[2022] KEHC 9951 (KLR)

Finlay Horticulture Kenya Ltd v Mugunda ((Suing as the legal representative of the estate of the late Martin Mugunda Nyambare)) (Civil Appeal 584 of 2019) [2022] KEHC 9951 (KLR) (Civ) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9951 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 584 of 2019

CW Meoli, J

July 1, 2022

Between

Finlay Horticulture Kenya Ltd

Appellant

and

Millicent Auma Mugunda

Respondent

(Suing as the legal representative of the estate of the late Martin Mugunda Nyambare)

(Being an appeal from the judgment of Muholi, SRM , delivered on 18th September 2019 in Nairobi Milimani CMCC No. 3576 of 2015)

Judgment

1. This appeal emanates from the judgment delivered on 18th September 2019 in Nairobi Milimani CMCC No. 3576 of 2015. The suit was commenced by a plaint filed by Millicent Auma Mugunda the plaintiff in the lower court (hereafter the Respondent) against Finlay Horticulture Kenya Ltd, the defendant in the lower court (hereafter the Appellant). The claim was for damages under the Law Reform Act and Fatal Accidents Act in respect of the death of Martin Mugunda Nyambare (hereafter deceased) following fatal injuries sustained in a road traffic accident on 5th December 2012. It was averred that the Appellant was the registered or beneficial owner of the motor vehicle registration no. KBR 308Y, at the time being driven by the authorized agent, servant and or driver of the Appellant. It was further alleged that the Appellant’s motor vehicle was so negligently, carelessly driven or controlled and managed that it knocked down the deceased then a lawful cyclist, causing him fatal injuries and leading to loss and damage on the part of the Respondent.

2. The Appellant filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Appellant pleaded contributory negligence against the deceased. The suit proceeded to full hearing during which only the Respondent adduced evidence. In its judgment, the trial court found in favour of the Respondent and held the Appellant wholly liable for the accident. Judgment was thus entered against the Appellant in the sum of Kshs. 2,140,576/- made up as follows:aGeneral damages for pain and suffering Kshs. 50,000/-;bLoss of expectation of life Kshs. 100,000/-;c.Loss of dependency Kshs. 1,851,576/-;d.Special Damages: Kshs. 139,000/-.

3. Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds: -“1. That the learned magistrate erred in law and in fact in holding the defendant 100% liable against the strength of the evidence tendered therein.2. That the learned magistrate erred in law and in fact in disregarding the submissions by the defendant and the testimony by the plaintiff as to the lack of blameworthiness by the defendant.3. The learned magistrate erred in law and in fact in holding the defendant 100% liable and not awarding any proportion of liability on the Respondent hence the learned trial magistrate findings on the key issue of negligence was biased and totally unsupported and has resulted in the miscarriage of justice.4. The learned magistrate erred in fact and in law in using the gross income instead of net income in computing the award for loss of dependency leading to an amount which is excessive in the circumstance.5. The learned magistrate erred in fact and law in his judgment by making his own assumption, supposition and conjecture thereby finding that the Plaintiff was entitled to the excessive general damages hence arriving at a decision based on wrong premises.6. That the learned trial magistrate erred in law and in fact in failing to appreciate or take into account the appellant’s pleadings and submissions in regards to quantum thereby exempting himself from arriving at a decision based on merit.7. That the learned magistrate erred in law and misdirected himself in assessment of general damages under both the Law Reform Act and the Fatal Accident Act and awarded a figure which was excessively high and tantamount to double compensation occasioning gross injustice to the Appellant.8. That the learned magistrate erred in law and in fact in focusing on irrelevant facts and failing to consider relevant issues thereby arriving at a decision devoid of merit.” (sic)

4. The appeal was canvassed by way of written submissions. The Appellant anchored its submissions on the decisions in Peters v Sunday Post Limited (1958) EA 424,Selle v Associated Motor Boat Co. (1968) EA 123 and Mbogo v Shah (1968) E.A concerning the principles and duty of an appellate court on a first appeal. Counsel condensed the Appellant’s grounds of appeal into two salient issues, namely, the trial court’s respective findings on liability and general damages. Addressing the first issue, counsel cited Vasant Bhai Ambalal Patel v Joseph Mbomere [2018] eKLR and Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2014] eKLR to contend that liability was not established. Because, no direct evidence by way of an eyewitness or circumstantial evidence in the form of an extract of the occurrence book, sketch of the scene was tendered to prove the manner in which the accident occurred. That the trial court erroneously relied on inadmissible hearsay evidence in reaching its finding on liability. Moreover that, the doctrine of res ipsa loquitur did not apply to the case and the trial court erred in its conclusion on liability.

