Vide a Plaint dated 18th June 2020 the Respondents sued the Appellant seeking that judgment be entered for:-
- General damages under Fatal Accident Act and Law Reform Act
- Special damages as per paragraph 7 of the Plaint
- Costs
- Interest on (a)(b) & (c) above at court rates and also interest pleaded in the body of the Plaint.
The suit herein arose out of a RTA which occurred along Kisii-Migori road near Ekerorano Market when Motor Vehicle Reg. KBP 251 Q which was owned by the 2nd Appellant was driven negligently and/ or recklessly thereby causing it to violently collide with motor cycle the deceased was aboard as a consequence of which the deceased sustained fatal injuries. The Respondents prayed that the Appellants be held vicariously liable for the tortious acts and / or ommissions on the deceased.
The Appellant vide statement of Defense dated 5th August 2020 opposed the claim and sought that the Plaintiffs’ suit be dismissed with costs.
Having considered the evidence and submissions of respective parties the Trial Magistrate apportioned liability between the Appellants and the deceased in the ratio of 80:20 respectively.
The Trial Magistrate also opined that since the deceased had a very young family of one wife but no children the dependency ratio of 1/3 would suffice. She also was of the view that a multiplier of 35 years was reasonable as the deceased was 23 years and applied a multiplicand of 13,341.30/= which was the the minimum wage for a mechanist being the deceased was a boda boda rider and could not be categorized as a general Labourer.
General damages for loss of dependency was therefore calculated as follows;
13,341.30/=x 35 x 12 x 1/3=1,867,782/=
Pain and suffering was quantified at Kshs. 50,000/=
Loss of expectation of life –Kshs. 150,000/=
Special damages-Kshs. 30,100/=
Totals =Kshs. 2,097,882.00/=
Less 20% =Kshs. 419,576.40/=
Total =Kshs. 1,678,305.60/=
The Appellants were aggrieved by the judgement of the Trial Magistrate and they lodged the appeal herein vide Memorandum of Appeal dated 7th October 2022 0n the following grounds:-
1. The Learned Trial Magistrate erred in law and misdirected herself when she failed to consider the Appellant’s submissions on both points of law and facts.
2. The Learned Trial Magistrate decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
3. The Learned Trial Magistrate erred in law and misdirected himself when she failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.
4. The Learned Trial Magistrate erred in law and fact in finding the Defendants /Appellants 80% liable in view of the evidence produced before the trial court and in particular the following
a) That the Plaintiff / Respondent failed to prove his case on liability against the Defendants.
5. The Learned Trial Magistrate erred in law and fact in awarding the estate of the pain and suffering while not considering the deceased passed on the same day.
6. The Learned Trial Magistrate erred in law and fact by awarding the estate of the deceased a sum for loss of expectation of life when it was not entitled to the same and/or the same was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.
7. The Learned Trial Magistrate erred in law and fact in awarding the estate of the deceased a sum of Kshs. 1,867,782/= for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the state of the deceased.
8. The Learned Trial Magistrate erred in law and fact in using a sum of Kshs. 13,341.30/= as an amount for minimum wage.
9. The Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s Submissions on Quantum and Liability and legal authorities relied upon in supporting thereof.
10. The Learned Trial Magistrate erred in law and fact by overly relying on the Respondents’ submissions which were not relevant and without addressing his mind to the circumstances of the case.
11. The Learned Trial Magistrate erred in law and fact in failing to consider conventional awards in cases of similar nature.
Reason wherefore the Appellants prayed that;
- This Appeal be allowed with costs
- The judgment delivered on 5thOctober 2022 by Honourable C. A. Ocharo, Senior Principal Magistrate be set aside and a judgment of this court dismissing the suit against the Appellant with costs be entered in its place.
