2. It was the plaintiff’s case that the Appellant’s driver/servant/agent drove motor vehicle KBU 873S ZE 2497 so negligently on the material day that it lost control and hit motor vehicle KCC 681Y which was being driven by the deceased and as a result, the deceased sustained fatal injuries.
3. The Defendant/Appellant filed a statement of defence where it denied each and every allegation of fact in the plaint and called for strict proof of the claim. It averred that if at all an accident happened on the material day as claimed; it was wholly and or substantially contributed to by the driver of motor vehicle KCC 681Y.
4. After the preliminaries; the matter proceeded for hearing and the learned trial magistrate delivered judgment holding the Appellant 100% liable and assessed damages as follows;
Pain & suffering………………………….kshs 100,000/=
Loss of expectation of life………………kshs 100,000/=
Loss of dependency…………………...kshs 9,857,200/=
Special damages……………………….kshs 231,075/=
Total kshs 10,078, 275/=
5. Aggrieved by the award, the Appellant filed this appeal and listed 9 grounds as follows;
a) That the learned trial magistrate erred in law and fact in finding the defendant wholly liable for the alleged accident by totally ignoring the evidence on record.
b) That the learned trial magistrate erred in law and fact by ignoring the defendant’s submissions on the issue of liability and quantum thus arriving at a wrong decision on the same.
c) That the learned trial magistrate erred in law and fact in awarding the Respondent kshs 9,847,000 damage for loss of dependency, which award was too erroneous in the circumstances as to amount to an erroneous estimate of the same.
d) That the learned trial magistrate erred and misdirected himself by finding the Appellant wholly liable despite the fact that the motor vehicle registration number KCC 681Y that the deceased was driving at the material time was overloaded.
e) That the learned trial magistrate erred in law and fact in relying on the maximum number of productive working years and failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act.
f) That the learned trial magistrate erred in law and fact in failing to accord due regard to the Appellant’s submissions and authorities on quantum and failing to consider applicable principles on assessment of damages.
g) That the learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and relevant authorities on quantum cited in the written submissions presented and filed by the Appellant.
h) That the learned trial magistrate award of damages was too high and manifestly excessive as to amount to an erroneous estimate of the same.
i) That the learned trial magistrate erred in law and fact by failing to rely on the deceased’s net salary in computing damages for loss of dependency thereby arriving at an erroneous estimate of the same.
6. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions.
The Appellant’s Submissions
7. Submissions on behalf of the Appellant were filed by Githinji Mwangi & Associates Advocates. Counsel submitted that the grounds of appeal can be summarized into one issue to wit; whether the learned trial magistrate erred in both law and fact by allowing the Respondent’s case as against the Appellant on liability and quantum.
8. With regard to liability, counsel submitted that the Respondent’s account as set out in the witness statement is not sufficient to infer negligence against the Appellant. That it does not sufficiently explain how the accident occurred leading to a conclusion that the Appellant’s driver was wholly to blame.
9. He submitted that the police officer, PC Ongulu in cross examination, confirmed that he was not the investigating officer and his evidence is therefore not conclusive to paint a clear picture of how the accident occurred. That he merely testified that the driver of motor vehicle KBU 873S 2497 was charged and convicted of a traffic case and no proceedings of the traffic case were produced hence no nexus was established between the said driver and the Appellant. He contended that no evidence was led whatsoever to prove that he was the Appellant’s authorized driver. He relied on the case of Lilian Biriri & Anor. -vs- Ambrose Leamon [2016] eKLR where the Court held;
“12. I have considered the evidence by the Appellants. They did not blame the Respondent for negligence. They did not a call any evidence of how the accident occurred. They in effect did not discharge the burden of proof of the allegations they stated in their pleadings. They relied only on the Respondent’s conviction in the traffic offence and for which they produced no evidence other than a statement appearing on the police abstract. I have considered Section 47A of the Evidence Act that reads:
“A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal office shall ---- be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.”
In David Kinyanjui & 2 Others -vs- Meshack Omar Monyoro – civil Appeal No.125 of 1993 the Court of Appeal held that a conviction does not close the door to a defence on liability, as the issue of contributory negligence is open to the defendant – in a civil trial...
It is my considered view, and I agree with the Judges of Appeal in the above cases, that a conviction in a traffic court does not bar the Respondent from raising a defence on contributory negligence in a civil suit.
13. It is not clear from the scanty and one-sided evidence as to who between the two parties was to blame. The issue of contributory negligence plays itself clearly as pleaded in the Respondents defence in the trial court………….
It is also my view considered that despite the conviction of the Respondent, the deceased may have also been guilty of carelessness as was testified by the Respondent and which testimony was not challenged.
See also CA No. 85 of 2012 Kithini Titus -vs- Almidad Panel Services and Another.
14. The standard of proof in criminal cases is slightly higher than of civil cases, and in particular in traffic cases. The acquittal or conviction in a traffic case, in my considered view, cannot be a bar to a prosecution in a civil case on a claim for damages and the court is not bound to follow the investigating officers opinion in reaching its decision in a civil claim.
In Statpack Industries -vs- James Mbithi Munyao C.A No. 152 of 2003 the judge stated stated that a plaintiff must adduce evidence from which, on a balance of probability, connection between the two may be drawn. He further went on to state that not every injury is necessarily a result of someone’s negligence, that an injury perse is not sufficient to hold someone liable for the same. Just like the trial court, this court is unable to hold that the Appellants proved their case to the required standard”.
10. The appellant urged this court to set aside the Judgement of the lower Court finding the Appellant 100% liable. He submitted that in the event of a finding by this court that there was proof of negligence, then the evidence led was not sufficient to support a finding that the Appellant was 100% liable in the absence of a clear account of how the accident occurred.
11.in the alternative he urged this court to find that the deceased also contributed to the occurrence of the accident given that he was ferrying over 10 passengers in a saloon car hence the vehicle was overloaded. He submitted that liability should be apportioned equally in the ratio of 50:50.
12. With regard to quantum, he submitted that the award was excessive and should be set aside. That the deceased died on the spot and there was no evidence that he was rushed to hospital after the accident. He submitted that the awarded sum of Kshs. 100,000 is excessive and proposed a sum of Kshs 10,000 for pain and suffering. He submitted that the generally accepted principle is that very nominal damages will be awarded if the death followed immediately after the accident. He relied on James Gakinya Karienye & Another -vs- Perminus Kariuki Githinji (2015) eKLR where the court stated:
“In this case, it is not disputed that the deceased died following the fatal accident. However, the plaintiff did not state whether the deceased died instantly or after sometime. In the absence of any evidence that the deceased died long after the accident, I award the plaintiff a sum of kshs 10,000/- for pain and suffering, being a convectional figure for the death that occurred immediately after the accident, under the Law Reform Act.
13. He submitted that the award of Ksh 100,000 for loss of expectation of life is excessive and should be substituted with Kshs 80,000. He relied on Charles Masoso Barasa & Another -vs- Chepkoech Rotich & Another (2014) eKLR where the trial court awarded a sum of Kshs 80,000 to the estate of the deceased who was aged 28 years old at the time of his death and a service man at the Kenya Defence Forces. He submitted that the deceased herein was aged 26 years hence the sum of Kshs 80,000 is reasonable.
14. With regard to the award for loss of dependency, he submitted that the deceased was said to be aged 35 years of age at the time of his death and that the evidence of his wife was that the deceased was a graduate police officer earning a net salary of Kshs. 36,609. He contended that despite the evidence of the net pay of Kshs. 36,609/10, the trial Court inexplicably adopted a net pay of Kshs. 61,545. He relied on Jennifer Ngina Mulaa & Anor. (Suing as the legal representatives of the estate of the late GEORGE MULAA MASYA -vs- Kenya Airways Limited & Anor where the court adopted a net salary of Kshs. 10,739.00 for a deceased who was aged 33 years and was working as a prison warder.
15. With regard to the multiplier, he submitted that the deceased was said to be in good health but contended that he could not be immune to the imponderables, contingencies and vicissitudes of life, age limit, diseases and so on considering that he was in the security docket. He submitted that the multiplier of 20 is unreasonable and urged this court to adopt a multiplier of 15 years estimating that the deceased would have lived up to fifty (50) years.
16. With regard to the dependency ratio, he submitted that the deceased was married and had children. That the plaintiff confirmed that she is employed by the Kenya Police Service hence the children will not entirely be without a dependant. He submitted that a ratio of 1/3 is reasonable. Consequently, he proposed a dependency ration of 36,609.10x12x15x1/3 = 2,196,546.00.
17. With regard to special damages, he submitted that the plaintiff pleaded kshs 231,045/= but availed a copy of a quotation of Ksh.165,000 as opposed to a receipt. He submitted that the award proved is Ksh 77,575 and not Kshs. 231,075.
18. Finally, he urged this court to note that pursuant to Section 5 (b) (iv) of the Insurance of (Motor Vehicle Third Party Risks) Act Cap 405, the maximum payable for one claim has been capped at Kshs. 3,000,000/= and the same should be taken into account when assessing damages.
Respondent’s Submissions
19. With regard to liability, the Respondent submitted that the evidence of PW1 (herself) and PW2 was so tight and uncontroverted to warrant variation of any kind. That the Appellant’s driver was charged with an offence of causing death by dangerous driving via Makindu Traffic Case NO 1501 OF 2018. That the driver in question pleaded guilty and was fined Kshs. 80,000/= for the 1st count of causing death by dangerous driving and Kshs. 20,000/= for the 2nd count of driving under the influence of alcohol.
20. She submitted that the Appellant failed to tender any witness or adduce any evidence to mitigate their liability and hence were held 100% liable for the said accident. That from the record, the testimony was that when both vehicles reached the place where the accident occurred, it was the Appellant’s driver left its lane and hit the oncoming vehicle belonging to the Respondent.
21. That her evidence was corroborated by that of PW2 who testified that she was present and seated at the co-driver’s seat. She contended that the trial’s court decision was based on the evidence on record which remained unchallenged and uncontroverted.
22. She submitted that it was the Appellant’s driver who changed his lane and went to the Respondent’s Lane thereby causing the accident. That in any event, the Appellant’s driver was under the influence of alcohol and could not have been in a stable mind to control or comprehend his action while driving on the said road.
23. She submitted that the Appellant’s attempt to discredit her evidence for not being the Investigating Officer cannot hold any water as the actual Investigating officer had been transferred and she entirely relied on what was contained in the OB and police file.
24. She submitted that if the Appellant had not availed its driver to dispute the facts that he changed his lane and crossed to the on-coming lane, that pleaded guilty to the offences of causing death by dangerous driving and driving under the influence of alcohol.
25. With regard to quantum, she submitted that the trial court was right and justified to arrive at the award. She defended the award of kshs 100,000/= for pain and suffering and submitted that the deceased succumbed few minutes after the accident and must have undergone severe pains before the actual death. She relied on Nrb HCCC NO 1550 OF 2005 Alexander Okinda Anagwe -vs- Reuben Muriuki Kahuha where the deceased died on arrival at the hospital and was awarded Kshs 100,000/=.
26. She also defended the award of kshs Kshs 100,000/= for loss of expectation of life and relied on the case of NRB HCCC No. 1209 of 1999 Jane G. Achieng Kinda -vs- Charles Mageto where the court awarded a sum of Kshs 200,000/= for a deceased who was 50 years.
27. She submitted that the trial court was right to use Kshs. 61,545/= as the net salary after the Statutory deductions and tax and relied on Peggy Frances Hayes -vs- Chunibhal J. Patel & Another Civil Case No. 173 of 1956 in which the Chief Justice stated;
“The court should find the age and expectation of working life of the deceased, and consider the wages and expectation of the deceased, [ i.e his income less tax] and the proportion of his Net income which he would have made available for his dependants”
28. Further, she submitted that some deductions like police SACCO were not life time and the deceased was about to finish the said contribution. She placed further reliance on Kakamega HCCA No 58 of 2017; Easy Coach Bus Services & Benedictor Nyangaresi Ochi -vs- Henry Charles Tsuma & Ambose Jumbo Loka and Leonard O. Ekisa & Another -vs- Major K. Birgen [ 2005] eKLR
29. With regard to the multiplier, she submitted that the deceased was 35 years and would have worked upto retirement. That despite the maximum retirement age being 60 years, the trial court still awarded a multiplier of 20 years. She relied on Nakuru HCC NO 373 of 2008 Bendeta Wanjiku Kimani [Suing as the Administrator of the Estate of Samwel Njenga Ngunjiri [deceased] -vs- Changwon cheboi & Anwarali & Brothers limited where the court awarded a multiplier of 16 for a 44-year-old deceased.
30. On dependency ratio, she submitted that she is the widow of the deceased and he was also survived by two children of tender age. That the whole responsibility of the children is now in her hands and they should be handsomely compensated because they will suffer and miss their father for so long. She defended the dependency ratio of 2/3 and relied on Gachoki Gathuri[ Suing as the Legal Representative of the Estate of James Kinyua Gachoki [Deceased] -vs- John Ndiga Njagi Timothy & 2 Others [ 2015] e KLR where a dependency ration of 2/3 and multiplier of 25 years were upheld for a 29-year-old unmarried man.
31. She submitted that the special damages were pleaded and specifically proved. That from the original file, it can be confirmed that they were properly tendered and produced by consent.
32. Finally, she submitted that the appeal is misplaced, an abuse of court process, unmerited and must be dismissed with costs.
Duty of Court
33. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
34. Upon considering the grounds of appeal, the rival submissions and entire record, the following issues arise for determination;
a. Who was to blame for the accident and to what extent?
b. Should the quantum of damages be disturbed?
Analysis and Determination
Liability
35. PW1 was PC Paul Ongulu of Mtito Andei Police station, Traffic department. He stated that he had an abstract under OB 32/11/12/2018 which was about a fatal accident that occurred on 11/12/2018 at about 1600hrs at Kanga area along Nairobi-Mombasa highway. That the accident involved two vehicles i.e. KBU 873S trailer No. ZE 2497 make Tata which was being driven by Paul Kibiwott Chepkiyeng from Mombasa heading to Nairobi direction. The other vehicle was KCC 681Y Toyota Harrier and was being driven by No. 8655 PC Darius Mwawasi Njumwa from Nairobi to Mombasa. That it was the truck driver who left his lane and hit the oncoming harrier and as a result, Darius Mwawasi, Linet Wanjiku Mwawasi and Carol Wairimu died on the spot and the other 7 passengers sustained various injuries.
36. Further, he testified that at the conclusion of the investigations, the driver of KBU 873S /ZE 2497 was blamed for the accident. That he was charged for causing death where he pleaded guilty and was fined kshs 80,000/= or 12 months imprisonment. That he also pleaded guilty for driving under the influence of alcohol and was fined kshs 20,000/= or 6 months imprisonment. He identified the traffic case as Makindu Court TCR 1501/2018. He produced the police exhibit as P.Ex 1.
37. On cross-examination, he testified that he was not the investigating officer investigating officer and said that the IO had been transferred to Meru County and the file was concluded when he went on transfer. That it was the Base Commander who directed him to represent the office in court. He confirmed that he had not produced the sketch plans of the scene of accident.
38. PW2 was Pery Wairimu Maina and she adopted her statement dated 11/03/2019 as her evidence in chief. She stated that on 11/12/2018, she was lawfully travelling as a passenger in motor vehicle registration No. KCC 681Y along the Nairobi-Mombasa Road and her late husband, Darius Mwamwasi Njumwa was the driver. That when they got to Kanga area or thereabout, the driver of KBU 873S ZE 2497 who was driving so carelessly/recklessly/negligently permitted the vehicle to lose control, leave its lane and hit their motor vehicle from the front right and her husband sustained fatal injuries.
39. On cross-examination, she said that she was seated on the co-driver’s seat and was holding the younger child who was 10 months by then.
40. The trial court record shows that this matter was part of a series and had been heard and concluded by Hon. JD Karani (RM). The parties had recorded a consent on liability in the ratio of 90:10 in favor of the plaintiff (now Respondent). Shortly thereafter, the court realized that it lacked pecuniary jurisdiction to handle the matter and directed the parties to appear before court 2 (Hon. B.Ireri-SPM). On 15/02/2021, the parties appeared before Hon. Ireri and consented to have the matter start de novo.
41. The summarized evidence above is what the trial court relied on to find that the Appellant was 100% liable and this court has been invited to find that the trial court erred in fact and law by finding the Appellant wholly liable.
42. The Appellant submitted that the evidence of PW1 was not conclusive because he was not the investigating officer. Having re-evaluated the evidence of PW1, my view is that he did not lay a proper basis as provided in section 33 of the Evidence Act. The section provides that;
“Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases…”
43. PW1 said that the IO had been transferred to Meru County and that the file was concluded when the IO was transferred. The court was not told whether there was any difficulty in availing the IO from Meru County. Further, it appears that the investigations were concluded by another officer who was also not availed as a witness. In the circumstances, the evidence of PW1 is inadmissible hearsay evidence but the police abstract which he produced remains good evidence.
44. That notwithstanding, there is the evidence of the deceased’s wife (PW2) who was a passenger in KCC 681Y (the Toyota Harrier) which was being driven by the deceased at the time of the accident. Evidently, her position in the vehicle makes her an eye witness to the accident and her eye witness account was that it was motor vehicle KBU 873S 2497 (the truck) which left its lane and collided with the Toyota Harrier.
45. The police abstract indicates that the truck driver was charged with the offence of causing death by dangerous driving and that the results of investigations were still pending before court. The Appellant argued that the proceedings of the traffic case were not produced in court but it is trite that this court can take Judicial Notice of judicial proceedings in any court in this country.
46. The proceedings established that indeed a person called Paul Kibiwott Chepkieng’ was charged in Makindu SPM’s Court Traffic Case No. 1501 of 2018. He was charged with several counts of Causing Death by dangerous driving and the first count related to the deceased herein. He pleaded guilty and was sentenced to pay a fine of kshs 80,000/= or in default 12 months’ imprisonment.
47. The said Paul Kibiwott Chepkieng’ was also charged with the offence of driving a motor vehicle while under the influence of alcohol. He pleaded guilty and was sentenced to pay a fine of kshs 20,000/= or 6 months imprisonment in default.
48. The inspection report that was produced in the Traffic case showed that the Toyota Harrier was damaged on the front right side. This is a confirmation of PW2’s testimony and is consistent with her account on how the accident occurred. Contrary to the Appellant’s submission, PW2’s account of how the accident occurred was clear and the truck driver was to blame. It was reckless for him to drive while intoxicated and his action of getting into the lane of the Toyota Harrier was most likely the result of poor judgment due to intoxication.
49. The Appellant also argued that no evidence was led whatsoever to prove that the truck driver was its authorized driver. The police abstract clearly shows that that Paul Kibiwot Chepkieg was the driver of the appellant’s m/vehicle. It is not the appellant’s position that this driver was driving without his permission or that he had stolen the m/vehicle. The copy of records shows that the Appellant was the owner of the truck at the time of accident.
