FERDNARD KYALO KAMOLO AND SAMUEL MUSAU VS

1. The Serah Mwikali Mbova & Mary Ndambuki (Suing as the Legal Representative of the estate of) Samwel Mbova Ndonye the respondents filed Kilungu, Civil Case No.154 of 2021seeking general damages under the Law Reform Act and the Fatal Accidents Act on behalf of the Estate of Samuel Mbova Ndonye pursuant to a fatal road accident, involving motor vehicles KCK 857K and KBM 639J on 15/01/2021 along the Salama-Nunguni Road near Kilungu High School. They also sought for special damages, costs of the suit and interest.

2. The Appellants Ferdinard Kyalo Kamolo & Samuel Musau filed a joint statement of defence, denied each and every allegation of fact in the plaint and called for strict proof of the claim. They averred that if at all an accident happened on the material day as claimed; it was wholly and or substantially contributed to by the deceased.

3. The matter proceeded to full hearing where the plaintiff respondents called three witnesses, and the defence was closed without any testimony or witnesses being called and judgment was eventually delivered. The learned trial magistrate apportioned liability at the ratio of 50:50 between the parties and assessed damages as follows;

Pain & suffering…………………………. Kshs   80,000/=

Loss of expectation of life………………Kshs 100,000/=

Loss of dependency…………………...Kshs 4,000,000/=

Special damages………………………. Kshs     150,550/=

Total                                                            Kshs 4,330,550/=

Less 50%                                                    Kshs 2,165,275/=

The Appeal

4. Aggrieved by the award, the Appellants filed this appeal on the following grounds;

a) The assessment and award of general damages for pain and suffering and loss of amenities is inordinately high as to represent an entirely erroneous estimate.

b) The trial magistrate erred in fact and in law in awarding the respondents Kshs 4,000,000/= damages under the Fatal Accidents Act which award was too excessive in the circumstances.

c) The learned magistrate erred in law and fact in relying on the maximum number of productive working years which was 28 years in the circumstances and failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act.

d) The learned trial magistrate in assessing damages for loss of dependency failed to apply the correct principles hence arrived at an erroneous estimate of damages which the deceased suffered.

e) The trial magistrate erred in law and fact in failing to accord due regard to the appellant’s submissions and authorities on quantum on applicable principles for assessment of damages.

f) The learned trial magistrate erred in law and fact in failing to make any proper findings on quantum in accordance with the facts placed before him and in light of the submissions.

5. Parties chose to canvass the appeal through written submissions.

The Appellants’ Submissions

6. With regard to the award for loss of dependency, the Appellants acknowledged that at the time of death, the deceased was 60 years old and operated his own private clinic.

7. They submitted that the estate of the deceased did not offer any documentary evidence to prove his income and that the deceased was beyond the age of retirement. They submitted that a multiplier of 6 years is commensurate for a 61-year-old and relied on the following authorities;

a) Hardev Kaur Dhanoa -vs- Multiple Hauliers (E.A) Ltd [2013] eKLR where a multiplier of 6 years was adopted for a deceased who was 62 years.

b) Mboi Gathua Kaburo -vs- John Waruthi Mwangi [1990] UR where a multiplier of 6 years was adopted for a deceased who was 63 years.

c) Joseph Kahiga Gathii & Anor -vs- World Vision Kenya & Others [2010] eKLR where a multiplier of 8 years was adopted for a deceased who was 57 years.

d) Stephen Onsumu Kibagae -vs- Rebeka Mwango Simion &Anor [2014] eKLR where a multiplier of 9 years was upheld on appeal for a deceased who was 57 years.

e) David Bore -vs- Johnson Masika [1998] eKLR where a multiplier of 5 years was adopted for a deceased who was 67 years.

8. Further reliance was placed on Beatrice.W. Murage –vs- Consumer Transport LTD & Anor [2014] eKLR where the court stated;

“Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wage. However, in this case, the minimum wage cannot apply because the deceased was beyond employment age and there is totally no evidence that he earned anything for a living.”

9. The Appellants agreed with the trial court on the unsuitability of the multiplier approach because of the uncertainty of the deceased earnings coupled with the fact that the deceased had reached the retirement age. They submitted that a lump sum of Kshs. 500,000/= as general damages would be sufficient in the circumstances of this case.

10. They relied on John Wamae & 2 Others -vs- Jane Kituku Nziva & Anor [2017] eKLR where the court awarded Kshs 400,000 for a businessman who was aged 61 years and had not proved his earnings. They submitted that indeed the trial court made reference to the decision but proceeded to award an excessive global award of Kshs 4,000,000/= which was not supported by any law.

