[2023] KEHC 24919 (KLR)

Kabora & another (Suing as the legal representative of the Estate of Esther Gathigia Mwangi (Deceased)) v Mwangi (Civil Appeal E015 of 2021) [2023] KEHC 24919 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24919 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Civil Appeal E015 of 2021

AK Ndung'u, J

November 8, 2023

Between

Joseph Mwangi Kabora

1st Appellant

Maryrosa Muthoni Mwangi

2nd Appellant

Suing as the legal representative of the Estate of Esther Gathigia Mwangi (Deceased)

and

Charles Ndungu Mwangi

Respondent

(Appeal from original Decree passed on 26/09/2019 in Nanyuki CM Civil Case No. 41 of 2018-V.M Masivo, RM)

Judgment

1. The Appellants are the uncle and sister and the legal representative of the estate of Esther Gathigia Mwangi who passed on in a fatal road accident.

2. By a plaint dated 05/04/2018, the Appellants sued the Respondent seeking damages under the Law Reform Act and the Fatal Accidents Act, special damages and interest. The Appellants averred that on or about 23/04/2015 at around 1730hrs along Naromoru Nyeri road at Aguthi area, the Deceased was lawfully walking as a pedestrian on the pedestrian path when the Respondent carelessly and/or negligently drove with impunity by over speeding, managed and/or controlled motor vehicle registration number KAK 996V Mitsubishi Lorry causing the said vehicle to lose control, veered off the road to the pedestrian walk violently hitting the Deceased occasioning her fatal injuries as a result of which she died.

3. The Respondent did not enter appearance and upon request, an interlocutory judgment was entered against him on 18/03/2019. The matter proceeded for formal proof hearing with the Plaintiffs calling 2 witnesses.

4. PW1 was the Deceased’s uncle. He testified that he did not witness the accident. He stated that the accident occurred at around 6:00 to 6:30 pm and as a result, the Deceased succumbed to injuries. She was a farmer and she had one cow and would grow beans, maize and potatoes which she would sell. She would sell the milk as well. The Deceased had a child who was 17 years at the time of her death. He stated that the child was at Mathenge Polytechnic and he was paying for his school fees to a tune of Kshs.65,000/- per year. He produced the Plaintiff’s Documents as Pexhibit1-11.

5. PW2 PC Sammy Musili testified that an accident was reported at the station involving motor vehicle registration number KAK 996V Mitsubishi Lorry where the Deceased was fatally injured. He stated that there was no blame on the Deceased. He produced the Abstract as Pexhibit2.

6. The trial magistrate in his judgement apportioned liability on 50:50 basis against the Deceased. In apportioning liability, the trial magistrate observed that there was no eye witness who testified and none of the witness who testified for the Plaintiffs stated how the accident occurred therefore, it was not possible for him to decide on the evidence of the witnesses who testified who was to blame for the accident. He was guided by the Court of Appeal decision in Hussein Omar Farah v Lento agencies (2006) eKLR and other cases. Where the court held that where there is no evidence to determine who is to blame between two drivers, both should be held equally to blame.

7. On quantum, the trial magistrate observed that there was no form of record that was produced to support the Deceased’s earnings from the sale of potatoes, maize, beans and milk. He proceeded to hold that where the amount of income and profession of the Deceased cannot be ascertained, the best approach would be to adopt a global award. The court proceeded to award Kshs.500,000/- under the loss of dependency also taking into account the loss of expectation of life. In total, the trial magistrate awarded Kshs.700,000/- less 50% contribution which amounted to Kshs.350,000/-.

