[2022] KEHC 14565 (KLR)

Zillion Farm Limited & another v Josephine Mukai & another (Suing for and on behalf of the Dependants and Estate of Johnson Wachira Wahome - Deceased) (Civil Appeal E225 of 2020) [2022] KEHC 14565 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14565 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E225 of 2020

DO Chepkwony, J

October 7, 2022

Between

Zillion Farm Limited

1st Appellant

Crispin Bokea

2nd Appellant

and

Josephine Mukai & Peter Maina Wahome (Suing for and on behalf of the Dependants and Estate of Johnson Wachira Wahome - Deceased)

Respondent

(Being an appeal from the Judgment and Decree of Hon. Orenge K.I (SRM) in CMCC No.10497 of 2018 at Nairobi delivered) on the 18th of September 2019)

Judgment

Background 1. The background of this appeal is that on November 28, 2018, the respondents filed a suit against the Appellants vide a Plaint dated November 26, 2018 seeking for special damages, general damages under the Law Reform Act as well as the Fatal Accidents Act and costs of the suit.

2. The brief facts of the suit being that on or about July 22, 2017, the deceased was lawfully walking as a pedestrian along Kenyatta Avenue Service lane, when the 2nd Defendant/Appellant so negligently and carelessly drove, managed and/or controlled Motor Vehicle Registration Number KCL 661J and caused it to lose control, veer off the road and fatally injured Johnson Wachira Wahome the deceased herein.

3. The Respondents pleaded that as a result of the aforesaid accident thedeceased succumbed to the injuries while at the age of 45 years and was self-employed as a hawker earning approximately Kshs 30,000/= per month.

4. According to the Respondent they incurred expenses of Kshs 59,110/= as medical expenses, Kshs 1,160/= for filing of letters of administration and Kshs 550 for motor vehicle search, thus amounting to a total of Kshs 60,820/= which they claimed as special damages.

5. When the matter was certified ready for hearing and parties recorded a consent on liability which was apportioned at 75% against the Appellants and 25% against the Respondents. Parties were then directed to file submissions on the issue of quantum, and upon considering the submisisons made by the parties, the trial court delivered its judgment on September 18, 2019 awarding the Respondents Kshs 1,400,000/= on loss of dependency, Kshs 100,000/= for loss of expectation of life, Kshs 70,000/= for pain and suffering and Kshs 60,820/= special damages making a total sum of Kshs 1,630,820/=.

6. Being dissatisfied by the decision, the Applicants preferred this appeal and filed a Memorandum of Appeal dated October 1, 2020 raising the following grounds of appeal that;a.The learned Magistrate erred in law by awarding special damages which were not strictly proved.b.The learned Magistrate erred in law by awarding manifestly excessive quantum of damages thus departing from the doctrine of precedence.c.The learned Magistrate erred in law by ignoring the consent on liability that had been reached by the parties.d.The learned trial Magistrate grossly misdirected himself by treating the Appellant’s submissions superficially thus arriving at an erroneous decision.Reasons wherefore the appellant prays for orders that;a.This appeal be allowed.b.The Judgment and decree of the lower court be set aside.c.Costs of this appeal be awarded to the Appellants.

7. The appeal was admitted for hearing on February 18, 2022 and evenly directing that the same be canvassed by way of written submissions. Both parties complied and the record reflects that the Appellants’ submissions are dated May 12, 2022 while the Respondents’ submissions are dated May 12, 2020.

Appellants’ Submissions 8. The Appellants submitted that the learned Magistrate erred in law by awarding the Respondents special damages which were not strictly proved and ignored the principle in law that special damages must be specifically pleaded and proved. They argued that the trial Magistrate awarded Kshs 60,820/= whereas the only receipts produced in support for the claim was for Kshs 550/= paid for search of motor vehicle. This court was thus asked to make a finding that it would be only correct to award the proven special damages as opposed to what is claimed.

9. The Appellants further submitted the trial court in awarding the global sum of Kshs 1,400,000/= for loss of dependency, Kshs 100,000/= on loss of expectation and Kshs 70,000/= on paid and suffering departed from the doctrine of precedence since the award was so excessive and inordinately high than what courts have on similar circumstances have awarded. In any event, the Appellants submitted that they had proposed the sum of Kshs 336,000/= but in the end the trial court awarded Kshs 1,400,000/= for loss of dependency purporting that it was the sum proposed by both the Appellants and Respondents.