50. Further, the Appellant argued that the deceased contributed to the accident because he was driving an overloaded car.
51. Before the matter started for hearing de novo, there was a consent on liability at 90:10 in favour of the plaintiff. This consent was not set aside as it was entered in the series of the matters arising out of the accident.
52. The finding on liability is set aside and substituted with 90:10 apportionment.
Quantum
53. The instances where an appellate Court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR it was held that;
“An appellate Court will not disturb an award for damages unless it is 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.\\\"
54. Further and as correctly submitted by the Respondents, an appellate court will not disturb an award simply because it would have awarded a different figure if it had tried the case in the first instance.
Award under the Fatal Accidents Act
55. It was pleaded that the deceased was a graduate police officer earning a monthly salary of kshs 79,430/=. The trial court subtracted the statutory deductions of PAYE and NHIF and remained with a figure of kshs 61,545/= which it used as the multiplicand. The Appellant argued that the trial court used the said multiplicand despite the evidence of the net pay of Kshs. 36,609/10.
56. The payslip (P.Ex 10) produced by PW2 shows a gross salary of kshs 79,430/= and a net salary of 36,609.10/=. As can be seen from the payslip, the net figure is inclusive of statutory deductions, loan deductions and savings. The issue of the multiplicand to be used in the case of a payslip has been settled by the Court of Appeal in several decision. One such decision is Kisumu Civil Appeal Number 48 of 2016 - Mary Osano (Personal Representative of the estate Charles Otwori Ogechi - Deceased) -vs- Simon Kimutai [2020] eKLR where the court stated:
“Counsel for the Appellant submitted that the deceased’s net pay as evidenced by a copy of his payslip was Kshs 53,550 per month, with a house allowance of Kshs 45,000 per month which totals to Kshs 98,550. The statutory deductions as contained in the payslip are; PA.Y.E at Kshs 23,947; NHIF at Kshs 320 and NSSF at Kshs 3748 which totals to Kshs 28,015. The rest do not amount to statutory deductions as the learned Judge erroneously held. In our assessment, the rest of the deductions were either in the form of savings or payment of loans, none of which are to be factored in when determining a multiplicand.”
57. Evidently, the multiplicand used by the trial court was not erroneous.
58. With regard to the multiplier, the Appellant wants it to be reduced from 20 years to 15 years. The death certificate (P.Ex 3) shows that the deceased was 35 years at the time of death. I have looked at other decisions for comparison and in Joseph Njuguna Mwaura (Suing In His Capacity As The Personal Representative Of Ann Nduta) -vs- Builders Den Limited & another [2014] eKLR, a multiplier of 17 years was awarded for a 35 year-old deceased and in Mombasa Maize Millers Limited -vs- W I M suing as the representative of J A M (Deceased) [2016] eKLR a multiplier of 26 years was reduced to 20 years on appeal for a 34 year-old deceased.
59. In Board of Governors of Kangubiri Girls High School & Another -vs- Jane Wanjiku & Another NYR CA Civil Appeal No. 35 of 2014 [2014] eKLR the Court of Appeal stated that, “The choice of a multiplier is a matter of the courts discretion which discretion has to be exercised judiciously with a reason.”
60. In our case, the deceased was a public servant hence expected that he would work upto the retirement age of 60 years. The ideal multiplier would therefore be 25 years but the trial court awarded 20 years after taking into consideration the vicissitudes of life. In my view, the multiplier is reasonable.
61. As for the dependency ratio, the Appellant wants it to be reduced from 2/3 to ½. It was pleaded that the deceased’s dependants were two minors aged 8 years and 11 months respectively and their birth certificates were produced (P. Ex 19). PW2 testified that the deceased was the provider of fees, rent and his death had put on her the responsibility of mother and father which was quite difficult.