8. Being aggrieved by the trial court judgement, the Appellants appealed to this court vide a memorandum of appeal dated 22/10/2021 raising 9 grounds of appeal challenging the trial magistrate’s findings on liability and assessment of damages on adoption of the global award only. The appeal was filed on the following grounds;i.The learned magistrate erred by finding that the Deceased was 50% liable for the accident whereas evidence on record did not support the finding.ii.The learned magistrate erred by apportioning liability at the ratio of 50:50 as against the Deceased whereas the evidence attributed negligence to the Respondent.iii.The learned magistrate erred by finding Appellant 50% liable yet interlocutory judgment was entered against the Respondent.iv.The learned magistrate erred by attributing negligence to the Appellant yet the Respondent failed to enter appearance.v.The learned magistrate erred attributing negligence to the Appellant yet no evidence was adduced by the Respondent to prove negligence.vi.The magistrate erred by finding that the Appellant was entitled to the damages so awarded.vii.The magistrate erred by applying a multiplier of 5 years yet the Deceased was 43 years old.viii.The learned magistrate failed to apply a multiplier of 2/3 yet the Deceased had dependants.ix.That the award by the magistrate was minimum for fatal injuries.

9. In the written submissions, counsel for the Appellants dropped ground 8 and 9 of the appeal. It is submitted that an interlocutory judgment was entered against the Respondent and the matter proceeded for formal proof hearing therefore, there being no other explanation how the accident happened, the Appellants had proven their case on liability thus, liability ought to have been 100% against the Respondent. The Appellant’s case remained unrebutted and therefore there was no evidence that the Deceased was 50% liable for the accident. Reliance was placed on the holding in the case of Josphat Muthuri Kinyua & 5 Others v Fabiano Kamanga M’etirikia (2021) eKLR where the court held that when evidence on liability is called out and there is no rebuttal then liability should be 100%.

10. On quantum, counsel submitted that the court erred by adopting a global award yet there was uncontroverted evidence that the Deceased was earning Kshs.15,000/- per month. That the Deceased had three dependents and would have worked 20 years more. He suggested for an award of 15,000x12x20x2/3=2,400,000/-.

11. The Respondent did not participate in this appeal despite being served.

12. I have considered the written submissions by the Appellants including the cases cited. From the foregoing submissions the issues for determination are on liability and quantum.

Liability 13. The Appellants’ counsel position on liability is that there being no other explanation how the accident happened, the Appellants had proven their case on liability, thus, liability ought to have been 100% against the Respondent. The Appellant’s case remained unrebutted and therefore there was no evidence that the deceased was 50% liable for the accident.

14. The trial magistrate while apportioning liability stated that it was not possible for him to decide on the evidence of the witnesses who testified who was to blame for the accident.

15. It is already an established fact that the accident occurred as evidenced by the Police Abstract. Whereas it can be argued that indeed an accident occurred, this is not in itself proof of negligence in the absence of other sufficient evidence.

16. The Appellants want the court to find that in the absence of uncontroverted evidence, the accident was as a result of negligence on the part of the Respondent. The testimony by PW1 and PW2 is to the effect that they did not witness the accident. PW2 stated that the Deceased was not to blame for the accident. He produced a Police Abstract form which however did not apportion liability but indicated that the matter was pending investigations. The Respondent opted not enter appearance nor to tender evidence in rebuttal of the Appellants’ case.

