[2022] KEHC 536 (KLR)

Gitari v Muriuki (Civil Appeal 30 of 2017) [2022] KEHC 536 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 536 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 30 of 2017

RM Mwongo, J

June 7, 2022

Between

Peter Gitari

Appellant

and

Jane Wakuthii Muriuki (sued as the legal rep of the estate of Josiah Mburia Muriuki Deceased

Respondent

(Being an appeal from the Judgment of D.N Sure RM dated 7th July 2017, in Wanguru Case No. 152 of 2016)

Judgment

Background 1. This appeal arises from the judgment rendered by the lower court from a road traffic accident which occurred on 4th May, 2014. The claim was by the mother of Josiah Mburia Muriuki (deceased) who died at Gakuu area along Kutus - Samson Corner Road while lawfully riding motorcycle registration No. KMCW 644Q. The suit was for general damages, special damages as well as costs and interest. The defendant, his driver/servant or agent was alleged to have driven motor vehicle registration number KBS 329 B in a careless manner in that he fatally knocked down the deceased and the motorcycle.

2. The trial court found the Appellant 50% liable and made an award as follows:Loss of expectation of life Kes 100,000. 00Pain & suffering Kes 50,000. 00Loss of dependency Kes 1,280,000. 00Less 50% contribution Kes 715,000. 00Sub total Kes 715,000. 00Add Special damages Kes 90,000. 00Total Kes 805,000. 00The plaintiff was also awarded costs and interest of the suit

3. Aggrieved by the judgment, the appellant appeals against the said judgement on the following grounds:1. That the learned magistrate erred in law by finding the appellant 50% liable in negligence regardless of the evidence tendered against such a finding whilst Kenyan law has not reached the stage of liability without fault.2. That the learned magistrate erred in law and in fact by failing to appreciate that no negligence was established as against the appellant and as such no liability could attach.3. That the learned magistrate misdirected herself by fully relying on the evidence of a police officer who did not witness the accident and as the respondent did not summon an eye witness, arriving at an erroneous decision.4. That the learned magistrate erred in law and in fact by failing to discount the award of loss of expectation of life from the final award thus making a double award to the plaintiff.5. That the learned magistrate erred in law and in fact in failing to consider or ever adequately adopt and appreciate the written submission of the appellant on record.6. That the learned magistrate misdirected herself in law and in fact by failing to be bound by the decision of the apex court when faced with similar facts, contrary to the doctrine of stare decisis.

4. The appellant seeks that the appeal be allowed, the judgement of the lower court be set aside, and further that he be granted costs of the appeal.

5. The duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions see Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles. First, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; second, in reconsidering and re-evaluating the evidence, the court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and third, it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

Parties’ submissions 6. On liability, the appellant submitted that the Respondent did not prove that the appellant was negligent to warrant liability be awarded at 50% as against the Appellant. He cited Section 107 (I) of the Evidence Act that it is for whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, to prove that those facts exist.

7. He pointed out that in cross examination the Respondent testified that she never saw the accident and that there was no eye witness to confirm that the Appellant was negligent. Thus, the court was only left with Appellant’s version. On his part, the appellant testified that he was driving from Embu to Kutus when a boda boda motorcyclist riding from Embu to Kutus, was trying to overtake but lost control, and skidded towards the Applicant’s motor vehicle and hit it, he fell on the front side of the road and was ran over.

8. Further, he pointed out that PW2 the police officer testified that the point of impact was the lane heading to Kutus, the left lane; and the Probox was on the left lane. He blamed the motorcyclist for causing the accident as the deceased had encroached on the Appellant’s lane.

9. For all these reasons, he argued, there was insufficient evidence to place any negligence on the Appellant. The evidence adduced by the PW1 and PW2 exonerates the Appellant from any such liability.

10. On the issue as to error in adopting the wrong principles for awarding general damages, the appellant submitted that the deceased was aged 28 years and a boda boda rider. He did not have a wife or any children. The only dependant he had is his mother (PWI). The Respondent did not prove how much he earned hence it erroneous for the trial court to insert a figure of Kshs 10000/- as a multiplicand without any explanation.

