[2024] KEHC 6909 (KLR)

Cebit Cargo Ltd & another v Makumi (Suing as the personal representative of the Late Faith Mukeli Kakei (Deceased) (Civil Appeal E011 of 2022) [2024] KEHC 6909 (KLR) (5 June 2024) (Judgment)

Neutral citation: [2024] KEHC 6909 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E011 of 2022

GMA Dulu, J

June 5, 2024

Between

Cebit Cargo Ltd

1st Appellant

Joshua Mbithi Ngutu

2nd Appellant

and

Makali Makumi (Suing as the personal representative of the Late Faith Mukeli Kakei (Deceased)

Respondent

(From the Judgment in Civil Case No. 239 of 2019 delivered on 28th February 2022 by Hon. A. M. Obura (Mrs.) (CM) at Voi Law Courts)

Judgment

1. In a judgment delivered on 28th February 2022, the learned trial Magistrate in Voi CMCC No. 239 of 2019 apportioned liability 10%:90% in line with the decision in the test case Voi CMCC No. 243 of 2019 Njeri Wanjiru v Cebit Cargo Ltd and concluded as follows:-“Reasons wherefore, I hereby enter judgment for the plaintiffs as against the defendants jointly and severally as follows:Pain and suffering Kshs. 20,000/=Loss of expectation of life Kshs. 100,000/=Loss of dependency Kshs. 4,885,202/=Special damages Kshs. 10,500/=Sub-total Kshs. 5,015,702/=Less 10% contribution Kshs. 501,570/20TOTAL Kshs. 4,514,131/80 (Four million five hundred and fourteen thousand, one hundred and thirty-one shillings and eighty cents only)The plaintiffs are also awarded costs of the suit and interest thereon at court rates. It is so ordered.”

2. Aggrieved by the decision of the trial court, the two appellants, who were the defendants in the trial court, have come to this court on appeal through counsel Musungu Pekke & Company Advocates, on the following grounds:-1. That the Magistrate erred in law and fact in finding that the 2nd appellant was liable in causing the accident to the extent of 90% in respect of the road traffic accident which occurred on 19th March 2017 at Manyani area along Nairobi-Mombasa road involving the 1st appellant’s motor vehicle registration No. KAW 432E/ZC 5556 Mercedes Axor that was being driven by the 2nd appellant and motor vehicle registration No. KCT 189T Toyota Harrier that was being driven by one Martin Mbuta Mutua, now deceased when this was not obviously the case given the circumstances leading to the accident.2. That the learned Magistrate erred in law and fact by failing to analyse facts and circumstances leading to the road traffic accident which occurred on 19th March 2017 which greatly pointed to huge contributory negligence on the part of the driver of motor vehicle Reg. No. KCT 189T Toyota Harrier and failed to apportion liability in the ratio of 50:50 as between the driver of motor vehicle Reg. No. KCT 189T Toyota Harrier and the 2nd appellant. The particulars of negligence against the driver of motor vehicle Reg. No. KCT 189T Toyota Harrier were:i.Failing to slow, swerve, properly control motor vehicle Reg. No. KCT 189T Toyota Harrier or take any evasive measures to avoid the accident and or mitigate the injuries on a section of the road that was straight, flat and with no corners.ii.Driving motor vehicle Reg. No. KCT 189T Toyota Harrier at high speed to the extent that he was unable to slow down and stop to avoid colliding head on with motor vehicle Reg. No. KAW 432E/ZC/5556 that was being driven by the 2nd appellant.iii.Failing to heed the warning signs of the driver for motor vehicle Reg. No. KAW 432E/ZC/5556 which included hooting, flashing lights to alert him of the impeding danger.iv.Driving motor vehicle Reg. No. KCT 189T Toyota Harrier at high speed to the extent that after carelessly colliding with motor vehicle Reg. No. KAW 432E/ZC/5556 that was not in motion following a sudden engine failure, the said motor vehicle Reg. No. KCT 189T Toyota Harrier was pushed backward by about 25 meters after the impact, a clear indication that it was being driven at high speed.v.Driving motor vehicle Reg. No. KCT 189T Toyota Harrier while tired, fatigued and physically exhausted given the undisputed fact that the occupants of the said motor vehicle, including its driver had travelled on the night of 17th March 2017 from Mombasa to Kitui and arrived in Kitui on 18th March 2017 to attend a wedding ceremony. This is a clear indication that they travelled at night from Mombasa to Kitui, attended the wedding ceremony during the day on 18th March 2017 and travelled back from Kitui to Mombasa in the night of 18th March 2017 until the early morning hours of 19th March 2017 when the accident occurred.vi.Wilfully carrying excess passengers beyond the capacity of 5 passengers in motor vehicle Reg. No. KCT 189T Toyota Harrier.3. That the learned Magistrate erred in law and fact by failing to hold that physical exhaustion, failing to heed the warning signs by the 2nd appellant on the impeding danger, failing to stop, swerve or control his motor vehicle to avoid the accident, driving at high speed and careless driving on the part of the driver of motor vehicle Reg. No. KCT 189T Toyota Harrier were the major factors which made the late Martin Mbuta Mutua unable to carefully drive and control motor vehicle Reg. No. KCT 189T Toyota Harrier thus he was liable for the road traffic accident which occurred on 19th March 2017 to the extent of 50% in contributory negligence and liability.4. That the learned Magistrate erred in law and fact by awarding excessive arbitrary and unjustifiable amount of quantum of loss of dependency amounting to Kenya Shillings Four Million Eight Hundred and Eighty Five Thousand Two Hundred and Two (4,885,202/=) only when the same was not proved at all as it is required by law.5. That the learned Magistrate erred in law and fact by awarding the sum of Kshs. 4,885,202/= as quantum on loss of dependency when employment or monthly income of the deceased was not proved at trial on the balance of probability as it is required by law.6. That by awarding the sum of Kshs. 4,885,202/= as loss of dependency for the estate of the deceased, the learned Magistrate arbitrary and unreasonably exercised her judicial discretion as no factual or documentary evidence had been presented before the trial court by the respondents to arrive at such an award.7. That the learned Magistrate erred in law and fact by failing to appreciate and apply the principles set in law of what constitutes an income of an individual known as under the Income Tax Act whereby no tax returns were produced in court by the respondents to prove the deceased’s net income.8. That the learned Magistrate erred in law and fact by disregarding the submissions and authorities cited by the appellants in support of their defence case and proceeded to award judgment in favour of the respondents.9. That the quantum of damages is excessive, inordinately high and erroneous estimate of the damages awarded to the respondents with due regard to the weight and circumstances of the case.10. The appellants shall cave leave of court to amend, add, alter and/or omit any ground on or before hearing hereof.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Musungu Pekke & Company Advocates for the appellants, as well as the submissions filed by Gitonga Muriuki & Company Advocates for the respondents.