- That without prejudice to prayer (b) above the Honourable court re-assesses apportionment of pain, loss of expectancy of life and loss of dependency and reduce the same
- That the costs of this appeal and that of the trial court be awarded to the Appellant
- That such further orders be made by the court as it may deem fit to grant.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions dated 8th March 2024 faulted the Trial Magistrate for using multiplier approach in awarding damages for loss of dependency and preferred global sums approach considering the deceased was very young. The Appellant urged the court to award Kshs. 800,000/= as damages for loss of dependency.
The Respondent’s Submissions are dated 6th January 2025 and it is submitted that the Plaintiff’ evidence was not challenged or rebutted and was therefore proved on a balance of probability that the accident was solely caused by negligence on the part of the Appellants’ driver. It was contended that the Trial Magistrate was wrong in apportioning liability on the part of the deceased when there was no evidence that he contributed to the accident.
The Respondent urged that the appeal be dismissed.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issue that arises for determination as summarized by the Appellant’s Counsel is whether the Learned Trial Magistrate wrongly applied the principles applicable in awarding quantum thereby coming to a wrong conclusion on the same.
Although the appellate court is mandated to review and reverse the findings or verdict of the lower court, it must exercise its jurisdiction with caution. In Ephantus Mwangi and Geofrey Nguyo Ngatia V Duncan Mwangi Wambugu (1982 – 88)I KAR-278 it was held that as a general rule, an appellate court should not interfere with the findings or decision of a lower court unless it is demonstrated that in reaching its decision, the lower court made an error of law or took into account irrelevant considerations or that the court based its decision on no evidence or a misrepresentation of the evidence.
The award of damages is always at the discretion of the trial court. However, In Mariga V Musila (1984) KLR 251, the Court of Appeal in discussing this principle held that an appellate court can still interfere with the award if it is proved that the trial court in assessing the damages acted on wrong legal principles; took into account irrelevant factors or omitted to consider relevant factors or that the damages were either inordinately high or low as to lead to a reasonable inference that it was an erroneous estimate of the damage suffered.
The Appellant faulted the Trial Magistrate in awarding general damages for loss of dependency which were inordinately high being the deceased was only 23 years old and according to them the Trial Magistrate ought to have used the global sum award instead of multiplier.
Evidence adduced was that the deceased was an adult who was in gainful employment as a boda boda rider and the Trial Magistrate could not have used the global sum award as if the quantum was being quantified where a minor who is not capable of earning a living on account of age is involved. The deceased may not be a machinist as provided for in the Minimum Wage Guidelines but he is equally not a minor for global sum approach to be applied. It is also not true that the only way that one can prove earnings is through pay slip as the rate of unemployment in Kenya is very high and formal employment cannot be the only means to earn a living. (Stanwel Holdings Limited& Another V Racheal Haluku &Another [2020] Eklr)
In the case of Jacob Ayiga Maruja [2005] Eklr (Musinga J. as he then was) held that there are now many ways that may show a deceased’s earnings in the absence of production of a pay slip or a bank account or other document.
Although the deceased was a youngman who was at the prime of his life he had dependents and an estate that was entitled to be compensated under the Law Reform Act and under the Fatal Accidents Act.
The Appellants faulted the Learned Trial Magistrate for awarding the sum of Kshs. 1,867,000/= and proposed Kshs 800,000/=as sufficient and adequate compensation for the estate of the deceased. The authorities cited by the Appellant where damages for dependency was awarded at Kshs. 1,000,000/= is clearly distinguishable for reasons the deceased therein were a little bit younger than the deceased herein and where the deceased was of the same age he was a casual labourer unlike the deceased herein who was a rider. Secondly the authorities cited are more than 5 years old and therefore inflation has to be factored in quantifying the damages even as the court is careful to make sure that similar injuries are compensated with similar awards.
This court therefore finds that the appeal herein lacks merit and the same is dismissed with costs of the appeal to the Respondents. The Judgment of the Trial Magistrate is upheld as awarded.
Delivered dated and signed at Migori this 27TH day of March, 2025