[2019] KEHC 5717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL APPEAL NO. 227 OF 2017

(Formerly Machakos HCCA 94 of 2015)

ALFRED MUTUA NDUTU...................................................APPELLANT

VERSUS

PETER MUSAU WAMBUA(Suing as the legal representative of )

MICHAEL NGILA MUSAU.............................................RESPONDENT

(Being an Appeal from the Judgment of Hon. D.M Machage (PM) in the Principal Magistrate’s Court at Makindu Civil Case No. 421 of 2009, delivered on 24th April 2015)

JUDGEMENT

Introduction

1. The respondents filed a suit in the lower Court seeking general damages, special damages, costs of the suit and interest on behalf of the Estate of Michael Ngila Musauand his dependants following a fatal road accident on 07/11/2016 along the Nairobi-Mombasa road.

2. The appellant filed his statement of defence and after the preliminaries; the suit was slated for hearing. Judgment was eventually delivered and the appellant was found to be 100% liable. The total award was kshs 727,700/=.

3. Aggrieved by the entire judgment, the appellant filed this appeal and raised 6 grounds stating that the learned magistrate erred in law and fact;

a) By finding the appellant 100% liable,

b) By failing to consider the defence evidence and in particular, the evidence of DW1.

c) By awarding the plaintiff under the Law Reform Act.

d) By finding that the respondent was entitled to general damages that were too high in view of the evidence tendered.

e) By failing to consider the appellant’s submissions on quantum and provisions of the amended Cap 405 Insurance (Motor Vehicle Third Party Risks) Act.

f) By allowing the plaintiff’s pleadings which did not specify which Law(s) the estate of the deceased was claiming under.

4. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties filed their respective submissions.

5. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach it’s own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.

6. Having looked at the record of appeal, the grounds of appeal and the rival submissions, I will deal with grounds (a) & (b) together, grounds (c), (d) & (e) together and ground (f) on it’s own.

The pleadings (ground f)

7. According to the appellant, the learned magistrate erred by allowing pleadings which did not specify the law(s) that the estate of the deceased was claiming under.

8. From the record, the appellant submitted itself to the process and did not raise this issue anywhere in the proceedings. His submissions before the trial Court acknowledge that the respondent’s claim was based on the Fatal Accidents Act and the Law Reform Act. This is a clear indication that he was aware of the claim against him and no prejudice was occasioned by the omission. This ground has no merit.

Liability

9. The witnesses who talked about liability were PW2, PW3 and DW1.

10. PW2 was PC David Nderitu. He said that the accident involved motor vehicle KAW 511T and the deceased. He produced the abstract as exhibit 3. On cross examination he agreed that he was not the investigating officer. That the case was still under investigations hence nobody had been blamed.

11. He said he had the police file. That the matatu was headed to Nairobi from Kibwezi. That the deceased who was a pedestrian was on the right side and he crossed towards the left. That there was no eye witness apart from the driver and pedestrian. He agreed that he was not at the scene and what he had was a statement from the driver of the matatu. That there was nothing in the statement to show that the deceased was a mad man.

12. PW3 was Salu Bernard Solovea the eye witness. He testified that on the material day, he was walking from Kibwezi town towards Mbui-Nzaui when he met the deceased at the Kibwezi junction. They were walking on the left side of the road, facing Nairobi, and just before crossing the railway, a certain matatu appeared to overtake a bus. There was a lorry from the opposite direction which forced the matatu to brake suddenly. The matatu came across a pot hole, hit it, lost control and veered off the road hitting the deceased on the ribs. The matatu stopped at the trench off the road and the deceased died on the spot.

13. On cross-examination, he maintained that he was with the deceased and that his body landed on the grass, about five metres off the road. That the deceased was not on the tarmac when he was hit.

14. DW1 was PC Justin Karanja. He testified that investigations were conducted, scene visited and the deceased was to blame. That sketch plans were done which revealed that the deceased had crossed the road abruptly. That he recorded the statements of the witnesses who were present at the time. That the deceased was walking on the place that the vehicle was supposed to be. That he had the file which had all the issues relating to the accident including findings and recommendations.

15. That the driver was not to blame for the accident. The vehicle was on the left side headed to Makindu. That the body of the deceased was in the middle of the road. The respondent’s counsel objected the production of the police file and the learned trial magistrate upheld the objection.

16. On cross-examination, he agreed that he did not witness the accident and did not visit the scene. That he had read through the police file to say what he had said in Court. That he was not the investigating officer. That the file was pending under investigations. That he had not talked with the investigating officer and had not done any investigations. That he did not know what happened before the accident.

17. In his submissions, the appellant discredits the evidence of PW2 and says that it did not assist the Court as to how the accident occurred. On the other hand, he wants to rely on the evidence of PW2 to discredit that of PW3 which is akin to having his cake and eating it.

18. On liability, the respondent indicated that he had adopted his submissions before the trial Court. However, this Court did not benefit from them as they were neither in the record nor attached to the submissions before this Court.

19. PW2 was not the investigating officer and was not at the scene of the accident. Having looked at the driver’s statement, PW2’s version that the deceased was on the right side and abruptly crossed to the left was clearly in reference of the said statement. The driver was never called as a witness and his evidence was never tested in cross examination. On the same breadth, PW2 could not authoritatively testify that there was no eye witness.

