Easy Coach Limited & Dancan Wachira Munyua v Elizabeth Musondi & Justice Okwero (Suing As The Legal Representative Of The Estate Of Ignatious Oketch Ombara [2015] KECA 865 (KLR)

IN  THE  COURT  OF  APPEAL

AT KISUMU

(CORAM:  MARAGA, AZANGALALA & KANTAI, JJ. A)

CIVIL  APPEAL NO.  33   OF 2014

BETWEEN

EASY COACH LIMITED ….................................................... 1ST APPELLNT

DANCAN WACHIRA MUNYUA  …..................................... 2ND APPELLANT

VERSUS

ELIZABETH MUSONDI & JUSTICE OKWERO (SUING AS

THE LEGAL REPRESENTATIVE OF THE ESTATE OF

IGNATIOUS OKETCH OMBARA  …........................................ RESPONDENT

(Appeal from a Judgment  and Decree  of the High Court of Kenya at

Busia   (L. Kimaru, J)  dated 25th July, 2013

in  BUSIA HCCC  No.  3  OF 2008

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JUDGEMENT OF THE COURT

Ignatius Oketch Obara (“the deceased”)  died in a fatal road accident that occurred on 9th October, 2007 when a bus registration mark KAX 066S plunged into river Suo on the Busia – Kisumu road.   That bus was owned by  the 1st appellant Easy Coach Limited and driven by its driver the 2nd appellant  Dancan Wachira Maina.

The respondents, Elizabeth Musondi and Justice Okwero suing as legal representatives of the estate  of the deceased, took out a suit at the High  Court of Kenya, Busia, claiming in negligence against the appellants for the death of the deceased  and praying for special and  general damages accordingly.

On 25th July, 2012 the parties recorded a  consent order before the trial court where liability attached against the  appellants at 100% and the plaint was amended to correct a prayer for  special damages.

The suit was  heard by L. Kimaru, J  and in a judgement delivered  on his behalf by F. Tuiyot, J on 25th July, 2013 the respondents were awarded a sum of Kshs. 4,579,188/80 under The Fatal Accidents Act  which was net of a sum of Kshs. 100,000/= awarded under The Law Reform Act.   Kshs. 50,000/= was awarded  for funeral expenses.

The appellants were dissatisfied with those findings and that provoked  this appeal premised on the  four grounds of appeal set out  in the Memorandum of Appeal  filed on behalf of the appellants  by their counsel.   In the first ground  the learned judge is faulted  for awarding damages that were excessive and so inordinately high  as to be inconsistent with settled  principles of awarding damages.

In the second ground the learned  judge is faulted for adopting  a multiplier of seventeen (17) years in respect of a deceased person who was 35 years old while in the penultimate ground the learned judge is said to have erred by failing to take into account  the uncertainties and vectitudes of life which he ought to have  taken into account in discounting the multiplier.

The last ground of appeal faults the learned judge for giving an award which as a whole is said to be huge and excessive.

This is a first appeal and it is our duty to analyse and re-asses the  evidence on record – See  Selle v Associated Motor Boat Company [1968] E A 123.

Both appellants testified and the evidence adduced and which was uncontested was that the deceased,  a graduate of Kenya  Methodist University and holder of Bachelor of Business Administration, was at the time of  death thirty five (35) years old and was a  graduate trainee at Kenya Revenue Authority earning a net  salary of Kshs. 34,405/80.  The deceased had one wife the 1st respondent and they were  blessed with four children  - Faith Oketch aged thirteen years, Lydia Oketch aged eleven years, Gideon  Oketch aged six years and the last born Meshack Oketch aged three years at the time the suit was filed.

Liability having been conceded by  the appellants the issue before the learned Judge was assessment of damages.  The learned judge considered the said age of the deceased at the  time of death and gave a  multiplicant of seventeen (17) years.   He also found that dependency had been proved and gave a dependency ratio of 2/3.

Mr. Wekhomba, learned counsel for the appellants, in submissions  before us submitted that the learned judge erred in considering  a retirement age of sixty (60) years when the deceased, a civil servant, had died when retirement  age in the civil service was  fifty five years.   On funeral expenses learned counsel faulted the learned judge for awarding  a sum of Kshs. 50,000/= when  the respondent had asked for Kshs. 30,000/= in written  submissions.   For these reasons he asked for the appeal to be allowed.

Mr. Otanga, learned counsel for the respondents, submitted that the learned judge did not consider any irrelevant factor  or omitted to consider a relevant  factor and thought that the judgement should be left  undisturbed.

It was held by this Court in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Anor v Lubia & Anor (No.2) [1987] KLR 30 that:-

“The principles to be observed  by an appellate court in deciding whether  it is justified in disturbing the quantum of damages awarded by a trial judge were held to be that; it must be satisfied that either that judge in assessing the damages took into account  an irrelevant  factor or left out of account a relevant one, or that short of this the amount is so inordinately low or so inordinate high that it must be a wholly erroneous estimate of the damage.”

