is obviously a nominal award under the Law Reform Act, the trial magistrate was obliged to engage in a mathematical deduction of the said award from the award made under the Fatal Accidents Act. Reliance was placed on Section 2(5) of the Law Reform Act, Section 4(2) of the Fatal Accidents Act and the decisions in D avid Kahuruka Gitau & another v Nancy Ann Wathithi & another [2016] eKLR and Bendeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR.

18. In Henry Kuria Muniu & another (supra) Prof. Joel Ngugi stated that:-

“It is true, as the Respondents argue that in his separate concurring opinion, Chesoni Ag JA held that “to be taken into account and to be deducted are two different things [and that] the words used in Section 4(2) of the Fatal Accidents Act are ‘taken into account’.” However, the position taken by our Courts is that absent special circumstances a Court will demonstrate that it has “taken into account” by deducting the amount awarded under the Law reform Act from the award for loss of dependency under the Fatal Accidents Act. I would venture to suggest that where the multiplier method has been used, unless the Trial Court expressly explains that it has chosen a lower figure to use as a multiplicand, multiplier or ratio pursuant to the statutory admonition under section 4(2) of the Fatal Accidents Act, it would be assumed that it did not “take into account” the award under the Law Reform Act. Such is the case here.”

19. I believe the law on the issue raised by the Appellant was clarified by the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (deceased)) v Kiarie Shoe Stores Limited [2015] eKLR; Civil Appeal No. 22 of 2014 (Nyeri) when it held that:-

“20. ThisCourt has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.

21. Theconfusion appears to have arisen because of different reporting of theKenfrocase (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting theratio decidendi. The same case, however, is more fully reported in [1987] KLR 30as Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decindendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that:-

“6. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.

7. The Law Reform Act (Cap 26) Section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.

8. The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”

22. The deduction of the entire amounts made under the LRA in this case was erroneous and once again, we have to interfere with the final award of damages. We observe that the High Court reduced even further the figure of Sh. 100,000 awarded for Loss of life expectation to Sh. 70,000 despite confirmationin its judgment that there was no dispute on the award. Mr. Kiplagat attempted to justify the reduction by the argument that it would be beneficial to Hellen because less amount would be deducted from the FAA award. With respect, that argument is misguided since there is no compulsion in law to make the deduction.”

20. In the appeal before me, no case has been made for deducting the award made under the Law Reform Act from the award made under the fatal Accidents Act. In my view, it was incumbent upon the Appellant to demonstrate that the trial court failed to take into account the award made under the Law Reform Act when making the award under the Fatal Accidents Act. The Appellant has failed to do so. This particular ground of appeal therefore fails.

21. Despite what I have stated in this judgement, the end result is that the Appellant’s appeal in respect to the damages awarded by the trial court fails. The appeal is therefore dismissed in its entirety.

22. Having determined that the appeal is without merit, I do not deem it necessary to explore the Respondent’s submissions on the competency of the appeal. The Appellant’s appeal is dismissed with costs to the Respondent.

Dated and Signed at Nairobi this 25th day of April, 2019

W. Korir,

Judge of the High Court

Dated, Countersigned and Delivered at Malindi this 26th day of June, 2019

R. Nyakundi,

Judge of the High Court