[2022] KEHC 1257 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. E079 OF 2021

JUSTO MUNGATHIA MWITHALIE.................................................1ST APPELLANTS

GEORGE MWITI DAVID...................................................................2ND APPELLANTS

VERSUS

JOSEPH MAORE ANGACIA & AGNES KAGWIRIA

(Suing as the legal representative of the estate of EKM (deceased)......RESPONDENTS

(An appeal from the Judgment and Decree of Hon. C.K Obara

(P.M) in Maua CMCC No. 180 of 2017) delivered on 17/5/2021)

JUDGMENT

1. By a Plaint dated 12/03/2018, the respondents sued the appellants seeking general damages under both the Law Reform Act and the Fatal Accidents Act for lost years, special damages, costs of the suit plus interest.

2. The respondents’ claim was that on or about 6/4/2016, the deceased was a turn boy and/or loader travelling in motor vehicle registration No. KBQ 998 U Isuzu Lorry along Ndumuru road when the 2nd appellant drove the said lorry carelessly, negligently and/or recklessly that it lost control, veered off the road and overturned thereby fatally injuring the deceased. The deceased was at the time of the accident aged 22 years and a loader and/or turn boy earning a monthly net income of Ksh.20,000. He left behind his father, a widow and 2 children and by his death his estate has suffered loss and damage for which he seeks damages.

3. The appellants denied every bit of the claim through the joint statement of defence dated on 28/2/2018 and prayed for the respondents’ suit to be dismissed.

4. The ownership of the lorry, the occurrence of the accident, the involvement of the deceased and even the death were all denied. In the alternative it was pleaded that if the accident ever occurred as pleaded that it was inevitable and that the deceased had stolen a ride. After trial, the trial court found that the respondent had proved his case on a balance of probabilities and entered judgement in his favour against the appellants as follows:

a) Liability 100%

b) Pain and suffering Ksh.60,000

c) Loss of expectation of life Ksh.100,000

d) Loss of dependency Ksh.2,800,000

Total=Ksh.2,960,000

5. Aggrieved by the said decision, the appellants filed the Memorandum of Appeal on 16/6/2021 listing three (3) grounds of appeal. The three grounds assert that the trial Court erred in apportioning liability at 100%; the trial court erred in awarding excessive sum for loss of dependency and that the trial court misdirected itself by applying the wrong principles in the assessment of the damages payable to the respondents.

6. This being a first appeal, this Court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the Court must bear in mind that it did not have the advantage of seeing the witnesses testify. See Selle v Associated Motor Boat Co. & others [1968] E.A. 123.

7. The summary of the evidence before the trial court as led by, PW1 Joseph Maore,the 1st respondent was that the deceased was his son, who was involved in a road traffic accident on 6/2/2016 while aboard motor vehicle registration No. KBQ 998 U occasioning him fatal injuries. At the time of his death, the deceased son was working as a turn boy and/or loader in the said vehicle owned by the 1st appellant was aged 22 years and was survived by a wife and 2 children. Although the deceased was a sand loader, he did not know how much he earned, but he approximated the same to be about Ksh.1500 per day and that he used the proceeds from his employment to maintain his young family as well as his (PW1’s) financial needs. He blamed the untimely death of his son on the appellants’ negligence. Since the death of his son, the deceased children and himself were depended on the mercy of well -wishers.

8. He produced limited grant, copy of police abstract, copy of death certificate, copy of statutory notice, copy of postmortem report, copies of receipts in support of special damages, copy of ID cards and letter from area chief dated 14/11/2016 as exhibits in support of his case.

9. During cross examination, he stated that the deceased wife left the children at home in his care and the care of his wife. He recounted that when he visited the scene, he found the lorry lying on the deceased.

10. In re-examination, he stated that he and his wife took care of the deceased’s children who were school going.

11. DW1 Justo Munathia admitted that he was the registered owner of the subject lorry which was being driven by his employee George Mwiti. He produced the investigation report by counter track as DEx.1 and stressed that the deceased was not his worker.

12. During cross examination, he stated that he was not present at the time of the accident. His employee was only the driver, who had his authority to take people to assist him in loading the lorry with goods. In re-examination, he stated that he had lost contact with the driver.

Submissions

13. In the filed submissions the appellants faulted the trial court for concluding that the deceased was a loader engaged by the 2nd appellant yet the 2nd appellant had denied knowledge of the deceased in the report by counter track investigators. They relied on Edwin Chiroto Mandera v Mureithi Charles & anor (2019)eKLR, on the duty upon the respondents to prove that the deceased was the appellants’ employee. They also faulted the trial court for trying to supply its own theory to arrive at a conclusion that the deceased was a loader engaged by the 2nd appellant, whilst there was no evidence to that effect then cited Abbay Abubakar Haji v Marain Agencies Company & Anor (1984)KCA 53 where the Court of Appeal held that, the duty of the court to arrive at a finding of facts, however difficult the circumstances may be, does not extend to supplying a theory as to what happens when the inferences from the primary facts do not inevitably point that way. They blamed the deceased for knowingly exposing himself to danger by boarding a lorry as an excess passenger, and not fastening a safety belt. They cited Rabbi Kiogora Angaine v Jane Karimi Nduati (2020)eKLR, where the court apportioned 50% liability to a plaintiff where it was unclear how he fell off the vehicle while the others remained intact. They also relied on Kanale David Amukuhuma v United Millers Limited (2019) eKLR and Oscar Omondi v H.S Amin & Co Ltd (2011)eKLR, on the significance of fastening seat belts and urged the court to apportion liability at 50:50, as the deceased had subsequently contributed to the occurrence of the accident.

14. On quantum, they faulted the trial court for applying the wrong principles thus arriving at excessive awards, by adopting a multiplicand of Ksh.10,000 despite there being no proof of earnings. They relied on Eston Mwirigi Ndege & Anor v Patrick Gitonga Mbaya(2018)eKLR, for the holding that, where the earnings of a deceased cannot be ascertained, the global/lump sum approach should be applied. They faulted the trial court for adopting a multiplicand of Sh.10,000 which was not based on any sustainable legal principle or factual backing and relied Moses Koome Mithika & Anor v Doreen Gatwiri & Anor(Suing as the legal representative and administrator of the estate of Phineas Murithi(deceased)2020 eKLR, for the proposition that, the regulation of Wages(Agricultural Industry) Amendment Order,2017 will only be used as a multiplicand where there is evidence to support such application. They concluded that a global sum of Ksh. 1,000,000 for loss of dependency would have sufficed.

15. On their part, the respondents submitted that the police abstract clearly showed that the deceased was a loader and there was no evidence by DW1 that he had expressly forbidden the driver from carrying anyone else but him in the lorry. They relied Ormond v Crossville Motors Service[1953 2 ALL ER 753] where it was held that, the owner of a vehicle was also liable for the negligence of the driver if that driver is with the owner’s consent driving the car on the owner’s business or for the owner’s purposes. They submitted that the 1st appellant was vicariously liable for the actions and omissions of the 2nd appellant, who was his agent and that, in the absence of evidence by the 2nd appellant the respondent’s testimony remained uncontroverted. In urging the court to uphold the trial court’s decision on liability, they relied on Dismas Muhami Wainarua v Sopon Kasirimo Maranta (Suing as administrator and/or personal representative of the estate of Partini Supon(deceased)(2021)eKLR in support thereof.

16. On quantum, they frowned upon the appellants’ sudden change of heart as they had during the trial proposed the adoption of the minimum wage approach, yet they were now urging the court to adopt the global sum approach. They submitted that there was evidence to support the adoption of Ksh.10,000 for the deceased who was a turn boy and urged the court not to disturb it. They relied on Tipper Hauliers Limited & Salim Jalala Mwaita v Mercy Chepngeno Towet & Anor(2021)eKLR, where the court held that where there is no documentary evidence to prove earnings that the deceased was receiving as a driver, the minimum wage for a driver should be applied. They urged the court to dismiss the appeal with costs, as the appellants had failed to prove how the deceased had contributed to the occurrence of the accident.

Analysis and determination

17. I have distinguished the appellants’ complaint to be two fold; that apportionment of liability at 100% was unmerited and that the award of Kshs 2,800,000 for loss of dependency was excessive and demonstrate an erroneous estimate of damages.

18. On the apportionment of liability, the appellants contend that liability should have been apportioned in the ratio of 50:50, whilst the respondents maintain that the appellants were wholly to blame and support the finding by the trial court. It is not disputed that none of the witnesses who testified witnessed how the accident had taken place, save for the 2nd appellant, who never testified. What is clear from the police abstract is that in deed, an accident did take place on the material day involving the lorry and the deceased. The only evidence on behalf of the respondent was by PW1, whose testimony was that the deceased worked on the accident lorry and used the income to support a wife and two children. That was not subjected to any cross examination on critical issue of employment. The answers elicited in cross examination had more to do with the dependants of the deceased but not how the accident occurred. Even the evidence by the 1st appellant had nothing to shed light on how the accident occurred. It is very accurate to say that no evidence of an eye witness was offered and thus no account of how the accident occurred was availed to court. Moreover, an investigations report by Counter track Investigators CO Ltd, produced by the defendant/appellant with the consent of the plaintiff/respondent had the statement of the driver, confirmed that the accident was self involving. In that statement, the 2nd appellant states that he hit a trench in the road, the lorry lost control, veered off the road, strayed to the right side and hit a tree before landing on its side. That the lorry lost control and overturned on its own proves that the 2nd appellant never maintained expected control and was wholly to blame for the accident and the deceased having not been in control could not in any way have contribute to the same.