11. Further the appellant argued that the court erred by using the multiplier approach instead of the global sum approach. It had no proper basis in adopting the multiplier approach and the amount awarded as a result of the multiplier approach is excessive and inordinate.

12. The appellant referred to the case of Mary Khayesi Awalo & Another v Mwilu Malungu & another [1999] eKLR where Nambuye J stated that:As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjuncture. It is better to opt for the principle of a lumpsum award instead of estimating his income in the absence of proper accounting books.

13. He also cited Peter Ngari Njeri v Alchanger Njue Kithogo & Josphat Njue (Suing as Legal Representatives of Eugenio Muchori Njue — Deceased) [2019] eKLR where the court while considering that the case of Khayesi (supra) which was decided in 2017. There, the court while taking into consideration factors of inflation, awarded a global sum of Kshs. 800,000/= for loss of dependency. The appellant submits that an award of Kshs. 800,000 would suffice.

14. On pain and suffering, it was the Appellant’s position that the decease died on the spot. His evidence is generally corroborated by PC Habwe that the accident was fatal. The award of Kshs.50,000/- was thus inordinately high and contrary to the principle of awarding on comparable decisions. The appellant citeedable recent decisions where the deceased died on the spot. He relied on the case of Harjeet Singh Pandal v Hellen Aketch Okudho[20I8]eKLR where an award of kshs.30. 000/- for pain and suffering was reduced to Kshs.10. 000 where the deceased had died on the spot.

15. The appellant submits that this case warrants an award of Kshs.800,000 for loss of dependency and pain and suffering of Kshs.10,000.

16. The respondent’s submissions were as follows:

17. That the Learned Magistrate did not err in law by finding the Appellant 50% liable in negligence as Kenyan law has not reached the stage of liability without fault. The evidence by the appellant confirmed that the vehicle ran over the deceased and stopped at over five (5) meters away confirming that the appellant’s driver was driving the vehicle at an excessive speed, could not stop, swerve and or do any other thing to avoid the accident having had a clear view of the road for over one kilometer. Hence, the award of liability at 50 % was reasonable.

18. Further that the appellant admitted that the deceased was run over by motor vehicle registration number KBS 329 B and that, he admitted to seeing the oncoming motorcycle uphill.

19. The respondent submits that the trial magistrate was thus right in holding the appellant liable for not keeping a proper lookout as the driver would have swerved, braked or veered off the road to avoid the accident thus a degree of negligence was established and that ground must fail.

20. In addition, the appellant’s driver admitted to seeing the deceased a kilometer away but failed to avoid the accident :a clear indication that the appellant’ s driver was driving at an excessive speed given the nature of the road and the traffic that was expected to be on the road; the police officer did confirm that at the time of the issuance of the police abstract, the matter was pending under investigations though an inquest file had been opened as confirmed by page 68 and 69 of the record of appeal and arrived at a correct finding. We submit that ground 3 must fail.

21. On the award of damages, the respondent submitted that her son earned around 1500/= per day as confirmed on page 41 of the ROA. She stated that she had suffered loss as her son used to support her and his siblings financially. The deceased was only 28 and healthy

22. That the trial magistrate analyzed the submissions from both the plaintiff and the defendant to determine the case. That the court in making a decision on the award of damages relied on authorities as stated as well as the rules of precedent in awarding general damages.

23. The deceased’s mother testified that the deceased was hit by a vehicle around the Nyagati area. She reported to the police and was issued with P3, MFI-3. Post mortem was done at Kibugi funeral home. PEXH-4. Her son was 28 years old. He was unmarried and of good health. She produced his death certificate as PEXH-5. She produced the chief's letter dated 23/3/2016 showing deceased was her child as PEXH-6. She spent Kshs 39, 500 to bury her son and produced the receipts as a bundle PEXH 7 The deceased’s mother did not witness the accident. She testified that the deceased was a boda boda operator. He earned Kshs 1,500 per day and lived with her.

