[2007] KEHC 1358 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

Civil Appeal 15 of 2003

[Being an appeal from the Judgment of the Hon. N.O. ATEYA – SPM in Nakuru Chief Magistrate’s Court CMCC No. 2428 of 1998 delivered on the 11th day of December 2002]

ALBERT ODAWA ……....….…………..……...…….......…….. APPELLANT

VERSUS

GICHIMU GICHENJI …………….………..…...…………… RESPONDENT

JUDGMENT

The appellant Albert Odawain this appeal was the defendant in CMCC Nakuru Number 2428 of 1998. Gichimu Gichenji the respondent herein instituted the suit against the appellant in which he sought for general and special damages both under the Law Reform Act and Fatal Accident Act in respect of the death of Simon Ndungu Gichimu. The respondent who was suing on behalf of the estate of Simon Ndungu Gichimu claimed that his son the deceased in this matter was on 15th March 1981 hit by a motor vehicle belonging to the appellant and he sustained fatal injuries. The respondent attributed the negligence on the part of the appellant who is alleged to have driven motor vehicle KAJ 287B Toyota collora negligently.

The respondent also relied on the evidence of Francis Nganga Karanu [PW2] who said he was at the scene of the accident when the deceased was knocked down by a motor vehicle which he described in his evidence as a Pajero belonging to a parastatal. According to PW 2 the vehicle that caused the accident was a parastal Pajero vehicle. He told the court that he heard a bang and then he saw somebody lying on the road and the vehicle did not stop. He ran to the police station to report the accident and when he returned with the police, it is, when he confirmed that the person who had been hit was Simon Ndungu Gichimu. He said that the deceased was hit when he was on the left side of the road. He blamed the driver who he said was trying to avoid a pothole.

On the part of the appellant, he gave evidence and told the court how on 15th March 1998 at about 8. 30 p.m. he was driving his motor vehicle registration KAJ 287B Toyota Corolla and when he reached Kinungi area, a pedestrian emerged on the right side of the road, staggering as if he was drunk. The appellant tried to apply brakes and to hoot but it was too late. The pedestrian was hit and sustained fatal injuries. The appellant proceeded to Lari police station where he reported the accident but was referred to Naivasha police station where he reported on the 17th March 1998. His vehicle was detained at the Lari police station. It was later taken to Ruaraka for inspection and the appellant was issued with notice of intended prosecution but he was never charged. He denied that his vehicle was a Pajero nor was it a parastatal vehicle and he denied any responsibility over the accident for which he blamed the deceased who staggered on the road.

The learned trial magistrate after considering the evidence found that the appellant was liable for the accident and attributed liability entirely to the appellant. On quantum, the trial court awarded the respondent Kshs.1. 426,000/- as follows;

Loss of expectation of life Kshs. 100,000/=

Pain and suffering Kshs. 20,000/=

Loss or dependency Kshs.1,296,000/=

Reasonable funeral expenses Kshs. 10,000/-

TOTAL Kshs.1,426,000/= Being dissatisfied with the entire judgment of the entire court, the appellant has appeal and raised several grounds of appeal as follows: -

1. That the learned Senior Principal Magistrate erred in law and in fact by making a finding for the reasons that he did and/or without ascribing my particular reason for such finding, that the respondent herein was 100% liable for the accident giving rise to the plaintiff’s claim.

2. That the learned Senior Principal Magistrate also erred in law and in fact in holding that the deceased earned an income of Kshs.8,100/- when no such proof/evidence was tendered and/or alluded to at the hearing of the suit.

3. That the learned Senior Principal Magistrate erred in law and in fact in failing to find that the special damages pleaded had not been specifically proved as provided for by law.

4. That the learned Senior Principal Magistrate erred in law and in fact in failing to distinguish between the case law upon by the defendant, and the plaintiff, before proceeding to the case law relied upon by the plaintiffs.

5. That the learned Senior Principal Magistrate also erred in law and in fact in failing to take into account the vicissitudes of life and therefore discounting the award to allow for the accelerated lump sum payment and the capital investment value thereof.

6. That the learned Senior Principal Magistrate also erred in law and in fact in failing to take Judicial Notice of the fact that the plaintiff at the inception of the suit, did not anticipate any award in excess of Kshs.500,000/-, which was the maximum award which would have been awarded by the subordinate court at that time. Consequently any prayer for a higher award could only be justified if it had been established that the law appertaining to such awards had been altered, resulting in enhanced awards.

7. That the learned Senior Principal Magistrate also erred in law and in fact, by making an award of damages that was manifestly excessive under the various heads and not in line and/or conformity with the prevailing awards for similar claims.

8. That the learned Senior Principal Magistrate also erred in law and in fact in failing to notify the Counsel for the defendants of the date when judgment would be delivered.

9. That the learned Senior Principal Magistrate also erred in law in failing to read the judgment in open court, in the presence of the parties as envisaged by Order XX Rule 1 and 3 of the Civil Procedure Rules.

In further exposition of the above grounds of appeal, learned Counsel for the appellant Mr. kimani invited this court to consider that the evidence before the trial court on how the accident occurred lacked credibility and was conflicting. PW 2 who was the eye witness said that the vehicle that caused the accident was a Pajero and a parastatal vehicle. This is at variance with the evidence of the appellant who said the vehicle was a Toyota Corolla and not a parastatal vehicle. The learned trial magistrate did not resolve the conflict nor did he give reasons in his judgment why he preferred the evidence of PW 2.

