(Being an appeal from the Judgment and decree of the Hon. D.N.Musyoka (SPM) delivered on 14th June 2022 at Kikuyu in MCCC/303/2010)
1. By amended plaint dated 13th June, 2019 the appellant sued the respondents seeking general damages under both the Law Reform Act and the Fatal Accidents Act and costs of the suit plus interest.
2. In the plaint, the appellant pleaded that on or about 6th February,2010, the deceased was walking on the footpath along Nairobi-Naivasha road towards Naivasha, when the 1st defendant so negligently drove, managed and or controlled the said motor vehicle registration number KAS 493V/ZA8459, towards Naivasha direction that two tyres came off the trailer and caused one of the tyres to collide into the deceased on the footpath.
3. That at the time of her death, the deceased was aged 23 years old and she enjoyed a vigorously life, she was a 4th year student at Daystar University pursuing a Bachelor of Arts degree in communication and aspired to be a journalist. That as a result of the death of the deceased, her estate and dependants have suffered loss and damage.
4. In response, the respondents/defendants filed their joint statement of defence dated 17th March, 2011 in which the 2nd defendant denied that it was at all material time the registered owner of the suit motor vehicle. The 1st defendant vehemently denied the claim asserting that he was never negligent and that if at all an accident occurred as alleged the same was wholly and substantially caused by negligence on the part of the deceased.
5. In seeking to prove his case, the plaintiff gave evidence and called one witness. Morris Macharia Njagi as PW1 testified that the deceased was his wife and she was involved in an accident. He testified that he witnessed the accident and recorded his statement dated 5.12.2018 which he wishes to adopt as evidence in chief. He testified further that deceased was a student at Daystar University doing Bachelor of Arts in Communication. That deceased was in fourth year when she was involved in the said accident only 3 months to graduation.
6. During cross examination, he reiterated that he witnessed the accident and it was at Zambezi, Oil Libya. He testified that the deceased was going to see him as he works at the petrol station. Pw1 testified the deceased was on the foot path which led to exit of the petrol station. He testified that he was waiting for him and saw her coming to the Petrol station. She died instantly.
7. PW2 Godfrey Kirui NO.82113, testified he is attached to Kikuyu police station and he is in court to produce police abstract dated 12.3.2010 concerning accident on 6/2/2010. It involved a motor vehicle registration KAS 433B/ZA 8459 Scania Semi trailer and pedestrian Maureen Mahati Ayemba. He testified that the address of the owner of motor vehicle is Oserian development company. Driver was Daniel Musyoka Yatta. The Driver was charged for driving a defective vehicle. Results say matter still pending before court abstract. He produced the abstract as plaintiff’s exhibit No.4.
8. PW2 witness Gabriel Ayiemba testified as PW3 he adopted his statement dated 20.1.2021 as evidence in chief.
9. During cross examination he confirmed that the deceased was his child. He testified that there were no funeral expenses. He testified he was informed that the tyre came out of the suit vehicle. He stated that his child was not yet married. It was his testimony that the deceased was at Daystar University and in third year undertaking journalism.
10. At close of the plaintiff’s case the defendants opted not to call any evidence to controvert the Plaintiff’s case.
11. At the conclusion of the trial, the trial court delivered a judgment dated 14th June 2022 in which he found that the respondents were 100% liable for the accident and awarded damages as follows;
a. Liability 100%
b. Pain and suffering -50,000/=
c. Loss of expectation-100000/=
d. Loss of dependency-600000/=
e. Travel expense 20000/=
TOTAL -770,000/=
The Plaintiff shall also have costs of the suit.
12. The appellant Gabriel Ayemba Asinyikwa father of the deceased being aggrieved by the said judgement and filed his Memorandum of Appeal dated 12th July 2022 setting out five (5) grounds of appeal as follows;
1) The Learned Magistrate erred in Law and fact in failing to award a multiplier and dependency ratio.
2) The Learned Magistrate erred in Law and fact in failing to award a loss of dependency calculated by way of multiplier and dependency ratio.
3) The Learned Magistrate erred in Law and fact in failing in awarding an inordinately low amount in the circumstances
4) The Learned Magistrate erred in Law and fact in failing to award interest in this matter.
5) The Learned Magistrate erred in Law and fact in failing to give any or any proper reasons for arriving at his holdings.
The appellant proposed that the appeal be allowed. The aforesaid judgment of the subordinate court be set aside. That this court enter judgment in favour of the said 2nd Plaintiff on loss of dependency and interest.
Submissions
13. Upon the directions by the court, the appellant filed his submissions in respect to the appeal on 14th December,2023 and the respondents opted not to file submissions.
