[2014] KEHC 6615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 199 OF 2010

BETWEEN

BENARD MEBA APIRI …………………..……….…………….. 1ST APPELLANT

MAKAMARA FRED ………………………………….………….. 2ND APPELLANT

AND

DANIEL MURIMI (Suing as the personal representative

of JOSIAH MAIRU MURIMI – deceased) ………………..……. RESPONDENT

(Being an appeal from the decision and judgment of Hon. Gicheru, (CM),

dated the 27th July 2010 in the original Kisii CMCC No.326 of 2009)

JUDGMENT

The Respondent herein, Daniel Murimi commenced this action by way of a plaint dated 19th May 2009 and filed in court on 21st May 2009, claiming special damages of Kshs.35000/=, together with general damages under both the Fatal Accidents Act and the Law Reform Act plus costs and interest. The 1st appellant was sued as the driver of motor vehicle registration number KAJ 939S while the 2nd appellant was sued as the registered owner of the said motor vehicle as per the copy of records for motor vehicle registration number KAJ 939 S. The copy of records was produced during the trial as P. Exhibit 5. The case against Magadi Soda Company Limited who was joint owner of the subject motor vehicle was withdrawn vide a notice dated 16th November 2009.

Briefly and from the plaint, the facts of the case were that on the 28th March 2009 the deceased who was a minor, Josiah Mairu Murimi, was lawfully walking along the verge of the Kisii-Nyamira road when at Getate area or thereabouts, the 1st appellant and/or driver so negligently drove, managed and/or controlled the subject motor vehicle that he caused or permitted it to lose control and to violently and fatally knock down the deceased minor.

As a result of the accident, the deceased fell onto the bonnet of the vehicle before he was thrown into a napier grass plantation. The 1st appellant did not stop after the accident, and it was well-wishers who took the deceased to Ram Hospital where he died about an hour after getting to the hospital. The deceased was later buried at his father’s home in Ntimaru. The respondent paid some Kshs.3100/= at Ram Hospital vide receipt No.4597 dated 31st March 2009 while Kshs.500/= was paid to Kenya Revenue Authority on 24th April 2009 vide Receipt Number 002009114090032 K being payment for copy of records for motor vehicle Registration number KAJ 9395. The Respondent asked the court to find the appellants 100% liable in negligence.

The appellants herein filed a joint written statement of defence dated 14th July 2009. They denied all the particulars of negligence attributed to the 1st appellant by the Respondent and contended that if any accident occurred which was denied then the same was caused by the deceased’s suicidal and negligent acts, the particulars of negligence being:-

Suddenly and suicidally jumping onto the path and way of the motor vehicle;

playing on the road;

walking in the middle of the road;

failing to heed the warning and presence of the motor vehicle on the said road;

Hitting self against [the] motor vehicle;

causing the accident.

The appellants made no admission as to the deceased’s alleged or any injuries and also denied the jurisdiction of the court. The appellants urged the court to dismiss the respondent’s suit with costs.

During the hearing of the suit the respondent testified and also called Duncan Marwa, PW1 and Ruth Moraa, PW2 as his witnesses. The respondent told the court that his deceased son was a student at Bishop Mugendi Secondary School in Form I when he met his death. A letter from the school confirming that fact was produced as P. Exhibit 4. He also produced the copy of records of m/v as P. Exhibit 5and the payment receipt for same as P. Exhibit 6. A receipt of Kshs 3100/= being mortuary fees at Ram Hospital was produced as P. Exhibit 7. The certificate of death was produced as P. Exhibit I while the Limited Grant of Letters of Administration was produced as P. Exhibit 3.

The respondent stated during his testimony that he had hoped to be helped by the deceased in building a home and that before he died, the deceased used to help him (Respondent) in the farm, hence his prayers for payment of both special and general damages and costs of the suit plus interest on the amounts awarded.

PW1, Marwa, a 14 year old boy told the court that on the material day, he and the deceased who was his cousin were near Timsales within Jogoo Estate in Kisii town. The two were walking on the right hand side along the Kisii-Nyamira Road. That they were walking off the road. At some point, the deceased sent Marwa to a nearby shop. As Marwa went to the shop, the deceased remained standing outside the shops.

Marwa stated further that as he was going back to where the deceased was standing, he (Marwa) saw a Prado vehicle coming at high speed from Kisii direction and the next thing he saw was the deceased being thrown onto a napier grass plantation which is on the right side of the road as one faces Nyamira from Kisii. Marwa also testified that the deceased was not in the middle of the road when he was hit by the vehicle, nor was he playing as alleged by the appellants.

During cross examination, Marwa told the court that the driver of the motor vehicle stopped about 50 metres away from the point of impact. He also stated that the shop where he had been sent by the deceased was on the same side of the road where they were.

Ruth Moraa told the court that on the 28th March 2009, she was waiting for a vehicle along the Kisii-Nyamira road, while the deceased was on the opposite side of the road. She testified that she saw a vehicle being driven at high speed from the direction of Kisii town. The vehicle hit the deceased who was standing off the road. She also testified that the deceased was not playing on the road and that at the time he was hit, he was off the road.

During cross examination, Ruth Moraa stated again that the motor vehicle which hit the deceased was driving at high speed, and that before he was hit, the deceased was standing as if he was waiting for something.

The appellants called Bernard Memba Akiri as DW1 and No.62891 PC Patrick Muchemi of Kisii Traffic Base as DW2. DW1 (Akiri) testified that he was driving the subject motor vehicle on the fateful day when at Jogoo Estate, a person crossed the road suddenly from the right hand side of the road. At the time, he said he was doing 40 kph. On seeing the person crossing the road, Akiri applied emergency brakes. The person fell on the bonnet before falling onto the napier grass on the left hand side of the road. He stopped the vehicle for a while but when he heard the words “Amena choma huyo”, he took a different route and went and reported the accident at the police station. Akiri stated that if he had been at high speed as alleged the deceased would have died on the spot. Akiri held the deceased responsible for the accident for crossing the road where there was no crossing sign.

When cross examined by the Respondent’s counsel, Akiri admitted that he hit the deceased, who then landed on the left side of the tarmac road. He also admitted that he did not swerve to avoid the accident, though he had seen the deceased before knocking him down. Akiri also stated that when he first saw the deceased, the deceased had not yet stepped onto the tarmac, though he was about 11/2 metres away. He explained that he could not swerve to the right because he thought he would collide with the deceased on that side and that if he had moved off the road, he would still have hit him off the road.

DW2, PC Patrick Muchemi produced the police abstract as D. Exhibit I and the motor vehicle inspection report as D. Exhibit 2.

At the close of the testimonies, counsel appearing filed their written submissions and relevant authorities. After carefully considering the evidence on record and the filed written submissions, the learned trial magistrate reached the conclusion that he had no reason to doubt the credibility of the Respondent’s witnesses. He made a finding that the accident occurred because the 1st appellant lost control of the vehicle he was driving at high speed. The learned trial magistrate also made a finding that DW1 did not impress the court as a truthful witness and that if the vehicle had truly been moving at 40 kph, the impact would not have resulted in the death of the deceased. The learned trial magistrate found both appellants liable in negligence for the accident and awarded the respondent the sum of Kshs.800,000/= applying a multiplicand of Kshs.5000/= and a multiplier of 20 years. For pain and suffering the learned trial magistrate awarded Kshs.50,000/=, Kshs.130,000/= for loss of expectation of life and Kshs.35000/= as pleaded and proved special damages; all totaling Kshs.1105800/=. The respondent was also awarded costs and interest.

The appellants were aggrieved by the entire judgment and filed this appeal on 23rd August 2010, challenging the said judgment on the following seven (7) grounds:-

The Learned Trial Magistrate erred in law and fact in totally failing to consider the defendant’s witness defence and dock evidence adduced in court.

The Learned Trial Magistrate erred in law in holding the defendants 100 percent liable for the accident forming the cause of action herein when the deceased was pedestrian knocked in the middle of a busy road.

The Learned Trial Magistrate erred in law and fact in failing assessing special damages for pain and suffering at Kshs.50,000/= when the deceased died on the same day of the accident.

The Learned Trial Magistrate misdirected himself in using a multipliers of Kshs.5,000/= where the deceased income was not proved nor his ability to have attained a particular job was not proved.

The Learned Trial Magistrate erred in law and fact in using a multiplier of 2/3 when the deceased was not married by the time of his death neither did he have any dependants.

The Learned Trial Magistrate erred in law and fact in assessing both general and special damages which were excessively high.

The judgment entered by the learned trial magistrate was contrary to the pleadings before the learned magistrate and contrary to the law.

The appellants pray that the judgment of the lower court be set aside and in its place this court allows the appeal with costs.

This is a first appeal wherein this court is under a duty to reconsider and evaluate the evidence afresh with a view to reaching its own conclusions in the matter, only remembering that in carrying out this duty, this court must exercise caution as it has no opportunity to see and hear the witnesses who testified during the trial. This court has also to remember that it should not be in a hurry to overturn the findings of the learned trial court unless it is clear that in reaching those conclusions, the trial court applied the wrong principles or that the judgment is against the weight of evidence. Generally see Selles –vs- Associated Motor Boat Co. Ltd. [1967] EA and Peters –vs- Sunday Post Ltd [1957] EA 424.

I have now carefully reconsidered the evidence on record. I have

also carefully considered the submissions filed before the trial court. I have also considered and weighed the judgment of the trial court plus the submissions filed by parties in this appeal.

From the written submissions filed on behalf of the appellants on the 17th June 2013, counsel reiterated the 7 grounds of appeal and submitted regarding the first ground that the trial court completely failed to consider the evidence of the appellants to the effect that the subject vehicle collided with the deceased because he was on its path, and that inspite of applying emergency brakes, the deceased failed to stop crossing the road hence the collision. Counsel contended that the evidence by Akiri remained uncontroverted throughout the hearing of the case.

I have reconsidered and evaluated the evidence on record and my finding is that there is no issue on this ground. I have read the testimonies by both PW2 and PW3 and I am satisfied, as the trial court was that the deceased was hit while he was standing off the road and further that the allegation that the deceased was hit while either crossing or playing on the road is not true. I have also noted that the trial court which had the opportunity of not only hearing but seeing the witnesses observed that DW1 did not impress the court as a truthful witness.

Authorities abound on what an appellate court can do when it comes to the issue of whether or not to interfere with the findings of a trial court especially where such findings are premised on the demeanor of a witness. In the case of Tayab –vs- Kinanu [1983] KLR 114, the Court of Appeal held, inter alia, that “the appellate court will not interfere with a judge’s findings of fact based on his assessment of the credibility and demeanor of witnesses who gave evidence before him, unless it was wrong in principle.” That being the case, the first ground of appeal fails.

On the second ground, counsel for the appellant submitted that there was no basis for holding the appellants 100% liable in negligence when the particulars of negligence were not proved on a balance of probabilities. Counsel submitted that the Respondent who alleged that the appellants were negligent failed in complying with the provisions of section 107 of the Evidence Act which places a burden on the respondent to prove the existence of the fact of negligence. The respondent’s counsel held a contrary view.

From the evidence on record, it is clear to me that the appellant’s motor vehicle was being driven at high speed as it approached the scene of the accident. There is also evidence confirming that the deceased was standing off the road near some shops on the left hand side of the road as one faces Nyamira from Kisii and that he was hit while he was on that side of the road, thrown onto the bonnet of the car before being thrown into the napier grass field. During his testimony, both in examination in chief and during cross examination, DW1 stated in part “There was no speed limit sign. I braked suddenly and looked. He fell on the bonnet on the left hand side. He fell on napier grass on the left side …. when I saw the deceased, he had crossed the right side of the bonnet. He came from the side where the buildings were.”

Putting DW1’s evidence in perspective, I am persuaded that

DW1 did not observe any speed limits because there was apparently no speed limit sign. For this reason, I am satisfied that the learned trial court was right in holding the appellants 100% liable in negligence. The learned trial court saw all the witnesses and heard their testimonies. He said he disbelieved the testimony of DW1 who did not appear a truthful witness and that he believed the testimonies of the respondent’s witnesses. I see no reason to depart from those findings as the particulars of negligence were clearly proved by the Respondent. The second ground of appeal therefore fails.

In ground three it is contended that the judgment of the learned trial court was contrary to the pleadings and contrary to law. In this regard it is submitted on behalf of the appellants that the learned trial court failed to carry out its obligation when it utterly failed to consider the evidence that the deceased jumped onto the road at close range and further that the court also failed to frame the issues for determination. This court has itself reconsidered and evaluated the evidence afresh and finds no contradictions in the Respondent’s case as to how the accident occurred. Nor do I find any evidence to the effect that the accident was inevitable nor is there any evidence to suggest that the deceased intended to commit suicide.

As to whether or not the trial court framed the issues for determination and whether failure to do so was fatal to the Respondent’s case, I do find that indeed the learned trial magistrate did not frame the issues for determination as required by the provisions of section 169 of the Civil Procedure Act, but having said so and after going the through the evidence myself, I do not think that the omission resulted in any miscarriage of justice to the appellants. In any event, the trial court covered the issues for determination such as whether the Respondent’s witnesses were credible, whether it was true as alleged by DW1 that he was driving at 40 kph just prior to the accident and whether the 2nd appellant was vicariously liable for the negligence of the 1st appellant. The third ground of appeal fails in totality.

The fourth ground addressed by the appellants’ counsel is whether the learned trial court erred in law and in fact in assessing the quantum of damages; both special and general damages under the various heads. Counsel for the respondent submitted that an appellate court will not interfere with the discretion of a trial court in the award of damages unless it is clear to the appellate court that the award was based on wrong principles - see Butter –vs- Butter [1981] KLR 349. In the circumstances of the instant appeal, I am satisfied that the learned trial magistrate applied the correct principles, after careful consideration of the case law provided by the parties, in making the award of damages. The special damages were not only specifically pleaded, but were also specially proved as required by law. The only error the trial court made was that it failed to deduct the sum of Kshs.130,000/= under the Fatal Accidents Act thereby giving a double portion of the same award to the Respondent.

In the premises I would enter judgment for the respondent as against the appellants in the sum of Kshs.1015000/= less sKshs.130,000/= which brings the figure down to Kshs.885000/= plus

costs and interest.

Save for the above adjustment, the appeal is dismissed with costs to the respondent.

It is so ordered.

Dated and delivered at Kisii this 30th day of January, 2014

R.N. SITATI

JUDGE.

In the presence of:

Mr. J.O. Soire for Ojuro for Appellants

Mr. Momanyi for Ochoki (present) for Respondent

Mr. Bibu - Court Clerk