Kanyi v Kariuki (Suing as the Administrator and Legal Representative of the Estate of Dominic Macharia Ndungu - Deceased) (Civil Appeal 291 of 2023) [2024] KEHC 5822 (KLR) (23 May 2024) (Judgment)
Neutral citation:
[2024] KEHC 5822 (KLR)
Republic of Kenya
Civil Appeal 291 of 2023
FN Muchemi, J
May 23, 2024
Between
James Kanyi
Appellant
and
Mary Ngendo Kariuki (Suing as the Administrator and Legal Representative of the Estate of Dominic Macharia Ndungu - Deceased)
Respondent
(Being an Appeal from the Judgment and Decree of Hon. M. W. Kurumbu (PM) delivered on 1st December 2022 in Thika CMCC No. 539 of 2017)
Judgment
Brief facts
1.This appeal arises from the judgment of Thika Principal Magistrate in CMCC No. 539 of 2017 in a claim for damages for injuries sustained in a road traffic accident The Magistrate apportioned liability at the ratio of 70 : 30 with the appellant bearing 70%. The respondent was awarded damages for pain and suffering Kshs. 50,000/-; loss of expectation of life Kshs. 120,000/-; loss of dependency Kshs. 4,480,000/- and special damages at Kshs. 92,800/-.
2.Dissatisfied with the court’s decision, the appellant lodged this appeal citing 7 grounds of appeal summarized as follows:-a.The learned trial magistrate erred in fact and law and reached a verdict that is wholly against the weight of the law and the evidence presented before the court;b.The learned trial magistrate erred in law and in fact in awarding damages for loss of dependency at Kshs. 4,480,000/- which amount is manifestly excessive;c.The learned trial magistrate erred in law and in fact by adopting a multiplier of 28 years for the deceased without taking into consideration the prevailing range of comparable awards;d.The learned trial magistrate erred in law and in fact in applying a multiplicand of Kshs. 40,000/- where there was no documentary evidence adduced as proof of earnings.
3.Parties put in written submissions to dispose of the appeal.
Appellant’s Submissions
4.The appellant submits that the deceased at the time of death was a student and was not in employment. Further the only dependant as per the plaint was the respondent’s mother and the issue of the other two dependants came up only during oral testimony which the appellant contends that the trial court ought not to have considered. The appellant submits that loss of dependency ought to be assessed at Kshs. 326,160/-.
5.The appellant submits that the alleged dependants’ dependency on the deceased was not pleaded and neither was their age indicated to prove dependency. Further, the alleged dependants never testified to prove the loss of dependency occasioned to the deceased’s estate by his death as there was nothing tendered by the plaintiff to prove the alleged dependency on the deceased. Further, no witness tendered any credible evidence nor did any witness produce any documents to prove that the deceased was a graphic designer. The appellant contends that the certificate of attendance tendered as an exhibit did not show that the deceased was qualified as a graphic designer earning Kshs. 80,000/- It was not proved that the deceased was earning Kshs. 40,000/- per project and therefore the trial magistrate applied the wrong principles in adopting a multiplicand of Kshs. 40,000/- per project in computing loss of dependency.
6.The appellant further submits that a party is bound by his pleadings and it was incumbent upon the plaintiff to prove her pleadings on the issue of whether the deceased was a graphic designer and earning a monthly salary of Kshs. 80,000/- to arrive at the conclusion that he was working and supporting his parent and siblings at the time of death. The appellant further contends that the trial magistrate took into consideration irrelevant factors by comparing the daily earnings of a mason with those of a graphic designer to come up with an exorbitant award under loss off dependency.
7.The appellant contends that the trial magistrate did not take into consideration the authorities tendered by the parties to come up with the said award. There is no legal reasoning advanced in the trial court’s judgment why the court failed to appreciate both parties submissions and authorities to come up with the award on loss of dependency which is excessive.
8.The appellant relies on the case of Benedeta Wanjiku Kimani (Suing as the administrator of the estate of Samwel Njenga (Deceased) v Chanwon Cheboi & Another [2013] eKLR and submits that the awards under the Law Reform Act ought to have been the bearest minimal practicable and urge the court to scale them down.
The Respondent’s Submissions
9.The respondent relies on the cases of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & Another [1997] eKLR and CMC Aviation Ltd v Kenya Airways Ltd (Cruiser Ltd) [1978] eKLR and submits that the appellant did not call any witness to controvert the evidence tendered by herself on liability and therefore the learned magistrate was fair to apportion liability at the rate of 70 : 30 against the appellant.
10.The respondent submits that the deceased was 27 years old when he died and during the hearing, she testified that the deceased was a graphic designer earning Kshs. 80,000/- per month and was providing for the family. The respondent further states that she produced a certificate from Zetech College showing that the deceased completed a course in adobe page maker, adobe design, adobe illustrator, adobe photoshop, corel and Ms. Publisher. The trial magistrate exercised her discretion and adopted a multiplicand of Kshs. 40,000/-. The respondent further submits that the trial magistrate correctly argued that a mason was earning a minimum of Kshs. 1,000/- per day and a graphic designer would earn more than a mason per day. Additionally, the respondent submits that the trial magistrate was not obliged under the law to rely on Regulation of Wages (General Amendment) Order to determine the multiplicand where she testified that the deceased used to earn Kshs. 80,000/- per month. To support her contentions, the respondent relies on the case of Mwita Nyamohanga & Another v Mary Robi Moherai (Suing on behalf of the estate of Joseph Tagare Mwita (Deceased) & Another [2015] eKLR.
11.The respondent further relies on the case of P.N.M & Another (Suing as the legal representative of the estate of L.M.M) v Telkom Kenya Limited & 2 Others [2015] eKLR and submits that the age of the deceased was not disputed and since he was a graphic designer in the private sector, he would have worked well up to the age of retirement which is 65 years. As such the deceased would have worked for a further 38 years before retirement. The respondent states that there was no evidence adduced to the effect that the deceased was of ill health or was impaired in any way. Thus, the respondent contends that the trial court correctly exercised its discretion and adopted a multiplier of 28 years.
12.The respondent further argued that the appellant did not plead on the dependency ratio of 1/3 adopted by the trial court in his memorandum of appeal and thus the court is not bound to address the same as parties are bound by their pleadings.
13.The respondent states that in assessing damages, the trial court took into consideration the limits set out by decided cases and went ahead and quoted the comparable decided cases in her judgment.
Issues for determination
14.The main issues for determination are:-a.Whether the damages under the Law Reform Act were manifestly excessive.b.Whether the trial court awarded an inordinately high award for loss of dependency.
The Law
15.Being a first Appeal, the court relies on a number of principles as set out in Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
16.In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR the Court of Appeal stated that:-
17.From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:-a.That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;b.That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; andc.That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
Whether the damages under the Law Reform Act are manifestly excessive.
18.In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR the court stated:-
19.In the instant case, it is not disputed that the deceased died on the spot. The trial magistrate awarded a sum of Kshs. 50,000/-relying the case of Ngitarious Mwangi v Washington Odhiambo Wanyang [2017] eKLR. Given that the sums awardable under this head range from Kshs. 10,000/- to Kshs. 100,000/- from past authorities, the sum of Kshs. 50,000/- awarded by the trial court was reasonable and hence this court has no reason to interfere with it.
20.On the issue of loss of expectation of life, the trial magistrate awarded Kshs. 120,000/- which in my view was reasonable and does not present an erroneous estimate as claimed by the appellant. This award will not be disturbed and it is upheld.
Whether the trial court erred in awarding an inordinately high award for loss of dependency.
21.The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an Appellate court can interfere with an award of damages in the following terms:-
22.Similarly in Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:-
23.The Court of Appeal in Chunibhai J. Patel & Another v P. F. Hayes & Others [1957] EA 748, 749 stated the law on assessment of damages under the Fatal Accidents Act and held:-
24.In the instant case, the appellant is faulting the trial court for adopting a multiplicand of Kshs. 40,000/- and multiplier of 28 years. The appellant further raised an issue of proof of dependency in his submissions which was unprocedural. The Court of Appeal was confronted with a similar scenario in Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & Others ex parte Tom Mbaluto [2018] eKLR in interpreting Rule 104 of the Court of Appeal Rules which is equivalent to Order 42 Rule 4 of the Rules stated:-
25.The appellant argues that the trial court erred by using a multiplicand of Kshs. 40,000/- as the deceased’s monthly income yet the same was not proved by documentary evidence.
26.In Jacob Ayiga Maruja & Another v Simeon Obayo (2005) eKLR this court dealing with a similar situation in which a plaintiff had no documentary proof of the deceased’s earnings, stated as follows:-
27.According to the plaint dated 3rd June 2017, the respondent pleaded that the deceased was 27 years and he was a graphic designer earning Kshs. 80,000/- per month under the employment of Top Image Company Ltd but produced no documents to prove that the deceased was employed. However, the respondent produced a certificate from Zetech College to show that the deceased completed a course in Adobe Page Maker, Adobe Design, Adobe Illustrator, Adobe Photoshop, Corel Draw and Ms. Publisher. In my view, the certificate of Zetech College established that the deceased had attended courses that qualified him as a graphic designer.
28.Accordingly, the trial magistrate exercised his discretion and found that the Regulation of Wages (General) (Amendment) Order did not apply because the respondent proved that the deceased was a graphic designer and was not in the level of informal Sector Workers. It is therefore my considered view that the sum of Kshs. 40,000/- as adopted by the magistrate as basis of the multiplier, was reasonable. The respondent produced evidence of certificates to support her evidence that the deceased was a graphic designer. As such, the sum of Kshs. 40,000/- was based on evidence tendered by the respondent and ought not to be disturbed.
29.The appellant contends that the multiplier of 28 years adopted by the trial court is on the higher side as the learned magistrate failed to appreciate and be guided by the prevailing range of comparable authorities in making the award. The respondent submitted that the deceased was 27 years at the time of his demise and he was in good health. Furthermore, the deceased was a graphic designer working in the private sector and thus he would have worked for a further 38 years as the retirement age was 65 years in the said sector. It is my considered view that the multiplier of 28 years was reasonable.
30.The trial court in adopting the multiplier of 28 years was guided by the authorities in David Kimanthi Kaburu v Gerald Mwobobia Murungi (2004) eKLR where the court adopted a multiplier of 30 years in a case where the deceased met his death at the age of 28 years. Further in the case of Rosemary K. Kasina v Kenblest Limited (2004) eKLR and Lucy M. Njeri v Fredrick Mbuthia & Another (2006) eKLR where the court held that in informal sectors, the deceased would have worked till the age of 50-55 years.
31.The deceased was 27 years old at the time of his demise. Save for the accident that cut short his life the deceased was healthy and did not have any health complications. It is therefore my considered opinion that the multiplier of 28 years was reasonable.
32.In the premises, it is my considered view that the sum of Kshs. 4,480,000/- awarded by the magistrate for loss of dependency was not inordinately high in the circumstances of the case to warrant interference by this court.
Conclusion
33.In view of the foregoing, I find that the appeal lacks merit and is hereby dismissed with costs to the respondent.
34.It is hereby so ordered.
JUDGMENT DELIVERED, DATED AND SIGNED AT THIKA THIS 23RD DAY OF MAY 2024.F. MUCHEMIJUDGE