[2021] KEHC 9620 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Coram: D. K. Kemei - J

CIVIL APPEAL NO. 6 OF 2018

K.B. SANGHANI & SONS...........................................APPELLANT

-VERSUS-

DOROTHY MUNINI MUTISYA & JACKLINE NDINDA

(Suing as legal representatives of the estate of

JACKSON MUTUKU MUTISYA-DECEASED...RESPONDENTS

[Being an appeal from the Judgment of Hon. J.A Agonda (Senior Resident Magistrate) in Senior Principal Magistrate’s Court at Mavoko delivered on 4. 12. 2017 in Civil Case No. 545 of 2014)

BETWEEN

DOROTHY MUNINI MUTISYA & JACKLINE NDINDA

(Suing as legal representatives of the estate of

JACKSON MUTUKU MUTISYA-DECEASED....PLAINTIFFS

VERSUS

K.B. SANGHANI & SONS......................................DEFENDANT

JUDGEMENT

1. According to the pleadings in the trial court, the deceased was 34 years old when he died as a result of a road accident and an action was brought in the Senior Principal Magistrates Court at Mavoko through his mother and wife, as legal representatives against the appellant for damages under the Fatal Accidents Act and the Law Reform Act as well as special damages due to negligence.

2. It was pleaded that the deceased died from a road traffic accident that occurred on the 8. 6.2011 where the deceased had been riding a motor cycle along Nairobi-Machakos Road when he was hit by lorry registration number KAX 603C/ZC 5743 that was registered in the names of the appellant. The respondent pleaded negligence against the appellant as well as that the deceased’s estate had suffered special damages of Kshs 105,500/-. It was pleaded that at the time of the death of the deceased, he was a 34 year old in good health earning Kshs 12,000/- a month and supporting his mother, wife and 4 children who depended on him. The respondent pleaded facts that implied the existence of the doctrine of vicarious liability.

3. The appellant denied negligence and its particulars, denied the accident and averred in the alternative that the accident was contributed to by the deceased. The appellant pleaded volenti non fit injuria and admitted the jurisdiction of the court. The appellant prayed that the suit be dismissed with costs.

4. The suit proceeded for hearing on 29. 5.2017 where a police officer and the respondents testified. The appellant’s driver testified and closed their case.

5. Parties filed submissions and the trial court delivered judgement on 4. 12. 2017in which Hon. J.A. Agonda found that the driver of the suit vehicle was to blame and awarded special damages of Kshs 80,000/- ; pain and suffering at Kshs 30,000/-; loss of expectation of life at Ksh 120,000/- and damages for loss of dependency under the Fatal Accidents Act of Kshs 2,400,000/- after using a dependency ratio of 2/3, a multiplicand of 12,000/- and a multiplier of 25.

6. This appeal is against the finding of the trial court. The contents of the appellant’s appeal are set out in the memorandum of appeal dated 24. 1.2018 and filed on even date. The appeal challenged the finding on liability and quantum. Counsel prayed that the appeal be allowed and that the judgement of the trial court be set aside.

7. The appeal was canvassed vide written submissions. Counsel for the appellant filed submissions on 21. 2.2020 and the respondent on 14. 9.2020. Learned counsel for the appellant took issue with the evidence of Pw1 as he was not the investigating officer and was thus not competent to inform the court of the circumstances of the accident. Reliance was placed on the case of David Mwangi Kariuki & Another v Stephen Mwangi & Another (2017) eKLR.It was submitted that the respondents did not produce evidence that proved negligence. It was the argument of counsel that the trial court went into error in relying on the evidence of Pw1 and Pw2 who did not witness the accident. It was submitted that there was uncontroverted evidence that the deceased hit the suit vehicle from the rear and that the deceased had joined the main road from the right as opposed to from the left. It was therefore the argument of counsel that the deceased was the author of his own misfortune and thus the court was urged to invoke the doctrine of volenti non fit injuria.Reliance was placed on the case of Phylis Wairimu Macharia v Kiru Tea Factory (2016) eKLRwhere liability was apportioned at 50:50. Further reliance was placed on the case of United Millers Ltd & Another v John Mangoro Njogu (2016) eKLRwhere Justice Mativo stated that;

“Volenti non fit injuria means that the claimant voluntarily agrees to undertake the legal risk of harm at his own expense. It must be shown that the claimant acted voluntarily in the sense that he could exercise a free choice. The claimant must have had a genuine freedom of choice before the defence can be successfully raised against him. A man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. This was the holding of Scott L.J. in Bowater v Rowley Regis Corp.[4]”

8. On quantum, counsel submitted that the court made an award that was based on the wrong principles. Counsel proposed no amount as general damages for pain and suffering; no amount for loss of expectation of life and Kshs 1,119,840/- for loss of dependency after using a multiplier of 20, dependency ratio of 2/3 and a multiplicand of Kshs 6,999. 00. Counsel took issue with the award of Kshs 73,000/- as part of special damages by the trial court that was the price of the motor bike as the same was according to counsel a material damage claim that had its standard of proof. Reliance was placed on the case of Linus Fredrick Msaky v Lazaro Thuram Richoro & Another (2016) eKLR where it was observed that;

“In Nkuene Dairy Farmers Cooperative Society Ltd & another V Ngacha Ndeiya [2010] e KLR, the court rendered itself thus:

“In our view special damages in a material damage claim need not be shown to have been actually incurred. The claimant is only required to show the extent of the damages and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the value of repairs was given with some degree of certainty.”(Emphasis added).

From the above decision, the court is saying that it is not enough to say my vehicle was damaged as a result of an accident and I incurred costs of repairing it. The claimant must plead with certainty the alleged damages. He must also testify or adduce evidence, both orally and documentary to prove that the damages that were pleaded are the ones that were actually occasioned and for which repairs were done or effected at a cost. Having examined the plaint filed by the appellant, it only claimed for “repair costs”. The actual damages were never ascertained and pleaded. Secondly, in his evidence in chief, the appellant never stated with any precision the damages that were occasioned to his vehicle necessitating repairs and the cost incurred in repairing it. He did not get any accident assessor to assess the accident damages and assign a value thereto.

In my view, the appellant was simply throwing receipts and other documents at the court. The so called quotation and his attempt to define what a quotation and an assessment is does not persuade this court to accept on the evidence available that the damages that were occasioned by the accident are the ones which were repaired at the given cost of repairs. In other words, there was no degree of certainty of the actual damages and hence the repair costs could not be precisely be assigned to the accident damages. And in the absence of any evidence of the extent of the damage, the repair costs would be an irrelevant consideration.”

9. In response, learned counsel for the respondent agreed with the findings of the trial court and urged this court to uphold the finding of the trial court. On liability, it was submitted that the appellant did not prove that the deceased was the author of his own misfortune. On quantum it was submitted that whereas the respondent did not provide proof of income of the deceased, evidence regarding income of the deceased was sufficient. Reliance was placed on the case of Arthur Nyamwate Omutondi & Others v United Millers Ltd & 2 Others (2009) eKLRwhere it was observed;

“It is clear that the claim that the deceased was a businesswoman at the time of her death was not established. She had a trading licence up to 31st December 2002. She did not renew it in 2003 when she died. Thus Sarah cannot be presumed to have been a fish monger in 2003 as the plaintiff set out to prove. Further, it was not proved by accounts or other means that Sarah earned Kshs. 100,000/=. A transfer bank slip for Kshs. 60,000/=, could not be proof of income. Proof of income is basic to a claim of loss of dependency under the Fatal Accidents Act because one can only be supported financially by what was earned in hard pounds and cents. If income is not proved then no award of dependency can issue.

