Introduction
1. By a plaint dated 27th November 2018, the 1st and 2nd Respondents herein sued the Appellant and the 3rd Respondent for compensation following a fatal road traffic accident on or about 13th August 2017 along Ngong Road involving motor vehicle registration number KCK 383K and the deceased who was a pedestrian.
2. Liability was agreed and consent in that regard was entered into on 28th January 2019 in the ratio of 70:30 in favour of the Respondents. The matter then proceeded for hearing on the issue of damages.
3. On 24th November 2020, the lower court delivered its judgment, awarding the Respondents general damages as follows; -
a) Under Law Reform Act
i) Pain and suffering – Kshs. 20,000/-
ii) Loss of expectation of life – Kshs. 120,000
b) Under the Fatal Accidents Act
i) Loss of dependency – Kshs. 1,600,000/-
The Appeal
4. Aggrieved by the trial court’s Judgment, the Appellant lodged this appeal vide his Memorandum of Appeal dated 25th December 2020 and raised the following as the grounds of appeal; -
i. That the Learned magistrate erred in law and in fact in awarding the general damages which were excessive compared to the weight of evidence adduced before the court.
ii. That the Learned magistrate erred in law and in fact by failing to take into account issues raised by the Appellant’s counsel during cross-examination at the hearing of the suit.
iii. That the Learned magistrate erred in law and in fact by awarding loss of dependency which was manifestly excessive and without supporting evidence to sufficiently prove the claim.
iv. That the Learned magistrate erred in law and in fact by awarding a global sum on loss of dependency without taking into account facts and weight of evidence on record on behalf of the plaintiff.
v. That the Learned magistrate erred in law and in fact by failing to apply proper legal principles regarding quantum and thus arriving at a bad decision.
vi. That the Learned magistrate erred in law and in fact by making an award on general damages which was manifestly excessive and inordinately high, contrary to the principles of stare-decisis.
vii. That the Learned magistrate erred in law and in fact in considering irrelevant matters in arriving at the said decision on quantum.
5. The appeal was canvased by way of written submissions. The Appellant filed his submissions dated 13th February 2024, while the 1st and Respondents filed a joint submission dated 19th March 2024. The 3rd Respondent did not file any submissions.
Appellant’s Submissions
6. On loss of expectation of life, the Appellant argued that the trial court erred in awarding the Respondents a sum of 120,000/-. According to the Appellant, in awarding the said figure, the trial court solely relied on the submissions by the Respondents and erroneously concluded that the Appellant had not submitted on the same.
7. Referring to his submissions filed before the trial court (page 34 of the Record of Appeal), the Appellant asserted that the deceased died on the spot and therefore a sum of Kshs. 80,000/- would have been sufficient under this head. The Appellant relied on the case of Joseph Kahiga Gathii &Paul Mathaiva Kahiga (Suing as the Administrators of the Estate of the Late Lvdia Wanjiku Kahiga and Elizabeth Murugi Kahiga Both Deceased) v World Vision Kenva & 2 others [2014| eKLR in which the appellate court upheld the trial court's decision to award a sum of Kshs.60,000/-.
8. Regarding the award on loss of dependency, the Appellant submitted that the sum of Kshs. 1,600,000/- made by the trial court was erroneous. According to the Appellant, the trial court, in awarding the said figure, failed to appreciate that no evidence had been submitted at trial by the Respondents in proof of dependency. The Appellant maintained that the Respondents did not adduce any iota of evidence to prove the nexus between the six children and the deceased.
9. Citing the case of Rahab Wanjiru Nderitu v Daniel Muteti & 4 others |2016] eKLR, the Appellant asserted that some evidence ought to have been adduced by the Respondents to prove the relationship between the deceased and the six children in question.
10. It was further the Appellants’ argument that contrary to the express provisions of Section 4 of the Fatal Accidents Act, the Respondents herein were also cited as dependents of the deceased. The Appellant maintained that under the said provision, an action brought under Section 4 of the Fatal Accidents Act is only for the benefit of the “wife, husband, parent, and child” of the deceased.
11. In the circumstances, the Appellant asserted that proof of dependency had not been made and that the award of Kshs. 1,600,000/- by the trial court in that regard was therefore erroneous.
12. As an alternative argument, the Appellant submitted that in the event that this court finds that dependency was proved, then the sum of Kshs. 1,600,000/- was still inordinately high and excessive in the circumstances. Relying on the decision in the case of Dennis Maosa Kibegwa y Ochieng'i Mosero Jovce & another|2019] eKL.R in which the court awarded a sum of Kshs. 1,000.000'=where the deceased was aged 40 years at the time of the accident.
13. The Appellant therefore urged this court to allow the appeal with costs as prayed.
Respondent's Submissions
14. On their part, the Respondents supported the trial court’s decision and urged this court to uphold the same.
15. Regarding the award of Kshs. 120,000/- on account of loss of expectation of life, the Respondents submitted the amount was not excessive in the circumstances of the case and was well within the parameters of the court’s discretion. The Respondents relied on among others, the case of Jackson Kariuki Ndegwa versus Peter Kungu Mwangi eKLR where an amount of Kshs. 150,000/-was awarded by the court for loss of life.
16. In answer to the Appellant’s submissions that no dependency was proved at the trial court, the Respondents submitted that contrary to the Appellant’s allegations, the Respondents produced at trial, as document No. 4 in their list of documents dated 4th December 2018, a letter from the chief which recorded the names of the deceased's children, as was pleaded in the Plaint. The Respondents submitted that it is not mandatory to produce birth certificates if the same cannot be traced.
17. It was therefore the Respondents’ position that dependency having been proved, the inclusion of the Respondents herein, who are the administratrix who are sisters to the deceased, cannot be used to strike out the claim for dependency
18. Lastly, the Respondents submitted that the use of a global sum, though indicated as a ground of appeal had not been submitted on by the Appellant. It is further the Respondents’ position that the sum of Kshs. 1.000,000/- proposed by the Appellant was not supported by any authority and therefore baseless.
Analysis and determination
19. This being a first appeal, the duty of this court is to reevaluate and reassess the evidence tendered at trial with a view of reaching its own conclusion, keeping in mind that, unlike the trial court, I did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
20. I am equally aware that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial 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..."
21. I have carefully reviewed the Appellant’s memorandum of appeal filed herein, pleadings, and proceedings from the lower court as well the submissions herein and note that the Appellant’s main issue with the trial court’s judgment is the award of Kshs. 120,000/- in respect of loss of expectation of life and the award of Kshs. 1,600,000/- under the Fatal Accidents Act.
22. First it is critical to note that the assessment of damages lies in the discretion of the trial court and an appellate court will only interfere with the award of damages where it is inordinately high or low as to represent an erroneous estimate. This was the holding of the court in Butt - vs - Khan (1977) I KAR where it was held that: -
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to entirely represent an 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. This position has been reiterated in several superior court cases in Kenya, including the Court of Appeal decision in the case of Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenya) vs Kiarie Shore Stores Limited [2015] eKLR where the Court held that: -
“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate court will not disturb an award of damages unless it is so inordinately high or law as to represent an 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. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one or that, short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages.”
24. In the instant appeal, the Appellant contends that the amount of Kshs. 120,000/- awarded by the trial court under loss of expectation of life, as well as the sum of Kshs. 1,600,000/- for dependency, are excessive and inordinately high.
25. Under loss of expectation of life, the Appellant citing the case of Joseph Kahiga Gathii &Paul Mathaiva Kahiga (Suing as the Administrators of the Estate of the Late Lvdia Wanjiku Kahiga and Elizabeth Murugi Kahiga Both Deceased) v World Vision Kenva & 2 others [2014| eKLR submitted that the sum of Kshs. 80,000/- would have been sufficient.
26. I have carefully considered the Appellant's submissions and the authorities on the subject. I note that the conventional award for loss of expectation of life is in the range of around Kshs.100,000/=. In Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR the Court stated as follows on the issue; -
“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs.100,000/= while for pain and suffering the awards range from Kshs.10,000/= to Kshs.100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”
27. In view of the above, I consider the award of Kshs. 120,000/- under the heading not to be excessive as submitted by the Appellant. Consequently, I hereby affirm and uphold the trial court’s award of Kshs. 120,000 under the heading of expectation of life.