11. They submitted that the holding from the courts is that where income is not proved, a global sum is advisable. Reliance was placed on Frankline Kimathi Maariu & Anor -vs- Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu-deceased [2020] eKLR where the court stated: -

“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”

12. They submitted that global sums are estimates informed by the special circumstances of each case and they differ from case to case but should not be arbitrary. Further reliance was placed on Moses Mairua Muchiri -vs- Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, where the Court held as follows: -

“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

13. In support of their proposal for a global award of Kshs 500,000/=, they relied on the following authorities:

a. T Dora Mwawandu Samuel (suing on her behalf and on the behalf of the estate of Samuel Muweliani Jumamosi (deceased) -vs- Shabir M. Hassan [2021] eKLR where the court awarded a 59-year-old farmer a global sum of Kshs. 400,000/-.

b. Moses Wetangula & Another -vs- Eunice Titika Rengetiang [2018] eKLR where the court awarded a global sum of Kshs. 500,000/- for a 42-year-old retired officer of the Kenya Defence Forces.

c. Rishi Hauliers Limited -vs- Josiah Boundi Onyancha [2015] eKLR where the court awarded a global sum of Kshs. 500,000/- to a 50-year-old.

d. China Civil Engineering & Construction Company (K) Limited -vs- Mwanyoha Kazungu Mweni & Mweni Kazungu Mweni (both suing on behalf of the estate of Ndegwa Mzungu Mweni (deceased) (2019) eKLR where the court, upheld a global award of Ksh. 700,000/- for loss of dependency made to a deceased who was a 79-year-old farmer.

14. They submitted that the issue of liability is not contested and the sum awarded should be subjected to apportionment on liability of 50% as held by the trial court.

Respondents’ Submissions

15. The Respondents submitted that the award of damages should not be interfered with as it was proper and based on conventional awards in fatal accidents cases.

16. On loss of dependency, they submitted that the deceased was a nurse operating his own clinic and that was not contested. That the Appellants proposed a global award of Kshs 400,000/= and relied on a 1971 E.A authority while the trial court relied on a 2017 authority. That the trial court relied on Civil Appeal No 225 of 2013 in which the reasoning in Jacob Ayiga Mariga Civil Appeal No 167 of 2002 eKLR was considered thus; “We do not subscribe to the view that the only way to prove the profession must be by production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate and keep no records and yet earn their livelihoods in various ways.”

17. It was submitted that the trial court also considered the applicability of the multiplier approach in assessing damages and relied on Albert Odawa -vs- Gichumu Gichanji Nakuru HCCA 15 of 2003 (2007) eKLR where the learned judge observed that; “... it is not a principle or a dogma. It can and must be abandoned where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of the deceased, the amount of annual or monthly dependency are known or are knowable without undue speculations. Where it is not possible, to insist on the multiplier approach would sacrifice justice on the altar of methodology, something a court of justice should never do.”

18. The Respondents relied on Paul Kioko -vs- Samuel G. Karinga& 2 others [2012] eKLR submitting that the court awarded Kshs 5,000,000/= as loss of dependency for a nurse aged 61 years. Consequently, they contended that the award by the magistrate was based on legal principles and this appeal should fail. They urged the court to be persuaded by this authority.

Analysis and Determination

19. As a first appellate court it is my duty to analyze and re-evaluate the evidence on record in and to draw my own conclusions always alive to the fact that I did not see or hear the witnesses.

20. I have considered the grounds of appeal, the rival submissions and entire record, it is whether the trial court erred in the award of quantum of damages.

21. The award of damages is largely an exercise of judicial discretion which will only be disturbed, in the circumstances explained in Butt –vs Khan (1977)1KAR,

“An appellate Court will not disturb an award for damages unless it is 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. Further an appellate court will not disturb an award simply because it would have awarded a different figure if it had tried the case in the first instance.

23. With respect to the claim under Fatal Accidents Act, it was pleaded that the deceased was a nurse operating a medical clinic and earning between 80,000/= and Kshs 120,000/= per month.  In her statement dated 26/05/2022 which was adopted as evidence in chief, PW1 indicated that the deceased was her husband and had a clinic known as Nunguni Medical Clinic and was earning the amount pleaded. She said that she had a book to show the earnings but did not have the accountant’s report.

