[2022] KEHC 9786 (KLR)

Bundi & Michoma (suing as the Personal representatives of the Estate of Douglas Bundi Ombogo) v Guardian Coach Limited (Civil Appeal E051 of 2021) [2022] KEHC 9786 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9786 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E051 of 2021

JN Kamau, J

July 19, 2022

Between

Patrice Ombogo Bundi & Linet Kwamboka Michoma (suing as the Personal representatives of the Estate of Douglas Bundi Ombogo)

Appellant

and

Guardian Coach Limited

Respondent

(Being an appeal from the Judgment and decree of Hon B. M. Kimutai (PM) delivered at Keroka in Chief Magistrate’s Court Case No 68 of 2018 on 29th June 2021)

Judgment

Introduction 1. In his decision of June 29, 2021, the Learned Trial Magistrate, Hon B. M. Kimutai, Principal Magistrate dismissed the Appellants’ case with costs to the Respondent herein.

2. Being aggrieved by the said decision, on July 8, 2021, the Appellants herein filed a Memorandum of Appeal dated July 7, 2021. They relied on eight (8) grounds of appeal.

3. The Appellants’ Written Submissions were dated 14th February 2022 and filed on February 18, 2021 while those of the Respondent were dated March 4, 2022 and filed on March 8, 2022. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

5. This was aptly stated in the case of Selle & Another v Associated Motor Boat Co Ltd & others [1968] EA 123 where the court therein held that the appellate court is not bound necessarily to accept the findings of fact by the court below and that on appeal while it must reconsider the evidence, evaluate it itself and draw its own conclusions, it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

6. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-a.Whether or not the Learned Trial Magistrate erred in having found the that the accident did not occur as the Appellants had alleged;b.If the same occurred as alleged by the Appellant herein, who was liable for the accident; andc.If the Respondent was liable for the accident, what was the quantum that was payable to the deceased’s estate.

7. Although all the issues were related, this court nonetheless found it prudent to determine the sane under the following distinct and separate heads.

I. Liability 8. Issues Nos (a) and (b) hereinabove which were essentially Grounds of Appeal Nos (1), (2), (3), (4), (6), (7) and (8) were dealt with under this head as they were all related.

9. The 2nd Appellant herein (hereinafter referred to as “PW 1”) was the wife of Douglas Bundi Ombogo (hereinafter referred to as “the deceased”). On being cross-examined, she stated that she did not witness the accident in which the deceased suffered fatal injuries.

10. No 6xxxx Corporal Priscah Nyanchama (hereinafter referred to as “PW 2”) was the Investigating Officer. Her evidence was that on April 9, 2018, she received a report from one Bundi notifying her that his son, the deceased herein, suffered fatal injuries in an accident that occurred on April 3, 2018 at 10. 00 am.

11. He added that two (2) eye witnesses namely Kevin Akama and Patrick Mokaya saw a bus, Motor Vehicle Registration Number KCP 790U (hereinafter referred to as “the subject Motor Vehicle”) hit an unknown Motor Cycle in which the deceased was a pillion rider. The said subject Motor Vehicle was subsequently impounded. She testified that an Inquest file was opened but the two (2) eye witnesses never came to the police station.

12. Kevin Akama Momanyi (hereinafter referred to as “PW 3”) was a boda boda rider. He told the Trial Court that he was at Amabuko Stage when he saw a bus belonging to Guardian Company hit the rear of a motor cycle which then fell. He stated that he followed the bus to Keroka but it did not stop and he returned to the Stage. He reiterated this evidence when he was cross-examined.

13. No 9xxxx Corporal Josephine Wanginda (hereinafter referred to as “DW 1”) tendered in evidence the Police Abstract Report. She confirmed that the accident was reported by the 1st Appellant herein, that the bus that hit an unknown motor cycle in which the deceased was a pillion rider did not stop and that the matter was pending an Inquest. It was her evidence that the Occurrence Book (OB) did not indicate the registration numbers of the bus and the motor cycle.

14. When she was cross-examined, she averred that the bus Registration Number KCP 790V (sic) Isuzu Bus was owned by the Respondent herein. On being re-examined, she stated that she did not know how the person who filled the OB identified that the said subject Motor Vehicle was the one that caused the accident.

15. Dennis Mokua (hereinafter referred to as “DW 2”) was the manager of Guardian Angel. His evidence was that the said subject Motor Vehicle was enroute Oyugis from Nairobi and at the alleged date and time of the accident, it was around Kamandura area in Mai Mahiu and not at Keroka area.

16. On being cross-examined, he stated that he had nothing to show that he was at work on the material date of the accident but that he wrote a statement to the director showing the physical position of the subject Motor Vehicle through use of the tracking system.

