Buscar (e.a) Limited v Omari Kukera Ruwa & 1 other

5. On liability – there was an accident between motor vehicle KCF 250Y and KAU 644Z/ZE 4084 and that the motor vehicle KCF 250Y in which the deceased was travelling was to blame at 100% 6. On damages, the court made the following awards:- 7. Liability 100% 8. Pain and Suffering Kshs.50,000 9. Loss of expectation of life Kshs.100,000 10. Loss of dependency Kshs.2,200,000 11. Special damages Kshs.550 12. Costs and interest 13. The defendant was aggrieved and filed this appeal on the following grounds:- 14. The learned magistrate erred in fact and in law in finding that the respondent was entitled to General damages of Kshs.2,350,000/=. 15. The learned magistrate erred in fact and in law in finding that the respondent was entitled to Kshs.2,350,000/= under the Fatal Accident Act as the same was too high in view of the evidence tendered and thus the global sum awarded was too high and the same is not justified and is quite high. 16. The learned magistrate erred in fact and in law in failing to consider the appellant’s submissions on quantum. 17. The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature. It was proposed to ask the court for the following orders that: 1. This appeal be allowed with costs. 2. he judgment delivered on by principal magistrate be set aside. 3. The judgment delivered on 19th February, 2021 by Honourable Mayamba C.A Principal Magistrate, be set aside and the award made therein be re-assessed. 4 That cost of this appeal be borne by the respondents. 18. The appeal was canvassed by way of written submissions which I have considered. 19. It is evident from the Memorandum of Appeal that the issue of liability is not contested. 20. The issue for determination relate to the quantum of damages – it is contended that the learned trial magistrate erred in awarding the sum of Kshs.2,350,000/= without considering the appellant’s submissions hence arriving at a high unjustified award. The appellant seeks that the judgment be set aside, the award be re-assessed by this court. 21. The appellant submits that the court be guided by: Francis Odhiambo Nyunja & 2 others vs Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (deceased) [2020] e KLR where the court said: We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17211/eng@2024-09-20 2

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satisfied that the Judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga vs. Musila [1984] KLR 257). 22. The appellants seeks the review of the award from Kshs.2.2 million to Kshs.800,000/= on the following authorities- 23. Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] e KLR Ndungu J. set aside the trial courts global award of Kshs.2,000,000/= for loss of dependency for being excessive for a deceased who died at 28 years of age and substituted it with Kshs.1,500,000/=. 24. Gilbert Kimatare Nairi & Another (Suing as personal representative of the Estate of Jackline Sein Lemayian (Deceased) v Civiscope Limited [2021] e KLR. The deceased was 31 years old and the court awarded a global sum of Kshs. 600,000.00 for loss of dependency. 25. John Macharia Mwangi v Josphat Muriungi Muguongo & Another (Suing as the Legal Representative of the Estate of Christine Nkirote Muriungi (deceased) [2020] e KLR where the court awarded a global sum of Kshs. 1,000,000/= for loss of dependency where the deceased was aged 31 years and survived by two school going children as well as supporting her father, and her income had not been proved. 26. The appellant urges the court to award costs as per section 27 of the Civil Procedure Act. 27. The respondent takes the view that the court be guided by: Ephantus Mwangi vs Duncan Mwangi Wambugu [1984] e KLR: 1. That the findings were based on no evidence at all and/or; 2. The findings were based on misapprehension of evidence. 3. The trial court acted on wrong principles. 4. The award by the trial court was inordinately high or low in the circumstance. 5. On damages the contentious issue is the award on loss of dependency. 6. It is submitted that in the subordinate court the appellant submitted for the multiplier approach – using wage of kshs.10,000/= 2/3 dependency ratio for 15 years - Kshs.1.2 million while the respondent submitted for Kshs.4,000,000/=. 7. It is submitted that this court be guided by: Ndeti & Another (Suing on their own behalf and as administrators of the estate of Gerald Ndeti Mutua (deceased) v Mwangangi & Anorther (Civil Appeal E282 of 2021) [2022] KEHC 15732 (KLR) where it awarded the estate of the deceased a global sum of Kshs.2,500,000.00/= David Mbuba & Another v Victoria Mwongeli Kimwalu & Another [2018] e KLR when it awarded the estate of the deceased global sum of Kshs.2,500,000.00/= 28. I have carefully considered the judgment of the learned trial magistrate. It is evident that he analysed the submissions of the rival parties. He stated: On loss of dependency 18 I have carefully considered the submissions by the plaintiff in relation to loss of dependency. It was their claim that the deceased was a business lady earning but no evidence was attributed https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17211/eng@2024-09-20 3

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to the same. The claim that she was earning between Kshs.30,000 to Kshs.35,000 was without any fact at all. The nature of her engagement was also not established and contrary to the submission of the learned counsel for the defendant for the court to adopt Kshs.10,000 as her income would be tantamount to assumptions. 19. It is also my considered view that the deceased being a mother of 4 children had a direct role in their upbringing. Her contribution as a mother cannot be underestimated as shown by the learned counsel for the defendant who had proposed 2/3 as dependency ratio. On the multiplier, he has proposed 15 years but taken from her age at the time of her demise. She was just 35 years old, and taking the statutory age of retirement. She had 25 years before her final retirement from the service .the figure of Kshs.1,200,000 from the multiplier approach as submitted by the defendant would be based on assumption. I do not reject the multiplier approach owing to scarcity of facts. 20. In making my determination on loss of dependency, I am guided by the case of Albert Odawa vs Gichimu Githenji, Nakuru HCCA No. 15 of 2003(2007), e KLR where Justice Ringera expressed himself as follows: “the multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned where the facts do not facilitate its application. It is plain that it is a useful and practical method where f actors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation: where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do”. 21. It would be fair to adopt the global sum approach since this court could not rely on assumptions. The deceased at his age of 35, was clearly energetic and it could not be ruled out that she had a bright future ahead. It cannot also be ruled out that though this court was not able to gather her net worth, but still one could not assume that she had no economic activity going on for her. 22. I do having considered all the facts herein and do find that Kshs.2.2 million will be an adequate compensation for loss of dependency, having taken into account that the deceased was 35 years old and at the prime of her life, thus, her loss was enormous and the award is commensurate. 29. Evidently, he analysed the facts and arrived at his own assessment. 30. Was this erroneous? 31. Before I answer that I must point out that it is erroneous for the the appellant to treat the appellate court as the place to relitigate the claim by submitting figures lower than those submitted before the subordinate. Any consideration of revision of the award would have to begin from their base of Kshs.1.2 million because that is what they were willing to part with in the first place. 32. It is my view that the learned trial magistrate clearly explained his reasons for not applying the multiplier approach because there was no supporting evidence for the same – I agree with him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17211/eng@2024-09-20 4

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33. I have looked at the submissions by the respondent in the subordinate court – other than submitting for the global sum approach – they did not provide authorities for similar cases for the court simply stating:“ The deceased was aged 35 years and this is a proper case where a lumpsum should be awarded ,,,, Kshs.4,000,000 ,,, would adequately cater for the two wives and children left behind by the deceased”. 34. These submissions could not have been intended for this matter. The deceased was a wife and a mother and did not have “wives”. 35. In the circumstances is the award too high in the circumstances of this case? 36. The deceased was aged 35, it was the testimony of the plaintiff that she was running a business earning 30 – 35 thousand shillings a month but no evidence was availed. The trial court found that she was a mother who was dependend upon by her family and determined that the sum of Kshs.2.2 million was sufficient compensation. 37. I have looked at the authorities cited by the appellant – the youngest is for 2021 – the same year the judgment of the trial court was delivered – and in the Zachary case – the award of Kshs. 2,000,000 was revised to Kshs.1.5million in a similar case in 2021 38. The submissions by the defendant, if taken on its face value, targeted a man with two wives at Kshs. 4,000,000 which meant they were looking at Kshs. 2,000,000 for each. In the circumstances I would consider that the sum of 2.2 as awarded by the subordinate court not to be excessive – as there are comparative cases where the courts awarded kshs.2.5 million in the same period. 39. Hence I find that the trial court considered the submissions that were before it, the award is within comparable awards. 40. The appeal fails, the judgment of the subordinate court is sustained. 41. The respondent will have costs and interest here and below at court rates, plus costs of the appeal. 42. Orders accordingly DATED, SIGNED AND DELIVERED THIS 20 DAY OF SEPTEMBER 2024 SIGNED BY: LADY JUSTICE MATHEKA, TERESIA MUMBUA JUDGE CA Ms Nelima Mr Waiganjo for Respondent THE JUDICIARY OF KENYA. MAKUENI HIGH COURT HIGH COURT DIV DATE: 2024-09-20 15:49:09 https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17211/eng@2024-09-20 5

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