Margaret Ngina Kinyili VS Joyce Chepkemoi Onyancha Margaret Ngina Kinyili VS Joyce Chepkemoi Onyancha

This is an appeal from the Judgement and decree of the Honourable Gathogo Sogono deceased by 28/11/2022 in Nairobi CMCCC & 1258 of 2022. The Appellant was the defendant in the matter. The Appellant filed 6 grounds of Appeal. The grounds are on 2 questions only.
1. Liability
2. General and special damages.
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:

“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-

“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -

“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…But 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…”

In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019)eKLR , Justice D.S Majanja held as doth:

“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.
The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows:

“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies should be taken into consideration.”

Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.
The High Court, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -

“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -

“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.
So my duty as the appellate court is threefold regarding quantum of damages: -
To ascertain whether the Court applied irrelevant factors or left out relevant factors.
To ascertain whether the award is too high as to amount to an erroneously assessment of damages.
The award is simply not justified from evidence.
To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.
The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages :-

For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

Pleadings

The respondent filed suit on 10/3/2022 claiming for damages for an accident on 13/11/2021 which caused the death of the deceased herein. The Appellant was the owner of the said Motor vehicle registration number KBY 071G. The said vehicle was said to suddenly veer off the Road at Kampala road about along enterprise road.
The deceased was a pedestrian. The deceased left behind a mother and father. Their ages were not stated. They also prayed for special damages of 20,550/= and funeral expenses of Kshs 180,000. The deceased was said to be a clearing and forwarding personnel earning 40,000/= per month. He was to retire at 75 years.
The Appellant filed defence dated 5/4/2022. They denied ownership of the vehicle while admitting paragraph 2. They were evasive as to the basis of blaming the Respondent. My sought to blame the deceased and set out particulars of negligence.

EVIDENCE

PC W Consolota Mwaura testified that this was a hit and run accident. The deceased was of the road. The respondent testified in Chief and produced all evidence after the court, rightly overruled an objection on exhibits nos 7,8,9,10,8.11. The respondent testified that the deceased was 35 of age. She stated that the deceased gave the Respondent an amount of between 15,000 and 30,000/= per month.
There was no evidence tendered by the Appellant.

Decision

The court below entered Judgment which was the basis from the Appeal.as follows:
Liability 100%.
Loss of expectation of life 100,0000/=.
Loss of dependences 3,000,000/=.
Special damages 200,000/=.

Submissions.

The Appellate filed submissions on 28/11/2023. They argued grounds 1,2 and 3 together on liability. They argued the rest of the claims separately. They dwelt on this aspect that the investigating officer did not testify. They relied a persuasive case of Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR, where justice H. K. Chemitei stated as follows: -

“The investigating officer was not called to testify and give the court a clear picture of how the accident occurred and who was to blame for the accident. No police file and /or sketch map was produced to explain to the court how the accident occurred. Clearly, the appellant failed to prove her case on liability on a balance of probability as was held by the trial court.

48. I place reliance on the case of Sally Kibii & another v Francis Ogaro [2012] eKLR where the court in upholding the lower court’s decision dismissing the appellant’s case stated that:

“In the Kenital case (above) I held that in all adversarial legal systems like ours, a party undermines his case drastically by not calling or failing to call witnesses. The Plaintiff simply did not adduce any evidence before the trial court on liability. They could have called eye witnesses and/or the investigating Police Officer. Proof of negligence was material in this case and the burden of proof was upon the Plaintiff. She did not discharge the burden and the appellant’s Counsel Submission before me that ‘someone, has to explain how the accident took place, is telling. That ‘someone’ is the Plaintiff who alleges negligence on the part of the Defendant.”

They stated that the court erred in blaming the Appellant. They relied on the case of Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24 January 2022) (Judgment).
They stated that the fact that the evidence the plaintiff is not challenged does not mean that court could interrogate the same. They relied on the case of Mary Mary Wanjiru v Lucy Njeri Munyua & another [2020] eKLR, where Justice Gacheru held as doth: -

“The fact that the evidence is not challenged does not then mean that the Court will not interrogate the evidence of the Plaintiff. The Court still has an obligation to interrogate the Plaintiff’s evidence and determine whether the same is merited to enable the Court come up with a logical conclusion, as ex parte evidence is not automatic prove of a case. The Plaintiff has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited…Vs…Nathan Karanja Gachoka & Another [2016] eKLR, where the Court stated:-

