[2022] KEHC 969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO.643 OF 2017

CITY HOPPER LIMITED.........................................................................1ST APPELLANT

FREDRICK GITHAGIA WERU..............................................................2ND APPELLANT

JOHN NJOROGE MUHIA.......................................................................3RD APPELLANT

VERSUS

ROSE KIRIMI NJOROGE (suing as the Legal Representative of the estate of

LOISENYAMBURA NYAMBURA.............................................................RESPONDENT

(Being an appeal from the judgment/decree of the Honourable Ocharo,

Senior Resident MagistrateSRMC No. 3515 of 2009

delivered on 27th October, 2017)

JUDGMENT

1. The respondent filed a suit in the lower court seeking generaldamages under the Law Reform Act and the Fatal Accidents Act (FAA) on behalf of the Estate of Loise Nyambura Nyambura pursuant to a fatal road accident on 13th March 2008 along Muthithi/Mpaka Road. She also prayed for special damages, costs of the suit and interest.

2. The appellant filed his statement of defence denying the entireclaim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondents and assessed damages as follows;

Pain and Suffering……………………....Kshs.100,000/=

Loss of expectation of life………………….Kshs.150,000/=

Loss of dependency……………………….. Kshs.7,600,000/=

Special damages……………………………Kshs.327,281/=

Total……………………………………………Kshs.8,177,281/=

3. The appellant being aggrieved preferred this appeal and putforward the following grounds

a. That the learned Magistrate erred in law and in fact by failing to give cognizance to the Appellant’s explicit submissions on special and general damages.

b. That the learned Magistrate erred in law and in fact in finding for the Respondent against the Appellant on liability against the weight of evidence.

c. That the learned Magistrate erred in and in fact by treating the evidence by witnessed in an unbalanced manner to wit:

i. While the Learned Magistrate was willing to take the Respondent’s witness evidence at its face value merely because it was made on oath,she rejected the Appellant’s evidence notwithstanding that it was made on oath as well

ii. The learned Magistrate ignored now settled principles laid of proof of special damages and general damages in fatal accident cases,

d. That the learned Magistrate erred in law and in fact by finding that the Respondent has proved her case against the Appellants the required standard of a balance of probabilities.

e. That the learned Magistrate erred in law and in fact by making a decision on damages that was against the weight of evidence and not supported by law.

f. The Learned Magistrate delivered the judgment on 27th October 2017 without notice to parties.

4. Directions were given that the appeal be canvassed by way ofwritten submissions. Accordingly, the parties complied and filed their respective submissions

5. The appellants on the issue of liability, submitted that there wasno eye witness account by the plaintiff during the hearing at the lower court as per Section 107 of the Evidence Act Cap 80 Laws of Kenya and that the burden of proof was on the plaintiff /1st respondent but she did not discharge the same.

6. The appellants also pointed out that the police officer whotestified in the matter gave hearsay evidence as he was not at the scene, was not the investigating officer, tendered no witness statement or a sketch plan.

7. The appellant relied on the case of Robert Okeri Ombeka vCentral Bank of Kenya (2015) eKLRwhere the court of Appeal stated as follows:

“Our position is further buttressed by the provisions of theSection 112 of the Evidence Actwhich states that:

“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

8. The appellant submitted that the 1st respondent did not proveher case and that the burden has always been on her to prove her case which aspect the trial court never considered of which it never shifted. They further submitted that the law is that, when a court is not able to decide who was at fault then the court can apportion blame equally.

9. On this the appellants relied on the case of Hussein Omar Farahv Lento Agencies (2006) eKLRwherein the Learned Justices of Appeal quoting with approval Barclay Steward Ltd & Another v Waiyaki (1982-88)1 KAR 1118stated as follows

“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of BARCLAY – STEWARD LIMITED & ANOTHER VS. WAIYAKI [1982-88] 1 KAR 1118, this Court said:-

“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”

19. The Court stated further that:-

“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”

10. It is the appellant’s submissions that the deceased pedestriancontributed largely to the accident by crossing the road at the T-junction where there was no zebra crossing or pedestrian bridge and as such the trial court should have found equal contribution to the accident by the 3 parties, giving a contribution of 33. 3 % to each.

11. On the issue of quantum, the appellants submitted that theplaintiff/respondent failed to discharge her burden of proof. It is their submissions that no evidence of earnings of Kshs.50,000/=,no bank statements of the deceased’s paid business licenses and permits to confirm business operation expenses, no evidence of rent payment or school fees for children that were left behind, no evidence of contracts by cleaning company allegedly owned by the deceased and no proof of the deceased owned another company for supplies.

