Njoroge & another (Suing as the Legal Representatives of the Estate of the Late Keziah Muthoni Maina) v Bonafide Clearing and Forwarding Company Ltd & another [2022] KEHC 14098 (KLR)

Njoroge & another (Suing as the Legal Representatives of the Estate of the Late Keziah Muthoni Maina) v Bonafide Clearing and Forwarding Company Ltd & another (Civil Appeal 52 of 2018) [2022] KEHC 14098 (KLR) (17 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14098 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Appeal 52 of 2018

CM Kariuki, J

October 17, 2022

Between

Ruth Wanjiru Njoroge

1st Appellant

Caroline Nyambura

2nd Appellant

Suing as the Legal Representatives of the Estate of the Late Keziah Muthoni Maina

and

Bonafide Clearing and Forwarding Company Ltd

1st Respondent

Francis Mutungu Maina

2nd Respondent

(Being an Appeal from the Judgement/Decree of Honourable Mwangi Senior Resident Magistrate delivered on 9th October, 2018 in Nyahururu CMCC No. 24 of 2017)

Judgment

1. The appellants herein filed an appeal against the judgement/decree of honourable S.N Mwangi, Senior Resident Magistrate in Nyahururu CMCC No 244 of 2017 delivered on October 9, 2018.

2. In her decision of October 9, 2018, the learned trial magistrate, entered judgement in the following terms:-“In summary I enter judgement on liability for the plaintiff against the defendant for the total sum of kshs 1,350,486/- made up as follows:1. General damages for pain and suffering – kshs 150,000/-2. General damages for loss of dependency – kshs 1,000,000/-3. General damages for loss of expectation of life – kshs 100,000/-4. Special damages - kshs 100,486/-5. Total kshs 1,350,486/-”

3. Being aggrieved by the said decision, the appellants filed a memorandum of appeal dated June 9, 2021. It relied on five (5) grounds of appeal on the issue of quantum only detailed as follows:-i.That the learned trial magistrate erred and misdirected herself in law and in fact in her assessment of damages awardable to the appellants under loss of dependency by awarding damages that were inordinately too low in the circumstances despite overwhelming evidence on record.ii.That the learned trial magistrate erred in law and in fact in failing to find that the multiplier approach was the appropriate method in assessment of loss of dependency when the deceased’s expected earnings as a teacher were availed.iii.That the learned trial magistrate erred in law and in fact in awarding a global sum where dependency and the deceased expected earnings as a teacher were provediv.That the learned trial magistrate erred in law and in fact in ignoring the appellants’ submissions on loss of dependency,v.That the learned trial magistrate failed to appreciate and/or misapplied the principle applicable in the assessment of damages under loss of dependency under the circumstances.

4. Reasons whereof, the appellants prayed for the following reliefs:-i.The appeal be allowed and the judgement under loss of dependency in Nyahururu CMCC No 244 of 2017 be set aside/or reviewed.ii.Damages payable to the appellants under loss of dependency be re assessed and enhanced.iii.That costs of this appeal are borne by the respondent.

Appellants’ Submissions 5. The appellants submitted that the trial magistrate in her judgement at page 135 of the record of appeal awarded the appellants kshs 1,000,000/= as a global sum under the limb of loss of dependency despite their being a scale that had been relied upon by the appellants’ in their submissions.

6. The appellants argued that they submitted for multiplicand of kshs 56,590/= as the starting monthly earnings for newly admitted teachers as per the teacher’s salary scale. Reliance was place on the case of Benjamin Kinyua Kirimaria v Stephen Kamamia Maina [2018] eKLR, Sirya &another v Mwanamisi Ali (suing in her own capacity and as the administratix of the estate of the Late Samuel Ngegu Njihia), Mary Chepkemoi Cheruiyot &another v Andrew Mwangi &another [2019] eKLR.

7. Further, the appellants contended that the deceased was a graduate with Bachelors of Education from Moi University and proof of the same was produced in court. That the earnings submitted were not speculative owing to the fact that the deceased had not graduated there was undisputed evidence ion record is that the deceased was well on her path to graduating within a few months before her demise had the death not occurred.

8. It was stated that the court adopts a multiplier of 36 years as the years that the deceased could have been in active employment considering that the official retirement age is 60 years and the deceased was 24 years before her demise.

Respondent’s Submissions 9. The respondent submitted that the learned magistrate was correct in applying the global sum approach as capture by her pronouncements in page 133-134 of the record of appeal. They equally relied on their lower court’s submissions a pages 18 and 19 of the supplementary record of appeal stating that although the deceased had completed university, she had not graduated. That a multiplier approach would not be the best approach given that no documentation was provided to show the exact earnings of the deceased; all the court was told was based on resumption.

10. It was argued that having documentation of completion of education and working and earning a salary are tow different things and it is not in the power of the court to speculate that simply because someone had graduated and as documents to the effect then a specific amount should be their earnings.

11. Reliance was placed on Simon Mwangi Mureithi v Martin O Shikuku & another MsaHCCC No 198 of 2003 (UR) cited in Oyugi Judith & another v Fredrick Odhiambo Ongong & 3 others [2014] eKLR and Mwanzia v Ngalali Mutua & Kenya Bus Services (Msa) quoted in Albert Odawa v Gichimu Gichenji NKU HCCA No 15 of 2003 [2007] eKLR

Analysis and Determination 12. In this appeal, the appellants have challenged the trial court award on quantum of damages particularly the general damages awarded under the limb of loss of dependency.

13. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. (See: Selle v Associated Motor Boat Company Ltd [1968] EA 123 and Peters v Sunday Post Limited [1985] EA 424) .

14. The appellants submitted that the trial court erroneously adopted the global sum approach to calculate the general damages awarded for loss of dependency instead of the multiplier approach. Their argument was based on the fact that the deceased had completed her studies in Bachelors of Education and was awaiting graduation. The appellants contended that she would have graduated ad went on to work earning a salary of kshs 56,590/= as the starting monthly earnings for newly admitted teachers as per the teachers’ salary scale.

15. The appellants argued that the trial magistrate should have therefore adopted a multiplicand of kshs 56,590/= and a multiplier of 36 years as the years that the decease could have been in active employment considering that the official retirement age is 60 years and the deceased was 24 years before her demise.

16. On the other hand, the respondent contended that the trial magistrate did not err in any way by applying the global sum approach. They submitted that although the deceased had completed her studies, she was not working and earning a salary and that it is not in the court’s power to speculate on what should have been her earnings.

17. I seek guidance from the Court of Appeal in the case of Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR where the court set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general 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...”

18. Accordingly, the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case. (see Southern Engineering Co Ltd v Musungi Mutia [1985] KLR 730).

19. The court herein is tasked with determining whether the trial court erred in awarding an inordinately low award for loss of dependency. The appellants faulted the trial magistrate for adopting the global sum approach over the multiplier approach.

20. There are two outlooks on the method of calculating the award to be made under loss of dependency; one is the multiplier approach advocating for an award under the heading calculating loss of dependency in terms of the number of years and anticipated income for the deceased, whereas the other outlook advocates for a global award approach.

21. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya &another [2017] eKLR as follows:-“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

22. In Beatrice Wangui Thaini v Hon Ezekiel Bargetuny andanotherNrb HCC 1638 of 1998(UR) Ringera J (as he then was) stated that:-“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependents and the chances of life of the deceased and dependents. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

23. Further, the Court of Appeal in Chunibhai J Patel andanother v P. F Hayes and others [1957] EA 748, 749, as cited in Mwangangi &another v FKM(suing as legal representative of the estate of the late AMK) [2021] eKLR stated the law on assessment of damages under the Fatal Accidents Act and held as follows:-“The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i. e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase.

24. On the other hand, courts are not compelled to adopt multiplier method in cases where the exercise is a grope in the dark; speculation on the important aspects of lost years or dependency.

25. In Mwanzia v Ngalali Mutua Kenya Bus Ltdcited in Albert Odawa v Gichumu Githenji Nku HCCA No 15 of 2003 [2007] eKLR, the court made the following observation;“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 factors 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.”

26. Similarly, the court in Moses Mairua Muchiri v Cyrus Maina Macharia (suing of the estate of Mercy Nzula Maina (deceased) [2016] eKLR as the personal representative, held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

27. In Frankline Kimathi Maariu &another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR the court stated:-“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

28. In the case of Chen Wembo & 2 others v I K & another (suing as the legal representatives and administrators of the estate of C R K(deceased) [2017] eKLR, the court stated: -“Even where there is evidence that a child was undertaking a professional course in a university, was brilliant and promising, the path is always fraught with imponderables. The speculative nature of the matter renders the court’s exercise of its discretion delicate. More so, as in this case where minimal material is supplied to the court by the claimants”

