[2023] KEHC 24818 (KLR)

Eleshadai Junior Academy Co Ltd & another v Maina (Suing as personal representative of Faith Wambui Wairimu (Deceased) & another (Civil Appeal 64 & 65 of 2018 (Consolidated)) [2023] KEHC 24818 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24818 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 64 & 65 of 2018 (Consolidated)

LM Njuguna, J

November 3, 2023

Between

Eleshadai Junior Academy Co Ltd

1st Appellant

Wamai Njogu Geoffrey

2nd Appellant

and

Geoffrey Chomba Maina (Suing as personal representative of Faith Wambui Wairimu (Deceased)

1st Respondent

Cecilia Waithira maina (Suing as personal representative of Charles Kinyua Maina (Deceased)

2nd Respondent

(Appeal from the Judgments of Hon. M. Kivuti RM, in Senior Principal Magistrate’s Court Baricho Civil Case Number 133/2017 & 59 of 2018)

Judgment

1. These are appeal numbers 65 and 64 of 2018 (consolidated) arising from the decisions of the court in the Senior Principal Magistrate’s Court Baricho Civil Case Numbers 133/2017 and 59 of 2018 both of which were delivered on the 08th November 2018, seeking the following orders:a.That the appeal be allowed;b.The decisions of the learned magistrate on liability and quantum be set aside; andc.The suits be dismissed with costs.The appeals are premised on the grounds that the learned magistrate erred in fact and in law by:a.By apportioning liability in the ratio of 50%:50%;b.Adopting an erroneous multiplier and multiplicand in assessing damages for loss of dependency when dependency was not proved in the case of the 2nd respondent; andc.Awarding Kshs 2,500,000/= as a lumpsum for loss of dependency when dependency was not proved in the case of the 1st respondent.d.The learned magistrate erred in awarding general damages for pain and suffering of Kshs 50,000 and loss of expectation of life at Kshs 100,000/= to the 1st respondent.e.The learned magistrate erred in awarding special damages of Kshs 93,762/= to the 1st respondent.

2. The particulars of the cases are that on 26th December 2015, the deceased were travelling as the rider and pillion passenger in motor cycle registration number KMCT 051S along Sagana-Karatina road when at Kwamwega area, the defendant’s lawful driver so carelessly and recklessly drove motor vehicle registration number KBL012L Nissan Xtrail that he collided with the said motor cycle wherein the deceased sustained severe injuries leading to their death. In their respective plaints, the respondents claimed special and general damages, costs and interests of the suits. In both cases, the defendants/appellants filed similar defenses denying the claims and stated that the deceased were both to blame for the accident due to negligence.

3. At the trial in Baricho Civil Case No 133 of 2017, PW1 stated that the deceased was his wife who sustained fatal injuries from the said accident. He produced exhibits including receipts for funeral expenses, death certificate and police abstract in support of his claim for damages. He stated that he was told about the accident on 27th December 2015 at about 7AM. In Baricho Civil Case No 59 of 2018, PW1 stated that the deceased was her husband who died in a road traffic accident. She also produced documents in support of her claim for damages. She also stated that she depended on her now deceased 24-year-old husband for sustenance as he was employed and was earning Kshs 15,000/=. That she learned of the accident after her husband failed to return home the previous night. That the deceased did not have a driving licence and the motor cycle belonged to his father.

4. PW2, Sospeter Muraguri Mutugi witnessed the accident and stated that the accident occurred at around 9PM on that day. That he was walking home with his friend when he saw the motor cycle attempting to overtake thereby getting into the motor vehicle’s lane. That the motor cycle rider swerved in order to avoid the accident but the distance was too short and the vehicle knocked the motor cycle. That PW2 rushed to the scene to help the injured rider and pillion passenger to hospital. That PW2 did not go to hospital with them but he remained at the scene of the accident until police arrived and took the contacts of the eye witnesses. That he blames the accident on the driver of the motor vehicle. The court directed that the testimony of PW2 to apply in Baricho Civil Case No 59 of 2018.

5. PW3 was the police commander, Sagana Police Station. He rehashed the particulars of the accident and produced police abstracts issued following the accident. He blamed the deceased rider of the motor cycle for the accident. The court directed that the testimony of PW3 to apply in Baricho Civil Case No 59 of 2018.

