[2023] KEHC 26217 (KLR)

Anita v Aseno (Suing as the personal and legal representative of the Estate of Brighton Otieno Ouya (Deceased) (Civil Appeal 227 of 2017) [2023] KEHC 26217 (KLR) (Civ) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26217 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 227 of 2017

JN Njagi, J

November 7, 2023

Between

Agunda Anita

Appellant

and

Vera Akinyi Aseno (Suing As The Personal And Legal Representative Of The Estate Of Brighton Otieno Ouya (Deceased)

Respondent

(Being an Appeal against the Judgment of Hon. P. Muholi, Senior Resident Magistrate, in Milimani CM`s Court Civil Suit No.6608 0f 2013 delivered on the 10/4/ 2017)

Judgment

1. The Respondent herein sued the Appellant at the lower court seeking to recover general and special damages under the Law Reform Act and Fatal Accidents Act after her kin the deceased herein, met his death after being knocked down by the Appellant`s motor vehicle. After the accident the deceased was admitted at Kenyatta National Hospital where he succumbed after a period of close to a month. Upon hearing the parties, the trial court apportioned liability in the ratio of 60: 40 in favour of the Respondent against the Appellant. The court proceeded to assess damages as follows:a.Pain and suffering ksh 100,000/=b.Loss of expectation of life ksh 150,000/=c.Loss of dependency ksh1,560,160/=d.Special damages ksh 1,462,790/=

2. The Appellant was aggrieved by the finding on liability and the award and filed this appeal. The grounds of appeal are that:a.The award of ksh 747,858 funeral expenses is excessive in all circumstances and ought to be reduced.b.The learned trial Magistrate erred in law and fact in awarding damages under both the Law Reform Act as well as under the Fatal Accidents Act without taking into consideration that damages would devolve to the same Defendant.c.The learned trial Magistrate erred in law and fact in being guided and/or taking into account irrelevant factors in making a decision as to the special damages payable to the Respondent.d.The learned trial Magistrate erred in law and fact in awarding special damages which were manifestly excessive in the circumstances bearing in mind that only amounts directly relating to the demised should be considered.e.The learned trial Magistrate erred in law and fact in when he failed to consider the Appellant’s submission and dismissed the same without giving any reason at all.

3. The Respondent on the other hand filed a cross-appeal against the judgment of the trial court. The grounds are that:1. The learned trial Magistrate erred in law and fact in finding that the Respondent contributed to the occurrence of the accident contrary to the evidence on record.2. The learned trial Magistrate erred in law and fact in apportioning liability against the Respondent in the ratio of 60%:40%.3. The learned Magistrate gravely erred in awarding the Respondent an inordinately low sum of pain and suffering disregarding the fact that after the accident, the deceased was hospitalized for one month and underwent four surgeries; his leg amputated; had a surgery to the abdomen and an operation in attempt to reconstruct his jaws before he ultimately succumbed to the injuries.4. The learned Magistrate gravely erred in disregarding the High Court decision of Ali Aroni in Coast Bus Mombasa Limited v Anne Awiti Onege (2012) eKLR before him and failing to award medical expenses of ksh 488,170/- due to Kenyatta National Hospital.5. The appeal was canvassed by way of written submissions.

Appellant`s Submissions 4. The advocates for the Appellant submitted that there were two conflicting versions as to how the accident occurred. That the trial court found the evidence of the respondent`s witness PW2 who alleged to have witnessed the accident to be wanting. That in these circumstances the trial court should have apportioned liability between the parties. In that respect the Appellant relied on the case of Farah v Lento Agencies (2006) 1KLR 124,125 where it was held that where there is no concrete evidence as to who is to blame for an accident both parties should be held equally to blame. The Appellant submitted that the finding on liability at 40% by the Appellant was erroneous as there was no basis for reaching such a finding. She urged the court to apportion liability equally on a ratio of 50:50.

5. The Appellant submitted that the award of ksh 747,850/= in funeral expenses was not proved. That the RespondentPW1 did not give a complete breakdown of how the money was expended. That the respondent, PW2 in the case stated in her evidence in court that they only paid a direct expense of ksh 182,600/= in funeral expenses.

6. The Appellant submitted that the balance of the funeral expenses was received from well wishers as gift and as such could not be recovered as special damages. Therefore, that ksh 549,250/= should be deducted from funeral expenses as the estate of the deceased cannot be reimbursed for gifts received as a consequence of death. It was submitted that the court has reason to interfere with the award on funeral expenses.

7. The Appellant submitted on the cross- appeal that there is no basis for the challenge on the finding on liability. That the deceased was wholly to blame for the accident.

8. It was submitted that the finding on pain and suffering was reasonable. It was submitted that the claim on further medical expenses was not pleaded and never traversed during the trial and cannot be the subject of this appeal. In this respect the Appellant relied on the case of Raila Amolo Odinga & another v IEBC & 2 others (2017) eKLR where the Supreme Court held that evidence should not be considered in the absence of pleadings and that no party should be permitted to travel beyond its pleadings.

9. The Appellants urged this court to allow the appeal with costs and the cross-appeal be dismissed with costs.

Respondent`s Submissions 10. The Respondent submitted through his advocates that the Appellant was wholly liable for the accident. The Appellant cited the case of Masembe v Suar Corporation & another (2002) 2 EA 434 where it was held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it…There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct…Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.”

11. On apportionment of liability, the Respondent cited the case of Khambi & another v Mahithi & another (1968) EA 70 where it was held that:“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.See also Isabella Wanjiru v Washington Malele, Civil Appeal no 50 of 1981 (1983) KLR 142 and Mahendra M Malde v George M Angira, Civil Appeal no 12 of 1981.

12. It was submitted that funeral expenses were specifically pleaded and proved. The Respondent in that respect relied on section 6 of the Fatal Accidents Act.

13. On medical expenses the Respondent submitted that they pleaded a sum of ksh 1,907,250/= and adduced evidence in proof of the whole sum but the court only awarded ksh 669,390/=. They urged the court to award the balance.

14. On pain and suffering, the Respondent submitted that the awards are usually nominal but that each case must be determined on its own merit The Respondent cited the case of Mercy Muriuki & another v Samuel Nduati & another (suing as the legal administrator of the estate of Robert Mwangi (20190 eKLR where the court observed that:The generally accepted principle therefore is that 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.

15. On the issue of whether there was double compensation under both the Fatal Accidents Act and the Law Reform Act the Respondent cited the decision of the Court of Appeal in Hellen Waruguru (suing as the legal representative of the estate of Peter Waweru Mwenja (deceased) v Kiarie Shoe Stores Limited (2015) eKLR where it was held that:This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.

Analysis and Determination Liability 16. The Respondent called 3 witnesses in the case. PW1 was a police officer whose evidence is that he visited the deceased in hospital but did not witness the accident. The Respondent was PW2 in the case but said that she did not witness the accident. The third witness, Samuel Aseno PW3, adopted his statement as evidence in the case. His evidence was that on the material day at 8pm he was an uncle to the deceased. That on the material day he was on the way to see the deceased at KMTC staff quarters where the deceased used to reside. That he alighted from a matatu at the mosque stage and started walking to the staff quarters entrance. He saw the deceased and his sister Lorraine waiting for him by the pedestrian pavement.

17. That as he walked he saw a motor vehicle reg no KAR 459J Toyota Starlet driving on the outer lane of the highway. That the vehicle swerved off the road to the left side and hit the deceased. The vehicle did not stop. He rushed to the scene. He tried to stop other motor vehicles to take the deceased to hospital but was not successful. The vehicle that had hit the deceased then went back and took him to hospital. He reported the accident at Kilimani police station. Policemen from that station went to the scene of the accident and conducted investigations. The deceased was admitted at Kenyatta National Hospital and passed on after one month. He blamed the driver of the accident motor vehicle for causing the accident. In cross-examination he said that he did not accompany the deceased to hospital.

