[2025] KEHC 2726 (KLR)

Amadi v Oginga & another (Suing as Administrators and Personal Representatives of the Estate of Daniel Oginga Agutu (Deceased)) (Civil Appeal 78 of 2022) [2025] KEHC 2726 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 2726 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 78 of 2022

AB Mwamuye, J

February 6, 2025

Between

Naftali Simba Amadi

Appellant

and

Perez Atieno Oginga

1st Respondent

Simon Gari Oginga

2nd Respondent

Suing as Administrators and Personal Representatives of the Estate of Daniel Oginga Agutu (Deceased)

(Being an Appeal from the Judgment and decree of Honourable R.S. Kipngeno1 (PM) delivered on 28th June, 2022 in Nyando SPMCC No. 56 of 2017)

Judgment

1. The Appellant herein has approached this Court aggrieved by the Judgment of the Trial Court delivered on 28th June, 2022 in Nyando SPMCC No. 56 of 2017. The Memorandum of Appeal dated 28th July, 2022 has six Grounds of Appeal which revolve around two issues, liability and quantum. The Trial Court found the Appellant 100% liable for the accident that occurred on 2nd March, 2015.

2. In the Appellant’s written submissions dated 3rd January 2024, the Appellant argues that the Judgment by the Trial Court did not set out the statement of the case, points of determination, the decision thereon and the reasons for such a decision leaving them to speculate what the Trial Court had in mind in arriving to its decision and the reasons behind it. The Respondent further outlined some alleged discrepancies in the evidence adduced that were not addressed by the Trial Court such as the make of the Appellant’s motor vehicle and the failure of the police to produce a sketch plan among others. Lastly, the Appellant submitted that the Trial Court erred in using the multiplier of Kes. 15,000. 00 and multiplicand of 15 years which has no basis in law but was adopted by the Trial Court without evidence of the deceased’s training or evidence of trade.

3. The Respondent on the other hand canvassed the appeal by filing written submissions dated 15th February 2024. The Respondent submitted that the Appellant did not challenge how the accident leading to the Plaintiff’s death occurred and that the Appellant’s witness’ testimony was inconsistent with the witness statement and was further not supported by any other credible witness. The Respondent also submitted that the Respondent produced certificate of registration of an electrical shop registered in the name of Ados electricals that belonged to the deceased. They further submitted that the global approach could only apply in this case in the event that the deceased had no source of income but in this case the deceased operated an electrical shop as a sole proprietor from which he was earning his income.

4. I have considered the Parties’ submissions on record alongside the relevant authorities cited. As is the legal requirement for a Court sitting on a first appeal, I have re-evaluated the material and evidence which was placed before the Trial Court. It is clear that the appeal revolves around two issues for determination namely;i.Whether the Learned Magistrate erred in holding the Appellant 100% liable in negligence; andii.Whether the Learned Trial Magistrate erred in using the wrong principles on assessment of damages thereby arriving at an erroneous decision.

5. On the first issue, it is the Appellant’s position that the Trial Court erred in apportioning liability against the Appellant at 100% contrary to the evidence on record and/or adduced during Trial. Liability in road accident is ordinarily determined by identifying the party that caused or contributed to the accident in short, whose fault was the accident?

6. The Court of Appeal in the case of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR held:“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) [1953] AC 663 at p. 681 as follows: “To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a Court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between these faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard all but one and to regard that one as the sole cause, but in other cases but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…”

7. It is evident that an accident indeed occurred on 2nd March 2015, involving motor vehicle registration number KBB xxxD Toyota Station Wagon belonging to the Appellants and motor cycle registration number KMCR xxxQ and as a result of which was fatal to the Respondent.

8. On the one hand the Appellant blames the Respondent for the accident whereas on the other hand the Respondent blames the Appellants for causing the said accident. To determine liability the Court will draw upon the evidence at the Trial Court.

