Avery East Africa Ltd & 2 others v Ouma & another (Suing as the legal representative/administrator of the Estate of the Late Jonathan Ngira Oduori - Deceased) [2022] KEHC 12067 (KLR)

Avery East Africa Ltd & 2 others v Ouma & another (Suing as the legal representative/administrator of the Estate of the Late Jonathan Ngira Oduori - Deceased) (Civil Appeal 31 of 2021) [2022] KEHC 12067 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12067 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal 31 of 2021

JR Karanja, J

June 9, 2022

Between

Avery East Africa Ltd

1st Appellant

AEA Limited

2nd Appellant

Aurelius Ojiambo

3rd Appellant

and

Concelia Achieng Ouma

1st Respondent

Fredrick Tianga Musungu

2nd Respondent

Suing as the legal representative/administrator of the Estate of the Late Jonathan Ngira Oduori - Deceased

Judgment

1. This matter is traceable to a road traffic accident which occurred on October 5, 2019, along the Busia – Kisumu Road at Rakite area involving a m/v Reg No.KBZ XXXK Toyota Probox said to be beneficially owned by Avery East Africa Ltd (Appellant one) and legally registered in the name of AEA Limited (Appellant two) and a m/cycle on which Jonathan Ngira Oduori (deceased) was travelling as a pillion passenger.

2. In the plaint dated January 29, 2020, it was pleaded that the said m/vehicle was so negligently driven and managed by the driver, Aurelius Ojiambo (Appellant three) such that it violently knocked down the m/cycle thereby causing fatal injuries to the deceased.Consequently, the estate of the deceased instituted this suit against the defendants owners and driver of the m/vehicle claiming general and special damages together with costs of the suit.

3. In their statement of defence dated December 15, 2020, the defendant/appellants denied the claim and prayed for the dismissal of the suit with costs.At the hearing of the suit in the lower court the parties recorded a consent on liability to the effect that the same be apportioned at the ratio of 60:40% in favour of the claimants. Thereafter, the widow of the deceased, Concelia Achieng Ouma (PW 1) testified in relation to quantum of damages. No counter evidence was led by the defendants.

4. The trial court rendered its judgment on the September 1, 2021, and awarded a total sum of ksh.3,060,950/= to the claimants less 40% contributory negligence in the sum of ksh.1,224,380/= thereby leading to a final total sum of ksh.1,836,570/=.The court awarded ksh.200,000/= for loss of life expectation, ksh.2,714,400/= for loss of dependency, ksh.20,000/= for pain & suffering and ksh.126,550/= special damages.

5. Being dissatisfied with the award of ksh.2,714,400/= for loss of dependency, the defendants/appellants preferred the present appeal on the basis of the three grounds contained in the amended memorandum of appeal dated September 13, 2021. The appeal proceeded by way of written submissions with both parties filing their respective submissions through Omaya & Co. Advocates and Mukisu & Co. Advocates.

6. The duty of the court in a first appeal is to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.In that regard, the sole evidence on quantum of damages and indeed on loss of dependency was that of the deceased’s widow (PW 1) who testified and in the process produced several documents for purposes of proving the claimed special and general damages. Notably the widow indicated that the deceased was a farmer. However, the widow failed to indicate the amount of income (if any) the deceased earned from his farming venture.

7. The widow did not also indicate whether the deceased undertook farming as a commercial venture or merely for subsistence as a peasant farmer. In essence, the widow’s suggestion was that the deceased was not in any gainful employment and/or venture prior to his death. It is no wonder that no documentary evidence was availed by the claimants to establish and prove the alleged earnings of the deceased from farming. The widow indicated that she could not estimate the deceased’s earnings but how could she have done so when it was evident that no such earnings existed.

8. Based on the supposed earnings of the deceased from farming and/or otherwise, the trial court adopted the so called multiplier approach in assessing damages for loss of dependency. In so doing, the court used the sum of ksh.13,572/= as the multiplicand against a multiplier of 25 year and a dependency ratio of 2/3rds to arrive at the disputed award of ksh.2,714,400/=.

9. In this court’s opinion, as there was no prove of earnings the best approach in the assessment of damages for loss of dependency in this matter was the global approach as was contended by the appellants. In the circumstances, this appeal is allowed to the extent that the award of ksh.2,714,400/= made by the trial court is hereby set aside and substituted for a global award of ksh.800,000/=.

10. In that regard, the judgment of the trial court shall be adjusted to accord with the award of ksh.800,000/= made herein for loss of dependency. Otherwise, the rest of the awards made by the trial court are hereby affirmed.Each party shall bear their own costs of the appeal.Ordered accordingly.

J.R. KARANJAHJ U D G E[DELIVERED & DATED THIS 9TH DAY OF JUNE 2022]