[2022] KEHC 27056 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO.15 OF 2020

BETWEEN

HARON NYAMIRA MOGAKA...................................................................................APPELLANT

AND

LUKIO BONYO MANYUANDA

(Suing as a legal representative of the estate of Margaret Achieng Bonyo-deceased).....RESPONDENT

(Being an Appeal from the judgment in Oyugis Principal Magistrate’s PMCC No. 222 of 2017

by Hon. Celesa Okore–Senior Resident Magistrate).

JUDGMENT

1. Haron Nyamira Mogaka, the appellant herein, was the defendant in Oyugis Principal Magistrate’s PMCC No. 222 of 2017. This was a claim that arose from a road traffic accident involving motor vehicle registration number KBK 894C owned by the appellant. The deceased was a pillion passenger on motor cycle KMCS 182 B. The driver of motor vehicle registration number KBK 894C veered off the road and hit the motor cycle. The deceased was fatally injured. The respondent sued on behalf of her estate. The learned trial magistrate delivered judgment dated 20th February, 2020. She apportioned liability at 90:10 in favour of the respondent against the appellant. An award of Kshs. 1,959,345. 00 in general damages in favour of the respondent was given.

2. The appellant was aggrieved by the said judgment and filed this appeal. He was represented by the firm of Mose, Mose & Milimo & Company Advocates. He raised four grounds of appeal as follows:

a) The learned trial magistrate erred in law and fact in holding the defendant 90% liable when the plaintiff did not lead any evidence to prove his case on a balance of probability.

b) The learned trial magistrate erred in law and fact by pronouncing judgment in favour of the plaintiff in the absence of an eye witness and/or any other concrete evidence in support thereof.

c) The learned magistrate erred in law and fact by using the defendant’s evidence in totality to aid the plaintiff’s case contrary to the law that the burden of proof lay squarely on the part of the plaintiff.

d) The learned magistrate erred in law and fact by ignoring the fact the deceased was an excess passenger in the motor cycle she was traveling on contrary to the Traffic Act and ought to have been held liable on that account.

e) The learned trial magistrate erred in law and fact by invoking far-fetched evidence to breathe life to the plaintiff’s case in the absence of key witnesses from the part of the plaintiff to attest as much.

f) The learned magistrate erred in law and fact by holding the income of the deceased to be kshs.18, 000/- in contravention to the law applicable regarding minimum wage for unskilled laborers.

g) The learned magistrate erred in law and fact by calling the defendant to controvert the plaintiff’s evidence on income yet the law on the same is very clear in the absence of proof of income.

h) The learned magistrate erred in law and fact by holding the age of the deceased to be 45 years without any documentary evidence and adopting a multiplier of 15 years without taking into account the vagaries of life.

i) The learned magistrate erred in law and fact by holding the defendant 90% liable on hearsay evidence contrary to the law.

j) The learned magistrate erred in law in making a finding of excessive damages against the defendant.

k) The learned magistrate erred in law and fact in awarding unreasonable loss of dependency of kshs.2, 160,000, without taking into consideration the vagaries of life.

l) The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to special damages of kshs.26,550/- without concrete documentary evidence.

m) The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to net damages of kshs.1,985,895/-.

n) The learned magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages.

o) The learned magistrate erred in law and fact in failing to appreciate that the plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining the excessive award of damages.

p) The learned magistrate erred in law and fact in entering judgment in favour of the plaintiff against the defendant in spite of the plaintiff’s miserable failure to establish his case more especially on quantum.

q) The learned trial magistrate erred in law and fact in failing to appreciate the legal position to be considered. The court award is unsustainable and baseless in the circumstances.

3. The appeal was opposed by the respondent through the firm of Nyatundo & Company Advocates.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. In his submission, through his advocate, the respondent contended that liability was arrived at by consent of the parties. I have painstakingly perused the record but did not come across the alleged consent. Although the respondent contended that the consent was recorded on 1st August 2019 the record on that date or any other does not support this claim.

6. The judgment of the learned trial magistrate also suggest that she arrived at the liability on evaluating the evidence. The trial court had two conflicting versions of how the accident occurred; each party blaming the other. The correct approach was to apportion liability on both equally as was held in the case of Hussein Omar Farah vs. Lento Agencies [2006] eKLR. The court said:

The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.

In the instant case, I set aside the finding on liability by the trial court and substitute with a liability of 50:50.

7. The respondent did not proof that the deceased was earning Kshs. 18,000. 00 per month. In absence such a proof, the correct approach would have been that of a global award. When Ringera J.(as he then was) was confronted by a similar issue opined, in Kwanzia vs. Ngalali Mutua and citedD.M.M (Suing As The Administrator And Legal Representative Of The Estate Of L K M vs. Stephen Johana Njue & another [2016] eKLRas follows:

The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as age of deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation, where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.

8. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349at 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.

9. In this submissions on appeal, the appellant has proposed a sum of Kshs.571, 692. 00. In the trial court the respondent had proposed an award of Kshs. 3 million. I have perused the authorities relied upon by both parties. Taking all circumstances in consideration, my opinion is that a global award of Kshs. 1, 200,000. 00 would be adequate compensation. I therefore set the award in general damages and substitute it with an award of Kshs. 1, 200,000. 00. The special damages were not challenged. I therefore do not interfere with the award of Kshs. 25,550. 00 special damages. The award will be subject to50% contributory negligence.

10. Since the appeal has partially succeeded, the respondent will bear half the costs in this court.

DELIVERED AND SIGNED AT HOMA BAY THIS 1ST DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE