Vide a Plaint dated 16thApril 2021 the Respondents sued the Appellant seeking that judgment be entered for:-
- General damages under fatal accident Act and Law Reform Act
- Special damages
- Costs
- Interest on (a) & (b) above
The suit herein arose out of a RTA which occurred along Kisii-Keroka road near Kereri Girls High School when Motor Vehicle Reg. KCD 092 H which was owned by the Appellant was driven negligently and/ or carelessly thereby allowing it to veer of its lane and it hit motor cycle Reg. KMFD268 A on which the deceased was lawfully riding on thereby occasioning fatal injuries.
According to the Plaintiffs/ Respondents the accident was caused by the owners and/ or driver of the said subject accident motor vehicle and should be held jointly, severally and vicariously liable as the driver was driving in the course of and within the scope of such engagement and/ or employment.
The Appellant vide statement of Defense dated 3rd July 2021 opposed the claim and sought that the same be dismissed.
Having considered the evidence and submissions of respective parties the Trial Magistrate entered judgment for the 1st Respondent in the following terms:-
Liability apportioned between the subject motor vehicle and the deceased in the ratio of 70:30 as against the Appellant and the deceased respectively
The Trial Magistrate opined that dependency ratio of 1/3 would suffice since there was proof the deceased was a wife and had children. She also was of the view that a multiplier of 24 years was reasonable as the deceased was 36 years and retirement age was 60 years.
- General damages for loss of dependency was therefore calculated at Kshs. 3360000/=
- Pain and suffering was quantified at Kshs. 50,000/=
- Loss of expectation of life –Kshs. 150,000/=
- Special damages-Kshs. 130,550/=
The Appellant was aggrieved by the judgement of the Trial Magistrate and it lodged the appeal herein vide Memorandum of Appeal dated 9th May 2024 0n the following grounds:-
1. The Learned Trial Magistrate grossly misdirected herself in treating the principles applicable in awarding quantum before him superficially and consequently coming to a wrong conclusion on the same.
2. The Learned Trial Magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the Appellants
3. The Learned Trial Magistrate proceeded on the wrong principles when assessing the damages to be awarded to the Respondent (if any ) and failed to apply precedents and tenets of law applicable.
4. The Learned Trial Magistrate erred in awarding a sum in respect of damages which was an inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the Respondent’s claim.
5. The Learned Trial Magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision that was unsustainable in law.
Reason wherefore the Appellant prays that the appeal be allowed with costs and that the judgment of the Learned Trial Magistrate be set aside with costs.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 16th October 2024 and are to the effect that the deceased died on 3rd January 2021 and that Kshs. 20,000/= for pain and suffering will suffice. The Appellant relied on the holding in Sulenta Sita vs Jeremiah Ruto (2017) Eklr where the court awarded Kshs. 10,000/= for pain and suffering where the deceased died a day after the accident.
For loss of expectation of life the Appellant proposed an award of Kshs. 50,000/= for reasons that the deceased died 2 days after the accident. They cited the decision in Godana Guyo Halake & Another vs Patrick Ndeli Ndoli & Another (2017) where the court awarded Kshs. 70,000/= for loss of expectation of life for the deceased who died at the age of 35 years.
For loss of dependency the Appellant urged the court to adopt a multiplier of 8 years as it could not be guaranteed that the deceased could have lived to the age of retirement of 60 years due to vagaries of life. The case of Boniface Ndega vs AG was relied upon where the court applied multiplier of 12 years.
In regard to multiplicand the Appellant faulted the Trial Magistrate for relying on the pleading that the deceased was earning Kshs. 35,000/= when no evidence like pay slip or proof of payment of taxes was adduced by the Respondent. They proposed that the court awards the minimum wage of Kshs. 5,744.20 for unskilled laborer as at 3rd January 2021 when the deceased died as per Legal Notice No. 117 of 2015.
On dependency ratio the Appellant was agreeable with the Trial Court’s verdict that 1/3 was sufficient and worked out loss of dependency as follows;-
5,744.20x12monthsx8 years x1/3 =
On special damages the Appellant argued that special damages must not only be pleaded but also proved pursuant to Order 4 Rule 6 of the Civil Procedure Rules 2010. The Appellant questioned the authenticity of receipt for catering Ex 9 for Kshs.30000/=as it had no signature or stamp and therefore of no evidential value. It was also submitted that the receipt was not generated electronically. The Appellant also doubted the receipts at pages 26 to 29 of the ROA for same reasons that they were not authentic and urged that they should not be regarded as proof of special damages.
The Respondent’s Submissions are dated 31st January 2025 and are to the effect that the lower court made an award that was not so colossal vis a vis the fatal injuries sustained and the same should be upheld as the Trial Court heard the evidence and tasted the demeanor of the witnesses before awarding the damages. The Respondent contended that the awards were fair and reasonable and devoid of significant deviations that can be deemed to have been exaggerated
On the Appellant’s submissions regarding funeral expenses it was argued that the receipts in respect thereof were already produced and with or without the receipts the courts have always observed that funeral expenses should generally be perceived to have been incurred hence no vacuum on that vote head.
The Respondent argued that the Appellant did not challenge the receipts produced to prove special damages pleaded and the court should uphold the decision of the Trial Court as it is an exercise of discretion and the appellate court should be slow to reverse the same on question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has made a wholly erroneous estimate of the damage suffered.
The Respondent urged that the appeal be dismissed.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...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 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are :-
1.whether the Learned Trial Magistrate grossly misdirected herself in treating the principles applicable in awarding quantum before her superficially and consequently coming to a wrong conclusion on the same.
2. Whether the Learned Trial Magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the Appellants
3. Whether the Learned Trial Magistrate proceeded on the wrong principles when assessing the damages to be awarded to the Respondent (if any ) and failed to apply precedents and tenets of law applicable.
4. Whether the Learned Trial Magistrate erred in awarding a sum in respect of damages which was inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the Respondent’s claim.
5. Whether the Learned Trial Magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision that was unsustainable in law.
Although the appellate court is mandated to review and reverse the findings or verdict of the lower court, it must exercise its jurisdiction with caution. In Ephantus Mwangi and Geofrey Nguyo Ngatia V Duncan Mwangi Wambugu (1982 – 88)I KAR-278 it was held that as a general rule, an appellate court should not interfere with the findings or decision of a lower court unless it is demonstrated that in reaching its decision, the lower court made an error of law or took into account irrelevant considerations or that the court based its decision on no evidence or a misrepresentation of the evidence.
The Appellant basically faulted the Trial Magistrate in the award of damages in the different vote heads. The award of damages is always at the discretion of the trial court. However, In Mariga V Musila (1984) KLR 251, the Court of Appeal in discussing this principle held that an appellate court can still interfere with the award if it is proved that the trial court in assessing the damages acted on wrong legal principles; took into account irrelevant factors or omitted to consider relevant factors or that the damages were either inordinately high or low as to lead to a reasonable inference that it was an erroneous estimate of the damage suffered.
I have carefully considered the pleadings; the evidence on record relevant to the issue of assessment of damages; the grounds of appeal; the judgment of the trial court and the submissions by counsel on record. The accident that led to the suit herein claimed the life of 36 years old woman and her estate was entitled to be compensated under the Law Reform Act and her dependants also had a right to be compensated under the Fatal Accidents Act.
Under the Law Reform Act the estate of the deceased the estate of the deceased is to be awarded general damages for pain and suffering, loss of expectation of life and funeral expenses. On the other hand the dependants of the deceased are also supposed to be awarded with damages for loss of dependency.
The Appellant disputed the award made to the Respondent for pain and suffering and loss of expectation of life. They proposed an award of Kshs. 20,000/= for pain and suffering and Kshs. 50,000/= for loss of expectation of life and relied on an authority where the accident occurred on 22/10/2002 and the suit in the trial court was determined on 26/08/2011 and appeal determined on 31/01/2017. With all due respect the two authorities are distinguishable on account of time and inflationary factors. The accident giving rise to the suit herein occurred on 31st December 2020 over 18 years apart and the deceased in the said authority having been a minor the 2 are not comparable in the circumstances. This court is therefore not able to fault the trial court in making the said awards as it is clear that the learned trial magistrate properly addressed her mind to the legal principles applicable to the award of damages on those heads and the awards made in previous cases as well as on the evidence on record. In the circumstances I uphold the said awards.
Regarding damages for loss of dependency, the Appellants faulted the Learned Trial Magistrate for awarding the sum of Kshs. 3,360,000/= for reasons that consideration of the vagaries of life were not factored in the assessment. It was argued that there was no certainty that she would have lived to attain the age of 60 years. The court was urged to adopt a multiplier of 8 years and the authority in Bonface Ndega vs AG was relied on where 12 years was adopted as multiplier.
Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed Vs Kayuma Mvurya & Another [2017] eKLR as follows:-
“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”
The deceased herein was 36 years old at the time she met her death in RTA and evidence was adduced to prove she was employed at Isana Nursing Home and earning Kshs. 35,000/=. The Appellant did not rebut the evidence that the deceased was employed and was earning the amount shown in Ex P 7 and the Trial Magistrate properly relied on the said figure as multiplicand. Even if the deceased was not in formal employment the Regulation of Wages (General) (Amendment) Orders 2015 is no longer in operation and therefore too low in the circumstances. The Government Minimum Wages Guidelines for the period July 2018 would have been applicable if it was rebutted that the deceased was not earning the salary indicated in the letter produced from the Nursing Home.
In the case of Jacob Ayiga Maruja [2005] Eklr (Musinga J. as he then was) held that there are now many ways that may show a deceased’s earnings in the absence of production of a pay slip or a bank account or other document.
Concerning multiplier the Appellant suggested 8 years and faulted the Trial Magistrate for applying 24 years. I do agree with the Appellant that in ascertaining multiplier the Trial Court must exercise its discretion judiciously and consideration must be had to the uncertainties unpredictability and vagaries of life. In that regard although the retirement age in Kenya is 60 years an allowance must be made to take care of the uncertainties.
In consideration of authorities such as Simon Karanja Mirungu v Zacharia Nyambura Karanja[2017] Eklr and Sidi Kazungu Gohu v Fatuma Abdi Mohamed& Another [2021]Eklr where the deceased died aged 34 years and a multiplier of 24 years was adopted and I am persuaded that a multiplier of 20 years would be most appropriate factoring in the vicissitudes of life.
Thus the loss of dependency would therefore be calculated as follows:-
35,000 x20 x12 x1/3=
The conclusion is that the appeal succeeds partially and the Trial Courts award on damages for loss of dependency is set aside.
The final orders of this court are as follows:-
Pain and suffering Kshs. 50,000/=
Loss of expectation of life –Kshs. 150,000/=
Special damages-Kshs. 130,550/=
Loss of Dependency 35,000 x 20 x 12 x 1/3=2,800,000
Total =3,130,550/=
Less 30%=939,165/=
70% =2,191,385/=
Special damages shall attract interest at court rates from the date of filing suit while other awards under general damages shall attract interest from date of judgment.
Each party to bear their own costs of the appeal.
Delivered dated and signed at Migori this 20TH day of March, 2025