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Sun Flower academy, the Faith Homes of Kenya v Peter (In The Estate Of The Deceased Livinah Cherop-Suing as Father) (Civil Appeal 3 of 2020) [2022] KEHC 9916 (KLR) (13 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 9916 (KLR)
Republic of Kenya
Civil Appeal 3 of 2020
WK Korir, J
July 13, 2022
Between
Sun Flower academy, the Faith Homes of Kenya
Appellant
and
Musa Lopeta Kales Peter
Respondent
In The Estate Of The Deceased Livinah Cherop-Suing as Father
(Being an appeal from the judgment and decree of S.K. Mutai, PM delivered on 1/9/2020 in Kapenguria PMCC No. 29 of 2019; Musa Lopeta Kales Peter (In the estate of deceased Livinah Cherop- suing as father) v Sun Flower Academy, the Faith Homes of Kenya)
Judgment
1.In the memorandum of appeal dated 11th September, 2020, the Appellant, Sun Flower Academy, Faith Homes of Kenya, raises thirteen grounds of appeal as follows:i.That the learned trial magistrate erred in law and fact in failing to dismiss the Respondents’ suit as they had not proved their case on a balance of probability;ii.That the learned trial magistrate erred in law and fact in holding the Appellants 100% liable for the accident when there was no sufficient evidence to support that finding;iii.That the learned trial magistrate erred in law and fact in awarding the Respondent’s estate a sum of Kshs. 3,267,705/= an amount which was excessive thus amounting to an erroneous estimate of loss or damage suffered by the estate of the deceased;iv.That the learned trial magistrate erred in law and fact by using the multiplier approach in awarding damages to the estate of the deceased under the Fatal Accidents Act instead of using the global award;v.That the learned trial magistrate erred in law by awarding Kshs. 100,000/= for pain and suffering of which figure was unreasonable;vi.That the learned trial magistrate erred in law and fact by awarding the estate of the deceased Kshs. 2,500,000/= for loss of dependency without any legal basis;vii.That the learned trial magistrate erred in law and fact by awarding Kshs. 100,000/= for loss of expectation of life to the estate of the deceased without any legal basis;viii.That the learned trial magistrate erred in law and fact by awarding the estate of the deceased a sum of Kshs. 566,055/= as funeral expenses an amount which was not proved to court as required by the law;ix.That the learned trial magistrate erred both in law and fact by double awarding the Respondent’s estate both under the Law Reform Act and the Fatal Accidents Act;x.That the learned trial magistrate erred in law and fact by awarding the Respondent special damages of Kshs. 132,875/= which were not proved to the required standards;xi.That the learned trial magistrate erred in law and fact in failing to consider the Appellant’s submissions and legal authorities relied upon in support of the defence thereof;xii.That the learned trial magistrate erred in law and fact by overly relying on the Respondent’s submissions and legal authorities which were not relevant and without addressing its mind to the circumstances of the case;xiii.That the learned trial magistrate’s decision albeit a discretionary one, was plainly wrong.
2.The Respondent, Musa Lopeta Kales Peter (In the Estate of the Deceased Livinah Cherop-Suing as the Father), opposed the appeal.
3.In brief, the Respondent’s claim arose as a result of a road traffic accident that occurred on 3rd July, 2019 at Bendera area along Makutano-Lodwar road involving motor vehicle registration number KBN 024V in which the deceased Livinah Cherop was travelling as a fare-paying passenger. At the trial, the Respondent had claimed that the accident was caused as a result of the negligence of the Appellant’s driver. The trial court agreed with the Respondent and entered judgement on liability in his favour at 100% and awarded the estate of the deceased damages on various heads. The Appellant being aggrieved by that judgement has appealed to this Court.
4.This appeal was canvased by way of written submissions. The Appellant filed submissions dated 21st March, 2022 whereas the Respondent filed submissions dated 4th May, 2022.
5.The Appellant’s advocate identified and addressed three issues. The first issue is that the trial magistrate erred in fact and in law in attributing 100% liability to the Appellant. On this, it was submitted that the Respondent’s evidence did not disclose liability against the Appellant. It was argued that the Respondent had therefore not discharged the burden of proof as required by sections 107 and 108 of the Evidence Act. The Appellant relied on the cases of Kennedy Nyagoya v Bash Hauliers [2016] eKLR and Paul Kiboi & another v Ephantus Kanyi Maina [2015] eKLR to submit that a police abstract alone was not sufficient proof of liability on the part of its driver. Further, that the production of a sketch map would have been useful in determining the liability of the Appellant’s driver.
6.The Appellant submitted that despite not calling any witness, the burden of proof did not shift to it and it could not be blamed for the accident in the absence of sufficient evidence from the Respondent. Reliance was placed on the case of Evans Mogire Omwansa v Benard Otieno Omolo & another [2016] eKLR in support of the submission that the burden of proof does not shift from the plaintiff to the defendant even if the matter proceeds by way of formal proof.
7.The second issue identified by the Appellant was that the trial court erred in making awards both under the Fatal Accidents Act and the Law Reform Act. Reliance was placed on the case of Hellen Warugu Waweru (suing as the legal representative of Peter Waweru (Deceased)) v Kiarie Shoe Ltd (citation not provided) to submit that the trial court erred in making awards under the two Acts.
8.Turning to the specific awards made on the various heads, the Appellant submitted that the trial court’s awards for pain and suffering, and loss of expectation of life were inordinately excessive. Further, that in awarding Kshs. 100,000/= for pain and suffering, the trial magistrate did not give any reason as to how he arrived at the award hence the decision did not conform to the fundamental principles of a judgment as provided under Order 21(4) and (5) of the Civil Procedure Rules, 2010 (CPR). The Appellant relied on the cases of E.A. Growers Ltd v Charles Nganga Ngugi, Nyer HCCA No. 129 of 2009 and Florence Awuor Owuoth v Paul Jackton Ombayo, Migori HCCA No. 57 of 2019, where the deceased persons had died on the date of the accidents, and urged this Court to reverse the award of Kshs. 100,000/= and award Kshs. 10,000/= for pain and suffering.
9.The Appellant urged the Court to set aside the award of Kshs. 100,000/= for loss of expectation of life and replace it with an award of Kshs. 50,000/=. This argument was supported by reference to the decisions in Lochab Brothers Limited v Julius Kipchirchir Yego [2015] eKLR and Mohamed Abdi Ali v Paul Muturi Mwangi [2019] eKLR where the plaintiffs were awarded Kshs. 50,000/= for loss of expectation of life.
10.With regard to the award under the Fatal Accidents Act, it was the Appellant’s submission that the award of Kshs. 2,500,000/= by the trial court was inordinately excessive in light of the facts and circumstances of this case. The Appellant also faulted the trial court for failure to conform to Order 21(4) and (5) of the CPR as to the contents of a judgement. The Appellant submitted that the use of the multiplier approach by the trial court was erroneous considering that the deceased was an eight-year old child in grade six and her prospects in life could not be easily determined. The Appellant relied on the decisions of Albert Odawa v Gichumu Githenji, Nakuru HCCA No. 15 of 2003 and Simon Kibet Lang’at & another v Miriam Wairimu Ngugi (suing as the administrator of the estate of Daniel Mwiruti Ngugi (deceased)) [2016] eKLR in urging this Court to find that the global sum approach was the ideal formula for determining the award for loss of dependency in the circumstances of this case. The Appellant cited the case of T.O.A. v George Onyango Ogam & another [2009] eKLR and urged this Court to set aside the award of the trial court and replace it with an award of Kshs. 200,000/=.
11.The third issue submitted on by the Appellant was that the trial court erred in awarding special damages for funeral expenses yet the same was never pleaded hence violating the well-established principles that parties are bound by their pleadings and that special damages must be specifically pleaded and proved.
12.The Respondent on his part identified and addressed two issues. On the first issue as to whether the trial court erred in finding the Appellant 100% liable for the accident, the Respondent submitted that the evidence on record clearly showed that the Appellant’s driver was to blame for the accident. According to the Respondent, in the absence of controverting evidence from the Appellant, the magistrate was bound to find that the Appellant was 100% liable. The submissions were supported by reference to, among other decisions, the cases of Ephantus Mwangi v Wambugu (as cited in Shreeji Enterprises Limited v John Mungai Chai [2018] eKLR); William Kabogo v George Thuo [2010] eKLR; Zumtel Communications Ltd v DM (minor suing through the father and next friend of MMI) [2021] eKLR; and CMC Aviation Ltd v Kenya Airways Ltd (Cruisar Ltd) [1978] eKLR.
13.The second issue submitted upon by the Respondent is whether the trial court complied with the law in the assessment and award of damages. According to the Respondent, the award of Kshs. 100,000/= for pain and suffering was correct in that it was based on the fact that the deceased died over five hours after the accident and not immediately. On the award for the loss of expectation of life, the Respondent submitted that the award of Kshs. 100,000/= was reasonable and within the limits set in recent judicial decisions. Reliance was placed on the case of Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR in support of the award of Kshs. 100,000/= on each of the two heads.
14.As for the award of Kshs. 2,500,000/= for loss of dependency, the Respondent submitted that the award was not misinformed as all the factors taken into account by the trial court were proved. The Respondent submitted that as was held in Oshivji Kuvenji & another v James Mohammed Ongenge [2012] eKLR, the Kenyan courts have not adopted a uniform principle on how to tabulate general damages where the deceased is a minor and that the courts have used the multiplier approach or the global sum method in assessing damages. According to the Respondent, the class teacher of the deceased had produced a report showing that the deceased was bright and disciplined hence the award for loss of dependency was valid.
15.On the award of the funeral expenses, the Respondent submitted that the same was pleaded and that in some instances, courts make awards for funeral expenses even if the same is not specifically proved. This submission was supported by reference to the decisions in Ayiga Maruja & another v Simeon Obayo [2005] eKLR and Peter Ngari Njue v Alchanger Njue Kithogo & Josphat Njue (Suing as Legal Representatives of Eugenio Muchori Njue-Deceased) [2019] eKLR.
16.This appeal will turn on two issues namely the determination of liability and the assessment of the damages. It is important to start be stating the elementary principle of law that a first appellate court is mandated to analyze and re-examine the evidence adduced in the trial and reach its own conclusions. However, in doing so, the court must be alive to the fact that unlike the trial court, it does not have the benefit of hearing and seeing the witnesses testify. For this statement of the law, the decision of the Court of Appeal in Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR is apt.
17.I will bear the stated principles in mind as I embark on the determination of the appeal. In this appeal, the Appellant contends that the trial court erred in apportioning 100% liability to the Appellant notwithstanding the insufficiency of evidence to support the finding. Counsel for the Appellant submitted that the evidence on record was not sufficient to enable the trial court to determine how or who caused the accident leading to the fatal injury of the deceased. The Appellant also alluded to absence of a sketch map of the scene of accident as one of the insufficiencies of the Respondent’s case.
18.The Respondent on the other hand refuted the Appellant’s claims by submitting that the evidence on record was sufficient to aid the trial court in assessing liability.
19.A perusal of the record of appeal shows that the Respondent called two witnesses at the trial. Police Constable Samuel Kirui testified as PW1 and stated that he was the investigating officer alongside Chief Inspector Teka. He testified that the accident involved bus registration number KBN 024V belonging to the Appellant. The witness further stated that the bus joined the Makutano-Lodwar road at Bendera junction from Kapenguria at high speed. It lost control and veered off landing on the right side of the road. According to the witness, one of the 44 students on board the school bus succumbed to the injuries sustained in the accident. PW1 also testified that the accident occurred on 3rd July 2019 at around 4.45 pm.
20.The Respondent, Musa Lopeta Kales, testified as PW2 and stated that the deceased was aged 8 years and a pupil at the Appellant’s institution. That on the fateful day he was informed of an accident involving the Appellant’s school bus and that his daughter was in critical condition. His wife proceeded to Kapenguria Hospital where the deceased was placed in ICU and later passed on at about 9.00pm.
21.The Appellant did not call any witness leaving the evidence placed on record by the Respondent unchallenged. Although PW1 stated during cross-examination that the police abstract did not indicate the person who was to blame for the accident, he was emphatic that the driver of the bus was to blame for the accident even though he was not charged.
22.The evidence on record therefore confirmed that there was an accident involving motor vehicle registration number KBN 024V belonging to the Appellant. It is not contested that the deceased was a pupil in the Appellant’s learning institution and was therefore legally in the vehicle at the time of the accident. The only question that the trial magistrate was required to determine was whether the Appellant’s driver acted as is expected of a reasonable driver in the circumstances.
23.In this case, the deceased minor was not in control of the bus and the Appellant did not show that there was anything she could do to avert the occurrence of the accident. The bus was in the entire control of the Appellant’s driver and since the accident was self-involving, it was upon the Appellant to adduce evidence to establish the level of responsibility or omission to be attributed to the deceased or anyone else for that matter. In this particular case, the cause of the accident was solely attributable to the driver.