“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A Plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

Further the case of Gichinga Kibutha…Vs…Caroline Nduku (2018) eKLR, the Court held that:-

“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

This discounted the case of Kennedy Nyangoya v Bash Hauliers [2016] eKLR, where justice Njoki Mwangi stated as doth: -

“27. Justice M. Kasango in the case of D.T. Dobie & Co. Ltd vs Wanyonyi Wafula Chebukati [2014] eKLR cited with approval the case of Miller vs Minister of Pensions (1947) 2 ALL ER 372, where Denning J had this to say:-

“The degree is well settled. It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say; we think that it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case where a tribunal cannot decide one way or the other which evidence to accept, where both parties explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

They stated that the court should have dismissed or found 50:50 liability. They did no lay basis for the 50: 50 liability.
On the second issue. The Appellant submitted that the court failed to discount the award made under the law reform Aact and as a result ended up making a double award. They relied on the case of court in Paul Ouma v Sarah Akinyi and Monica Achieng Were (suing as the legal representative in the Estate of Paul Otieno Were (Deceased) [2018] eKLR the court held as follows: -

“13. On loss of expectation of life, the Trial Court awarded Kshs. 140,000/= which the Appellant urged is excessive and should be reduced to Kshs. 70,000/=. The Respondent did not agree. The Appellant has not urged why on award of Kshs. 140,000/= is excessive for loss of expectation of life for the deceased who died at the age of 26 years. The death certificate exhibit 5 produced as exhibit reveals the deceased died at the age of 29years. I have considered the authorities relied upon and evidence on record and find an award of Kshs. 100,000/= for loss of expectation of life would be proper.”

It was their case that the amount under law reform should have been reduced from the total to avoid being a double award.
On the aspect of loss of dependency, everything was on the table except the dependency ratio. It was their case that a finding of Ksh 30,000/= as the Multiplicand was erroneous as there was no prove of income. They should have used a minimum wage. They placed reliance on the case of in Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, it 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.”

The stated that the Multiplier of 25 years was excessive and did not consider vicissitudes of life of the deceased and other factors. They relied on the case of Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] eKLR, where the court, Edward M. Muriithi held as doth: -

“Formula for calculation of dependency

17. Both parties agree as to the formula for computation of dependency as observed by Ringera, J. as he then was in Beatrice Wangui Thairu case, supra. Indeed, Ringera J’s observation was based on the principles for assessment of dependency in Kenya developed in the 1957 case of Peggy Frances Hayes and Others v. Chunibhai J. Patel and Another cited by the Court of Appeal for Eastern Africa in Radhakrishen M. Khemaney v. Mrs Lachaba Murlidhar (1958) E.A. 268, 269 (per Air Owen Corrie Ag. JA with whom Briggs, V-P and Forbes, JA agreed) as follows:

“I have no doubt as to the principles which are to be applied to this appeal. In Civil Case No. 173 of 1956, delivered on March 26, 1957, in the Supreme Court of Kenya in an action brought by Peggy Prances Hayes and others against Chunibhai J. Patel and another, the principles applied by the learned chief justice, as he then was, were as follows:

"The court should find the age and expectation of working life of the deceased, and consider the wages and expectations of the deceased (ie. his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years' purchase. The multiplier will bear a relation to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for the possibility or probability of the re-marriage of the widow and, in certain cases, of the acceleration of the receipt by the widow of what her husband left her as a result of his premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum the court should apportion among the various dependants."

Upon an appeal against this judgment this court held ([1957] RA. 748 (C.A.):

"That the method of assessment of damages adopted by the learned chief justice was correct."”

18. Simply, the formula for dependency, therefore, is the multiplicand, that is the annual net income multiplied by a suitable multiplier of expected working life lost by the deceased by the premature death, and further by a factor of the dependency ratio, that is the ratio of the deceased’s income utilized on her dependants.

They prayed for the court to use the figure of Ksh 13,572.90 to get 814,380 as damages for loss of dependency.
The last aspect was special damages. The Appellant stated that the estate did no lose as the same were raised by a committee. They relied on the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, where the court of Appeal (Omolo, Tunoi & Githinji, JJ.A.) as then they were stated as doth: -

“We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. In this case, we think the Shs.117,325/= awarded by the learned trial Judge as “funeral expenses and other expenses” were wholly unreasonable in the circumstances and we note that the respondent did not give a complete break-down of what he spent the money on. We accordingly reduce that figure to Shs.60,000/= which is just above half of the sum claimed. We, however, must not be understood to be laying down any law that in subsequent cases, Shs.60,000/= must be given as the reasonable funeral and other expenses. Those items are and must remain subject to proof in each and every case and the Shs.60,000/= we have awarded herein apply strictly to the circumstances of this case.”

They urged me to allow the Appeal with costs.
On the other hand the respondent filed submissions dated 30/8/2023. They stating that a consent was adopted on 19/4/2023 as a condition for stay. It was this are admission on whether the award is high, the they state that this Appellant is not opposed to award but what’s the award substituted. They relied on the case of Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) vs Kiarie Shoe Stores Limited [2015] eKLR.
The respondent submitted stated that the appellant agreed to pay 1.500,000/= as security and as such they admit the said amount as due. They state no basis for this assertion which is at best ignored. Conditions for stay pending appeal have nothing to do with merit of the Appeal. I do not find any necessity of addressing such submissions on issues which clearly ignore logic.
On the dependency ratio, the Respondent ratio they posited that the court was correct and cannot be faulted as all the elements were proved.
On multiplier 25 years are sufficient. The deceased could have worked up to 70 years. They state that as an African Man he could eventually have named and his children could have depended one line.
On multiplicand, that stated that the deceased was a casual labour earning Kshs 10,000/= per month, they suggested that a minimum wage of Kshs 13,572.90 does not apply.
They stated that in the same notice supervisory duties provided for 30,627.40. He was not a gate opener, cleaner or dish washer. On special damages they stated that Kshs. 200,000/= reasonable. The body was transported to Nakuru. They stated that no evidence to warrant setting aside.

Analysis

This is a fairly straight forward appeal in liability and quantum. The court shall deal with liability and reform loss of dependency and special damages.

Liability

The Appellant’s witness did not tender Evidence. They had a special knowledge on how the accident occurred it means that by failing to challenge the respondent’s evidence, that evidence is unopposed. It does not mean it is cogent. It only means that the court could not apportion liability in the absence of rebuttal evidence.
The particulars of contributory negligence become Just particulars. Parties must know that however beautifully written submissions are not evidence. Beautiful submissions remain that submissions they do not replace testimony. There is always temptation by defence, when the evidence of the Plaintiff appears weak, notto testify. The folly of doing so changes the dynamics drastically.
The court then is bound to find either 100% liable. In Republic vs. Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another [2014] Korir, J. stated:

“The Applicant, the respondents and the interested party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored.”

Having no defence evidence, means the court has only one duty to find whether the plaintiff is have proved his case or not there is no middle ground. The duty to negligence is on the party alleging. Therefore, whereas the respondent led a primary duty to proof negligence, the respondent had a duty to prove contributory negligence. They gave up on contributory negligence by failing to testify. Unless such negligence is admitted, the Respondent is under no duty to disprove contributory negligence.
The question therefore is whether the respondent proved negligence to the required standards, even in formal proof, the duty of proof negligence stands.in the case of Josphat Muthuri Kinyua & 5 others v Fabiano Kamanga M’etirikia [2021] eKLR, justice Edward Muriithi, stated as follows: -

“The term formal proof has been considered by Emukule J in Samson S. Maitai & Another v African Safari Club Ltd & Another [2010] eKLR and approved by Havelock J in Rosaline Mary Kahumu v National Bank of Kenya Ltd [2014] eKLR as follows: -

In the present circumstances however, the Defence was struck out and thus the Defendant does not have the opportunity or privilege to present its evidence and argument. In light of the absence of a Defence on the file, it follows logically, that the matter would proceed to formal proof. What therefore is hearing by formal proof? In the case of Samson S. Maitai & Another v African Safari Club Ltd & Another [2010] eKLR, Emukule, J observed thus;

“……. I have not seen judicial definition of the phrase "Formal Proof". "Formal" in its ordinary Dictionary meanings - refers to being "methodical" according to rules (of evidence). On the other hand according to Halsbury's Laws of England, Vol. 15, para, 260, "proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”

8. Can hearing therefore, by formal proof, be similar to a full hearing? According to the observations of Emukule, J, in a formal hearing, all rules of evidence and procedure are observed and the party to a suit has to adduce evidence sufficient to sustain the suit. In adducing this evidence, the party has to raise a presumption that whatever is claimed is true and this therefore goes to the merits of the case. The Court considering a full hearing, to determine the matter based on the evidence that is presented before it by parties. In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.”