10. The Appellants further submitted that a global award is only awarded where the deceased was a child not being engaged in any financial enterprise and it was therefore wrong for the trial Magistrate to award a global sum in the present case thereby ignore the proposals and submissions made by the respective advocates for the parties. To that extent, the Appellants submitted that the deceased was 45 years old at the time of his death and purported to be a hawker earning approximately Kshs 1,000/= per day. However, so much evidence was availed without which, in the Appellant’s view, the trial court ought to have adopted the minimum wage applicable in 2017 which was Kshs 12,926. 55.

11. Regarding multiplier, the Appellants submitted that persons engaged in formal employment work up to the age of 60 years, and since the deceased worked in the informal sector, the lower court ought to have adopted a multiplier of six (6) years. On pain and suffering, the Appellants submitted that the award of Kshs 70,000/= was inordinately high in the circumstances, given that the deceased died the same date of the accident as captured in the postmortem report.

12. Lastly, the appellants submitted that the trial court ignored the terms of the consent order recorded on July 17, 2019, I that after making the award on quantum, failed to subject the same to the ratio agreed on in apportioning liability. All in all, the Appellants submitted that the Appellant should be awarded Kshs 736,024. 40 and asked the court to apportion 25% less contributory negligence. Thus, the court craved that the appeal be allowed and the sums deposited in the joint account released back to the Appellants.

Respondent’s Submissions 13. The Respondents on the onset submitted that they instituted the suit in the lower court seeking; -a.Special damages in the sum of Kshs 60,820/=b.General damages under the Fatal Accident Act and/ or Law Reform Act.c.Cost of the suit.and that liability was compromised vide a consent recorded in Court on July 17, 2019 apportioning the same at the ratio of 75:25 in their favour and directions were issued for parties to file written submissions on quantum of damages.

14. However, in response to the submissions mad by the Appellants, the Respondents began by submitting that the claim for special damages was adequately proven contrary to the assertions by the Appellants and all the documents in support of the claim were produced on July 17, 2019 by consent. The Respondents in support referred the court to the case of Peter Ngari Njeru v Alchanger Njue Kithogo & Josphat Njue (Suing as Legal Representatives of Eugenio Muchori Njue - Deceased) [2019] eKLR, wherein the court while faced with a similar case as this had the following to say; -“On the issue of funeral expenses, I rely on the case of Alice O. Alukwe v Akamba Public Road Services Ltd and 3 others High Court of Kenya at Nakuru Civil Suit No. 26 OF 2005 where it was held: -"18 special damages (funeral expenses)25. However she only produced the receipt for the police abstract and the advertisement charges. There were no receipts produced to prove the claim for funeral expenses. However, the court of appeal in the case of Jacob Ayiga Maruja & another v Simeon Obay0 (2005) eKLR awarded the plaintiff Kshs 60,000/= for funeral expenses and held thus.""We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We however must not be understood to be laying down any law that in subsequent cases Kshs 60,000/= must be given as reasonable funeral expenses. Those items are and must remain subject to proof in each and every case and the Kshs 60,000/= we have awarded herein apply strictly to the circumstances of this case.”

15. Based on the above authority, it was submitted for the plaintiff that the court was right in awarding the figures as it did and was well guided by judicial precedence so far as quantification of damages is concerned and this Court was urged to uphold the finding.

16. On whether the award by the trial court on quantum of damages was manifestly excessive, so as to depart from the doctrine of precedence, the Respondents cited the case of Aziz Kassim Lakha v Standard Limited T/A East African Standard [2009]eKLR, wherein the Court reinstated the principles that guide the Court while interfering with an award for general damages as set down in the case of Butt v Khan [1981] KLR 349, as hereunder: -“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low."

17. As such, the Respondents implored the court to make determination of three issues which are:-a.Whether the award of damages was inordinately high or low as to represent an entirely erroneous estimate;b.Whether the trial Magistrate proceeded on wrong principles; orc.Whether the trial Magistrate misapprehended the evidence in some material respect.

18. In answering the above three questions, the Respondents submitted that as at the time of his death, the Deceased was aged 45 years old, was in good health and was a self-employed hawker earning approximately Kshs 30,000. 00 per month. That he was survived by three (3) dependants and his estate suffered loss and damage following his death that was caused by negligence of the Appellants. The Respondents further submitted that the trial court was correct to adopt a global award as it did as it was guided by two other decisions made by the High Court, and cannot be faulted for exercising its discretion as it did.

19. The Respondents further submitted that the deceased did not die on the spot but died much later and underwent some severe pain and suffering. As such the award of Kshs 70,000/= in the Respondents’ view was commensurate to the suffering and pain the deceased was subjected to.

20. With regard to the allegation that the Honourable Magistrate erred in law by ignoring the consent on liability, the Respondents allegations without merit since the Honourable Magistrate’s in his Judgment at page 2 clearly stated that liability was agreed upon by parties for the parties in the ratio of 75%:25% in favour of the Plaintiff and went on to delve on the issue of quantum. Therefore the Respondents submitted that they were not objecting to the final award being subjected to agreed percentage on contributor negligence. They further added that in the Judgment, the trial Magistrate considered the submissions of both parties unlike the Appellants submissions that their case was not considered. In the upshot, the Respondents craves for the court to dismiss the appeal with costs.

Analysis and Determination 21. I have considered the Memorandum of Appeal, the lower court record, submissions filed on behalf of the parties, as well as the authorities relied on. Since liability was agreed on by consent and which none of the parties seem to have a problem with, the only issue pending for determination is whether the trial court erred in awarding quantum as it did, better still whether the award on damages is inordinately high or low to warrant interference of this court.

22. However to begin with, it is important to note that this being a first appeal, this Court has a duty to evaluate and analyse the evidence that was submitted before the trial court afresh so as to draw its own conclusion. This principle is outlined in the case of Selle & another v Associated Motor Boat Co. Ltd. &others(1968) EA 123, where the Court stated as follows;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”

23. On quantum, the Appellants began by submitting that the trial learned Magistrate erred in law by awarding the respondents special damages which were not strictly proved against the trite principle in law that special damages must be specifically pleaded and proved. In response thereof, the Respondents on the other hand submitted that the special damages awarded were pleaded and on July 17, 2019 and parties agreed the Plaintiffs’ list of documents including receipts in proof be produced and admitted inevidence by consent. That being the case, the Respondents’ maintained that the trial court was right in awarding the figures and was well guided by judicial precedence to even allow the expenses as they were reasonable. This court was thus urged to uphold the trial Magistrate’s award on special damages.

24. In addressing the award made as special damages, I stand guided by the decision in the case of China Wu Yi Limited & another v Irene Leah Musau [2022] eKLR, where the Court of Appeal cited with approval the case of Hahn v Singh, Civil Appeal No 42 of 1983 [1985] KLR 716, and held as follows;“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

25. I have as well perused the record of appeal and that of the trial court and I have established that notwithstanding the Respondents’ allegations that the list of documents was produced by consent of parties, no receipt was among those documents produced to prove the special damages that were pleaded. Somewhere in my Judgment, I have reiterated it is trite in law that special damages must not only be pleaded, but must also be specifically proved.

26. In the absence of receipts as evidence, it follows that the trial court erred in failing to observe the burden of prove on special damages and the well laid principle that special damages must be specifically proved. Courts have generally accepted that such prove would be by production of receipts and it is intended that the claimant would be restored on the expenses personally paid for. I therefore would agree with the Respondents that it is not enough to claim medical expenses of Kshs 59,110/= without producing receipts for the same.

27. As such without the proof by production of receipts, it is my conclusion that the trial court erred in law by awarding special damages as it did and I proceed to set aside the award on special damages for Kshs 60,820/= but uphold the award of Kshs 1,710/=being the cost of filing for letters of administration and motor vehicle search. The former is a matter of general knowledge whilst the later was proved vide the Motor Vehicle Inspection Report.

28. The second head, on whether the general damages awarded to the Respondents was manifestly excessive, it should be noted that general damages is a discretionary remedy in nature and once awarded, by a lower court, this court can only disturb the same if it is shown that the trial court misdirected itself and took into consideration irrelevant factors thereby arriving at a wrong conclusion.

29. Therefore this court is obliged under the provisions of Section 78 of the Civil Procedure Act, to re-assess and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion while bearing in mind the fact that unlike the trial court, it neither saw nor heard the witnesses as they testified.

30. The above preparation is reiterated in a number of decided authorities, including the Court of Appeal decision in the case of Bashir Ahmed Butt v Uwais Ahmed Khan(1982-88) KAR where the superior court held thus:-“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...”

31. Similarly, the court, in the case of Dhiraj Manji v Tyson Ouma [2021]eKLR while citing a Court of Appeal decision in the case of Welfare Society of Kenya v Republic, Ex-parte Child in Focus Kenya & AG &others [2017] eKLR, held thus:-“I think it is well settled that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have taken into consideration and in doing so arrived at a wrong conclusion.”

32. As has been said in these authorities that this Court can only interfere with an award by the trial court if it is proven that the same was arrived at based on wrong principles, irrelevant factors or wrong apprehension of the law by the trial court or that the award was manifestly excessively high or low enough to warrant the interference by this court.

33. In the present case, the Appellants submitted that the learned Magistrate awarded the Respondents a global sum of Kshs 1,400,000/= for loss of dependency, Kshs 100,000/= for loss of expectation of life, Kshs 70,000/= for pain giving a total of Kshs 1,570,000/= award both under Law Reform Act and Fatal Accidents Act. The Appellants have further sought to make a finding that they had proposed a global sum of Kshs 336,000/= and if it was wrong for the trial court to hold the sum of Kshs 1,400,000/= was a figure proposed by both the Appellants and Respondents.

34. The Respondents further invited the court to make a finding that a global award is only made where the deceased was a child and not being engaged in any financial enterprise unlike in the present case where the deceased is said to have died at the age of 45 years old. The Respondents on the otherhand submitted that the deceased was in good health and was self-employed as a hawker earning approximately Kshs 30,0000/= per month before he was involved in the tragic accident and was as well survived by three (3) dependants.

35. The Appellants also submitted that in the absence of evidence of earnings, the trial court ought to have adopted the minimum wage in existence as of that time which was Kshs 12,926. 55 as the multiplicand and further take into consideration the proposal that deceased would have worked to the age of 60 years. It is however, to be noted that the deceased worked in the informal sector and there is no guarantee that he would have remained either on the same job for the rest of his life or retired at the proposed age of 60 years. Thus the argument by the Appellants is unfounded as people in the informal sector may even work beyond the age of 60 years, which is the bracket set for those in the formal sector.

36. I am also guided by the Court of Appeal’s decision in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No.147 of 2002 [2004] eKLR stated that;“In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exact.”

37. I have considered the submissions by parties and authorities relied on. I have as well considered authorities and decisions made in cases sitting on all towns with facts similar to the ones in this case and where the deceased was not in formal sector of employment. Even if I was to assess damages separately under the Law Reform Act and Fatal Accidents Act, I would as well make an award close to Kshs 1,500,000/= and I see no need of venturing that path given that the award by the trial court was considerate enough. That being the case, I wish not to disturb the award made by the trial court.

38. Lastly, the appellants argued that the trial court erred by failing to factor in the apportionment of liability as was compromised by consent of the parties. The Respondents on their part expresses the willingness to have the final award subjected to the ratio agreed on liability. I have perused the trial court’s Judgment and at Page 3 the court indicated that liability was agreed by consent and did not proceed further on the same. The allegations that the trial court ignored the terms of the consent in my view are misplaced.

39. In the upshot, having considered each parties case and following the discussion above, I am persuaded that the assessment of damages by the trial court was commensurate with the fatal injuries suffered on the deceased and I will therefore uphold the same save to the award on damages which I review downwards.

40. In conclusion, the Appellants appeal vide a Memorandum of Appeal dated October 1, 2020 partly succeeds, and the following orders issue;a.The award of Kshs 60,820/= on special damages is substitutedwith an award of Kshs 1,710/=.b.The rest of the award made in the Judgment remain intact and for avoidance of doubt, this court upholds the global sum of Kshs 1,570,000/= awarded by the trial court.c.Each party shall bear its own costs.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. DO CHEPKWONYJUDGEIn the presence of:M/S Ombalu holding brief for Mr. Ombagwa for AppellantsM/S Gachunyi holding brief for Mr. Ambani for RespondentsCourt Assistant - Kevin