1 The appellant dissatisfied with the decision of the trial court filed the present appeal on the findings of quantum only liability having been agreed. The brief background is that the respondents, vide a plaint dated 13/02/2022, sued the appellants, alleging negligence resulting in the death of the deceased. The parties agreed by consent on the issue of liability in the ratio of 75:25 and left for the determination of the court the issue of quantum.
2 By a judgment dated 21 November 2023, the trial court entered judgment on quantum as follows:
Liability in favour of the respondent in the ratio of 75:25
i Loss of dependency at Ksh. 3,000,000.00
ii Loss of expectation of life Ksh 150,000.00
iii Pain and suffering Ksh 100,000.00
iv Special Damages Ksh 400,500.00
3 Aggrieved by the assessment and award, the appellant filed this appeal raising a total of 8 grounds. The substratum of the appeal is that the learned magistrate erred in law in awarding a manifestly excessive award on the quantum of general damages in respect of lost dependency of Kenya Shillings Five Hundred Thousand (KSH 3000,000.00), which was in the circumstances excessively high. The trial magistrate is also faulted for high award under the head’s loss of expectation of life and pain and suffering.
4 The appeal was canvassed by way of written submissions, and both parties have filed their respective submissions. At this point, I wish to point out that the appellant in its submissions challenged the trial court’s award of special damages; the same, however, were not raised in its memorandum of appeal and as such have been disregarded.
5 Issues:
Whether the court should interfere with the trial court’s award on the quantum of damages?
6 The court of appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages as ;
7 “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 “Judgement of Law JA
8 The rationale for compensation is well-known, Potter, JA stated in Rahima Tayab &others V Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345
9 “But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
10 In determining this issue, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded in the trial court simply because it would have awarded a different figure if it had tried the case at the first instance. It must be shown that the learned magistrate 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
11 Pain and Suffering
12 On pain and suffering, the appellant submitted that, noting the deceased had died on the spot, an award of Kenya Shillings One Hundred Thousand (KES 100,000.00) was inordinately high. They submitted that court precedent has established an acceptable range of between KES10,000.00- KES 100,000.00 and placed reliance on the cases of Simon Bogonko V Alfred Mongare Mecha & Another (Suing as the Legal Representatives of the estate of Akama Mong’are (Deceased) [2019] KEHC 10414 (KLR) and Guyo Jillo & Another v Lillian Kanyua [2019] KEHC 8999 (KLR) to submit than an award of Kenya Shillings Twenty Thousand (KES 20,000) would be sufficient under this head. The respondent urged the court to uphold the trial court’s award as it was within the acceptable range set by courts relying on the authority of Ngania & 2 others v Adulu (Suing as the legal representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal e005 of 2023) [2024] KEHC4005 (KLR).
13 I am persuaded by the appellant that the trial court awarded an inordinately high amount under this head and hereby set it aside; even the respondent’s submission before the trial court was for an award of the sum of Kenya Shillings Eighty Thousand (KES80,000.00). I do not see any reason why the court disregarded this and awarded an even higher amount without providing any justification. I have perused the medical reports produced before trial court, including the death certificate and note that the deceased died at the scene of the accident. I am persuaded by the appellant that an award of Kenya Shillings Twenty Thousand (KES 20,000.00) would be appropriate given the circumstances, see Ngania & 2 others v Adulu (Suing as the legal representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal e005 of 2023) [2024] KEHC4005 (KLR) and Guyo Jillo & Anotherv Lillian Kanyua [2019] KEHC 8999 (KLR).
Loss of expectation of Life
14 Under this limb, it was submitted that the learned magistrate should have awarded Kenya Shillings One Hundred Thousand instead, as this is the conventional award for loss of expectation of life. The respondent, on their part, submitted that the award was proper and should not be disturbed. I agree that the conventional award under this head bearing in mind the award on loss of dependency should be 100,000. I note that the deceased was a healthy 18-year-old at the time of his untimely death and was an IT student at KCA University.
Loss of dependency
15 On loss of dependency, the learned trial magistrate awarded a global award of Kenya Shillings Three Million, which the appellant submits is too high. The appellants submitted that the deceased did not have any spouse or children, with his only dependents being his parents. They also noted that at the time of his death, he was unemployed and still in college. The appellant placed reliance of the following cases; MItabari (suing as the Administrator of the estate of Erastus Kirimi Mithika(deceased) vs Celina (2023) KECA 1647 (KLR) and Daniel Kuria Nganga vs Nairobi City Counsel (2013) KEHC 6181 (KLR) where the court awarded ksh 1,000,000 and 888,867 respectively for loss of dependency where the deceased was 18 years old. The court was urged to substitute the award with ksh.1,000,000.
