Yobesh Tinega v Kefa Mauti Ongono & Another

Reasons wherefore; the appellants prays for the following orders; i. That the Appeal be allowed and the decree of Honourable C. Ocharo (SPM) Delivered on 06/03/2024 In Kisii Cmcc No. E865 Of 2021 be set aside. ii. That this Honourable Court do re-evaluate the evidence of the parties and dismiss the Plaintiff’s suit with costs to the Appellant. iii. That in the alternative this Honourable Court do re-assess the evidence on record of the Subordinate Court on the award pain and suffering, loss of dependancy and Reasonable Funeral Expenses and award with its own decision. iv. That the Appellant be awarded the costs of this Appeal and of the lower court suit. Appellant’s Submissions 4. 5. The appeal is limited to the issue of quantum only. The appellant contests the following specific awards: a. The use of Kshs.13,341 as the multiplicand for calculating loss of dependency. b. The award of Kshs.50,000 for pain and suffering. c. The award of Kshs.100,000 as funeral expenses, allegedly not supported by receipts. On the issue of Reasonable Funeral Expenses, they contend that; “ It was submitted that the respondent did not plead the funeral expenses in the plaint for the award of reasonable funeral Expenses but however the trial court proceeded and awarded Ksh 100,000/- (Page 63 of the Record of Appeal). It is trite law that parties are bound by pleadings and also that the trial court therefore erred in awarding reasonable funeral expenses as the same was neither pleaded nor proved. 6. They buttressed their position by placing reliance on the case of Simona Kipilimo Nurey & 3 Others Vs Kenya Bus Management Services Limited & 4 Others, Civil Appeal No. 2 of 2011 where the court stated that duplication occurs when the same dependants are also beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same hence an award for lost years under the former Act and for loss of dependency under the latter Act will go to the same persons. 7. The appellant cited the case of David Kajogi M’mugaa Vs Francis Muthomi, Civil Appeal No. 118 Of 2010. Makau J. Deducted the general damages awarded under the Law Reform Act, from the total award, in order to avoid duplication. They relied on the cases of Prancis Wainaina Kiirungi (Suing as the personal representative of the estate of John Karanja Wainaina (Deceased) Vs Elijah Oliech Adega) [2018] eKLR and Kemfro-Vs-A.M. M. Lubia) And Olive Lubia (1982-1988) KAR 727 where that court inter alia said – “ …The net benefits will be inherited by the same dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the sum suffered under the latter Act must be offset by the gain from the estate under the former Act”. They submit that the court to uphold the Appeal and costs to be awarded to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 2

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Respondent submissions 8. On the issue of reasonable funeral expenses. The Respondents at paragraph 6 of the plaint pleaded a sum total of only Kshs. 100,000/ it is not in dispute that the deceased died and hence a funeral was conducted. We wish to reiterate our submissions on special damages although the same were not proved by way of receipts, the Court of Appeal in the case of Premier Diary Limited vs. Amarjit Singh Sagoo & Another [2010] eKLR while upholding an award for funeral expenses that were not proved held as follows; “ It is by now trite that in a claim for special damages that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that in certain occasions and safari, to expect bereaved families to be concerned with issues of record keeping when the primary concern is to bereaved family is that a close relative has died and the body needs to be interred according to the particular community Protocol. This honourable Judge took what was a practical and pragmatic approach. although a sum of Kshs. 400,000/- was pleaded in the plaint witnesses who were the relatives of the deceased – testified that they spent much more than this in preparing for and conducting its ceremonies, the hon. Judge awarded a sum of Kshs. 150,000/- which sure he saw as a reasonable and provides for fair compensation for conduct of funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages.” 9. Respondent urged that the court dismisses the Appellant’s entire appeal with costs In support of the above arguments, they refer to the case of Jacob Ayiga Kisii K. & Simeon Obayo [2005 eKLR where the COURT OF APPEAL states as follows: “ In our view, there was more than sufficient material on record from what the deceased Charles was doing prior to his death. It was not denied that the deceased was a carpenter and that his monthly earnings were about Ksh. 3,000/= per month. There was no rebuttal to the claim that the only tools he used in the profession of a person must be by the production of certificates and that the only way of proving income is by production of production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records of their earnings and are self-employed. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things” It was their submission that the Trial Court’s multiplicand of Ksh 13,341/- was appropriate, well founded in evidence and proper in principle hence the same should be left undisturbed; On whether the court erred by awarding Ksh. 50,000/= for pain and suffering. The deceased’s death was a culmination of immense pain and suffering. The deceased was involved in a gruesomely painful accident – succumbing to injuries sustained in a road car accident that he died upon arriving at the hospital is a fact that is uncontroverted herein; The trial court’s award of Kshs 50,000/= was justified based on the fact that the deceased must have suffered immense pain prior to his death. In support of the above, we rely upon the case of Mercy Muiduki & another vs. Samuel Mwangi Ndoti & another [2020 eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 3

