[2022] KEHC 18044 (KLR)

Guardian Bus Coach Limited & another v Omanga & another (Suing as the Legal Representatives of the Estate of the Late Rayson Mogaka) (Civil Appeal 132 of 2021) [2022] KEHC 18044 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 18044 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 132 of 2021

REA Ougo, J

November 11, 2022

Between

Guardian Bus Coach Limited

1st Appellant

Joanes Juma Dalmas

2nd Appellant

and

Andrew Omanga

1st Respondent

Winfred Kwamboka

2nd Respondent

Suing as the Legal Representatives of the Estate of the Late Rayson Mogaka

(Being an appeal from the judgment delivered by Hon. E.A Obina Principal Magistrate on the 19th October 2021)

Judgment

1. The respondents were the plaintiffs before the lower court and lodged their suit against the appellants following a road traffic accident that occurred on 26th October 2019. According to the plaint the Rayson Mogaka Ong’uti (deceased) had alighted from Motor Vehicle Registration number KBK 608V after parking the vehicle off the road along Keroka-Kisii road at Birongo area when the 1st appellant’s driver negligently controlled motor vehicle registration no. KBW 514P causing it veer off the road and hit the deceased who suffered fatal injuries. It was alleged that the deceased was 30 years old and in good health earning Kshs 30,000/- per month. It was also averred that the deceased was married and had 2 children and supported his parents. The respondent sought general damages, special damages, cost and interest.

2. The appellants in their defence denied any occurrence of an accident. In the alternative, they averred that if there was any accident then the accident was solely caused by the deceased’s negligence. They advanced that the deceased failed to take adequate precaution for his own safety and stepped on to the road when it was unsafe to do so.

3. The matter was set down for hearing before the trial magistrate and the respondent called 3 witnesses while the appellants had one witness. The trial court at the end of the hearing found the appellant 70% liable for the accident and made the following award:1. Pain and Suffering Kshs 50,000/-2. Loss of expectation of life Kshs 100,000/-3. Loss of Dependency Kshs 6,048,000/- (28 x 2/3 x 12 x 27,000/-)4. Special Damages Kshs 30,550/-Less 30% Contribution Kshs 4,233,600/-

4. The appellants being dissatisfied with the judgment of the trial court has lodged this instant appeal on the following grounds:1. The learned magistrate (sic) in law and misdirected himself when he failed to consider the applicants submissions on both points of law and fact.

2. That the learned magistrate’s decision was unjust, against the weight of the evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.

3. That the learned magistrate erred in law and misdirected himself when he (sic) failed to consider the provisions set out in the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013, CAP 405.

4. The learned magistrate erred in law and in fact in finding the Defendants/Applicants 70% liable in view of the evidence before the trial court ad in particular the following:a.That the plaintiff respondent failed to prove his case on liability against the defendants

5. That the learned magistrate erred in law and in fact in awarding the estate of the pain and suffering while not considering the deceased passed on the following day.

6. The learned magistrate erred in law and fact by awarding the estate of the deceased a sum for loss of expectation of life when it was not entitled to the same and/or the same was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.

7. The learned magistrate erred in law and in fact in awarding the estate of the deceased a sum of Kshs 6,048,000/- for loss of dependency that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the estate of the deceased.

8. The learned magistrate erred in using a sum of Kshs. 27,000/- as an amount for minimum wage.

9. The Learned Magistrate erred in fact and in law in failing to consider the appellant’s submissions on quantum and liability and legal authorities relied upon in support thereof.

10. The Learned Magistrate erred in law and fact by overly relying on the Respondent’s submissions which were not relevant and without addressing his mind to the circumstances of the case.

11. The Learned Magistrate erred in fact and in law in filing to consider conventional awards in cases of similar nature.

Submissions 5. The appeal was disposed of by way of written submissions. The appellants in their submissions challenged the evidence of the eye witness who testified that they plied the Kisii-Keroka route. They argued that when the deceased parked on the sharp corner he was negligent. The appellant contend that the fact that its driver was charged for careless driving does not connote that the appellant is liable for the accident as there is also the aspect of contributory negligence.

6. It was further submitted that the appellant did not seek compensation under the Law Reform Act. It was not enough that the respondent generalize that they suffered loss under the Law Reform Act and the Fatal Accident Act. They relied on the case of Mohammed Hassan Musa v Peter M. Mailanyi & Another [2000] eKLR where the court adopted the holding in Kenya Bus Services v Mayende where Lord Goddard C.J in Bonham Center v Hyde Park Hotel expressed himself as follows:“Plaintiffs must understand that if they bring actions for damages, it is not enough to write down particulars and so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me’.”

7. On the award of pain and suffering it was submitted that an award of Kshs 10,000/- would be adequate compensation as the deceased died a day after the accident. They cited the case of James Gakinya Karienye & Anor (suing as the legal rep of the estate of David Kelvin Gakinya (deceased) v Perminus Kariuki Githinji (2015) eKLR where the court awarded Kshs 10,000/-. On loss of expectation of life they proposed an award of Kshs 50,000/- and relied on the case of Gakinya Karienye (supra) where an award of Kshs 80,000/- was made to a deceased person aged 28 years.