16 The appellants faulted the trial court for relying on the authority of Mirriam Moraa vs JOO &Another (suing as legal representative of the estate of VNO) [2021] KEHC 3368 (KLR) where the deceased was married with two children and an income.
17 Having gone through both parties' submissions before the trial court afresh, I note that the trial court utilised the global sum approach, preferring it over the multiplier approach that both parties submitted on. I find that the trial court had properly directed itself in abandoning the multiplier approach, noting that the deceased was 18-year-old student at KCA University, healthy and was expected to work and earn a living.
18 The court referred to the case of In Frankline Kimathi Maariu & Anor –vs- Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwiti Gakungu deceased) (2020) eKLR where the court held that:
“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”
19 In an African setting such as this one, it goes without saying that parents will ultimately depend on their children due to the unique circumstances of our African Social welfare system, see Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLR. The determination of what would be an adequate and reasonable amount to placate the parents for the loss of their child, whom they painstakingly educated in the hope of a brighter future for the child and themselves is not an easy one.
20 The uncertainty of what the future portends confronted the court in Chen Wembo & 2 others vs. I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) [2017] eKLR where Hon. Meoli J stated: -
“Even where there is evidence that a child was undertaking a professional course in a university, was brilliant and promising, the path is always fraught with imponderables. The speculative nature of the matter renders the court’s exercise of its discretion delicate. More so, as in this case where minimal material is supplied to the court by the claimants”
21 It is not in dispute that the deceased was a student of IT at KCA University and although the future cannot be ascertained with precision, human endeavour in education and other ventures is always undertaken in the hope that the future, with all its vicissitudes will turn out well. It is that strong desire and expectations that things will be better with a good college degree that keeps hope alive. It cannot be said that human endeavour in education and other personal development will amount to nothing.
22 Taking into account the circumstances of this case, I find the award of 3,000,000 awarded by the trial court under this head to be excessive and hereby set aside and substitute with an award of Kenya shillings Two Million (KES 2,000,000.00).
23 The upshot of the above is that the appeal is partly successful. The judgement of the Trial Court is substituted as follows:
24 Liability in favour of the respondent in the ratio of 75:25;
a) Loss of dependency at Ksh. 2,000,000.00
b) Loss of expectation of life Ksh. 100,000.00
c) Pain and suffering Ksh. 20,000.00
d) Special Damages Ksh. 400,500.00
TOTAL Ksh. 2,520,500
Less 25% Ksh. 1,890,375
Each party to bear own cost of the appeal.
It is so ordered.
2 By a judgment dated 21 November 2023, the trial court entered judgment on quantum as follows:
Liability in favour of the respondent in the ratio of 75:25
i Loss of dependency at Ksh. 3,000,000.00
ii Loss of expectation of life Ksh 150,000.00
iii Pain and suffering Ksh 100,000.00
iv Special Damages Ksh 400,500.00
3 Aggrieved by the assessment and award, the appellant filed this appeal raising a total of 8 grounds. The substratum of the appeal is that the learned magistrate erred in law in awarding a manifestly excessive award on the quantum of general damages in respect of lost dependency of Kenya Shillings Five Hundred Thousand (KSH 3000,000.00), which was in the circumstances excessively high. The trial magistrate is also faulted for high award under the head’s loss of expectation of life and pain and suffering.
4 The appeal was canvassed by way of written submissions, and both parties have filed their respective submissions. At this point, I wish to point out that the appellant in its submissions challenged the trial court’s award of special damages; the same, however, were not raised in its memorandum of appeal and as such have been disregarded.
5 Issues:
Whether the court should interfere with the trial court’s award on the quantum of damages?
6 The court of appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages as ;
7 “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 “Judgement of Law JA
8 The rationale for compensation is well-known, Potter, JA stated in Rahima Tayab &others V Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345
9 “But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
10 In determining this issue, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded in the trial court simply because it would have awarded a different figure if it had tried the case at the first instance. It must be shown that the learned magistrate 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
11 Pain and Suffering
12 On pain and suffering, the appellant submitted that, noting the deceased had died on the spot, an award of Kenya Shillings One Hundred Thousand (KES 100,000.00) was inordinately high. They submitted that court precedent has established an acceptable range of between KES10,000.00- KES 100,000.00 and placed reliance on the cases of Simon Bogonko V Alfred Mongare Mecha & Another (Suing as the Legal Representatives of the estate of Akama Mong’are (Deceased) [2019] KEHC 10414 (KLR) and Guyo Jillo & Another v Lillian Kanyua [2019] KEHC 8999 (KLR) to submit than an award of Kenya Shillings Twenty Thousand (KES 20,000) would be sufficient under this head. The respondent urged the court to uphold the trial court’s award as it was within the acceptable range set by courts relying on the authority of Ngania & 2 others v Adulu (Suing as the legal representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal e005 of 2023) [2024] KEHC4005 (KLR).