14. The appellant submitted that the learned magistrate erred in failing to award a multiplier and dependency ratio. The Appellant had prayed for damages under the Law Reform Act and the Fatal Accidents Act for the benefit of the dependents of the Deceased
15. The Appellant relied on the decision in Robert Gathage v Cosmas Mutune Ndulu (Suing as the Administrators of the Estate of Joseph Kyunuve Mutune (Deceased) [2020] eKLR.
16. The appellant submitted that he had had proposed a multiplier of 36 with the Deceased graduating at 24 and the retirement age being 60 then that would give her at least 36 years of working and earning. The appellant submitted that learned Magistrate made no mention of the submissions on multiplier and dependency ratio. It was submitted that instead the Learned Magistrate gave a global sum without informing the parties where he got the figure or what reasons he had or the principles he relied upon to arrive at his figure.
Analysis and Determination
17. I have considered this Appeal, submissions by appellant and the authorities relied on. I have also perused the trial court’s record and the impugned Judgment. It is noteworthy that the Appeal challenges part of the lower court Judgment on award of damages and to be more specific, the award on the sub-head for loss of dependency.
18. I have identified the following issues for determination. First, is the question as to whether the trial court acted on wrong principles arising at the award of damages for loss of dependency, and, if the above is answered in the affirmative, which sum would be sufficient compensation in the circumstances.
19. Firstly, as a first appellate court, this court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, draw a conclusion from that analysis while bearing in mind that the appellate court did not have an opportunity to hear the witnesses first hand and test the veracity of their evidence and demeanor. Further, Section 78 of the Civil Procedure Act, Cap 21, Laws of Kenya, espouses the role of a first appellate court which is to ‘… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’ The position was buttressed by the East Africa Court in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123.
20. Ordinarily, a court on appeal will normally not interfere with the exercise of discretion by the trial court when assessing damages unless it is satisfied that the trial court took into account an irrelevant fact or left out of account a relevant fact; or that the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.
21. Nonetheless, an award of damages is an exercise of judicial discretion which is based on the injuries sustained and comparable awards made in past comparable injuries while taking into account other relevant factors such as influx of time. I will therefore consider some of the relevant factors other courts have.
22. The Court of Appeal in the case of Roger Dainty –vs- Mwinyi Omar Haji & Another, MSA Civil Appeal No.59 of 2004 [2004]eKLR, expressed itself thus;
23. “To ascertain the reasonable multiplier or multiplicand in each case, the court would have to consider such relevant factors as the income or prospective income of the deceased, the kind of work the deceased was engaged in, the prospects of promotion and his expectation of working life.”
24. In this case, It is the Appellant’s case that the trial court applied the wrong principles in regard to the award, particularly on loss of dependency, by failing to use a multiplier therefore arriving at an award that was inordinately low in the circumstance.
25. The Appellant submitted that the deceased was student at Daystar university and she was in 3rd year undertaking Bachelor of Arts in Journalism. The appellant submitted that he had proposed a multiplier of 36,deceased was graduating at 24 and retirement age being 60 then that would give her at least 36 years of working and earning.
26. The appellant submitted that trial court erred in giving a global sum without informing the parties where he got the figure therefore the award was inordinately low in circumstance and prayed the global sum be set aside and judgement be entered based on existing principles of multiplier and dependency ratio. The appellant proposed earning of Kshs.50,000/= per month, multiplier of 36 and dependency ratio of 2/3 be taken inti accou. At no point did the respondents discredit that evidence.
27. In this case, PW1 testified that the deceased was a 23 year old student at Daystar university who partly depended on him and her parents for everything. His evidence was buttressed by PW3 who confirmed that indeed the deceased was a student. Although the deceased herein was a student at the time of her death, it would reasonably be expected that she would finish her studies, get into the job market and support her father. She had however not yet completed college and neither had she got a job. We can mot tell with certainty the exact job she would have got and what income she would have got. Therefore, adopting a global figure to assess the damages payable under this head was reasonable. Taking into account the evidence that was adduced in court that the deceased was a healthy young lady, enjoying robust life, but also considering the uncertainties of life an award Kshs. 600, 000 for loss of dependency was a reasonable award and I will not interfere with the award.
28. This court notes that the deceased was unemployed and no one depended on her, therefore there was no basis of using a multiplier in this case in calculating the award under this head.
29. Having analyzed the Record of Appeal , I am not persuaded that the trial court fell into any error in the manner it assessed damages under loss of dependency under the Law Reform Act.
30. On issue of interest, I do note that the trial court did not award interest of the suit and failed to give reason for the same. I therefore will award the appellant interest of the suit at court rate.
31. Dated signed and delivered virtually this 30th day of July 2024.
WENDY KAGENDO
JUDGE