[2022] KEHC 10835 (KLR)

Elizabeth v YABA (Suing as the Legal representative of the Estate of the late GAG) (Civil Appeal 178 of 2019) [2022] KEHC 10835 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10835 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 178 of 2019

HK Chemitei, J

June 9, 2022

Between

Macharia Elizabeth

Appellant

and

YABA

Respondent

Suing as the Legal representative of the Estate of the late GAG

(Being an Appeal from the Judgement/Decree of Hon. Faith Munyi(PM) Delivered on 26th July 2019 Vide Nakuru CMCC No. 371 of 2016)

Judgment

1. This appeal arises from an accident that occurred on 13th September 2018 involving motor vehicle registration number KBG 772E Isuzu Pick Up and the deceased. The plaintiff sued in his capacity as a legal representative of the estate of his deceased cousin GAG who died in the said accident vide suit Nakuru CMCC No. 371 of 2016. The deceased was walking and crossing Oginga Odinga road near dog section when he was hit by motor vehicle registration number KBG 772E Isuzu Pick Up driven by the appellant and or his agent. The same severely injured the deceased who died on the spot.

2. The respondent sued for damages on his own behalf and on behalf of the deceased estate where the trial court held the appellant 100% liable for the accident. On quantum the court awarded Kshs. 20,000/= for pain and suffering, Kshs. 200,000/= for loss of expectation of life, Kshs. 600,000/= for loss of dependency and Kshs. 63,000/= for special damages.

3. The appellant being aggrieved by the judgement of the trial court filed a memorandum of appeal under the following grounds;a.That the learned trial magistrate erred in law and in fact in sustaining a claim by the respondent who was a cousin to the deceased under the Fatal Accident Act whereas within the province of section 4 of the Fatal Accident Act a claim can only be sustained by either a parent, spouse or child of the deceased. The claim under the Fatal Accident Act was wholly unsustainable and for striking out.b.That the learned trial magistrate erred in law and in fact in awarding excessive damages in respect of the deceased who was a minor of tender years whereas from settled legal principles and decide only nominal award, are sustainable.c.That the learned trial magistrate erred in law in failing to take into account award under both the Law Reform Actand the Fatal Accidents Act in making awards under both statutes and ended up making double compensation against settled legal principles.d.That the Learned trial magistrate erred in law and in fact in holding that the respondent's claim was made out in negligence despite evidence before her to the contrary.e.That the Learned trial magistrate erred in law and in fact in holding and finding the appellant 100% liable in negligence only on the basis of who was the victim of the accident and not on the basis of the acts of commission or omission by the appellant against settled legal principles on negligence even on cases involving minors where the burden of proving negligence always lies on the plaintiff.

4. Parties were directed to canvass the appeal by way of written submissions but only the appellant complied.

Appellant’s Submissions 5. The appellant in her submissions identified the following issues for determination by the court namely; whether the trail magistrate erred in law and in fact in sustaining a claim by the respondent who was a cousin to the deceased as a dependant within Section 4 of the Fatal Accident Act. She submitted that under paragraph 8 of the plaint at page 6 of the record of the appeal, the said claim was said to have been instituted under the Fatal Accidents Act and the dependants are listed to be the mother, brother, two sisters and the stepmother of the deceased.

6. That further, under page number 48 of the record of appeal on the second paragraph, the respondent on cross examination confirmed that he neither witnessed the accident nor had any documents proving that he was a cousin to the deceased. She submitted further that the chief’s letter did not name any of the persons listed as dependants and that no documents were produced to show any nexus between the deceased and the aforementioned family members. That they therefore were not entitled to claim for compensation as they were not among the list of beneficiaries provided for under Section 4 of the Fatal Accidents Act. She draws the court’s attention to the cases of Mary Nabwire Omalla vs David Wachira & 2 others Nairobi HCCC No. 605 of 2009 [2011] eKLR, Rahab Wanjiru Nderitu v Daniel Muteti & 4 Others [2016] eKLR and Kenya Power Limited v James Matata & 2 Others (Suing as the legal Representatives of the Estate of Nyange Masaga (Deceased) [2016] eKLR.

7. On the second issue, whether the learned trial magistrate erred in law and fact in awarding excessive damages in respect of the deceased who was a minor of tender years whereas from settled legal principles and decide only nominal award are sustainable, she submitted that the death certificate of the deceased indicated that the deceased was seven years at the time of his death and that the respondent confirmed the same during the examination in chief. She submitted further that the cumulative award of Kshs. 883,000/= was too high for a deceased of 7 years and that from precedents an award of Kshs. 100,000/= would be sufficient. She placed reliance in the case of Oyugi Judith & Another v Fredrick Odhiambo Ongonga & 3 Others [2014] eKLR.

8. On the third issue, whether the trial magistrate erred in making awards under Law Reform Actand Fatal Accident Act without discounting awards under both statues and ending up making double compensations, The appellant while placing reliance in the cases of Sukari Industries Limited v Lensa Owuor Nyagumba & Another [2019] eKLR and Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Menja (Deceased vs Kiarie Shoe Stores Limited Nyeri Civil Appeal 22 of 2014), submitted that the award by the trial court was erroneous as the court awarded damages under both of the aforementioned Acts as the same amounted to double compensation since the deceased’s dependants were the same.

9. On the last issue, whether the learned trial magistrate erred in law and in fact in holding and finding the appellant 100% liable in negligence only on the basis of who was the victim of the accident and not on the basis of the acts of commission or omission by the appellant against settled legal principles on negligence even on cases involving minors where the burden of proving negligence always lies on the plaintiff, the appellant submitted that the deceased minor was negligent in crossing the road as he was not in the company of an adult and neither was he crossing at the pedestrian crossing. That therefore it was her opinion that the trial court was misinformed in apportioning a 100% liability in negligence to her. She placed reliance in the case of W.K v Ghalib Khan Neer Construction [2011] eKLR where a child of 11 years was held liable for contributory negligence in a road traffic accident.

Analysis and Determination 10. This being the first appeal, it is this court’s duty under Section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case ofSelle v Associated Motor Boat Co. Ltd (1968) EA 123 cited by the appellants where Sir Clement De Lestang (V.P) stated that:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally’’.

11. I have carefully examined and considered the proceedings, the grounds of appeal and the submissions filed and the following issues arise for determination by the court namely; whether the trial court erred in finding the appellant 100% liable for the accident and whether the award on quantum should be disturbed.

12. In addressing the first issue, I note that the respondent during trial at the lower court called 3 witness in support of his case. PW1 YABA testified that he knew the deceased as he was his cousin and that he died on 13th September 2015 at around 6. 00 pm after being hit by motor vehicle registration number KBG 772E Isuzu Pick Up. That the driver of the said motor vehicle was the appellant and that the motor vehicle search marked as Pexh 1 confirmed that he was the owner of the same.

13. He testified further that he had been granted letters of administration marked as Pexh 2, that he had visited the scene of the accident which was at section 58 Oginga Odinga road near dog section and the deceased died on the spot. He stated that the deceased was seven years old at the time he met his death and was attending [particulars Withheld] nursery and primary school as per the report card marked as Pexh 5. He added that the deceased was staying with him and the accident had been reported at central police station as per the police abstract which was also produced as evidence. He went on to testify that the deceased’s father died in January 2014, his mother YM was in a refugee camp in Uganda together with the deceased siblings YAG and AAG. That VAJ and his nephew AMA were the ones who witnessed the accident but both of them were in South Sudan and Kakuma- Turkana respectively.

14. On cross examination, PW1 confirmed that he did not witness the accident and that he had no document to show that the deceased was his cousin. He stated that he was a guardian to the deceased and that the chief’s letter did not indicate the names of the deceased’s mother and sisters. He confirmed that the police abstract indicated the name Elizabeth Wanjiru but he had sued Elizabeth Macharia.

15. Upon re-examination he testified that he had produced the certificate to confirm the owner of motor vehicle KBG 772E that was involved in the accident.

16. PW2 No 69679 Samson Okello testified that he had the original police No. IAR (FO 107/15) which was an inquiry into a fatal road traffic accident which occurred on 13th September 2015 along Oginga Odinga road near dog section within 58 involving motor vehicle KBG 772E Isuzu Dmax pick up and a juvenile pedestrian GAG aged 7 years. He testified further that the investigating officer after conducting preliminary investigation concluded that there was no evidence to enable him charge the driver and recommended that the file be closed by way of a public inquest.

17. He went on to testify that there was a sketch plan in the file that showed that the accident occurred on the left side of the lane leading towards Free are and the motor vehicle was heading towards free area from Nakuru direction. The point of impact was on the left side of the road and the said motor vehicle was supposed to be on the left side. He testified that it appeared that the accident occurred towards the middle of the road and that the child was crossing the road. That the road was a straight stretch and after the accident the vehicle was found to be 3. 3 meters from the point of impact.

18. He testified further that the driver should not have removed the vehicle until the police arrived. That there were some skid marks and the driver parked the vehicle off the road after the accident. He stated that there was no bumps or zebra crossing and that juveniles should be guided to crossing the road. He added that there was no indication that their inquest was opened.

19. On cross examination, he stated that he was relying on the police file, that he was not the investigating officer and that he did not visit the scene. He confirmed that the driver was never charged and that the case was under investigations.

20. PW3 VAC, testified that she saw the deceased on 13th September 2015 when he was knocked down by a motor vehicle registration number KBG 772E. She was walking from church when she saw the deceased and three other children crossing the road, that the deceased went ahead of the others and had already crossed the road. She testified further that a speeding car approached from Menengai and it knocked down the deceased and it stood far from where the accident had occurred. That they took the deceased to Mediheal hospital in the company of the driver of the said motor vehicle but they found out that the deceased was already dead. It was her testimony that there was no zebra crossing and the deceased together with the other children were alone.

21. On cross examination she stated that she was on the opposite side of the road from the children and she went towards them and she saw the vehicle after she had crossed the road. That there was light and could see the children before she crossed the road and that they were not accompanied by an adult. She confirmed that the deceased went ahead of the other children, walked fast across the road and the other children remained behind.

22. James Macharia Elizabeth the appellant testified that on 19th September 2015 he was heading towards free area while driving motor vehicle registration number KBG 772E Isuzu Pick Up at dog section on the left side of the road. That on the right side there was a vehicle coming from free area and when the two vehicles by passed each other a child came from the right side running. That he tried to apply the brakes but the distance was very short and he hit him and he fell. He testified further that there was no option of avoiding hitting the deceased as he could not have swerved to his left as there were two other pedestrians who were walking. That he took the child to the hospital and reported he matter to the police but he was not informed if he was to be charged. It was his testimony that he was not to be blamed for the accident but instead the deceased and his guardian. That the deceased did not check both sides as the two other persons who were with him waited for the vehicle to pass.

23. Having looked at the Judgment by the trial court, I note that the learned trial magistrate relied on the evidence which was not disputed that the deceased met his death when he was hit by the appellant’s motor vehicle registration number KBG 772E Isuzu Pick Up. Further, that the appellant blamed the deceased and his guardian for the accident but the trial magistrate held that the deceased being a child of tender years, could not be expected to hold the knowledge about all precautions that ought to be taken on the road and he could not be blamed from the accident. She proceeded to find the appellant 100% liable. As regards general damages she awarded Kshs. 20,000/= for pain and suffering, Kshs. 200,000/= for loss of expectation of life, Kshs. 600,000/= for loss of dependency, special damages proved at of Kshs. 63,000/= with costs and interests.

24. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist”

25. Section 109 of the Evidence Act, Cap 80 Laws of Kenya provides as follows: -“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”

26. Section 112 of the Evidence Act, Cap 80 Laws of Kenya provides as follows: -“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”

27. The above stated provisions of the law were dealt with in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR, in which the Court of Appeal held that: -“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

28. In view of the above, it is obvious that the general rule is that the initial burden of proof lies on the plaintiff, the respondent in this appeal, but the same may shift to the defendant, the appellant in this appeal depending on the circumstances of the case. It is the appellant case that he was not to blame for the road traffic accident that led to the death of the deceased. It was therefore incumbent upon him to prove this fact by marshalling the necessary evidence to support his case especially noting that he did not dispute knocking down the deceased and even took him to the hospital together with PW1 in a motor cycle. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: -“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given on either side.”

29. In my view, the law when it comes to accidents involving children of tender years seem to place strict liability on the drivers and shifts the burden to them to show that the child is of such an age as to be expected to take precautions for his or her own safety. In this case PW3 testified that she was on her way from church on that material day, that the road was clear and they started crossing the road together with the kids whom she had seen standing by the road side in the opposite direction and the deceased was among them. She testified further that she saw a speeding car approaching from Menengai and the deceased was hit as he was almost crossing the white line.

30. Taking the totality of this uncontroverted line of evidence can one conclude that the deceased child was guilty of contributory negligence.? In The Court of Appeal case ofBashir Ahmed Butt Vs. Uwais Ahmed Khan [1982-88] 1 KAR 1 & [1981] KLR 349 held as follows -“It would need a great deal of persuasion before imputing contributory negligence to the child aged 8 years having regard to her tender age. Even if she did step off into the car it would not be right to count as negligence on her part such a momentary act of inattention or carelessness…A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child....Clearly each case must depend on its peculiar circumstances. In the instant case the learned judge was right in finding that the defendant had been negligent, and that the plaintiff was struck when almost half-way across the road, and that at the most the plaintiff had committed an error of judgment for which contributory negligence should not be attributed to him....The practice of civil courts ought to be that normally a person under the age of 10 years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of doing the act or making the omission he had capacity to know that he ought not to do that act or make the omission....High speed can be prima facie evidence of negligence in some cases. A person travelling within or at the permitted speed limit may be immune from prosecution for traffic offence. It is another matter as far as the question of negligence is concerned. Even 15 mph may not be a safe speed in the early hours of the morning when children go to school along and across a road which known to the driver as in the instant case, serves an area with several schools in it. In a manner of speaking there would be children here, children there and children everywhere. The safe speed on an occasion like this is that which will bring the driver out of the area unscathed and free from accident. The speed limit fixed under the Traffic Actis for general good conduct on the part of the drivers. If an accident happens, in the absence of provable circumstances which will exonerate the driver, even travelling at half that speed may not afford a defence in a case of negligence.”

31. Further, the Court of Appeal considered the above case in Rahima Tayab & Others vs Anna Mary Kinanu [1983] KLR 114 & 1 KAR 90 and stated; -“Since the learned judge found that the plaintiff paused on the side of the road before beginning to cross, the defendant should have seen the plaintiff before the moment of impact and had she seen the plaintiff at the roadside, she might have been able to avoid hitting her by slowing down or taking avoiding action. Therefore, the finding that the defendant was negligent is correct....The practice of the court ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission....The foregoing decision does not say that a person under the age of ten years cannot be guilty of contributory negligence, but that such a person cannot normally be guilty of such negligence. In dealing with contributory negligence on the part of a young boy, the age of the boy and the ability to understand and appreciate the dangers involved have to be taken into consideration. A Judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders and therefore cannot be found negligent unless he or she is blameworthy....In the present case, the trial judge held in clear terms that the plaintiff had the requisite road sense and therefore her failure to see the approaching car was blameworthy. In the case of a grown-up person the proportion of blame would have been substantial, but having regard to the plaintiff’s tender years the degree of liability is assessed at 10%....In determining what is a reasonable standard of care, the four factors, inter alia, that have to be considered are:1. the likelihood of a pedestrian crossing the road into the motorist’s path2. the nature of the pedestrian, whether a child or adult3. the degree of injury to be expected if the pedestrian was struck4. the adverse consequences to the public and to the defendant in taking whatever precautions were under consideration...In the instant case, there were no obstructions like parked cars and the defendant had a clear immediate field of vision. At the time of the day and with known schools in the vicinity the motorist is put on notice that he or she must exercise particular care for keeping an eye out for children and anticipating that they might cross without looking, and who passed across the front of her car, and her failure to stop or swerve, must construe negligence on the part of the defendant.”

32. In the instant case it was obvious that the area where the accident occurred was densely populated and the question of the speed by the appellant was not contradicted. PW3 confirmed that indeed he was speeding. At the same time the appellant testified that there were incoming vehicles and that as soon as they by passed each other he saw the deceased crossing and it was too late for him to stop.

33. My deduction is that had the appellant been in a reasonable speed he would have stopped and or at least controlled the vehicle. He knew for a fact that this was a densely populated area and at any one time at least some pedestrian would cross the road. It is also noted that the deceased had almost crossed his lane and therefore he was knocked almost at the edge of the road.

34. The fact that there was no zebra crossing lance credence to my conclusion that the appellant ought to have been more careful.

35. On the question of liability therefore this court does not find any reason to fault the findings of the trial court. The deceased aged 7 years had no mental capacity to determine the risks involved in crossing the road. It appears that he went ahead of his two friends without much regard and hoped that they were following him. In fact, he was not accompanied by any adult or at all.

36. As regards quantum, the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

37. Further, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988- 92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that: -“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

38. This court contrary to the appellant’s submission does not find any fault by the trial court under various headings. The loss of dependency for instance in this case was rather unique for the simple reason that the deceased parents including the guardians were refugees from southern Sudan. The respondent as well as pw3 were able to explain to the court the circumstances under which the deceased lived. Part of his dependants were in Kakuma refugee camp as well as Uganda.

39. This court will take judicial notice of these facts. There was evidence that the deceased was schooling and being taken care of by the guardians and other relatives which in this case will fall under the provisions of the Act.

40. The other awards by the trial court appear to me very reasonable and does not merit disturbance.

41. In the premises, the appeal is disallowed and the same dismissed with costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 9TH DAY OF JUNE 2022. H K CHEMITEI.JUDGE.