12. The appellants contend that in the absence of evidence of thoseearning, the learned Magistrate ought to have applied minimum wages at the time of the delivery of judgment which was regulation of wages (general amendment)Order 2017 which was Kshs.21,942. 30/= for the nature of the work of the deceased and adopt it as the multiplicand.

13. It is the appellant’s submission that the claim of Kshs.50,000/=was akin to the nature of special damages that ought to have been proved. The plaintiff relied on the case of Court of Appeal decision in William Kiplangat Marttim & Another v Benson Omwenga CA No. 180 of 1993 cited with approval by the Court of Appeal in Robert Okeri v Central Bank of Kenya (2015) eKLR where it was stated as follows:

“As we have pointed out at the beginning of this judgment Mr Lakha readily agreed that these sums constituting the total amount were in the nature of special damages. They were not pleaded. It is now trite law that special damages must not only be pleaded but must also be specifically proved. We do not think we need to cite any authority for this simple and hackneyed proposition of law.””

14. The appellant therefore contends that the claim ofKshs.50,000/= as monthly income having not been pleaded and proved cannot stand and as such the same ought not be adopted as the multiplicand by the lower court.

15. On the issue of multiplier, the appellant submitted that theLearned Magistrate took the deceased’s age and retirement age and got a figure of 19 that he used as the multiplier however he forgot to reduce that figure so as to take into account the vicissitudes of life like sickness, accidents that could lead to incapacitation or early retirement and or death.

16. The appellant on this relied on the guiding principles for choosinga multiplier were laid down by Nambuye J .A in Cornelia Eliane Wamba v Shreeji Enterprises Ltd & Others H.C.C.C No.754 of 2005 quoted with approval by the Court of Appeal in Board of Governors of Kangubiri Girls High School & another v Jane Wanjiku Muriithi & another (2014) Eklrat

a. The choice of a multiplier is a matter of the courts discretion which discretion has to be exercised judiciously and with a reason.

b. It is common ground that since the deceased was not permanently employed in an establishment with a retirement age bracket for its staff it is not possible to fix a retirement age.

c. The nature of the profession engaged in also counts. Herein it is common ground that there is no fixed retirement age in the profession of journalism. One can work as long as he wished.

d. Death through natural causes and departure for greener pastures elsewhere is also a factor.”

17. The appellant therefore submits that the 19 years multiplieradopted by the learned Trial Magistrate should have been reduced by 5 years to give a multiplier of 14 years reasonably.

18. In response, the 1st respondent on the issue of liability submittedthat the learned Magistrate in his judgment relied on the evidence of the appellants and the 2nd respondents as he found there was no other independent evidence on the occurrence of the accident.

19. The 1st respondent further submitted that the Learned Magistratewas making reference to the fact that there was no sketch map of the accident scene.

20. It is the 1st respondent’s submission that as from thecircumstances of the accident and the testimony of the 2nd appellant, the deceased was not crossing the road at the junction and was not in the junction when the collision occurred therefore she could have not contributed to the accident. That the deceased was injured in the aftermath of the collision.

21. In support the 1st respondent was guided by the findings in thecase of Hussein Omar Farah v Lento Agencies (2006) eKLR where it was held as follows:

“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. In the case of BARCLAY – STEWARD LIMITED & ANOTHER VS. WAIYAKI [1982-88] 1 KAR 1118, this Court said:-

“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it.”

The Court said further:-

“The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.”

22. On the issue of apportionment of liability, the 1st respondentpointed out that neither the appellant nor the 2nd respondent filed a Co-defendant’s notice and are therefore precluded from claiming indemnity/apportionment of liability from each other. The 1st respondent submits that that they were rightly held jointly 100% liable for the accident. On this the respondent relied on the case of Stephen Kagooivo v Joseph Waithaka Kabai & 3 Others Nairobi HCCC No.1089 of 1988 (unreported) where it was stated as follows:

“I hasten to add that it is not open to me in these proceedings to order any contribution as between the defendant’s. Defendants who desire such an order must file a notice of such claim under the provisions of Order 21 of the Civil Procedure Rules. If such a notice is not filed and the defendants desire an order of contribution they must initiate a claim for contribution by separate action.”

23. On the issue of loss of dependency the 1st respondent submittedthat the deceased was a business lady who had two business that were involved in supplies and cleaning services as well as a beautician and that documentary evidence had been produced at the trial in support of the facts to show that made an average of Kshs.50,000/= per month.

24. It is therefore the 1st respondent’s submission that the LearnedMagistrate rightly found a balance of probability that the 1st respondent had proved the multiplicand of Kshs.50,000/= based on the documentary evidence produced. The 1st respondent relied on the case of Hellen waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited (2015)eKLR where it was held as follows:

“This Court has had occasion to contextualize the society in which we live in relation to the requirement for strict proof of damages. In the case of Jacob Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No. 167 of 2002 [2005] eKLR the Court observed:-

“We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things”.