25. It not in dispute that the deceased was a registered nurse. It was produced in court his registration certificate. The plaintiff produced in court a Licence to operate as a private and medical institution issued by the Medical Practitioners Board dated 1st January 2021 to expire on last day of December 2021. She also produced a document indicating that the deceased was admitted to the Roll of Community Health Nurses on 2nd July 1992.

26. It is my considered view that there was a missing link between these documents. The plaintiff did not produce in court any evidence to show that the deceased was indeed the owner of the clinic named Nunguni Medical Clinic. What was connecting the deceased with the clinic as his alleged business? The fact that he was a nurse and there was a clinic by that name was in my view not sufficient to draw the conclusion that he was indeed running the said clinic as his business.

27. The plaintiff also went out of her way to produce document evidence to establish that the deceased earned the sum of between Ksh 80,000 and 120,000, and that the wives received Ksh 50,000 per month for their upkeep. However, no evidence was produced to support these figures cited as income. No receipt books or other records were produced to support the record. It was also not clear what the basis for the income in 2020 was yet there was no evidence that the alleged Nunguni Medical Clinic was in operation as there was no licence for that year.

28. The trial court proceeded to apply the global sum award. From the record of the lower court the appellant relied on one authority Paul Kioko vs Samuel G Karinga & Others. It is the same authority that the respondents relied on on appeal. First of all, the deceased therein was a 44-year-old woman who was a nurse, and not 61-year-old as submitted by Mr. Kamolo for the appellant.  It is stated in that case “[the deceased] was employed at the university of Mary Land medicine staff clinic. Where she worked till her death. She earned 21.80 Dollars per hour which comes to 5,000.00 U.S Dollars a month. PW1 confirmed that both him and the deceased filed tax returns. The deceased would have worked till the age of 65 years.”  She had a husband and minor children depending on her at the time of death. There was no comparison other than the profession.

29. The Court awarded the global sum of Ksh 5,000,000 less 20% considered to be what she spent on herself, leaving a sum of Ksh 4,000,000.

30. In the subordinate court the appellants cited several authorities where the global sum award was between Ksh 400,000 and 700,000 for persons of similar age with the deceased and whose incomes were not ascertainable.

31. In John Wamae (supra), the Appellate court found that it was not clear as to whether the deceased was a farmer or security guard and as such, it would be speculative to assign him a minimum wage. In T Dora Mwawandu Samuel (supra) and China Civil Engineering & Construction Company (K) Limited (supra), the deceased persons were farmers. In Moses Wetangula (supra), the deceased was a retired KDF officer and in the case of Rishi Hauliers Limited (supra), the deceased was a retired administration police officer. The foregoing cases were relied upon by the Appellants and it is evident that the occupations of the deceased persons therein are not comparable to the deceased but all were in similar circumstances.

32. I have carefully considered what analysis by the learned trial court and did not find that the authority cited by the appellant supported the award that the court made on loss of dependency .

33. The authority cited by the respondents is clearly distinguishable.

34. I am persuaded that the award of Ksh 4,000,000 was too high in the circumstances of this case, and the authorities cited by parties. Looking at the authorities cited by the parties the latest that appears close to this case is the 2019 case where the court awarded the sum of Ksh 700,000 for loss of dependency for a 79-year-old farmer. I find this reasonable and following and considering the time difference I auld allow the global the sum of Ksh 1,500,000 for loss of dependency.

35. The award for special damages was not contested and I have confirmed that the amount was specifically pleaded and proved.

36. Regarding the award under the Law Reform Act, the award of Kshs 80,000/= for pain and suffering is contested. The death certificate shows that the deceased died on 21/01/2021 which was approximately one week after the accident. It is trite that the award under this head is determined taking into consideration inter alia the time between the injury and death. In Sukari Industries Limited –vs- Clyde Machimbo Juma, Homa Bay HCCA NO. 68 of 2015 [2016] eKLR, the deceased died immediately after the accident and the trial court awarded Ksh. 50,000/= for pain and suffering. On appeal, the court held that:

“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”

37. It is my view that in the circumstances of this case the award of Kshs 80,000 was on the lower side and is increased to Ksh 100,000.

38. The award for loss of expectation of life at Ksh 100,000 is not contested.

39. I find therefor that the appeal has merit.

40. The Judgment of the trial court is set aside and substituted as follows

i. Liability 50%;50%

ix. Orders accordingly

CA Nelima

Appellant’s Advocates

Mwangangi Nzisa & Associates

info@nzisamwangangi.com

Respondents’ Advocates

Kamolo & Associates Advocates

kamoloadv@yahoo.com