24.From the evidence adduced at the trial, the magistrate cannot be faulted for finding the driver, and by extension the Appellant, entirely to blame for the accident. It was upon the Appellant to demonstrate, by production of evidence, that its driver was entirely not to blame for the accident or shared blame with another identified person. The Appellant failed to do so. I find support for this conclusion from the holding of the Court of Appeal in Rahab Micere Murage (Suing as a Representative of the Estate of Esther Wakiini Murage) v Attorney General & 2 others [2012] eKLR that:
25.The Appellant also took issue with the absence of a sketch map of the scene of accident. In my understanding, the circumstances leading to an accident are construed from the whole evidence on record. A sketch map of the accident scene is not the only determining factor as to how an accident occurred. My statement finds support in Equator Distributors v Joel Muriu [2018] eKLR where the Court of Appeal held as follows:
26.As for the Appellant’s claim that the police abstract did not attribute the accident to its driver, I note that the police abstract indicated that the matter was still pending investigation. That is not the same as saying that the Appellant’s driver was not responsible for the accident. The Respondent set out at the beginning of his case to show that the Appellant’s driver was responsible for the accident in which his child died. He succeeded in discharging the task on a balance of probabilities and the trial magistrate made no mistake in concluding that the driver was 100% to blame for the accident. The fact that the driver was entirely to blame for the accident may explain why the Appellant did not bother to call the driver as a witness. I therefore find no reason to interfere with the trial court’s judgment on liability. The Appellant’s appeal on the issue of liability therefore fails.
27.I now turn to the issue of assessment of the damages. Before I proceed to determine this issue, it is necessary to appreciate that an appellate court can only interfere with the damages awarded by the trial court where the appellant has demonstrated that the trial court acted on the wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the injury suffered. On this principle, I only need to cite the holding by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR that:
28.I will now proceed to consider the arguments of the parties on the damages awarded on various heads. The trial court in making an award of Kshs. 100, 000/= for pain and suffering noted that the deceased died five hours after the accident. The Appellant contends that this award is inordinately excessive in the circumstances. It is a generally accepted principle that the damages awarded for pain and suffering is pegged on the time between the accident and the demise of the deceased. The longer it takes for the deceased to succumb to the accident injuries, the higher the award to the estate of the deceased. This point was stated in Joseph Kivati Wambua v SMM & another (Suing as the Legal Representatives of the Estate of EMM-Deceased) [2021] eKLR as follows:
29.The same position was adopted in Beatrice Mukulu Kang’uta & another v Silverstone Quarry Limited & another [2016] eKLR where the Court held that:
30.In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR the Court had this to say of the award for pain and suffering:
31.It is worth noting that the cases relied upon by the Appellant in urging this Court to interfere with the award for pain and suffering were in respect of accidents where the deceased persons died instantly.
32.The evidence on record indicates that the accident occurred at about 4.45pm. PW2 testified that the deceased succumbed to the injuries at about 9.00pm. This uncontroverted evidence confirms that the deceased lost the battle about five hours after the accident. There is no evidence on the condition of the deceased prior to her demise and the only conclusion is that she underwent pain and suffered before she died. The award of Kshs. 100,000/= may seem high but it is within the range of damages awarded under that head in the already cited cases. It cannot therefore be said to be excessively high or based on the wrong principles as to attract the chopping sword of this Court. I find no fault on the award by the trial court and dismiss the appeal against the award for pain and suffering.
33.The Appellant also took issue with the award of Kshs. 100,000/= for loss of expectation of life by the trial court. The Appellant urged this Court to make an award of Kshs. 50,000/= under that head. In making this award, the trial court noted that the deceased was 8 years and in good health.
34.A look at the decided cases will point to the awards normally made for loss of expectation of life. In Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR and John Kinyanjui Thumbi & another v Irene Wambui Nduata & another [2018] eKLR an award of Kshs. 100,000/= was made for loss of expectation of life. In Mohammed Abdi Ali v Paul Muturi Mwangi [2019] eKLR, an award of Kshs. 60,000/= was upheld by the High Court. Similarly, in Lochab Brothers Limited v Julius Kipchirchir Yego [2017] eKLR an award of Kshs. 50,000/= was retained on appeal.
35.From the cited authorities, it is deduced that awards for loss of expectation of life range from Kshs. 50,000/= to Kshs. 100,000/=. The award of Kshs. 100,000/= by the trial court did not breach the boundaries set in decided cases. The complaint by the Appellant is therefore unfounded as the award cannot be said to be inordinately high. I find the appeal against this award unmerited and the only answer I give to the Appellant is that the award of Kshs. 100,000/= for loss of expectation of life is left undisturbed.
36.Before I depart from the two heads of awards I have just discussed, I will address the Appellant’s submission that the trial magistrate erred by making double compensation under the Law Reform Act and the Fatal Accidents Act. This issue has been addressed by the Court of Appeal in several decisions. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR, the Court of Appeal stated as follows:
37.“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 and so it appears the Legislature intended that it should be considered…
38.It has been argued in some English cases that this provision affects the right and not the benefits. Indeed the legislation can be looked at narrowly or in a wide sense. Narrowly it means rights and no more; widely it means the rights and benefits accruing from those rights are in addition and not in derogation to the rights and benefits resulting from them under the Fatal Accidents Act. In my view what section 2(5) of the Law Reform Act means is 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.
