[2022] KEHC 1916 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT BUNGOMA

CIVIL APPEAL NO. 96 OF 2019

WASILWA SAUL

DANIEL WAFULA WASIKE.................................................................APPELLANTS

VERSUS

DANIEL WASWA SIMIYU & GLADYS NELIMA MISIKO(Both suing as the legal

representativesof the estate of Paul Wafula Simiyu) ...........................RESPONDENT

(An appeal from the Judgement and Decree of Hon. C.A S Mutai S. P.M in Bungoma CMCC No. 393/2017 delivered on 9/10/2019)

JUDGEMENT

In their plaint dated 21st September, 2015, the plaintiffs (now respondents) sought general damages under the Law Reform Act and Fatal Accidents Act, loss of servitum and consortium, Kshs 394, 395/= in special damages, costs and interest arising from an accident which occurred on 9/2/2015 along Bungoma-Webuye road involving Motor Vehicle registration number KBS 829S and Motor Cycle registration number KMCL 798M. The deceased who was a pillion passenger died from the impact.

The appellants filed their statement of defence denying negligence. They blamed the deceased and or the rider of the motor cycle for the occurrence of the accident.

PW1 Daniel Waswa Simiyu testified that he was the deceased’ brother. He stated that the deceased was a businessman who owned a construction firm, an engineer and a farmer. That after the accident, he went to the hospital where he was informed that the deceased was pronounced dead upon arrival at the hospital. He was not at the scene when the accident occurred.

PW2, Stephen Mwanzi, the Executive Officer, Bungoma Law Courts produced the criminal case file showing the 2nd appellant had been charged and pleaded guilty to charges of causing death through dangerous driving and fined Kshs 10,000/=.

PW-3 Thadius Simiyu Mitibicha stated that the accident occurred outside his shop situated along the road. That the bodies of victims landed in the culvert. He opined that the Motor Vehicle was speeding.

PW3 Gladys Nelima Musiko stated that she was the widow. That the deceased was aged 43 years when he died. That when she visited the hospital the following day, her husband had died. That her husband used to earn Kshs 500,000/= per month from his business and farming. She stated that she had lost the love of her deceased husband due to the accident.

PW-4 CPL Jane Orie stated that she investigated the accident and recommended the driver be charged. That both the motor cycle and the motor vehicle were heading in the same direction. That there was an element of over speeding on the part of the 2nd appellant.

Daniel Wafula Wasike testified for the defence as DW-1. He stated that he was the driver of the Motor Vehicle. He stated that the accident occurred as a result of the rider of the Motor Cycle who was ahead of him applying emergency brakes.

The trial court found the deceased 10% liable for the accident, awarded Kshs 13,600,000/= for lost years, Kshs 30,000/= for pain and suffering, Kshs 200,000/= for loss of consortium and servitum, Kshs 438,390/= in special damages and Kshs 100,000/= in funeral expenses. The appellants were aggrieved thus the instant appeal which is premised on the following grounds;

1. That the learned trial magistrate erred in law and fact in failing to appreciate the reasonable and sufficient evidence tendered in court when assessing and awarding general damages.

2. That the learned trial magistrate erred in law and fact in awarding general damages that was excessive in the circumstances.

3. The learned trial magistrate erred in law and fact in assessing general damages (lost years) at Kshs 13, 600,000/= which assessment when viewed against the evidence adduced in court and comparable claims is manifestly excessive and inordinately high as to amount to a miscarriage of justice.

4. The learned trial magistrate erred in law and fact in not sufficiently taking into account, in totality, all the reasonable and sufficient evidence on special damages, consequently proceeded on wrong principles (if any) thus arriving at an erroneous award.

5. The learned trial magistrate erred in law and fact in not sufficiently taking into account in totality all the reasonable and sufficient evidence on loss of consortium, consequently proceeded on wrong principles (if any) thus arriving at an erroneous award.

6. The learned trial magistrate erred in law and fact in not sufficiently taking into account in totality all the reasonable and sufficient evidence on funeral expenses consequently proceeded on wrong principles thus arriving at an erroneous award.

7. The learned trial magistrate erred in in law and fact in failing to evaluate the evidence in its totality and in failing to take into consideration the submissions and authorities submitted by the appellant.

8. The learned trial magistrate failed to exercise her discretion judiciously in awarding damages and failed to apply settled principles.

9. The learned trial magistrate failed to, generally, judicially apply and to adequately evaluate the evidence tendered and thereby arrived at a decision unsustainable in law.

The appeal was disposed of by way of written submissions. The appellant submitted as follows; -

On the award for lost years, the appellants fault the trial magistrate’s finding on this head for the reasons that; there were no academic qualifications to support the fact that the deceased was a civil engineer and a business man, there were no business permits for the year of the accident and that was no evidence of his net earnings.

