Zacharia Mutua Kiprop & Samwel Cheruiyot v Pauline Adhiambo & Victor Okongo (Suing as the administrators of the Estate of the late Churchill Calfonce Okongo [2019] KEHC 5826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 487 OF 2015

ZACHARIA MUTUA KIPROP.............................1ST APPELLANT

SAMWEL CHERUIYOT.......................................2ND APPELLANT

-VERSUS-

PAULINE ADHIAMBO & VICTOR OKONGO

(Suing as the administrators of the Estate of the late

CHURCHILL CALFONCE OKONGO.................RESPONDENTS

(Being an appeal from the judgment delivered on 23rd September, 2015 by Honourable M. Obura (Mrs.) (Principal Magistrate) in CMCC NO. 6475 OF 2012)

J U D G M E N T

1. The Respondents herein filed a suit as administrators of the estate of Churchill Calfonce Okongo (the deceased) on 31st October, 2012. Therein, they sought for both general and special damages.

2. It was pleaded in the plaint that sometime on or about 29th August, 2010 while travelling as a fare paying passenger aboard an Isuzu Bus registration number KBJ 866W belonging to the 1st appellant and being driven by the 2nd appellant at all material times, the 2nd appellant caused the said vehicle to be negligently driven, resulting in the same losing control and eventually landing in a ditch.

3. The appellants filed a statement of defence on 8th November, 2012 denying the allegations presented in the plaint, more so the particulars of negligence.

4. At the hearing, the parties arrived at and recorded a consent on liability in the ratio of 90%:10% in favour of the respondents. When the matter proceeded on quantum, the respondents called one (1) witness for the plaintiffs’ case while the appellants did not rely on any witness testimonies for the defence case. At the close thereof, submissions were filed.

5. Subsequently, the trial court entered judgment in favour of the respondents in the following manner:

a) Pain and suffering-                                Kshs.50,000/=

b) Loss of expectation of life-                   Kshs.150,000/=

c) Loss of dependency-                             Kshs.2,880,000/=

d) Special damages-                                  Kshs.30,000/=

Total-                                                    Kshs.3,110,000/=

Subject to 10% contribution                      Kshs.311,000/=

Total-                                                    Kshs.2,799,000/=

6. The appellants have now lodged an appeal against the aforementioned judgment by way of a memorandum of appeal dated 15th October, 2015 setting out the following grounds:

(i) THAT the learned trial magistrate erred in fact and in law by failing to consider the appellants’ submissions dated 21st July, 2015.

(ii) THAT the learned trial magistrate erred in fact and in law by holding that the deceased was earning Kshs.24,000/= yet the evidence tendered by the respondents did not establish that the deceased was still in employment as at the date of the material accident.

(iii) THAT the learned trial magistrate erred in law and in fact by accepting hearsay evidence to prove employment of the deceased at Madima Tours, thereby arriving at a wrong finding on a critical issue for trial.

(iv) THAT the learned trial magistrate erred in law and in fact by awarding a double award under the Law Reform Act and the Fatal Accidents Act noting that the beneficiaries are the same administrators hence the claim under the Law Reform Act should be offset against the award under the Fatal Accidents Act.

7. The appeal was dispensed with through written submissions, with the appellants submitting inter alia that the learned trial magistrate failed to take into account a relevant factor which was proof of earnings and further, that the award made was inordinately high. As concerns proof of earnings, the appellants contend that the Respondents did not adduce pay slips evidencing the deceased’s earnings and in the circumstances, the trial magistrate ought to have adopted the salary for a driver under the  Salaries and  Minimum Wages  Regulations  applicable in 2008 which would have brought his monthly wages to  Kshs. 8, 364/= or in the alternative, a global sum. Authorities were cited in this respect.

8. The appellants also argued that the award of Kshs.150,000/= made for loss of expectation of life was high given the conventional figure of Kshs.100,000/= adopted by the courts, further arguing that the award under this head ought to have been deducted from any award made under the Fatal Accidents Act since the beneficiaries in both instances would be one and the same.