20. DW1 was also not the investigating officer and did not visit the scene. Cross examination revealed that he knew very little or nothing about the accident. His evidence that the deceased was to blame for the accident had no basis. In his evidence in chief, he appeared to give conclusions and findings of the investigations and even stated that the police file in his possession contained all issues related to the accident including findings and recommendations.

21. In cross examination however, he stated that the file was pending under investigations. That was a material contradiction. The testimony of DW1 could not be admitted as evidence of fact as per the submissions of the appellant. His account was not something he had witnessed or concluded from investigations. His evidence was properly disregarded by the trial Court. That leaves me with the evidence of PW3.

22. What is clear from the totality of the evidence is that the matatu was moving from Mombasa direction towards Nairobi. It was therefore expected that it would be driving on the left lane. PW3’s account of how the accident occurred was consistent and made sense. That the matatu was trying to overtake and realized there was an oncoming vehicle. Braking would obviously take it back to it’s lane on the left and then the pot hole made it veer further off to the left where PW3 and the deceased were walking. Accordingly, my re-evaluation of the evidence leads me to the irresistible conclusion that the appellant was 100% liable for the accident.

Quantum

23. From the judgment, it is evident that damages were awarded under both the Law Reform Act and the Fatal Accidents Act. It is now trite that there is nothing wrong with awarding damages under both Acts even where the beneficiaries under both Acts are the same. Section 2(5) of the Law Reform Act provides as much and it was aptly explained in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor (No.2) 1985 eKLRas follows;

“In my view, what section 2(5) of the Law Reform Act means is that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death…

The words 'to be taken into account' and 'to be deducted' are two different things. The words in Section 4 (2) of the Fatal Accidents Act are 'taken into account'. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”

24. Under the Fatal Accidents Act, the appellant had proposed a multiplier of 21 years and the trial magistrate used 25 years. The dependency ratio of 1/3 was as proposed by the appellant. As for the multiplicand, the appellant had proposed kshs 3,000/= but the trial magistrate used kshs 5,000/=. In his submissions before this Court, the respondent states that the minimum wage of a general labourer in 2012 was kshs 4,577/= and that the trial magistrate must have rounded off the figure to kshs 5,000/=.

25. Having died in 2009, the applicable minimum wage was kshs 3,597/= as per the Regulation of wages (General) (Amendment) Order, 2010.

26. As for the multiplier, I have taken the liberty of looking at comparable authorities. In Wilson Nyamai Ndeto & Anor –vs- China Wu Yi Ltd & Anor (2017) eKLR the Court adopted a multiplier of 27 years for a 30 year old deceased and in David Kimathi Kaburu –vs- Gerald Mwobobia Murungi (2014) eKLR, the court used a multiplier of 30 years for a 28 years old deceased. It is therefore my considered view that the multiplier of 25 years was reasonable in this case.

27. The figure of kshs 10,000/= for pain and suffering was okay considering that the deceased died on the spot. For loss of expectation of life, the conventional figure of kshs 100,000/= was awarded.

28. Save for the multiplicand, all the other variables in the award under the Fatal Accidents Act were reasonable and in line with the principles for assessment of damages. Considering that the deceased lost his life at such a young age. I do not think it will be in the interests of justice to deduct the award under the Law Reform Act.

29. As for the provisions of the amended Cap 405, the appellant’s submissions before the trial Court were that even if the respondent had proved the special damages, the same were not awardable as they are incorporated in the structured compensation under the schedule.

30. Having gone through the schedule keenly, I could not find the provision alluded to by the appellant an even if it were there, the limit to compensation was the subject of litigation in Constitutional and Human Rights Petition No. 140 of 2014as quoted in the case ofPeter Gichihi Njuguna –vs- Jubilee Insurance Co. Ltd (2016) eKLRwhere the Court determined that;

“section 5(b)(iv) was not unconstitutional and in particular did not interfere with judicial independence and authority of the Courts and that the Courts are at liberty to award damages over and above the limit of kshs 3,000,000/= when circumstances demand”

31. Clearly, the discretion of judicial officers in assessment of damages is still unfettered. In our case, the learned trial magistrate awarded kshs 27,000/= as special damages for funeral expenses. It is logical to expect that when a person dies, expenses will be incurred to lay him/her to rest. The figure awarded was modest and I see no need to interfere with it.

32. The upshot is that only the multiplicand has been interfered with. The award under the Fatal Accidents Act should therefore be;

3,597 x 12 x 25 x1/3 = 359,700/=

33. The net award is as follows;

Pain & suffering 10,000/= Loss of expectation of life 100,000/=

Loss of dependency 359,700/=

Funeral expenses 27,000/=

Total 496,700/=

Conclusion

The court thus arrives at a conclusion that the appeal succeeds to the extent stated above and thus court makes the following orders;

a)-Judgement of lower court is thus adjusted as follows;

o Pain & suffering 10,000/=

o Loss of expectation of life 100,000/=

o Loss of dependency 359,700/=

o Funeral expenses 27,000/=

o Total 496,700/=

b)-The appellant to get half costs of the appeal

SIGNED, DATED AND DELIVERED THIS 31ST DAY OF MAY, 2019

IN OPEN COURT.

……………….……………………

HON. C. KARIUKI

JUDGE