[2024] KEHC 7399 (KLR)

Bofad & Simga Agencies Company Limited v Nyakang’o & another (Suing as the Legal Representatives of the Estate of Joel Nyakang’o (Deceased) (Civil Appeal E045 of 2023) [2024] KEHC 7399 (KLR) (13 June 2024) (Judgment)

Neutral citation: [2024] KEHC 7399 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E045 of 2023

WA Okwany, J

June 13, 2024

Between

Bofad & Simga Agencies Company Limited

Appellant

and

Salon Kerubo Nyakang’o & Francis Ntabo Omari (Suing as the Legal Representatives of the Estate of Joel Nyakang’o (Deceased)

Respondent

(Being an Appeal from the Judgment at the Chief Magistrate’s Court in Nyamira CMCC No. E021 of 2023 by Hon. C.W. Waswa delivered on 17th August 2023)

Judgment

1. The Respondents/Cross-Appellants herein were the Plaintiffs before the trial court where they sued the Appellant for damages under the Law Reform Act and Fatal Accidents Act. The Respondents’ case was that their kin, the deceased herein (joel Nyakango Omari) was lawfully riding motorcycle registration number KMDV 797M along Kisii-Kericho road when the Appellant’s driver, agent or servant negligently drove the Appellant’s motor vehicle registration number KDG 235P thereby permitting it to lose control, veer on and off the road and collide with the motorcycle the deceased was riding thus causing him fatal injuries.

2. The Appellant (Defendant) filed a statement of defence wherein it denied the contents of the Plaint.

3. At the hearing of the case, the Respondents adopted their witness statement dated 17th February 2023 as their evidence in chief and produced 11 exhibits. The Respondents also called two witnesses while the Appellant presented the evidence of its driver Mr. Fredrick Chiluba.

4. In a judgment rendered on 17th August 2023, the trial court entered judgment for the Respondents as follows: -Liability at 100% against the Defendant.Damages for Pain and Suffering – Kshs. 50,000/=Loss of Expectation of Life – Kshs. 100,000/=Loss of Dependency – Kshs. 1,400,000/=Special Damages – Kshs. 115,550/=Total – Kshs. 1,661,550/=

5. Dissatisfied with the trial court’s decision, the Appellant instituted the present appeal through the Memorandum of Appeal dated 30th August 2023 wherein it listed the following grounds: -1. That the learned Trial Magistrate erred in law and fact in finding the Appellant liable in negligence without any evidence showing any such negligence on record.

2. The learned Trial Magistrate erred and misdirected himself in law and fact in finding the Appellant 100% liable.

3. The learned Trial Magistrate erred in law and in fact in failing to consider the evidence before him carefully, and fully and thus failed to realize that the Respondents did not establish any negligence against the Appellant.

4. The learned Trial Magistrate erred in law and fact by holding that the Appellant was solely liable for causing the accident, while the evidence showed that it was the motorcyclist who abruptly turned right and then swerved back to the left without ensuring it was safe to do so, thereby colliding with the Appellant’s motor vehicle.

5. The learned Trial Magistrate failed to consider all arguments and submissions made by the Appellant and/or ignored the same in totality on the question of liability.

6. The Respondents filed a Cross-Appeal through the Memorandum of Appeal dated 13th September 2023 in which they listed 2 grounds as follows: -1. The learned Trial Magistrate erred in fact and in law by awarding general damages which were inadequate in the circumstances.

2. The learned Trial Magistrate erred in law and in principle by adopting the wrong approach in the computation of the General Damages and by departing from the trends contained in the authorities cited by the Appellee which were binding on him and adopting a method which was erroneous in the circumstances and thereby occasioning a miscarriage of justice.

7. The Respondents urged this court to allow the cross-appeal, set aside the trial court’s judgment on quantum and conduct its own assessment of damages.

8. The Appeal and Cross-Appeal were canvassed by way of written submissions which I have considered.

9. The Court of Appeal explained the duty of a first appellate court in PIL Kenya Ltd v Oppong [2009] KLR 442 thus: -“It is the duty of the Court of Appeal, as 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 and seeing the witnesses and their demeanor and giving allowance for that.”

Issues for Determination 10. I find that the main issue for determination is whether the trial court arrived at the correct findings on liability and quantum.i.Liability

11. The Respondents submitted that they proved liability on a balance of probabilities as they established that the Appellant’s driver was solely to blame for the accident. According to the Respondents, the accident was caused by the Appellant’s driver’s failure to keep a safe distance. They noted that the Appellant’s driver knocked the deceased from the rear and urged this court to uphold the trial court’s finding on liability.

12. The Appellant, on the other hand, argued that the deceased was largely to blame for the accident. The Appellant faulted the trial court for finding that it was solely to blame for the accident.

13. In Mwangi v Wambugu [1984] KLR 453 the court held as follows on the circumstances under which an appellate court may disturb the trial court’s findings of fact:-“2. A Court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial judge’s finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

14. In its judgment, the trial court opined that the Appellant’s driver must have been moving at a high speed thus explaining why he was not able to swerve or slowdown in time to avoid causing the accident.

15. I have considered the trial court’s findings alongside the evidence of DW1 who stated that the deceased suddenly turned right at the T-Junction area when he noticed that there was an oncoming lorry and decided to swerve back to the left lane thus coming into the way of the Appellant’s vehicle.

16. I have considered the rival arguments made by the parties concerning how the accident occurred and I find that it is the duty of every road user to exercise caution and be mindful of other road users. In this regard, I find that the Appellant’s driver and the deceased should have exercised caution as they approached the junction where the accident occurred.

17. I however note that the Respondents did not tender the evidence of any eyewitnesses to the accident. The only first-hand evidence on how the accident occurred came from the Appellant’s driver (DW1). One cannot however rule out bias on the said witness’ account on the events leading to the accident as he could not have been expected to implicate or blame himself for the accident.

18. I also note that the Appellant’s driver was not charged for any traffic offence following the accident and this leads me to conclude that the trial court misapprehended the facts of the case and arrived at an erroneous conclusion in finding the Appellant 100% liable for the accident. I find that the explanation made by DW1 pointed to some level of negligence on the part of the deceased. I find that the Appellant demonstrated that the deceased contributed to the occurrence of the said accident.

19. Consequently, I set aside the trial court’s finding on liability and substitute it with a finding on liability at 70:30% in favour of the Respondents,ii.Quantum

20. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia (1982 –88) 1 KAR 727 at p. 730 Kneller J.A. restated the principles to be considered by an appellate court when dealing with trial court’s award. The learned judge stated thus: -“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. (See Ilango V. Manyoka [1961] E.A. 705, 709, 713; Lukenya Ranching and Farming Co-operatives Society Ltd V. Kavoloto [1970] E.A., 414, 418, 419). This Court follows the same principles.”

21. The Respondents’ case was that the award under loss of dependency was inordinately low because PW1 testified that the deceased earned a gross monthly income of Kshs. 31,559/= from his motorcycle business. They contended that since the deceased died at the young age of 29 years, he could have worked until the age of 70 years considering that he was in the private sector. They therefore argued that the trial court ought to have calculated damages under this head as follows: 31,559x12x41x1/3= 5,175,676/=. They relied on the decision in the case of Board of Governors Kangubii Girls High School and Another v Jane Wanjala Muriithi & Another (2014) eKLR where the court cited the case of Cornelia Elaine Wamba v Shreeji Enterprises Ltd & Others (2012) eKLR when explaining the factors to be considered when deciding on the most suitable method for calculating damages under the Fatal Accidents Act.

22. The trial court found that since no material was presented to confirm the deceased’s income and further, since the minimum wage formula did not provide for motorcycle (boda boda) riders, the multiplier approach was not suitable for assessing damages under the Fatal Accidents Act. The trial court then employed the global sum approach and assessed damages for loss of dependency in the sum of Kshs. 1,400,000/=.

23. I find that, in the circumstances of this case, the trial court was justified in adopting the global sum approach when determining loss of dependency since evidence was not presented to prove the deceased’s earnings. I also take judicial notice of the fact that the deceased was engaged in a high-risk business as a boda rider, owing to the numerous accidents in the said sector.

24. It is trite that similar awards should be made in comparable cases. I have considered the following cases where the court adopted the global sum approach in determining loss of dependency: -a.In China Civil Engineering & Construction Company (K) Limited v Mwanyoha Kazungu Mweni & Mweni Kazungu Mweni (Both suing on behalf of the Estate of Ndegwa Mzungu Mweni (Deceased) (2019) eKLR, Nyakundi J., upheld a global award of Kshs. 700,000/- for loss of dependency made in respect to a deceased who was a 79-year-old farmer.b.In Moses Maina Waweru v Esther Wanjiru Githae (Suing as the personal representative of the Estate of the late David Githae Kiririo Taiti [2022] eKLR, the court reduced an award of Kshs. 2,000,000/= to Kshs. 800,000/- or loss of dependency where the deceased died at the age of 68 years and left one dependent.c.In Moses Wetangula & Another v Eunice Titika Rengetiang [2018] eKLR, the court awarded a global sum of Kshs. 500,000/= for a 42-year-old retired officer of the Kenya Defence Forces.d.In Mwangi (Suing as the administrators of the estate of Peter Maina Mwangi (Deceased) v Arim (Civil Appeal E045 of 2021) [2022] KEHC 3295 (KLR), Matheka J. upheld an award of Kshs. 600,000/= for loss of dependency for a 39-year-old deceased who was a painter and counselor.e.In Rishi Hauliers Limited v Josiah Boundi Onyancha [2015] eKLR, the court awarded a global sum of Kshs. 500,000/- to a 50-year-old.

25. I have considered the various ages of the deceased persons in the above cited cases and noted that the pattern of the above awards shows that higher awards are made where the deceased is young or in his prime age. I have also considered the fact that the deceased herein was survived by a widow and a 4-year-old child. I am not persuaded that the trial court’s award under loss of dependency was inordinately low. I am also not in agreement with the Respondent’s argument that the court should have adopted the multiplier approach in determining the suitable award for loss of dependency for the reasons that I have already stated in this judgment.

26. I find the award of Kshs. 1,400,000 made by the trial court for loss of dependency was fair and just. I find no reason to disturb the said award.

27. Since the parties did not contest the trial court’s findings on the assessment of damages under the Law Reform Act, in respect to pain and suffering and loss of expectation of life, I will not disturb the awards made under the said headings.

28. In conclusion, while I find that the Respondents’ Cross Appeal is not merited and I therefore dismiss it, I find that the Appellant’s Appeal is merited, albeit, only in respect to the issue of liability. Consequently I allow the Appellants Appeal and make the following final orders: -Liability at 70%: 30% against the Defendant.Damages for Pain and Suffering – Kshs. 50,000/=Loss of Expectation of Life – Kshs. 100,000/=Loss of Dependency – Kshs. 1,400,000/=Special Damages – Kshs. 115,550/=Gross Total – Kshs. 1,661,550/=Less 30% Contribution – Kshs. 498,465/=Net Total – Kshs. 1,163,085/=

29. I award the Respondent interest on the above award at court rates till payment in full.

30. Each party shall bear their own costs of the appeal.

31. Orders accordingly.

Judgment dated, signed and delivered at Nyamira via Microsoft Teams this 13th June 2024. W. A. OKWANYJUDGEJUDGMENT - HCCA NO. E045 OF 2023 PAGE 4 OF 4