[2022] KEHC 14436 (KLR)

Ezy Ventures Limited v Mutiso (Suing in his capacity as the administrator and legal representative of the Estate of Joshua Mutinda Mbithi – Deceased) (Civil Appeal E016 of 2020) [2022] KEHC 14436 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14436 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E016 of 2020

MW Muigai, J

October 11, 2022

Between

Ezy Ventures Limited

Appellant

and

Wilson Mbithi Kavuva Mutiso

Respondent

Suing in his capacity as the administrator and legal representative of the Estate of Joshua Mutinda Mbithi – Deceased

(Being an appeal from the judgment and decree by Hon. E. Keago (S.P.M) at the Chief Magistrate’s Court at Machakos CMCC No. 512 of 2017 delivered on 5 th day of March, 2020)

Judgment

Plaint dated August 21, 2017 1. The Plaintiff/Respondent Wilson Mbithi Kavuva Mutiso (suing in his capacity as the Administrator and legal representative of the estate of Joshua Mutinda Mbithi (deceased) brought the claim under the Law Reform Act (Cap 26) and Fatal Accident Act (Cap 32) seeking compensation in regard to the accident that occurred on 8/05/2011 along Machakos-Wote road at Muuma-andu area at 9. 30pm within Machakos County where the deceased was involved in fatal injuries.

2. The Plaintiff/Respondent instituted a suit Machakos CMCC 512 of 2017 against the Respondents seeking:a.General damages under the Fatal Accidents Act and under the Law Reform Actb.Special Damages in the sum of Kshs.107,600/-c.Interest on (a) and (b), and (c) at Court rates.d.Any other further relief this court may deem fit and just to grant.

3. The Defendant was at all material times relevant to this suit, the registered and beneficial owner of motor vehicle registration number KBN XXXN, Lorry/Truck Isuzu.

4. That on or about May 8, 2011 the deceased, Mutinda Mbithi a.k.a Joshua was being ridden by a motor cycle registration No. KMCM XXXL when the Defendant and/or his authorized driver, servant and /or agent drove along Machakos-Wote road at around 9. 30pm hours at Muuma-Andu area, so negligently, carelessly and recklessly the he caused the same to loose control, veer off the road and hit the deceased and as a result the deceased sustained fatal injuries.Particulars of Negligence on the Part of The Defendant and/or the Defendant’s Authorised Driver, Agent and /or Servanta.Driving at an excessive speed in the circumstancesb.Driving in a zigzag manner hence causing the accident.c.Failing to slow down, brake, swerve or in any other manner drive the said motor vehicle to avoid the accident.d.Causing the said accident.e.Driving without due care and attention.f.Driving defective motor vehicle.g.Driving and causing the accident contrary to the Traffic Act, Traffic rules and Highway Code.

5. In so far as is applicable the Plaintiff will rely on the doctrines of res ipsa loquitor, vicarious liability, the provisions of the Traffic Act and the High way Code.

DEFENSE DATED 6TH SEPTEMBER, 2017 6. The Defendant/Appellant herein was served with Summons to Enter Appearance and filed their defence on 6/09/2017 denying the Plaintiffs claim before Court.

7. The Defendant denies in toto all the allegations set out in paragraph 4 of the plaint as to how the accident took place and the involvement of its driver, servant and/or agent in the same. It also particularly denies the allegations of negligence together with all the particulars thereof serialized as (a) –(f) in the same paragraph of the Plaint and puts the plaintiff to strict proof of his allegations on the same.

8. The defendant states that if at all the Deceased sustained fatal injuries as alleged then the same was as a result of his negligence and /or the sole/sheer negligence of the rider of motor cyle registration number KMCM XXXL.

9. Particulars of the Negligence on the part of the deceased included;a.Failing to have due regard for his own safetyb.Failing to wear a helmet as is required by lawc.Absent mindedly failing to anticipate an accidentd.Flouting the traffic rules and regulations and more so the Highway Code on safe riding on a motor cycle.

10. The defendant denies that the doctrines of Res Ispa Loquitor and Vicarious Liability as well as the provisions of the Traffic Act and Highway Code apply in this case and the Plaintiff is put to strict proof thereof.

COURT PROCEEDINGS 11. PW1 Robert Tomoina told the Court that he is a police officer no.772XX based at Machakos police station. That on 8/5/2011 their office received a report of fatal accident that occurred at 9. 30pm along Machakos – Wote road at Muumandu area involving motor vehicle KBN XXX N Isuzu Lorry and Motorcycle KMCM XXXL Tialaji. That the lorry was ferrying sand from Wote direction to Machakos and on reaching the location of the accident it collided head on with the motorcycle. As a result the rider died on the spot while the female passengers were seriously injured. That they were rushed to Machakos Hospital but later one Mutinda Mbithi passed on while undergoing treatment. The accident was booked on vide no.26/8/05/11. He stated that he had a signed police abstract which he produced as Pex 2. He further confirmed that Joshua Mutinda died as a result of the said road traffic accident.

12. In cross examination by Kaminza, PW1 stated that the motorcycle had three passengers although it is allowed to carry one pillion passenger. He stated that he is not the investigating officer in the case and that he does not know who took over the matter after Cpl Farah passed on.

13. In re-examination, PW1 stated that he is not aware whether anybody was charged. That the matter was investigated by Cpl. Farah who passed on.

14. PW2 – Wilson Mbithi Kavuva Mutiso who is the Plaintiff herein told the Court that he stays at Kalama, Machakos County. That he recorded a statement dated 21/8/2017 and wished to adopt the same as evidence. He stated that Joshua Mutinda Mbithi who was involved in the road accident at Muumandu area on 8/5/2011 was his child. That Joshua Mutinda Mbithi was 17 years old and in Form Two at Nzaini Secondary School. That they incurred hospital and burial expenses and he sought compensation of the expenses. He stated that he went to the scene at 9. 30pm. That his son died while undergoing treatment. He produced supporting documents as Ex 1 & 3 – 9.

15. In cross examination by Kimanzi, PW2 stated that he was the father to the deceased. That he did not witness the accident because it happened at night. That it is the rider and his son who were involved in the fatal accident. That time he had come from school since he was a day scholar. That he produced documents to prove that the deceased was his child.

16. In re-examination, the Pw2 stated that the broker who promised to assist him is the one who caused the delay in pursuing the matter in Court. That his son was healthy before his demise.

17. PW3 – Goeffery Mwau told the Court that he is a peasant farmer at Kalama in Machakos. That on 8/5/2011 he was riding a motorcycle from Muumandu while following motorcycle KMCM XXXL. That there was a lorry KBN XXXN going uphill from Wote. That the lorry was moving zigzag and it knocked the cyclist on the left who died at the scene. That the other victim was rushed to the hospital. That John Mutinda was known to him and he is the one who called his father.

18. On cross examination, PW3 stated that he witnessed the accident and that he is one who called the father of the victim to the scene. He stated that the impact happened while the motorcycle and the lorry were all on motion. That PW1 was his neighbour and they contributed money for the burial arrangements.

19. In re-examination, PW3 stated that it was the lorry which knocked the motorcycle since the rider kept his proper lane.

20. The Plaintiff closed their case.

21. The defence closed their case and did not call any witness(es) to testify.

TRIAL COURT JUDGMENT 22. The trial Court delivered its judgment on 5th day of March 2020 and entered the following termsa.Pain and suffering Ksh. 50,000/-b.Loss of expectation Ksh. 100,000/-c.Special damages Ksh. 104,000/-d.Loss of dependency Ksh.1,200,000/-Total Ksh.1,454,000/-