17. On the question as to whether the trial magistrate erred apportioning liability on the deceased where there was no evidence to rebut the Plaintiffs’ case. Consider. The Court of Appeal decision in Rahab Micere Murage (suing as a representative of the estate of Esther Wakiini Murage vs Attorney General & 2 others (2015) eKLR is a useful guide. Faced with a similar scenario, the court stated faced with a similar scenario the court invoked the provisions of section 112 of the Evidence Act Cap 80 to find that the defendant was liable for the accident. It held ;“As stated earlier, the respondents blamed each other for the accident. They tactfully avoided calling any evidence regarding the cause of the accident presumably relying on the provisions of Section 109 of the Evidence Act which provides that:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”That an accident did occur is not in dispute; that the three cars involved in the accident were respectively owned by the three respondents; How the accident happened was a matter within the knowledge of the respective drivers of those three vehicles. Well driven motor vehicles do not just get involved in accidents. The driver of the 1st respondent’s vehicle died in the accident. The remaining ones, we suppose, were alive at the time of the appellant’s case was heard. The failure on their part to testify must have been a deliberate act on the part of the 2nd and 3rd respondents. The police appear not to have been in a hurry to conclude investigations as to the cause of the accident. The appellant went to them to get a police abstract report of the accident. They gave one but the accident was said to be still under investigations. The conduct of the respondents appears to us to suggest that they deliberately withheld evidence as to the cause of the accident to frustrate the appellant’s suit. Section 112 of the Evidence Act Cap 80 of the Laws of Kenya, we think was meant to deal with situations as those in the present case. The section provides thus:“In Civil proceedings when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”The appellant alleged negligence against all the respondents as the cause of the accident in which her daughter died. She was not there at the scene and could not have known how the accident happened. As stated earlier vehicles driven on public roads in a proper manner do not without cause become involved in accidents. It must be for that reason that the appellant accused the respondents of negligence. Since each of the three respondents had knowledge as to how the accident happened, they were duty bound under the law to call evidence to show either, which one of them was responsible for the accident or which one of them was innocent in the matter. All of them having failed to adduce evidence in that regard, the rebuttable presumption of fact is that all of them were in one way or another negligent and through such negligence caused the accident in which the deceased died. It is not a presumption arising out of the doctrine of res Ipsa Loquitor, but from the evidential burden as imposed under Section 112 of the Evidence Act.Having come to the foregoing conclusion, it is our judgment that Angawa J. erred in ruling that no negligence was proved. The burden was on the respondents to disprove on their part as the cause of the accident was a matter especially within their knowledge but each of them failed to offer evidence in that regard as required by law. It follows that each of the three respondents is liable to the appellant in damages in equal shares ………”

18. In Janet Njoki Kigo (suing as the personal representative of the estate of the late Benson Irungu Wanjohi) vs Daniel Karani Gchuki (2016) eKLR, Aburili J in facts similar to the ones in the instant case where the Plaintiff had not witnessed the accident and did not call evidence as to how the accident took place, and, where the Defendant similarly did not call evidence to show how the accident took place, relied on the Court of Appeal decision in the case of Rahab (supra) and stated thus;In this case, I have no doubt in my mind that the plaintiff honestly gave evidence to the best of her knowledge to the fact of her deceased son meeting his untimely death following a road accident. But the disturbing question is whether the plaintiff, in the circumstances of this case, gave any evidence that pointed to the negligence of the defendant in the manner that he drove, steered, controlled or managed the accident motor vehicle thereby negligently knocking down the deceased Benson. In other words, there is no clear/direct or circumstantial evidence of who was really at fault and to what extent, in this very unfortunate fatal accident, since the defendant, having realized that the plaintiff did not intend to call any eye witness or investigating officer, opted not to call any evidence as there was nothing to rebut or controvert since the plaintiff had not discharged her burden of proving the negligence of the defendant, on a balance of probabilities.…From the above authoritative and binding decision, which was delivered in 2012- quite recently, this court has no option but to adopt the whole decision which was based on a case that was in parimateria with the instant case and d facts, that the burden of proof lies on he who alleges is not in dispute. However, where it is trite clear like in the instant case that the plaintiff was not present when the fatal accident occurred and the defendant who was the driver of the material motor vehicle involved in the accident is possessed of the evidence of how the accident occurred but deliberately fails to adduce that evidence with the sole intention of frustrating the plaintiff’s suit, Section 112 of the Evidence Act would be invoked by the court to deal with such a situation. The defendant in this case having pleaded particulars of negligence or contributory negligence against the deceased, it was incumbent upon him to adduce evidence to prove those facts of the deceased’s negligence that contributed to or caused the fatal accident. The rebuttable presumption of fact therefore, is that the defendant was negligent, which negligence caused the accident in which the deceased died, and it is not a presumption which arises out of the doctrine of Res Ipsa Loquitur, but from the evidential burden as imposed under Section 112 of the Evidence Act. The cause of the accident being a matter especially within the defendant’s knowledge but he failed to tender any evidence in that regard as required by law, it follows that the defendant was to blame and therefore liable in damages to the plaintiff.Accordingly, I find that the defendant in this case is liable for the accident that resulted in the death of the deceased Benson Irungu Wanjohi. I find nothing to suggest that the deceased could have contributed to the occurrence of the said accident and I therefore reject the proposal by the defendant that I should apportion liability in the ratio of 50:50.

