Mugambi & another v JNN (Suing as the Legal Representative of the Estate of SMM - Deceased) (Civil Appeal E006 of 2020) [2023] KEHC 18271 (KLR) (16 February 2023) (Judgment)
Neutral citation:
[2023] KEHC 18271 (KLR)
Republic of Kenya
Civil Appeal E006 of 2020
EM Muriithi, J
February 16, 2023
Between
Peter Mugambi
1st Appellant
Mutuma Keneth Muturia
2nd Appellant
and
JNN (Suing as the Legal Representative of the Estate of SMM - Deceased)
Respondent
(An appeal from the Judgment of Hon. E. Tsimonjero (R.M) in Meru CMCC No.168 of 2019 delivered on 9/9/2020)
Judgment
1.Before the trial court was a claim commenced by a Plaint dated 12/6/2019, in which the Respondent herein (the Plaintiff in the trial court) sued the Appellants herein (the 1st and 2nd Defendants in the trial court) seeking special damages of Ksh 132,625/= plus interest from the date hereof until payment in full, general damages under the Fatal Accident Act and Law Reform Act, costs of the suit and interest at court rates.
2.The Respondent pleaded that on or about 14/9/2018, the deceased was lawfully travelling as a fare paying passenger in motor vehicle registration No KCH 168 U Toyota Matatu along Meru-Chuka Road when the 2nd Appellant drove/managed and/or controlled motor vehicle Registration No KCQ 062 X Toyota Hilux (which was ferrying miraa) so negligently, carelessly and dangerously that an accident occurred involving KCH 168 U and KCQ O62 X occasioning the deceased severe and fatal injuries. She pleaded that the deceased, aged 36 years, sustained very severe bodily injuries from which he died, and his life was wrongfully cut short. She also pleaded that the deceased, who was a driver earning a net monthly income of Ksh 25,000/= was the main bread winner and supporter of the family, and by reason of his death, the Respondent and other dependants of his estate suffered loss and damage.
3.The Appellants denied the claim by their statement of defence dated on 4/7/2019 and prayed for the Respondent’s suit to be dismissed.
4.After conclusion of the trial, the trial court found the Appellants to have been 100% liable for the accident and awarded general damages of Ksh 20,000 for pain and suffering, Ksh 100,000 for loss of expectation of life, Ksh 2,533,384 for loss of dependency and special damages of Ksh 132,625 totaling to Ksh 2,786,009 plus costs and interest.
The Appeal
5.On appeal, the Appellants filed their Memorandum of Appeal on 8/10/2020 listing 5 grounds as follows:1.The trial magistrate misdirected himself as to the facts of the case thus arriving at an erroneous decision.2.The learned trial magistrate erred in law and fact by awarding inordinately high general damages to the Respondent.3.The learned trial magistrate erred in law and fact by failing to consider the Appellants’ submissions and authorities on quantum and hence, arriving at an erroneous decision.4.The learned trial magistrate erred in law and fact by awarding damages that were inordinately high as to constitute a miscarriage of justice in the circumstances of the case.5.The learned trial magistrate’s judgment as a whole is not supported by the evidence that was tendered in court by the parties.
Duty of the court
6.This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others [1968] E.A. 123). A Court of Appeal would not normally interfere with a finding of fact by the trial court unless it was based on no evidence or it was based on a misapprehension of the evidence or the judge was shown demonstrably to have acted on wrong legal principles in reaching the finding he did. (See Sumaria & Anor v Allied Industrial Limited (2007) 2 KLR 1).
The Evidence
7.PW1 JN, the Respondent herein, produced the Demand Letter, Death Certificate, Post Mortem Report, Police Abstract, Limited Grant and Receipt for specials as exhibits in court. After adopting her statement dated 12/6/2019, she testified that:
8.On cross examination, she stated that:
9.On re-examination, she stated that:
10.PW2 Elijah Kibwi, a lorry transporter testified that:
11.On cross examination, he stated that:
12.On re-examination, he stated that:
Submissions
13.The Appellants urge that the trial court’s award was erroneous and excessive, as the deceased profession and income were not proved, and rely on Mwita Nyamohanga & Another v Mary Robi Moherai (suing on behalf of the estate of Joseph Tagare Mwita (Deceased) & Another (2015)eKLR. They urge the court to adopt a multiplicand of Ksh 7,241 which is the applicable minimum wage for a general labourer in force in 2018 when the deceased was alive, or in the alternative to subject the deceased alleged income of Ksh 25,000 to statutory deductions, and cite Tobias Odoyo Oburu v Jane Kerubo Miruka & Another (suing as the legal representatives of John Onywoki Sanganyi (Deceased) & Another (2018) eKLR and Simeon Kiplimo Murey & 3 others v Kenya Bus Management Services Limited & 4 Others (2014) eKLR.