PW1 confirmed that and an official report of accident was made. There were two 2 people involved in the said accident and who knew what transpired, that is the deceased and the driver of the said motor vehicle. The deceased could not testify as dead man tell no tales. The police officer testified on the cause of the accident.
That evidence remained unrebutted. Instead the Appellant was questioning the evidence of PW1, the police officer. The driver could easily have rebutted that evidence. There was no point raising the question of the investigating officer when there is no fraud pleaded in the procuring of the police abstract.
The non-attendance of the investigating officer is irrelevant as there are no pleadings that the records were tampered with. The evidence from the police records remains the best evidence available. The evidence becomes unrebutted means that it is unchallenged. The deceased was hit off road. A vehicle properly driven does not veer off the road. A person who had an explanation does not give the same. This court had no option other than to find 100% liability. The Court of Appeal, in the case of Margaret Waithera Maina v Michael K. Kimaru [2017] eKLR (WAKI, NAMBUYE & KIAGE, JJ. A) held as follows on res ipsa loquitur:

“Firstly, it is doubtful whether it is a doctrine, a maxim or a principle of law. Its literal meaning is that “the thing speaks for itself”. It is said to be a mechanism whereby the claimant can be relieved of the burden of proving the negligence, and the court can infer negligence in those situations where the factual circumstances of the case would make proving it almost impossible. In the text book Charlesworth & Percy on Negligence, 12th edition, appears this passage:

“Although use of the maxim is periodically discouraged, it is so well entrenched that it may take some time to dislodge entirely. However, it has never been correct to describe it in terms of doctrine:

I think that it is no more than an exotic although convenient, phrase to describe what is in essence no more than a common-sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances.

The question whether to apply the maxim has usually arisen where the claimant is able to prove the happening of an accident but little else. He might well be unable to prove the precise act or omission of the defendant which caused an accident to occur, but if on the evidence it is more likely than not that its effective cause was some act or omission of the defendant, which would constitute a failure to take reasonable care for his safety, then in the absence of some plausible explanation consistent with an absence of negligence, the claim would succeed.”

The same sentiments were expressed by Hobhouse L.J. in the case of Ratcliffe v. Plymouth & Tobay HA 1998 PIQR 170:
“.......the expression res ipsa loquitur should be dropped from the litigator's vocabulary and replaced by the phase 'a prima facie case'. Res ipsa loquitur is not a principle of law: it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case has been made out.”
Secondly, it does not have to be pleaded, as erroneously held by the High Court in this case. This Court so stated in the case of Nandwa vs. Kenya Kazi Ltd, Civil Appeal No. 91/1987 for the reason that evidence is not to be pleaded. Also see Bennet v Chemical Construction (GB) Ltd 3 All ER 822 where the Court emphasized that:
“It is not necessary to plead the doctrine; it is enough to prove the facts which make it applicable”
Whether it be referred to as a maxim, doctrine, principle or merely a rule of evidence affecting the onus of proof, it is our conclusion, in view of the learning cited above, that it was unnecessary to apply it in this matter since the negligence of the respondent’s driver was proved on a balance of probability.”
Consequently, this appeal on liability is consequently dismissed in limine.
On issue raised as to the damages under Law reforms, it appears to be a question that does not want to be laid to rest. The law reforms Act envisaged a scenario where damages where Law reforms are paid pronto. The same were to act like damages under the workmen compensation (now repealed where payments were made before liability is determined. Thereafter, once damages under Fatal Accident Act are awarded, the same are taken into consideration. It is not am mathematical question.
The correct position is that damages under law reform are paid in reduction of as opposed in reduction from. The reduction from is not called from. It basically means thatwhile awarding damages under the law reform, te court should be allvie to the fact that damages have also been given under the other Act.
In the case of Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [supra], an authority referred to by the Appellant for other points, justice Edward Muriithi stated as doth: -

“14. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (No. 2) [1987] KLR 30 has guided that what the court is required to do is to take into account the award under Law Reform Act and not necessarily to deduct the same from the award under the Fatal Accidents Act, as follows:

“6. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.

7. The Law Reform Act (cap 26) section 2(5) provides that the rights conferred by or for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.

