[2022] KEHC 16196 (KLR)

Alice & another v Shitakwa & another (Suing as the legal representatives of the Estate of Franklin Bushi Mukabwa (Deceased)) (Civil Appeal 556 of 2019) [2022] KEHC 16196 (KLR) (Civ) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16196 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 556 of 2019

JN Mulwa, J

December 8, 2022

Between

Nderitu June Alice

1st Appellant

Richard Ojwang Onyango

2nd Appellant

and

Alfonzi Mukabwa Shitakwa

1st Respondent

Margaret Sagala Mukabwa

2nd Respondent

Suing as the legal representatives of the Estate of Franklin Bushi Mukabwa (Deceased)

(Being an appeal against the Judgment and Decree of the Chief Magistrate's Court at Milimani in CMCC No. 5538 of 2016 delivered by Hon. K. I. Orenge (SRM) on 13th September 2019)

Judgment

1. This is an appeal on both liability and quantum. The deceased, Franklin Bushi Mukabwa, died in a road traffic accident which occurred on June 28, 2015 along Landhies Road opposite Retail Market. In the plaint dated June 2, 2016, the respondents pleaded that the deceased was lawfully and carefully crossing the road on the material day when the 2nd appellant so negligently and carelessly drove, managed and/or controlled motor vehicle registration number KCB 656N, property of the 1st appellant, causing it to knock down the deceased. The deceased succumbed to the injuries sustained as a result of the accident. The respondents thus lodged the suit in the lower court seeking compensation against the appellants in the form of general damages and special damages.

2. The appellants denied the claim in entirety in their joint statement of defence and averred that if the accident occurred, then the same was wholly or substantially contributed to by the negligence of the deceased.

3. Upon hearing the claim, the trial court found the appellants wholly liable for the accident and awarded the respondents damages as follows: Kshs 3,000,000/- for loss of dependency; Kshs 100,000/- for loss of expectation of life; Kshs 102,935/- for special damages; and, Kshs 50,000/- for pain and suffering.

4. Aggrieved by the decision, the appellants lodged the instant appeal vide a memorandum of appeal dated September 23, 2019 in which they raised 12 grounds that can be summarized into two namely:-1. That the learned magistrate erred in law and fact in holding and finding that the appellants were wholly to blame for the accident giving rise to the suit before the lower court.2. That the learned magistrate erred in law and fact in awarding damages for loss of dependency that were manifestly excessive as to amount to an erroneous estimate.

5. The appeal was canvassed through written submissions which this court has duly considered alongside the grounds and record of appeal. The issues for determination are: whether the trial magistrate erred by holding the appellants wholly liable for the accident; and, whether the trial court’s award for loss of dependency was grossly excessive as to amount to an erroneous estimate.

Whether the Trial Magistrate Erred by Holding the Appellants Wholly Liable for the Accident 6. It is the appellants’ contention that the trial magistrate failed to take into account the evidence of their witness which showed that the deceased was wholly if not substantially to blame for the accident. They submitted that the police abstract produced by PW2 only confirmed the occurrence of the accident but did not indicate who was to blame as the matter was still under investigation. They discredited the evidence of PW3 and submitted that his evidence before the court contradicted his written witness statement in which he alleged that two vehicles came speeding and one of them hit the deceased. In their view, the 2nd appellant came out as a truthful witness as he owned up to the accident and explained why it was not his fault. According to them therefore, the trial court should have apportioned liability in the ratio of 50:50.

7. On their part, the respondents submitted that the learned trial magistrate did not error in finding the appellant's driver wholly to blame for reasons that the driver admitted that he was familiar with the subject road and thus was obligated to exercise extra caution while driving thereon. The driver was obligated to slow down and/or stop his vehicle to give way to the crossing pedestrians in compliance with the traffic rules and as such avoiding the subject road traffic accident. He failed to produce the inspection report and his driving licence before court despite claiming that he was a qualified driver. The respondents relied on the case of Jona Venzi Nguko & another v John Mwaka Amisi & another (suing as the father, brother and personal representative of the estate of Joseph Mbatha Mwaka)[2015], where Justice Aburili, held that;“A driver of a motor vehicle must be on the lookout and a driver approaching a pedestrians crossing or bus stop must be cautious and by merely being found on the road with the intention to cross does not connote negligence for which contributory negligence should be attributed”.

8. As a general rule, an appellate court will not interfere with the trial court’s finding on apportionment of liability as it is an exercise of discretion. In Khambi andanother v Mahithi and another [1968] EA 70, it was held thus:“It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge.”

9. PW2, No 79044 PC Richard Ngethe from the Central Police Station produced in court an abstract which shows that a fatal accident happened on June 8, 2015 at Ladhies road. The accident involved the deceased herein and motor vehicle number KCB 656N Canter driven by Richard Onyango, the 2nd appellant herein. PW2 however stated that the matter was still pending under investigation.

10. PW3, Alphones Mwongo testified that the deceased had been his friend for almost four years and a customer at his hotel. He stated that on the material day, he saw the deceased crossing the road then he was hit by motor vehicle registration number KBN 656N. It was a market area but the vehicle was speeding. The police came to the scene of the accident and the driver was taken to the police station. The deceased died on the spot. He blamed the driver of the said vehicle for the accident. On cross examination, PW3 stated that the accident happened around 8. 30am on a Sunday. There was no heavy traffic. He had not seen the vehicle before the accident but saw it shortly after the accident. There was a matatu that braked and the deceased was hit by the canter. However, he had never been called to testify in traffic court.

