(Being an Appeal from the judgment and decree of the Hon. E. Riany given on 19th November, 2020 in The Chief Magistrate's Court at Thika Civil Case No. 503 of 2015
Brief facts
1. The appeal before this court is by the plaintiff (hereinafter the appellant). It is against the award of damages by the trial court in the sum of Kshs. 210,000/= for general and special damages after 50% contributory negligence. The trial court did not award damages on loss of dependency which triggered filing of this instant appeal.
2. The appellant filed suit against the respondent vide plaint dated the 13.05.2015 for general damages including lost years, special damages and costs of the suit and interest thereof arising from an accident which was alleged to have occurred on or about the 26.04.2014 while the deceased was hanging out her washing at Greenfield Estate in Juja when she came into contact with a live wire which lay on the corrugated iron roof of her employer’s house and which had not been properly insulated by the defendants and she was electrocute and died on the spot.
3. The appellant blamed the respondent for the alleged accident and set out particulars of negligence. He sought special damages and general damages and lost years resulting from the premature death of the deceased and costs of the suit and interest thereof. He testified and produced exhibits in support of his case and filed submissions.
4. The respondent filed a defence dated 22.06.2015 denying any liability arising from the said accident. They called two witnesses and filed submissions.
The Evidence
5. PW 1 Charles Kariithi Kiarie adopted his statement dates 26.9.2016 as his evidence in chief. He testified that Martha Nyambura(deceased hereinafter)died after electrocution at her home while hanging clothes outside. He stated he visited after the incident. The line was cut down and on roof top was a wire from Kenya Power Post to the metre box. He testified further that the hanging rope was also a wire and tied on wood that had roof hence wire and roof attached together. He testified that he took photographs and produced them as evidence before court.
6. Pw1 stated that deceased was her sister and she was 20 years with no children and working as a cashier in a hotel earning Kshs. 12,000/- per month. That the deceased used to help their mother monthly with Kshs.5,000/- or kshs. 6,000/. He testified that they have suffered due to lack of support and he blame Kenya Power for her death and seek compensation and costs.
7. During cross examination PW1 confirmed that his sister was a cashier at a hotel but was a trained tailor. She was working at a hotel in Juja. It was his testimony that according to deceased’s employer, there was no pay slip. She was working at a hotel in Juja for some days and would earn Kshs.12,000/- per month. He testified that deceased told him about her salary. He confirmed that deceased used to give their mother around 5,000/- per month. It was testimony of PW1 that his sister used to call him on phone and they would talk and she would tell him the amount she had sent to their mum but it was not every month.
8. The defence testified through DW1 Ben Kimaiyo Rono who testified that he work with Kenya Power as a Regional Safety Engineer North Eastern Region which includes Kiambu. He adopted his statement dated 24.2.2016 as his evidence in Chief. He further testified that this incident was reported through their emergency office and he called security personnel and he went to the site on 27.7.2014 morning but incident was on 26.7.2014.It was testimony of DW1 that If they had been called on date of incident they would have gone there to inspect, incident and they could have prevented the accident if they received a report of the fire incident.
9. During cross examination DW1 confirmed that the deceased died as a result of electrocution.
Third party case
10. The 1st Witness David Kariuki Mwangi adopted his statement dated 2.2.2017 . During cross examination he confirmed that there was a fire incident at his premises. It was caused by live wire that they put on the roof. He confirmed that the lady died as a result of the electricity from KPLC.
11. The 2nd Witness was George Kimani Kageni from Juja and an electrician testified David Kariuki Mwaniki is his client and he do maintenance for him. He adopted his statement dated 28.2. 2017.He stated that there was fire at David Kariuki Mwaniki place. He was called and went there found that here was one live wire placed on top of the roof through PVC. It was not good quality wire since when exposed to direct sunlight it gets spoilt and leave wire ri naked.
12. After close of hearing the trial court delivered judgement on 19.11.2020 in which it made the following orders;
“Summary
a) Liability – 50:50
b) Loss of dependency -Nil
c) Pain and suffering -Kshs.100000/=
d) Special damages -10,000/=
e) Loss of expectation of life - Kshs. 100,000/= (will however not form part of the final tally)
f) Costs
g) Plaintiff awarded interest at court rates on b), c) & d) from date of judgment till payment in full.”
13. Aggrieved by the judgment, the Appellant filed an amended memorandum of appeal dated 2.6.2021. The appeal is mainly on the trial Court’s finding on quantum. The grounds of appeal are: -
I. THAT the learned Trial Magistrate erred in fact and law by failing to find that the letter by the Chief produced by the plaintiff was sufficient evidence to prove dependency.
II. THAT the Learned Magistrate erred both in fact and law in failing to find that the Plaintiff had proven on a balance of probability that the deceased had a mother who was Dependent on her.
III. THAT the learned magistrate erred in both fact law and fact in failing to award any damages under the Fatal Accidents Act Cap 32 for loss of dependency.
IV. THAT the learned Trial Magistrate erred in law and fact by deducting the award loss of expectation of life in the final tally.
V. THAT the learned Trial Magistrate erred in fact and Law by placing upon the plaintiff a higher burden of proof than required in civil suits in failing to award the plaintiff under the Fatal Accidents Act and Law Reform Act.
VI. THAT the learned trial magistrate erred in fact and law by finding that the mother to the deceased must have testified for her to be considered as a dependent of the deceased.
VII. THAT learned Trial Magistrate erred in law and in fact in wholly disregarding or failing to accord due and proper consideration upon the Appellant's written submissions and the cases cited.
14. The Appellant prays that this Court set aside that Judgement and decree of the lower court declining to award under the loss of dependency and in its place award the appellant loss of dependency under the Fatal Accidents Act THAT this court set aside the judgment and decree of the lower court on loss of expectation of life and find that the appellant is entitled to the award. THAT the cost of this Appeal be awarded to the Appellant. Any other or further relief that this Honourable court may deem fit and just to grant.
15. By consent of parties this appeal was canvassed by way of written submissions. The appellant filed written submissions dated 10th February 2022 and respondent filed written submissions dated 22nd February 2022. I have carefully analyzed and considered the submissions and case authorities in support.
16. From the appeal, the main issue arising for determination is whether or not the appellant had proved award of damages on loss of dependency.
17. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified see Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123.
18. The plaintiff in his testimony stated that the deceased, who was 20 years old at the time of her death. Pw1 stated further that that his sister was a cashier at a hotel but was a trained tailor. She was working at a hotel in Juja. According to her employer, there was no pay slip. She was working at a hotel in Juja for some days and would earn Kshs.12,000/- per month. Pw 1 also testified that the deceased use to send their mother Kshs.5,000/= per month but it was not every month.
19. On cross examination PW1 reaffirmed that the deceased was his sister. He further confirmed she was working a cashier at a hotel in juja but that he did not have a pay slip to show how much her sister used earn because employer did not provide her with payslips.
20. During submission before trial court on loss of dependency plaintiff . The appellant urged the court to use the multiplicand of 40 years assuming that she would have worked to 60 years and subject it to the ratio 2/3 since she her mother dependents. Consequently, making it 2/3 x 40 x 12 x 12,000/- = Kshs. 1,920,000. The trial court in its judgement awarded a sum of Kshs. Loss of dependency - (70% of Kshs. 2,400,000/=. /-) Kshs.1,680,000
21. I have analyzed the evidence as this court is obliged to do so as to draw my own inferences and conclusions on the matter. The Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, where the Court of Appeal held that –
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:
‘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.”
22. From my re-evaluation of the evidence, I find that the learned trial magistrate made reference to the relevant evidence on record. That said, it is for me to determine whether the award was consistent with comparable awards made.
23. The appellants’ case is that the approach taken by the learned trial Magistrate was erroneous and against the well laid down principles on loss of dependency and that there is need to interfere with the Judgment on this point.
24. It is not in contention that the deceased was a 20 year old female adult, who worked as a waiter in a hotel in Juja. Also from evidence adduced the court finds that the deceased had a mother who she used to send Kshs.5000/= per Pw1 testimony . Despite the mother not testifying in this matter it does not rule out that she was not a dependant. The determination of damages will involve the principles laid down in various judicial decisions such as in the case of Yorkshire Electricity Board v Naylon 1968 AC 52G where the court held that:
“It is to be observed and remembered that the prospects to be considered and those which were being referred to by Viscount Simon L. C. in his speech were not the prospects of employment or of social status or of relative pecuniary affluence but the prospects of a ‘positive measure of happiness’ or of a ‘predominantly happy life.”
25. I have considered the rival submissions on the quantum of damages, the authorities cited by the Appellants and Respondents in their submissions. The deceased was a young 20 year old who was also healthy. She was a cashier in a hotel in Juja. Whether she was formally employed or not should not be a major issue here as this was a young lady’s life that had been cut short. That said, it is for me to determine whether the award was consistent with comparable awards made.
26. The Court of Appeal has reaffirmed the various variables to be considered on proof of income and employment when it comes to the question whether one has to produce bank statements, book of accounts, receipts, and testimonials as the safest way to determine the parameters that one was in active employment or his income earnings. That position has been made clear in the case of Jacob Ayigo v Simon Obayo [2005] eKLR where it was expressly stated as follows:
“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.”
27. I consider the court’s obitum in the case of In the case of Wangai Thairu v Hon Burngetuny & Another supra – the court on this powers stated as follows:
“The principles applicable to an assessment of damages under the Fatal Accidents Act are too clear the court must in the first instance find out the value of the annual dependency such value is usually called the multiplicand. In determining the same the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase.
In choosing the said figure usually called the multiplier the court must bear in mind the expectation if earning life of the deceased, the expectation of life and dependency of the defendants and the chances of life of the deceased and dependents. The sum thus arrived at must then be discounted to allow the legitimate consideration such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature”
28. In reference to the decision in the case of Kwanzia v Ngalah Rubia and another Ringera J. as he then was read as follows
“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. Can and must be abandoned where facts do not facilitate its application. It is plain that it is useful and practical method where factors such as age of the deceased, the amount or annual or monthly independency and the expected length of the dependency are known or are knowable without undue speculation, where that is not possible to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do”
29. What amounts to proof on the above factors depends on the circumstances and character of each particular case. There is no golden rule in the assessment of damages, as what is beyond doubt is that irrespective of the age of the deceased and whether or not there is evidence of his pecuniary contribution damages are payable to the parents or dependents, as the heads, global or mixed approaches have been applied in superior courts as was seen in the Court of Appeal’s decision in the case of Kenya Breweries Limited –v- Saro [1999] KLR 408.
Consequently, I find that the global sum would be sufficient in this case. I find that the trial court shoulould have awarded a global sum under the head of loss of damages.
I therefore will interfere with the award of Quantum in this case and award a global sum of Ksh 2,000, 000 under the heading Loss of dependency. The amount is subject to the 50 % contribution as found by the trial court.
The other awards under the different other heads were proper and they are confirmed.
Cost of the Appeal is assessed at Ksh 150,000 All inclusive
Dated signed and delivered this 30th day of July 2024
Wendy Kagendo
Judge