8. On the award of Fatal Accident Act, it was submitted that Pw1 indicated that she was married to the deceased but did not produce a marriage certificate or birth certificate for the children. In Eliphas Mutegi Njeri & Another v Stanley M’mwari M’atiri Civil Appeal No 237 of 2004 where it was held that:“As regards the failure of the Superior Court to take into consideration the award under the Fatal Accidents Act when arriving at the award under the Law Reform Act the principle is that the award under the Fatal Accident Act has to be taken into account when considering awards under the Law Reform Act for the Simple Reason that the dependants under the Law reform ct are the same beneficiaries of the estate of the deceased in the latter Act…Accordingly, the award of Kshs 890,000/- reduced by Kshs 100,000/- to Kshs 790,000/-.”

9. It was argued that there was no evidence to support the adoption of the multiplicand of 2/3. There was also no documentation produced that the deceased earned Kshs 30,000/- as a driver. The respondent failed to prove KRA documents showing his income or a public service license. They urged the court to consider the regulations of wages (minimum wages) prior to the death of the deceased for an unskilled employee which are regulated at Kshs. 6,736. 30/-. As for the multiplier, they urged the court to adopt a multiplier of 12 years.

10. The respondent in their submissions urged the court to find the appellants 100% liable for the accident. The deceased died one day after the accident and must have undergone severe pain. In Alice O. Alukwe v Akamba Public Road Services Ltd & 3 Others 2013 eKLR the court awarded Kshs 50,000/- for a deceased person who died on the spot. They submitted that Pw1 gave evidence that the deceased was the bread winner of the family and the dependency ratio of 2/3 was reasonable. It was argued that the respondent proved that the deceased was a driver and there was no contrary evidence tabled by the appellant. Pw2 who was the deceased colleague testified that they were paid between Kshs 1,200/- to Kshs 1,500/-. The deceased was 32 years and had 28 years to work. It was also submitted that the respondent produced all receipts to support their claim on special damages.

Analysis and Determination 11. The appellant has challenged the liability apportioned on them by the trial magistrate court. The duty of the first appellate court is to subject the entire evidence adduced in the lower court to scrutiny and draw its own conclusion while bearing in mind that it did not see or hear the witnesses testify. ( see Selle & Another vs Associated Motor Boat Co. Limited & Others [1968] EA 123).

12. Wilfred Kwamboka Kebunge (Pw1) testified before the trial magistrate that she is 26 years and that the deceased was her husband. She adopted her statement as her evidence in chief. She testified that on 26th October 2019 she received a phone call from her husband’s employer, ‘John’, who told her that the deceased had been involved in an accident. They took the deceased to Kisii Level 6 Hospital. The deceased was brought home heavily bandaged on 27th October 2019. However, they made a decision to take him back to hospital because of his condition and as he was being examined, he died. Pw1 testified that her husband was the sole bread winner.

13. David Ogige Nyamora (Pw2) and adopted his statement as his evidence in chief. He testified that he had accompanied the deceased to Kisii from Keroka. They then left for Keroka and picked passengers. On reaching Motureumesi junction at Birongo, some of the passengers requested to alight. The deceased parked the vehicle off the Kisii-Keroka Road to pave way for the passengers who wanted to alight. Pw2 testified that he was seated behind the driver’s seat when he saw the deceased alight so that he could open the door for the passengers to alight. Suddenly Pw2 saw the deceased hit by the 1st appellant’s bus. The deceased’s body was lying down and the bus stopped 100 meters from the scene. When Pw2 told the 2nd appellant that he had caused the accident, the driver informed him that they should meet at Keroka Police Station. He called a police officer at Keroka and informed him of what had transpired. Pw2 testified that he earned between Kshs. 1200 to Kshs 1,500/- as a driver.

14. No. 702200 PC Moses Kipkosgei (Pw3) from Keroka police station testified that they received information of the accident from a motor cycle rider who came with an eye witness who was in a vehicle with the deceased. The victim had been taken to hospital after being hit by a Guardian bus. He testified that the matter was reported by 2 riders and he went to the scene and marked it. He drew sketch maps thereafter. Pw3 blamed the appellant’s driver for the accident.

15. Joanes Juma Dalmas (Dw1) testified that on the material day he was driving at 35Km/h and that it was raining. When he got at Birongo, he saw a matatu parked on the side of the road and on the opposite side of the road was a trailer. He kept on his lane and on reaching Keroka he was signalled to stop. The vehicle was inspected and they found no scratch. On cross examination he testified that the inspection revealed scratches on the left side. He also testified that he did not realize anything out of the ordinary after meeting the vehicle.

16. According to the testimony of Pw2 an accident did occur involving the 1st appellant’s motor vehicle. It is not in dispute that the accident occurred the 1st appellant’s driver did not stop to respond but was stopped by the police upon arriving at Keroka. The appellant have challenged liability as apportioned by the trial magistrate on grounds that the evidence points to the deceased parking on sharp corner of a busy road. Indeed, liability that should be apportioned to the respondent as the deceased failed to park the vehicle at a bus stop or a place designated for passengers to alight. The 30% liability apportioned by the trial magistrate cannot be faulted as the evidence from Pw2 indicates that Dw1 veered off the road having testified that the matatu was parked off the road. In fact, after the accident Dw1 fled the scene of the accident. He did not stop to respond to the victim of the accident and was only stopped by police officers in Keroka.

17. I now turn to consider whether the award of damages was excessive as claimed by the appellant. After carefully reading the plaint filed before the magistrate’s court, the respondent’s claim was both under the Law Reform Act and Fatal Accident Act. The damages awarded by the trial magistrate were therefore under both heads. An appellate court will only interfere with an award of the trial court in general damages if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 at page 356 Law JA stated:"…an appellate court will not disturb an award of damages unless it is so, inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low."

18. The respondent was awarded Kshs 50,000/- for pain and suffering and Kshs 100,000/- for loss of expectation of life. The appellant proposed Kshs 10,000/- as adequate award on the head pain and suffering as the deceased died on the following day. In West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) [2019] eKLR the court observed that-“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”

19. According to the deceased’s Certificate of Death, the deceased died on 27th October 2019. Pw1 testified that they took the deceased back to hospital after he had been brought home and he died while he was being examined. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court stated as follows-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

20. The trial magistrate awarded Kshs 50,000/- for pain and suffering and Kshs 100,000/- for loss of expectation of life. In my view, the award by the trial magistrate cannot be faulted as there was evidence that the deceased died after undergoing treatment and in my view there was prolonged suffering. Similarly, I do not find the award made under the head loss expectation of life excessive.

21. I now turn to consider the award made by the trial magistrate under the Fatal Accident Act. The respondent’s case was that the deceased was a driver earning Kshs 30,000/- per month. The respondent’s however failed to produce the deceased’s driving licence. However, according to the evidence of Pw2, they had been ferrying passengers along the Kisii-Keroka route and in my view, the deceased could not have ferried passengers without a driving licence as the relevant authorities would have apprehended him. There is no dispute that the deceased died in the course of his duty. Therefore, I find that there was sufficient evidence from the respondent that the deceased was a driver at the time of his death.

22. According to the Regulation of Wages (General) (Amendment) Order the monthly salary for a driver of cars and light vans in 2019 was Kshs 13,975. 30/-. There was evidence that the deceased had a wife and children who depended on him. Pw2 testified that she was married to the deceased and produced birth certificates for the children. The deceased was also alleged to have supported his parents. The dependency ratio of 2/3 adopted by the trial court cannot therefore be faulted and I have no reason to disturb that finding.

23. The deceased herein was 32 years old at the time of his death and the trial court used a multiplier of 28 years. This in my view was rather high considering the risks involved by those who are engaged in the transport industry. In South Sioux Farms Limited v Jane Nyambura Kinuthia [2021] eKLR the court applied a multiplier of 12 years for a deceased who was a matatu driver who died at the age of 38 years. In this regard, I find that a multiplier of 18 years would be most appropriate in the circumstance.

24. The trial magistrate awarded special damages at Kshs 30,550/- comprising of expenses incurred towards obtaining letters of administration ad litem, copy of records ad post-mortem report. However no receipts were produced from the advocate on the legal fees. Similarly the respondent did not adduce receipts showing that Kshs 10,000/- was incurred for the post mortem report. Therefore, the respondent only proved payment of Kshs 550/- made towards the motor vehicle search.

25. In the end, I find the appeal to be partly successful to the extent that I set aside the trial court’ award of Kshs 6,048,000/- and substitute it with a sum of Kshs 2,012, 443. 20/-being (18 x 12 x 13,975. 30 x 2/3) as damages under the Fatal Accidents Act. Special damages proved by the respondent was Kshs 550/- and the award of 30,550/- under this head is set aside. For avoidance of doubt, judgment for the respondent against the appellants shall be made up as follows:a.Fatal Accidents Act Kshs. 2,012, 443. 20/-b.Pain and suffering Kshs. 50,000. 00/-c.Loss of expectation of life Kshs. 100,000. 00/-2,162,443. 20/-Less 30% contribution 1,513,710. 24/-d.Special Damages 550. 00/-Total Kshs 1,514,260. 24/-

26. The appellant shall have half the cost of the appeal.

DATED, SIGNED, AND DELIVERED AT KISII THIS 11THDAY OF NOVEMBER 2022 ON LINE VIA MICROSOFT TEAMS AT BUNGOMA.R.E. OUGOJUDGEIn the Presence of:Mr. Nganga For the AppellantsMr. Anyona For the RespondentMs. Aphline Court Assistant