6. In their defenses, the defendants/appellants’ evidence was recorded and applied in both Baricho Civil Case No 133/2017 and 59 of 2018. DW1 the 2nd appellant herein stated that they were driving along the said road and there were no cars in front of them. That the motor cycle attempted to overtake a vehicle that was in its lane, thereby coming into the motor vehicle’s lane. That the distance was too short and the motor cycle hit the front side of the appellant’s motor vehicle, even though the driver of the motor vehicle tried to swerve so as to avert the accident. That the car stopped in a shallow ditch. He blamed the motor cyclist for the accident. DW2 who was the driver of the motor vehicle stated that he saw the motor cyclist behind a vehicle headed towards Karatina. That in an attempt to overtake the 3rd vehicle, the motor cycle encroached onto the vehicle’s lane and hit several vehicles on the right side. That DW2 tried to steer the vehicle but ended up in a ditch. That police officers came to the scene and their vehicle was towed to the police station.

7. This appeal was canvassed by way of written submissions, both parties complied.

8. The appellants reminded the court of its obligation as an appellate court to re-examine the evidence adduced at trial and make its own analysis as was stated in the cases of Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123 and Peter v Sunday Post Limited (1958) EA 424. They submitted that the trial court erred in finding that the appellants were 50% liable for the accident as the case was not proved according to section 107 and 108 of the Evidence Act. They abandoned the 2nd and 3rd grounds of appeal.

9. In Civil Appeal No 64 of 2018, they challenged the claim that the 2nd respondent was the wife of the deceased as no proof of marriage was produced. They also challenged her claim as a dependent of the deceased as no letter from the area chief was produced to show that she was a dependent of the deceased. That there was no sufficient evidence to show that the deceased had a wife and child as alleged by the 2nd respondent. For this argument, he cited the case of James Mukolo Elisha & another v Thomas Martin Kibisu (2014) eKLR. That if the deceased was indeed employed and earning Kshs 15,000/= the same was not proved and the death certificate indicated that he was a businessman. That the trial court should have applied a minimum wage of Kshs 5,844. 20/= for 20 years to award general damages of Kshs 935,072/=.

10. In Civil Appeal No 65 of 2018, the appellant challenged the liability ratio as determined by the court and stated that the testimony of PW2 is suspect. That the trial court also failed to acknowledge the principle of stare decisis in awarding general damages of Kshs 2,500,000/=. Further, that there is no evidence that the deceased was in any meaningful business or that her income could be determined. That in the absence of proof of income, the trial court should have applied the minimum wage applicable at the time of death of the deceased. They relied on the case of Stanwel Holdings Limited & another v Racheal Haluku Emmanuel & another (2020) eKLR.

11. The 2nd respondent submitted that the police abstract showed that the matter was still under investigations and the court relied on the testimonies of witnesses in making its findings on the liability ratio. On this argument, reliance was placed on the case of Abbay Abubakar Haji & Patuma Ali Abdulla v Marair Freight Agencies Ltd (1984) eKLR. On proof of dependency, they submitted that there was sufficient proof that she was the widow of the deceased. That the trial court correctly applied the applicable minimum wage in calculating the damages using a multiplier of 30 years noting that there was no retirement age in the informal sector.

12. The 1st respondent submitted that the deceased was indeed his wife and mother of their child as evidenced by the birth certificate which showed both the 1st respondent and the deceased as the parents. That the deceased was selling ripe bananas along the Nyeri-Nairobi road and was earning Kshs 600/= per day. That the court correctly awarded a global sum of Kshs 2,500,000/=which was fair and just because the deceased was 22 years old.

13. I have considered the grounds of appeal, arguments by parties and trial court records and in my view, the issues for determination are:a.Whether the trial court determined liability correctly; andb.Whether or not the general damages were rightly awarded by the trial court in both cases.

14. At trial, the court in both cases apportioned liability at 50%:50%. In order to determine the issue of liability ratio, I am guided by the decision of the Court of Appeal in the case of Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] eKLR in which the court cited with authority the case of Micheal Hubert Kloss & another v David Seroney & 5 others [2009] eKLR where it was held:“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. 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…’” (Emphasis added).

15. Further, the court in the case of Simon Waweru Mugo v Alice Mwongeli Munyao (2020) eKLR while faced with the question of apportionment of liability, relied on the case of Lakhamshi v Attorney General, (1971) E A 118, 120 wherein it was held;“It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.”

16. PW2 stated that the motor cyclist was attempting to overtake and in the process, the accident occurred. DW1 and DW2 stated that the motor cyclist came into their lane too fast and in an attempt to overtake the vehicle ahead of him, the accident occured. That they took the necessary precautions to avert the accident but the vehicle lost control and ended up in a ditch. From the evidence, I gather that there surely was fault on both parties. On a balance of probabilities, it is possible that both the appellants and the deceased motor cyclist did what they could do to avert the accident. It is also possible that they did not do everything they could to avert the accident. It is my view, and in the absence of any evidence for instance from traffic officers, that both parties are liable for the accident in equal measure. Therefore, I shall not disturb the findings of the trial court on the issue of liability.

