Mombasa Maize millers limited VS Charo Kombe Nzai AND Jumwa Katana Msanzu(suing as the legal representatives of the Estate of Patrick Jefwa Kaviha)

1. The Appeal herein arises from the judgment delivered in Malindi CM Civil Case No. E4 of 2022, instituted by which the Respondents herein as legal representatives of the estate of Patrick Jefwa Kaviha (the deceased) by way of a plaint dated 13.1.22 against the Appellant, under the Fatal Accidents Act and the Law Reform Act on their own behalf and on behalf of the deceased’s dependents. They claimed both general and special damages arising from a road traffic accident. The Respondents’ case was that on 1.8.22 at around 1315 hours, the deceased was lawfully on-board motorcycle registration number KMFA 494A along Malindi-Tsavo Road, at Jilore area, when the Respondent’s driver so negligently, recklessly and carelessly drove motor vehicle registration number KCD 269U that he caused it to knock the said motorcycle, as a result of which the deceased sustained fatal injuries.
2. The Appellant opposed the plaint vide a statement of defence dated 14.6.22 asserting that the accident was caused or substantially contributed to by the negligence and recklessness of the rider of the motorcycle.
3. By consent of the parties on 6.7.22, liability was set at 75% in favour of the Respondents which the trial court adopted. In the impugned judgment delivered on 13.1.23, the learned Magistrate awarded the Respondents the following sums:

Liability against the Appellant   75%

Pain & suffering      Kshs.       75,000/=

Loss of life     Kshs.     200,000/=

Loss of dependency    Kshs.  1,900,080/=

Funeral expenses     Kshs.       50,000/=

Special damages     Kshs.     165,000/=

Costs and interest at court rate from the date of filing.

1. Being aggrieved by the quantum of damages, the Appellant preferred the Appeal herein, the summarized grounds of which are that the learned Magistrate erred in fact and in law by:
2. finding that the deceased died at the age of 18 years and not 17 years, contrary to the pleadings and evidence.
3. adopting a multiplier approach as opposed to the global approach.
4. awarding damages using proof of earnings but finding that the deceased was a student.
5. adopting a multiplier of 35years which was not reasonable in the circumstances.
6. applying the minimum wage of KShs.13,572/- per month for a casual using the Regulations of Wages (Agricultural Industry) when the minimum wage as per the (Amendment) Order 2018 is KShs.6,736/90 per month.
7. determining that the deceased did not die on the spot when all evidence points to the Deceased having died instantly and awarding the sum of KShs.75,000/-as pain and suffering as a result.
8. using the wrong principles to award KShs.200,000/- for loss of expectation of life.
9. determining quantum against the weight of the evidence, the written submissions and the authorities filed by the Appellant.
10. finding that the special damages of KShs.165,000/-was specifically pleaded and proved by the Respondents.
11. awarding damages of Kenya KShs.1,900,080/=.
12. separating the head of special damages from funeral expenses of KShs.50,000/-, thus awarding the sum pleaded twice.
13. awarding loss of expectation of life and loss of dependency thereby allowing the estate to gain twice.
14. The Appellant prayed that the appeal be allowed and that part of the judgment delivered on 13.2.23 be set aside and/or varied as this Court may deem fit.
15. I have re-examined the entire record and given due consideration to the submissions by the parties’ respective counsel. This being a first appeal, the Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusion. However the Court must make due allowance with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle and another –vs- Associated Motor Boat Company Ltd.& Others (1968) EA 123 by Sir Clement De Lestang, V. P. as follows:

An appeal to this court from a trial by the High 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 made due allowance in this respect.  

1. In its submissions, the Appellant collapsed the grounds and confined its arguments to the awards of Kshs. 1,900,080/= for general damages and Kshs. 165,000/= for special damages. 
2. On pain and suffering, the Appellant submitted that the deceased died about 12 hours after the accident and faulted the learned Magistrate for awarding the sum of Kshs. 75,000/= without any supporting reasoning yet the. It was submitted that an award of Kshs. 30,000/= would have been fair in the circumstances. For the Respondent, it was submitted that the deceased died the day after the accident while undergoing treatment.
3. In her judgment, the trial Magistrate awarded the sum of Kshs. 75,000/= for pain and suffering noting that the deceased succumbed to the injuries approximately 12 hours after the accident. The learned Magistrate in making the award, she was guided by the holding in Mercy Muriuki & another v Samuel Mwangi Nduati & Anor (Suing as the Legal Administrators of the Estate of the late Robert Mwangi) [2019] eKLR. In this case, Muchemi, J. stated:

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.

1. In the cited case, the deceased died instantly and the court awarded Kshs. 10,000/=. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where the deceased died the day after the accident, Chemitei, J. found that an award of Kshs. 10,000/= was excessively low and proceeded to award the sum of Kshs. 30,000/=.
2. From the cited authorities, including that relied upon by the learned Magistrate, the generally accepted principle is that very nominal damages will be awarded for pain and suffering where death occurs immediately after the accident. 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. In the present case, the accident took place on 1.8.2020 at 1315 hours. PW1, the deceased’s father stated that the deceased died on the day of the accident at midnight. The exhibited death certificate indicates that the deceased died on 2.8.24. Whether the deceased died 12 hours after the accident or the following day, the award of Kshs. 75,000/= does not appear to be supported by case law and is in my view excessive. An award of Kshs. 30,000/= is more within the range as stipulated in the cited authorities.  
3. On loss of expectation of life, the Appellant faulted the learned Magistrate for awarding the sum of Kshs. 200,000/= when the sum of Kshs. 100,000/= could have been sufficient compensation. For the Respondent, it was submitted that the trial court’s finding was well reasoned especially noting that the deceased was a minor with high expectation of life.
4. In the case of Daniel Kuria Nganga v Nairobi City Council {2013] eKLR, Ougo, J awarded that sum of 300,000/- for loss of expectation of life in respect of the deceased therein who died at the age of 14 years.  In the case of E M K & another v E O O [2018] eKLR Nyamweya, J. (as she then was) awarded the sum of Kshs. 100,000/= under this head for a deceased who died at the age of 51 years.  
5. It has been stated again and again by our superior courts that the generally accepted principle is that very nominal damages will be awarded for loss of expectation of life, the conventional award being Kshs 100,000/-.  In the oft cited case of Benham vs Gambling, (1941) AC 157 the reason for moderate awards for loss of expectation of life was stated as follows:

In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.

1. In the impugned judgment, the trial Magistrate awarded the sum of Kshs. 200,000/=. No basis was however given by the Court for departing from the generally accepted principle. I accordingly find that an award of Kshs. 100,000/= under this head is adequate.
2. I now turn to claim for lost years. The Appellant faulted the trial Magistrate for using the multiplier approach rather than the global sum approach. It was contended that there was no evidence that the deceased who was 17 years old was or had been in school. Further, that no evidence was tendered to assess his potential, level of capabilities, future prospects or career path. The Appellant thus urged that the Court to award the sum of Kshs. 450,000/= under this head. The Appellant went on to submit that if the Court were inclined to adopt the multiplier approach, then a multiplier of 27 years ought to be used and applied to the basic minimum monthly wage applicable to Malindi, under the Regulation of Wages (General)(Amendment) Order, 2018 being Kshs. 7240/95. Reliance was placed on the case of CWW (Suing as personal representative of the estate of PWK v Mark Kahenya & another [2020] eKLR.
3. For the Respondents, it was submitted that the trial Court’s finding was sound and urged the Court to uphold the same. Further that the global sum proposed by the Appellant was too low. The Respondents urged that should the Court adopt the global approach, then it should consider the case of Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR, where Odunga, J. (as he then was) upheld a global award of Kshs. 1,500,000/= in respect of a deceased who died at the age of 16 year old. They further cited the case of Makueni Courts Ltd & another v Felistus Kanini Ndunda (Suing as the legal representatives of the estate of Eric Mutuku) [2020] eKLR where the deceased was a 12 year old minor. Ong’udi, J. awarded Kshs. 1,800,000/= for loss of dependency.
4. In its judgment, the trial Court was guided by the holding in the CWW case (supra)  where Kemei, J. stated:

21.  I am constrained not to use the global approach as a carte blanche to escape from reasoned analysis of the evidence. From the evidence on record, it is possible on a balance of probabilities to elicit the inconvenience, the loss that the appellant suffered as a result of the death of the deceased and it would occasion injustice if this court were to use the global approach in awarding damages in the instant case. This being my finding, I shall use the multiplier approach to assess damages and proceed to analyze the award for loss of dependency. 