18. The Appellant on the other hand called one witness in the case, the driver of the accident vehicle, Robert Agunda. He adopted his witness statement as his evidence in the case. His evidence was that he was on the material day at 11pm driving the accident vehicle along Ngong road on the way to Imara Daima estate. That as he was about to pass the pedestrian fly over at the road leading to Ngumo estate, he noticed a male pedestrian running ahead of his motor vehicle while attempting to cross the road from the right to the left side. He applied breaks but the person was very close and he was hit by the front right side of the vehicle. He landed on the windscreen and finally fell on the refuge area of the road. He stopped the vehicle and took him to Kenyatta National Hospital. He blamed the pedestrian for causing the accident.

19. The trial magistrate in his judgment stated that he found the evidence of PW3 not credible as to how the accident happened. That the witness did not accompany the deceased to hospital and neither did he report the accident to the police. That he was not listed as one of the witnesses in the occurrence book extract presented in court. That the accident occurred at night and did not explain how he was able to see what happened. The magistrate held that it was not clear as to the accident happened. That it was not clear whether the deceased was crossing the road or not. However, that PW3 said that the deceased lay on the road after being hit by the vehicle. Therefore, that the accident must have occurred on the road. He found the deceased to have contributed to the accident and apportioned his liability at 40%.

20. The Magistrate further found that the injuries sustained by the deceased indicated that the motor vehicle was being driven at high speed. That if the vehicle was going at 50 km/h as stated by DW1 he would have been able to stop and avoid the accident. That as the driver was in control of a lethal weapon he ought to have exercised extra care than he exhibited. That he bore more liability for causing the accident as he was in control of a lethal weapon. He apportioned his liability at 60%.

21. I have on my own assessed the evidence adduced before the trial court as to how the accident took place. It was the evidence of the driver of the motor vehicle, DW1, that the deceased was hit by his vehicle on the road as he attempted to cross the road. Though PW3 claimed to have witnessed the accident, he did not come out as a truthful witness. He stated in cross-examination that the accident occurred at the foot bridge. In re-examination he stated that the accident occurred about one kilometer from the foot bridge. Which of these two is the correct version?

22. The witness stated in his witness statement that the deceased was knocked down by the motor vehicle while standing on the pavement where the deceased and his sister were waiting for him. However, he stated in cross-examination that the accident occurred on the lane as you head towards T-Mall. He said that the deceased fell on the road after being knocked down. The question then is whether the deceased was on the pavement when he was hit by the motor vehicle or on the road on the lane to T-Mall?

23. The trial court after assessing the credibility of PW3 said that he found his truthfulness wanting. From the contradictory evidence given by PW3, it was doubtful whether he witnessed the accident. It is not believable that the witness would have failed to accompany the deceased to hospital if he was indeed there at the time of the accident. The deceased was said to have been in the company of his sister when the accident occurred. The Respondent did not give an explanation as to why the said sister was not called to testify in the case.

24. With the evidence of PW3 discredited as to how the accident occurred, the only evidence left on how the accident occurred was that of the driver of the motor vehicle, DW1. His evidence, as stated earlier, is that he knocked down the deceased as he attempted to cross the road. There is no dispute that the deceased was knocked down by DW1`s vehicle. In the absence of credible evidence to challenge the evidence of DW1 as to how the accident occurred, I agree with the trial magistrate that the accident took place on the road as the deceased tried to cross the road.

25. If then the accident occurred as the deceased crossed the road, who is to blame for the accident? The fact that the deceased received serious injuries does not imply that DW1 was driving at very high speed. His explanation was that the deceased was very close to the vehicle when he saw him crossing the road. There was no credible evidence to challenge his evidence that he was driving at a speed of 50km/h. Having reached a conclusion that the deceased was crossing the road when the accident occurred, the court cannot have found the driver of the motor vehicle more blameworthy for occasioning the accident. Pedestrians have a duty to ensure that the road is clear before starting to cross the road. There was no evidence that there was a pedestrian crossing at the place the accident occurred. If anything, it would appear from the evidence of DW1 that there was a pedestrian bridge at the place. The deceased failed to use the pedestrian bridge and instead dashed across the road and he was knocked down by DW1`s vehicle. The deceased contributed to the occurrence of the accident. I accordingly apportion liability between the parties at 50:50.

Funeral Expenses 26. The Appellant argued that the award of ksh 731,850/- in funeral expenses was excessive. That the Respondent admitted in cross-examination that her family met funeral expenses from family resources and some other money was contributed by well-wishers. That only a sum of ksh 182,600/- was paid from the family resources and the rest was contributed by well-wishers. The Appellant submitted that the estate is not entitled to recover the contribution from well-wishers. That the sum of ksh 549,250/= was received as a gift and should not be awarded. That the Respondent should be awarded ksh182,600/- in funeral expenses.

27. The Appellant further submitted that the Respondent did not give a complete breakdown of how the money was expended but instead only adduced lumpsum receipts for the total expenditure out of which only ksh 182,600/= was admitted as direct expense. The Appellant urged the court to reduce the sum awarded by ksh182,600/= to leave a balance of ksh 549,250. The Appellant cited the case of Banque Indosuez D J Lowe & Company Limited (2006) 2KLR where the Court of Appeal stated that:It is simply not enough for the Respondent to pluck figures from the air and throw them in the face of the court and expect them to be awarded. It is trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.

28. The Appellant further cited the case of Jacob Ayiga Maruja & another v Simeon Obayo (2005) KLR where it was held that:We agree and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. In this case, we think the ksh 117,325/= awarded by the learned trial Judge as “funeral expenses and other expenses” were wholly unreasonable in the circumstances and we note that the Respondent did not give a complete break-down of what he spent the money on. We accordingly reduce that figure to ksh 60,000/= which is just above half of the sum claimed. We, however, must not be understood to be laying down any law that in subsequent cases, ksh 60,000/= must be given as the reasonable funeral and other expenses. Those items are and must remain subject to proof in each and every case and the ksh 60,000/= we have awarded herein apply strictly to the circumstances of this case.

29. The Respondent also cited the case of Premier Dairy Limited v Amarjit Singh Sagoo & another (2013) eKLR where the court held that:Although a sum of ksh 400,000/= was pleaded in the plaint and witnesses who were the relatives of the deceased – testified that they spent much more that this in preparing for and conducting a cremation the learned Judge awarded a sum of ksh 150,000= which sum he saw as a reasonable and prudent amount to compensate the family for funeral expenses.

30. The Respondent on the other hand submitted that funeral expenses were specifically pleaded and proved.

31. The trial court awarded a sum of ksh731,850/= of the sum pleaded of ksh 747,850/=. The magistrate however did not say as to which of the amount claimed sum in funeral expenses was not proved.

32. I have perused the computation of the funeral expenses on page 47 of the respondent`s list of documents. The expenses claimed in funeral expenses were supported with documentary evidence and receipts, all totaling to ksh 747,850/=.

33. The Respondent however did say in cross-examination that a sum of ksh 182,600/ came from “the committee and other places.” The computation of the funeral expenses shows that the family printed some cards for fundraising. I agree with the submission by the Appellant that the Respondent should not be awarded what was raised from well-wishers. The sum of ksh182,600/= ought to be deducted from the sum of ksh747,850/= to leave a balance of ksh 585,250/=. I therefore set aside the award of ksh 731,850/= in funeral expenses and substitute it with an award of ksh 585,250/=.

Pain and suffering 34. The trial magistrate awarded ksh 100,000/= for pain and suffering. The Respondent cross-appealed the award on the ground that the award was too low. The Respondent however did cite the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (supra) where the court said that nominal damages are awarded to this claim and ranges between ksh 10,000/= to ksh 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. The Respondent however urged the court to increase the award to ksh 1,000,000/= and cited the case of Millicent Wangui Mutegi & others v Stephen Njuguna Gatuhi, nrb HCCC no 2357 of 1990 where the court awarded ksh 1,000,000/= in pain and suffering to the claimant who sustained very serious injuries that left her with 76% disability on the left hand.

35. The Appellant on the other hand submitted that the award of ksh 100,000/= was reasonable given that the conventional sum is ksh 10,000/=.

36. I have considered the arguments raised on the award on pain and suffering. The deceased herein had sustained very serious injuries and stayed in hospital for close to a month before he died. He no doubt underwent a lot of pain. The Respondent did not cite any authority to support an award of ksh 1,000,000/= in case of death. She instead cited damages where the claimant was alive. I do not think that the authority was relevant for the purposes of this case. I find the award of ksh 100,000/= for pain and suffering to have been reasonable.

Medical Expenses 37. The Respondent in her cross-appeal argued that the trial court erred in failing to award medical expenses of ksh 488,170/= due to Kenyatta National Hospital. The Respondent urged the court to award the same.

38. The Appellant on the other hand submitted that further medical expenses were not pleaded and traversed during the trial. That they cannot be the subject of an appeal.

39. The trial magistrate in his judgment stated that the hospital bill and medical expenses amounted to ksh 1,157,560/=. That the amount proved from receipts and invoices produced was ksh 669,390/=. The magistrate however did not state the particular claim which was not proved.

40. The Respondent in her plaint pleaded hospital bills and medical expenses in the sum of ksh 1,157,560/=. She attached the following invoices from Kenyatta National Hospital:]no 1246855 on pg 49(b) of record of appeal……ksh25,460/=no 1246748 on pg 49(a) of record of appeal ...ksh 95,020/=no 13002 on pg 52 of record of appeal ……ksh 1,016,190/=Various receipts (from KNH and others) ……ksh 20,890/=TOTAL ……………………..…………….…….ksh 1,157,560/=

41. A sum of ksh 160,000/= was paid as per invoice no 13002 of 16/9/2011. Another sum of ksh 600,000/= was paid on 14/10/2011 as per receipt no 077942. The Respondent was left with an unpaid balance of which she took an undertaking to pay by instalments as per undertaking dated 14/10/2011 on pg. 30 of the record of appeal. It is my considered view that it is proper to claim the unpaid sum from the Appellant as she has made an undertaking to pay the hospital. I find that hospital and medical bill of ksh 1,157,560/= was incurred as per the invoices produced in court. The trial magistrate did not give any reason as to why he did not award the full amount and I could not tell from his judgment how he arrived at the figure of ksh 669,390/= that he awarded. In the premises, I set aside the award of ksh 669,390/= for hospital and medical expenses and substitute it with an award of ksh 1,157,560/=.

Double Compensation Under the Two Acts 42. This was explained by the Court of Appeal in Hellen Waruguru case (supra). In this case there was no double compensation.

Disposition 43. The result of the appeal is therefore as follows:Liability – in the ratio of…..………….50:50Pain and suffering ……………………..ksh 100,000/=Funeral expenses ………………………ksh 585,250/=.Hospital and medical expenses ….…ksh 1,157,560/=

44. There was no appeal on the award on loss of expectation of life and loss of dependency. The awards therein will remain as ordered by the trial court.

45. As the appeal and cross-appeal have partly succeeded, I order each party to bear its own costs to the appeal.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 7TH NOVEMBER 2023J.N. NJAGIJUDGEIn the presence of:Ms Susan Njoroge HB for Mr. Ombati for AppellantMr. Bunde for RespondentCourt Assistant – N/A30 days Right of Appeal.