[2022] KEHC 13670 (KLR)

Chebet & another v Makoha & another (Suing as the legal representative of the estate of the late Sammy Wamalwa Seme) (Civil Appeal 75 of 2021) [2022] KEHC 13670 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13670 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 75 of 2021

RN Nyakundi, J

October 12, 2022

Between

Wilson Kaino Chebet

1st Appellant

Shadrack Kiprotich

2nd Appellant

and

Beatrice Naliaka Makoha

1st Respondent

Sara Njeri

2nd Respondent

Suing as the legal representative of the estate of the late Sammy Wamalwa Seme

(Being an appeal against the judgment of Hon. E. Kigen (S.R.M) at Eldoret CMCC No. 779 of 2019 delivered on 2nd July, 2021)

Judgment

1. The appeal is both on quantum and liability. In the trial court, the respondent had sued the appellants claiming general and special damages pursuant to the Law Reform and Fatal Accidents Act, arising from a fatal road accident involving the motor vehicle registration number KBT 472F and the motor vehicle registration number KCA 795Z Fuso lorry owned by the 1st appellant and driven by the 2nd appellant at the material time. The deceased a one Sammy Wamalwa Seme, was driving motor vehicle registration number KBT 472F sustained serious injuries from which he died.

2. In their joint statement of defence dated May 5, 2020 the appellants denied the occurrence of the accident. Alternatively, they blamed the driver of the motor vehicle registration number KBT 472F for causing the accident

3. After the hearing, the court entered judgement in favour of the respondents as follows: -Liability -100%Pain & suffering – Kshs 30,000/=Loss of expectation of life – Kshs 80,000/=Loss of dependency- Kshs 3,724, 560/=Special damages – Kshs 54,050/=Total – Kshs 3,888,610/=

4. Aggrieved by the findings both on quantum and liability, the appellants now seek to overturn the judgment citing (8) grounds which can be summarized into two, namely, (a) that the trial magistrate erred in law in assessing manifestly excessive damages (b) that the learned magistrate erred in law in finding the appellants 100% liable. The appellants pray that this court reviews and or sets aside the findings on liability and quantum and that the costs of the appeal be borne by the respondents.

The Appellants Submissions 5. The appellants filed their submissions dated July 25, 2022 on July 26, 2022.

6. The appellants do not deny the occurrence of the accident. However, the only issues for determination raised by the appellants were; who is to blame for the accident and what damages are payable if any.

7. On the issue of liability, the appellants submitted that the respondents did not prove their case on a balance of probability.

8. That PW2 told the court that he was not the investigating officer did not witness the accident. PW1 did not have the court file with him, there were no sketch plan produced in court rather the only document produced in court was the police abstract which is not conclusive prove for causation of the accident. The appellants relied on the decision in Kennedy Nyagoya v Bash Hauliers(2016) eKLR where the court held that the evidence of the police abstract produced by PWI who was not the investigating officer did not assist the plaintiffs’ case.

9. The appellants further submitted that PW3 had told the court during cross-examination that he saw the lorry after alighting. The appellants contend that his testimony cannot be relied on as he saw the lorry after alighting and it was at night and could not therefore have seen the lorry knock the nissan.

10. The appellants submitted that burden of proof in an action for damages for negligence rests primarily on the party, who alleges a fact must proof.

11. The appellants faulted the trial magistrate for not taking into account the statement of DW1 which provided the exact occurrence of the accident. That DW1 told the court that motor vehicle registration number KBT 472F was being driven at an excessive speed from Eldoret and it encroached on his lane and an attempt to void a collision he hooted, flashed lights and served to the far left end of the road but unfortunately the said driver rammed into his lorry. The appellants submitted that the deceased is to wholly blame for the accident. Thus, the trial magistrate therefore erred in both law and fact in holding that the appellants were 100% liable for the occurrence of the said accident.

12. On quantum, the appellants proposed Kshs 10,000/= for pain and suffering. The appellants cited the case of Jacinta Ruguru (suing as the legal representative of the estate of the late Isaac Mutuke Nyaga) v Beatrie Muthoni Muthike [2021]eKLR

13. The appellants further submitted that the trial magistrate erred in law and in fact in using a multiplier of (30) years without taking into account vicissitudes of life and life expectancy. The appellants urged this court to find that 12 years would have been the appropriate multiplier. The appellants relied on the case of James Gakinya Karienye & another (suing as the legal representative of David Kelvin Gakinya (deceased) vPerinus Kariuki Githinji [2015] eKLR.

The Respondents’ Submissions 14. The respondents opposed the appeal and filed their submissions dated June 29, 2022 on the same day.

