[2023] KEHC 25237 (KLR)

Karienye (Suing as the Administrators to the Estate of the Late Karienye Kibe - Deceased) v Gman Investments Limited & another (Civil Appeal E251 of 2020) [2023] KEHC 25237 (KLR) (Civ) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25237 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E251 of 2020

JN Mulwa, J

November 9, 2023

Between

Jackson Kibe Karienye (Suing as the Administrators to the Estate of the Late Karienye Kibe - Deceased)

Appellant

and

Gman Investments Limited

1st Respondent

Paul Muthua Gathambo

2nd Respondent

(An appeal against the Judgment and Decree of the Chief Magistrates Court at Nairobi in CMCC No. 5712 of 2018 delivered by Hon. E. M. Kagoni (PM) on 30th September, 2020)

Judgment

1. By a Plaint dated 15/9/2015 the Appellant instituted a case at the Lower Court, Milimani CMCC No. 5712 of 2018 against the Respondents herein claiming general and special damages, costs of the suit and interest thereon. The claim arose from a road traffic accident that occurred on 9th November 2017 along Lunga Lunga Road in Nairobi. It was pleaded that on the material day, the Appellant was cycling along the said road when the 2nd Respondent the authorized servant, agent or driver negligently drove its motor vehicle registration number KBP 741V causing it to violently hit and ran over the deceased. The Appellant also invoked the doctrine of Res ipsa loquitor.

2. In its statement of defense, the Respondents then the Defendants stated that if any accident occurred which was denied, then the same was not caused by any actions attributable to the Defendants but due to the negligence of the deceased, and further denied application of Res Ipsa Loquitor and put the Plaintiff to strict proof. For the defendants they relied on the principle of Volenti Non Fit Injuria.

3. Upon full trial, the lower court dismissed the Plaintiff’s suit with costs to the Defendants. Aggrieved by the decision, the Appellant lodged the instant appeal by a Memorandum of Appeal dated 21st October 2020 raising the following grounds:i.The Learned Magistrate erred in Law and fact in finding that no casual connection was made between the death of the deceased and the 2nd Respondent even though the 2nd Respondent’s own testimony emphatically denoted that the incident that led to the death of the deceased was occasioned by negligence on his part.ii.The Learned Magistrate showed extreme prejudice by totally ignoring the testimony of the Police Officer on the circumstances that led to the accident and thereby erroneously dismissed the Appellant’s suit.iii.The Learned Magistrate misapprehended the law and factual evidence on the circumstances of the accident and thereby erroneously dismissed the Appellant’s Suit.iv.The Learned Magistrate misapprehended the legal principles and evidentiary threshold for a claim of negligence and thereby erroneously dismissed the Appellant’s suit.v.The Learned Trial Magistrate erred in law and in fact by failing to assess the damages due to the Appellant or at allvi.The Learned Magistrate showed extreme prejudice by totally ignoring the Appellant’s submissions on issues of law and evidence and thereby erroneously dismissed the Appellant’s Suit.

4. The Appellant prays that the Appeal be allowed with costs and the judgment of the trial court be set aside, the Order dismissing the Appellant's Suit be substituted with a Judgment in favour of the Appellant and the Court to assess damages as it shall deem appropriate in the circumstances.

5. The Appellant's case was that the deceased was a pedal cyclist therefore incapable of moving at high speed as the Respondent’s Motor Vehicle, a six-wheeler lorry due to heavy traffic, that the police officer produced a police abstract but was not the investigating officer. On cross examination, he testified that the deceased was hit from behind by the lorry and that the lorry driver was not charged for any traffic offence.

6. The Respondents case was that the driver of the accident lorry did not knock down the cyclist; that he was alerted by pedestrians who asked him to stop and that when he alighted from the motor vehicle, he found the pedestrian lying behind the lorry on the left side. He stated that the pedal cyclist was not ahead of him and that he did not see him from the left side mirror. He further testified on cross examination that he was to ensure safety of pedestrians on the left side of the road and not those on the right, and further on cross examination reiterated that the deceased, was lying on the left side behind the lorry.

7. Upon the short evidence, parties filed submissions.

Analysis And Determination 8. The court has read the Record of Appeal, the pleadings evidence adduced before the trial Court including the rival submissions and the trial court’s impugned judgment.The duty of an appellate court is; to re-evaluate and re-analyze the entire evidence, draw its own conclusions bearing in mind that the judge never saw or heard the witnesses testify; and taking into account that it is not bound to follow the findings of fact as found by the trial court as rendered in Selle V. Associates Motor Boat Company [1968] EA 123.

9. Having discharged that duty, the issues that arise for determination are:i.Whether the Appellant's case before the trial court was proved to the required standard in law.ii.Whether the trial court erred by failing to assess damages.

Liability 10. The question therefore that begs an answer is whether the lorry caused the accident and or contributed to the said accident, and if so, to what extent. In Kiema Muthungu v Kenya Cargo Handling Service Ltd [1991] 2, it was held that: -“there can be no liability without fault and a plaintiff must prove some negligence on the part of the defendant where the claim is based on negligence”.The Appellant by PW1 and PW2’s evidence blamed the lorry driver entirely. However, none of them could shed any light on how the accident occurred as none was an eyewitness. Instead, they merely spoke of the accident that occurred wherein the deceased died. The Police officer produced the police abstract and confirmed occurrence of the accident, and did not produce the police file or the investigation report. By the said police abstract, the case was pending under investigations. Incidentally, he was also not the investigating officer.On the part of the Respondents, the lorry driver who testifies as DWI did not deny that the accident occurred but could not state how it occurred, only testifying that the cyclist was not ahead of his lorry, and never saw him on the left side of the road either from the lorry’s side mirror. He however confirmed finding the deceased lying behind his lorry at the left side of the road and lorry.

11. In Civil cases, the burden of proof is upon a balance of probabilities or preponderance. Section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya) provides:“107. (1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”In Kiema Mutuku v Kenya Hauliers Service Limited cited with approval in Dharmagma Patel & Another v T.A (minor) suing through his mother and next friend HH 9 (2014) eKLR, the court stated;“There is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence:”

12. On cross-examination, DW1 stated that the pedal cyclist was behind the lorry when he got out of his vehicle, and contradicted his evidence in chief that the rider was on his left side, but when he got off, he discovered the cyclist behind the truck on his right side. The police officer had testified that the cyclist was ahead of the lorry, on the same lane with the lorry, yet the driver was categorical that he did not see him ahead of the lorry. On further cross examination, the lorry driver stated that his responsibility was to look out for people on the left side of the road and not the right. In the court's opinion, the driver's testimony was blatant sign of carelessness because a responsible driver would look out for persons/pedestrians and other vehicles and objects on both sides of his vehicle. It is instructive to note that Likoni road where the accident occurred is a two lane road, as confirmed by the lorry driver and therefore, both the lorry and cyclist were driving on the same lane, both had equal right to observe the duty of care to each other and other road users.

13. This court observes that had the lorry driver used his lorry’s left side mirror, who in my view was ahead of the cyclist on his left side, sharing the same lane, his lorry having been long a six wheeler lorry, he would have seen the bicycle being ridden alongside the lorry, on his left side. The driver chose to drive without use of his side mirrors thus endangering other road users on either side of the lorry, and would have probably not stopped had the pedestrians not alerted him that he had knocked down the cyclist. see HCCA No. 108/2007: Equator Bottler Ltd v Dennis Kimeri Mecha, and Platinum Car Hire and Tours Limited v Samuel Arasa Nyamesa & another (2019) eKLR for the proposition that when it is difficult to determine who is to blame for liability between two drivers, then it should go ahead and apportion liability equally.

14. Additionally in the case of Hussein Omar Farrar v Lento Agencies C.A Nairobi, Civil Appeal No.34/2005 [2006] eKLR the Court of Appeal observed that;“In our view it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.” (emphasis mine)

15. For the above findings, this court finds that the trial magistrate erred by not considering the circumstantial evidence adduced by the parties witnesses and circumstances appertaining thereto at the time, and to apportion liability between the lorry driver and the deceased. In the circumstances, I am persuaded to hold that both the driver and the deceased contributed to the cause of the accident equally at 50:50 bases. The trial court’s judgment is therefore set aside and substituted with the above finding on liability.

Damages Damages under the Law Reform Act 16. On Pain and Suffering and loss of expectation of lifeThe evidence adduced is that the deceased died on the same day of the accident and therefore an award of Kshs. 50,000/= is adequate compensation under this head. In the case of Mercy Muriuki & Another –Vs- Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR the Court observed that: -“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. see alsoHyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, where it was held that the conventional award for loss of expectation of life is Kshs. 100,000/= set aside the award of Kshs. 50,000/= issued by the lower court and in its place award Kshs. 100,000/=.In that regard the Appellant is awarded Kshs. 50,000/- and 100,000/- respectively.Damages under the Fatal Accidents Act, Cap 32 Laws of Kenya"

17. On the issue of multiplier, the deceased was 74 years old and uncontroverted evidence was that he was working as a casual labourer at the time of his death, and supporting the wife of 64 years - Beatrice W. Murage v. consumer Transport Ltd & Anor [2014] e KLR where the deceased was 74 years old. The court adopted a multiplier of 4 years. In the present appeal, the deceased was 74 years old. The finds a multiplier of 2 In this case to be and type of work the deceased was engaged in, as well as vicissitudes and imponderables of life. On the multiplicand i take the view that a ratio of 1/3 is the most reasonable considering that all of the deceased’s children, are grown up men and women and the only dependant he had was his 64 year wife. In the case of Chania Shuttle v Mary Mumbi [2017] eKLR the court held: -“……indeed, a dependency ratio of 2/3 can still be applied even where there is a single Dependant irrespective of whether or not such Dependant is an adult, if evidence is adduced to demonstrate that such Dependant relied on the deceased to such an extent…”

18. In the absence of proof of earnings, this court has had occasion to ascertain from the Regulation of Wages (General) (Amendment) Order, 2017 and the salary payable to a casual labourer of his cadre is Kshs. 12, 926/=. Therefore, under Fatal Accident Act, the proposed calculation will be,12,000x 2/3x2 x12=Kshs.192,000/=

19. The special damages of Kshs.20, 750/- pleaded are not disputed. The court is satisfied that the receipts were produced before the Trial Court as exhibits.20. The Trial court be set aside and substituted with one that liability apportioned equally between the Respondents and deceased at 50:50 basis.

21. Damages are awarded as follows:Under law Reform Act

Pain and suffering -Kshs. 50,000/=

Loss of expectation of life -Kshs. 100,000/=

Under Fatal Accidents Act Loss of dependency -Kshs. 192,000/=

Special damages-Kshs. 20,750/=

Special Damages -Kshs. 20,750/=

Less Contributory negligence 50%

Grand Total Kshs. 181,375

Each party to bear its own costs.Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 9TH DAY OF NOVEMBER 2023. JANET MULWAJUDGE