4. This being a first appeal, I have a duty to reconsider all the evidence on record, re-evaluate the said evidence and come to my own findings bearing in mind though that I did not have the opportunity to hear and see witnesses testify to determine their demeanour and give due allowance for that – see Selle v Associated Motor Boat Company Ltd [1968] EA 132.

5. These appeals being in a series, I am informed that appeal No. E006 of 2022 is the lead file. I note that in this and the other five appeals in the series, the submissions were on both quantum of damages awarded, and on liability.

6. This court has however already the issue of liability at 10%:90% in the lead file – Voi HCCA No. E006 of 2022, and I thus adopt liability of 10%:90% in this appeal also. Thus my substantive considerations in this appeal will be limited to assessment of quantum of damages and costs.

7. This being a civil case, the standard of proof is on the balance of probabilities, see the English case of Miller v Minister of Pensions [1942] 2 ALL ER 372.

8. In proving their case the plaintiffs (now respondents) called one witness PW1 Sylvester Makumi whose evidence was that he was husband of the deceased Faith Mukeli Kakeu with whom they had 2 children. It was his evidence that she sold fruits and was paid Kshs. 25,000/= monthly. He did not have any documentary proof of the employment, nor the monthly salary.

9. The defendants (now appellants) relied on the evidence of Joshua Mbithi Ngutu who testified in another case in the series.

10. Coming now to the quantum of damages awarded, I have to remind myself that assessment of damages is an exercise of discretionary power by a trial court and that an appellate court will be slow to interfere unless certain parameters are satisfied. In this regard, I am of the view that it will suffice if I cite only the case relied upon by the appellants counsel herein – Kemfro Africa Ltd & Another =Versus= Lubia & Another (1985) eKLR wherein it was 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 for 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.”

11. I note that in the present appeal, counsel for the appellant has proposed quantum of damages as follows:-a.Special damages Kshs. 10,200/=b.Pain and suffering Kshs. 20,000/=c.Loss of expectation of life Kshs. 100,000/=d.Loss of dependency Kshs. 1,520,064/=Sub-total Kshs. 3,982,084. 40Less 50% liability Kshs. 991,042. 20

12. ON my part, I note that in the judgment delivered on 28th February 2022, the trial Magistrate considered separately each head of award for damages. In that regard, I find no error committed by the trial court in assessing the quantum of damages for pain and suffering and for loss of life expectancy. I uphold the same.

13. With regard to the award for loss of dependency, the trial Magistrate considered the oral evidence on the income of the deceased, tendered by PW1, but went by the minimum wage guidelines. I uphold this.

14. The only error or misdirection I find, is the trial Magistrate’s finding under paragraph 25 of the judgment that the deceased productive working life would as well as go to 65 years and applying a multiplier of 35 years. As the general retirement age in Kenya is 60 years, and with no documentary evidence of the deceased’s employment, I am of the view that the highest productive age the trial court would go, should have been 60 years. I will thus reduce the multiplier of 35 years to 30 years.

15. As I have upheld the 10%:90% liability apportionment, I dismiss the appellant’s counsel proposal for 50%:50% liability.

16. Thus loss of dependency will be Kshs. 17,447/15 x 12 months x 30 years x 2/3 = Kshs. 4,187,280/=

17. As for special damages, I find no fault of the trial court, as the Magistrate awarded what was pleaded and proved on the balance of probabilities.

18. I thus set aside and vary the trial court’s award of damages for loss of dependency and order that the damages shall be as follows:-Pain and suffering Kshs. 20,000/=Loss of expectation of life Kshs. 100,000/=Loss of dependencyKshs. 17,447. 15 x 12 months x 30 years x 2/3Kshs 4,187,280/=Special damages Kshs. 10,500/=Sub total Kshs. 4,317,780/=Less 10% Kshs. 431,778/=Net total Kshs. 3,886,002/=The appellant will pay the respondent 50% of the costs of appeal.

Dated, signed and delivered this 5th day of June 2024 in open court at Voi virtually.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsMr. Were holding brief for Mr. Musungu for the appellantMr. Muriuki and Mr. Mbithi for the respondent