[2023] KEHC 3419 (KLR)

Bitnine Investments v Kona & another (Suing as the legal representatives of the Estate of the Late Kina Ondari Moenga) (Civil Appeal E077 of 2021) [2023] KEHC 3419 (KLR) (20 April 2023) (Judgment)

Neutral citation: [2023] KEHC 3419 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E077 of 2021

WA Okwany, J

April 20, 2023

Between

Bitnine Investments

Appellant

and

Esther Kemunto Kona

1st Respondent

Kina Elkana Moenga

2nd Respondent

Suing as the legal representatives of the Estate of the Late Kina Ondari Moenga

(Being an Appeal against the Judgment of Hon. S. K. Arome (Mr.) – RM Keroka dated and delivered at Keroka on the 28th day of June 2021 in the original Keroka Principal Magistrate’s Court Civil Case No. 189 of 2019)

Judgment

Introduction 1. The Respondent herein, Esther Kemunto Kona, sued the Appellant before the Lower Court in her capacity as the Legal Representative of the estate of Kona Ondari Moenga (deceased) seeking damages under the Law Reform Act and Fatal Accidents Act.

2. The Respondent’s case was that on July 23, 2015, the deceased, was driving motor vehicle Registration No GK 963W, an ambulance, along Keroka – Kisii Road when the said vehicle collided with the Appellant’s motor vehicle Registration No KBX 769Z as a result of which the deceased sustained fatal injuries. The Respondent attributed the accident to the fault/negligence of the Appellant who was the owner and driver of motor vehicle Registration No KBX 769Z.

3. The case proceeded for hearing and in a judgment delivered on June 28, 2021, the trial court entered judgment in favour of the Respondent as follows: -"a.Liability 60% against the defendant and 40% against the plaintiffb.Loss of dependency Kshs 640,000/=(Under Fatal Accidents Act)c.Loss of expectation of life Kshs 100,000/=(Under Law Reform Act) (Minus)d.Pain and suffering Kshs 100,000/=Kshs 840,000/=Less 40% 40/100 x 840,000/= Kshs 336,000/=Kshs 504,000/=e.Special damages Kshs 176,610/=Total Kshs 680,610/=Less damages under Law Reform Act Kshs 100,000/=Total Kshs 580,610/=I therefore enter judgment for the plaintiff in the sum of Kshs 580,610/= with interest from the date hereof until payment in full. I also award the plaintiff costs of the suit.”

4. Aggrieved by the said judgment of the Lower Court, the Appellant filed the instant appeal and listed the following grounds of appeal in the Memorandum of Appeal: -1. The learned magistrate erred in law and misdirected himself when he failed to consider the appellants submissions on both points of law and facts.2. That the learned magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.3. That the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in The Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, cap 405. 4.The learned magistrate erred in law and fact in awarding the Plaintiff/Respondent Kshs 640,000/= on Loss of Dependency hence arriving at a wrong finding.5. The learned trial magistrate erred in law and fact by awarding the plaintiff an inordinately high quantum as damages in the circumstances of this case.6. The learned magistrate erred in law and fact in awarding the plaintiff a sum that was so excessive as to an amount that is so erroneous as to the estimate of general damages suffered by the plaintiff.7. The learned magistrate erred in fact and in law in failing to consider the appellants’’ submissions and evidence tendered in court on quantum and legal authorities relied upon in support thereof.8. The learned magistrate erred in law and fact by overly relying on the respondents’ submissions which were not relevant and without addressing his mind to the circumstance of the case.9. The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

5. The appeal was canvassed by way of written submissions and when the matter came up for mention to confirm the filing of submissions, Counsel for the parties confirmed that the appeal was on the issue of quantum.

6. A perusal of the Appellant’s submissions however reveals that it also contests the trial court’s findings on liability.

7. The Appellant submitted that the Respondent did not discharge the burden of proof placed upon her and that the trial court ought to have dismissed her case or held both parties liable for the accident on a 50:50 basis.

8. On quantum, the Appellant submitted that the award of Kshs 100,000/= and 640,000/= made for pain and suffering, and loss of dependency respectively was erroneous, inordinately high and without basis. It was submitted that there was no proof of the deceased’s earnings or proof that the deceased was employed by Keumbu Sub-county Hospital as an ambulance driver.

9. It was the Appellant’s case that in the absence of proof of earnings, the trial court should have adopted a global sum approach in making the award of loss of dependency.

10. The Appellant proposed that since the deceased was aged 55 years at the time of his death, a global sum of Kshs 400,000/= would have been sufficient compensation for loss of dependency. Reference was made to the decision in Gilbert Kimatare Nairi & another (suing as personal representatives of the Estate of Lemayian Richard Kimatare (Deceased) vs Civiscope Limited [2021] eKLR where the court considered the principle of a global sum in respect to a 42 year old farmer and found that it had no reason to interfere with the trial court’s award of Kshs 600,000/=.

11. Reference was also made to the decision in Dora Mwamandu Samuel (suing on behalf of the Estate of Samuel Muweliani Jumamosi) vs Shabir M. Hassan [2021] eKLR where the court awarded a global sum of Kshs 400,000 in respect to a 49 year old.

12. The Respondent, on the other hand, submitted that there was ample evidence to show that the Appellant was largely to blame for the accident as not only did he not give way to the ambulance, but also failed to attend court to challenge the Respondent’s evidence on how the accident happened. The Respondent cited the case of John Wainaina Kagwe vs Hussein Dairy Ltd [2013] eKLR where it was held: -“The Respondent never called any witness (es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blameworthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tendered to exonerate it fully from culpability. It was thus substantially to blame for the accident….”

13. On quantum, the Respondent submitted that the amount awarded by the trial court was modest and reasonable if not on the lower side considering that the accident led to loss of life. The Respondent urged this court not to disturb the award on quantum.

14. I have considered the Record of Appeal and the parties’ respective submissions. I find that the main issue for determination is whether this court should interfere with the trial court’s findings on liability and quantum.

15. As the first appellate court, the duty of this court is to re-consider and re-evaluate the evidence tendered before the trial court in order to arrive at its own conclusion while bearing in mind the fact that it neither saw nor heard the witnesses testify. In Williamson Diamonds Ltd and Another vs Brown [1970] EA 1, the court held that: -“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

16. Similarly, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that: -“It is the duty……of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing ad seeking the witnesses and their demeanor and giving allowance for that.”

Liability 17. PW2, James Monari, testified that he witnessed the accident as it happened. He stated that the Appellant’s vehicle drove into the lane of the ambulance. He blamed the Appellant for causing the accident. He testified as follows: -“GK was from Kisii direction, the accident happened on the GK lane. KBX drove onto GK lane.”

18. The trial court held as follows on the issue of liability: -“…Generally motorists have an obligation to pay attention, heed all driving laws, and avoid accidents if at all possible even if the other motorist or passenger are negligent.In the case of Boniface Waiti & another v Michael Kariuki Kamau [2007] eKLR the court held,“The defendant as a driver was expected to drive prudently and be on the lookout for trouble shooters on the road, be vigilant and most importantly to be able to control the vehicle and bring it to safe stop in the event of an emergency. He did not do so.Guided by the above case law I hold that both drivers were negligent in controlling the vehicles and each of them contributed to the accident. I take judicial notice that ambulance are vehicles used for purposes saving lives and in most cases have a right of way compared to other vehicles, in this case the driver of KBX 769Z saw the ambulance hadpulled out and started to overtake. The driver being alive did not come to court to demonstrate to court what measures he took to avoid head on collision. The driver of the ambulance died. So we cannot know his side of story. Accordingly, I find the driver of KBX was 60% to blame and deceased 40%.”

19. My finding is that the trial court properly analyzed the evidence presented before it before arriving at the apportionment of liability at 60%: 40% in favour of the Respondent. I find no reason to interfere with the trial court’s findings on liability.

Quantum 20. The Court of Appeal pronounced itself on the guidelines in assessing damages in the case of SJ v Francesco Di Nello &another [2015] eKLR as follows: -“17. The guiding principle in the assessment of damages has been the subject of numerous authorities. For the purposes of this case we refer to that of Ossuman Mohamed & Another v Saluro Bundit Mohumed,Civil Appeal No 30 of 1997 (unreported) wherein the following passage, in the case of Kigaragari v Aya[1982 – 1988] IKAR 768 is employed;“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees.”

21. The principles upon which an appellate court can interfere with an award of damages were stated in Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A.M.M. Lubia & another [1982-88]1 KAR 777 where the Court of Appeal 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 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.’

22. In the present case, I note that it was not disputed that the deceased was aged 55 years as at the time of his death. The Appellant contended that the Respondent did not tender any proof of the deceased’s employment with the County Government, as a driver, and that damages could only be awarded on the basis of a global sum. I note that even though the Record of Appeal did not contain the deceased’s pay slip, a perusal of the Lower Court record contains an online Pay slip that was produced at the hearing as P Exhibit 5. The said Pay slip indicates that the deceased earned a basic salary of Kshs 16,080/=. I therefore find that the trial court made the correct decision in adopting the multiplicand of 5 years and a multiplier of Kshs 16,000/= in calculating the loss of dependency under the Fatal Accidents Act as 2/3 x 5 x 12 x 16 thereby arriving at the sum of Kshs 640,000/=.

23. I further find that the trial court’s award of Kshs 100,000/= under the heading of pain and suffering and loss of expectation of life is within the conventional range of awards under similar circumstances.

24. In sum, I do not find any fault in the trial court’s findings on liability and quantum.

25. Consequently, I find that the instant appeal is not merited and I therefore dismiss it with costs to the respondent.

26. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 20TH DAY OF APRIL 2023. W. A. OKWANYJUDGE