8. The words "to be taken into account" and "to be deducted" are two different things. The words used 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.”

I therefore do not find the appeal on a genuine question. I dismiss the said ground.
Thirdly, on special damages, the court awarded 200,000 as special damages. The amount was under various limbs. However special damages must be particularized and strictly proved. I will address the only exception shortly. In the case of DAVID BAGINE vs MARTIN BUNDI [1997] eKLR, the court of Appeal stated as follows: -

" It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:

“Plaintiffs must understand that if they bring actions for damages it is for thm to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"

Parties must prove damages. On occasions the court have a relaxed rule regarding funeral expenses. The same must however be reasonable. Special damages in this case were divided into 2. The funeral expenses and other special damages. The Respondent pleaded 80,000/= as funeral expenses and Ksh 20,000/= as special damages. A receipt for Ksh 20,000 was not produced. It is unnecessary to go into whether this was payable. Under special dames only receipt of 550 was produced and proved. I will therefore set aside the award of 20,000/= as instruction fees.
On funeral expenses, a receipt and Invoices related to 34,000/= for the hearse Kshs. 8,000/= for mortuary fees were produced making a total of 42,000/=.I am aware of financial expenses must have been incurred. Attempts must be taken to particularize the loses. The amount of special damages were left at. It is my considered view that whereas funeral expenses have a relaxed status, they need to be reasonable and a reasonable indication ought to be given.
A sum of 42,000/= was proved as part of the funeral expenses. An award of Kshs 200,000 is on the higher side. It is not supported by evidence. I note that a reasonable quantum of Ksh 50,000/= all totaling to Ksh 92,550. This is the amount that was proved. The award is therefore set aside and substituted with a sum of Ksh.92,550/=
The last aspect is the loss of dependency the court awarded a sum of khs 3,000,000. Both parties were wrong on the assumptions made. The Respondent correctly pointed that the deceased was single and could marry one day. Therefore, there was no loss to the future wife and future children since they never existed. near cause to be one wife and children did not lose as they were non-existed.
The dependency is affected not only by the age of the deceased but by the age of the dependants, also. The father and mother were from no 1960 and 1961. They were 60 and 61 years old If they were to depend on the deceased for 25 years that will be upto 85 and 86 years respectfully. A multiplier of 15 years as suggested by the Appellant is more reasonable, though an award of 17 years will be more ideal.this takes into consideration the age of the deceased, vicissitudes of life and the age of the dependants.
Further, the court used a sum of 30,000 was proved multiplicand. This was not borne out of he pleadings and evidence. The letter from the employer was scant. Given that this was a casual employee, then a minimum wage could have serviced.
The death certificate indicated deceased had no occupation. He lied at industrial area. He could be said to be an artisan. He fell under column for a mount of kshs 18,319.50 would have been sufficient.
The dependency Ratio of 1/3 was not contested. This works out as follows:
1. Ksh. 18,319.50 x 1/3 x 12 x 17 = Ksh. 1,245,708
I therefore set aside the award of Ksh 3,000,0000 for loss of dependency. This works only as follows:
1. Liability 100%
2. General Damages – loss of dependency Ksh.1,245,708.
3. General damages Law reform – Ksh. 100,000
4. Pain and suffering 10,000/=
5. Special damages and funeral expenses 92,550.
6. Total 1,448,250
7. Costs of the suit in the court below
8. As for this matter this is a mixed outcome. Consequently, each part should bear their costs.

Determination

The upshot of the foregoing is that I make the following orders:
Appeal on liability is dismissed.
Appeal on law reforms and reduction thereof is dismissed.
Appeal on special damages is located partly by setting aside an award of 200,000/= and in lieu thereof entering judgement on special damages for kshs 92,250/=.
General damages for loss of dependency is set aside and in lieu thereof I enter Judgement for Kshs 1,245,708.
The respondent to have costs in the court below.
Each party to bear their own costs for this matter.
Interest on special from the date of filing suit in the lower court to date of payment.
Interest on general damages from this date of Judgement in the lower court till this date of payment.
The file is closed.

DELIVERED, DATED and SIGNED at Nairobi, Virtually on this 12^th day of April 2024. Judgment delivered through Microsoft Teams Online Platform.

In the presence of: -

Ms Olung’a for the Appellant

Ms Faith Ndegwa for the Respondent

Court Assistant – Michael