Secondly, no evidence was called from an investigating officer which could have assisted the court to assess the point of impact so as to assist the court establish liability. In view of the conflicting evidence, the best the trial court could have done was to apportion liability equally between the deceased and the appellant.

On the issue of quantum, Counsel for the appellant argued that there was no evidence regarding the earnings of the deceased. The plaintiff in his evidence did not even suggest that the deceased was in employment and in the absence of the evidence of income; a global award for the loss of dependency should have been adopted by the trial court. This is in accordance with the principles articulated in the case of Mwanzia Vs Ngalali Mutua Vs Kenya Bus Services (Msa) Ltd & Another where Ringera J(as then was) expressed himself thus;

“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 dependancy, and the expected length of the dependancy 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.”

In the above case the trial court awarded a global sum of Kshs.225,000/= as general damages for loss of expected dependancy.

Learned Counsel for the respondent Mr. Njuguna was of the view that the decision of the trial court should be upheld. According to him, the learned trial magistrate heard the evidence of PW 1 and PW 2 and his judgment cannot be faulted because that evidence was not controverted in cross examination.

Further Counsel argued that the accident occurred at night and the minor discrepancy in the evidence of PW 2 is not material. Although PW 1 did not give evidence on the earnings of the deceased, the submissions by his counsel, clearly gave guidelines on how the damages should be accessed and the court was guided by the authorities. Counsel for the respondent invited the court to uphold the decision of the trial court.

This being a first appeal, this court is mandated to evaluate the evidence before the trial court while bearing in mind that it never saw or heard the witnesses and therefore make due allowance for that. The principles governing the consideration and evaluation and findings of an appeal court have well been established particularly in the case of Kiruga Vs Kiruga & Another [1988 KLR page 348 where the Court of Appeal held

“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

From the evidence available before the trial court, it is clear that the trial magistrate did not resolve the issue of liability. The trial court also did not give reasons why preference was given to the evidence of PW 2 or why the evidence of the appellant was not considered. It is clear that the accident occurred at night. PW 2 said that he heard the bang and then he saw somebody lying on the ground and he rushed to the police station. Later on, when he returned with the police in a police Landrover, he learnt that it was the deceased who was fatally injured. From this scanty evidence, by PW2, it is not clear how the trial court arrived at the decision that the appellant was 100% liable for the accident.

PW 1, the father of the deceased did not witness the accident. No evidence was called from the investigating officer to assist the court in establishing the impact of the collision between the deceased and the appellant’s motor vehicle. There were also discrepancies in PW 2’s evidence regarding the description of the motor vehicle, which material discrepancies, lends credence to the submissions by counsel for the appellant that PW 2’s evidence was not credible.

Taking into account the appellant’s evidence, and especially the fact that there was a gallay on the left side of the road and an oncoming vehicle on the right hand side of the road, and the scanty conflicting evidence of PW2, it is not clear how the trial magistrate was able to attribute the total negligence on the part of the appellant. Based on the evidence on record it is obvious that the trial court erred by attributing total liability to the appellant. In view of the scanty and conflicting evidence which did not give the details of where the collision took place, the liability should have been apportioned equally between the deceased and the appellant.

On the issue of loss of dependency, no evidence whatsoever was adduced before the trial court on the deceased’s earnings and thus the multiplicand of Kshs.8,100/= was without basis. In the absence of evidence of actual earnings of the deceased, the correct approach would have been to assess the deceased income by applying the basic salary which is paid to unskilled workers. This would also have been difficult as the age of the deceased was not stated so the best option would have been to apply the global award. In this case the age of the deceased was not indicated and in the circumstances, I would consider the global award for the loss of the dependency and give a global sum of Kshs.400,000/=. For the loss of expectation of life, a conventional sum of Kshs.70,000/= has been adopted by this court in several decisions.

[See the case of Alice Wambui Kariuki & Another Vs Martin Olhuno & Attorney General & Another – Hccc Civil Case No.2699 of 1993 (Nairobi)].

As regards the award of Kshs.20,000/=, this award had no basis since the death of the deceased was instantaneous and there can not have been pain and suffering before death. Although special damages were not pleaded and during the hearing the respondent did not produce the receipts to support the claim for funeral expenses. However this court has previously awarded a reasonable sum as funeral expenses. I find that the sum of Kshs.10,000/= which was awarded by the trial court is reasonable.

The upshot of the above analysis and evaluation of the evidence and judgment of the trial court, the judgment of the trial court is set aside and substituted with the judgment as follows;

Loss of expectation of life Kshs. 70,000/=

Loss of dependency Kshs.400,000/=

Funeral expenses Kshs. 10,000/=

TOTAL Kshs. 480,000/=

Less 50% contribution Kshs. 240,000/=

Under the Fatal Accident Act, the law requires that the award on loss of dependency be divided amongst the dependants and I do so as follows;

Gichimu Gichenji [father] Kshs.60,000/=

John Gichimu [child] Kshs.70,000/=

George Gitau [child] Kshs.70,000/=

The funeral expenses and the award under the Law Reform Act should go to the beneficiaries of the deceased estate. The respondent will have the costs of the case before the lower court, but each party shall bear their own cost of this appeal.

It is so ordered.

Judgment read and delivered on 9th day of March 2007.

MARTHA KOOME

JUDGE