Dorine Pamela Adhiambo Yimbo v Richard Ommusi Ochola [2017] KEHC 2910 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCA NO. 81 OF 2015

DORINE PAMELA ADHIAMBO YIMBO(Suing as the legal representative

in the estate ofVINCENT OWINO YIMBO (DECEASED)..........APPELLANT

VERSUS

RICHARD OMMUSI OCHOLA...................................................RESPONDENT

[Being an appeal from the judgement of the Resident Magistrate Hon. A. Odawo in Kisumu CMCCC No. 474 of 2014 delivered on the 19th August 2015]

JUDGMENT

The appellant, suing as the legal representative of Vincent Owino Yimbo, sought damages against the respondents under the Law Reform Act and the Fatal Accidents Act. At paragraph 6 of the plaint he averred that the action was brought on behalf of the mother of the deceased one Dorine Pamela Yimbo aged 50 years. He also sought specials damages of Kshs.42,150/=. The case proceeded by way of formal proof as the respondent though served did not enter appearance. The trial magistrate in the end declined to award damages under the Fatal Accidents Act and hence this appeal. The appellant has raised the following grounds of appeal-

1. “The learned magistrate erred in law and in fact by not awarding the appellant any damages under the head of  dependancy against the weight of evidence given at the trial

2. The learned magistrate erred in law and fact in assessing damages which is at variance with the pleadings and against the weight of evidence

3. The magistrate erred by failing to appreciate the degree, extent and long term effect of the appellants loss and thereby failing to award damages under the head of dependency.”

In her judgment the learned trial magistrate while appreciating that documentary evidence is not the only means to prove a profession found that dependancy was not proved as the mother of the deceased did not give the name of her last born that the deceased allegedly used to pay school fees for, the institution the child went to or the level thereof nor the amount of fees.

It is trite that an appellate court cannot interfere with the magistrate’s findings of fact unless she was plainly wrong. Authorities on this abound but see Kiruga V Kiruga & Another [1988] KLR348. Having reviewed the evidence I am persuaded that the learned trial magistrate misdirected herself in arriving at the conclusion that dependency was not proved. Damages under the Fatal Accidents Act are awarded for the benefit of a mother, father, spouse and children. By stating that as a result of deceased’s death she could no longer pay fees for her last born the mother of the deceased was in my view stating that she depended on the deceased to help her and she had lost that dependency. Since the damages were not claimed for the benefit of the said last born but for her own benefit she needed not in my considered opinion to give his name, school and fees. That she was the mother of the deceased and that he used to assist her to among other things educate his siblings was not in any case controverted. Dependency was proved on a balance of probabilities and the trial magistrate clearly acted on a wrong principle of law in failing to award damages under the Fatal Accidents Act.

The trial magistrate rightly concluded that documentary evidence is not the only means of proving a profession. In Jacob Ayiga & Another V Simeon Obayo [2005]e KLR the judges of appeal expressed themselves thus-

“we do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these  things….”

Where earnings cannot be proved the courts resort to the minimum wage  which at the time counsel submitted was Kshs 9780. 95. The certificate of death showed the deceased was 29 years and therefore had 31 years to retirement. As submitted by Counsel a multiplier of 25 years is reasonable. However as he was not married I would apply a ratio of one third  9780/95x29x12x1/3 = 1,134,590/20  which I award to the plaintiff in addition to the damages awarded under the Law Reform Act. The same shall attract interest at court rates from the date of the judgment in the court below. He shall also get the costs of this appeal. It is so ordered.

Signed, dated and delivered at Kisumu this 12th day of October  2017

E. N. MAINA

JUDGE

In the presence of:-

Mr. Ragot for the Appellant

N/A  for the Respondent

Serah Sidera – Court Assistant