62. It is trite that dependency is a question of fact which must be proved and section 4 of the FAA identifies a dependant to be a wife, husband, parent and child of a deceased person. The decisional law from our courts is that where a deceased man is survived by a wife and children, the applicable ratio is 2/3. In Njane (Suing as the legal representative of the Estate of the Late David Kungu Miki) -vs- Oyoo & another (Civil Appeal E022 of 2021) [2023] KEHC 19559 (KLR) (30 June 2023) (Judgment), the court stated;
“20. On this issue, the trial court held dependency had not been proved by the appellant and opined the ratio of 1/3 was proper.
21.As per the evidence adduced the deceased was a family man as he was married and had left behind a son aged 10 years, who depended on him prior to his demise. The appellant proved the marriage and adduced a copy of the birth certificate. It, therefore, follows the correct ratio to use for a person who had a family is 2/3 as opposed to the 1/3 adopted by the trial court.
22.This court thus satisfied that the trial magistrate erred in adopting a ratio of 1/3 when the deceased was survived by a wife and children.”
63. Similarly in our case, PW2 proved her marriage to the deceased (P.Ex 11) and provided the birth certificates for the children. It is expected that as a father, husband and head of his home, the deceased was using a reasonable amount of his income to provide for his family. It is reasonable that that would be 2/3 of his income. Consequently, the award for loss of dependency remains undisturbed.
64. With regard to special damages, the amount pleaded was kshs 231,075/= and the trial magistrate awarded it. The Appellant argued that the Respondent availed a copy of a quotation of Ksh.165,000 as opposed to a receipt hence the amount proved was ksh 77,575 and not Kshs. 231,075.
65. I have looked at all the evidence in support of special damages and the document being referred to as a quotation is actually written ‘Receipt/Quotation’ and it was issued by ‘Serena Funeral’. This is a document from the service provider for modest sum of kshs 165,000 for funeral issues. Families incur these costs and some times receipts are not top on their minds. In Premier Diary Limited -vs- Amarjit Singh Sagoo & another [2013] eKLR the Court of Appeal stated;
“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.”
Award under the Law Reform Act
66. The trial court awarded kshs 100,000/= for pain and suffering and the Appellant submitted that it should be reduced to kshs 10,000/=. The death certificate shows that he died on the same day of the accident and PW2 testified that the deceased suffered for about 30-35 minutes before he passed on. In Sukari Industries Limited –vs- Clyde Machimbo Juma, Homa Bay HCCA NO. 68 of 2015 [2016] eKLR, the deceased died immediately after the accident and the trial court awarded Ksh. 50,000/= for pain and suffering. On appeal, the court held that:
“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”
67. Similarly in this case, the award is not unreasonable.
68. The Appellant also submitted that the award for loss of expectation of life should be reduced to 80,000/=. The conventional award under this head is kshs 100,000/=. Considering that section 2(5) of the LRA provides that the rights conferred under the Act for the benefit of the estates of deceased persons are in addition to and not in derogation of any rights conferred under the FAA, I do not see any justification for reducing the award.
69. The upshot is that the award by the trial court is upheld except as indicated on liablity.
70. The final order:
a. Liability 90:10%
b. Pain & suffering………………………….kshs 100,000/=
c. Loss of expectation of life………………kshs 100,000/=
d. Loss of dependency…………………...Kshs 9,857,200/=
e. Special damages……………………….kshs 231,075/=
f. Total Kshs 10,078, 275/=
71. Less 10%: Ksh 9,070,447/50. Plus plus costs and interest here and the subordinate court from the date of Judgment.
72. The appellant will have the costs of this appeal
73. Orders accordingly.
Dated signed and delivered via CTS on 18th October 2024
Mumbua T Matheka
Judge
Ms Nelima/Ms Elizabeth Court Assistants
Appellant’s Advocates
Githinji Mwangi & Associates
petgmwangi@gmail.com
Respondent’s Advocates
Mochama & Co. Advocates
mochacheevans@gmail.com