[2022] KEHC 913 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 627 OF 2017

JOHN NJOROGE MUHIA..................................................APPELLANT

-VERSUS-

ROSE KARIMI NJOROGE (Suing as the

legal representative of the estate of

LOISE NYAMBURA NJOROGE-Deceased)..........1ST RESPONDENT

CITY HOPPER LIMITED.......................................2ND RESPONDENT

FREDRICK GITHAIGA WERU............................3RD RESPONDENT

(Being an appeal from the judgment and decree of Honourable

D.A. Ocharo (Mr.) (Senior Resident Magistrate) delivered on

27th October, 2017 in CMCC NO. 3515 of 2009)

JUDGEMENT

1. The 1st respondent who was the plaintiff in CMCC No. 3515 of 2009 instituted the suit vide against the appellant and the 2nd and 3rd respondents respectively, in her capacity as the legal representative of the estate of Loise Nyambura Njoroge (“the deceased”) through the plaint dated 5th June, 2009 and amended on 15th July, 2015 seeking both general and special damages as well as costs of the suit and interest.

2. The 2nd respondent was sued in its capacity as the registered owner of the motor vehicle registration number KAV 492S (“the first motor vehicle”) while the 3rd respondent was sued as the driver of the first motor vehicle at all material times. On his part, the appellant was sued in his capacity as the registered owner of the motor vehicle registration number KBA 205Q (“the second motor vehicle”).

3. The respondent pleaded in her plaint that sometime on or about 13th March, 2008 while the deceased was walking along the Muthithi/Mpaka Road Junction in Westlands area, Nairobi the first and second motor vehicles being negligently driven by the 3rd respondent and the appellant respectively, collided and in the process, one or both of the motor vehicles veered off the road and knocked down the deceased, causing her death. The particulars of negligence were laid out under paragraph 6 of the amended plaint.

4. The respondent also pleaded that the deceased left behind the following dependants:

a) VW Daughter 15 years

b) VN Son 8 years

c) Peter Njoroge Kamoche Father 71 years

d) Elizabeth Kaimuri Njoroge Mother 68 years

5. The 2nd and 3rd respondents entered appearance and put in their statement of defence dated 12th August, 2009 and amended on 8th September, 2015 jointly to deny the averments made in the amended plaint. The appellant also entered appearance and filed the statement of defence dated 11th September, 2009 and amended on 21st September, 2010 to also deny the averments made in the amended plaint.

6. At trial, the 1st respondent testified and called one (1) additional witness whereas the 3rd respondent and the appellant testified respectively.

7. Upon close of submissions, the trial court entered judgment in favour of the respondent and against the remaining respondents and the appellant jointly and severally, in the following manner:

a) Liability 100%

b) General damages

(i) Pain and suffering Kshs. 100,000/=

(ii) Loss of expectation of life Kshs. 150,000/=

(iii) Loss of dependency Kshs.7,600,000/=

c) Special damages Kshs. 327,281/=

Total Kshs.8,177,281/=

8. Being aggrieved by the abovementioned judgment, the appellant has now approached this court by way of an appeal. His memorandum of appeal dated 13th November, 2017 features eight (8) grounds of appeal challenging the findings on both liability and quantum.

9. The appeal was canvassed through written submissions. At the time of writing this judgment, only the submissions by the appellant and those the 2nd and 3rd respondents were on record. This court did not have the submissions filed by the 1st respondent.

10. The appellant on the one part, submits that there is no evidence to show that he was in any way to blame for the accident and that the trial court did not take into consideration the fact that at the time of the accident, he was on the correct side of the road.

11. The appellant further submits that the trial court erred in not finding the 2nd and 3rd respondents fully liable for the accident since it is the first motor vehicle that knocked down the deceased, and not the second motor vehicle.

12. It is also the contention of the appellant that the trial court ought to have taken into account the principle of contributory negligence on the part of the deceased and cites inter alia, the case of Patrick Mutie Kimau & another v Judy Wambui Ndurumo [1997] eKLRin which the court reasoned that pedestrians, just like other road users, owe a duty of care both to themselves and to other road users.

13. In the end, the appellant contends that the 1st respondent did not discharge the burden of proof in her case and hence he ought not to have been found liable.

14. On quantum, the appellant argues that the trial court erred in using a multiplicand of Kshs.50,000/= in the absence of sufficient proof of such earnings by the deceased.

15. The appellant equally faulted the trial court for applying a multiplier which fell on the higher side, being of the view that given the deceased’s age at the time of death, a multiplier of 14 years would have been adequate.

16. It is the submission of the appellant that the trial court failed to take into account the law on awards under the Law Reform Act in making the final award, thereby resulting in double compensation to the estate of the deceased. Consequently, the appellant argues that the awards made under the heads of pain and suffering and loss of expectancy ought to have been deducted from the award made under the Fatal Accident Act, drawing from the following rendition arrived at in the case of Transpares Kenya Limited & another v S M M (Suing as Legal Representative for and on behalf of the Estate of E M M (Deceased) [2015] eKLR:

“The net benefit will be inherited by the same dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the latter Act must be offset from the estate under the former Act.”