MEMORANDUM OF APPEAL 23. The Appellant, Ezy Ventures Limited, being dissatisfied with the Judgment of the Hon. E. H. Keago – SPM delivered on March 5, 2020 in Machakos CMCC No.512 of 2017, appeals to the high court of Kenya against the whole of the said judgement and decree on quantum o the following grounds.a.That the learned Trial magistrate erred in law and in fact in failing to find that the suit herein was filed out of time and the reason advance for the same were not within the materials factors under section 27(2) of the Limitations of Actions Act for extending the time for filling the suit out of time.b.That the learned Magistrate erred in law and in fact in failing to appreciate and properly evaluate the evidence on record, in particular the evidence on the reasons for failing to file the suit within the prescribed time line and thereby mad an erroneously finding on the same.c.That the learned Trial Magistrate erred in law and in fact ion finding that the Plaintiff had proved his case to the required standard.d.That the learned Trial Magistrate erred in law and in fact in failing to find that the Plaintiff’s pleadings did not attribute any fault/blame on the defendant.e.That the learned Trial Magistrate erred in law and in fact in failing to appreciate the relevant principles and case law in assessing general damages on pain and suffering, loss of expectation of life and loss of dependence and thereby giving an inordinately high and manifestly excessive award unsupported by law so as to amount to an erroneous award in the circumstances of the case.f.That the Learned Magistrate erred in law and fact and misdirected herself in awarding a disproportionately high award on loss of expectation of life and loss of dependency.g.That the Learned Trial Magistrate erred in law and in fact in finding that the Plaintiff was not entitled to an award for loss of dependency as his pleadings did not indicate any particulars of dependants as required under section 8 of the Fatal Accidents Act.h.That the Learned Trial Magistrate erred in law and fact bny taking into account irrelevant consideration/factors while awarding General Damages for loss of expectation of life and loss of dependency.i.That the Learned Trial Magistrate erred in Law and fact by failing to deduct the award under the Fatal Accidents Act from the awarded under the Law Reform Act.j.That the Learned Magistrate erred in Law and in fact proceeding on the wrong principle Vis-à-vis the evidence before her and laid down principles of law thus arriving at a Judgement that was erroneous in the circumstances.k.That the Learned Magistrate further erred in law and fact by failing to appreciate, consider and take into account the Appellant’s submissions on the quantum of damages awardable for loss of expectation of life and loss of dependency in the circumstances.l.That the Learned Trial Magistrate erred by making a decision on quantum of damages awardable for loss of expectation of life and loss of dependency that was erroneous, without proper basis and against the weight of evidence.

SUBMISSIONS APPELLANTS WRITTEN SUBMISSION DATED 12TH MAY 2022 24. The Appellant submits as follows;In Loice Wanjiku Kagunda versus Julius Gachau Mwangi CA 142/2003, the court of Appeal held that;“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Mariga v Musila [1984] KLR 257).’

25. The same was reiterated in the case of Gitobu Imanyara & 2 others vs. Attorney General (2016) eKLR, where the Court of Appeal held that;-“...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. (See page 16 of the Appellant’s list of authorities)”

26. Similarly, in Selle vs Associated Motor Boat Co. (1968) E.A 123 at page 126;“(the) principles upon which this court acts in such an appeal are well settled. Briefly put they are but this court must reconsider the evidence, evaluate it itself and draw its own conclusion 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..”

27. Section 4(2) of the Limitation of Actions Act provides that a claim based on tort has to be filed in court before the lapse of three (3) years from the date of the cause of action arising. In this case, the accident happened on May 8, 2011 and therefore time lapsed on May 8, 2014 yet the Respondent filed the claim on August 22, 2017.

28. Also in the case of Mary Kabuga –vs- Kenya Bus Services limited [1997] eKLR Akiwumi, JA stated that:“It must be remembered that even when the judge grants leave, there is nothing final about it. It is merely provincial and that the defendant will have every opportunity of challenging the facts and law afterwards at the trial. The Judge who tries the case is the one who must rule finally whether the plaintiff has satisfied the conditions for overcoming the time bar. He is not in the least bound by the provisional view expressed by the judge in chambers who gave leave”

29. Further during cross examination, the Respondent stated that by the year 2014 he had all the necessary documents required to file a suit.

30. Paragraph 4 of the plaint pleaded that Motor cycle KMCM XXXL was on the said road and hit. However, it is not pleaded which motor vehicle hit the motor cycle and the particulars of the negligence do not state the motor vehicle which was being driven by the Appellant’s driver.

31. Reliance was made in the case ofMburu Nganga –vs- Shamji Karsan Arjan & Another [2012] eKLR where the Court held that the Applicant’s failure to secure a grant of letters of administration and time was not a material factor within section 27 (2) of the Limitation of Actions Act. The Court went in to dismiss the application for leave to file the suit out of time.

