TB v MOO & another (Suing as the legal representatives of the Estate of the Late LM - Deceased) (Civil Appeal 79 of 2021) [2025] KEHC 3520 (KLR) (6 March 2025) (Judgment)
Neutral citation:
[2025] KEHC 3520 (KLR)
Republic of Kenya
Civil Appeal 79 of 2021
DKN Magare, J
March 6, 2025
Between
TB
Appellant
and
MOO
1st Respondent
WKO
2nd Respondent
Suing as the legal representatives of the Estate of the Late LM - Deceased
Judgment
1.This is an appeal from the Judgment and decree of Hon. G.N. Barasa (RM) dated 3.3.2020 arising from Ogembo SPMCC No. 232 of 2017. The lower court heard the parties and proceeded to render the impugned judgment in the following terms:a.Liability 80:20b.Loss of expectation of life Ksh 100,000/=c.Loss of dependency Ksh. 1,000,000/=d.Special damages Ksh. 45,000/=e.Pain and suffering Ksh. 100,000/=Total Ksh. 1,245,000/=
2.The Appellant was a defendant in the lower court. The Respondent was an administrator of the estate of a two year old baby who died as a result of an accident on 28.6.2017 at Mangusu market area. The baby died at Akemo Valley Hospital.
3.The Appellant, aggrieved by the lower court's finding, appealed herein vide a mmemorandum of appeal on 13.7.2021. The appeal is against liability and award of general damages. The Appellant posited that the lower court made an inordinately high award. The Appellant sought to set aside the finding on liability.
4.The Memorandum of Appeal is prolixious and unseemly. It is a 10-paragraph monolith raising only two issues; that is liability and quantum. This offends Order 42 Rule 1 of the Civil Procedure Rules, which provides as doth: -
5.The Court of Appeal had this to say about compliance with Rule 86 now [88] of the Court of Appeal Rules, (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
6.In the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that : -
Pleadings
7.The Respondent, vide a Plaint dated 5.12.2017 claimed damages for an accident that occurred on 28.6.2017 when the deceased infant was a pedestrian off the road at Nyangusu Market when the Appellant, her driver or agent negligently and dangerously drove motor vehicle Registration No. KBA XXXX, lost control and hit the deceased.
8.The Respondents set forth particulars of negligence for motor vehicle Registration No. KBA XXXX. They pleaded special and general damages under the Law Reform Act and Fatal Accidents Act. The Respondents indicated that the deceased left behind the respondents who were the deceased’s father and mother. The Appellant entered appearance and filed defence dated 20.3.2022, denying the particulars of negligence, res ipsa loquitor and injuries pleaded in the plaint. They also set forth particulars of negligence of the deceased baby.
9.Subsequently, the Appellant amended the plaint and introduced special damages of Ksh. 120,000/= being funeral expenses and special damages.
Evidence
10.At the hearing, PW1 was the mother WKO who testified and produced exhibits including receipts for Ksh. 120,000/=. She relied on her witness statement dated 5.12.2017. She testified that the motor vehicle Registration No. KBA XXXX lost control, veered off the road and hit the minor. On cross examination she stated that she saw the accident happen.
11.The Defendant did not testify but called a police officer. The officer stated that the accident did happen and as a result the minor succumbed to injuries. He stated that the child was at the parking lot. The driver removed the child but the child went back. She realized only on screams from members of the public. On cross examination he stated that the driver saw an NTSA vehicle and went back to parking and the accident occurred. I do not know how the court believed such evidence. I shall revert shortly.
Submissions
12.The Respondent filed submissions dated 6.11.2024 by which it was submitted in material that the findings of the lower court on quantum and liability was proper and so the appeal is unmerited.
13.It was submitted in this regard that the deceased minor, 2 years old was at the parking lot and not crossing the road and was accompanied. Based inter alia on Bozman v State 177 md 151 9A 2d 60 (1939), it was submitted that the child of tender years would not be held to the same measure and care as required of a prudent adult. Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) (1981) KLR 349 was also cited to anchor this position.
14.On quantum it was submitted that the award of pain and suffering of Ksh. 100,000/= was proper as the deceased died several hours after the accident. They, among others, relied on Beatrice Mukulu Knaguta & Another v Siverstone Quarry & Another (2016) eKLR.
15.On loss of expectation it was submitted that the award of Ksh. 100,000/= was adequate as the deceased lost life at a tender age of 2 years. The Respondent cited Daniel Mwangi Kimemia & 2 Others v JGM & Another (2016) eKLR.
16.On loss of dependency, it was submitted for the Respondent that the multiplicand of Ksh. 10,000/= and multiplier of 42 years was proper as adopted by the lower court.
17.The Respondent submitted that the choice of whether to apply the multiplier or global sum approach was at the discretion of the court and such discretion herein was properly exercised. Reliance was placed on the case of Francis Odhiambo Nyunja & 2 Others v Josephine Malala Owinyi (2020) eKLR.
18.I have not had sight of the Appellant’s submissions.