5. Concerning the award on quantum of damages counsel relied on the decision inMaina Kanairu & Another v Josephat M. Wangondu [1995] eKLR as cited in Kenya Power & Lighting Company Ltd v James Muli Kyalo & Another[2020] eKLR to argue that the trial court erred in law for not deducting the award under the Law Reform Act from the award under the Fatal Accidents Act. Further restating the decision Kenya Power & Lighting Company Ltd (supra) it was asserted that vagaries and vicissitudes of life must be factored into the determination of an appropriate multiplier in the assessment of damages for lost dependency. It was contended that the deceased was employed in a high risk job and was advanced in age, hence the trial court’s adoption of a multiplier of six years was erroneous. In conclusion it was submitted that the trial court’s judgment ought to be set aside.

6. The Respondent defended the trial court’s findings. Concerning liability, counsel reiterated the evidence of the Respondent and citing the case of Abbay Abubakar Haji v Marain Agencies Company & Anor [1984] 4 KCA 53 argued that failure on the part of the Respondent to call an eyewitness to the accident is not fatal; that circumstantial evidence adduced by the Appellant proved the Appellant’s liability for the accident and death of the deceased. In buttressing the application of the res ipsa loquitur doctrine, counsel relied on several authorities including Citi Hoppa Bus Limited & Another v Maria Clara Rota [2021] eKLR, the English case of Barkway v South Wales Transport Company Limited [1956] 1 ALL ER 392-393 as cited with approval inNandwa v Kenya Kazi Limited[1988] eKLR and Black’s Law Dictionary, 8th Edn. Pg 1336.

7. He asserted that the Appellant failed to prove their allegations regarding contributory negligence on the part of the deceased and invoked the provisions of Section 107 of the Evidence Act and the decision in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 344. Further, citing Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR counsel contended that the Respondent having discharged the legal burden of proof, the evidentiary burden had shifted to the Appellant to demonstrate allegations of contributory negligence on the part of the deceased.

8. Concerning quantum counsel anchored his submissions on the decisions inKemfro Africa Ltd t/a Meru Express Services & Anor v Lubia & Another (No. 2) [1987] KLR andHellen Waruguru Waweru v Kiarie Shoe Stores Ltd [2015] eKLR to argue that the Appellant’s submissions that the court erred in failing to deduct the award under the Law Reform Act is erroneous. In response to the Appellant submissions on the multiplier used by the trial court, he relied on Chunibhai J Patel & Anor v PF Hayes & Others (1957) EA 748-749 to submit that the Appellant failed demonstrate vagaries of life likely to lower the multiplier. He asserted that the appeal lacks merit and ought to be dismissed with costs.

9. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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.”

10. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. SeeEphantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

11. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view the appeal turns on two issues, namely, whether the finding of the trial court on liability was well founded, and if so, whether the award on damages was justified. Pertinent to the determination of issues are the pleadings, which form the basis of the parties’ respective cases before the trial court. Hence a review thereof is apposite before dealing with evidentiary matters. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

12. The Respondent by her plaint averred at paragraphs 4, 5 and 6 that:“4. At all material times to the suit the deceased was a lawful cyclist along Outering Road in Nairobi.5. At all material time to this suit, the deceased was the registered/beneficial owner of the motor vehicle registration number KBR 308Y.6. On 5th December 2012 at Nairobi along Outering road, the defendant’s above said motor vehicle registration number KBR 308Y was so negligently, carelessly driven/controlled and managed by the Defendant’s agent/servant/driver that the same hit the deceased who was a lawful cyclist causing him fatal injuries and as a result the plaintiff sustained suffered loss and damage.Particulars of the Defendant’s Negligencea)Driving the said motor vehicle at an excessive speed in the circumstance.b)Failing to observe the road traffic rules.c)Failing to keep proper look out on the said road.d)Failing to give due regard to the safety of the deceased.e)Failing to stop/swerve/slow to avoid the accident.f)Permitting the accident to occur.g)Failing to apply brakes in sufficient time or at all to avoid the accident.” (sic)

13. The Appellant filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Appellant pleaded contributory negligence against the deceased by stating at paragraphs 5 and 6 that:“5. The Defendant denies the negligence attributed to itself and as particularized in paragraph 6 of the plaint and puts the plaintiff to strict proof thereof.6. In the alternative and without prejudice to the foregoing the Defendant avers that the occurrence of the said accident was caused solely or alternatively was contributed to by the negligence of the Deceased.Particulars of the Deceased’s Negligence(i)Failing to take any or any adequate precautions for his own safety while riding his bicycle along the road.(ii)Failing to keep any or any proper look-out while riding his bicycle on the said road.(iii)Riding bicycle onto the path of the alleged Defendant’s motor vehicle without first giving any or any adequate signal of his intention to do so.(iv)Riding his bicycle on the said road by not having regard to his own safety.(v)Riding his bicycle on the said road without having regard to the Traffic Act Cap 403 Laws of Kenya and the Highway Code Road Regulations.(vi)Riding along the said road while drunk and disorderly in a zigzag manner.(vii)Failing to pay any or any sufficient heed to the presence of the Defendant’s motor vehicle.(viii)Failing to see the Defendant’s motor vehicle in sufficient time to avoid the said collision or at all.(ix)Riding his bicycle on the wring lane of the road.“The Defendant aver that the doctrine of Res ipsa loquitur is not applicable herein at all.” (sic)