32. Also in the case of Aphia Plus Western Kenya & Anor –vs Mary Anyango Kadenge & Another [2015] eKLR the Court stated as follows;-

“Further, the mandatory provision of Section 8 of the Fatal Accidents Act provide as follows (..) I therefore find and hold that the learned magistrate erred in calculating damages on the basis that the deceased died at the age of 25 and “supported his mother and siblings” of two reasons. First, the persons set out as dependants in the plaint were not dependants within the meaning of section 4(2) of the Fatal Accidents Act. Second, the mother of the deceased was not pleaded in accordance with the provisions of section 8 of the Fatal Accidents Act. It must now be clear that the claim under the Fatal Accidents Act could not be sustained.”

33. That the Trial Court awarded the Respondent loss of dependency yet the Respondent did not plead the particulars of the dependants of the deceased if any in their pleadings.

RESPONDENT’ SUBMISSIONS DATED 6TH JUNE, 2022 34. On the issue of whether the Trial court erred in finding that the suit was filed out of time, it was submitted that Section 27(2)(a) of Limitations of Actions Actprovides as follows:-(2)The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the Plaintiff until a date which –(a)either was after the three – year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period.

35. It was submitted that the Trial Court was in order to enter a judgment in favour of the Respondent herein and that the evidence on record was sufficient. That it is not in dispute that the deceased herein was aboard the motorcycle that was knocked down by the Appellant’s motor vehicle; that it is not in dispute that the deceased died as result of the injuries that he sustained in the accident and further there was an eye witness who testified as Pw3 and the accident was proved beyond reasonable doubt.

36. That it is not true that the Appellant herein was not blamed for the accident. The Respondent from the pleadings is a company and therefore the defendant could not have been at the wheel of the accident motor vehicle. The motor vehicle at the time of the accident was being driven by an agent of the Appellant’s Company and as such the reason why the Respondent herein sought to rely on the doctrine of res ipsa loquitor and vicarious liability as the vehicle clearly belonged to the Appellant herein and the same is clear from the motor vehicle search.

37. That the allegation that the Trial Court did not consider the Appellant’s submissions in reaching an award for damages of loss of dependency and loss of expectation of life is baseless and outrageous. Pg 53 of the Record of appeal it is indicated that the Trial Court replicated the submissions of the Appellant herein as well as the award of damages reached for each limb.

38. On the issue that the Respondent was not entitled to damages for loss of dependency as he did not give the particulars of the dependant, the Respondent in the par. 1, 6 & 8 of the Plaintf explained that the suit was brought for the benefit of the estate of the deceased and that was he claiming on his behalf as the father and for the dependants of the estate.

39. The Respondent relied on the following decision on quantum which the Respondent urged the Court to look at;i.Joseph Njuguna Mwaura (suing in his capacity as the personal representative of Ann Nduta) –vs- Builders Den Limited & another//.ii.David Kahuruka Gitau & Another (suing as the legal representative of Benson Guchu Gitau – Deceased) –vs- Nancy Ann Gitau & Anotheriii.FMM & another –vs- Joseph Njuguna Kuira & Another [2016] eKLRiv.DMM & Another –vs- Stephen Johana Njue & Another

DETERMINATION 40. The Court considered the pleadings and submissions by parties through Counsel and the issues that emerge for determination are;a.Whether the suit subject of the appeal was filed irregularly or unlawfully out of time?b.Whether the Trial Court failed to appreciate and properly evaluate the evidence on record, applied wrong principles vis-a vis the evidence and wrongly finding that the Plaintiff/Respondent proved the case to the required legal standard.c.Whether the Trial Court awarded disproportionately high award of loss of expectation of life and loss of dependency and failed to deduct award from Fatal Accidents Act that of Law Reform Act and that the Plaintiff /respondent was/is not entitled to loss of dependency as particulars of dependents were not pleaded as required by Section 8 of Fatal Accidents Act.d.Whether the Trial Court failed to appreciate, consider take into account written submissions by the Appellant.

