[2022] KEHC 12686 (KLR)

Wanyonyi v Kikuvi & another (Civil Case 13 of 2020) [2022] KEHC 12686 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12686 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Case 13 of 2020

GMA Dulu, J

July 21, 2022

Between

Wanyonyi Danson Lukiya alias Danson Wanyonyi

Appellant

and

Onesmus Silah Kikuvi

1st Respondent

Anastacia Wayua Sila

2nd Respondent

(Being an appeal from the original judgment of Hon. L.K Mwendwa in Tawa Senior Resident Magistrate’s Court PMCC Case No.128 of 2019 pronounced on 18th February 2020)

Judgment

1. In a judgment delivered on the 27th October 2020, the learned magistrate concluded as follows -“I enter judgment for the plaintiff against the defendant as follows –1. Liability – plaintiff 25% defendant 75%2. Pain and suffering Kshs. 30,000/=3. Loss of expectation of life Kshs. 250,000/=4. Loss of dependency Kshs.3,506,356/=Gross Total Kshs.3,786,356/=Less 25% contribution Kshs. 946,589/=(Net general damages) Kshs.2,839,767/=5. Add reasonable funeral expenses Kshs. 80,000/=6. Special damages Kshs. 37,100/=Total Kshs.2,956,867/=7. Costs and interest of this suit to the plaintiff.

2. Dissatisfied with the decision of the trial court, the appellant who was the defendant in the trial court, has come to this court on appeal on the following grounds –1. The trial magistrate erred in fact and in law in awarding manifestly excessive and undeserved general damages to the respondent under the head loss of dependency at Kshs.3,506,356/= which is inordinately high in the circumstances.2. The trial magistrate applied the wrong and inaccurate multiplier and dependency ratio and failed to consider the correct factors and or applied or considered erroneous factors in determining the loss of dependency.3. The learned magistrate erred in law and fact in awarding manifestly excessive damages under the head loss of expectation of life at Kshs.250,000/= which is inordinately high in the circumstances.4. The trial magistrate erred by awarding special damages which had not been strictly proved and were unjustified and unmerited his awards were unfair and indefensible and have resulted in a miscarriage of justice.5. The learned trial magistrate erred infact and in law in failing to consider the appellant’s submissions on quantum.6. The trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the written submissions filed by Kibatia & company for the appellant, and the submissions filed by Mulyungi & company f or the respondents.

4. This is an appeal on quantum of damages as liability was entered by consent as 25% for the respondent, and 75% for the appellant. No witness evidence was tendered, and respondents filed documents were admitted as evidence by consent, and counsel merely filed written submissions on quantum of damages.

5. It is trite that awarding of damages is an act of exercise of discretionary power by a trial court, and appellate courts can only interfere with such exercise of discretionary power by a trial court, on limited parameters. In this regard, in Kenfro AfricaLtdt/aMeru Express Service –vs- A.M Lubia & Olive Lubia(1982 – 88) I KAR 727 the Court of Appeal restated the applicable principles by expressing itself 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 for Eastern Africa to be that the Judge, in assessing 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 high that it must be a wholly erroneous estimate of the damage.”

6. The appellant’s counsel has complained about the figure awarded for loss of expectation of life under the Law Reform Act of Kshs.250,000/=. Counsel proposed an amount of Kshs.100,000/= in the trial court, while the respondents’ counsel proposed Kshs.300,000/=. They both relied on decided court cases. The magistrate awarded Kshs.250,000/= which in my view, is within the range that had previously been awarded by trial courts for persons within that age range. I will not interfere with this award on loss of life expectancy.

7. With regard to the award for loss of dependency, all parties’ counsel proposed a dependency rate of 1/3 as the survivors were the parents of the deceased who died at 23 and was unmarried .The magistrate however used a dependency ratio of 2/3, which was in my view an erroneous consideration as it was not requested by either party. I will thus interfere with this award on this account. With regard to the multiplier of 35 years for a 23 years healthy young man, I find no erroneous factor applied by the magistrate as retirement age in Kenya is now generally 60 years, and the magistrate used a multiplier that would lapse at 58. I will thus base the loss of dependency on 1/3 x35x12x12,552/70 = 1,753,178.

8. The appellant’s counsel has also challenged the award for special damages, especially the funeral expenses of Kshs.80,000/= and proposed an award of Kshs.37,100/= and relied on the case of Macharia & Waiguru –vs- Muranga Municipal Council & Another (2014) eKLR. In my view, even from the case authorities relied upon at the trial court, one cannot say that the law requires that all particulars of funeral expenses must be proved scientifically. In my view, an award of Kshs.80,000/= for funeral expenses in the present case, was a reasonable award.

9. In conclusion, the appeal is allowed in part. I set aside the 2/3 ratio of dependency used by the trial court for loss of dependency and substitute it with 1/3 ratio. The other awards of damages are upheld.

10. Thus the awards of damages will now be as follows – Liability 25% against plaintiff and 75% against defendant (by consent).

Pain & Suffering Kshs. 30,000/=

Loss of Expectation of Life Kshs. 250,000/=

Loss of dependency(1/3) Kshs.1,753,178/=

Gross – Kshs.2,033,178/=

Less 25% contribution Kshs. 508, 294/=

Net general damages Kshs.1, 524,884/=

Add reasonable funeral expenses Kshs. 80,000/=

Special damages Kshs. 37,100/=Final Award Kshs. 1,641,984/=

Parties will bear their respective costs of this appeal, and the appellant will pay the trial court costs. Interests will accrue until payment in full.

DELIVERED, SIGNED & DATED THIS 21ST DAY OF JULY, 2022, VIRTUALLY AT MAKUENI.GEORGE DULUJUDGE