[2022] KEHC 15785 (KLR)

Ataya (Suing as legal representative of the Estate of Kubai Fridah Mugambi alias Fridah Gacheri Kubai (Deceased)) v Chabari & another (Civil Appeal E014 of 2022) [2022] KEHC 15785 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15785 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E014 of 2022

TW Cherere, J

December 1, 2022

Between

Fredrick Kubai Ataya

Appellant

Suing as legal representative of the Estate of Kubai Fridah Mugambi alias Fridah Gacheri Kubai (Deceased)

and

James Muringi Chabari Alias James Chabari

1st Respondent

Kiria Jacinta Nkuene

2nd Respondent

(Being an Appeal from the Judgment and Decree in Meru CMCC No. 211 OF 2018 by Hon. T.M.Mwangi (SPM) on 23rd December, 2021)

Judgment

1. Fredrick Kubai Ataya (appellant) (suing as administrator and Legal Representative of The Estate of Samuel Kiogora (filed suit in the lower court against James Muringi Chabari alias James Chabari and Kiria Jacinta Nkuene (1st and 2nd respondents respectively) seeking damages for fatal injuries suffered occasioned when his daughter Kubai Fridah Mugambi alias Fridah Gacheri Kubai (Deceased) died as a result of a road traffic accident that occurred 2nd respondent’s M/V KAP 945X that she was travelling in on 23rd April, 2016 collided with 1st respondent’s M/V KBT 349D.

2. Respondents in their statements of defence denied the claim with 1st respondent blaming the 2nd respondent and the 2nd respondent on the other hand blaming the deceased.

3. By a judgment dated December 23, 2021, the court apportioned liability at 90% against the 1st respondent and 10% against the 2nd respondent and awarded the appellant damages in the sum of KES 1,790,000/-, KES 142,070/- and for special damages.

The Appeal 4. Appellant being dissatisfied with the lower court’s decision preferred this appeal and on March 18, 2022 filed the memorandum of appeal dated January 20, 2022 seting ut 8 rounds which I have summarized into 4 grounds that:1. The decision apportioning liability against both Respondents was erroneous2. The learned trial magistrate failed to apply the multiplicand of KES 53, 123/- and instead applied a multiplicand of KES 20,000/-3. The multiplier of 10 years for a 21-year-old was erroneous

Analysis and Determination 5. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co Ltd & Another (1968) EA 123.

6. I have considered the entire record of appeal and considered the submissions of filed on behalf of the appellant. I note that the appeal revolves around the question of both liability and quantum.

Liability 7. Deceased was a passenger in 2nd respondent’s M/V KAP 945X that collided with 1st respondent’s M/V KBT 349D. The evidence by the police officer stated that investigations revealed that M/V KBT 349D had swerved onto the lane of M/V KAP 945X causing the accident and that whereas the diver of M/V KBT 349D had been charged, the case was still pending.

8. From the foregoing evidence, the trial magistrate stated that the driver of M/V KBT 349D was largely to blame for the accident and ordered that 1st respondent bears 90% liability. 2nd respondent did not appeal the decision to apportion it 10 % and I therefore do find any justification to interfere with the trial magistration decision on liability.

9. Consequently, I find that the driver of the 1st respondent was wholly to blame for the accident and 1st respondent is hence vicariously liable at 100%.

Quantum 10. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:“Dependency is always 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.”

11. Concerning assessment of damages, I am guided by the holding by Kneller JA inKemfro Africa Limited t/a Meru Express Services (1976) & Anor v Lubia & Anor, No 2 [1985] KLR at page 35 where he stated as follows:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

12. Whereas there is evidence that the deceased was training as a teacher, she was not a teacher at the time of her death. I therefore find no fault in the trial magistrate adopting the sum of KES 20,000/- a multiplicand which I find reasonable in the circumstances of this case.

13. Deceased died at the age of 21 years. Retirement in Kenya is 60 years old whether as a teacher or even in any other formal employment. Even in the informal sector, one can only be productive upto the age of 60 years. The multiplier of 10 years is in my considered view on the lower side. Doing the best I can, I find that a multiplier of 30 years would be reasonable in the circumstances.

14. In the final analysis, this appeal has merit and it is allowed in the following terms:1. Liability at 90:10% against the 1st and 2nd Respondents respectively is upheld2. The multiplicand of KES 20,000/- is upheld3. The multiplier of 10 years is set aside and substituted with 30 years4. 1st and 2nd respondents shall bear costs of the appeal and of the lower court at the ratio of 90:10% respectively

DATED AT MERU THIS 01 ST DAY OF DECEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Njindo for Ngunjiri Michael & Co. AdvocatesFor 1st Respondent - Ms. Rimita for Rimita & Co. AdvocatesFor 2nd Respondent - Mr. Nganga for Kimondo Gachoka & Co. Advocates