Analysis
19.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
20.This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
21.It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
22.On damages the Appellant submitted that Ksh. 30,000/- would be adequate award under pain and suffering. In Civil Appeal No. 42 of 2018 Joseph Kivati Wambua vs SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased) paragraph 21 Hon. Odunga J (as he then was) observed: -
23.It must be remembered that damages are at large and are not a mathematical exercise. Where the deviations in the overall award are minimal, the court will not interfere with the award under the various heads, except for special damages that require specificity. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR , Justice D.S Majanja held as doth:
24.Award of pain and suffering depends on whether the deceased died on the spot or after some time. That is, damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. Where a deceased died on the spot, courts have taken the approach that minimal damages should be granted, unlike in a case where a deceased dies later on. In this case, the deceased passed away on the same day of the accident, but hours later. He cannot be said to have died on the spot. He died, according to the certificate of death and the evidence on record at Kisii Teaching and Referral Hospital, as a result of chest injury due to blunt force trauma in the chest secondary to a road traffic accident.
25.The question, therefore, is whether the award of Ksh. 100,000/= for pain and suffering was excessive. The damages for pain and suffering were awarded at 100,000/=. The deceased died after some hours of excruciating pain. The court awarded nominal damages of 100,000/=. The Appellant proposed Ksh.10,000/= under this head while the Respondent submitted that the award of Ksh,. 100,000/- was proper. In Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, the court, Justice W. Musyoka stated as doth; -13.In Sukari Industries Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the trial court awarded Ksh,. 50,000.00 for pain and suffering, the appellate court captured the spirit of the law on the issue when it stated:“[5]On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Ksh, 10,000 to Ksh, 100,000 over the last 20 years hence I cannot say that that the sum of Ksh, 50,000 awarded under this head is unreasonable.”
26.The awards under this head are nominal and do not represent the pain the deceased suffered. In granting nominal damages, looking at damages from other perspectives is necessary. It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry and the economy. In the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra), it was stated that:
27.I do not find nominal damages for a person who died after three or so hours to be inordinately excessive. I do not find a reason to disturb the discretion of the court. The appeal in respect thereto is therefore dismissed.
28.On loss of expectation of life, the Appellant did not submit how this award was excessive. I find that the award of Ksh. 100,000/- under loss of expectation of life was not excessive and is hereby upheld. The deceased did not die after suffering elongated pain for some hours. In Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR it was observed that:
29.Under loss of dependency, the court will address two aspects, that is, the multiplier and the dependency ratio. This is not proper for a minor. The use of multiplier is not good for a minor as they do not have an income. A global award will suffice. In the circumstances, a child of 2 years will attract a global award of Kshs. 800,000/=. I therefore set aside the award and replace it with Ksh. 800,000/=. In Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:
30.The court cannot base an appeal decision on conjecture, hyperbole, and surmises. The court cannot pick a figure arbitrarily. The duty of the court regarding damages is settled, and the state of Kenya's economy and the people generally, as well as the welfare of the insured public, must be at the back of the mind of the trial court. In the case of Butler vs. Butler Civil Appeal No. 43 of 1983 (1984) KLR, Keller JA stated the following regarding the award of damages.
31.Finally, in deciding whether to disturb the quantum given by the lower court, the Court should be aware of its limits. As an exercise of discretion, it should be done judiciously and conclusively in circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
32.The court of appeal pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs. Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
33.The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
34.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. The use of a global figure is cleaner. In the case of China Civil Engineering & another v Mwanyoha Kazungu Mweni & another [2019] eKLR the court stated as follows;
35.The second question is liability. There is an appeal on liability. No appeal against the award on special damages. Therefore, the Appellant’s evidence having been that she was aware of the presence of a child in the parking lot, it was foolhardy to proceed when the child is in front. The reality, from DW1, is that the Appellant was interested in running away from NTSA. Therefore though there is no cross appeal, the finding of a 2 year old as liable is a nullity. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
36.There cannot be a basis for letting a nullity remain. Under the circumstances, the finding on liability is set aside. The correct finding is that either the driver was liable or not. A child of 2 years cannot be held liable for contributory negligence. In the circumstances, the Appellant is to be 100% liable. The finding of contribution is unlawful.
37.This court is entitled under article 165(6) to be satisfied with the legality of proceedings. In this case, it was not legal to find a child negligent. I am perturbed by the court's decision to blatantly ignore the Court of Appeal decision with abandonment. It is even shocking that the court ignored the tenets relating to section 112 of the Evidence Act.
38.In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice G V Odunga as then he was stated as doth:41.Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make the adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”
39.The court awarded Ksh 48,000/= when Ksh 120,000/= was proved. However, there is no cross-appeal. I shall let the sleeping dogs lie.
40.In the circumstances, the appeal is partly allowed and partly quashed for being a nullity pursuant to Article 165(6) of the Constitution.
Determination
41.In the upshot, I make the following orders: -a.The appeal on liability is quashed as it is a nullity. The Appellant shall be 100% liable.b.Appeal on special damages is dismissed.c.Appeal on loss of expectation of life is dismissed.d.Appeal on the loss of dependency is allowed. The award is set aside and replaced with a sum of Ksh. 800,000/=.This works as follows:i.Pain and suffering Ksh. 100,000/=ii.Loss of dependency Ksh. 800,000/=iii.Loss of expectation of life Ksh. 100,000/=iv.Special damages Ksh. 45,000/=Total - Kshs. 1,045,000/=e.Appeal on pain and suffering is dismissed.f.Stay of execution for 30 days.g.The Deputy Registrar of this court to serve the court with this order.h.File is closed.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 6TH DAY OF MARCH, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Nanjira for the AppellantWere holding brief for Oremo for the RespondentCourt Assistant – Michael