14. The Appellant challenges the finding on liability as going against the weight of evidence. Undisputedly, neither the Respondent nor the Appellant called an eye witness to the accident in question. That notwithstanding, the trial court after restating the said evidence in its judgment stated concerning liability that:-“PW1 submitted that she was not present at the scene of the accident when it occurred her testimony was based off of the information she was given upon arriving at the police station. John Thuku who wrote a witness statement of the Defendant ………………..did not come to court to testify and therefore his evidence has not been put to the test of cross examination.The Plaintiff produced a police abstract indicating the Defendant’s vehicle was involved in the accident; the Defendant did not challenge the same. The circumstances surrounding the accident are unclear and there is unfortunately no conclusive investigation report apportioning liability. However, the evidence adduced in court suggest that the plaintiff was knocked by the defendant’s motor vehicle. Though the defendant pleaded several acts of denial and negligence in the defence no evidence was adduced to support the propositions and therefore they just remain that… In light of these, and on a balance of probability and in the absence of any other version of how the accident occurred other than that by the Plaintiff, I hold the defendant 100% liable.” (sic).

15. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states 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 that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the legal evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

16. The latter statement alludes to the position that the legal burden of proof, unlike the evidentiary burden of proof does not shift. In reiterating the standard of proof, the Court of Appeal in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another[2015] eKLR, the Judges of Appeal held that:“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

17. The duty of proving the averments contained in the plaint lay squarely on the Respondent. In Karugi & Anotherv. Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

18. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd V. Christopher Atiado Osiro[2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutukuv. Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

19. As earlier observed, neither the Respondent who testified as PW1 at the trial nor the Appellant called any eyewitness to the material accident. The gist of PW1’s evidence in this regard was that she was summoned by a police officer to Buruburu Police Station where she was given the deceased’s personal effects, including a pair of spectacles and mobile phone, and informed that the he had been knocked down by the Appellant’s motor vehicle KBR 308Y. The account by PW1 did not contain admissible and credible evidence as to how the accident had occurred and from which negligence could be inferred against the driver of the Appellant’s motor vehicle.

20. As regards the application of the doctrine of res ipsa loquitur, the Court of Appeal in Keziah & another (Personal Representatives of the late Isaac Macharia Mutunga) v Lochab Transport Limited [2022] KECA 477 (KLR) stated: -“The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident? The mere fact that an accident involving the two vehicles occurred does not per se translate into the respondent's driver being culpable. It was the duty of the appellants to call evidence to prove the particulars of negligence or any one of them that they attributed to the respondent's driver. We do not think just like the High Court that they discharged this burden.

21. The Court proceeded to conclude that: -“As already stated, there was no eyewitness to the accident as would have shed light as to how it occurred. The police abstract on record showed that the accident was under investigation. The accident involved two motor vehicles and from the evidence adduced, there is nothing to show that the respondent was culpable. There cannot be an assumption of liability as the appellant failed to prove facts which give rise to what may be called the res ipsa loquitur situation or moment. In our view, the doctrine was inapplicable in the circumstances of the case and the High Court was right in so holding.”See also Nandwa v Kenya Kazi Limited [1988] eKLR.

22. Similarly in this case, beyond proof of the occurrence of the accident, the Respondent failed to prove facts which could give rise to or justify the invocation of the doctrine. The trial court in making a finding on liability correctly acknowledged that the circumstances surrounding the accident were unclear but nevertheless proceeded to make a finding on liability against the Appellant on account of its alleged failure to adduce evidence to controvert the Respondent’s evidence. With respect, this shifting of the burden of proof upon the Appellant was a serious misdirection of law and fact.

23. The Respondent’s evidence failed to rise to the standard of balance of probabilities. Or stated another way, under section 107 of the Evidence Act, the burden of proof lay with the Respondent to prove the particulars of negligence pleaded in paragraph 6 of her plaint and if the evidence did not support the facts pleaded, she failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). There was no evidential material to support the lower court’s conclusion that the accident vehicle driver was negligent, and that the Appellant were wholly liable for the accident.

24. In the result, the appeal succeeds on the issue of liability and the court need not consider the challenge to the quantum of damages. The appeal is therefore allowed, and the court hereby sets aside the judgment of the lower court in its entirety. The court substitutes therefor an order dismissing the Respondent’s suit in the lower court. In the circumstances of this case, the parties will bear their own costs in that suit and on this appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 1ST DAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Appellant: Ms. OmondiFor the Respondent: Ms. Komen h/b for Mr OlwenyoC/A: Carol