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and the Administrator of the Estate of the late Mwangi] 2019 eKLR where the Honorable Court observed as follows: “The generally accepted principle therefore is that very nominal damages must be awarded on these two heads of damages if the death followed immediately after the accident. The deceased must have been in pain and suffering for a short range from Ksh. 10,000/= to Ksh. 100,000/- only, higher damages being awarded if the pain and suffering was prolonged before death.” The High Court affirmed the above position in cases of EMK & another v B.V.O [2018] eKLR and Beth Muimi & another v Patricia Muruiki Mutemi & another [2020] eKLR. It is their mission that the award of Ksh. 50,000/= for pain and suffering by the Trial Court was proper and founded on principle. The same should not be disturbed as no contrary evidence was adduced. 10. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete (2004) 2 KLR 55 the COURT OF APPEAL observed as follows: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at 11 The foregoing was reiterated by the Court of Appeal in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47: “ In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.” 12. The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimation. Issues For Determination Whether the Learned Magistrate erred in award of quantum. Analysis And Determination. 13. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions, Peters -vs- Sunday Post Limited [1958] E.A 424] https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 4

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In SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123 it was stated as follows: “ ……………………. this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 14. Likewise, in Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR, the court of appeal stated thus; “ An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 15. Having carefully considered the grounds of appeal, the record of the lower court, and the submissions of both parties, and since this appeal is entirely based on the issue of quantum 16. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete (2004) 2 KLR 55 the COURT OF APPEAL observed as follows: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at 17 The foregoing was reiterated by the Court of Appeal in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47: “ In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.” 18. The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimate of damages to be awarded. 19. On the issue of the multiplicand, I note that although the deceased was a trained P1 teacher, no evidence of formal employment was tendered. The trial court was therefore justified in adopting the minimum wage of Kshs. 13,341, which was consistent with the deceased's actual economic activity as https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 5

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a boda boda operator. There was no error in principle, and I find no reason to interfere with the trial court’s discretion. case of Jacob Ayiga Kisii K. & Simeon Obayo [2005 eKLR where the COURT OF APPEAL states as follows: “ In our view, there was more than sufficient material on record from what the deceased Charles was doing prior to his death. It was not denied that the deceased was a carpenter and that his monthly earnings were about Ksh. 3,000/= per month. There was no rebuttal to the claim that the only tools he used in the profession of a person must be by the production of certificates and that the only way of proving income is by production of production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records of their earnings and are self-employed. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things” 20. Regarding the award of Kshs. 50,000 for pain and suffering, the evidence on record shows that the deceased did not die instantly, but succumbed to injuries several hours later as per the evidence of PW1 The award is within the acceptable range and reflects judicial precedent. I find no basis to disturb it. 21. On funeral expenses, although no receipts were produced, I am guided by the Court of Appeal decision in Premier Dairy Ltd v Amarjit Sagoo [2013] eKLR, which acknowledged the practical challenges of receipting all funeral-related expenses. The amount awarded is modest and reasonable under the circumstances. In the end, I find that the learned trial magistrate applied the correct legal principles and arrived at a fair and just assessment of damages. There is no basis upon which this court can interfere with the trial court’s discretion., the Court of Appeal in the case of Premier Diary Limited vs. Amarjit Singh Sagoo & Another [2010] eKLR while upholding an award for funeral expenses that were not proved held as follows; “ It is by now trite that in a claim for special damages that special damages Must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do Take judicial notice that in certain occasions and safari, to expect bereaved Families to be concerned with issues of record keeping when the primary Concern is to bereaved family is that a close relative has died and the body Needs to be interred according to the particular community Protocol. The Honourable Judge took what was a practical and pragmatic approach. Although a sum of Ksh. 400,000/was pleaded in the plaint and Witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting it ceremonies, the Honourable Judge awarded a sum of Ksh. 150,000/- which sure he saw as a reasonable and provides for fair compensation for conduct of funeral expenses. We are of the respectful opinion that the judge was entitled to award that sum without in Any way breaching the general rule we have referred to on the issue of special Damages.” 22. This court being guided by the principles of stare decisis cannot thereby depart from the decisions of the court of appeal in the cases named supra. It is not disputed that the funeral was conducted and that some reasonable amount of money was spent by the family. The award of Ksh. 100,000/= as reasonable expenses was thus proper. 23. The appellant raised an issue with the award on loss of expectation of life in its submissions but I note that the same was not raised in the memorandum of appeal. It is trite law that parties are bound by their pleadings. Since the same was not raise I dismiss it as an afterthought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 6

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Disposition: 24. In the upshot the respondent proved the issues of pain and suffering, funeral expenses a multiplicand of a balance of probability and hence the learned Trail magistrate did not err in awarding quantum. I proceed to make the following orders: i. The appeal is hereby dismissed in its entirety. ii. The judgment of the lower court in CMCC No. 865 of 2021 is upheld. iii. The respondents shall have the costs of this appeal. T.A ODERA JUDGE 25.7.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 25TH DAY OF JULY 2025. In the presence of: Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19717/eng@2025-07-25 7

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