COMPETENT SUIT a.Whether the suit subject of the appeal was filed irregularly or unlawfully out of time? 41. The Limitation of Actions Act provides;Section 4(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Section 27 provides;Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiffSection 28 provides;Application for leave of court under section 27 (1).An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action……”

42. In the instant appeal, the Appellant submitted that the accident occurred on 8/5/2011 and time lapsed on 8/5/2014 and yet the Respondent filed the claim on 22/8/2017.

43. The Appellant relied on the case of Mary Wambui Kabuga vs Kenya Bus Services Ltd (1997) eKLR the Court held that the Defendant could challenge the time bar and the conditions if satisfactory to overcome the time bar.

44. The Plaint confirms that Civil Suit 512 of 2017 was filed in CM Machakos Court on 22/8/2017. The cause of action arose on 8/5/2011 as pleaded in paragraph 3 & 4 of the Plaint.

45. In the Plaint at Paragraph 7 the Plaintiff pleaded that they had given some of their documents to a person stated that he works for the Insurance only for them to learn later he had a sinister motive and had wished to assist them but eventually they took the documents after the person failed them and in the List of documents is the Order of the Court to file the suit/matter out of time.

46. The Pleading/claim was not rebutted by the Defence except for mere denial in paragraph 8 of the Defense that put the Plaintiff on strict proof thereof.

47. The Court found the Court Order of 2/6/2017 under Sections 27 & 28 of Limitation of Actions Act where the Applicant was granted leave to file suit out of time.

48. The Court found Limited Grant of March 29, 2017in Succession Cause 29 of 2017 to the Plaintiff to lodge or defend suit in Court.

49. The Appellant challenged the Plaintiff’s claim that they did not file suit within the legal time lines due to release of documents to an unnamed person who worked for the Insurance on the basis of the fact that the Death Certificate was obtained in 21/7/2015, letter from the deceased’s school Nzaini Secondary School dated 28/7/2015 and Copy of Records was of 30/5/2017, therefore the fact of giving documents to the unnamed person is an afterthought as the documents were obtained after 8/5/2014 the 3 year timeline to have filed suit had elapsed. The Defendant was represented and undertook cross examination of the Plaintiff’s witnesses and could have pursued name(s) of the unnamed person who misled the Plaintiff.

50. The Court finds that the Plaintiff/Respondent had the Police Abstract, Post Mortem Report & receipt for special damages at the time and it is not farfetched that they were involved with one who claimed to be able to assist them with /through the Insurance Company. This Court finds this a plausible explanation in the circumstances and it is only thereafter that they realized they were duped and begun too frantically to access justice by obtaining all legal documents and /or orders required to lodge their claim in Court albeit outside the statutory period.

51. The fact that the Plaintiff was misled and misadvised that the claim could be resolved outside Court without taking into account of the limitation period through the Insurance Company this was material fact(s) relating to the that cause of action which were at all times outside the knowledge (actual or constructive) of the plaintiff and warranted the extension of limitation period.

52. The Court Order of 2/6/2017 under Sections 27 & 28 of Limitation of Actions Act is a valid, regular and legal order of the Court. There is no review or appeal to the said order, or setting aside order to that order. It was/is the legal basis for filing suit out of the Limitation Period. The Court finds no legal basis to set aside the order. The suit was legally and properly filed outside the limitation period.

LIABILITY b.Whether the Trial Court failed to appreciate and properly evaluate the evidence on record, applied wrong principles vis-a vis the evidence and wrongly finding that the Plaintiff/Respondent proved the case to the required legal standard. 53. This being a first appellate court, I am guided by the principles set out in the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

54. See also, Peters vs. Sunday Post Limited [1958] EA 424 on the same point where it was held that;“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.”

55. PW1 P.C No 772XX Robert Tomoina based at Machakos Police Station stated that on 8/5/2011 their office received a report of fatal accident that occurred at 9. 30pm along Machakos – Wote road at Muumandu area involving motor vehicle KBN XX N Isuzu Lorry and Motorcycle KMCM XXXL Tialaji. That the lorry was ferrying sand from Wote direction to Machakos and on reaching the location of the accident it collided head on with the motorcycle. As a result the rider died on the spot while the female passengers were seriously injured. Later one Mutinda Mbithi passed on while undergoing treatment. The accident was booked on vide OB no.26/8/05/11. He stated that he had a signed Police Abstract which he produced as Pex 2. He further confirmed that Joshua Mutinda died as a result of the said road traffic accident.

56. PW2 Wilson Mbithi Kavuva Mutiso told the Court that the deceased was his son. He was involved in a road traffic accident on 8/05/2011 along Muumandu area. The deceased was by then aged 17 years and a Form II student at Nzaini Secondary school. He incurred hospital and burial expenses as well as costs of filing this case. The deceased passed on while undergoing treatment.

57. PW3 – Geoffrey Mwau told the court on 8/5/2011 he was riding a motorcycle from Muumandu while following motorcycle KMCM XXXL. That there was a lorry KBN XXXN going uphill from Wote. That the lorry was moving zigzag manner and it knocked the cyclist on the left who died at the scene. That John Mutinda was known to him and he is the one who called his father.

58. The Plaintiff pleaded and relied on the doctrine of res ipsa loquitor.The Plaintiff relied on the doctrine of res ipsa loquitor which means according to the Black’s Law Dictionary (8th Ed.) page 1336, “the thing speaks for itself”

59. In Nandwa vs. Kenya Kazi Limited [1988] eKLR, Court of Appeal (Gachuhi JA) cited, with approval, a portion Barkway vs. South Wales Transport Company Limited [1956] 1 ALLER 392, 393 B on the nature and application of the doctrine of res ipsa loquitur as follows:“The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the Respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.”

60. The evidence of the occurrence of the accident was/is by an eye witness PW3 which confirmed that the deceased was a passenger on the motorcycle Reg KMCM XXXL whose rider died on the spot upon collision by Lorry Isuzu Reg KBN XXX N. The fact of having more than 1 passenger on the motorcycle by and of itself did not cause or contribute to the accident, the witness’s statement was that the lorry Reg KBN XXX N was moving in a zigzag manner and lost control veered off its rightful lane and came to hit the motor cycle Reg KMCM XXXL. The collision by the lorry on the left side where the motorcycle was and the fact of the Lorry that was moving in a zigzag manner right before the accident meant the driver did not control the vehicle and drove without due care and attention. The Deceased could not have had any control as he was a passenger, a victim of circumstances.

61. In the case of Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, it was held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object .... Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently...”

62. In the case of Isabella Wanjiru Karanja vs Washington Malele Nbi Civil Appeal No 50 of 1981 Hon. Chesoni J observed;“What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine when Washington had none and all things being equal she was under an obligation to keep greater lookout for other road users.”

63. These principles outlined by the case-law above applied to the instant Appeal, this Court finds that the Appellant or his agent/servant/driver ought to have as a reasonable driver anticipated through exercise of due care and attention and kept on greater lookout of the motor cycle any eventuality and taken reasonable steps to avoid the accident.

64. The Court record confirms that the Defendant offered no evidence to rebut or cast any doubt on the Plaintiff/Respondent’s evidence and the contents in Police Abstract produced as exhibit in Court. Section 107 -112 of the Evidence Act requires that he who alleges shall prove by evidence adduced to prove the fact or cast doubt on the stated/presented facts. In the instant appeal, the Plaintiff’s case is not contested by any evidence of the events that led to the accident. The driver/agent/servant of the owner of the lorry Reg. KBN XXXN on 8/5/2011 was not called to testify but the accident was reported to Machakos Police Station and the Police abstract confirms occurrence of the accident between motorcycle Reg KMCM 678L & lorry Reg KBN XXXN which was confirmed from the Copy of Records as belonging to the Defendant Company. In the absence of any controverting evidence the evidence remains intact as to the accident and the resultant death of the deceased. Liability remains at 100% against the Appellant.