14.The appellants further urge the court to adopt a multiplier of 13 years since the deceased was aged 36 years, and rely on Edner Gesare Ogega v Aiko Kebiba (Suing as father and legal representative of the Estate of Alice Bochere Aiko – Deceased) (2015) eKLR, Ann Njoki Njenga v Umoja Floor Mills & Another (2006) eKLR, Asha Mohamed Swaleh v Kennedy Bindi Muriungi & Another (2012) eKLR and Kamau & 2 others v Mugamangi & another (2004) eKLR. They urge that the Respondent failed to prove any dependency on the deceased, and the trial court’s adoption of a dependency ratio of 2/3 was unjustified, and rely on Abdalla Rubeya Hemed v Kajumwa Mvurya & Another (2017) eKLR. They urge the court to adopt a dependency ratio of 1/3, and cite the Court of Appeal case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited (2015) eKLR. They submit that the Respondent was not entitled to any amount under special damages and urge the court to set the same aside. They urge that the award for loss of expectation of life is exhausted and thus not awardable, and pray for the appeal to be allowed. They cite David Bagine v Martin Bundi (1997) eKLR and Wakim Sodas Limited v Sammy Aritos (2017) eKLR to support their submissions.
15.The Respondent submits that the trial court took into consideration the factors it ought to consider in arriving at the award of Ksh 2,533,384, and relies on DKM (Suing as legal representative to the estate of JMM - Deceased) v Mehari K. Towolde (2018) eKLR, Nixon Asava Mukisa & Another v Michael Chomba Mburu (2021) eKLR and Gordon Ouma Sunda & Another v Adan Abdikadir Omar & Another (2019) eKLR. She urges the court to find that the issue of double compensation does not arise to warrant reduction of the award of loss of expectation of life from that of loss of dependency, and relies on Leonard Ochar Otieno v Mathews Mwanza Wanga (Suing as the legal administrator of Kennedy Owino Wanga (deceased) (2020) eKLR. She urges that she specifically pleaded and proved her claim for special damages, and prays for the appeal to be dismissed with costs.
Analysis and determination
16.After considering the grounds of appeal as listed, the issues for determination are two-fold (a) whether the award made by the trial court was inordinately high; and (b) whether the Appellants’ submissions and authorities were considered.
Excessive general damages
17.The principles on when an appellate court would interfere with the findings of fact by the trial court on quantum are now trite as observed by the Court of Appeal in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR in the following terms:
Pain and Suffering
18.The evidence on record is that the deceased was travelling together with his wife, the Respondent herein and their son when they were involved in an accident. Although the Respondent and her son survived, the deceased was not lucky enough to survive. This court finds that the sum of Ksh 20,000 for pain and suffering awarded by the trial court was justified, taking into account that although the deceased died on the spot, he must have undergone some agonizing pain.
Loss of expectation of life
19.It is settled that the conventional figure awardable under this head is Ksh 100,000, which is what the trial court awarded, after considering the fact that the deceased was only 36 years and in good health with no history of terminal illnesses.
Loss of dependency
20.In considering the question of dependency, the Court respectfully notes the decision of the court in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR (P.J.O. Otieno J.) as follows:-
21.PW1 affirmed on cross examination that the deceased, who was her husband:
22.The employer of the deceased testified as PW2 and after confirming that indeed the deceased was his employee, he stated that he used to pay him Ksh 25,000 per month in cash. That was proof on a balance of probabilities that the deceased, a married man with 2 children, was gainfully employed as a driver by PW2. Even though the Respondent did not produce any document to prove the said earnings of the deceased, it must be taken that the deceased, like every family man, was engaged in some income generating venture to support his wife and 2 children. The trial court, in addressing the uncertainty of the earnings of the deceased, adopted a multiplicand of Ksh 16,667 which had been proposed by the Appellants in their submissions.
23.This Court associates itself with the sentiments of the Court of Appeal in Jacob Ayiga Maruja & anor v Simeon Obayo (2005) eKLR that the absence of proof of the deceased earnings in form of receipts cannot be construed to mean he was not working for gain, in the context of the prevalent reality of informal employment in Kenya.
24.It is clear that the deceased, who was a married man with 2 school going children, was aged 36 years, and enjoying good health. The deceased would have been expected to have worked until the age of 60 years, had his life not been shortened by the negligence of the Appellants. This court thus finds that the application of a dependency ratio of 2/3 and a multiplier of 19 years by the trial court were proper. There is still 5 years short of the actual difference between the retirement age and age at death, which caters for any vicissitudes of life that could shorten his full working life.
Special damages
25.It is trite law that special damages should not only be specifically pleaded, but also strictly proved. The court notes the receipts for special damages totaling to Ksh 70,120. There is an invoice for Ksh 14,855 and 2 receipts from Gakwegori Funeral Home Ltd for Ksh 15,000 and Ksh 2,750 respectively. It is trite law that an invoice is not a receipt. The trial court, even after stating that, “the receipts in support of funeral expenses do not appear to be authentic” went ahead to award the same, because when a person dies, a reasonable sum of money must be expended towards having the body interred and the guests entertained and most importantly fed.
26.This court respectfully agrees with the commonsensical position observed in Peter Ngari Njeru v Alchanger Njue Kithogo & Josphat Njue (Suing as Legal Representatives of Eugenio Muchori Njue – Deceased) [2019] eKLR where (F. Muchemi J.) held that:
27.This court finds that the award of special damages of Ksh 132,625 was justified in the circumstances.
Consideration of the appellants’ submissions and authorities
28.The trial court duly considered the Appellants’ submissions and authorities when it ruled as follows:
Orders
29.Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed.
30.The Respondent shall have the Costs of the Appeal to be paid by the Appellants.Order accordingly.
DATED AND DELIVERED ON THIS 16TH DAY OF FEBRUARY, 2023.EDWARD M. MURIITHIJUDGEAppearancesMs. Oteko Advocate for the AppellantsMr. Mutuma Advocate for the Respondent