9. In contrast, the respondents submitted that in making her award, the learned trial magistrate considered both parties’ submissions, further submitting that in awarding the damages for loss of expectation of life, the said magistrate drew guidance from recent awards and cannot be faulted for having done so. With regards to the award for loss of dependency, it is the respondents’ argument that evidence was tendered before the trial court showing that the deceased earned a monthly salary of Kshs.24,000/= and that this was proof enough of the nature of his job and earnings, and that no objection was raised to the production of such evidence.

10. On the subject of double compensation, the respondents took the position that a party is entitled to sue under both relevant statutes and that such double compensation cannot arise here since damages for pain and suffering, and loss of expectation of life can only be awarded under the Law Reform Act, citing various authorities that have articulated the principle. In the end, the respondent supported the learned trial magistrate’s award.

11. I have cautiously considered the respective submissions filed alongside the cited authorities. As required, I have also re-evaluated the evidence tendered before the court of first instance and reviewed the rival submissions and impugned judgment.

12. It is clear that the appeal before this court is on quantum. In that case, I will begin with ground (i). This particular ground was not discussed in the appellants’ submissions. Needless to say that I have perused the decision by the trial court and noted that both parties’ submissions were considered under each head of damages and mentioned in specific detail. In the premises, there is no basis for me to doubt that the appellants’ submissions were taken into account. As such, this ground cannot stand.

13. At this point, I will address grounds (ii) and (iii) together. Having already set out the respective submissions placed before me, I will now turn to re-evaluate the evidence adduced before the trial court. Pauline Adhiambo, being one of the respondents in this instance, gave evidence as PW1 that the deceased who was her husband, worked as a driver for Madima Tours and was earning a salary of Kshs.24,000/=. In support of her evidence is a letter of appointment dated 25th June, 2008 by the said Madima Tours and a copy of a driving license no.322223 bearing the deceased’s full names. The said witness also stated that the deceased never gave her any pay slips, neither did she know where his then employer’s offices were situated.

14. In her analysis, the learned trial magistrate found the above to be sufficient proof of employment and earnings, and therefore went ahead to apply a monthly income of Kshs.24,000/= in awarding the necessary damages.

15. Having considered the above, it is my view that the issuance of pay slips is not the only indicator of employment. PW1 indicated that she could not produce any pay slips for the reason that the deceased never gave them to her. Nevertheless, she was able to tender a copy of a letter of appointment addressed to the deceased and clearly stipulating the terms of employment as well as the monthly remuneration. Likewise, the said letter bears the deceased’s name. This, coupled with the copy of the driving license, supports the claim that the deceased was employed as a driver at all material times.

16. In any event and to answer the appellant, if at all there were reservations in respect to production of the said letter, these ought to have been raised at the earliest opportunity before the trial court. There is nothing to show this was done.

17. From the foregoing, I am persuaded the learned trial magistrate was correct in finding that the respondents had availed proof of the deceased’s employment and earnings on a balance of probabilities. The above grounds are therefore untenable.

18. I am now left with ground (iv) to address. It is by now a well-known legal principle that a court sitting on appeal can only interfere with an award of damages under the following circumstances  illustrated in  Paul  Kipsang  Koech  & Another v.  Titus  Osule  Osore  [2013]  eKLRcited by the  Appellants  thus:

a) where the trial court took into account anirrelevant factor, or

b) where the trial court left out of account arelevant factor, or

c) where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

19. The appellants have based their ground of appeal on the argument that the trial court erred in considering the proof of earnings submitted by the respondents and further, that the said court arrived at an award which was inordinately high.

20. In the premises, I will address the various heads under which damages were awarded.

(a) Pain and suffering

21. PW1 gave evidence to the effect that the deceased did not die instantly but died on his way to the hospital following the accident. Postmortem results were tendered in evidence. The respondents proposed the sum of Kshs.50,000/= before the trial court while the appellants proposed Kshs.10,000/=.

22. The learned trial magistrate considered the proposed sums but noted that the appellants had failed to provide judicial authorities on the same. Consequently, she awarded Kshs.50,000/= in view of the authorities cited by the respondents.

23. Having  re-looked at the evidence, I am able to confirm that the deceased’s death was not  instantaneous which is to say that he suffered a great deal of anguish and pain prior to passing away.

24. I have similarly looked at the cases cited by the respondents before the trial court, namely: Cornelia Elaine Wamba V Shreeji Enterprises Ltd & Others [2012] eKLR; David Ndungu v Wesley Kiptalam Kiptoo [2010] eKLR and Richard Macharia Nderitu v Phillemon Rotich Langas [2013] eKLRand ascertained that an award of Kshs.50,000/= was made under this head. Consequently, I am satisfied the learned trial magistrate considered comparable awards and thus gave a reasonable award.

(b) Loss of expectation of life

25. PW1 adduced evidence showing that at the time of his death, the deceased was 37 years of age.  Subsequently, the respondents  urged  the trial  court to  award  Kshs. 150,000/= as damages under this head while on their part, the appellants thought the sum of Kshs.70,000/= would suffice. In the end, the learned  trial  Magistrate found  the  authority of  Felister  Nduta Muthoni & another v. Attorney General [2004] eKLR cited by the appellants to be fairly old. Resultantly, the learned Magistrate  chose to rely on  Ruth  Wangechi Gichuhi v Andrew Mangeni Luande [2011] eKLR where the court awarded  Kshs. 150,000/=.

26. A similar award was made inCornelia Elaine Wamba (supra).I have considered the parties’ respective positions and am satisfied that the learned trial magistrate took into account comparable awards and in so doing, awarded appropriate damages. I therefore see no need to interfere with the award made.

(c) Loss of dependency

27. It was PW1’s testimony that until his demise, the deceased was a family man, having fathered four (4) children with her. She also testified that being unemployed, both she and the children depended solely on the deceased for maintenance. In turn, she produced copies of birth certificates for the children. In their submissions, the respondents urged the trial court to apply a dependency ratio of 2/3, a multiplier of 20 years and the deceased’s monthly earnings of Kshs.24,000/= leading up to Kshs.3,840,000/=.

28. The appellants in contrast urged the trial court to apply the minimum wage for a driver which amounted to Kshs.8,364/= per month as well as a ratio of 2/3 and a multiplier of 10 years totaling Kshs.669,120/=.

29. Ultimately, the learned trial magistrate applied the monthly income of Kshs.24,000/= adduced by PW1 and a multiplier of 15 years together with  a 2/3 dependency ratio thus:

24,000 x 12 x 15 x 2/3= 2,880,000/=

30. As earlier mentioned, I support the learned trial magistrate’s finding on the  monthly  income in  view of the  evidence provided. In respect to the  multiplier used, the respondents had proposed 20 years while the appellants proposed 10 years. The trial magistrate chose to apply 15 years and though no explanation was given for this, I am satisfied the same falls within the normal range given the age of the deceased at the time of his death. The dependency ratio is not in dispute. In the premises, I am of the humble view that the learned trial magistrate’s award under this head was reasonable and there is no need for me to intervene.

31. Before I conclude, there remains to be addressed the issue of double compensation. To begin with, Section 2(5) of the Law Reform Act, Cap. 26 expresses the following:

“The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act”

32. From my interpretation of the above, parties are entitled to claim under both statutes as a general rule. That being the case, duplication, otherwise termed as ‘double compensation’ only arises in such a situation as was explained by the Court of Appeal in the renowned case of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (2015) eKLRthat:

“duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise…”

33. In the present circumstances, the respondents sought general damages under the Fatal Accidents Act for loss of dependency but not for lost years. The remaining general damages were sought under the Law Reform Act. Going by this, there was no hint of double compensation and hence no need for any deductions to be undertaken. In any event, all courts of law are required to do is to take into account awards made under either statute as opposed to necessarily deducting amounts awarded. This was adequately explicated in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another vs Lubia & Another (No. 2) [1987] KLR 30.

34. The upshot is that the appeal is lacking in merit and is herebydismissed with costs to the respondents.

Dated, signed and delivered at NAIROBI this 27th day of June, 2019.

.........................

L. NJUGUNA

JUDGE

In the presence of:

……………………………. for the Appellants

……………………………. for the Respondents