17. For the foregoing reasons, the appellant urges this court to allow the appeal and to dismiss the suit against it with costs.

18. The 2nd and 3rd respondents who filed joint written submissions argue that by virtue of the fact that the 1st respondent did not prove her case to the required standard, the same ought to have been dismissed with costs.

19. The 2nd and 3rd respondents further argue that in the alternative, since the learned trial magistrate was unable to tell exactly what happened leading up to the accident, he ought to have apportioned blame equally amongst the parties, as held in the case of Hussein Omar Farah v Lento Agencies [2006] eKLR where the Court of Appeal held that where it is not possible to tell who was to blame between two drivers, then both ought to be held liable in equal measure.

20. It is the contention of the 2nd and 3rd respondents that if liability was to be apportioned, then the trial court ought to have apportioned between the two (2) drivers in the present instance as well as the deceased, upon finding that the deceased had also contributed to the accident.

21. On quantum, it is the submission of the 2nd and 3rd respondents that in the absence of concrete evidence as to the earnings of the deceased prior to her death, the trial court ought to have relied on the minimum wage regulations, 2017 for guidance on the multiplicand.

22. Similar to the appellant, the respondents are of the view that the trial court also applied a higher multiplier of 19 years while amultiplier of 14 years would have sufficed.

23. I have considered the rival submissions and various authorities cited on appeal. As is required of an appellate court, I have re-evaluated the evidence which the trial court had the opportunity to consider, as well as the trial court’s findings on the same.

24. As earlier mentioned, the appeal touches on the findings on liability and quantum, specifically the award made under the head of loss of dependency.

25. On liability, PC Justus Chimbevo who was PW1 produced the police abstract and stated that on the material date she was at Parklands Police Station, where he received a report of the accident in question, involving the first and second motor vehicles, and the deceased who was a pedestrian at the time.

26. In cross-examination, the police officer gave evidence that he did not have the sketch plans of the scene and that he did not visit the scene of the accident, but that according to preliminary investigations, the first motor vehicle was to blame for the accident.

27. In re-examination, it was the testimony of the police officer that at the time of producing the police abstract, the matter was still pending under investigations.

28. The 1st respondent who was PW2 adopted her signed witness statement as evidence and stated that the deceased was her sister and that she came to learn of the accident upon receiving a call from MP Shah Hospital.

29. In cross-examination, the 1st respondent testified that she did not get any information pertaining to the accident from the police.

30. In re-examination, it was her evidence that the first and second motor vehicles were involved in the accident.

31. The 3rd respondent who was DW1 adopted his executed witness statement and went on to state that he was driving the first motor vehicle on the material day when the accident occurred in the location pleaded in the amended plaint, describing that the two motor vehicles collided and hit the deceased who was crossing towards Westlands at an undesignated spot.

32. The 3rd respondent stated that he has never been prosecuted in relation to the accident.

33. In cross-examination, it was his evidence that the deceased was not at the junction when the accident took place but that he had seen her as he was driving, prior to the accident taking place, but that he did not see the second motor vehicle approaching.

34. It was also the evidence of the 3rd respondent that upon being knocked by the second motor vehicle, his motor vehicle then ran into the deceased.

35. The appellant who was DW2 similarly adopted his signed witness statement and went on to testify that on approaching the junction at Mpaka Road, he slowed down but was hit by the first motor vehicle before the latter vehicle swerved and hit the deceased who was crossing the road.

36. According to the testimony of the appellant, the 3rd respondent was driving at a high speed and was therefore to blame. The appellant also blamed the deceased for crossing too close to the junction.

37. In cross-examination, the appellant gave evidence that while the collision occurred at the junction, the deceased was hit outside the junction.

38. Upon hearing the parties, the learned trial magistrate found that since the accident had taken place in the middle of the junction and in the absence of a clear indication as to how the accident occurred, then it was proper to apportion blame between the two motor vehicles. Consequently, the learned trial magistrate found the appellant, and the 3rd respondent equally liable, with the 2nd respondent being held vicariously liable for the negligence of the 3rd respondent.

39. Upon my re-examination of the evidence, it is not in dispute that the accident took place on the material date and involving the parties herein and the deceased. It is also not in dispute that the deceased died as a result of injuries sustained in the accident.

40. Upon my re-examination of the evidence, it is apparent; as the learned trial magistrate correctly pointed out; that the evidence tendered did not shed clear light on who was to blame for the accident, not even the police abstract which only stated that the matter was pending under investigations, the status and/or outcome of which were never disclosed either to the trial court or to this court.

41. In the circumstances, I am of the view that the learned trial magistrate could only consider the evidence tendered before him, including the oral evidence of the parties, and upon doing so, took the correct approach in apportioning blame amongst the drivers of the first and second motor vehicles while holding the 2nd respondent vicariously liable. In so reasoning, I am supported by the following holding by the Court of Appeal case of Abbay Abubakar Haji Patuma Ali Abdulla v Freight Agencies Ltd [1984] eKLR:

“Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them. Where, however, there is a lack of evidence, the position is different. It is difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligent and if negligence on his part cannot properly be inferred from the circumstances of the accident.”

