[1994] KEHC 13 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

Civil Case 435 of 1992

ELIZABETH MARY ADEMBESA ………………….………………… PLAINTIFF

-VERSUS

SHADRACK MWOKI HARUA NIXON OYWA …………………. DEFENDANTS

JU D G M E N T

On 7th December, 1991 at about 4. 30 p.m. a collision involving two motor vehicles took place along Mombasa/Lung a lunga road at a place called Denyenye . The vehicles involved were reg. No. KWK 089 make Subaru Station Wagon owned and driven by the late Nathan Munyori Adembesa hereinafter called the deceased and Reg . No. KNP 369 make Isuzu tipper lorry owned the second defendant and driven by the first defendantherein.

Motor vehicle Reg .No KWK 089 was being driven from Mombasa towards Diani direction while KNP 369 was being driven from Diani towards MOMBASA direction. As a result of t he saidcollision the deceased received very serious injuries which claimed his life three days thereafter, that is, on 1Oth. December 1991.

Elizabeth Mary Adembesa the plaintiff herein, is the widow of the deceased who brought this action for damages onher own behalf and that of the other dependants of the deceasedboth under the Fatal Accidents Act and the Law Reform Act. Asrequired of her under the Law Reform Act, the plaintiff appliedfor and obtained fromthe court a grant of letters of administration in respect of her late husband's estate. She produced exhibit No.4 being the certificate of confirmation of the said grant.

In her pleadings, the plaintiff attributed the accident to the first defendant's negligence in his driving of motor vehicle Reg. No. KNP 369. This has been denied in the statement of defence which blames the deceased for the accident. I shall first address the issue of liability.

The deceased was an advocate of the High Court of Kenya with an established private practice in Mombasa.. There is also evidence that he had also set up a branch office at Eldoret On the fateful day the deceased was driving his said carto the South Coast. He had three passengers, one of them being James Mouko (PW.l) also an advocate of the High Court of Kenya based in Mombasa.' The other two passengers were foreigners from the United States on a visit to Kenya.

Mr. Mouko was seated at the front passenger seat next to the deceased while the other two passengers were seated at the back. It is essential, in my judgment, to set out herein below Mr. Mouko's evidence in regard to the occurrence. He stated asfollows:

"Along Lunga Lunga road at a place called i Denyenye our motor vehicle was going at a fairly slow speed as we were showing visitors the scene/place and explainingto them. I was sitting at the front passenger seat .

At Denyenye there were two vehicles coming from opposite side. A smallmotor vehicle and behind it a tipper lorry. The tipper lorry was close behind. It was Reg. No. KNP No. 369 Both motor Vehicles from the opposite direction were moving very fast. Our motorvehicle was on the left lane. When our motor vehicle was going to meet with the tipper lorry, the lorry swerved from itsside of the road to our side of the road and rammed into our car - driver's side. At the point of impact there was a loudnoise like that of a tyre burst. On impact our motor vehicle was thrown out of the road - into the bush off the road. The tipper went and; rested on the left side of the road (our side) as one faces LungaLunga direction. I think our speed was barely30 K.P.H., average of 25 to 30 K.P.H.The tipper lorry was coming fast. I cannot estimate its speed but was not as slow as we were going.

On impact our car was badly crashed on the driver's side On the day of the accident the weather was dry. The road is tarmacked – condition good - no potholes - it is straight.

Cross-examined by Miss Njoroge:- The road was, one can say, not very wide and not very narrow. Two motor vehicles can by pass one another .

Looking at the photographs - Subaru was damaged on the right hand side. The tipper was also damaged on the right. . .,

Motor vehicle KNP No.:369 swerved to ourside otherwise it could not have rested on our side.

Re-examination:-

The collision took place on the left hand side of the road - left lane. This was the correct side for Mr. Adembesa to drive towards Lunga Lunga. If driver of KNP No. 369 had not swerved there would be no collision. Our driver was careful in the manner of driving. These were my visitors, he was driving and I was explaining." The police visited the scene of the accident and tookmeasurements. Subsequently statements were recorded from witnesses and police traffic file No.68/91 compiled. PW.2 Sgt.David Okumu produced the said police file as exhibit No.2. This witness said he participated in the investigations of theaccident. The driver of motor vehicle Reg. No. KNP 369 who isthe first defendant herein, Shadrack Mwoki was subsequentlycharged with the offence of causing death by dangerousdriving. However, as at the time of hearing this suit the casehad not been determined as the second defendant failed to turnup, in court and a warrant of arrests was in force. He gave thelower court file number as 257 of 1993.

Sgt. Okumu did not visit the scene of the accident. OneP.C. Cheruiyot drew the rough sketch plan which Sgt. Okumu"developed and drew a fair sketch plan". He called P.C.Cheruiyot to identify the point of impact. He added:"The impact was on the lane of the smallvehicle KWK 089 - Subaru Station Wagon.After the impact the small motor vehiclerested on the left side of the road - only2. 6 metres from point of impact - off thetarmac.

Motor vehicle KNP No. 369 also rested onthe left side of the road towards Ukunda -19. 8 metres from point of impact. It was also off the tarmac.

As a result of my investigations I decided to charge driver of KNP No. 369. From "investigations the lorry was carrying sand from Tiwi to Likoni Driver absconded after the accident and was never seen for many months. He never reported the accident to the police - not even to theowner of the motor vehicle." The defence called three witnesses whose evidence relate to the issue of liability. DW.l John Mutua Mwololo wasemployed as a loader in motor vehicle Reg. No. KNP 3 69 a 7 tonner lorry used to carry sand. He said he also knew how to drive. On the date of the accident the lorry was loaded with sand and travelling from Tiwi towards Mombasa. He was seated in the drivers' cabin. He said when they reached Denyenye asmall car Reg. No. KWK 089 emerged from the opposite direction (from Mombasa). At that stage the road has a small corner or end towards the right. He was in a position to see ahead. The following is what he told the court of the collision:

"Our motor vehicle was on the left hand of the road. The small car was on the right side of the road.At the scene the road was narrow. It appeared the small car had lost control. It came to our side and knocked our. lorry tyre. I saw it. It was. being driven fast. The small car came to our side.

After the collision the two motor vehicles; ,ended up on the same side of the road- right side of the road. The small car was damaged on the right hand side drivers' side.The lorry was damaged on the right tyre. The tyre burst after the impact. After the tyre burst the lorry moved to the small car's side - right hand as one faces Mombasa. The road had a small hill. The lorry was going uphill while the small car was going downhill. It is not true that our lorry wasmoving at 100 K.P.H. It was carrying sand. It is not true that the lorry had a tyre burst and lost control before the collision. It had a right front tyre burst. As a driver I can say this was a side collision.The collision took place in the middle of the road. There was no way either could avoid the collision. The road was thin.After the collision bur lorry moved forabout 5 metres. The small car moved fo rabout 6 metres . " The driver of the lorry Reg- No. KNP 3 69, Shadrack Mwoki

also gave evidence for the defence as DW.3. He also gave anaccount of the occurrence. He said he was carrying sand fromTiwi towards Mombasa. The lorry had a capacity oof 7 (seven)tonnes when loaded. His speed was about 50 K.P.H. Accordingto him the collision took place after the small car crossed themiddle of the road towards the lorry. The road was rough onthe sides and had a small bend which was moderate. It isnecessary also to set out his version of the collision. Hesaid:

"I was driving along the correct lane. So was the small car . When we were about to bypass the small car swerved to avoid a rough edge of the road towards my side.I also swerved to my left. The small car had swerved towards the right. It was very close and rammed into my lorry. My lorry collided with the small car on the right tyre and mudguard. I saw the small car after the accident. Thesmall car was knocked on the front.

The small car was approaching at very high speed. I estimated it at 85 to 90 K.P.H.When the small car swerved to my lane I also tried to avoid it but it was verynear. I swerved to the left.The lorry was not damaged at the front.This was because the small car did not. touch the front. After the collision I lost control of the lorry and it ended where it ended. After it stopped I noticed it had no tyre. It had burst after impact. After the impact it moved(the lorry) for about 5 metres to where it stopped. It stopped on the right hand side in the bush as one faces Mombasa.. The small car stopped behind the lorry. It moved about 19 to 20 metres after the impact. It stopped 1. 5 to 2 metres off the road on its correct lane towards Diani " This witness disputed the record of the police as reflected in the sketch plan in relation to the point of impact, the distances covered by the motor vehicles after thepact and their final resting positions. He also denied thathe kept a proper look out.

The defence also called one G. A, Pandya an Insurance Assessor who gave evidence as to the damage sustained by the lorry. This witness did not witness the accident. His evidence is more of an opinion. Save as to its relevance in relation to the damage aforesaid very little can be gathered toassist on the issue of liability.

All the defence witnesses were subjected to lengthy and searching cross-examination by the learned counsel for the plaintiff. The record bears that out and I shall only confinemyself to the salient points that I consider relevant to theissues at hand.

From the totality of the evidence before me, the partiesare blaming one another for the accident. Some facts howeverare beyond dispute. The two motor vehicles were being driverin opposite directions. After the collision both vehiclesfinally rested on the same side of the road, that ison theleft hand side off the road as one faces Diani or Lunga Lungadirection. The deceased died as a result of serious injuriessustained in the accident. The lorry driver, Shadrack Mwokiwas subsequently charged with the offence of causing death bydangerous driving contrary to section 46 of the Traffic Act Cap403 Laws of Kenya. The . case has not been determined.

Inthe course of driving, the deceased was supposed to bein total control and management of motor vehicle Reg. No. KWK089 while the lorry driver DW.3 had the same responsibility.Asa result of several denials by DW.3 of what appeared in hisstatement to the police as, exhibit 1, this court had to callfor the original file which was held by the police for purposesof the lower court proceedings.. This was with the knowledge ofboth learned counsel who also had the opportunity of perusingthe same.

It is now clear that DW.3 - the driver of the lorry didnot report the accident either to the police or his employer.He instead disappeared to his rural home in Machakos and had tobe sought with the help of the police. The reason for that conduct is anybody's guess. DW.l his loader and policeinvestigations confirmed the same.

The denials by DW.3 aforesaid bring into question hisdemeanour. He was shifty and assertive on loose ground. In sodoing he exposed himself even more., He saw the car driven bythe deceased approach allegedly at high speed. He did notflash his headlights to draw the attention of the deceased. Hedid not break. He has not said anything about this and so find he did nothing to that effect. He said he swerved to theleft but this is self defeating. If he swerved to the left,the collision could not have taken place at all because thedeceased would have had a clear path assuming without decidingthat he swerved to the right as alleged.

The police took measurements of the scene. After theimpact the lorry moved a distance of 19. 8 metres while themotor vehicle driven by the deceased moved for only 2. 6metres. DW.3 wants us to believe that the police were wrong.does not say why.

The allegation that the lorry's front right tyre burstbefore the impact has been seriously disputed. It is possiblethat it burst at the time of the impact. Whichever way onelooks at it the fact that the lorry moved for a longerdistance than the small car is in itself more suggestive of

high speed. I am fortified in that finding by the fact that itwas loaded with sand and there is evidence suggesting that itwas under repair all morning such that the driver may have beenrushing to make up for lost time. Negligence has, in my judgment, been established against the lorry driver, DW.3. Hewas the employee of the second defendant as driver, agent andor servant for his (the second defendant) benefit. This hasnot been denied. I find that the second defendant isvicariously; liable for the negligence of the driver, DW.3.

• The dead tell no tales so we shall never know the versionof the deceased in this accident. We have however, theevidence of PW.l Mr. Mouko who was sitting next to him in theThen we have the evidence of the police and thediscrepancies of DW.l and DW.3. The question is. Did thedeceased contribute to the accident?

It was a clear afternoon. The road, according to Mr.Mouko was straight at that stage. There was no car aheadtravelling in the same direction. This has not been alleged.Mr. Mouko saw a small car and the lorry coming from theopposite direction - at high speed. The deceased may havenoticed the same. Mr. Mouko noticed the lorry swerve to theirlane. The deceased may have noticed the lorry swerving. Theremust have been some lapse of time from the time the lorryswerved to the time of collision. It must have been a matterof seconds. Whatever the length, it was crucial. A reflexturning/swerving to the left could have made a difference onthe part of the deceased. to that extent only, the deceasedwas negligent. I make that finding with a clear understandingthat the collision took place along his lane but there is nosuggestion that some short distance off the edge of the roadwas unsafe to swerve onto.

Having found that both the lorry driver and the deceasedwere negligent I must now apportion liability. I find nodifficulty at all in so doing. The evidence bears me out. Thelorry driver DW.3 is more to blame for the accident. I findand hold that he shall bear 90% liability while the deceasedshall bear 10% contributory negligence.The second defendantis vicariously liable to the extent of the driver DW.3. Ishall now deal with the issue of quantum.

The deceased died at the age of 68 (sixty eight) years.At the time of his death he was an outstanding lawyer with anestablished private practice in Mombasa. He had also openedanother office at Eldoret where he doubled as a farmer. Thereare two children out of his marriage with the plaintiff namelyMark Isambi Adembesa and Andrew ..Nemesa Adembesa. The plaintifftogether with the two sons depended entirely on the deceased.Both sons were still studying when their father died. Mark wasat Baring University studying Business Administration inDiving while Andrew was training as an Airline Pilot atTennessee U.S.A. Both had to discontinue their studies onlearning of their father's death and have not been able toreturn. The farm does not make enough money to finance theirtraining. The deceased also used to provide for holidays and medical

care for the family. There was a running loan on the farm.The plaintiff had to sell 200 acres of land to pay back the'loan adding that if the deceased was alive he would have paidthat loan. The deceased was energetic and had no thoughts of retiring early. Said the plaintiff:

"He was a terribly energetic person - fullof energy. He said when people retire they grow old. I believe that is why he established and office in Eldoret apart from wanting to be near the farm."At a condolence meeting held at Mombasa Law Courts after his demise on 13th December, 1991 Shields J. described the deceased as "A leading Mombasa Advocate who "had a distinguished career in both the Local Government Service and in the Profession of being an Advocate .... Not alone was Mr. Adembesa a resolute upholder of his clients care, he was always conscious of his duty to the court, as an advocate. He was never guilty of any sharp let alone dishonest practice. He was fair and courteous to the Bench and his opponents." "Mr. Adembesa had achieved a very senior position in the legal profession and we are saddened that he has not lived to enjoythe respect and affection with which a long and distinguished career confers upon him."

Hon. Mr. Justice Shields had known the deceased both from the bar and the Bench.I believe nobody else was more suited to talk of him (the deceased) than the learned Judge. On the basis of the foregoing the question of multiplier can be addressed. But first, the net income of the deceased's practice In Mombasa has not been disputed. It was pleaded at kshs.50,000/- per month which was confirmed by Mr. Ogot PW.5 the accountant who kept the accounts of the deceased. The deceased must have spent two thirds of this income for the maintenance of his family aforesaid.

I have not entertained, any doubts about the plaintiff's assessment of the strength of the deceased. She also added that by all standards he was a healthy man. His establishing of another office in Eldoret was not a step towards retirementbut rather an extension of his services. I have noted the authorities that have been cited on the question of multiplier. Most of them are decisions of this court. Buteach case must be decided on its own peculiar facts. There will always be a difference between a multiplier applicable to a farmer, hawker, driver, doctor or lawyer depending on the risks they are exposed to and their respective resources andabilities to fight the unexpected occurrences associated with life. Thus, doctors and lawyers may afford better health services which are beyond the reach of a peasant farmer or a hawker. Those are realities of life. I have given consideration to submissions by both learned counsel and, in my judgment find that a multiplier of 8 (eight) years is not appropriate and reasonable in respect of the deceased herein. Damages for loss of dependancy therefore work out to Kshs.50,000/- x 2/3 x 12 x 8 = Kshs.3,200,448/-. This sum shall be reduced by 10% contributory negligence leaving a balance of Kshs . 2 ,880,403. 20. Proposed damages for pain and suffering and loss of expectation of life are conceded these total Kshs.80,000/-: that is Kshs.10,000/- for pain and suffering and Kshs.70,000/-

loss of expectation of life. These awards have also to be reduced by 10% contributory negligence leaving a balance of Kshs.72,000/-.

Special damages must be specifically pleaded and strictly proved. This the plaintiff did. Each item was supported by documentary evidence. They amount to Kshs.474,701/=. This figure must also be reduced by 10% leaving a balance of Kshs.427,230. 90.

In the end there shall be judgment for the plaintiff against both defendants jointly and severally in the total sum of Kshs.2,952,403. 20 general damages plus Kshs.427,230. 90special damages. The plaintiff shall also have the costs of the suit and interest at court rates.Orders accordingly.

A. MBOGHOLI MSAGHA

JUDGE

MOMBASA

1st September, 1994