17. On the question of general damages awarded, I shall begin by noting the sentiments of the court in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR where it was held thus:“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.’”

18. The trial court in the case of the 2nd respondent (Baricho Civil Case Number 59 of 2018) awarded general damages for loss of dependency as follows, as limited to this appeal:a.Loss of dependency – Kshs 3,168,240/= using a multiplier of 30 years, multiplicand being the minimum wage of Kshs 13,201 under the Regulation of Wages (General) (Amendment) Order 2013

19. In the case of the 1st respondent (Baricho Civil Case Number 133 of 2017) the court awarded general damages for loss of dependency as follows as limited to this appeal:a.Loss of dependency – Global sum of Kshs 2,500,000/=

20. In appeal No 65 of 2018 (Baricho Civil Case Number 59 of 2018), the deceased left behind a wife and a child who was a few months old at the time of death. The deceased who died at the age of 24 years old, was allegedly a shop attendant earning Kshs 15,000/= at the time of his death. These earnings were however not proven. The appellant alleged that the death certificate indicated that the deceased was a businessman, thereby contradicting the information given earlier. The appellant also challenged the proof of dependency. In my view, despite the fact that the name of the deceased does not appear on the birth certificate of the child, it is not sufficient grounds to deny damages for loss of dependency. Additionally, the respondent took out grant ad litem which gives her power to claim damages in this suit.

21. Back to the issue of earnings, even though there is no proof of earnings, the trial court was correct to determine damages using the applicable minimum wage at the time of death of the deceased as provided for under the Regulation of Wages (General) (Amendment) Order 2013. The trial court used a multiplier of 30 years, which in my view is reasonable as the deceased was bound to work gainfully until the age of 54 years. The dependency ratio is not in question given that the child was of tender age at the time of death. In the case of P.N.M. & another v Telcom Kenya Ltd & others (2015) eKLR the court applied a multiplier of 30 years for 26 years old deceased. In the premises, I find no reason to depart from the findings of the trial court regarding award of damages for loss of dependency.

22. In appeal No 64 of 2018 where the court awarded a global sum, the deceased is alleged to have been a ripe-banana vendor along the Nyeri- Nairobi road and was making a daily income of Kshs 600/=. In this case, the trial court relied on the cases of Albert Odawa v Gichimu Gichenji (2007) eKLR and Mary Khayesi Awalo & another v Mwilu Malungu & another (1999) eKLR in abandoning the multiplier method and applying the global sum approach. In my view, the applicable formular is the multiplier-multiplicand. The deceased was 22 years old at the time of death and she would have continued doing her businesses until at least the age of retirement. In that regard, in my view a multiplier of 33 years is reasonable. In the case of West Kenya Sugar Co. Ltd v Falantina Adungosi Odionyi (Suing as the legal representative of Patrick Igwala Odionyi-deceased) (2020) eKLR, a multiplier of 33 was used for a deceased aged 21 years. The applicable minimum wage at the time of death is the Regulation of Wages (Agricultural Industry (Amendment) Order, 2013 which prescribes a minimum wage of Kshs 4,854/- per month. The deceased was also a mother of a child of tender years and so I shall apply the dependency ratio of 2/3. Therefore, the formular shall be 2/3×33×4,854×12=1,281,456/=.

23. In the end, having considered the submissions of the parties, the relevant applicable laws, with regard to the two appeals, I find as follows:a.Liability ratio is held at 50%:50% in both appeals;b.In Civil Appeal Number 65 of 2018, I hereby uphold the decision of the trial learned magistrate on general damages for loss of dependency as awarded, that is Kshs 3,168,240/=. For the avoidance of doubt, the amounts shall be as follows;i.Pain and suffering Kshs 25,000/=ii.Loss for expectation of life Kshs 100,000/=iii.Loss of dependency Kshs 3,168,240/=iv.Special Damages Kshs 80,500/=c.In Civil Appeal Number 64 of 2018, the award of a global sum of Kshs 2,500,000/= is hereby set aside and is substituted with an award of Kshs 1,281,456/= made up as follows:i.Pain and suffering Kshs 50,000/=ii.Loss for expectation of life Kshs 100,000/=iii.Loss of Dependency Kshs 1,281,456/=iv.Special Damages Kshs 93,762/=d.Each party to bear its own costs of the appeal.e.The special damages will earn interest from the date of filing of the suits and the general damages from the date of the judgment of the trial court.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE……………………… for the Appellants………………………… for the Respondents