However, in our present case this court is prepared to take a minimum sum of Kshs. 4,000/= as what Sarah could earn in rural Migori to support herself and the nephew (PW1). With a multiplier of eight (8) the court awards him Kshs. 256,000/=”

10. It was further submitted that the trial court did not err in applying a multiplier of 25 years and reliance was placed on the case of Innocent Ketie Makaya Denge v Peter Kipkore Cheserek & Another (2015) eKLRwhere a multiplier of 26 was found not to be unreasonable in respect of a 34 year old deceased businessman. It was the submission of counsel that the special damages of Kshs 80,000/- was proven.

11. This being a first appeal this court's role as the first appellate court is to re-evaluate and re-assess the evidence adduced before the trial court keeping in mind that the trial court saw and heard the parties and giving allowance for that and to reach an independent conclusion as to whether to uphold the judgment of the trial court. This was observed in the case of Selle v Associated Motor Boat Co. [1968] EA 123.

12. The evidence in the trial court was as follows. Pw1 was Pc Riter Kemboi Ibrahim attached to Athi River Traffic Base. She testified that she had the abstract in respect of the deceased who was a rider of Motor Cycle KMCF 101B and that a fatal accident occurred involving him and the suit vehicle registration number KAX 603C ZC5743. She told the court that the accident occurred on 8. 6.2011 around Devki Area and that the abstract was issued on 1. 3.2013 with results that the matter was pending investigations. On cross examination, she testified that she was not the investigating officer and that she did not know how the accident had happened. She testified that she did not have the OB abstract and that the name of the driver of the suit vehicle was not indicated in the abstract.

13. Pw2,was Jacqueline Nyiva Wambua who testified that the deceased was her husband and that she incurred financial expenses in burying him; she had receipts of Kshs 7,000/-for burial expenses. She told the court that she had 4 children and presented in court their birth certificates. She testified that the deceased was a motor bike rider and who purchased the motor bike at Kshs 73,000/-. On cross examination, she testified that she did not have documentary evidence of the earnings of the deceased and that she did not witness the accident.

14. Pw3was Dorothy Munini Mutisya who testified that the deceased was her elder son and who had been buying for her food and was the bread winner. She told the court that she was depending on him and that the deceased used to give her Kshs 1,000/- per week. That was the close of the respondent’s case.

15. Jacob Kibiru Munyaka testified as Dw1 and who relied on his witness statement. He testified that on 4. 11. 2011 he was driving the suit vehicle to Mombasa and on arrival at the junction, to enable him join the highway so as to go to Mombasa, he noticed something on the right side of the road and then heard voices from people claiming that he had killed someone. He testified that the deceased rider joined the road on the left side and hit the trailer on its back side. On cross examination, he testified that his rear tyres drove on the deceased. The appellant closed their case.

16. From the evidence on record the accident that happened on the material day was confirmed vide the evidence of Dw1 and that the cause may be inferred from the evidence of Dw1 as corroborated by the documentary evidence that was neither challenged nor controverted.

17. Having considered the pleadings and the evidence on record as well as the submissions, the following issues are to be determined.

a. Whether the accident was as a result of the negligence of the respondent.

b. Whether the appellant is liable for damage and loss to the estate of the deceased as claimed and at what percentage.

c. Whether the court may interfere with the finding of quantum of the trial court.

18. The answer to any of the above issue will depend and depends on the amount of evidence adduced by a party having the legal burden to do so. See sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya that place the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. The learned author WVH Rodgers,Winfield and Jolowicz on tort 17th Edition Sweet and Maxwell, 2006 at 132 as well as case law stated that the elements of negligence remains this:

(a) there is a duty of care owed by a defendant -

(i) the defendant would foresee the reasonable possibility of his conduct injuring another and causing him loss;Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltdor Wagon Mound (No. 1) (1961) 1 All ER 404and

(ii) the defendant would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In assessing whether the defendant took reasonable steps, the court will consider:

(a) The degree or extent of the risk created by the actor’s conduct;

(b) The gravity of the possible consequences if the risk of harm materializes;

(c) The utility of the actor’s conduct; and

(d) The burden of eliminating the risk of harm. See Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The "Wagon Mound" (No 2)) [1967] 1 AC 617

19. It is undisputed that the appellant and the rider of the suit motor vehicle owed a duty of care. All road users are expected to exercise a duty of care on the road. See Teresia Sebastian Massawe (Suing as the Legal Administratix of the estate of the late Silvia Sebatian Massawe v Solidarity Islamic (Kenya Office & another [2018] eKLR.

