[2022] KEHC 12877 (KLR)

China National Aerotechnology International Engineering Corporation v Wanjala (Suing as the legal Administratix of the Estate of Enock Situma Michael (Deceased)) (Civil Appeal E005 of 2021) [2022] KEHC 12877 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12877 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Civil Appeal E005 of 2021

WK Korir, J

September 12, 2022

Between

China National Aerotechnology International Engineering Corporation

Appellant

and

Enlycah Nekesa Wanjala (Suing as the legal Administratix of the Estate of Enock Situma Michael (Deceased))

Respondent

(Being an appeal from the judgment and decree of Hon. S.K. Mutai, SPM delivered on 1/10/2021 in Kapenguria PMCC No. 2 of 2021; Elycah Nekesa Wanjala (Suing as the legal administratix of the estate of Enock Situma Michael (Deceased)) v China National Aerotechnology International Engineering Corporation)

Judgment

1. In the memorandum of appeal dated October 4, 2021, the appellant, China National Aerotechnology International Engineering Corporation, raises seven grounds of appeal as follows:i.That the learned trial magistrate erred in law and fact in holding the appellant 100% liable in negligence;ii.That the learned trial magistrate erred in law and fact by failing to apportion liability on the basis of contributory negligence on the part of the deceased;iii.That the learned trial magistrate erred in law and fact in failing to consider the submissions by the appellant on both the issue of liability and quantum;iv.That the learned trial magistrate erred in law and fact in using the wrong principles in the assessment of damages thereby arriving at an erroneous decision;v.That the learned trial magistrate erred in law and fact in awarding excessive damages for loss of expectation of life in view of the evidence on record;vi.That the learned trial magistrate erred in law and fact in adopting a multiplier of 25 years without taking into account life’s vicissitudes and vagrancies;vii.That the learned trial magistrate erred in law and fact by adopting a dependency ratio of 2/3 where the same was not proved.

2. This appeal was canvased by way of written submissions. the appellant filed written submissions dated May 6, 2022 while the respondent, Enlycah Nekesa Wanjala (suing as the legal administratrix of the estate of Enock Situma Michael (deceased)), filed submissions dated March 28, 2022.

3. The appellant identified and addressed two issues in its submissions. The first issue submitted upon by the appellant is that the respondent did not discharge the burden of proof as required by sections 108 and 109 of the Evidence Act. The appellant relied on the case of Evans Nyakwana v Cleophas Bwana Ongaro[2015] eKLR in support of the submission that he who alleges must prove. The appellant submitted that from the evidence on record, it was impossible to tell how the accident happened, where it occurred and who was on the wrong. According to the appellant, the evidence of the only eyewitness could not be relied on as he was the brother of the deceased. The appellant urged that if it is found to be liable then blame should be shared equally between the appellant and the deceased.

4. On the second issue regarding the assessment and quantum of damages, the appellant submitted that the awards of the trial court were excessive. On loss of expectation of life, the appellant relied on the case of Muriuki Ruth v Mueni Mbaluku & another[2020] eKLR to urge this court to reduce the award on this head from the Kshs 200,000/= awarded by the trial court to Kshs 100,000/=.

5. On the dependency ratio, the appellant submitted that no evidence was adduced to support the 2/3 ratio adopted by the trial court. The appellant also contended that no evidence was adduced to support the deceased’s income. The appellant further submitted that the multiplier of 25 years used by the trial court did not take into consideration the vicissitudes and vagrancies of life. The appellant relied on the cases of Mombasa Maize Millers Ltd v WIM, Kisumu HCCA 75/2015 and Pleasant View School Limited v Rose Mutheu Kithoi & another [2017] eKLR where the courts used multipliers of 20 years in regard to deceased persons aged 34 and 36 years respectively. Finally, the appellant submitted that without evidence to support the earnings of the deceased, the trial court ought to have adopted the gazetted minimum wage of a mason.

6. On its part, the respondent submitted that its case before the trial court was not controverted by the appellant and therefore remains unchallenged. Reliance was placed on the case of Catholic Diocese of Machakos & another v Janet Munaa Mutua & another (suing as the administrators of the estate of the late Simon Mukonzi(deceased)) to urge this court to find that in view of the unrebutted evidence, the trial court was right in apportioning full liability for the accident to the appellant.

7. The respondent also submitted that the awards of the trial court on the various heads were not excessive and this court should not interfere with them. In urging this court not to disturb the damages awarded by the trial court, the respondent relied on the cases ofCatholic Diocese of Machakos & another v Janet Munaa Mutua & another (supra) and Ainu Shamsi Hauliers Ltd v Faith Awino Sakwa (suing as the administrator of the estate of the late Ben Sigunda Okach(deceased).

8. Finally, the respondent submitted that the dependency ratio was proved by the chief’s letter which was produced as an exhibit at the trial. This court was therefore urged not to interfere with the findings of the trial court and instead dismiss the appeal.

9. Upon perusal of the memorandum of appeal, the record of the lower court proceedings as well as submissions of the parties, I find that the issues for the determination of this court are the apportionment of liability and the quantum of damages.

10. This being a first appeal, this court is mandated to analyze and re-examine the evidence adduced before the trial court and reach its own conclusions. However, in doing so, this court should take into consideration the fact that, unlike the trial court, it did not see the witnesses present their case. See the decision of the Court of Appeal inAbok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates[2013] eKLR.

11. Having stated the foregoing, I move to address the issue as to who was to blame for the accident. PW2 Wycliff Wang’ila Simba through his written statement testified that on the fateful day he was riding his motor cycle behind the deceased. When they reached near Tartar junction, motor vehicle registration number KCW 253Z which was heading to Makutano attempted to overtake another motor vehicle and it lost control and swerved knocking the deceased from behind. PW3 sergeant Janet Wafula who was the investigating officer testified that the appellant’s driver was to blame for the accident because he hit the motorbike of the deceased on its lane in the process of overtaking the deceased.

12. The evidence on record shows that the only eyewitness who testified was PW2. His testimony was that the appellant’s lorry was being driven at high speed. This testimony was corroborated by that of PW3 who told the trial court that the deceased was hit on his lane. The fact that PW2 was the brother of the deceased did not disqualify his testimony. The appellant never discredited the evidence of PW2 by way of cross-examination or by adducing rebutting testimony. The appellant did not call its driver as a witness so as to rebut the respondent’s case. PW3 testified that the driver of the appellant’s lorry disappeared after the accident hence rendering the investigations incomplete. It was upon the appellant to call evidence to rebut that of the respondent. In Rahab Micere Murage(suing asa representative of the estate of Esther Wakiini Murage) v Attorney General & 2 others [2012] eKLR, the Court of Appeal stated as follows:“… As stated earlier vehicles driven on public roads in a proper manner do not without cause become involved in accidents. It must be for that reason that the appellant accused the respondents of negligence. Since each of the three respondents had knowledge as to how the accident happened, they were duty bound under the law to call evidence to show either, which one of them was responsible for the accident or which one of them was innocent in the matter. All of them having failed to adduce evidence in that regard, the rebuttable presumption of fact is that all of them were in one way or another negligent, and through such negligence caused the accident in which the deceased died. It is not a presumption arising out of the doctrine ofres ipsa loquitur, but from the evidential burden as imposed under s 112 of the Evidence Act.…The burden was on the respondents to disprove negligence on their part as the cause of the accident was a matter especially within their knowledge but each of them failed to offer evidence in that regard as required by law…”

13. In the circumstances, I find that the evidence on record points to the driver of the appellant’s lorry as entirely to blame for the accident. It would have made a difference had the appellant advanced a contradictory narrative of how the accident occurred by calling witnesses. That having not been done, the only evidence on record pointed to the driver of the lorry of the appellant as the sole author of the accident. Apportionment of liability is not discretionary as it is determined by the evidence placed before the court by the parties. In this case, the evidence that was placed before the trial court unerringly pointed to the appellant’s driver, and by extension the appellant, as the causer of the accident. No case has therefore been made by the appellant to make me interfere with the finding of the trial court that the appellant was 100% to blame for the accident.

14. The next issue is whether the trial court relied on the wrong principles of law in awarding damages and whether the awards were inordinately excessive to warrant interference by this court. It is important to point out that in exercise of its appellate jurisdiction, this court can only interfere with the award of damages where the appellant demonstrates that the trial court acted on the wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the injury suffered. See the decision of the Court of Appeal inGitobu Imanyara & 2 others v Attorney General[2016] eKLR.

15. In answering the question on the quantum of damages, I will be guided by the awards made by the courts in similar matters. The appellant did not challenge the award of Kshs 20,000/= for pain and suffering by the trial court. That award having not been made a subject of this appeal will therefore not attract any comment from this court.

16. The appellant, however, took issue with the award of Kshs 200,000/= for loss of expectation of life. The appellant urged this court to consider reducing the same to Kshs 100,000/=. In submissions made before the trial court, the appellant had proposed an award of Kshs 80,000/= toKshs 100,000/= on this head. The respondent asked for Kshs 200,000/=. One of the decisions cited before the trial court by the respondent was the case ofCatholic Diocese of Machakos & another v Janet Munaa Mutua & another [2021] eKLR where an award ofKshs 200,000/= for loss of expectation of life was upheld on appeal. The award of Kshs200,000/= for loss of expectation of life was therefore based on a decided case and it cannot be said to be inordinately high. I therefore find no good reason for interfering with this award and the appeal against the award for loss of expectation of life therefore fails.

17. The final issue is whether the award for Kshs 2,190,940/= for loss of dependency by the trial court is inordinately excessive. The trial court in making the award adopted the multiplier approach. The court noted that the deceased was a mason aged 32 years with a service lifespan of about 60 years. The trial court invoked the statutory minimum basic salary for a mason being Kshs 10,954. 70 and adopted 25 years as the multiplier. Further, the dependency ratio of 2/3 adopted by the trial magistrate was based on the evidence of PW1 that the deceased left behind two dependants. InEasy Coach Limited v John Thomas Akalongo & another [2014] eKLR, the Court of Appeal held as follows:“It is not in dispute that at the time of her death, the deceased was 24 years old. So to the retirement age of 60, she had a remaining working life of 36 years and perhaps more as she was in the private sector whose retirement age is, in most cases, more than the government one of 60 years. So the multiplier of 30 years that the learned Judge applied is not so inordinately high as to represent an erroneous estimate. Although put in her position we would have applied a lesser multiplier, the law is that we should not substitute our view with that of the trial judge. We therefore have no legal basis for disturbing the multiplier of 30 that the learned judge applied. The appeal on that issue must also fail.”

18. In the case at hand, the choice of the multiplier and the multiplicand by the trial court cannot be said to be excessive so as to warrant interference with the figures by this court. I find no fault in the judgment of the trial court on this aspect and the appeal on this issue fails.

19. The conclusion is that the appeal fails in its entirety and is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF SEPTEMBER, 2022W. KORIR,JUDGE OF THE HIGH COURT