9. The account narrated by the Respondent’s witness CPL John Ondaris was that a road accident occurred on 2/3/2015 involving motor vehicle registration no. KBP xxxS Toyota Caldina at about 2 p.m. He further indicated that he was not the investigating officer and that from the Abstract the driver of the motor vehicle was charged with the offence of causing death by dangerous driving. The Respondent also called an aye witness who testified that the traffic accident occurred on 2/ 3/ 2015 around 3 p.m and he witnessed the accident while herding cattle near the road. He narrated that he was going to Kendu bay on the left side of the road and the motor vehicle was from Homabay towards Kisumu and the motor vehicle was on the right. He stated that the motor vehicle lost control and veered to the opposite lane hitting the motor cycle. He further stated that the motor vehicle went in a zig zag manner and that he fled when the accident occurred and allegedly took those injured to hospital. He testified that the motor vehicle was a white double cabin Reg No. KBB xxxD and that the motor vehicle was a double cabin pick up not a Toyota Saloon car.

10. The Appellant on the other hand during cross examination confirmed that he was the driver of motor vehicle registration no. KBB xxxD on the material day and that he saw the motor cycle approximately 200-300m before the collision. He stated that the motor cycle was riding in a zig zag manner and hit his bonnet to the driver’s side while he stood still on his lane. He also stated that he moved further on the left side of his lane when the matter rammed onto the right side of the motor vehicle and that the impact affected him that he was allegedly injured and taken to Aga Khan hospital.

11. From the evidence tendered by the parties before the Trial Court and this Court sitting on appeal, it is clear that there is no dispute an accident happened between motor vehicle registration number KBB xxxD and motor cycle registration no. KMCR xxxQ along Homabay – Katito road that led to the demise of the rider of the motorcycle.

12. The issue of contention is who is to blame for the accident with both parties giving different versions of what happened. On the issue of credibility, the Court in the case of Continental Petroleum Products Ltd v Scotia DBG Investment Ltd [2016] JMSC Civ 219 held:“In accessing credibility, as between two(2) witnesses, one of whom is telling the truth in important respect and the other witness, who is not doing so, as regards those same matters, it is always important for the Court of first instance to consider contemporaneous documents, probabilities and possible motives in a case involving disputed facts.”

13. I have analyzed the evidence of the Trial Court and find that indeed there were a few discrepancies with the evidence adduced by the eye witness during Trial. The eye witness who was allegedly at the scene insisted on a different make of vehicle than the one involved in the accident being a double cabin and insisted on it being a pick-up as opposed to a saloon car as stated in the police abstract. I find that these are two totally different makes of motor vehicle one being a big car and the other being a smaller car and are in no way similar to each other. Secondly, during testimony the eye witness stated that he fled when the road traffic accident occurred but allegedly and mysteriously was there to take the injured to Nyakach Hospital yet in his witness statement he had indicated that it was Pap Onditi Hospital. On the other hand, the Appellant allegedly stood still on his lane and the motor cycle hit his bonnet towards the driver door causing his injuries including a blood clot in the brain. The Appellant however did not produce any documentary evidence to support his claim. He also did not produce any photographic evidence to support his case that he was hit on the driver’s side and therefore the deceased was the one to blame for the accident. It is still not clear why instead of swerving off the road to avoid the accident he stood at his lane and watched while the motor cycle hit his vehicle.

14. There being inconsistencies with the evidence of the eye witness and the Appellant, I find that I am unable to determined who caused the accident and apportion the liability at 50%:50% based off the evidence adduced during Trial. Accordingly, the Trial Court erred in apportioning liability at 100% against the Appellant and therefore set it aside replacing it with 50% liability.

15. On the second issue, assessment of damages are matters that are within the discretion of the Trial Court and the appellate Court ought to respect that discretion if properly exercised. This was expressed in the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenya) v Kiarie Shore Stores Limited [2015] eKLRwhere the Court stated,“As a general principle, assessment of damages lies in the discretion of the Trial Court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent erroneous estimate. It must be shown that the Judge proceeded on wrong principles that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the judge in assessing the damages, took into account an irrelevant factor or left out of account a relevant one or that, short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages”

16. In the present case I do find the need to disturb the award by the Trial Court for proceeding on wrong principles thus arriving at a figure which was inordinately high. I shall begin with the sum of Kes. 150,000. 00 awarded by the Trial Court for pain and suffering and Kes. 150,000. 00 awarded for loss of expectation of life. The Respondent’s witness, PW1, states in her witness statement that her husband died at the scene off the accident. During her testimony she stated that she went to the scene and found the body had been moved to the morgue.