19. Following the dictum above and on the facts of this case, am satisfied that the trial court fell into grave error by apportioning liability without any evidence whatsoever to back that apportionment. The proper route to take was to invoke Section 112 of the evidence Act which I hereby do and find against the Respondent on liability at 100%.

Quantum 20. Under this head, the only thing in dispute is the award by the trial magistrate on loss of dependency where the trial magistrate adopted a global figure instead of using the multiplicand. the Appellants’ counsel submitted that the court erred by adopting a global award yet there was uncontroverted evidence that the Deceased was earning Kshs.15,000/- per month. That the Deceased had three dependents and would have worked 20 years. Counsel suggested an award of 15,000x12x20x2/3=2,400,000/-.

21. As seen earlier, the trial magistrate while adopting a global figure, noted that there was no proof that the Deceased was earning the said amount from the sale of potatoes, maize, beans and milk. He proceeded to hold that where the amount of income and profession of the Deceased cannot be ascertained, the best approach would be to adopt a global award.

22. It is trite law that an appellate court will not disturb an award for damages unless it is demonstrated that the trial court applied the wrong principles while awarding damages. This was held in the case of Butt v. Khan [1981] KLR 349 per Law, J.A that:“An appellate court will not disturb an award of damages unless it is 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 at a figure which was either inordinately high or low.”

23. The evidence on record was that the deceased was a farmer and would earn Kshs.15,000/- from the sale of the farm produce which she would use on her dependents being the Appellants herein and her son. She was survived by her son who was 17 years old at the time of her demise. She died at the age of 43 years. PW1 testified that after the demise of the Deceased, he was the one who was paying school fees for the Deceased’s son who was by then an adult.

24. Indeed, there was no proof of the Deceased’s earnings. She was not also employed.

25. In Frankline Kimathi Maariu & another vs. Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR the court held that;“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency. The global sum approach would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

26. In MNM & Another vs Solomon Karanja Githinji (2015) eKLR, this court adopted the lump sum approach and held that;“…though I am satisfied on balance that the deceased was indeed carrying out a butchery business at the time of his death, there is absolutely no evidence upon which I can attempt to assess his income. Such an exercise will be highly speculative. I therefore consider this an appropriate case where to award a lump sum.”

27. I therefore do not see any fault by the trial court’s holding that the global award approach was suitable in this case.

28. As to whether the global award was sufficient, the trial magistrate being guided by the cases he quoted awarded Kshs.500,000/-. The court in his judgment did not state whether the court considered the fact that the Deceased was survived by a son who was still in school and who was now depending on the Appellants for his education. The court also did not state whether it considered the Deceased’s age at the time of her death.

29. Guided by the decisions in the case of MNM & Another vs Solomon Karanja Githinji (2015) eKLR where the court awarded a global figure of Kshs.3,000,000/- for loss of dependency for a deceased person who was 46 years old with 5 dependants and Ainu Shamshi Hauliers Limited v Moses Sakwa & Another (Suing as the Administrators of the estate of Ben Siguda Okach (Deceased)(2021)eKLR a global sum of Kshs.2,000,000/- was awarded for the death of a 40 year old man who left behind a 29 year old wife and two young children aged 6 and 4 years am persuaded that a global sum of Ksh.1,500,000 would be adequate compensation in this case.

30. With the result that I set aside the judgement of the trial court and enter judgement on liability at 100% against the Defendant. The award of damages for loss of dependency is set aside and substituted with an award of Ksh.1,000,000. Other awards remain undisturbed. Damages are tabulated as follows;a.Pain and suffering 100,000b.Loss of expectation of life 100,000c.Loss of dependency1,000,000d.Special damages –NIL.e.The Appellants shall have the costs of this appeal.

DATED SIGNED AND DELIVERED AT NANYUKI THIS 8TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE