Atieno & another v Onyango & another (Suing as the legal representatives of the Estate of Rose Akinyi Juma (Deceased)) (Civil Appeal 21 of 2017)  KEHC 16810 (KLR) (20 December 2022) (Judgment)
Neutral citation:  KEHC 16810 (KLR)
Republic of Kenya
Civil Appeal 21 of 2017
RB Ngetich, J
December 20, 2022
Phoebe Atieno Alias Odanga Phoebe
Leeman Onyango Oduo
Paul Juma Onyango
Suing as the legal representatives of the Estate of Rose Akinyi Juma (Deceased)
(Being an appeal from the judgment of honourable Magistrate, L. Gicheha in Nakuru CMCC No. 880 of 2014 delivered on 26th January 2017)
1.This appeal arises from suit filed by the respondent as the plaintiff in the trial court. Plaintiff filed the plaint dated 1st August 2014 and amended on 6th October 2014 against the appellants seeking the following orders: -a.Special damages at Kshs. 143,700/=b.General damages under the fatal accident actc.General damages under the law reform Actd.General damages for pain and suffering.e.Costs of the suit.f.Interest on a, b, c and d at court ratesg.Any other relief the court deems fit.
2.From the plaint, the victim was a lawful passenger in motor vehicle registration No. KAZ 455F Nissan Matatu while the driver of Motor Vehicle KBX602S negligently managed the motor vehicle KBX602S, thereby causing it to collide with motor vehicle KAZ445F at Kinungi Naivasha. Plaintiff blamed the driver of motor vehicle KBX602S for the accident.
3.In response to the Plaint, defendant filed the statement of defence dated 22nd September 2014 and amended on 29th October 2014. The 2nd appellant denied all the averments in the plaint, the occurrence of the accident was denied but contended if the same happened it was solely on the negligence of the driver of Motor Vehicle KAZ 445F.
4.After trial, delivered by Honourable L. Gicheha delivered judgment on 26th January 2017 as follows: -a.Apportioned 100% liability to the appellant for the injuries sustained by the respondent.b.Awarded the respondent loss and dependency Kshs. 2,464,000/=, pain and suffering Kshs. 20,000/=, loss and expenditure Kshs. 100,000/=, and special damages Kshs. 143,500/=. A total sum of Kshs. 2,727,500/=c.Ordered the appellant to pay costs of the suit and interest.
5.Aggrieved by the said judgment the appellant filed a Memorandum of Appeal dated 22nd February 2017 citing the following five 5 grounds: -
6.Directions were given that the appeal is disposed of by way of written submissions, in which parties have complied.
7.In the trial court, the appellants did not call any witnesses.
8.The appellants filed the submissions dated 11th November 2021 and submitted that the trial magistrate erred in awarding the appellants 100% liability despite the evidence on record; that the production of the police abstract and the traffic court proceedings doesn’t amount to proof of negligence.
9.Counsel for appellant submitted that the driver of KAZ 445F Toyota Matatu also contributed to the accident.
10.On the issue of general damages, the appellant submitted that the trial court erred in arriving at the wrong principles to arrive at the high awards under the heading loss of expectation of life and loss of dependency. Under the loss of expectation of life, the award was inordinately high and contrary to the comparable recent decisions; and cited the case of James Gakinya Karienye & another suing as personal representative of the Estate of David Kelvin Gakinya (deceased) vs Perminus Kariuki Githinji where the court awarded Kshs. 80,000/= for loss of expectation of life for death taking place immediately after the accident.
11.Counsel submitted that the award of kshs. 2,464,00/= under loss of dependency by the trial magistrate was too high in that, the deceased met his death at the age of 43 years and was an employee earning a salary of Kshs. 30,000/= and expenditure of Kshs. 28,200/= the remainder is Kshs. 1,800/= and submitted that the trial court was supposed to adopt a salary of Kshs. 1,800 in place of Kshs, 22,000/= and therefore the trial court applied the wrong multiplicand and the basic salary; that multiplicand of 10 years would be appropriate considering the age of the victim and the imponderables of life.
12.Counsel for the appellant further submitted that the trial magistrate failed to give a basis of how she arrived at the amount contrary to Order 20 rule 4 of the Civil Procedure Rules and added that the trial court failed to consider the appellant’s submissions and awarded damages that were too high; that an award of Kshs. 80,000/= for loss of expectation and Kshs. 144,000/= for loss of dependency was sufficient compensation.
13.Counsel submitted that the trial court ought to have deducted the amount awarded under the Law Reform Act from the sum awarded under the Fatal Accidents Act as the beneficiaries in both acts are the same and thus amounts to double compensation and urged this court to interfere with the award of Kshs. 2,464,000/= under loss of dependency and deduct Kshs. 100,000/=awarded for loss of expectation of life and Kshs. 20,000/= awarded for pain and suffering.
14.On special damages of kshs. 143,500/=, the appellant submitted that the respondent only proved special damages of Kshs. 103,500/=and urged court to allow the appeal to interfere with the trial court's award and substitute the same with the judgment of this court.
The Respondent’s case
15.At the hearing, the respondent testified as PW1. He testified that Rose Akinyi Juma was his wife, who died on 31st December 2013 aged 43 years. PW1 testified they had 7 children with the deceased who depend on them. He testified the wife was involved in a road traffic accident at Kinungi- Naivasha, while abode motor Vehicle KAZ 445F, when the same collided with Motor Vehicle KBX 602S. for which the deceased sustained and suffered fatal injuries. The respondent blamed the drive of KBX602S for negligence. PW1 adduced in evidence a copy of the police abstracts.
16.According to the respondent, the 1st appellant was the registered owner of the motor vehicle KBX602S while the 2nd Appellant was the driver, and thus an agent of the 1st appellant.
17.The respondent testified that the 2nd appellant the driver of KBX 602S was charged in Naivasha Criminal Case No. 1 of 2014 and was fined Kshs100,000/= and in the alternative 8 years’ imprisonment. He adduced copies of the proceedings.
18.Further the respondent stated the deceased was in self-employment of selling and buying computer services earning a basic salary of Kshs. 45,000/= to Kshs. 50,000/=. The deceased had three casual employees who used to earn about Ksh 5,000/=, Kshs. 6,800, and Kshs7,800; he adduced a copy of the payout vouchers for the workers. He contends the deceased paid rent of Kshs. 6,000/= per month.
19.It was the testimony of the respondent that he paid for the mortuary, post-mortem, and for the hearse to transport the body from Naivasha to Kisumu.
20.The respondent submitted that the award of Kshs. 20,000/= for pain and suffering is adequate and it was in line with the appellant's submissions and the assertion that the court failed to consider the appellant's submissions do, therefore, hold water.
21.Counsel further submitted that the award of Kshs. 100,000/= for loss of expectation of life is adequate considering the victim died on the same day the accident happened cutting short her life and cited the case of David Kahuruka Gitau & Anor vs Nancy Ann Wathithi Gitau & Anor (2016) eKLR where Mativo J upheld an award of Kshs. 100,000/= for loss of expectation of life for a deceased that died immediately after the accident.
22.In addition, counsel contends the case relied upon by the appellants was delivered in the year 2015, where the court awarded Kshs. 80,000/= for loss of expectation of life, but the trial court considered the issue of inflation when arriving at an award of Kshs. 100,000/=
23.Under loss of dependency, counsel submits the victim earned a monthly salary of Kshs. 30,000/= after deduction of the expenditure of Kshs. 28,200/=. Counsel argues it’s illogical for the deceased to earn a monthly income of Kshs. 1,800/= while paying salary and house rent of Kshs. 6,800/=, Kshs. 7,000/= and 6,000/=as alleged by the appellants.
24.Counsel submitted that the deceased used to support her family before her demise and urged the court to uphold the trial court’s findings of dependency ratio of 2/3 and a monthly salary of Kshs. 22,000/= using a multiplicand of 14 years as the deceased was 43 years at the time of his death.
25.Counsel further submitted that the award for loss of expectation of life and loss of dependency does not amount to double compensation and urged this court to uphold the findings of the trial court.
26.On the issue of special damages, counsel submitted that they were specifically pleaded and proved. The Respondent attached the necessary receipts to support the claim. Counsel contends the court only awarded what was specifically proved and thus the award of Kshs. 143,500/= is sufficient. Further, the assertion by counsel that special damages proved were Kshs. 103,500/= was not proved.
27.Counsel urged the court to dismiss the appeal with costs.
Analysis and determination
28.This is the first appeal, this court is under an obligation to re-evaluate the evidence of the trial court and come up with its own conclusion. The court must have in mind that it did not have the chance to hear or heard the witnesses. As was held in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:
29.I have looked at the appeal and the submissions by counsel for both parties. The issues for determination are: -
30.The award on assessment of damages is a discretion of the trial court and the appellant court will not interfere with the discretion of the trial court unless it is satisfied that the trial court awarded excessive damages. General damages are aimed to compensate the injured party. The compensation must be fair to the injured person.
31.An appellate court will only interfere with the judgment of the lower court if the said decision is founded on wrong legal principles.
32.In Butt v Khan [1982-88] KAR 1- the court held: -
33.The appellant contends the trial court's award of damages under the head, loss of dependency was inordinately high, and the trial magistrate used the wrong multiplier. The trial court adopted a multiplier of 14 years and a ratio of 2/3, taking into account that the deceased earned a salary of Kshs. 1,800/=.
34.In the trial court, the respondent adduced evidence that the deceased was self-employed and earning a salary of Kshs. 50,000/= and Kshs. 30,000/= after deduction of bills and payment of salary of the three employees. The respondent contends the trial court correctly adopted the multiplicand of Kshs. 22,000/=
35.The deceased died at the age of 43 years, she was in self-employment, I know in self-employment retirement age could go beyond 70 years. therefore, I find the trial court considered the retirement age at 57 years and adopted a multiplicand of 14 years. At the hearing, the respondent contends the deceased helped in supporting the family and thus adopted a ratio of 2/3. Thus I find the trial court was appropriate in adopting the ratio of 2/3. On the issue of salary earned the deceased was in self-employment she paid salaries and bills, the respondent stated the deceased earned a salary of roughly Kshs. 50, 000/= inclusive of the bills and salary to be paid. The deceased after clearing all the bills remained with a salary of Kshs. 22,000/= which the trial court adopted.
36.In David Makau v Maua Mutie Ndunda  eKLR, the court awarded a multiplier of 10 years where a deceased was aged 51 years.
37.In the instant appeal, I do not find the trial court adopted the wrong multiplicand. I thus uphold the trial court award on the heading loss of dependency.
38.On the issue of special damages, the respondent in the trial court pleaded for special damages of Kshs. 143,700/= as follows: -
- Hearse serviced - Kshs.55,000/=
- Coffin - Kshs. 35,000/=
- Corpse clothing - Kshs. 18,000/=
- Advocates in Succ No. 215 of 2014 Kshs. 35,000/=
- Motor vehicle search - Kshs. 500/=
- Police Abstract - Kshs. 100/=
- Death Certificate - Kshs. 100/=
39.At the trial, the respondent adduced the following receipts as proof of payments of the motor vehicle search Exhibit 9, a receipt from Rodi Orenge Advocate Exhibit 10, a receipt for a coffin and corpse clothing paid to Ofunyu Jerusalem on 14/1/2014, MFI12, hearse services two receipts of Kshs. 40,000/= dated 2/01/2014 MFI13 the other for Kshs. 15,000/= dated 16th January 2014 MFI 14
40.From the record, I do find the special damages pleaded and specifically proved are Kshs. 143,500/=
41.The general rule is that for special damages they must be specifically pleaded and proved. I thus do not find the trial court erred in awarding damages of Kshs. 143,500/=
42.On loss of expectations of life, the trial court awarded Kshs. 100,000/= for pain and suffering. The appellant contends the award of kshs. 80,000/= is sufficient as the deceased died immediately after the accident. cited the case of James Gakinya Karienye & another suing as personal representative of the estate of David Kelvin Gakinya (deceased) vs Perminus Kariuki Githinji the court awarded Kshs. 80,000/= for loss of expectation of life for death taking place immediately after the accident.
43.On the other hand, the respondent contends the award of Kshs. 100,000/= is sufficient considering the inflation of time.
44.In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another  eKLR, the Court stated as follows: -
45.With respect to the above decision, I find the trial court award was within the limits and the court having been called to exercise discretion to interfere with the trial court award of Kshs. 100,000/=. I find the award was appropriate and thus I will not interfere with the finding of the trial court.
46.The appellant has further alleged that the trial magistrate disregarded their submissions. I have looked at the trial court judgment and I note the trial court did consider the arguments raised by the appellants, the only issue is the trial court did not agree with the appellants' submissions.
47.The other issue counsel has raised in the appeal is the trial court awarded damages under the heading of loss of expectation of life, pain and suffering and the loss of dependency thus amounting to double compensation.
48.The Court of Appeal in Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Mwenja (deceased) v Kiarie Shoe Stores Limited  eKLR, held as follows: -
49.From the above decision, there is no basis as to why damages for loss of expectation of life should be deducted from the award under loss of dependency. I thus do not find that the trial court erred in awarding loss of expectation of life of Kshs. 100,00/=.
50.In the circumstances, I find the appeal filed herein lacks merit and the same is dismissed with costs to the respondent.
JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF DECEMBER, 2022RACHEL NGETICHJUDGEIn the presence ofMartin - Court AssistantNo appearance for the parties