17. The awards for pain and suffering are usually nominal but each case must be determined on its own merit. In the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR where the Court observed:-“The generally accepted principle therefore is that the very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/= while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.

18. In the present case evidence point to the inevitable conclusion that indeed the death was spontaneous and that the deceased died immediately after the accident thus an award of Kes. 50,000. 00 for pain and suffering and that of Kes. 100,000. 00 for loss of expectation of life is not only fair but reasonable.

19. In regards to loss of dependency, the Appellant submitted that the Trial Magistrate erred by invoking the scale of electricians under the Regulation of minimum wages and using a multiplier of Kes. 15,000. 00 and the multiplicand of 15 years.

20. Dependency is a matter of fact and must be proved by evidence as was held in the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR which stated:“Dependency is a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

21. The Respondents did not produce any evidence to show that the deceased was an electrician and earned a certain amount of money. They however produced 9 birth certificates to show that the deceased had dependents. The Appellant in my view, did not dispute the existence of the dependents of the deceased but were only skeptical of his earnings.

22. I note that no evidence was adduced to support the proof of earnings as the Respondent did not specify as to how the deceased operated his business and how he earned his income. The proof of earnings was merely speculative as no proper evidence was adduced to support the claim. The plaint and during hearing however the Respondent stated that the deceased was an electrician earning at least Kes. 40,000. 00 a month. It is not ascertainable on the amount of money the deceased earned, if any, from his electrician business as alleged by the Respondents.

23. The Trial Court erred in using the multiplier method in awarding damages that had no applicability in this case yet the global sum approach is more appropriate.

24. In Frankline Kimathi Maaru & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representatives of Antony Mwiti Gakungu deceased) [2020] eKLR the Court was dealing with a similar issue and it held:“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be a suitable replacement that correctly fits the gap.”

25. For the above reasons, I find that this would have been an appropriate case to use the global sum approach rather than the multiplicand method used by the Trial Court. I find that the Trial Court proceeded on wrong principles and considered irrelevant factors in arriving at the award for damages and as such call for interference by this appellate Court. I thus place aside the award of damage for loss of dependency by the Trial Court and proceed to consider the quantum of damage awardable to the Respondent.

26. I have considered the arguments in the parties’ submissions and there is no dispute that the deceased died at the age of 55 as proved by his burial permit. The Appellants never challenged the fact that the children’s birth certificate proved that the deceased had children dependent on him. The Respondent equally pleaded that the deceased was survived by 2 wives and children some of whom were still going to school at the time of the accident and was also the sole breadwinner.

27. I am inclined to find an award of Kes. 1,500,000. 00 for loss of dependency to be adequate.

28. On special damages, it is clear that only what is pleaded shall be awarded. I note that there is no contention from the Appellant under this head of damages. I therefore uphold the award by the Trial Magistrate.

29. Consequently, I find that this appeal partially succeeds. I hereby set aside the Trial Court’s judgment and substitute it as follows:a.Judgment be entered in favour of the Respondent against the Appellant herein as follows;i.Liability 50%ii.Loss of expectation of life Kes. 100,000. 00iii.Pain and suffering Kes. 30,000. 00iv.Loss of dependency Kes. 1,500,000. 00v.Special damages Kes. 276,300. 00Total Kes. 1, 906,300. 00Less 50% Contribution (Kes. 953,150. 00)Amount payable Kes. 953,150. 00vi.The Respondent is awarded half the costs of this appeal plus interest at Court rates.

DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 6TH DAY OF FEBRUARY, 2025. ..................................BAHATI MWAMUYEJUDGE