42. On the subject of contributory negligence on the part of the deceased, upon my re-examination of the evidence, I did not come across any credible evidence on the part of the 3rd respondent and/or the appellant to show the manner in which she contributed to the accident.

43. Furthermore, while I note that the 2nd and 3rd respondents through their submissions are urging this court to interfere with the finding made on liability, I also note that they did not file a cross-appeal to challenge the decision by the trial court and I therefore have no basis on which to consider their sentiments in that respect.

44. In my reasoned view, therefore, the learned trial magistrate arrived at a reasonable finding on liability and I see no need to interfere with the same.

45. On quantum, the law sets out that an award of the trial court can only be interfered with in the following scenarios as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR:

a)Where an irrelevant factor was taken into account.

b)Where a relevant factor was disregarded.

c)Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

46. Going by the grounds of appeal and submissions filed, it is clear that the appeal is only challenging the award made under the head of loss of dependency, specifically the multiplicand and the multiplier used.

47. Under that head, the 1st respondent had proposed a multiplicand of Kshs.50,000/= together with a multiplier of 25 years and a dependency ratio of 2/3 to be tabulated as follows:

50,000 x 25 x 12 x 2/3 = Kshs.10,000,000/=

48. The 2nd and 3rd respondents did not give any proposed awardsunder this head, while the appellant suggested the sum of Kshs.5,665/= and a multiplier of 10 years with a dependency ratio of 1/3 to be tabulated as hereunder:

5,665 x 10 x 12 x 1/3 = Kshs.226,600/=

49. In his assessment, the learned trial magistrate applied a multiplicand of Kshs.50,000/= and a multiplier of 19 years and a ratio of 2/3 which he tabulated as follows:

50,000 x 19 x 12 x 2/3 = Kshs.7,600,000/=

50. On the multiplicand, the 1st respondent tendered documentary evidence to support her testimony that the deceased operated a cleaning business namely Lovic Cleaning Services as well as a separate business namely Rony Delight Enterprises at all material times and that she had qualifications as a beautician.

51. Regarding the earnings/income of the deceased, upon my study of the evidence tendered by way of bank slips, I note that the amounts deposited and referred to as earnings vary but do not indicate earnings in the sum of Kshs.50,000/= per month, thereby making it unclear how the learned trial magistrate arrived at the multiplicand of Kshs.50,000/=.

52. In view of the foregoing, I am of the view that the minimum wage regulations would not apply since the deceased was engaged in business as opposed to formal employment. Similarly, in the absence of any recent evidence to show her earnings just prior to her death, I deem it reasonable to apply the approximate average of her earnings going by the most recent bank slips produced in the year 2006, which range from Kshs.6,500/= to Kshs.8,000/=. Upon doing so, I arrived at the sum of Kshs.7,000/=. I will therefore apply that sum as the multiplicand.

53. On the multiplier, the evidence tendered shows that the deceased was aged 41 years when she died. I considered the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLRwhere the court upheld use of a multiplier of 19 years, and the case of Kimunya Abednego alias Abednego Munyao v Zipporah S Musyoka & another [2019] eKLRin which the court also upheld use of a multiplier of 20 years. In both instances, the respective deceased persons died at a similar age as the deceased herein.

54. In view of the foregoing circumstances, I find the multiplier of 19 years applied by the learned trial magistrate to be reasonable and I see no reason to interfere with it.

55. Consequently, the tabulation of the awards under this head shall be:

7,000 x 19 x 12 x 2/3 = Kshs.1,064,000/=

56. In respect to the question of double compensation which was raised on appeal by the appellant, I make reference to the case of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (2015) eKLRwhere the subject was elaborated as follows:

“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…”

57. More importantly, the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLRappreciated that:

“In my view what section 2(5) of the Law Reform Act means is 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. To be taken into account and to be deducted are two different things. The words used in s. 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should not be taken into account and not necessarily deducted…There is no requirement in law or otherwise for him to engage in a mathematical deduction…”

58. Going by the above, it is clear that the 1st respondent was lawfully entitled to seek general damages under this head and there was no need for the learned trial magistrate to deduct the damages awarded from the total award.

59. The upshot is that the appeal partially succeeds. Consequently, the award of Kshs.7,600,000/= made on general damages for loss of dependency is hereby set aside and is substituted with an award in the sum of Kshs.1,064,000/=. The finding on liability by the trial court is upheld.

60. For the avoidance of doubt, the judgment on appeal is as follows:

a) General damages

(i) Pain and suffering Kshs. 100,000/=

(ii) Loss of expectation of life Kshs. 150,000/=

(iii) Loss of dependencyKshs.1,064,000/=

b) Special damages Kshs. 327,281/=

Total Kshs.1,641,281/=

c) The 1st respondent shall have interest on special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full.

d) Parties to bear their respective costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

..........................

J.K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the 1st Respondent

……………………………. for the 2nd and 3rd Respondents