1. This judgment determines the Appellant’s appeal filed on 16th June, 2023 vide the Memorandum of Appeal of even date. This appeal relates only to the issue of quantum.
2. The Respondents who were the Plaintiffs before the trial court presented the suit as the Legal Representatives and Administrators of the Estate of John Ndung’u Gitonga (“the Deceased”) and pleaded that the Deceased was fatally injured following a road traffic accident that occurred on 16th October, 2021 along Archers – Isiolo Road.
3. The accident occurred while the Deceased was travelling as a passenger aboard motor vehicle registration number KCN 097B which collided with motor vehicle registration number KBL 949M.
4. The issue of liability was determined by the consent of the parties at 15% against the Respondents and 85% against the Appellants jointly and severally.
5. On quantum, the learned trial Magistrate, Hon. E. Tsimonjero proceeded to assess damages under the various heads as follows:
a. Pain and suffering Ksh.50,000/-.
b. Loss of expectation of life Ksh.100,000/-.
c. Loss of dependency Ksh.3,020,993.60/-.
d. Special damages Ksh.281,130/-.
6. All the above awards were subjected to the agreed apportionment and/or contribution.
7. It is that judgment that gave rise to this appeal where the Appellant now complains that:
i. That the learned trial Magistrate’s award of Ksh.50,000/- as general damages for pain and suffering are inordinately high, wholly unsupported by the facts of the case and far removed from the principles of law and the applicable judicial precedents, therefore the same are erroneous and has occasioned a miscarriage of justice.
ii. That the learned trial Magistrate’s award of Ksh.3,020,993.60/- as general damages for loss of dependency are inordinately high, wholly unsupported by the facts of the case and far removed from the principles of law and the applicable judicial precedents, therefore the same are erroneous and has occasioned a miscarriage of justice.
iii. That the learned trial Magistrate erred in fact and in law when quantifying the remedy of general damages for loss of dependency by adopting the unproved allegations of the Respondents that the Deceased used to provide for his family despite any singular evidence of actual dependency.
iv. That the learned trial Magistrate erred in fact and in law when quantifying the remedy of general damages for loss of dependency by awarding a multiplier of 20 years thereby leading to the presumption the Deceased’s children would live and receive dependency well into their twenties in spite of them reaching adulthood and taking up resulting social duties to maintain the Deceased as their parent.
v. That the learned trial Magistrate erred in fact and in law by failing to take into consideration the award issued under the Law Reform Act when quantifying the award under the Fatal Accidents Act.
vi. That the learned trial Magistrate erred in fact and in law by determining that the Respondent had proved any special damages on a balance of probabilities.
vii. That the learned trial Magistrate erred in fact and in law in failing to subject the Respondent’s claims and evidence to the applicable evidentiary standard.
viii. That the learned trial Magistrate erred in fact and in law in failing to give due regard to the submissions made by the Appellants on the facts of the case and the legal authorities provided thereof.
ix. The learned trial Magistrate’s judgement on quantum as whole is not supported by the evidence that was tendered in court by the parties.
8. As observed above, the appeal is against quantum of damages only. This court gave directions that the appeal be canvassed by way of written submissions and both sides complied by filing their respective submissions.
9. A first appellate court is mandated under Section 78 of the Civil Procedure Act to re-evaluate the relevant evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal.
10. This court is therefore empowered to subject the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 in which Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
11. Going to the trial court’s record, the Respondents (the Plaintiffs in the lower court), presented the suit, a tortious liability claim, vide a plaint dated 17th January, 2022, seeking the following reliefs against the Appellants (the Defendants in the lower court):
a. Special damages of Ksh.281,130/- plus interest from the date of filing suit until payment in full.
b. General damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32).
c. Costs and interest at court rates.
12. The 2nd Respondent testified before the lower court and adopted the contents of her statement dated 17th January, 2022. She stated that the Deceased was her husband and worked as a driver, earning Ksh.25,000/- monthly. She stated that her husband met his demise on 16th October, 2021 at the age of 31. The Deceased left behind a spouse (the 2nd Respondent) and two children aged 2 and 8. He provided for his family before his demise.
13. The Respondent produced the following documents in support of her case before the lower court:
- Demand letter.
- Certificate of death.
- Police abstract.
- Limited grant ad litem.
- Receipt for special damages.
- Chief’s letter.
- Certificate of birth for C.J., a minor aged 8 years old.
- Certificate of birth for E.W., a minor aged 2 years old.
- A copy of the Deceased’s driving licence.
- Copy of records for motor vehicle registration number KBL 949M.
14. I have perused the Memorandum and Record of Appeal, the submissions filed by the parties and the record of the trial court. What is clear from the Appellants’ submissions is that they do not challenge the award made under the head of loss of expectation of life. All the other awards are challenged.
15. From the record and material before me, I deduce the issue for this court to determine to be whether the trial magistrate erred in awarding excessive damages under the various heads and ultimately whether the awards that the learned trial Magistrate made were appropriate and in judicious exercise of his discretion.
16. With regard to special damages, the applicable rule in evidence is that the same must be specifically pleaded and strictly proved (See Equity Bank Limited v Gerald Wang’ombe Thuni [2015 eKLR). The Plaintiff pleaded for a total of Ksh.281,130/- under this head and produced several receipts.
17. I note that some receipts are unclear as to the amounts expended and in the circumstances, only the receipts in which the expended amounts are clearly stated should be considered. That said, the total sum in special damages is Ksh.273,200/-. The learned trial Magistrate thus erred in awarding Ksh.281,130/- notwithstanding that some receipts were illegible and the amount therein could not be ascertained.
18. The Appellants argued in their submissions that the receipts which are not in the Respondents’ name should be excluded from the calculation. It should be remembered that the Respondents filed the suit as Legal Representatives and Administrators of the Estate of the Deceased and it would not be reasonable to expect every receipt issued for monies expended in preparation to inter the remains of the Deceased would be in the Respondents’ names. I say so because in Africa, the preparation for and the actual interment of a deceased’s remains is ordinarily a communal rather than merely a family exercise.
19. As for the award made under the head of pain and suffering which was Ksh50,000/-, it is instructive from the evidence that the Respondents presented that the period after the accident that lapsed before the Deceased died was not addressed. That being the case, I can only reach the finding that the Deceased died instantly. My view then is that the award of Ksh.50,000/- was on the higher side. I opine that Ksh.10,000/- would be apt, in the circumstances.
20. I will now turn to the award under the Fatal Accidents Act. Dependency is always a matter of fact to be proved by evidence. It is upon the party who brings a claim seeking damages under the head of loss of dependency to adduce evidence to prove the claim.
21. Compensatory damages are awarded to a wronged party in exercise of the court’s discretion. The principles upon which an appellate court can interfere with judicial discretion were laid down in the case of Price & another v Hidler [1996] KLR 95 as follows:
“The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”
22. Further, in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR the Court of Appeal while discussing the principles upon which an appellate court may disturb an award of damages by an inferior court 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.”
23. There is also the authority of Mbogo & Another v Shah [1969] EA 93, where it was held, inter alia, that:
“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.”
24. The Appellants argued that the Respondents did not produce any documents to prove that the Deceased’s family depended on him. The fact that he was married and had minor children was however not disputed and in my view, the uncontroverted oral evidence of the 2nd Respondent that the Deceased’s family depended on him was sufficient and proved on a balance of probabilities the fact of such dependency.
25. In determining loss of dependency, the learned trial Magistrate applied the multiplier/multiplicand formula or method, which requires that the court determines the multiplier, multiplicand and dependency ratio which form the basis upon which loss of dependency can then be calculated.
26. From the certificate of death that the 2nd Respondent produced as an exhibit, the trial court was able to determine with certainty the age at which the Deceased met his demise, which was 31. The Respondents did not present proof of earnings by the Deceased.
27. The trial court however went on to hold that the Deceased was employed as driver. In my view, the learned trial Magistrate was right in reaching that finding as the 2nd Respondent proved as much on a balance of probabilities by producing a driving licence. That being the case, it was in order for the trial court to proceed and apply the minimum wage at the time applicable for the occupation.
28. But then, the Appellants took the position that the trial court ought to have considered that the location or place of work or residence of the Deceased was not disclosed and as such, the proper figure should have been the minimum wage in “all other areas” (excluding cities and municipalities) as provided for under the Regulation of Wages (General Amendment) Order, 2022.
29. The Appellants further argued that the class or classes of the vehicle that the Deceased was employed to drive was not stated. They proposed that this court applies the minimum wage for a driver of a small vehicle in “all other areas” which was at the time Ksh.8,109.90/-.
30. I have considered the Appellants’ arguments on the multiplicand. The issues raised in this appeal regarding the same were not raised in the submissions that the Appellants filed before the trial court and were therefore not addressed by the court. As such, my view is that dealing with the same would not be prudent at this stage for the reason that the trial court applied its discretion on the basis of the material that the parties presented before it. I will therefore not interfere with the court’s findings on the multiplicand.
31. Lastly, there is the issue raised by the Appellant that the amount awarded under the Law Reform Act should have been deducted from the award made under the Fatal Accidents Act. On this, I take guidance from the decision of Hellen Waruguru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR where the Court of Appeal observed as follows:
The words “to be taken into account” and “to be deducted” are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”
32. In his judgement, the learned trial Magistrate stated as follows:
“To my mind, the nominal awards under the Law Reform Act in themselves cure the feared risk of double compensation, if any.”
33. In my view, the words by the learned trial Magistrate were sufficient to show that he had considered the awards under the Fatal Accidents Act, subsequent to which he made nominal awards under the Law Reform Act in order to guard against double compensation.
34. As was held in the above decision, there was no requirement under Section 4(2) of the Fatal Accidents Act that the trial court deducts the award made under the Law Reform Act from that of loss of dependency.
35. Being of the foregoing findings, I will allow the appeal only to the extent that I set aside the trial courts awards of Ksh.50,000/- under the head of pain and suffering and Ksh.281,130/- under the head of special damages and substitute the same with awards of Ksh.10,000/- and Ksh. 273,200/- under the two heads respectively. The awards are to be subjected to the agreed contribution and/or apportionment.
36. As the appeal is partly successful, each party shall bear their own costs.
DELIVERED (virtually), DATED & SIGNED this 20th day of December, 2024.
JOE M. OMIDO
JUDGE
FOR THE APPELLANTS: No appearance.
FOR THE RESPONDENTS: Ms. Maina for Mr. Mutuma.
COURT ASSISTANT: Ms. Njoroge.