17. Joseph Oreti Machuka (hereinafter referred to as “DW 3”) was the driver of the subject Motor Vehicle at the material time. He contended that he was on duty on April 3, 2018 and was heading to Nairobi from Oyugis. He was informed that the said subject Motor Vehicle was impounded on April 25, 2018 for having caused an accident at Keroka. He denied having knowledge of the said accident.

18. Notably, the Motor Vehicle Copy of Records that was adduced in evidence by the Appellants showed Motor Vehicle Registration Number KCP 790U belonged to the Respondent herein. This matched the entry in the Police Abstract Report. This court was unable to read the handwritten notes of the Learned Trial Magistrate to confirm if the same had indicated that the Registration of the said Motor Vehicle as having been KCP 790V as was indicated in the typed proceedings.

19. Be that as it may, it was evident that there was a lacuna in how PW 3 identified the subject Motor Vehicle as having been Registration Number KCP 790U, a fact that DW 1 conceded to. He did not explain whether he wrote the registration number down or how he memorised it. This piece of evidence was critical for the reason that whereas the accident occurred on April 3, 2018, it was not reported until six (6) days later on April 9, 2018 breaking the chain of events.

20. Although PW 3 could not be faulted for not having reported the incident at the Police Station because he was merely a person who was trying to assist, failure by the Appellants to lay basis how they came to know that he witnessed the accident because he appeared to have been a stranger to them and how he established that the aforesaid subject Motor Vehicle was the one that caused the accident was fatal to their case.

21. Section 107 of the Evidence Act Cap 80 (Laws of Kenya stipulates as follows:-“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

22. In addition, Section 109 of the Evidence Act provides as follows:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

23. The law is clear that the burden of proof lay with the Appellants to prove that it was the subject Motor Vehicle that caused the accident in which the deceased died. Once they alleged the fact and adduced evidence that it was the subject Motor Vehicle that caused the deceased to sustain fatal injuries in the aforesaid accident, the burden shifted to the Respondent to prove that the said subject Motor Vehicle was not on that route on that particular date and time.

24. The Learned Trial Magistrate observed that the Tracking System Report that was produced in court showed that the said subject Motor Vehicle was not on the route of the accident on the material date and time. This court took the view that even if the motor cyclist in whose motor cycle the deceased was a pillion rider was called as a witness, his evidence would only have been relevant and assisted the court if he had taken down the registration number of the motor vehicle that hit them.

25. As the Appellants had failed to prove the nexus between the said subject Motor Vehicle and the deceased herein but the Respondent herein adduced evidence to the contrary, this court agreed with the Learned Trial Magistrate and the Respondent that the Appellants had failed to prove their case to the required standard, which in civil cases is evidence on a balance of probability.

26. Notably, there was nothing in the proceedings to show that the Learned trial Magistrate deliberately recorded proceedings selectively and failed to record all the proceedings in the course of the trial against the natural rules of justice thus denying the Appellants an opportunity to be heard as they had contended in Ground of Appeal No (6). If there was such omission on the part of the Learned Trial Magistrate, then the Appellants failed to demonstrate the same.

27. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4), (6), (7) and (8) were not merited and the same be and are hereby dismissed.

II. Quantum 28. Ideally, having found that the Appellants had not proven that the Respondent was liable for the accident that occurred, this court was not obliged to consider the submissions on quantum. However, as the Appellants had raised the omission by the Learned Trial Magistrate to assess damages as required and the Respondent also submitted on the quantum payable, this court found it prudent to address the Ground of Appeal No (5) by assessing the damages it would have awarded if it was found to have erred on the question of liability.

A. Pain and suffering 29. The Appellants had submitted that a sum of Kshs 25,000/= for pain and suffering was adequate. The Respondent herein had urged this court to reduce the same to Kshs 20,000/=.

30. In the case of David Kahuruka Gitau & another v Nancy Ann Wathithi Gitau & another [2016] eKLR , the court awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident.

31. In the cases of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR and Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 others v Hannah Wangui Makumi & another [2021] eKLR, the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.

32. As was held in the case of Kiwanjani Hardware Limited & another v Nicholas Mule Mutinda [2008] eKLR, an appellant court will not disturb an award of damages unless the same is inordinately low or high so as to represent an erroneous estimate or was based on an entirely wrong principle.

33. The award of Kshs 25,000/= for pain and suffering that was awarded by the Learned Trial Magistrate was not so inordinately high or inordinately low to have warranted the interference by this court. This court would have left this award undisturbed.

B. Loss of exepectation of life 34. The Appellants had submitted that a sum of Kshs 150,000/= for loss of expectation of life would have been fair. The Respondent had submitted that a sum of Kshs 80,000/= would have been fair.

35. It was the considered view of this court that a sum of Kshs 150,000/= would have been a fair and reasonable assessment for the award of loss of expectation of life. In arriving at this conclusion, this court had due regard to the case of Jackson Kariuki Ndegwa (suing as the administrator of the Estate of Fabius Munga Kariuki v Peter Kungu Mwangi [2016] eKLR where the court therein awarded a sum of Kshs 150,000/= under this head.