29. In the learned trial magistrate’s judgement, she stated that:“Clearly in such circumstances, the court’s obligation would have been to achieve the assessment of a fair award in the circumstances of the case for loss of dependency rather than courting in obsession to applying a multiplier to acts which are not apt.……………………………………………………..As I embark on his journey of the assessment of a fair award in the circumstances of this case, let me recite the holding I the case of Kenya Breweries Limited v Saro [1999] Mombasa civil appeal No, 441 of 1990 eKLR……………………………………………….……………………………………………..Applying the above test to this case, it is important to note that the deceased was aged 24 years and although she had completed university, she was yet to graduate. I have looked at the university’s provisional examination results produced in court and she was indeed a bright student who would have probably made a very good teacher.For purposes of the law, much more was needed to prove that the deceased would have been employed this year probably with the TSC and earn the estimated salary of kshs 56,590/= as submitted by the plaintiff’s counsel. With due respect, it is time the the claimant realized that the burden of proving that what she alleges rests on her and that a court of law will not act on unsubstantiated evidence to assume income or dependency of a deceased person.………………………………………………..As this court is properly guided on the law, it is not prepared to go the route of speculation despite the great respect for the departed. This does not however mean that the estate was not entitled to an award for loss of dependency simply because there was no documentary evidence to prove income.…………………………………………………………………The age of the deceased is important as her assistance of her daughter and mother will benefit from longevity of life were it not cut short by this ultimately death. The dependency and contribution of the deceased is not diminished or abrogated completely. See the decision of the court of appeal on this aspect in the cases of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited [2015] eKLR; Palm Oil Transporters & Another v WWN [2015] eKLR; Regina Wambui Njenga v R/.K Obura & Aother [2009] eKLR and Put Sarajevao Gen Eng Co Ltd v Esther W Njeri & 2 others [2015] eKLR. All these cases I have considered awarded a global sum of between kshs 250,000/= to kshs 1,000,000/= on loss of dependency. I am persuaded therefore that a sum of kshs 1,000,000/- for loss of dependency is most reasonable and which I accordingly award under this head.”

30. I have considered the arguments by parties and the evidence on record as well as the grounds advanced by the appellants in this appeal. As the courts have stated previously, the multiplier approach is just a method of assessing damages and not a principle of law. It can and should be abandoned where the facts of the case do not favour its application. It is clear from the aforementioned that the trial magistrate made the award in comparison to other relative awards. In that regard, I do not find reason to interfere with the trial court’s adoption of the global sum approach.

31. As the trial magistrate stated, although the deceased had completed her studies from the evidence presented in court, she had not graduated yet and was not employed. Therefore, the amount of kshs 56,590/= was not her net income and to be employed as the multiplicand. I find that there was no commission of an error in principles of assessment of damages, which resulted in the award being too low or too high on the face of the facts revealed, for which this court is entitled to interfere. I am cognizant of the fact that this court should not to impose its own view on what it would have awarded had it tried the matter in the first instance.

32. Furthermore, in Nairobi Bottlers Ltd & another v MW (Suing as the legal representative of the estate of KM W) [2021] eKLR the court stated that:-“Loss for the lost years must be shown, on the facts established before the court, to be at least capable of being estimated. Sufficient facts must be established to enable the court to avoid the fancies of speculation. Such facts, need not be of mathematical certainty, but sufficient to enable the court make the best estimate it can in the circumstances.”

33. I am alive to the fact that a life was lost but it is important to note that courts can never adequately compensate for a life that has been lost. The Court of Appeal observed in Denshire Muteti Wambua v Kenya Power and Lighting Co Ltd [2013] eKLR, that:Monetary awards can never adequately compensate a litigant for what they have lost in terms of bodily function especially where this is permanent. But awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness.

34. Similarly, the court in Gilbert Kimatare Nairi & another (Suing as personal representative of the Estate of Jackline Sein Lemayian (deceased) v Civiscope Limited [2021] eKLR quoted with approval the case of Lord Morris of Borthy-Gest stated in West (H) & Son Ltd v Shepherd [1964] AC 326 pg 345:But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.

35. In addition, the appellants stated that the learned trial magistrate erred in law and in fact in ignoring the appellants’ submissions on loss of dependency. However, I disagree with the same as a perusal of the learned trial magistrate’s judgement shows that she analyzed and considered the evidence and submissions by both parties including the appellants in making her determination.

36. Against this background, I find that the award of kshs 1,000,000/= was based on evidence and fair and reasonable grounds. I am persuaded that the parameters applied by the learned trial magistrate in assessing damages for loss of dependency did not occasion an inordinately low quantum and hence it is unnecessary to interfere with the said award. Thus, the court makes the orders;i.The appeal is dismissed. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 17TH DAY OF OCTOBER, 2022. ………………………CHARLES KARIUKIJUDGE