15. The respondents submitted that PW2 testified that the lorry was being driven on the wrong side of the road when the accident occurred. That PW3 an eye witness testified that on the material day of the accident he was heading to Kitale from Eldoret and on reaching Moi’s Bridge there was an oncoming lorry which left it lane and knocked the driver’s side of the nissan which was heading towards Eldoret.

16. The respondents further that submitted that DW1 had confirmed that he was driving the said lorry. The respondents also contend that although DW1 blames motor vehicle registration number KBT 472F for the accident, the owner of the said motor vehicle was never enjoined to the suit as a third party and or a co-defendant and liability will not attach to a party who non-suited and blameless. The respondents also contend that although the 2nd appellant attempted to shift blame to motor vehicle registration number KBT 472F, he did not call evidence to support his allegations. The respondents maintain that DW1 admitted in his statement that visibility was not clear when the accident occurred.

17. The respondent maintain that the findings on liability by the trial court were therefore proper.

18. On loss of dependency, the respondents submitted that the deceased died aged 27 years and was in good health. The respondents further submitted that the deceased used to work with gotv and used to receive a gross salary of Kshs 17,000/= per month. That the trail court adopted the net pay of Kshs 15,519 whilst it should have adopted the gross pay of Kshs 17,000/= per month.

19. The respondents further submitted that the deceased was the saole bread winner of family and left the following dependants; his wife, sons, daughters and mother. The respondents argued that the dependency ratio of 2/3 adopted by the court was therefore reasonable. The respondents also submitted that the multiplier of 30 years is also reasonable considering the deceased was employed by gotv in the sales and marketing department and would have worked up to the aged of 60.

20. On loss of life expectation, the respondents submitted that the award of Kshs 80,000/= was reasonable as the deceased was aged 27 years of age and had prospects of living long.

21. On pain and suffering, the respondents submitted that the deceased suffered a lot of pain before his demise and therefore the award of Kshs 30,000/= made by the trial court was therefore reasonable.

22. On special damages, the respondents submitted that the same were pleaded and supported by receipts.

Determination 23. Being a first appeal the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd & others [1968] 1EA 123:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

24. The facts speak for themselves that an accident indeed occurred on December 5, 2018 involving motor vehicle registration number KCA 795Z Fuso lorry driven by the 2nd appellant, and a motor vehicle registration number KBT 472F being driven by the deceased.

25. The appellants contend that the deceased is wholly to blame for the occurrence of the said accident.Bundi Murube v Joseph Omkuba Nyamuro[1982-88]1KAR 108 had this to say; -“However, a court on appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably, to have acted on wrong principles in making the findings he did.” and also, in Rahima Tayabb & another v Ann Mary Kinamu [1982-88] 1KAR 90 Law JA also stated; -“An appellant court will be slow to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanor of witnesses who has given evidence before him.”Whereas it is true the accident involved two vehicles the burden of proof that the accident was caused by negligence on the part of respondent that is the issue which stood out throughout the trial and final judgment of the learned trial magistrate.Ciabaitani M’Mairanyi & others v Blue Shield Insurance Co Ltd CA No 101 of 2000(2005) 1EA 280 held that; -“Whereas under section 107 of the Evidence Act, which deals with the evidentiary burden of proof, the burden of proof lies upon the party who invokes, the aid of the law and substantially asserts the affirmative of the issue. Section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the court to believe in its existence.”Lord Denning in Miller v Minister of Pensions [1947] 2 All ER at 374 held as follows;“If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to determinate conclusion the way or the other, then the man must be given the benefit of doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. The degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘We think it more probably than not’, the burden is discharged, but, if the probabilities are equal, it is not.”

26. The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a causal connection must be established.To prove causation, it does not suffice for the claimant to show merely that the defendant’s conduct caused the harm complained of, but must go further to link his or her damage to the defendant’s negligence. In law the proximate cause of an accident though linked to a cause in fact is considered a separate element by itself. The element commonly referred as proximate cause may be very different from the issue of factual causation. The authors of Winfield and Jolowicz on Tort, 20th ed (2020) suggest that the tort of negligence is constituted by those four elements which they place in order as (i) the duty of care, (ii) its breach, (iii) damage and (iv) causation (para 5-002). They point out that a given fact pattern can put several elements in issue simultaneously and that the elements are interlinked. They suggest that it is conventional for the courts to address the elements of the tort in sequence with the question of duty being a threshold question (para 5-007):“Taking the elements of the tort in this order can help judges to structure their decisions and to ensure that elements are not overlooked. Furthermore, the order in which the elements of the tort are considered is important because they form an integrated whole, in which one element can be defined and analysed only in terms of the other elements. For example, as questions of causation and remoteness concern the link between the breach of duty and the damage, it is important to look at fault and damage before looking at causation.”The court inOverseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound)[1961] AC 388, in which Viscount Simonds, delivering the advice of the Board, stated (p 425): stated as follows; “It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air … It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other.”This is the jurisprudence applicable to our local circumstances as stated inRosemary Wanjiru Kungu v Elijah Macharia Githinji & another(2014) Eklr and Beauty Line Ltd v David Njuguna Gichari (2012)Eklr.Likewise inKenya breweries limited v Godfrey odoyo civil suit No 127 of 2007, it was held that a duty of care is owed to a neighbor. And who is a neighbour, the court quoted the famous neighbor principle ‘you must take reasonable care to avoid acts and omissions which you can reasonably foresee are likely to injure my neighbour. who then in law is my neighbour, are persons who are so closely and directly affected my act that I ought to reasonably have them in contemplation when I am directing my mind to acts and omissions which are called in question’

How Do These Principles Apply To The Instant Appeal? 27. During the trial PW2 No 45789 CPC Simon Nyangeri testified that he had come to court to produce the police abstract (PEX7) in respect of the accident which happened on December 5, 2018. PW1 further testified that the lorry was being driven on the wrong side of the road when the accident occurred and the driver of motor vehicle registration number KBT 472F died on the spot. On cross-examination, PW2 admitted that he was not the investigation officer.

28. PW3 Richard Barasa Wasike, testified that he witnessed the occurrence of the accident. He told court that on the material day he was travelling to Kitale from Eldoret and on reaching Moi’s Bridge there was an oncoming lorry motor vehicle registration number KCA 795Z and the Nissan was heading to Kitale when the said lorry left its lane and knocked the driver’s side of the nissan. He also told court that he blamed the lorry for the occurrence of the accident.

29. I have evaluated the evidence by Mr Richard Barasa Wasike, particularly, the evidence that the lorry motor vehicle registration number KCA 795Z left its lane and knocked the driver’s side of the Nissan. It evident that the motor vehicle registration number KCA 795Z left it lawful lane before knocking the nissan on the driver’s side. PW2 also produced a police abstract confirming occurrence of the accident in which James Magak was killed. There is no evidence to the contrary.

30. From the evidence on record, there was no rebuttal on the part of the appellants on how else the accident would have occurred for the court to apportion blame on the deceased.

31. In light of the foregoing, I find no reason to fault the learned magistrate’s findings on 100% liability as against the appellants. The invitation to this court to apportion liability equally is not supported by the evidence on record.Whether the claim on general and special damages should be interfered with by this court?Being an appeal against the award of damages, the principles that guide this court as the first appellant court were as set out in Henry Hidaya Ilanga v Manyema Manyoka (1961)1 EA 705 where the court stated “In considering this question, I apply the rule laid down by the Privy Council in Nance v British Columbia Electric Railway Co Ltd (4) (1961) AC 601 at P613 when discussing the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a judge;“The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellant court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case in the first instance. Even if the tribunal of first instance was a judge, sitting alone before the appellate court can properly intervene it must be satisfied either that the judge in assessing damages, applied a wrong principle of law (as by taking into account some irrelevant factors or leaving out of account some relevant one); or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, (1935) 1KB.354, approved by House of Lords inDavis v Powell Duffryn Associated Collieres Ltd (1942) AC 601)”

32. Award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.

33. The appellants’ have also faulted the trial magistrate for adopting the multiplier of 30 years without take into account the vicissitudes of life and life expectancy.

34. The evidence on record from the materials placed before court indicates that the deceased was 27 years at the time of his death and was employed gotv and used to earn a net pay of Kshs 15,519/= per month. According to the chief’s letter on record, the deceased was survived by his wife and five children. The court finds no good reason adduced by the appellants to disturb the multiplier adopted by the trial court and the final award given by the trial magistrate.

35. The trial court awarded Kshs 30,000/= for pain and suffering. The appellants contend that the same should be reduced to Kshs 10,000/= as the deceased died on the spot. The generally accepted principle is that very nominal damages will be awarded for pain and suffering.

36. In my view the award of Kshs 30,000/= for pain and suffering is not manifestly excessive as there are High Court authorities to support it. I find no compelling evidence by the appellant to review the award on pain and suffering limb. In the light of the foregoing, the appellant’s appeal fails and is hereby dismissed in its entirety.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12THDAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiM/S Mwinamo Lugonzo & CO. Adv for respondentsM/S Onyinkwa & CO. Adv for appellants