C. Loss Of Dependency AA. Multiplicand 36. The Appellants submitted that the deceased used to earn a sum of Kshs 29,000/=. The Respondent proposed a sum of Kshs 6,415. 55 which was the applicable minimum wage with effect from May 2017.

37. According to the 2nd Appellant, the deceased was self employed as a mechanic working in Nairobi. She did not have proof of earning.

38. In the Regulation of Wages (General) (Amendment) Order, 2017, that came into effect on May 1, 2017, the minimum wages for general labourers in Nairobi was Kshs 12,926. 55. In the Regulation of Wages (General) (Amendment) Order, 2018, that came into effect on May 1, 2018, the minimum wage for general labourers in Nairobi was Kshs 13,572. 90.

39. As the Appellants did not have proof of the deceased’s income or occupation as at the time of death the sum of Kshs 6,415. 55 the Respondent herein proposed was the correct scale as the same related to the minimum wage in Nairobi for unskilled employees under the Regulation of Wages (Agricultural Industry) Order, 2017 that came into effect on May 1, 2017. Notably, the Certificate of Death that was adduced in evidence indicated that the deceased was a farmer at the time of death and not a mechanic as the Appellants had contended. This court would therefore have adopted the sum of Kshs 6,415. 55 as the multiplicand.

BB. Multiplier 40. According to the 2nd Appellant, the deceased died at the age of thirty six (36) years. This was evidenced in the said Certificate of Death. The Appellants urged this court to adopt a multiplicand of twenty four (24) years while the Respondent proposed a multiplicand of sixteen (16) years

41. In view of the fact that the deceased was aged thirty six (36) years, it was this court’s considered view that a multiplicand of sixteen (16) years would have been fair. In arriving at this conclusion, this court had due regard to the cases of Joseph Njuguna Mwaura v Builders Den Limited & another [2014] eKLR where the court adopted a multiplicand of seventeen (17) years where the deceased was aged thirty five (35) years at the time of death.

CC. Dependency Ratio 42. The 2nd Appellant adduced in evidence, a Chief’s letter dated 3rd May 2018 indicating that the deceased had children with her. The Appellants did not submit any case law to support their proposed dependency ratio of 2/3.

43. On the other hand, the Respondent proposed a dependency ratio of 1/3 for the reason that there were no birth certificates or proof of the children’s ages.

44. This court agreed with the Respondent that in the event the deceased’s children were adults, the dependency ratio would have been 1/3. Conversely, in the event the deceased’s children were minors, which this court found to have been most probable as the deceased was aged thirty six (36) years at the time of his death and the Respondent did not adduce any evidence to rebut this fact, the dependency ratio of 2/3 as had been proposed by the Appellants herein would have been reasonable.

EE. Special Damages 45. The Appellants had pleaded special damages in the sum of Kshs 101,975/=. The Respondent argued that the same were not proved.

46. This court noted that the Appellants submitted receipts in support of their claim for special damages as evidence in court. The Respondent did not challenge the same. In the absence of any evidence to the contrary, this court found and held that a sum of Kshs 101,975/= was not unreasonable for funeral expenses. Indeed, in African funerals, that amount was quite modest with or without documentary proof. Even where there were no receipts, this court could have awarded a global figure of Kshs 71,975/= for funeral expenses as that is what constituted the Appellants’ substantial claim for special damages with a sum of about Kshs 1,975/= for obtaining Letters of Administration Ad Litem and Death Certificate. This court would, however, not have awarded the sum of Kshs 30,000/= for obtaining the said Letters of Administration Ad Litem as that was a matter for the taxing master to determine.

Conclusion 47. although the entire question on quantum was speculative in the event this court would have found the Appellants to have proved their case on a balance of probabilities, then it would have entered judgment in their favour against the Respondent as follows:-Loss of dependency2/3 x 6415. 55 x 12 x 16 Kshs 821,190. 40Loss of expectation of life Kshs 150,000. 00Pain and suffering Kshs 25,000. 00Special damages Kshs 71,975. 00Kshs 1,068,165. 40Plus costs. Interest on loss of dependency, loss of expectation of life and pain and suffering would have been from the date of judgment while judgment would have been from the date of filing suit. The decretal sum would have been subjected to contributory negligence if the deceased or motorcyclist would have been found liable for having contributed to the causation of the accident.

Disposition 48. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Appeal that was lodged on July 8, 2021 was not merited and the same be and is hereby dismissed.

49. Although costs follow the event and ideally the costs of the Appeal would have been awarded to the Respondent herein, this court hereby directs that each party bear its own costs as the financial might between the Appellants and the Respondent herein could not be compared, the latter being in a stronger financial position recovering costs from an already distraught family that had lost its loved one and lost a case for compensation.

50. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF JULY 2022J. KAMAUJUDGE