13 I am persuaded by the appellant that the trial court awarded an inordinately high amount under this head and hereby set it aside; even the respondent’s submission before the trial court was for an award of the sum of Kenya Shillings Eighty Thousand (KES80,000.00). I do not see any reason why the court disregarded this and awarded an even higher amount without providing any justification. I have perused the medical reports produced before trial court, including the death certificate and note that the deceased died at the scene of the accident. I am persuaded by the appellant that an award of Kenya Shillings Twenty Thousand (KES 20,000.00) would be appropriate given the circumstances, see Ngania & 2 others v Adulu (Suing as the legal representative of the Estate of Clinton Morgan Kiprotich) (Civil Appeal e005 of 2023) [2024] KEHC4005 (KLR) and Guyo Jillo & Anotherv Lillian Kanyua [2019] KEHC 8999 (KLR).
Loss of expectation of Life
14 Under this limb, it was submitted that the learned magistrate should have awarded Kenya Shillings One Hundred Thousand instead, as this is the conventional award for loss of expectation of life. The respondent, on their part, submitted that the award was proper and should not be disturbed. I agree that the conventional award under this head bearing in mind the award on loss of dependency should be 100,000. I note that the deceased was a healthy 18-year-old at the time of his untimely death and was an IT student at KCA University.
Loss of dependency
15 On loss of dependency, the learned trial magistrate awarded a global award of Kenya Shillings Three Million, which the appellant submits is too high. The appellants submitted that the deceased did not have any spouse or children, with his only dependents being his parents. They also noted that at the time of his death, he was unemployed and still in college. The appellant placed reliance of the following cases; MItabari (suing as the Administrator of the estate of Erastus Kirimi Mithika(deceased) vs Celina (2023) KECA 1647 (KLR) and Daniel Kuria Nganga vs Nairobi City Counsel (2013) KEHC 6181 (KLR) where the court awarded ksh 1,000,000 and 888,867 respectively for loss of dependency where the deceased was 18 years old. The court was urged to substitute the award with ksh.1,000,000.
16 The appellants faulted the trial court for relying on the authority of Mirriam Moraa vs JOO &Another (suing as legal representative of the estate of VNO) [2021] KEHC 3368 (KLR) where the deceased was married with two children and an income.
17 Having gone through both parties' submissions before the trial court afresh, I note that the trial court utilised the global sum approach, preferring it over the multiplier approach that both parties submitted on. I find that the trial court had properly directed itself in abandoning the multiplier approach, noting that the deceased was 18-year-old student at KCA University, healthy and was expected to work and earn a living.
18 The court referred to the case of In Frankline Kimathi Maariu & Anor –vs- Philip Akungu Mitu Mborothi (Suing as administrator and personal representative of Anthony Mwiti Gakungu deceased) (2020) eKLR where the court held that:
“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”
19 In an African setting such as this one, it goes without saying that parents will ultimately depend on their children due to the unique circumstances of our African Social welfare system, see Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLR. The determination of what would be an adequate and reasonable amount to placate the parents for the loss of their child, whom they painstakingly educated in the hope of a brighter future for the child and themselves is not an easy one.
20 The uncertainty of what the future portends confronted the court in Chen Wembo & 2 others vs. I K K & another (suing as the legal representatives and administrators of the estate of C R K (Deceased) [2017] eKLR where Hon. Meoli J stated: -
“Even where there is evidence that a child was undertaking a professional course in a university, was brilliant and promising, the path is always fraught with imponderables. The speculative nature of the matter renders the court’s exercise of its discretion delicate. More so, as in this case where minimal material is supplied to the court by the claimants”
21 It is not in dispute that the deceased was a student of IT at KCA University and although the future cannot be ascertained with precision, human endeavour in education and other ventures is always undertaken in the hope that the future, with all its vicissitudes will turn out well. It is that strong desire and expectations that things will be better with a good college degree that keeps hope alive. It cannot be said that human endeavour in education and other personal development will amount to nothing.
22 Taking into account the circumstances of this case, I find the award of 3,000,000 awarded by the trial court under this head to be excessive and hereby set aside and substitute with an award of Kenya shillings Two Million (KES 2,000,000.00).
23 The upshot of the above is that the appeal is partly successful. The judgement of the Trial Court is substituted as follows:
24 Liability in favour of the respondent in the ratio of 75:25;
a) Loss of dependency at Ksh. 2,000,000.00
b) Loss of expectation of life Ksh. 100,000.00
c) Pain and suffering Ksh. 20,000.00
d) Special Damages Ksh. 400,500.00
TOTAL Ksh. 2,520,500
Less 25% Ksh. 1,890,375
Each party to bear own cost of the appeal.
It is so ordered.