In the earlier case of Butt v Khan [1981] KLR 349, Law JA held that:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.   It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at  a figure which was either inordinately high or low.”

On the principles on which this court would disturb an award of damages made by a trial court see alsoKitavi  v Coastal Bottlers Limited [1985] KLR 470; Shaban v City Council of Nairobi[1985] KLR 516 and  Hassan v Nathan Mwangi Kamau Transporters [1986] KLR 457.

This Court in Roger Dainty v Mwinyi Omar Haji & Anor [2004] e KLR held that  courts in Kenya had not established as a matter of practice the appropriate multiplier for our  jurisdiction to be applied to different  age groups of victims of accidents.  What is a reasonable multiplier  in our jurisdiction is a question  of fact to be determined from the  peculiar circumstances of each  case.

The learned judge in the appeal before us considered that the deceased  would have worked  to sixty  years as he was employed  by Kenya  Revenue Authority on permanent and pensionable terms.  He awarded a multiplier of seventeen years as he stated:

“All things being equal, it was expected that the deceased would  have lived to a ripe old age.   This does not however  exclude the usual vagaries of life.  No human being is certain for how long he will live on this earth.   It cannot  therefore categorically be stated that the deceased would have worked until he reached the retirement age of 60 years.   Doing the best I  can in the circumstance (sic) of this case, I will apply a multiplicant of fifteen (17) (sic) years...”

Counsel for the appellants believes that the multiplier  was so inordinately high as  not to accord  with other decided cases.  Before the trial court the appellant submitted that a multiplier of ten years was reasonable while the respondents submitted  for twenty years.

We have considered the record of appeal, submissions made before us and the law.  The learned judge in the judgement appealed from considered that a multiplier of seventeen years was  reasonable for a civil servant who would have retired at  the age of sixty years  and had therefore a good twenty five years of working life left.   Even if we were to accept the submission by learned counsel for the appellants that the deceased  died when retirement age  for civil servants was fifty five years, that would still mean that the deceased had twenty  years  of working life left by the time he died.

We are of the  considered opinion that the learned judge considered all relevant factors in reaching  his decision on the multiplier and the multiplier applied was not inordinately high at all.

On funeral expenses counsel for the appellants faulted the learned judge  for awarding Kshs. 50,000/= when this sum was not pleaded in  the plaint and when the respondents in written submissions on record had asked for  Kshs. 30,000/=.

We have perused the record and noted that the respondents did, indeed, submit for an award of Kshs. 30,000/= in written  submissions before the said judge which sum was not pleaded in the plaint.

On funeral  expenses the plaint merely stated:

“Funeral expenses to be supplied at the hearing hereof.”

Funeral  expenses fall under special damages category and the law in Kenya is that special damages must be  specifically pleaded and strictly proved.   The respondents did not plead the sum awarded by the judge  but produced documents to show that expenditure was incurred.   Evidence  was also led to show that a sum of Kshs. 80,000/= was utilized as funeral expenses.

Courts in Kenya have consistently  departed from the general rule that special damages must be  specifically pleaded and strictly proved when dealing with fatal accident  cases.   The courts have taken a view that families of bereaved persons spend money to bury their dead.  In the case of Jacob Ayiga & Anor  v Simon Obayo Civil Appeal No. 167 of 2002 (ur) this court awarded  funeral expenses in the absence of production of receipts holding that:-

“.... A reasonable award ought to be made in respect of reasonable and legitimate funeral expenses.”

We agree with learned counsel for the appellant that the learned judge erred  in awarding a sum  in excess of what the  respondents prayed for.   We are entitled to and do set aside that part of  the judgement awarding  a sum of Kshs. 50,000/= for funeral expenses and  substitute thereof a sum of  Kshs. 30,000/=.

Counsel for the appellants faulted the judgement because,  on the multiplier, it is stated that:-

“... will apply a multiplicant  of fifteen (17) years...”

Counsel thought that the multiplier used was not therefore clear.

This complaint has  no merit at all.   This is because the learned judge  proceeded to work out the total sum awardable under that  head and seventeen years was applied.  The error was a clerical  one and counsel should have written to the court under the relevant provisions of  The Civil Procedure Act for correction of the obvious clerical error  appearing in the said judgment.  This appeal therefore has no  merit and is dismissed save  for our order in respect of the award in respect  of funeral expenses.   For the  reason that the appellants managed to disturb the  judgment to that extent  only we award the  appellant ¼ costs of this appeal while the respondents  have ¾ of the costs.   These, then, are our orders.

Dated and Delivered at Kisumu this   5th day of  February , 2015.

D. MARAGA

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JUDGE OF APPEAL

F. AZANGALALA

…...............................

JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR