REPUBLIC OF KENYA IN THE PRINCIPAL MAGISTRATES COURT OF KENYA AT KILUNGU CIVIL SUIT NO. E059 OF 2022 FAST TRACK FAITH KAMANTHE NZYOKI (Suing on behal f of the estate of NZYOKI MUTHOKA MUTHAI (deceased). -PLAINTIFF = VERSUS = KAS TECH LIMITED... .18T DEFENDANT DOMINIC MBEVU MATHERA.. 28D DEFENDANT WRITTEN SUBMISSIONS BY THE PLAINTIFFS ( QUANTUM May we Please Your Honour, Introduction:- 1. By the Consent recorded orally in court on 06/09/2023, and adopted as an Order of the Honourable Court on the same date, the parties advocates agreed in the following terms:- i) That Judgement is entered on liability at the ratio 20%:80% in favour of the Plaintiffs. ii.) That the parties’ documents be admitted as evidence without calling the makers. iti.) ‘That parties do submit on quantum, 2. That being the case, in terms of Item/Clause (ii) of the Consent, the Documents by the Plaintiffs (including the Originals where applicable), are submitted to the Honourable Court by way of pinning them at the back of these Written Submissions for ease of reference and better appreciation by the Court being a reasonable way, in our view, of adducing them to the court in view that witnesses did not testify following the said consent Quantus 3. The following damages are awardable to the estate of the deceased:- (a) Pain and Suffering; (b) Loss of dependency under the Fatal Accidents Act; (0) Loss of Expectation of Life; (d) Loss of Consortium. 4. The Deceased was 51 years old leading a normal healthy life. He was working as, a casual labourer notably a Painter foreman in view of the Certificate of Service by H Young & Co. (EA) Ltd and certificate of Death both on record. He is survived by his wife; Mrs. Ndunge Kamula and his daughter; Faith Kamanthe who was born in 2003. He had high prospects of life. He was the provider for his said dependants. He used to provide them with monthly support of Kshs. 10,000 /= for upkeep and school fees. He was the only one who supported them.a.) Multiplier: . Noting that the deceased was 51 years old at the time of death, he would have worked even after the age of 70 by the nature of his work being a general/casual labourer. A multiplier of 19 years is quite reasonable taking into account the imponderables of life. We are guided by the following authority. Nairobi HCC Case 752 of 1980 Mrs Lydia Were and Six Others VS The Attorney General. The deceased was aged 41 years and a multiplier of 18 years was adopted. b.) Dependancy Ratio Considering the peculiar circumstances of this matter, the conventional ratio of 2 is applicable. We are guided by:~ Mombasa HCC Case 400 of 2002 Charity Mapen: as the legal & personal Representative _of Nyatta Mwakale) and Another -VS- National Water Conservation & Pipeline Corporation. The conventional dependency ratio of 2/3 was adopted. Loss of Dependency . Under the Regulation of Wages (General) (Amendment) Order, 2018, which is applicable in this matter, the deceased would fall under the category of general labourer whose minimum wage would be Kshs. 13,572.90. This translates to; 2/3 x 13,572.90 x 19 x 12= Kshs. 2,063,080.80 Loss of Expectation of Life . We are guided by the following authorities:- Mombasa HCC Case 523 OF 2001 John Jembe Mumba VS Seif Mbaruku T/A Takrim Bus And Another. An award of Kshs 150,000 was awarded for loss of expectation of life. And in Kericho HCC Case 33 OF 2001 Jane Kwamboka Mogere -VS- Ouru Nyamori Nyamwancha and Another an award of Kshs 120,000 was awarded for loss of expectation of life. Considering the lapse of time and the inflationary trends in Kenya a conventional figure of Kshs. 500,000.00 is, in our view reasonable. Loss of Consortium A pleaded in paragraph 8 of the Plaint, the deceased was also survived by his wife; Mrs. Ndunge Kamula and has lost companionship. She is therefore entitled to an award of loss of consortium. An award of Kshs. 500,000.00 under this head is fair and just. We are guided by the following authority.Mombasa HCCC NO. 118/2000 Jacquelynrita Wanjiru Nyange Ltd_and_Anor. The consortium. Daso Des idows were awarded Kshs 120,000 each for loss of Pain and Suffering 10. The deceased must have suffered a lot of pain and suffering prior to his death. He died after being hit by a speeding motor vehicle. He bled profusely and was writhing in pain after the accident, Blood stains were evident on the road as personally witnessed by Faith Kamanthe; the Plaintiff herein, who visited the scene. He died on the spot. This establishes how much pain and trauma he must have undergone before he finally died. It has been the practice of this Honourable court to award damages for pain and suffering even where the deceased died even instantly following an accident. The estate is entitled to damages under this head notwithstanding the time frame within which the deceased died. 11. An award of Kshs. 1,000,000.00 under this head is fair considering the lapse of time and the inflationary trends in Kenya, The court should take judicial notice that the Kenya shilling has grossly lost value. The cost of life has increased tremendously. We are guided by; Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR where Justice W MUSYOKA confirmed an award of Kshs. 100,000 for pain and suffering in the year 2020. Who should cater for the Costs of this suit? 12, Section 27 of our Civil Procedure Act 2010 stipulates that costs follow the event and is a discretion of this court. The Plaintiffs are successful in this matter even going by the Consent recorded. In addition, at paragraph 14 of the Witness Statement of the Plaintiff and paragraph 10 of the Plaint, a Demand Letter and Notice to sue were written and served upon the Defendant and Occidental Insurance Company before instituting this suit. In view of the foregoing, we urge your Honour to exercise your discretion in the favour of the Plaintiffs and award costs and interests to the Plaintiffs, Conclusion: 13, The Final Outlay is as follows subject to the Consent. a) Loss of dependency 2/3x13,572.90 x 19 x 12 b) Loss of expectation of life-—-— ©) Loss of consortium 4) Pain and Suffering — Total --- DATED at NAIROBI this __- I. of 2023, << KNOVEGMDSSSCO ADVOCATES FOR THE PLAINTIFFS Kshs. 2,063,080.80 Kshs. 500,000.00 Kshs. 500,000.00 Kshs. 1,000,000.00DRAWN & FILED BY: Kivuva Omuga & Co, Advocates, NAIROBI. Email: kivavaadvocates@gmail.com TO BE SERVED UPON: J.N Muema & Company Advocates Kose Heights, 5th Floor, Argwings Khodek Road, Hurlingham, P.O. Box 46788-00100, NAIROBI.SPECIAL ISSUE 1 Kenya Gazette Supplement No.1 _ th January, 2019 (Legislative Supplement No. 1) (CORRIGENDA On page 3178, defete the expression “12th December” appearing immediately after the words “With effect from” and. insert the expression "20th December" LecaL Novice No.1 ‘THE BANKING ACT (Cap. 488) EXTENSION OF EXEMPTION IN EXERCISE of the powers confesred by section $3 (1) of the Banking Act, the Cabinet Secretary for National Treasury and Planning, exiends the exemption granted to the Commercial Bank of Africa Limited in connection with the acquisition of shares in Crane Bank Rwands Limited* tothe 30th June, 2019, Dated the 21st December, 2018, HENRY ROTICH, Cabin Secretary, The National Treasury and Planning. LEGAL NoTICENo,2 ‘THE LABOUR INSTITUTIONS ACT (Wo. 12.0f 2007) IN EXERCISE of the powers conferred by section 46 of the Labour Institutions Act, 2007, the Cabinet Secretary for Labour and Social Protection makes the following Order— ‘THE REGULATION OF WAGES (GENERAL) (AMENDMENT) ORDER, 2018 1. ‘This Order may be cited as the Regulation of Wages (General) (Amendment) Order, 2018 and shall come into force on the Ist May, 2018. 2. ‘The Regulation of Wages (General) Order, is amended by eteting the Schedule and substituting therefor the’ following new Sehedule— SCHEDULE Chin Sab es. 1, BASIC MINIMUM MONTHLY WAGES (EXCLUSIVE OF HOUSING ALLOWANCE)2 Kenya Subsidiary Legislation 018. 2. MINIMUM DAILY AND HOURLY RATES (INCLUSIVE OF HOUSING ALLOWANCE) [SWNO. [Ossapaon [Nakobi, Mombase and JAI formar menisiplien [Aros aeaw Iisums cis Jand Town council of [Mavoke, Ruirand Liana [Moatiy] Dally fouiy |otonthiy] Daily | Howry | Many] Daly] Hoary feonract | Rute fate [conract] Rate | mie |eonact| Rate | eae Ine Per re onth th month Vs i sci Cs is Ci aC aa Ci aha i Ca Co 1. [Gener [B57E90)653.10- 2 Isbourer Incadiog iteane. [cope scenes, leuston's aya nause ies etch, lncssnger 2 Mines, tones s]r0s a0 [i210 | 1900890) @510| iiaaa| waee3s) siamo) 3 Iurboy [ook tee] ae cuter Br Jwiem—|isieiss) 72635) sess fremnaclernae [rasa Waesa aero | DS [sichman 1252220) eooao | 11090 | 7309] 37.00 | ora fe aactine Yistisasfiasas [isis yiasisaoleaae yiasso ir@asolseao |e30 await sowyer, InacineKenya Subsidiary Legislation, 2018 [Machinist 1786100) ea63s [i240 ]ieaa3q] 76090 | 1520 |rse130] 6a] TTD rade nea) soe upee reper ftspie ter, etic fwoer (oaxot ana lerce [ations fiery en laos, larry operate, irc, fates! liver ch mung |1891930) 8030 | Tei90 e079] BIBS | 150a0 | 1397530) 31050) BeOS shine fers, Jotery fmacine lopeator, irwood Jneeoe, lw rer, stop test fous Inaker, wo Ian ker bsopy hyp. ives fears ana liga van) Fram fpo508 90) 105.10) 18830 |ieirz03| oioz0 | Tsia0 fieasssa] pei a0] 12630] cesigner Crauges- Imes)Kenya Subsidiary Legislation, 2018 Jas omer jingiehand esareten| baker. Jeno ls, fscphone reception, [rike, 9) (cx saad ite one Ws T7815) Taio] Te sae 2150 18 [Dres, [assis leswlor frvr ets a0] Tw fsa Tia] mw rata] 0am 8 [saw dost, [aia] lane fosienes) ssa iaaasan] Taka] aes 0 717895) Bie (Ganier, naar laiver jtesry fnmmeril feiss) stern liver asi TSS Eo TTA] IHS aa) 28 [Usersed [9 atin Tei 7.9 was ara) aris Tas lanisn [3503008 lore rt T0839] Eco fais] To19 Tia Tas) Ti) 1038 lArism [samme] Jord aim [avai Tica] Taw ETE) Toe) ror [aan [S027] Grade Tar] Taos fnez20) THT] Ey Er 739835) a0 Dated the 19th December, 2018. UKUR K. YATTANT, Cabinet Secretary for Labour and Social Protection,Kenva Subsidiary Legislation, 2018 LecaL Novice No.3 ‘THE LABOUR INSTITUTIONS ACT (No. 12 of 2007) IN EXERCISE of the powers conferred by section 46 of the Labour Institutions Act, 2007. the Cabinet Secretary for Labour and Social Protection makes the following Order— ‘THE REGULATION OF WAGES (AGRICULTURAL INDUSTRY) (AMENDMENT) ORDER, 2018 1. This Order may be cited as the Regulation of Wages —Ciutin (Agricultural Industry) (Amendment) Order, 2018 and shall come into force on the Ist May, 2018, 2, ‘The Regulation of Wages (Agricultural Industry) Order, is Sub eg: famiended by deleting the Schedule and substituting therefor the following new Schedule— ‘SCHEDULE BASIC MINIMUM CONSOLIDATED WAGES Re. ‘OCCUPATION FerMonih Ber Day ] Khe Cr, Kah. Cs, [Unskiled employes T3630 28250 |Stockman, herdsman, 1119.45 329.40) watchman (Skilled and semi-skilled lemployees [House Servant or cook FEROS 252.30) Farm foreman 72152.20 31335 (Farm Clerk 12152.20 313.55) ‘Senior foreman "7867.00 334.50] arm artisan ‘3051.40 302.35 [Tractor driver 8538.00 362.65 (Combine harvester diver 3405.85 399.10 [Lory driver or ear driver ‘9870.85 418.40) Dated the 19:h Decernber, 2018. UKUR K. YATTANT, Cabinet Seeretary for Labour and Social Protection.ambo Nyunja & 2 others v Josephine Malala Gwinyi (Suing as the legal administrator ofthe estate of Kevin Osore Rapando (Deceased) WKENYA LAW (Sore trad bdorestn actor REPUBLIC OF KENYA, CIVIL APPEAL NO, 106 OF 2018 FRANCIS ODHIAMBO NYUNIA.. AT APPELLANT. NOLLAND ENGINEERING &CONSTRUCTION CO LID sov-2™® APPELLANT NAFAS WORLD AUTO L1D.. sesnend®® APPELLANT ‘VERSUS JOSEPHINE MALALA OWINYI (Suing as the legal administrator ofthe estate of Kevin Osore Rapando (deceas€€) vm RESPONDENT supGMENT. 1. The appeat herein arises forthe judgment and decree, in Mumias PMCCC No. 111 of 2016, in which the court made an award in the following terms lisilty at 90:10 in favour ofthe respondent as agninst the appellant, pain and suffering at Kshs, 100,000.00, loss of expectation of life at Kshs. 100,000.00, loss of dependency at Kshs, 2,119,864.00, special damages at Kshs. 105,130.00, income from volleyball at Kshs 200,000.00; making a total of Kshs 2,624,994.00, which, after contribution, comes down to Kshs, 2,362,494.00. 2. The appellants were dissatisfied with the award of goneral damages, ad fled the instant appeal. The memorandum of sppeal ‘ses nine grounds all challenging the award of damages made by the trial cour. 5. Dections were given on 25" February 2020, that the appeal would be canvassed by way of written submissions, There was ‘compliance, for both sides fied writen submissions, which Thave perused through and noted the arguments made by each side. 4. In their submissions, the appellants contend tht the tril court ctred in awarding los of dependency and applied wrong principles in the assessment of damages, in terms of 1/3. dependency the rato adopted, the multiplier of 41 and the multiplicand of 12,926.00, “They further challenge the award of income from volleyball as having no legal basis and proof, and that of pain end suffering, and special damages as being manifestly excessive. The respondent opposes that appeal and submits thatthe award was proper and ‘rays thatthe appeal be dismissed, 5. The issues for determination, wich have emerged from the pleadings and written submissions, are whether the rial cout acted ‘on wrong principles in making the award of damages, and, if the above is answered to the affirmative, which sum would be sufficient compensation in the circumstances nepsrwsonyatan org - Page 116 0imbo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator ofthe estate of Kevin Osore Rapando (Deceased) 6. The Court of Appeal, in Bashir Ahmed Butt vs. Uwais Alvmed Khan (1982-88) KAR, set out the parameters within which an appellate court will interfere with an award of general damages, whem it stated: “An appellate court will not disturb an award for general damages unless itis $0 inordinately high or low as to represent ani entirely erroneous estimate. It must be shown thatthe Judge proceeded on wrong principles, or that he misapprehonded the ‘evidence in some material respect and so arrived ata figure which was either inordinately high or low.” 7. Similar sentiments were expressed in Loice Wanjiku Kagundavs. Julius Gachau Mivangi CA 1422003 (UR), by the same cour, ‘when it sai "We appreciate thatthe assessment of damages is more lke an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless itis satisfied tha te judge acted on wrong priniples of faw or has misapprehended ‘he facts or has for thase other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the ‘appellate court would award but whether the lower court acted on the wrong principles (vee Manga vs. Musa [1984] KLR 257)" ‘8. The same was reiterated in Gitobu Imanyara & 2 Others vs. Aitorney General (2016] EKLR, where the Court of Appeal said: ‘cis firmly established tha this Court will be disinclined to disturb the finding ofa trial Judge as tothe amount of damages merely because they think that if they had tried the case in the frst instance they would have given a larger sum, In order to justify reversing the tral Judge om the question of the amount of damages it will generally be necessary that this Court should be ‘convinced ether thatthe Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very ow ax to make it in he judgment ofthis Cour, an entirely erroneous estimate ofthe damage to which the plainaf is ented. 9, See also Kemfro Africa Limited tla Meru Express Service vs. AM Lubia and Olive Lubla (1982 ~88) 1 KAR 722, lango vs. Manyoka {1961} E.A. 705, Lutenya Ranching and Farming Co-Operatives Society Lid vs. Kavaloto [1970] EA 414, Gieherw vs. ‘Morton and Another (2005) 2 KLR 333, and Major General Peter M. Kariuki vs. Attorney General Civil Appeal No, 79 of 2012. 10, The foregoing decisions set out the law and the guiding principles, which Iam bound to apply the determination ofthis appeal 11. In Power Lighting Comp. Lid & Another vs. Zakayo Saitoti Naingola & Another [2008] eKLR, the court sid: “On quantum court the in determining whether to inerfere with the same oF not. the court has 10 bear in mind the following principles on assessment of damages (1) Damages should not be inordinately too high or too low; (2) They ara meant 1 compensate ‘apart, for the loss suffered but not to enrich a party, and a such they should be commensurate to the injuries suffered: (3) Where ‘past decisions are taken into consideration, they shouldbe taken as mere guides and each case depends on its own fats; (4) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power ofthe Kenyan shillings, then atthe time ofthe julgment Ths court has taken note of the court of appeal decisions o the effect that an award of damages is a matter ofthe courts discretion and can only be interfered with if among others = The awart is inordinately 0 high or too los. = Itis based on cursory principles. The principles applied by dhe lower court in the assessment was that of taking a narrative of the injuries by the witnesses = Calling for proof ofthe same by viswal observation if pointed ont and medical records.” 12. On damages for pain and suffering, the court, in Aeceler Giobal Logistics vs. Gladys Nasambu Waswa é ancther (2020) eKLR, coberved: “11s sted law thatthe personal representative ofa deceased person can recover damages that the deceased could have recovered hha he survived and which were a liability on the wrong doer at the date of death. The was enunciated inthe celebrated decision of Lord Green in Rose vs. Ford. [26] nti kenyelew.ong- Page 206ambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator ofthe estate of Kevin Osore Rapando (Deceased) 37. Ibis not in dispute that the deceased sustained serious injuries and thot the deceased died on the spot. This raises a fundamental Amuestion of what each unt of pain and suffering is worth, This question has in my view been authoritatively discussed in an article in the International Review of Law and Economics [27] ented "Pain and Suffering in Product Liability Cases: Systematic: Compensation or Capricious Awards” by W. Kip Viseussi who argues that: - “Pain and suffering is generally recognized as being legitimate component of compensation but one for which we have no accepted Procedure of measurement... Pain and sufering is by no means a negligible component of awards .. The general implication Is that ‘Pain and suffering awards are not entirely random or capricious” 48. The postion laid down in Rose vs. Ford [28] is that where the period of sufering is shor, only nominal damages are awarded. Thet was in 1935 and 500 pounds was awarded for a two days suffering. Iam persuaded that the amount of Ksk.$0,000/= awarded ‘under te said head is ot in my view excessive nar has it been shown tobe erroneous or unreasonable.” 13, In Sukari Industrie Limited vs. Clyde Machimbo Juma Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident and the tial court awarded Kshs. $0,000.00 for pain and suffering, the appellate court capture the spirit of the law onthe istue when i stated [5] On the first issue, I hold that itis maaural that any person who suffers injury as a result ofan accident will suffer some form of ‘Pain. The pain may be brief and fleeting but i is nevertheless pain fr which the deceased's estate is entitled o compensation. The senerally accepted principle is that nominal damages will be awarded on this head for death occurring immediatly after the ‘accident. Higher damages willbe awarded ifthe pain and suffering is prolonged before death, According to various decisions ofthe High Court the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that thatthe som of Kshs $0,000 awarded under this head ts unreasonable.” 14, In Mercy Muriutt & Another vs. Samuel Mvangi Néuati & Another (Suing as the legal Administrator of the Estate of the late Robert Mivangi) [2019] eKLR, the court cbserved: “The generally accepted principle therefore is that very nominal damages will be awarded on hese to heads of damages if the death followed immediately after the accident. Tae conventional award or loss of expectation of life ks Ksh. 100,000 while for pain ‘and suffering the awards range from Ksh. 10,000 10 Xsh, 100,000/= with higher damages being awarded ifthe pain and suffering was prolonged before death,” 15, See also West Kenya Sugar Co. Limited vs. Philip Sumba Julaya (euing asthe administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR. 16, The evidence, led by PW2, was thatthe deceased was hit bythe truck, at about 6,00 PM, and that he was rushed to hospital and ‘unfortunately passed on at 10.00 PM. PW? testified thatthe deceased was in «pathetic state, and that he went into shock before he died. 1 am persuaded, inthe circumstances, thatthe damages of Kshs. 100,000.00, awatded under this head, ae suitable, and, therefore, the award ought not to be disturbed. 17. On damages for loss of dependency, the appellants submit thal, owing tothe age of the deceased, andthe fact that he had not yet attained the age of employment, the cour ought to have awarded a global sum for lost years. Tis takes us to questions around the appropriate multipliers and mltiplicands to emplay in the circumstances, or whether the trial court ought to have to bave gore that way at al 18. As to whether the tral court can be faulted for adopting the multiplier method in assessment of damages, have looked atthe principles as stated in a numberof decisions. In Seremo Korir & Another vs. SS (Sung as The Legal Representative ofthe Estate of MS, Deceased) [2019] eKLR, the court said: 22. In the lower court's judgment, the learned srial magistrate applied the minimum wage scate of Kshs. 12,000/- as the ‘multiplicand. The learned tral magistrate further held tha the deceated was @ pupil based on a letter from the deceased's school dand that the deceased was 12 years old, a fact that was not contested. Ic was the appellants’ submission that where the sue of the amount earned by a deceased and their profession is unsetted, cowis adopt a lump suniglobal sum instead of delving into (2, nee tenyalowcong- Page 362mbo Nvunja & 2 others v Josephine Malala Owiny (Suing asthe legal administrator ofthe estate of Kevin Osore Rapando (Deceased) ‘stinating incomes and professions. On the other hand, the respondent submitted that the learned trial magistrate had the discretion o either adopt the multiplier method or the global assessment method. aie u 2 2 27. Inthis case, Fam in agreement with te submissions ofthe respondent that courts have the discretion to apply ether the ‘global ‘sum’, ‘Separate heads’, or mixed’ approaches in awarding damages and that itis not east in stone that just because the deceased was a minor, then courts can only apply tke global/lump sum approach” 19, In Charles Ouna Ovleno & another vs. Renard Odhianbo Ogecha (suing at Brother and Legal Representative and Administrator ofthe Estate ofthe Late Oscar Onyango Ogecha (Deceased) (2014) eKLR, the cout stated: “Lam of te considered view that the learned trial magistrate fll nto error in making awards under separate heads, As itwere, the future of the deceased who was aged 14 years old as atthe time of the accldent was uncertain. There was no knowing what he ‘would have become had he lived hs iife tothe fll: nor how much he would earn: nor was there any way of knowing whether or not ‘he would be able to support his brother, the respondent herein. The answer om the frst issue i thatthe eral court fll into error in assessing damages under various heads instead of awarding a lunp sum. ‘The second isue for determination is whether the wial court erred n applying a dependency ratio inthe ease of a 14-year-old boy who was still i schoo. The appeltants have submitted that because the respondent was only a brother to the deceased, it was tulikely thatthe deceased would have spent a bigger portion of his earnings on the respondent once he (deceased) got a job, Further that the dependency ratio adopted by the tril court was not proved. Reliance was placed on the case of H. Young & Company EA Lid. & another vs. James Gichana Orangi ~ Kisii HCC NO.207 of 2009, In the said case, the learned trial ‘magisrate awarded damages totaling Kshs. 323,300/~ under various heads in respect ofthe death ofthe deceased who was aged 11 years atthe time of death. On appeal, Musinga J (as he then was) set aside the award of Kshs. 323,300/= and in leu thereof mete a hump sum asvardl of Kshs. 300,000 subject to 2596 contribution.” 20, In Chen Wembo & 2 others vs. IKK & another (suing as the legal representatives and administrators of the estate of CRK (Deceased) [2017] eXLR, itwas said: “This debate isnot in any way surprising, primarily because, the exercise of awarding damages for lost years In respect of minor deceased person necessarily poses a challenge tothe courts, involving as itdoes a fir amount of speculation The uncertaies in determining the faure of a minor deceased, his earning prospects and hence support for parentsldepenents are amply demonstrated inthis case. Even where there is evidence that a child was undertaking a professional course in a wxiversiy, was brilliant and promising, the path is abways feaught with inponderables... In my considered view, this case was eminently unsuited to ‘the mulptier/matiplicand approach inthe assessment of damages in respect of lst dependency.” 21, While grappling with the same question, in an appeal, the court, in Oshijt Kiwenji & Another vs, James Mohammed ‘Ongenge [2012] eKLR, sad “In.as much asthe Appellants in the instant case argue that a global sum would be the best suited tothe deceased aged only six (0) years atthe time of her death, Fhave not come across an authority that has overturned a decision ofthe rial court on account of ‘granting genoral dariages based on expected earnings ard tabulated on a multiplier. Itis clear that neither the High Court nor the (Cour of Appeal has adopted a uniform principle on how to tabulate general damages where the deceased is a minor. Even as early as 1986 as isin the Case Luduwa (Sting by her next friend) And Another vs. Ayuku & Another, (1986) KLR, 394, a (2 itp henyatew.org- Page 482mbo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator ofthe estate of Kevin Osore Rapando (Deceased) ualgment of Apaloe, J~ High Court, the Court considered that an award of only Ksh, 6,000/= under loss of expectation of lif in ‘the case ofa minor aged only one month who had died alangsde her mother. In granting the flgure the court said that shelved for Just month and her prospects of a future happy life are less than her mother's. However, oss of dependency was awarded for death of her mother which was tabulated based on her average earnings and a multiplier of twenty-five (25) years used, Nothing was awarded for lst years or loss of dependency in respect of this minor... There (s therefore na golden rule the assesyment of damages in respect of a deveased minor, The heads, global or mixed approaches have been applied in superior courts. What is bheyond doubt is that inrespective of the age ofa deceased child, and whether ar not there is evidence of his pecuniary contribution damages are payable o his parents/dependents ~ See decisions ofthe Court of Appeal in Kenya Breweries Limited vs. Saro (1999) LR -408 and Sheikh Mushtag Hassan vs. Nathan Mwangi Kamau Transporter dS Others [1986] KLR 457; [1986] KER Equally, there can be no dispute that the estate of a deceased minor is entitled to damages for pain and suffering, los of expectation of life, feral expenses etc, under the Law Reform Act. would therefore agree with Mr. Waigwa's submission that the adoption ofa heads approach in the award of damages in respect of a deceased minor isnot ipso facto evidence thatthe award is excessive or erroneous. Indeed, the Appellants at the close oftheir submissions sought to persuade the court io use a multiplier approach in arriving at damages payable under the head of lost dependency. ‘The deceased was eged 12 years at death There is no evidence that he was in school or as to the level of his abies and therefore future prospects. The award in respec of lst dependency in my ew was excessive and erroneous. I hereby seit aside ‘and substitute therefor a global award under the Fatal Aecidents Actin the sum of Shs 600,000/= bearing in mind the awards under ‘the Law Reform Act. Thave upheld general damages for loss of expectation of lie, pain and sufering whave taal is Shs 100.0 Special damages had been agreed at Shs 35,000/=, 22, From the above, it should be clear, therefore, thatthe choice of whether to adopt a multiplier of global award approach is ‘etirely an issue of diseretion depending onthe cieumstances of the case, 23. In the instant suit, evidence was led that the deceased was aged sovenigen (17) year, atthe ime of the alleged accident, and was in Form 3 in high school. No evidence was led as to his future prospects and ambitions. The court cannot, therefore, tll what the ‘minor would have turned out tobe in life. There was no bass, therefor, forthe tral court holding thatthe deceased would not have ‘camed anything less than the minimum wage of Kshs. 12,926.00. The trial court didnot even refer tothe Kenya Gazette Notice that set the minimum wage at Kshs. 12, 926.00. Though the trial court adopled a multiplier af 41 years, s didnot consider the age of the dependant, that is the mother to the deceased, so as to determine the proper multiplier. The multiplier and the multiplicand were, therefore, speculative, The multiplier method was, no doubt, not the most appropriate in assessing damages for loss of dependency {inthis ease. The global lamp sum method would have boon the better approach in the circumstances ofthe ease. The award mede by the trial cour ought to be set aside, and substituted with an award based on the lump sum or global method 24, The appellate court in Charles Makancie Wambua vs. Nthoki Munya de Prudence Munyao (sung as personal representatives of the Estate of Lillan Katumbl Nthoki (Deceased) (2020] eKLR, upheld a global award of Kshs |,320 ,000.00 for loss of dependency Similarly, in Twotay Chemicals Limited vs. Patrick Mekaw Mutisya & another [2019] eKLR, the appellate court upheld e global sum of Kshs. 150,000.00 for loss of dependency fora minor aged sinteen (16) years. In Zachary Abusa Magoma vs. Julius Asiago Osentoto & Jane Kerubo Asiago [2020] eKLR, the court awarded a global sum of Kshs. 1,500,000.00 for loss of dependency Is, therefore my view, therefore, that a global award of Kshs. 1,500,000.00, would be sufficient compensation in the circumstances, 25. With tegard tothe payment to compensate forthe loss of what the deveased used to get paid for playing volleyball, [find that the same was not substantiated, and, in my view, it eannot be sustained. 26, On special damages, the respondent had pleaded special damages of Ksh 105,130.00. At the hearing, she produced receipts supporting an amount of Kshs, 68,650.00, The tral cout, in awarding Kshs. 15,130.00, relied on Jacob Ayiga é Anor vs. Sinion ‘Gbayo (2005) EKLR, where the court had awarded funeral expenses despite Inck of proof, by way of receipts, on grounds that funeral expenses must be incurred in every ease where somone did. 27. The Court of Appeal, in Premier Diary Limited vs. Amarjit Sigh Sagoo & another [2013] eKLR, ssid as follows on the issue: "We do not think that iis a Breach ofthe general rule that special damages must be pleaded and proved, ro hold that families who expend money to buy or otherwise inter their dead relatives should be compensated. Infact, we do take judicial notice that it napa tonyatow.org- Page 51 |ambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the egal administrator ofthe estate of Kevin Osore Rapando (Deceased) would be wrong and unfair to expect bereaved families ro be concerned with Issues ofrecord keeping when the primary concern 10 «a bereaved family 1s that a close relative has died and the body needs to be interred according to the custom of the particular ‘community volved, The learned judge took what was a practical and pragmatie approach. Although a sum of Kshs. 400,000/= vas pleaded in he plaine and witnesses who were the relatives ofthe deceased ~ testified that they spent much mare that this in preparing for and conducting a cremation the learned Judge awarded a sum of Kshs. 150,000 which sum he saw as a reasonable «and prudent amount to compensate the family for funeral expenses. We are ofthe respectful opinion thatthe judge was enttid to ‘award that sum without in any way breaching the general rule we have referred fo onthe issue of special damages." 28 Similarly, the Court of Appeal, in Caplual Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] KLR, sid “We do not discern from our reading of this decison a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved .. We are of course aware ofthe court occasionally loasening this requirement when it comes fo matters of common notoriety for example a claim for special damages on burial expenses where the ‘laimant may not have receipts for the coffin, transport costs, food etc. However, the claim herein didnot fallin that class." 29, In JNK (Suing asthe Legal representative of the Estate of MMM (Deceased) v Chairman Board of Governors [..] Bays High ‘Schoo! [2018] ¢KLR, said: “In pte of ack of receipts this court ought not to turn a blind eye tothe fact tha there were funeral costs incurred asa result of the burial ofthe deceased.” 30. In the instant sui, the respondent pleaded funeral expenses of Kshs. 80,000.00, part of which were proved. Iam persuaded that the tril eourt properly made the award on special damages. 31. In an upshot, itis my finding thatthe appeal herein sucezeds, in part, and thatthe same is hereby allowed, and damages are hereby assessed and awarded as follows: pain and suffering at Kshs. 100,000.00, los of expectation of life at Kshs. 100,000.00, loss of dependency at Kshs. 1,500,000.00, special damages at Kshs. 105,130.00 and zero for income ftom volleyball. The graad total works out at Kshs. 1,805, 130,00 After contribution, 10%, is taken into account, the total award comes down to Kshs. 1,624,617.00. Each party to hear their own costs ofthe appeal DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 18" DAY OF December 2020. WMUSYOKA. sUDGE @ EERIE yao ne sin src i natoclt Cove anh dae ween Manan Cais Conon soit Seas intatand atx ofthe set opis caine ta the ul oman fs are erm ay pyr elton ead ow Pray oly LDcanes np: kenyatow.org- Page 61