28. Regarding the award of general damages under the head loss of dependency, it is settled that it is for the trial court to adopt one of the two available approaches. A trial court in assessing the damages hereunder, may either give a global award or undertake a tabulation using the multiplier, the multiplicand and the dependency ratio. See the case of Buyala v Amwayi ((Suing as the Legal Representatives in the Estate of Shem Kokonya - Deceased)) (Civil Appeal 63 of 2022) [2024] KEHC 618 (KLR) (19 January 2024) (Judgment) where the Court stated as follows; -
“On the award of general damages under the head loss of dependency, there are two schools of thought on how to calculate damages in respect thereto. One school advocates for tabulation using the multiplier, the multiplicand and the dependency ratio while the other school advocates for a global award. Both are indeed at the choice of the trial court for it is known that there is no magic in the multiplier approach. The aim of the court is to do justice by awarding a sum that compensates the victim rather than enrich her and merely punishing the tortfeasor.”
29. In the instant case, while the Appellant in his memorandum of appeal listed the adoption of a global award approach by the trial court, he did not take it up in his submissions. The ground was, therefore, in the view of the court abandoned. I will therefore treat it as such.
30. From the Appellant’s submissions, the only issue taken up on this is that dependency was not proved by the Respondents at trial. I have considered the Respondents’ submissions herein and the record of appeal and note that contrary to the Appellant’s submission, dependency was in fact proved at trial by the Respondents.
31. It is trite law that he who asserts must prove and the evidentiary burden is cast upon any party who wishes the court to believe the existence of any fact to exist in his favour. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR the court was held: -
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
32. Under Section 4(1) of the Fatal Accidents Act, it is clear that an action brought under the Act is for the benefit of the wife, husband, parents and children of the deceased. The Act provides as follows; -
“4. Action to be for benefit of family of deceased
(1) Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought………”
33. In Rahab Wanjiru Nderitu v Daniel Muteti & 4 others [2016] eKLR, the Court stated as follows regarding the evidence required by the court to prove dependency under Section 4(1) of the Fatal Accidents Act; -
“The plaintiff must prove dependency. If a wife, she must prove marriage to the deceased either by customary marriage or by production of marriage certificate or by any other acceptable manner, by a letter from the Chief confirming that the plaintiff is a wife of the deceased and that the children are children of the deceased in the absence of birth of certificates or any other documents to confirm the same.” [emphasis added]
34. From the record of appeal, I note that the Respondents on 4th December 2018 filed a list of documents, which included a letter from the chief, which was listed as number 4 in the said list. On 28th September 2020, PW1, Mary Waithuri testified and told the court that the deceased left six children. She also produced the documents in court as Pexh 1-8. Pexh 4 was a copy of the letter from the chief listing the six children of the deceased. The Appellant did not object to the production of the documents in court as evidence.
35. In view of the above, I find that dependency was sufficiently proved by the Respondents. As rightly submitted by the Respondents, it is not mandatory to produce birth certificates if the same cannot be traced. Further, dependency having been proved, the inclusion of the Respondents herein, who is the administratrix of the estate of the deceased (and her sisters), cannot be a ground to defeat the claim.
36. Regarding the Appellant’s submissions that the sum of Kshs. 1,600,000/- awarded by the trial court for loss of dependency being excessive, I note that the trial court adopted a global award approach since no evidence was adduced by the Respondents in support of the allegation that the deceased used to earn Kshs. 300 per day. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR the court stated that where there is no satisfactory proof of the monthly income by salary or employment, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. The Court stated: -
“The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”
37. From a perusal of the record of appeal, I note that the deceased was aged 40 years at the time of her death and had left behind six children for whom she was the provider. While I note that the trial magistrate did not cite any decisions by which it was guided, I find, in the circumstances of this case, that the sum of Kshs. 1,600,000/- awarded by the trial court for loss of dependency, not excessive as alleged by the Appellant. This court makes reference to among others, the case of Isaack Abdikari, Abdile & another v Rose Kinanu Muchai (Legal representative of the Estate of Paul Rufus Muguongo (2016) eKLR where the deceased was aged 45 years and that of David Mbuba & another v Victoria Mwongeli Kimwali & another (2018) eKLR where the deceased was aged 46 years and in which the courts awarded a global sum of Kshs.1,200,000/- and Kshs.2,380,000/- respectively.
38. Accordingly, and for the reasons set out above, I find no merit in this appeal and hereby dismiss the same with costs to the Respondents, which is hereby assessed at Kshs. 80,000/-.
39. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
Moses – Court Assistant
Muyuka ………….for the Appellant.
N/A……….. for the Respondent.