25. The 1st respondent submitted that the deceased died at the ageof 41 years as evidenced by the certificate of death and the trial court applied a multiplier of 19 years based on the mandatory age for retirement age in Kenya is 60 years .It is therefore the respondent’s submission that the learned magistrate did not proceed on the wrong principles by using a multiplier that was the difference between the age the deceased died and mandatory retirement age.

26. The 1st respondent testified that the deceased died leaving behindtwo minor children and their parents and that the trial court applied 2/3. It is therefore the 1st respondent’s submissions that in the said circumstances the ratio was appropriate and that the award of Kshs.7,600,000/= was not arrived at using the wrong principles neither is it inordinately high to warrant this court’s interference .

27. On the issue of pain and suffering, the 1st respondent submittedthat the accident occurred at 7 am and the deceased died in hospital at 2pm and that the 1st respondent confirmed having spoken to her at the hospital, therefore taking into account the gruesome circumstances leading to the death of the deceased, it is inconceivable the pain she suffered before she passed.

28. The 1st respondent submits that the award of Kshs.100,000/=was justified. The respondent relied on the case of Alexander Okinda Anagwe (Suing as the Administrator of the Estate of Patricia Kezia Anagwe Deceased0 v Reuben Muriuki Kahuha & 3 Others Nairobi HCCC No.1550 of 2005 wherein the deceased therein died on arrival at Kenyatta Hospital and the Court awarded Kshs.100,000/= as damages under this head.

29. On the issue of loss of expectation of life, the 1st respondentsubmitted that the trial court made an award of Kshs.150,000/= and pray the award is upheld. On this the 1st respondent relied on the case of George Moga v Nairobi Women’s Hospital & 3 Others (2015) eKLRwherein the deceased was aged 41 years at the time of her death and the court awarded Kshs.150,000/= for loss of expectation of life.

30. On the issue of special damages the 1st respondent submittedthat they proved the pleaded figure and the finding of the Learned magistrate with respect found that Kshs.327,281 was proved but was erroneous and pray for the sum of Kshs.329,631/- be allowed.

31. This is a first appeal and this court has a duty to re-examine andre-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that.

32. I have considered the contending submissions and authoritiescited on appeal. I have likewise re evaluated the material placed before the trial court. I find two issues falling for determination namely;

i. Whether the appellants were 100% liable for the accident.

ii. Whether the award of damages was excessive as claimed.

33. On the issue of liability, the appellant submitted that there wasno eye witness account by the plaintiff during the hearing at the lower court.

34. That under Sections 107 and 108 of the Evidence Act Cap 80Laws of Kenya, the burden of proof is on he who alleges. Further provisions contained in Section 112 of the Evidence Act place the burden of proof on the party with knowledge of certain facts.

35. They further submitted that the police officer who testified in thematter gave hearsay evidence as he was not at the scene, was not the investigating officer, tendered no witness statement or a sketch plan.

36. Revisiting the evidence on record during the trial, PW1 –PCJustus Chimbevo produced a copy of the police abstract and the occurrence book extract confirming the occurrence of the accident.

37. According to the occurrence book extract the motor vehicle KAV492S driven by the 2nd defendant failed to give way to motor vehicle registration number KBA 205Q driven by the 3rd defendant as a result, a collision ensued. As a result of the said collision the deceased was violently knocked down by motor vehicle registration KAV 492S.

38. On the other hand the DW1 testified that while he was lawfullydriving his car at a speed of 40km/hr motor vehicle KBA 205Q which was joining Muthithi Road from Mpaka collided, where upon both vehicles lost control and hit the pedestrian who was crossing Muthithi Road leading to Westlands.

39. According to the Trial Magistrate the accident occurred in themiddle of the junctions suggests that neither the 2nd defendant nor the 3rd defendant slowed down to give way to each other. That they both drove through the T-junction without due care and attention thereby resulting to an unnecessary collision as a result of which a lady crossing the road (the deceased) was crushed. He therefore found the 2nd and 3rd defendants equally liable for the accident and held each 100% liable.

40. Lord Reid in Stephany V Gypsum Mines Ltd (2) (1953) AC 663P.681 stated as follows,concerning determination of what caused an accident:

‘ …….One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.’

41. In my humble view, a motorist who finds himself in such anenvironment bears the greater responsibility of driving, managing or controlling his vehicle in such a manner as to avoid any sort of collusion with any member of the public. He must therefore not only drive at a manageable speed but he must also keep a proper lookout for any eventuality.

42. However, it is apparent from the evidence tendered before thecourt that both drivers of the two motor vehicles were equally to blame for the accident. Therefore, the trial magistrate did not err in so finding that the 1st ,2nd and 3rd defendants were jointly and severally liable for the respondent’s fatal injuries at 100%. None of the drivers and or owners of the motor vehicles had counter-claimed seeking for apportionment of liability, therefore the trial court oud not make a finding on that issue.

43. I now move to the second issue which is on the award of damages.

44. Awarding damages is largely an exercise of judicial discretion andthe instances that would make an appellate court interfere with that discretion are well established. In Butt –vs Khan (1977)1KAR

45. The trial court awarded Kshs. 150,000/= for Loss of Expectationof Life and Kshs. 100,000/=for Pain suffering both under the Law Reform Act. The deceased was injured in the accident at 7. 00 a.m and was rushed to MP Shah Hospital where treatment commenced and later succumbed to her injuries at 2. 00 pm of the same day. It is PW1 testimony that the deceased did not die instantaneously, she must have suffered a lot of pain before she died.

46. In my view the award of Kshs.100,000/= for pain and sufferingis not manifestly excessive in the instant case and is in line with awards given in similar cases. In the case of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) 2019 eKLRit was observed that:

“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs.100,000/= while for pain and suffering the award range from Kshs.10,000/= to Kshs.100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

47. The trial court awarded Kshs.150,000/= for loss of expectationof life. In In the case of Moses Akumba & Another v Hellen Karisa Thoya (2017) eKLR Chitembwe J. held that an award of Kshs.200,000/= for loss of expectation of life for a deceased who was a fisherman was not inordinately high.

In my view I find the award of Kshs.150,000/= to be adequate just as the trial court had awarded.

48. On loss of dependency, the appellants submitted that in theabsence of evidence of earnings the learned magistrate ought to have applied the minimum wages at the time of the delivery of the judgment being the regulation of wages (general amendment Order 2017) which was Kshs.21,942/= .

49. The deceased died aged 41 years and was a business woman whooperated business under two different names namely Rony Delight Enterprises and Lovic Cleaning Services. Bank statements were produced as evidence that deceased used to earn a net income of Kshs.50,000/=a month.

50. That the trial magistrate applied a multiplicand of Kshs.50,000/=according to the bank statements produced. The court also used dependency ratio of 2/3 and multiplier of 19 years.

51. On the other hand the appellants submitted that a multiplier of19 years adopted by the trial court should have been reduced by 5 years to give a multiplier of 14 years reasonably.

52. In ROGER DAINTY v MWINYI HAJI & ANOTHER [2004] eKLRthis Court held that what is a reasonable multiplier is a question of fact to be determined from the peculiar circumstances of each case. In the same appeal, the court held:

“To ascertain the reasonable multiplier in each case the court would have to consider such relevant factors as the income of the deceased, the kind of work the deceased was doing, the prospects of promotion and his expectation of working life.”

53. Having re-evaluated the evidence tendered to establishdependency and the applicable multiplicand I find that there is evidence of earnings and income by the deceased by way of bank slips. However those earnings do not establish the earnings ksh.50,000/= per month. The learned trial magistrate erred in applying a multiplicand of kshs.50,000/=

54. I am also not convinced that the minimum wage regulationsshould apply since the deceased was engaged in business as opposed to formal employment the recent bank slips which were produced in court in 2006 range from kshs.6,500/= and ksh.8,000/=. I will apply an average sum of kshs.l7,000/= as the monthly income.

55. I find the multiplier of 19 years and the dependency ration of 2/3to be reasonable. The award on loss of dependency given by the trial court must be interfered with. Consequently the award of kshs.7,600,000/= is set aside and is substituted with an award of kshs.1. 064,000/= which is tabulated as follows 7,000x19x12x2/3=1,064,000/=.

56. In the end, the appeal as against the decision on liability isdismissed. The appeal as against the award on quantum partially succeeds. For avoidance of doubt judgment on appeal is as follows:

i. General damages

a. Pain & suffering ksh. 100,000/=

b. Loss of expectation of life ksh. 150,000/=

c. Loss of dependency ksh.1,064,000/=

ii. Special damages ksh. 327,281/=

Grand total ksh.1,641,281/=

iii. Special damages to attract interest at court rates from the date of filing suit until the date of full settlement.

iv. General damages to attract interest at court rates from the date of judgment until the date of full payment.

v. Parties to meet their own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022

..........................

J. K. SERGON

JUDGE

In the presence of:

..........................................for the 1st Appellant

..........................................or the 2nd Appellant

.........................................for the 3rd Appellant

........................................... for the Respondent