39.To be taken into account and to be deducted are two different things. The words used in s. 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should not be taken into account and not necessarily deducted. For me it is enough 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 as suggested by Mr Barasa.”
40.Again, in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja (deceased) v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:
41.“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.”
42.The cited decisions show that the Appellant argument that the estate of the deceased benefitted twice is without merit. The appeal on that ground fails as the trial court did not err in making separate awards under the Law Reform Act and the Fatal Accidents Act.
43.I now turn to the award for loss of dependency. The Appellant challenges the award of Kshs. 2,500,000/= for loss of dependency arguing that the same was erroneous as it was based on the multiplier approach. On the award for loss of dependency, the trial court stated in the judgement that:
44.The manner in which the award was made clearly shows that the trial magistrate used the global sum award approach and the Appellant’s attempt to fault the award for being based on the multiplier approach is therefore unfounded. Nevertheless, the Appellant’s complaint that the award is inordinately high must be interrogated. The answer will be found by considering awards made where the facts were similar to those prevailing in the matter at hand. The High Court in Charles Makanzie Wambua v Nthoki Munyao & Prudence Munyao (suing as personal representatives of the Estate of Lilian Katumbi Nthoki (Deceased) [2020] eKLR upheld a global award of Kshs. 1, 320 ,000/= for loss of dependency for the estate of a deceased aged 16 years. Similarly, in Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR, the High Court upheld a global sum award of Kshs. 1,500,000/= for loss of dependency where the deceased was aged 16 years. A similar award of Kshs. 1,500,000/= was made by the High Court in Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR for loss of dependency.
45.In the case at hand, the deceased was 8 years old and said to be in Grade 6. A proper picture of the deceased’s future could not be painted considering her tender age. Alleged bright performance in school cannot speak much of a child of such an age. The trial magistrate did not support the award by reference to any decided case since a global sum award is best determined by reference to the decided cases of higher courts. In the cases referred to in this judgement the awards recently made have not gone beyond Kshs. 1,500,000/=. Those particular awards were also in respect of children approaching adulthood and they cannot be used as a good measure in respect to the estate of a deceased child aged 8 years. In view of what I have stated above, I come to the conclusion that the award of Kshs. 2,500,000/= was inordinately high and unjustified. The Appellant’s appeal against this award is therefore merited and is allowed. The award of Kshs. 2,500,000/= is set aside and substituted with an award of Kshs. 1,000,000/=.
46.The Appellant also took issue with the award of special damages. Specifically, the Appellant argued that the trial court erred in making an award for funeral expenses yet the same was not pleaded nor proved. A look at paragraph 7 of the plaint reveals that the Respondent pleaded funeral expenses as part of the special damages. I have perused the bundle of receipts at pages 51 to 60 of the record of appeal and my calculation puts the figure proved at Kshs. 233,900/=. The award of Kshs. 566,055/= for funeral expenses is thus unsupported by evidence and the Appellant’s appeal succeeds so that the award of Kshs. 566,055/= for funeral expenses is set aside and substituted with an award of Kshs. 233,900/=. Although the amount proved is on the higher side for the burial of a child, the Appellant did not query the authenticity of the receipts produced by the Respondent and it is not in the province of this Court to take over the Appellant’s role and poke holes in the Respondent’s evidence.
47.In summary, the appeal partially succeeds to the extent that the award of Kshs. 2,500,000/= for loss of dependency is set aside and substituted with an award of Kshs. 1,000,000/=. The trial court’s award of Kshs. 566,055/= for funeral expenses is also set aside and replaced with an award of Kshs. 233,900/=.
48.In view of the partial success of the appeal, the judgement will be as follows:(a)Pain and suffering Kshs. 100,000/=(b)Loss of expectation of life Kshs. 100,000/=(c)Loss of dependency Kshs. 1,000,000/=(d)Special damages KShs. 1,650/=(e)Funeral expenses KShs. 233,900/=Total Kshs. 1,435,550/=
49.The award will attract interest at court rates from the date of judgement in the trial court until payment in full. For avoidance of doubt, the order on costs issued by the trial court in regard to the proceedings before the trial court remains undisturbed.
50.Owing to the partial success of the appeal, the Appellant will have half the costs of the appeal from the Respondent.
DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 13TH DAY OF JULY, 2022.W. Korir,Judge of the High Court
