[2015] KEHC 2318 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CIVIL APPEAL NO. 40 OF 2013

ALFRED OPIYO............................................APPELLANT

VERSUS

LAWRENCE ODUORI KHADERA (suing thro’ next Friend)

MOSES MUGENI ODUORI..........................RESPONDENT

(An Appeal against the judgment and decree of the Principal Magistrate I.T. Maisiba

In Busia Chief Magistrate Court Civil Case NO. 109 of 2010)

JUDGMENT

1. MOSES MUGENI ODUORI (The Deceased) met his tragic death on 27th December 2009 as he walked within Bondeni Estate of Busia Township. Lawrence Oduori (The Plaintiff), his father and next of friend, filed Busia Civil case No. 109 of 2010 Lawrence Oduori (suing through next friend ) versus Alfred Opiyo wherein he blamed Alfred Opiyo (The Defendant) for the said death and sought damages from him.

2. After hearing the parties herein the Learned Trial Magistrate came to the conclusion that,

…the whole of the Plaintiff’s evidence was not controverted as the Plaintiff’s proved his case on a balance of probabilities.

Following this finding, the Court made the following award against Defendant.

a. General Damages under the Fatal Accidents Act – Kshs. 1,184,000/-

b. Funeral expenses – 40,000/-

c. Police abstract - 100/-

d. Death Certificate – Kshs. 150/-

3. That finding on liability and quantum triggered the filing of this Appeal in which the Defendant raises the following grounds:-

1. That the Learned trial Magistrate erred in law and in fact in allowing the Respondents’ claim against the Appellant when ownership of the Motor vehicle had not been proved.

2. That the Learned Trial Magistrate erred in law and in fact in allowing the Respondents’ claim when the evidence and exhibit produced in court were against the Respondent.

3. That the Learned Trial Magistrate erred in law and in fact in allowing the claim when the submissions were in favour of the Appellant.

4. That the Learned Trial Magistrate erred in law and in fact in allowing the Respondent’s claim without considering the facts and the law governing the Evidence Act.

4. In his written submissions to this Court, the Defendant attempted to persuade this Court that the Learned Trial Magistrate failed to consider the following issues, which were described by him to be germane:-

1. Whether there was proof that the Appellant was the owner of the accident motor vehicle Reg. Number UAA 162A.

2. Whether the appellant, iF not owner of the accident motor vehicle reg. No. UAA 162A, he was the driver.

3. Whether, if the appellant was owner of the accident motor vehicle, but at the time the employer of the driver, who caused the accident or substantially contributed to its happening, and that the accident occurred in the course of the driver’s duties to the appellant.

4. The identity of the driver of the accident motor vehicle at the time of the accident; and whether that driver is the appellant.

5. Whether negligence and or carelessness was proved as against the appellant as owner of the accident motor vehicle and or employer of the accident motor vehicle driver.

5. Responding to the issue of ownership, the Plaintiff asked me to find, like the Learned Trial Magistrate, that he had, on the balance of probabilities proved that the Defendant was the owner of the offending motor vehicle. That the police abstract produced by the Plaintiff indicated that according to police investigation, the registered owner of motor vehicle No. UAA 162A was the Defendant. The Plaintiff did not respond to the other arguments made by the Defendant to the effect that he had failed to provide evidence as to who was driving the vehicle at the time of the accident.

6. The other criticism leveled against the Judgment is on the Damages awarded. That the Learned Trial Magistrate failed to tabulate and demonstrate how he arrived at the award of Kshs. 1,184,000/-.

7. This court is a first Appeal Court in this matter. It has a duty to re-evaluate the facts afresh, assess and make its own independent conclusion. (Selle & Another V Associated Motor Boat Company Ltd and Others (1968) 1 EA 123).At trial the Plaintiff produced the Police Abstract relating to the accident of 27th December 2009 as an exhibit. He then stated as follows in answer to a question in Cross-Examination :-

“The motor vehicle that knocked him was UAA 162A it was for Alfred Opiyo”.

The Plaintiff was relying on the contents of the Police Abstract to prove ownership of the vehicle. Although the Defendant had, in his Defence denied being the owner of the said motor vehicle, he did not call any evidence whatsoever. On reading the Judgment of the Trial Court, there is no finding that specifically addresses this issue.

8. On my part, I have looked at the Police Abstract produced as Exhibit 3 at the trial. In the space proved for owner of motor vehicle reads as follows:-

“Alfred Opiyo Box 313 Busia UAA 162 A.”

Alfred Opiyo is the Defendant. He never led any evidence to controvert the contents of the Police Abstract. Was this sufficient evidence to prove that he was indeed the owner?

9. Whether or not the contents of a police abstract, in the absence of evidence to the contrary can sufficient prove ownership of a motor vehicle has been the subject of much debate in our Courts. The current thinking however, was restated by the Court of Appeal in the Decision of Joel Muga Opija Vs East African Sea Food Limited [2013] eKLR in which the Court stated:-

…..the best way to prove ownership of motor vehicle would be to produce to the court a document from the Registrar of Motor Vehicles showing who the Registered owner is, but when the abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.

10. This Court is persuaded that the position taken by the Court of Appeal is the correct one. The only finding I can make is that, since the Defendant did no controvert the content of the Police abstract, its contents that the owner of motor vehicle UAA 162A was Alfred Opiyo was proof, on a balance of probabilities, that he was infact the owner.

11. There was evidence by Shadrack Juma (PW2) as to how the accident happened. He was at the material time walking along the road on Bondeni, when he saw lorry UAA 162A veer to its right to avoid hitting two children who were cycling in the same direction as the lorry. In that maneuver, the lorry hit a man who was walking in the opposite direction. He thought that the vehicle was being driven at a high speed hence the inability of its driver to control it safety. This evidence again was not controverted. That is the evidence that the Trial Learned Magistrate found to be sufficient to return a holding that negligence had been proved.

12. At the Appeal, the Defendant does not challenge the Court’s finding on negligence. The argument by the Defendant, however, is that the Trial Court ought to have found whether the liability was vicarious or strict. In other words, the Plaintiff ought to have proved that the vehicle was driven by either the Defendant himself or his authorized driver.

13. On this issue, one needs to turn to the filed pleadings. In paragraph 4 of the Plaint, the Plaintiff avers:-

“On 27th December, 2009 the Defendant carelessly and negligently drove the said motor vehicle knocking down the deceased who was lawfully walking along Bondeni road causing his death instantly thereby occasion loss to his Estate and claims damages.”

In response to the contents of this paragraph, the Defendant stated as follows in paragraph 4 and 5 of his Defence of 18th June 2010.

“4)The Defendant contends in the alternative and on a without prejudice to the foregoing that if at all there was an accident as alleged on the 27. 12. 2009 which is strictly denied then the same was caused by the sole and or contributory negligence of the deceased.

PARTICULARS OF NEGLIGENCE OF THE DECEASED

i. Walking on the wrong side of the road and walking inside the road instead of the footpath or pavement provided.

ii. Failing to adhere to road safety rules and provisions of the Highway Code.

iii. Crossing and or attempting to cross the road without first ensuring it was safe to do so.

iv. Playing and running around on the road thereby failing to notice the presence of motor vehicle Reg. No. UAA 162A Mitsubishi Canter.

v. Failing to heed to the hooting, audible and or visible signals from motor vehicle reg. No. UAA 162A Mitsubishi Canter.

vi. Attempting to cross the road without first ensuring it was safe to do so.

vii. Being disorderly on the road.

5) The Defendant does not admit the particulars of negligence as enumerated in paragraph 4(a) (b), (c ) (d) and 4 (i), (ii), (iii) and (v)….”

From these pleadings it is pertinently clear that whether or not the Defendant was the driver of motor vehicle was never an issue at trial as the Defendant did dispute the Plaintiffs contention that he was the Driver of the offending motor vehicle. The Defendant just like the Plaintiff, is bound by his pleadings. He cannot at this Appeal stage create an issue that did not exist at trial.

14. My holding is that the Learned Trial Magistrate came to a correct decision in finding that the Plaintiff had on a balance of probabilities, proved his case against the Defendant on the question of liability. What about quantum?

15. The Learned Trial Magistrate correctly held that the damages awarded would be those under the Fatal Accident Act. On the multiplicand, the findings of the court was that earnings of the Deceased was not proved. In the absence of this, the Court held;

There is no evidence to prove his earnings but under the regulations of wages general amendment order of 2005 the least such a person would earn is about 4000/- a dependency ratio of 2/3 would apply as was opposed to KSM HCCC 68/2005 where the deceased was 25 years old.

16. The practice, and one borne out of pragmatism, is that where the Plaintiff fails to prove earnings, the Court can turn to the minimum wage set by Government for the sector and region to which the Plaintiff worked at the time of his death. (see for example the Decision of Makhandia Judge(as he then was)in Kisii HCC No. 68 of 2005 Nyamira Tea Farmers Sacco Vs Wilfred Nyambati Keraita). So the Learned Trial Magistrate was correct in his approach. What the learned Trial Magistrate failed to do was give the reasons why he applied the General Amendment Order of the year 2005 when the Deceased died in December 2009. That may have resulted in the Trial Magistrate applying a lower multiplicand. That would have disadvantaged the Plaintiff. But as there is no cross-Appeal, I shall let the matter lie.

17. On the question of the Dependency ratio. There may be no justification for the Trial Court using a ratio of 2/3 when the evidence was that the Deceased was unmarried and childless. There was no evidence that he spent a substantial part of his income in supporting his parents. A dependency ratio of 1/3 is more realistic. Applying that ratio, Damages under the Fatal Accident Act would work out as follows:-

4000 x 1/3 x 37 x 12 =592,000/-

18. On funeral expenses, the court made an award of Kshs. 40,000/- even in the absence of specific proof of the expenses. The accepted practice is that where no receipts in support of funeral expenses are produced, the Court makes a reasonable award. I am not told by the Defendant that the sum awarded is unreasonable. The result is that the Appeal has only succeeded on quantum. The damages under The Fatal Accident act is reduced from Kshs. 1,184,000 to Kshs. 636,250/- plus, costs and interest at Court rates thereon to run from the date of the judgment of the lower court being 14th August 2013. In addition the Appellant shall have 1/3 of costs at Appeal.

19. As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation. That explains the apparent delay.

Dated, Signed and Delivered at Busia this 1st day of October 2015

F. TUIYOTT

J U D G E

In the presence of :-

Oile…………………..C/Clerk

Onsongo h/b for Balongo….. For the Appellant

N/A………………………...For the Respondent