The appellant thus submits that the lump sum award of Kshs 1,000,000/= would be sufficient. The authorities in Gabriel Mwebia suing as the legal representative of the estate of Dalmas Muteti Njagi Vs George Bundi Koome(2018)eKLRwhere Kshs 150,000 was awarded for a boda boda rider andBon Ton Limited Vs Beatrice Kanaga Kereda suing as administrators of the estate of Richard Alembi Ochenga (deceased) (2018)eKLRwhere the appellate court awarded Kshs 800,000/= have been cited in support.

For damages under the head of pain and suffering, it is submitted that since the deceased died on the spot, a conventional sum of Kshs 10,000/= would suffice. It is submitted that there is no evidence that the deceased endured prolonged pain as a result of the accident.

Under loss of expectation of life, counsel submits that the sum of Kshs 100,000/= would be sufficient compensation. That the award of Kshs 200,000/= was arrived at by the magistrate erroneously invoking his discretion. Reliance has been placed in Ainu Shamsi Hauliers Limited Vs Moses Sakwa & another (Suing as the administrators of the estate of Ben Siguda Okach) (2021)eKLR.

On loss of consortium, it is submitted that this award is not anchored in law and therefore not awardable. That since the claim is founded on the Law Reform Act and the Fatal Accidents Act, such an award is not provided for by the statutes. Counsel cites the case of Francis Nzivo Munguti & another Vs Agnes Nechesa Preston (2016)eKLRwhere the court on an appeal set aside an award for loss of consortium.

On the issue of special damages, it is submitted that the award of kshs 438,390/= is not reasonable. That the award of Kshs 100,000/= as fees for taking out letters of administration is irrelevant and lacks nexus to the suit. As regards funeral expenses, counsel urges the court to disallow this award since it was not established that the amount was spent in connection with the funeral.

Counsel also faults the award of costs in the sum of Kshs 912,380/=. He urges the court to set aside the order and re-assess such costs.

For the respondents it is submitted under the head of lost years, there was evidence that the deceased was a contractor, a businessman, farmer contracted to Mumias and Nzoia Sugar Companies earning approximately Kshs 500,000/=a month. That the deceased died aged 43 years and would have worked until 60 years. He left behind a widow and 5 children. He therefore submits that Kshs 13, 600,000/= is reasonable.

On loss of consortium, he submits that the widow and the children were deprived of love and affection. Relying in PBS & another Vs Archdiocese of Nairobi Kenya Registered Trustees & 2 others (2016)eKLR,counsel submitted that the trial magistrate correctly awarded Kshs 200,000/=.

Under funeral expenses, the respondent submits that the deceased was preserved at the mortuary, coffin bought and body transported home. That this together with the other items bought in preparation for the burial, the award of Kshs 100,000/= was reasonable. He relies in the authority in Abdalla Rubeya Hemed Vs Kajumwa Mvurya & Kulala Mvurya(suing as legal representative of the estate of Jumaa Mvurya Mwamtutu (Deceased) (2017) eKLR.

Under the head of special damages, it is submitted that the award of Kshs 438,395/= was specifically pleaded and proved.

This being a first appeal, the guiding principles are as stated in Oluoch Eric Gogo -Vs- Universal Corporation Limited [2015] eKLR, where the court held;

“As a first appellate court, the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the Court of Appeal case of Selle & Another v Associated Motor Boat Co. Ltd &Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect……

Upon careful review of the evidence on record and the submissions, the issue commending itself for determination in this appeal is on quantum. There are several decisions of the curt on the principles to be followed when dealing with awards of damages. In Catholic Diocese of Kisumu Vs Tete (2004) eKLR it was held;

It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles,

In Kitavi Vs Coast Bottlers Limited(1985) KLR 470) it was held;

It is now settled law that what the appellant was entitled to was a reasonable compensation assessed with moderation and conformity with the general method of approach, local courts have taken. Guidelines and brackets for various injuries are useful aids to some hope of consistency but awards will very much depend on the facts of each case and any attempt to standardize “or rigidily” classify them will be in vain and wrong…

On quantum, there are several authorities of this court regarding the assessment thereof. In A.A.M. Vs Justus Gisairo Ndarera & Another (2010) e KLR the court held;

“Money cannot renew a physical frame that has been battered and shattered and all the courts can do is to award sums which must be regarded as giving reasonable compensation and the award must be fair---”

On damages for pain and suffering, PW-1and PW IV confirmed that the deceased died on the spot. This is damages awarded for pain endured by the deceased. The practice has been that where pain is prolonged, a higher sum is awarded and vice versa. The trial magistrate awarded Kshs 30,000/= under this head.

InSusan Kanini Mwangangi & another v Patrick Mbithi Kavita [2019] eKLR, Kshs 20,000/= was awarded where death was instantaneous. InMoses Koome Mithika & another Vs Doreen Gatwiri & another (suing as the legal representative and administrator of the estate of Phineas Murithi (deceased) (2020) eKLR and Harjeet Singh Pandal Vs Hellen Aketch Okudho (2018) eKLR Kshs 10,000/= was awarded in both cases where death was instant.

In the circumstances, I am inclined to award Kshs 10,000/= as reasonable compensation.

Regarding loss of consortium and servitum, the court has considered the authorities cited. As earlier stated, the suit is governed by the Fatal Accidents Act and the Law Reform Act. Having read both statutes, the court finds that the statutes do not provide for recovery of damages under this head. The award was therefore unsupported by law. It is not lost to the court that the respondent and her children lost the affection, love and care of their deceased father. But then it is trite law that money cannot renew a battered and shattered frame but award reasonable compensation which if invested wisely can make life bearable for the dependants.

Having analyzed the case law supplied by the parties, the court has particularly considered and is persuaded by the authority in Innocent Ketie MakayaVs Peter Kipkore Cheserek & Another(2015) eKLRwhere the court held as follows:-

“In my view, loss of consortium can only be subsumed in a claim for loss of amenities in an action instituted by a survivor of an accident in question in which it is claimed that owing to the injuries sustained in the accident in question, the plaintiff was incapable of enjoying consortium with his/her spouse and that his or her quality of life had as a result been diminished. Loss of consortium cannot thus be maintained as a claim on its own.”

As such the award under the loss of servitum and consortium is set aside.

On lost years, the court finds that the deceased died at the age of 43 years leaving behind a widow and a number of other dependants. It is not clear how much the deceased earned per month. From the several exhibits produced in this matter, it is clear that the deceased was at some point a contractor, he did business and practiced farming. In all these exhibits, none could establish his earnings with certainty.

The court is alive to the fact that profits from business fluctuate depending on several factors. His monthly earnings cannot be determined with certainty. His work as a contractor equally brought in some money for the upkeep of his family. This too is dependent on the contracts being undertaken at the time and the value of the works being done. Farming was also mentioned. Profits too in this sector is difficult to ascertain depending on several factors.

In the trial court, PW II testified that her husband earned a net income of Kshs 500,000/= a month. The appellants proposed a lump sum figure of Kshs 150,000/=. It is true that the deceased’s income could not be ascertained from the evidence on record. In Jacob Anyiga Maruja Another Vs Simeane Obayo [2005]eKLR, the Court of Appeal upheld the reasoning in Albert Odawa Vs Gichimu Githenji: Nakuru HCCA No.15 of 2003 where Ringera J. expressed himself as follows:-

The multiplier approach is just a method of assessing damages. It is not a principle of law or dogma, it can, and must be abandoned, where the facts do not facilitate its approach. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency and expected length of dependency are known or are knowable without undue speculation; where that is not possible, to insist on multiplier would be to sacrifice justice on the altar of methodology; something a court of justice should never do.

Taking into consideration all the above, the authorities cited by both counsel and bearing in mind that this court ought to make awards which are reasonable and in tandem with precedent, the court is inclined to make a lump sum award of Kshs 2,000,000/=

On loss of life expectancy, there is no evidence that any figure was awarded under this head. As such, the same cannot be argued in this appeal.

On special damages, the respondents sought Kshs 438,395/= broken down as; Kshs 100,000/= for professional fees in filing Succession Cause no.144/2015, Kshs 925/= for filing the said succession cause, Kshs 500 for copy of records and Kshs 336, 970/= for funeral expenses. In the end, the trial magistrate awarded Kshs 438, 390/=.

The court finds and holds that funeral expenses are usually spent in connection with the death of the deceased who died due to the appellant’s negligent acts. It is true that after death, expenses generally incidental to the event is incurred. Indeed Section 6 of the Fatal Accidents Act recognizes funeral expenses. The court however finds that such an award is in the nature of special damages and have to be specifically pleaded and proved.

From the record, the trial magistrate awarded special damages in the sum of Kshs 438, 390/= and funeral expenses in the sum of Kshs 100,000/=. The award of Kshs 100,000/= in the circumstances was erroneous since the respondents sought Kshs 438,395/= inclusive of the funeral expenses. The award of Kshs 100,000/= is therefore hereby set aside.

On the cost of taking out letters of administration, the court finds that the receipt for Kshs 100,000/= was produced as exhibit VI. There was no objection from the appellant. The court further finds that the expenditures for the consumables and non-consumables in relation to the funeral ceremony was proved to the required standards. As such the award of Kshs 438, 395/= is hereby affirmed.

The final award shall be as follows;

Damages for pain and suffering Kshs 10,000/=

Damages for lost years Kshs 2,000,000/=

Special damages Kshs 438,395/=

Kshs 2, 448, 395/=

Less 10% contribution. Kshs 2, 203, 556/=

The respondent is awarded interest from the date of judgement in the trial court and each party to bear its own costs of the appeal.

DATEDAT BUNGOMA THIS 11TH DAY OF FEBRUARY, 2022

S. N. RIECHI

JUDGE