11. DW1, Richard Onyango testified that the accident happened at around 7. 40pm. He was driving from Umoja and there were three people that were running while crossing the road. He passed by a matatu and saw the people running back. He swerved and ran over the deceased. He reported the accident and the police came to the scene. He was not speeding and there was no traffic on the road. He blamed the deceased for the accident. He was not charged with any traffic offence. In cross examination, he stated that he did not see the deceased before the accident. The other people stopped at the middle of the road. There was matatu that obstructed him. He had been driving on the road since 2010. There was footbridge at the area about 10 metres ahead. He was driving at about 30kph. He tried to avoid the other two people. He swerved and applied the emergency brakes then ran the plaintiff over. The deceased crossed when the road was clear. In re-examination, DW1 stated that the deceased emerged from the front of matatu.

12. In the judgment of the trial court, the learned magistrate stated that the eye witness account of PW3 confirmed that the 2nd appellant was speeding and thus was wholly to blame for the accident.

13. It is imperative to note that the standard of proof in civil cases is on a balance of probabilities. The respondents called an eye witness, PW3, who tendered consistent evidence that the appellants’ motor vehicle was speeding at the time it hit the deceased herein. There was no evidence that the deceased pedestrian carelessly or recklessly crossed the road without due care and/or in a manner that endangered his life so as to demonstrate that he contributed to the occurrence of the accident. Indeed, had the 2nd appellant been driving at a reasonable speed, he would have seen the deceased in good time and would have managed to avoid the accident. The mere fact that he was not charged with a traffic offence does not absolve him of blame.

14. In the circumstances, this court finds that the trial magistrate did not error in holding the appellants wholly liable for the accident. I therefore see no reason to interfere with the trial magistrate’s discretion in this regard.

Whether the Trial Court’s Award for Loss of Dependency Was Grossly Excessive as to Amount to an Erroneous Estimate 15. The appellants faulted the trial court’s award of Kshs 3 million on loss of dependency for being overly inflated. They took issue with the fact that the trial court gave a global award instead of using the minimum wage guidelines to determine the income of an unskilled labourer for purposes of assessing the award. In their view, the global award appears to have been plucked from the air and is thus unjustifiable. As such, it should be set aside and be substituted with an assessment based on the minimum wage guidelines or in the alternative, be substituted with a more reasonable award of Kshs 700,000/-.

16. According to the respondent’s however, the award was appropriate and reasonable in the circumstances of this case and should be upheld.

17. As a general principal, the assessment of damages is a matter of the exercise of court discretion and as such, an appellate court will normally be slow to interfere with such discretion unless the trial court misdirected itself in arriving at the award in question. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...”

18. PW1, Alfonzi Shitakwa was the deceased’s father. He testified that the deceased used to hawk and sell water. He was aged 27 years at time of death. He was not married but used to supporting the family. He was earning about Kshs 30,000/- and would send PW1 Kshs. 15,000/- monthly. In cross examination, PW1 stated that he had nothing to show how much the deceased was earning.

19. In the judgment, the trial magistrate resorted to using the global award since no documentary evidence was tendered to prove that the deceased was a water vendor and to show what he earned from such engagement. The use of the global award approach or the multiplier approach in determining the award for loss of dependency is a matter of court’s discretion determined by the evidence placed before the trial court. In the case of Mwanzia Ngalali Mutua v Kenya Bus Services (MSA) Ltd & another cited in Albert Odawa v Gichumu Githenji [2007] eKLR, Ringera J observed that:-“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 dependency, and the expected length of the dependency 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.”

20. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, Justice Ngaa held as follows:“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

21. In view of the circumstances in the instant case and the foregoing authorities, this court cannot fault the trial magistrate for making a global award on loss of dependency. The only issue that the court can concern itself with at this point is whether the global award of Kshs 3,000,000/- was so excessive as to amount to an erroneous estimate.

22. In Geoffrey Obiero & another v Kenya Power & Lighting Corporation Limited & another [2019] eKLR, The court awarded a global sum of Kshs 1,200,000/- for loss of dependency where the deceased was a 25-year old man in 2019. In Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR, Ndungu J set aside the trial court’s global award of Kshs 2,000,000/- for loss of dependency for being excessive for a deceased who died at 28 years of age and substituted it with Kshs 1,500,000/- in 2020. In Nairobi High Court Civil Appeal No 495 of 2019 – Irungu Susan & another v Jane Kanini Kavingu (Suing as the administrator to the estate of the late Bosi Kanini-Deceased, this court set aside a global award of Kshs 2,000,000/- for loss of dependency in respect to a deceased who died at 26 years old and substitute it with Kshs 1,700,000/- in 2022.

23. Guided by the above authorities, I find the global sum of Kshs 3,000,000/- awarded by the trial court for loss of dependency to be excessive and substitute the same with an award of Kshs 1,700,000/-

Conclusion 24. Consequently, the appeal partly succeeds as follows:a. The global sum of Kshs 3,000,000/- awarded by the trial court for loss of dependency is hereby set aside and substituted with an award of Kshs 1,700,000/-.b. Damages shall be tabulated as hereunder:Pain and suffering Kshs 50,000/-.Loss of expectation of Life Kshs 100,000/-.Loss of dependency Kshs 1,700,000/-Special damages Kshs 102,935/-.Total Kshs 1,952,935/-.c. Each party shall bear own costs of the appeal.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 8TH DAY OF DECEMBER 2022. J.N. MULWAJUDGE