1.The appellant herein being dissatisfied with the judgment of the trial court preferred the appeal herein on the following grounds that :i.The learned trial magistrate erred in law and fact by awarding damages under section 25 (3) of the Wildlife Conservation and Management Act which is a statutory remedy whereas the claim before the court was brought under common law.ii.The learned trial magistrate erred in law and fact by failing to find that he did not have jurisdiction to award damages under section 25 of the Wildlife Conservation and Management Act which is a preserve of the Wildlife compensation committees established under the Act and the Environment and Land Court.iii.The award of general damages in the sum of Kshs. 5,000,000.00 is inordinately excessive considering that the deceased was a minor aged seven years.iv.The judgment of the learned trial magistrate is against the law and weight of the evidence on record.
2.Reasons wherefore the appellant prayed that the judgment of the learned trial magistrate based on section 25 of Wildlife Conservation and Management Act (WCMA) be set aside and the Honourable Court be pleased to assess a reasonable amount of damages payable to the respondent under the common law and that it be awarded the costs of the appeal.
3.The appeal herein arose from the determination made by the trial court wherein the deceased was fatally injured while fetching water from Kamburu Dam as a result of alleged negligence occasioned by the appellant. The appellant denied the allegations at the first instance but later on, the parties entered a consent on liability in the ratio of 80% to 20% in favour of the respondent.
4.Directions were issued that the appeal be canvased by way of written submissions and wherein all parties complied.
5.The appellant submitted that the parties herein having entered a consent on liability in favour of the respondent in the ratio of 80:20 %, the only issue that remained for determination was the quantum of damages. That PW1 as the substituted plaintiff, relied on her statement as her evidence in chief whereby she averred that the deceased was her grandson and stated that he was attacked by a crocodile at Kamburu Dam on 16.09.2014. It was submitted that this claim was founded on Common Law and it was entirely brought under the doctrine of negligence and that remedies were sought under the Law Reform and the Fatal Accidents Acts. That the fact that the plaint made reference to section 25 of the Wildlife Conservation & Management Act was inconsequential.
6.The appellant further submitted that if the respondent had first employed the said mechanisms and was not compensated, then he would have been justified to take the matter to court in order to have the said section enforced. It was his case that the proper route for enforcing the said provision of the Act would have been to seek from the Hon Court orders for mandamus to issue upon the entity that is responsible for paying compensation. It argued that the entity established for the purposes of compensation under Section 18 is the respective County’s Compensation Committee established under the Wildlife Conservation and Management Act. Reliance was placed on the case of Charles Apudo Obare v Clerk, County Assembly of Siaya & Another  eKLR.
7.The appellant also submitted that the award on quantum of damages was erroneous. That since the Hon court opted to entertain this matter, it should have limited itself to the bounds of law envisaged by its vast inherent jurisdiction. That the claim of negligence under Common Law did not justify the award under section 25 (3) of the Act. That the only possible claim that can be entertained in a court of law is a suit or claim seeking orders of mandamus to issue towards the cabinet secretary or the County Conservation and Compensation Committees. That the Hon. Court has no business assessing claims, verifying claims or deciding amounts payable where the same statute has clearly designated an authority to perform the said functions.
8.On whether the assessment of damages at Kshs. 5 Million was excessive, the appellant submitted on various heads under both the Law Reform and Fatal Accidents Acts being, loss of expectation of life, pain and suffering and loss of dependency at Kshs. 150,000/=; Kshs. 50,000/= and Kshs. 900,000/= respectively. It urged the court to allow the appeal.
9.The respondent on the other hand submitted that the issue of jurisdiction had been dealt with and the appellant did not prefer an appeal against this court’s decision (in Embu High Court Appeal No. 69 of 2016); thus the issue of jurisdiction had been settled. That the High Court dismissed the preliminary objection and the same was remitted back to the trial court for determination and disposal. It placed reliance on the Court of Appeal decision in KWS v Joseph Munyoki Kilonzo Nairobi C.A. No. 306 of 2015 where the court stated that indeed section 25 did not take away the jurisdiction of the court to hear and determining wildlife compensation matters. The respondent further relied on the case of Jediel Murithi Njeru v KWS  eKLR to support its contention. In the end, this court was urged to dismiss the appeal herein.
10.I have certainly perused and understood the contents of the grounds of appeal, submissions and the decisions referred to by the parties. It is my considered view that the main issue for determination is whether the appeal herein has merits.
11.The appellant has raised the issue of jurisdiction in that, the trial court lacked the jurisdiction to entertain the matter herein. That it arrogated itself jurisdiction which it does not have. [See Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others (supra]; and for that reason, I will deal with the issue first. The respondent in response to the issue of jurisdiction raised by the appellant, submitted that the same was previously dealt with by this court although differently constituted, bringing into sharp focus, the doctrine of res judicata.
12.The principle of res judicata is found in section 7 of the Civil Procedure Act which provides that: -
13.For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied that is; the suit or issue was directly and substantially in issue in the former suit; that former suit was between the same parties or parties under whom they or any of them claim; those parties were litigating under the same title; the issue was heard and finally determined in the former suit; and the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. [See Accredo AG & 3 others v Steffano Uccelli & another  eKLR].
14.The respondent submitted that this court rendered itself by holding that indeed the trial court was clothed with jurisdiction and thereby remitted the file back to the trial court for determination. Treading from this premise, this court has independently perused the record herein and indeed I find that the same is true as this court had on 23.07.2019 rendered itself on the issue of jurisdiction. However, I find that the main contention by the appellant is based on the fact that the trial court had no jurisdiction to award damages under Section 25 of the Wildlife Conservation & Management Act arguing that the same is a preserve of the County Compensation Committee established under the Act and in its view, the court ought to have awarded damages under the Fatal Accidents and the Law Reform Acts.
15.The appellant has impugned the trial court’s decision for its findings on quantum. The appellant argues that essentially, once a party elects to claim under the common law, it cannot change its claim into one under the WCMA and rely on the compensation awardable under the Act rather than on Common Law principles.
16.The court has perused the respondent’s claim as set out in his plaint dated 18.02.2016. The same is anchored on the tort of negligence, the particulars whereof have been particularized in paragraph 3 thereof. The respondent sought for damages under the Law Reform and Fatal Accidents Act, Cap 32 Laws of Kenya. He went ahead and set out the particulars under both statutes. However, in paragraph 10 of the plaint, he sought for compensation as provided for by the Wildlife Conservation & Management Act, 2013.
17.In its submissions, the appellant has argued that the figures outlined under section 25(3) of the Wildlife Conservation & Management Act, 2013 are only meant where an aggrieved party chooses to pursue his claim under the Act. The appellant therefore invited the court to make an award under the Common Law which is under the Law Reform Act and Fatal Accidents Act.
18.The court notes that, unfortunately, the respondent in his submissions did not address this issue but instead dwelt at length on the issue of jurisdiction which issue had been dealt with conclusively, by the High Court which remitted back the file to the trial court for hearing upon finding that the trial court had jurisdiction to entertain the matter.
19.As I have already noted earlier in this judgment, the issue of contention is that the trial court had no jurisdiction to award damages under section 25 of the Act.
20.Section 25 (3) provides as follows:(3)The cabinet secretary shall consider the recommendations made under sub section (2) and where appropriate, pay compensation to the claimant as follows:a)In the case of death, five million shillings;b)………..
21.My reading and understanding of the above sub section is that under sub section (2), the County Wildlife Conservation and Compensation Committee shall upon verification, submit the same to the cabinet secretary together with its recommendations.
22.The cabinet secretary shall then consider the recommendations made under sub section (2) and where appropriate, pay compensation to the claimant as provided for under sub sections 3 (a) (b) and (c) but in this case, sub section 3 (a) is what is relevant.
23.Looking at section 25 (2) and sub section 3 (a) in regards to compensation, my considered view is that though an amount of Kshs. 5 million is provided for as compensation in the case of death, there is a procedure to be followed before the cabinet secretary can pay compensation;
24.What clearly emerges from section 25 (2) and (3) is that the compensation to the person injured or the estate of a deceased person is not automatic. The same has to be verified and the claimant shall be paid in cases which the cabinet secretary find appropriate.
25.It is, however, not clear the considerations or the parameters the cabinet secretary uses to determine the appropriate cases where compensation should be paid as the Act is silent on the same.
26.And therefore, going by the above arguments and in my considered view, it cannot be argued that the compensation of Kshs. 5 Million in cases of death is automatic.
27.Further, the choice of words in both subsections (2) and (3) of the Act is the word ‘’Shall’’ which is mandatory in nature and is addressed to either the County Conservation and Compensation Committee and the cabinet secretary. Therefore, for the trial court to have applied the section as a guideline for assessing and awarding compensation is erroneous. The respondent chose to approach the court basing his claim on negligence under the law of tort and his pleadings attest to that. A consent on liability was recorded by the parties. It is indeed trite that each party to a suit is bound by its own pleadings and courts have repeatedly affirmed that fact. [See the case of Stephene Mutinda approval by the Supreme Court of Nigeria in Adetour Oladej Ltd v Nigeria Breweries Plc 91 of 2002 in which the court stated:‘’It is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings or put in another way, which is at variance with the averments of the pleadings goes to no issues and must be disregarded….. in fact that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.’’
28.For the above reasons, I find that the court ought to have awarded damages under Common Law as pleaded by the respondent, which I hereby proceed to consider.
29.On quantum of damages, the applicable principles in making an award for loss of dependency under the Fatal Accident Act were well stated in the case of Ezekiel Barng’entuny v Beatrice Thairu HCC No. 1638 of 1988 where Justice Ringera (as he then was) held thus; -
30.It is trite that evidence as to earnings must be proved with evidence. Where there is no such evidence, the court ought to apply the minimum wages applicable at the time of death as long as it can be proved that the deceased was earning some income.
31.In the case herein, the deceased was aged 7 years and as such, I am guided by the case of Sheikh Mushtaq v Nathan Mwangi Kamau Transporters & Others, (1985-1988)1KAR 217 where Nyarangi J held that:
32.The Court of Appeal cited several of the past decisions where it made awards on loss of dependency using global sums i.e. Kenya Breweries Ltd v Saro  eKLR where the Court of Appeal awarded KShs.100,000/= for loss of dependency to a parent of a child and stated that:
33.In Kwamboka Grace v Mary Mose  eKLR the Court awarded a global sum of KShs.300,000/= for loss of dependency under the Fatal Accidents Act in respect of the death of a child aged 4 years.
34.In Daniel Mwangi Kememi & 2 Others V JGM & Another  eKLR the court (Gikonyo J awarded KShs.1, 000,000/= for loss of dependency where the deceased child was aged Nine (9) years, a bright student who was always in position one to three in their class and expressed her desire to be a doctor upon completion of her education but all her dreams were shattered by the untimely death.
35.In a more recent case, Savannah Hardware v EOO (Suing As representative of SO (deceased)  eKLR, the court held the view that Kshs. 700,000/= was adequate. In the case herein, the appellant had suggested an amount of Kshs. 900,000/= which, in my view, given the inflation rate and the number of years this case has been before the courts for determination, is not reasonable. I hereby award Kshs. 1,500,000/=.
36.Looking at awards made under loss of expectation of life, the Court in the case of Rose v Ford  AC 826, held that damages for loss of expectation of life can be recovered on behalf of a deceased’s estate and in Benham v Gambling  AC 157 it was held that-
37.The deceased herein was 7 years of age at the time of death. The conventional award for loss of expectation of life ranges from Kshs. 100,000/= to 200,000/= as per comparable authorities. I am guided by the decision of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR where the court observed that:-[Also See Joseph Gatone Karanja v Michael Ouma Okutoyi & 2 Others  eKLR].
38.In regards to pain and suffering, it is not clear whether the deceased died immediately after the accident or how long he took before he died. As correctly noted by the appellant, there was no death certificate produced by the respondent. The deceased allegedly met his death after having been attacked by a crocodile and as submitted by the appellant and in the given scenario of attack, it is evident that the deceased died immediately after the accident happened. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another  eKLR, the Court stated as follows;
39.In view of the above decisions and bearing in mind that this court is exercising its discretion, I find that the award of Kshs. 30,000/= for pain and suffering is sufficient having in mind the high inflation rate currently witnessed in our country as opposed to the appellant’s proposed amount of Kshs. 10,000/=.
40.In regard to special damages, the law is quite clear on the head of damages called special damages. Special Damages must be both pleaded and proved before they can be awarded by the Court. Suffice it to quote from the decision of the Court of Appeal in Hahn v Singh, Civil Appeal No. 42 Of 1983  KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:
41.In the current case, the same has not been controverted and therefore, I will proceed and award the amount pleaded by the respondents. I therefore award damages as follows;Pain and suffering…………………….Kshs. 30,000/=Loss of life expectation……………….Kshs. 100,000/=Loss of dependency……………….….Kshs. 1,500,000/=Special damages………………………Kshs. 40,000/=Total…………………………………….Kshs. 1,670,000/=Less 20% contributory negligence...Kshs. 1,336,000/=
42.In the above premises, I set aside the decision of the trial court on quantum and enter judgment as above.
43.Each party to bear its own costs.
44.It is so ordered.