1. In the present case, it is not disputed that the deceased was a 17 year old minor at the time of his demise. Although the death certificate indicates that the deceased was a student, no evidence was tendered to show where he went to school or the class he was in. Additionally, no evidence was tendered as to his performance in school, his potential as well as future prospects or career path. Without such evidence, I find that adopting a global approach would be more appropriate. In this regard I associate with Koome, J. (as she then was) who in the case of Albert Odawa V Gichimu Gichenji [2007] eKLR, stated:

The plaintiff in his evidence did not even suggest that the deceased was in employment and in the absence of the evidence of income; a global award for the loss of dependency should have been adopted by the trial court.  This is in accordance with the principles articulated in the case of Mwanzia Vs Ngalali Mutua Vs Kenya Bus Services (Msa) Ltd & Another  where Ringera J (as then was) expressed himself thus;

“The multiplier approach is just a method of assessing damages.  It is not a principle of law 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 the age of the deceased, the amount of annual or monthly dependancy, and the expected length of the dependancy are known or are knowable without undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

1. In light of the age of the deceased and the failure by the Respondents to provide any evidence that would have aided the court is assessing damages, I find that this was a proper case for the court to have awarded a global sum. In the premises and considering the awards in the cited cases for loss of dependency, my considered view is that a global award of Kshs.1,900,000/= is fair compensation.
2. I now turn to the challenge to the award on special damages. The Appellant contended that the Respondents only produced receipts for Kshs. 15,550/= and that this is the amount awardable. For their part, the Respondents submitted that they produced receipts for Kshs. 550/= for copy of records and for Kshs. 65,000/= in respect of legal expenses for grant of letters of administration. Further that they pleaded funeral expenses which are justified in spite of there being no receipts produced. 
3. In the judgment, the trial Magistrate noted that the Respondents had pleaded Kshs. 100,000/= as funeral expenses but awarded “a reasonable amount of Kshs. 50,000 for funeral expenses.” The trial Magistrate went on to state that the Respondents produced receipts in support of the claim for special damages amounting to Kshs. 165,000/= and awarded the same.
4. It is well settled that for special damages to be awarded, they must be specifically pleaded and also strictly proved.  In the case of Maritim & Another –v- Anjere (1990-1994) EA 312 at 316, the Court of Appeal held as follows:

It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.

1. In their plaint, the Respondents specifically pleaded both special damages and burial expenses.  I have carefully perused the record. The only receipts I see are for Kshs. 550/= from NTSA in respect of the vehicle search. Kshs. 15,000/= and 50,000/= for legal fees for obtaining limited and full grants of letters of administration. These amount to a total of Kshs. 65,550/=. It is therefore not clear the basis upon which the trial Magistrate arrived at the sum of Kshs. 165,000/=. 
2. As regards funeral expenses, it is now well settled that due to their nature, burial expenses need not be proved as special damages. In the case of Premier Diary Limited v Amarjit Singh Sagoo & another [2013] eKLR, the Court of Appeal had this to say on burial expenses.

We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated.  In fact we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to a bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved.   The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs. 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses.  We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages. 

1. The Court notes that in its submissions, the Appellant did not address the award on funeral expenses. I find that the trial Court’s award of Kshs. 50,000/= in the absence of receipts to be reasonable. 
2. The upshot is that the Appeal partially succeeds. The learned Magistrate’s award on loss of life, lost years and special damages are hereby set aside. This Court hereby enters judgment as follows:

Pain and suffering Kshs.       30,000/=

Loss of life  Kshs.     100,000/=

Loss of dependency  Kshs.  1,900,000/=

Special damages  Kshs.       65,550/=

Liability and all other awards remain unchanged. Each party shall bear own costs.

DATED SIGNED and DELIVERED in MALINDI this 13^th day of December 2024