QUANTUM a)Whether the Trial Court awarded disproportionately high award of loss of expectation of life and loss of dependency and failed to deduct award from Fatal Accidents Act that of Law Reform Act and that the Plaintiff /respondent was/is not entitled to loss of dependency as particulars of dependents were not pleaded as required by Section 8 of Fatal Accidents Act.

b)Whether the Trial Court failed to appreciate, consider take into account written submissions by the Appellant. 65. On whether the trial court judgment should be interfered with the case of Peter Omolo –vs- Match Masters limited [2017] eKLR, High Court Civil Appeal No.79 of 2013 – Nairobi it was stated;“On the quantum of damages, the law is quite clear and there is no dispute about the principles applicable in an appeal relating to quantum of damages. The assessment of damages is an exercise of judicial discretion by the trial magistrate and an appellate court should be slow to reverse the trial court’s award unless it is shown that he acted on wrong principles or awarded so excessive or little damages that no reasonable court would; or he had taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and, in the result arrived at a wrong result. These principles have been cited and approved in several cases among them; Butler v Butler [1984] KLR 225, Butt v Khan [1981] KLR 349, Kemfro Africa t/a Meru Express & Another v. A. M. Lubia & Another [1982 – 88] 1 KAR 72 and Mariga v Musila [1984] KLR 257. ”

LOSS OF DEPENDENCY 66. The Appellant contested the award for Loss of Dependency as contrary to Section 8 of Fatal Accidents Act the Plaintiff failed to make disclosure of full particulars of the dependents and failure to do so makes the claim for the award to fail.

67. Section 8 of Fatal Accidents Act provides for Plaintiff to deliver full particulars of the persons for whom damages claimed;In every action brought by virtue of the provisions of this Act, the plaintiff on the record shall be required, together with the statement of claim, to deliver to the defendant, or his advocate, full particulars of the person or persons for whom, and on whose behalf, the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.

68. The Court record confirms that the Plaintiff made full disclosure and particulars of dependency vide paragraphs 1, 5, 6, & 8 of the Plaint that, the late Joshua Mutinda Mbithi (deceased) sustained fatal injuries and by reason of his death the Plaintiff and the estate of the deceased have suffered loss and damages. That the suit is brought by the Plaintiff as the father of the deceased and legal representative of the estate of the deceased. The deceased was prior to the accident aged 16 years old in good health and was a student at Nzaini Secondary School, Machakos Form 2. By reason of his death from the accident the estate and dependents of the deceased suffered loss and damage and sought damages.

69. This Court notes that the deceased was in good health and at the prime of his life with possibilities if all factors held constant and his life was not cut short by the accident, of providing for his father among other dependents as is recognized in the African setting.

70. In the case of Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLRthe Court stated as follows:“Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country...”Section 4(1) of the Fatal Accidents Act provides as follows:-“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused…”Section 2 (1) of the same Act provides:-“child” means a son, daughter, grandson, granddaughter, stepson or stepdaughter;“parent” means a father, mother, grandfather, grandmother, stepfather or stepmother.The claim for loss of dependency was well granted and reasonable in the circumstances.

LOSS OF EXPECTATION OF LIFE 71. The Appellant raised issue with the fact that the Trial Court failed to deduct award from Fatal Accidents Act from that of Law Reform Act.

72. The Appellant contends that that since the Respondent proved her claim under Fatal Accidents Act the amount is deductible under Law Reform Act. This Court begs to differ as follows;

73. The Court of Appeal in Hellen Waruguru Waweru in Nyeri Civil Appeal No. 22 of 2014 (2015) e KLR stated that;“An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words 'to be taken into account' and 'to be deducted' are two different things.

74. As to the ground of appeal that the Appellants submissions were not considered, the Judgment of 5/3/2020 the Trial Court considered the Appellants cross examination during trial, the defendant raised the issue of Limitation of Action & authorities on Pain & Suffering and therefore the claim is not borne out by the Trial Court Judgment.

75. On conclusion of special damages under the Insurance (Motor vehicle 3rdParty Risks) Act Cap 405 Laws of Kenya this Court like the parties is bound by Pleadings on record. Special damages are specifically pleaded and proved. This Court cannot substitute the claim as one to be considered in the above Act.

Disposition1. The Appeal is dismissed and the Trial court’s judgment is upheld.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 11THOCTOBER 2022 (VIRTUAL/PHYSICAL HEARING)M.W. MUIGAIJUDGEIn the presence of:No appearance - for the appellantNo Appearance - for the RespondentGeoffrey/Patrick - Court assistant(s)