24. A motor vehicle search was done and it showed the owner was Mohamed Choba which he bought from the defendant on 19/5/2014. The sale agreement was produced as PExbh 8.

25. The respondent’s ultimate submission is that the Appeal is unmerited and should be dismissed with costs to the respondent

Analysis and determination 26. Having carefully perused the material before the court and upon due consideration thereof, the issues for determination are as follows:a)Whether the trial magistrate wrongly held the appellant 50% liable for the accident;b)Whether the learned trial Magistrate erred in law and fact in adopting the wrong principles in awarding the quantum of damages she awarded.

On liability 27. PW1 testified that on 4/5/2016, her son was hit and fatally injured by motor vehicle registration number KBS 329 B around the Nyagati area. She did not witness the accident. PW2 - Police constable Preston Habwe testified that the alleged accident involved a motorcycle registration No. KMCW 644Q type SYKG owned by Joseph Mburia Muriuki and motor vehicle registration number KBS 329 B Toyota Probox. The accident occurred along Samson Corner-Kutus Road in Gakuu area, and that the motorcyclist died on the spot. He testified that the point of impact was the left lane heading toward kutus. The Probox was rightfully on the left lane. He blamed the motorcyclist for the accident for encroachment on the lane used by vehicles from Kutus.

28. DW 1- Peter Gitari testified that deceased rider overtook their vehicle at high speed and came into their lane. The motorcycle fell and skidded to his vehicle. He fell on the front side and they ran over him.

29. The appellant submitted that, PW2 the police officer, testified that the point of impact was the lane of people heading to Kutus, left lane and the Probox was on the left lane.

30. However, the respondent submitted that the evidence by the appellant confirmed that the appellant’s vehicle ran over the deceased and stopped at over five (5) meters away confirming that the appellant’s driver was driving the vehicle at an excessive speed. He did not stop, swerve and or do any other thing to avoid the accident having had a clear view of the road for over one kilometer.

31. PW2- Preston Habwe, a police officer, who was not the investigating officer and hence could not give conclusive evidence on the cause of the accident and whom to blame for the same. His testimony was useful in placing the accident vehicles at the scene.

32. The appellant submitted that the lack of an eye-witness was fatal to the respondent’s evidence as their star witness PW1 did not witness the accident or visited the scene. However, the appellant admitted that the accident happened and blamed the respondent for same.

33. The trial court found, correctly in my view, that it was difficult to determine the cause of the accident. There was no doubt though, that it involved the motor cycle and the motor vehicle. The evidence shows that the deceased may have overtaken other vehicles but the appellant himself testified that he saw the motorcycle a and so did his driver. They had a clear view of one kilometer and the motor cycle was driving uphill. He saw the motorcycle overtake their vehicle “at high speed”. It fell and skidded towards his vehicle.

34. From the above testimony of the appellant, it is clear that both vehicles were driving at fairly high speed. This is shown by the fact that the appellant’s driver, despite all the view and time they had when observing the motorcycle, was unable to brake and avoid overrunning the motorcycle.

35. In Postal Corporation of Kenya & Anor v Dickens Munayi (2014) eKLR the court held that:I am clear in my mind, that it is difficult to tell the extent to which each party (Respondent and Appellants' driver) contributed to the accident. And as rightly submitted by counsel for the Appellants, when the court is in doubt on the extent of contribution by either party, the most prudent thing to do is to apportion the contribution at a ratio of 50% :50%. I therefore entirely concur with the findings in the cited cases of Haji v Marair Freight Agencies Ltd(1984) KLR, 139 in which the Court of Appeal held; “Where it is proved by evidence that both parties are to blame and there is no means of making a reasonable contribution the blame can be apportioned equally on each …...”

36. For these reasons, I agree with the trial magistrate that it was proper to apportion blame at 50:50. This ground of appeal fails.Whether the quantum that was awarded by the learned trial magistrate was manifestly excessive and/or inordinately high

37. The trial court made awards under both Law Reform Act and Fatal Accident Act. The appellant was aggrieved by awards made under these heads:Pain and suffering

38. It was the Appellant’s testimony that the deceased died on the spot. His evidence is generally corroborated by PC Habwe that the accident was fatal. Hence, an award of Kshs.50,000/- on pain and suffering was inordinately high

39. In Harjeet Singh Pandal v Hellen Aketch Okudho(20I8 ) eKLR an award of kshs.30. 000/- for pain and suffering where the deceased had died on the spot was reduced co Kshs.10. 000.

40. Here, the trial court relied on the decision in Silas Mugendi Nguru v Nairobi Women's Hospital [2014] eKLR where the Deceased died from complications developed after delivery of a child in the Defendant hospital on 7th January 2012. She had been admitted at the hospital the previous day following doctors' advice when the Plaintiff took her for a routine pre-natal check-up. The plaintiff was awarded for pain and suffering Kshs 50,000.

41. The deceased was a healthy person and riding his motorcycle when the accident occurred. He must have suffered great pain before he succumbed to his injuries. The award of Kshs 50,000 is reasonable.

Loss of expectation of life 42. The appellant faulted the trial court for failing to discount the award of loss of expectation of life from the final award thus making a double award to the plaintiff.

43. The trial court ruled that the award under Law Reform Act is not a duplicate award. It correctly relied on the Court of Appeal decision in: Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited[2015] eKLR. There, the Court of Appeal stated:“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.”

Loss of Dependency 44. The deceased was aged 28 years and a boda boda rider when he died. He did not have a wife or any children. The only dependant he had is his mother (PWI). The Respondent did not prove how much he earned hence it erroneous for the trial court to insert a figure of Kshs 10000/- without any explanation.

45. The appellant submitted that by using the multiplier approach instead of the global sum approach. It had no proper basis in adopting the multiplier approach and the amount awarded as a result of the multiplier approach is excessive and inordinate.

46. On the issue of wages, the trial court found that the plaintiff had not proved the deceased’s daily wages of Kshs 1,500. The court relied on minimum wages of kshs 10,000 and found that he could have worked until retirement. That amount works out at only Kshs 500 per day. I think the amount was reasonable, and hence, a multiplicant of 32 years was also reasonable.

47. The trial court summarized the award under this head as follows: 10000 x 1/3 x 12 x 32 = Kshs 1,280,000, which this court finds no reason to disturb.

48. The appellant submitted that the court should have adopted a global sum approach as the deceased did not have a job or evidence of earnings. He sought a global award of Kshs 800,000/- in reliance on the case of Mary Khayesi Awalo & Another v Mwilu Malungu & another[1999] eKLR where Nambuye J ( as she then was) stated that:“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjuncture. It is better to opt for the principle of a lumpsum award instead of estimating his income in the absence of proper accounting books.”

Minimum Wage 49. Here, the trial court found that not all Kenyans keep records of their income and relied on the decision in the case of David Kimathi Kaburu v Gerald Mwobobia Murungi (Suing As Legal Representative Of The Estate Of James Mwenda Mwobobia (Deceased) [2014] eKLR where minimum wage was considered. There, Makau J held that:“In absence of evidence of actual earnings of the deceased, the correct approach would have been to assess the deceased income by applying the basic salary which is paid to unskilled workers”.

50. In the case of Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR Musyoka J held that:“it should be clear, therefore, that the choice of whether to adopt a multiplier or a global award approach is entirely an issue of discretion depending on the circumstances of the case.”

51. In the present case, the trial court opted for the latter approach of using a multiplier. The circumstances of this case allowed the latter approach.

52. The grounds of appeal on quantum thus also fail.

Disposition 53. Ultimately, and for all the foregoing reasons the appeal fails in its entirety and is hereby dismissed with costs

54. Orders accordingly.

DATED ON THIS 7THDAY OF JUNE, 2022HON. JUSTICE R. MWONGOCourt Assistant: MurageHeyi holding brief for Kibicho & Co. Advocates (Ms. Rigaga)Chomba holding brief for Keli & Co. Mwaura for Respondent