19. While the respondent asserted that the deceased worked in the lorry as a turn boy, DW1 admitted being the owner of the subject lorry, he had employed the 2nd appellant as his driver but denied having known the deceased. He however admitted during cross examination that, “my employee was the driver only. The driver usually has his people who assist him.”

20. Having said so, the only person who would have denied inviting the deceased into the motor vehicle was the 2nd appellant who however never gave evidence. The importance and import of the evidence of 1st appellant was that he had given the 2nd appellant the leeway and authority to carry people to assist him in loading goods into the lorry. I find that the 1st appellant was vicariously liable for the actions and omissions of the 2nd appellant.

21. The doctrine of vicarious liability was expounded in the celebrated case of Morgan v Launchbury(1972)2 All ER 606, where it was stated that: -

‘‘...to establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner… The case of HCM Anyanzwa & 2 others –vs-Lugi De Casper & Anor (1981) KLR 10 stated that “vicarious liability depends not on ownership but on the delegation of tasks or duty.’’

22. Flowing from DW1’s admission that he had employed the 2nd appellant as his driver to drive the subject lorry, it therefore follows that any act or omission of negligence by the 2nd appellant makes the 1st appellant vicariously liable. I therefore find that in the absence of any other contrary evidence, the appellants were 100% liable for the occurrence of the accident and therefore uphold the finding by the trial court.

23. Moving on to whether the award of ksh. 2,800,000 for loss of dependency was excessive, the Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, in appreciating that the assessment of damages is a discretion of the trial court held that:-

“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

24. The appellants in faulting the trial court on the award of Kshs 2,800,000 for loss of dependency, contend that a multiplicand of Kshs 10,000 was erroneous as the deceased earnings had not been proved. They further deny ever employing the deceased as a turn boy and that he was the author of his misfortunes hence a global sum of Kshs1,000,000 for loss of dependency would have sufficed.

25. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:-

“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

26. PW1testified that, the deceased had 2 children and a wife, used to load sand (loader) he didn’t know how much he used to earn but approximated it at about 1,500 per day. When cross examined, he stated that the mother to the children had left them in their grandmother’s care. According to the chief’s letter, the deceased was survived by a wife and 2 children. That letter is proof on a balance of probabilities that the deceased had a wife and 2 children. The appellants do not dispute the existence of the dependants of the deceased but are only sceptical of his earnings.

27. The law is that where there is no evidence of income the court is free to resort to the minimum wage and it matters not that the work is informal or menial (Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu (2021) eKLR). That is what the trial court evidently did in the judgement for which I find no error.

28. In the case of Francis Righa v Mary Njeri (Suing as the Legal Representative of the estate of James Kariuki Nganga(2021)eKLR, the court of Appeal had this to say on the choice of multiplier and multiplicand to be adopted in assessing damages for loss of dependency;

‘‘…on the choice of a multiplier and multiplicand, we take it from the decision of the court in the case of Roger Dainty versus Mwinyi Omar Haji & Another 2004 that to ascertain a reasonable multiplier in each case, the court should consider relevant factors like the income of the deceased, the kind of work he was engaged in before his death, the prospects of promotion and his expectations of working life.’’

29. The trial court in adopting a multiplicand of Ksh.10,000 being the minimum wage for a turn boy, appreciated that the deceased earnings had not been proved.

30. I find that the trial court properly took into consideration the age, good health and physical wellness of the deceased in adopting the multiplier, multiplicand and dependency ration before computing and awarding the sum of Kshs 2,800,000 for loss of dependency.

31. The upshot and conclusion from the foregoing analysis and findings is that the appeal is devoid of merit and it is dismissed with costs.

DATED, SIGNED AND DELIVERED THIS 18TH DAY OF MARCH 2022

Patrick J.O Otieno

Judge

In presence

Mr. Maleli for appellant

No appearance for the respondent

Patrick J.O Otieno

Judge