The Respondent’s Submissions.
10.The respondent submitted that the appellant’s claim of faulting the liability was baseless as parties had entered into a consent apportioning liability in the ratio of 80:20 in favour of the Respondent. That the issue of proving liability on a balance of probability did not exist.
11.It was the respondent’s submission that the award of Kshs 20,000 for pain and suffering was inadequate. That even though the deceased died on the spot, he suffered tremendous pain before his demise. That the same ought to be reviewed up to Kshs 50,000.It was his further submission that the award of Kshs 100,000 for loss of expectation of life was reasonable.
12.The respondent submitted that the Plaintiff died at the age of 58 years and at the time of his death, he was a businessman in the hospitality industry and that he also owned a motor cycle which generated daily income. That the deceased earned a net profit of Kshs 150,000 per month. It was the respondent’s further submission that the deceased had 11 dependants and it was reasonable to expect that he would spend a large chunk of his income on his dependants. That the dependency ratio of 2/3 was reasonable.
13.It was the respondent’s submission that the deceased being a businessman would have run his business up to the age of 80 years and that due to the vagaries of life, the deceased might have worked up to the age of 70 years. That a multiplicand of 12 would be reasonable. It was the Respondent’s further submission that the award of Kshs 2,400,000 was reasonable.
14.The respondent submitted that he proved his claim for Special Damages as he produced receipts from Harmony Funeral Services and Harmony Classic Events.
The Defendant’s/appellant’s Case.
15.The appellant through his defence denied the occurrence of the accident and any negligence on his part.
16.It was the appellant’s case that if any accident happened, it was caused solely by the negligence of the respondent. He particularized the negligence in paragraph 5 of the plaint.
17.The appellant stated that motor vehicle registration number KBH xxxx was well serviced and in good condition.
18.The appellant did not call any witness or file any documents in aid of his case in the trial court. He also failed to file written submissions in the present Appeal.
20.I have read through and considered the Record of Appeal dated 19th January 2021, the Memorandum of Appeal dated 24th April 2019 and the respondent’s Written Submissions dated 16th September 2022 and the only issue for my determination was whether award for general damages was inordinately high.
21.Before evaluating the damages, I proceed to dismiss Grounds (i),(ii),and (iv) in the Memorandum of Appeal which relate to liability as the parties recorded consent on liability before the trial court on 17th September,2018. I also dismiss Grounds (iii) and (vii) as the Appellant did not tender any evidence in the trial court. These Grounds only go to demonstrate that the appellant’s Counsel was not familiar with the proceedings.
23.In the case of Tayab Vs Kinanu(1983) eKLR, the Court of Appeal commented as follows:-
24.In regard to the pain and suffering, the trial court awarded Kshs 20,000. The trial court stated that the basis of the award was that the deceased had died on the spot. In the case of in Acceler Global Logistics v Gladys Nasambu Waswa & Another (2020) eKLR, Mativo J (as he was then) observed:-
26.PW1 testified that the deceased died on the spot and when he reached the accident scene, the deceased’s body had already been taken to the mortuary. He produced a Certificate of Death that was marked as P Exh 2 which indicated that the deceased died on 22nd May 2013, the same day the accident occurred. The Appellant did not controvert the evidence tendered by PW1. It is therefore my finding that the deceased died on the spot and the award of Kshs 20,000 was reasonable.
28.The courts have overtime adopted the figure of Kshs 100,000/= for loss of expectation of life and I see no reason why this court would interfere with the trial court’s award of Kshs 100,000. It is my finding that the said award was reasonable.
29.On the issue of loss of dependency, section 4 of the Fatal Accidents Act provides as follows-
31.The Respondent claimed that the deceased earned Kshs 150,000 and that he also had income from his Motor Cycle business commonly referred to as boda boda. PW2 testified that she made entries in the books of account of the deceased’s hotel. She produced the ledger book as P Exh 13. PW1 testified upon cross examination that the deceased earned Kshs 500 per day from his boda boda business.
32.A look at the Ledger (Exhibit 13) reveals that the entries made were generally expenses, purchases, wages and net sales. There was no explanation from PW2 how they arrived at the monthly sum of Kshs 150,000 which was net profit. In fact, upon cross examination, PW2 stated that she was not an accountant. Additionally, there was also no evidence to back up the assertion that the deceased earned Kshs 500 per day from his Motor Cycle.
33.The trial court awarded Kshs 2,400,000 as loss of dependency. It broke down the award by reasoning as follows that since the trial court could not confirm the entries in the books of accounts, it stated that Kshs 50,000 was a reasonable sum for the deceased’s monthly earnings. That since the deceased was a business man, he would have been expected to be active in business up to the age of 70 years. The trial court then used the dependency ratio of one third as it noted that the deceased’s children were all adults.
36.I am persuaded by the two cases above. In the circumstances of the present case, I agree with the trial court’s award of Kshs 50,000 as monthly income. I find the award reasonable and the same is upheld.
37.On the issue of multiplier, the respondent submitted that the deceased died aged 58 years old and that he would have been expected to work until he was 70 years old. That therefore a multiplier of 12 would be reasonable. The trial court in its Judgment adopted the same reasoning and used the multiplier of 12.
39.I agree with the submission of the respondent that If the deceased remained in good health, it would have been expected that he could have worked for another ten to twelve (10-12) years. It is my finding that the multiplier of 12 used by the trial court was reasonable in the circumstances.
41.The respondent submitted that the deceased spent a large chunk of his income on his 11 dependants and that the ratio of 2/3 would have been appropriate and reasonable. The trial court noted that all the deceased’s children were adults and it therefore used the ratio of 1/3.
42.The particulars of the deceased’s dependants were contained in paragraph 5 of the Plaint and the age of the dependants ranged between 20 -55 years with the exception of two dependants who were the deceased’s grandchildren.
43.It was not stated in evidence the extent to which the dependants relied on the deceased for their subsistence. PW1 who was the deceased’s eldest child testified that he was employed by Kenyatta University. This then meant that he had a stable income and was not entirely dependent on his father.
44.I agree with the trial court’s use of the ratio of 1/3. It is assumed that since all his children were above 18 years, each of them would have some form of income, stable or not and that the deceased would have spent a 1/3 of his income on them. I therefore see no reason to disturb the ratio of 1/3 as the dependency ratio.
45.With regard to Special Damages, section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows:-
46.The respondent stated that he had incurred a cumulative Kshs 196,700 being funeral expenses, charges incurred in taking out Letters of Administration and Mortuary Fees. These were Special Damages that ought to be proved.
47.The respondent produced receipts from Harmony Funeral Services dated 26th May 2013 and another one from Harmony Classic Events dated 31st May 2013 which indicated that the Respondent had spent Kshs 169,500. The Receipts were produced as a bundle that was marked as P Exh 13. The respondent also produced a Mortuary Fee receipt marked as P Exh 11 which showed that he had incurred Kshs 7,200. I have not found any evidence on record to support the assertion that he incurred Kshs 20,000 for taking out of the Letters of Administration.
48.It is salient to note that the veracity of the aforementioned receipts was not challenged or tested in cross examination.
49.Flowing from the above, it is my finding that the trial magistrate erred in awarding Kshs 169,500 as Special Damages. The respondent had proved that he incurred Kshs 7,200 as Mortuary Fees by producing the receipt which was not factored into the award. Therefore the award of Kshs 169,500 is set aside and substituted with Kshs 176,700 as Special Damages.
50.In light of the foregoing, I have found no merit in the Appeal dated 24th April 2019 It is dismissed.
51.In the final analysis, the award to the respondent is varied as follows:-i.Pain and Suffering Kshs 20,000ii.Loss of expectation of life Kshs 100,000iii.Loss of Dependency Kshs 2,400,000Kshs 2,520,000Less 20% Contribution Kshs 504,000Kshs 2,016,000Add Special Damages Kshs 176,700TotalKshs 2,192,700
52.The respondent in awarded costs of the suit in the lower court and interest thereon and costs of this appeal.