[2022] KEHC 1755 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CIVIL APPEAL No. E003 OF 2021

WILSON ONDICHO MBOGA............................................................APPELLANT

=VRS=

NICHOLAS MAINA ARISI & THOMAS MORARA

ONDARI (Suing as Legal Administrators of the Estate of

ALICE KWAMBOKA (Deceased)...................................................RESPONDENTS

(Being an appeal against the Judgement of Hon. W. C. Waswa (Mr.) —RM Nyamira

dated and delivered on the 1811 day of December 2020 in the original Nyamira

Chief Magistrate's Court Civil Case No. 189 of 2018)

JUDGEMENT

1. The appeal before me is only in respect to the quantum of damages awarded by the learned trial Magistrate.

2. The suit was instituted by the Legal Administrators of the Estate of the late ALICE KWAMBOKA, who died in a fatal road traffic accident.

3. At the time of the said accident, the deceased was a passenger aboard the defendant's motor vehicle.

4. Pw2, JAVES OGETO, was an eye-witness to the accident. He saw the vehicle being driven at a high speed, along the Nyamira - Miruka Road. Suddenly, the vehicle veered off the correct side of the road, and collided with a motor cycle. Following the accident, the deceased succumbed to her injuries.

5. As the defendant did not lead any evidence to rebut the testimony of the eyewitness, the trial court held the defendant 100% liable for the accident.

6. The deceased died at the age of 26. At the material time, she was a small-scale farmer. She was a mother of four children, who she had begotten with Pw 1 NICHOLAS MAINA ARISI.

7. When PW 1 testified, he said that the deceased used to earn Kshs. 20,000/- per month, from her farming activities. However, PW 1 did not produce any evidence to support the alleged monthly income of his late wife.

8. After giving consideration to the evidence tendered, the trial court granted judgement in favour of the plaintiff in the following terms: -

(a) Loss of Expectation of Life – Kshs. 100,000/-

(b) Pain & Suffering – Kshs. 30,000/-

(c) Loss of Dependency – Kshs. 2,400,000/-

(d) Special Damages – Kshs. 120,000/-

TOTAL – Kshs. 2,650,000/-

9. The appellant was aggrieved by the said award, hence the institution of the appeal herein. In a nutshell, the appellant asserted that the award was inordinately high. Therefore, the appellant submitted that this court should re-assess the award and reduce it to not more than Kshs. 1,434,368/-.

10. Both parties are in agreement, that on an appeal, the court should not interfere with the sum awarded by the trial court unless it is satisfied that the said trial court had acted on wrong principles of law or had misapprehended the facts, or had made an inexplicably erroneous award.

11. An award can be deemed as inexplicably erroneous if it was either so high or so low, in comparison with the awards in other cases, in which the facts were comparable.

12. I acknowledge that the task of assessing the appropriate sum to be awarded as compensation is within the discretion of the trial court. Therefore, an appellate court must be extremely slow to substitute the finding of the trial court, with its own finding, simply because the appellate court would have awarded a different sum if it had been in the position of the trial court.

13. I now have to give consideration to the respective heads of damages, whilst bearing in mind the aforestated legal principles.

Pain & Suffering

14. The appellant did not make submissions before me, to question the award of Kshs. 30,000/-. In the circumstances, I have no reason to re-assess it.

Special Damages

15. The appellant did not challenge the award of Kshs. 120,000/-. Therefore, the said sum is sustained.

Loss of Expectation of Life

16. The award of Kshs. 100,000/ = is upheld as the appellant has not given any reason to this court, that would cause the said award to be set aside or varied.

Loss of Dependency

17. The appellant has challenged the multiplicand and also the multiplier. The multiplicand is the value of the annual dependency. The said value is calculable on the basis of the net earnings of the deceased.

18. In this case, the plaintiff did not produce evidence to prove the monthly earnings of the deceased. Therefore, there was no proven quantum upon which the actual annual dependency could be calculated. The learned trial Magistrate decided to:

“……Consider a reasonable amount as the deceased's income.”

19. I hold the considered view that the learned trial Magistrate failed to explain how he determined the sum of Kshs. 10,000/- as the reasonable monthly income.

20. In the case of OYUGI JUDITH & ANOTHER V FREDRICK ODHIAMBO ONGONG & 3 OTHERS [2014] eKLRthe court expressed itself thus: -

“Where a person is employed and the salary is not determined, his or her income may be determined by reference to the Government Wage Guidelines issued from time to time.”

21. By making reference to some set guidelines, the court would be deemed as being objective, rather than when it applied a multiplicand that might be construed as subjective.

22. In the case of PAUL OUMA V SARAH AKINYI & ANOTHER HCCA NO. 7 OF 2016 Makau J, quoted with approval, the following words from the decision in PHILIP WANJERA & ANOTHER V AHMED LIBAH & ANOTHER, HCCA NO. 343 OF 2014: -

“No documentation was produced to show that she earned Kshs. 15,000/- per month. While I am alive to the fact that a farmer may not have any payslips or books of accounts to prove her earning, or any documentation for that matter, the onus of proof rests with the respondent to prove that she was indeed a farmer who earned Kshs. 15,000/-. There was no evidence to show that she was a farmer. However, in the broad interest of justice I am inclined to apply the Government Minimum Wage Guide for unskilled labourers.

23. I hold the considered view that justice demands that the multiplicand be founded upon the Government Minimum Wage Guide, where, as in this case, the deceased was a small scale farmer, who had no documentary or other evidence to prove her monthly income.

24. Accordingly, the multiplicand of Kshs. 10,000/- is set aside, and the same is substituted with Kshs. 6,890/- which was the sum cited in THE REGULATION OF WAGES (GENERAL) (AMENDMENT) ORDER 2017, in respect to a general labourer. At the said date, a farmer was deemed to fall under the said category of general labourer.

25. As regards the multiplier of 30 years, I note that the same would be imply that the deceased could have lived until she was 56 years old.

26. The learned trial Magistrate noted that the retirement age is currently 60 years in Kenya. However, the trial court also appreciated that there was no automatic guarantee that the deceased could have lived up to the said retirement age.

27. I hold the considered view that the learned trial Magistrate applied the relevant considerations in arriving at the multiplier.

28. Whereas, I could possibly have pitched the multiplier a little lower, I remind myself that when the trial court has made decisions based on relevant factors, an appellate court must be very slow to substitute its own views for those of the trial court. Accordingly, I uphold the decision on the multiplier of 30.

29. In the result, the appeal has succeeded on only one aspect; the multiplicand.

30. By my calculations, the Loss of Dependency is now awarded as follows:-

Kshs. 6,890 x 12 x 30 x 2/3 = Kshs.1,653,600/-

31. Therefore, the overall award shall now be reduced by Kshs. 746,400; leaving a balance of Kshs. 1,903,600/-.

32. As the appeal was only nominally successful; which means that to a large degree the judgement was upheld, I order each party to meet his own costs of the appeal.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 2ND DAY OF MARCH 2022.

FRED A. OCHIENG

JUDGE