20. There is no evidence of the point of impact on the road and this court is not able to envisage who exactly was on the wrong. As can be deduced from the abstract the accident was reported to the police and recorded on OB 19/08/06/2011. The post mortem indicated that the deceased sustained facial and scalp injuries as well as bruises and this is about all the evidence regarding the condition of the deceased’s body. In the case of Hoe v Ministry of Health (1954) AC Pages 66, 87- 88 Morris LJ stated that “There are certain things that do not normally occur in the absence of negligence and upon proof of these a court will probably hold that there is a case to answer”

21. Unfortunately, there is no evidence of the circumstances surrounding the accident and this court is only certain that there was an accident and that the deceased died and that is all. None of the eye witnesses or by standers were called to testify.

22. I find difficulty in agreeing with the trial court that the respondents proved their case beyond reasonable doubt. Because the evidence that was tendered was insufficient, it was fatal for the respondents to fail to call the investigating officer who would have shed more light on the circumstances of the occurrence of the accident as well as calling any of the eyewitnesses or bystanders at the accident scene. In the case of Republic v Cliff Macharia Njeri [2017] eKLR it was stated that

“The other witness not called was the Investigating Officer. No doubt this witness was important as he could have shed more light as to investigations carried out and would have explained on what basis the accused was charged.

33. Having considered the issue at hand I find that the prosecution failed to avail crucial witnesses in their case. I find that the prosecution failed to make available all witnesses necessary to establish the truth. The evidence adduced was barely adequate to establish the truth in this case. Consequently I find that this court is justified to make an adverse inference that the evidence of the uncalled witnesses would have tended to be adverse to the prosecution and that was the reason it was not called.”

23. I therefore find merit in the appeal against liability and allow the same. I set aside the finding of liability on the part of the appellants and substitute the same with a dismissal for want of proof.

24. My finding notwithstanding, I will go ahead and make an assessment on quantum. In the instant case, the appellant’s claim for damages for loss and damages was set out in the plaint and they also particularized Kshs 105,500/- as the special damages.

25. In the prayer, the plaint asked for: “(9) (b) General damages as under the Fatal Accidents Act and the Law Reform Act.”

26. In the present case it is necessary to consider what kind of life the deceased would have enjoyed had be not been killed. There is no evidence that the deceased would have had an unhappy life. According to his wife and mother, he was a motor cycle rider. It is not known what level of education he attained. The conclusion which can be reached here is that the deceased could have enjoyed average happiness, subject to the normal risks and uncertainties of life on this earth.

27. The law is now well settled that an appellate court will not interfere with an award of damages by a trial court unless the trial court has acted upon a wrong principle of law or that the amount is so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.

28. The evidence of Pw2 and 3 is to the effect that the deceased earned Kshs 12,000/- per month. In line with the multiplier approach, the damages would be by multiplicand and the result reduced by 2/3 because as at the deceased’s death he was married and that the same multiplied by the expected number of years that the deceased would have lived had he not been a victim of wrongful death and multiplied by 12 months.

29. The deceased was aged 34 when he met his death and the life expectancy as per statistics given by the World Bank which put it at 66. 7 years. The multiplicand would be the expected monthly earnings of an unskilled artisan. I shall take the retirement age that would be 55 years meaning that the working life of the deceased would be 23 years on average. The average earnings of the deceased as per the minimum wage for an unskilled artisan in 2011 as per the time of death was Kshs 10,239. 00/- in Nairobi (See THE REGULATION OF WAGES (GENERAL) (AMENDMENT) ORDER, 2011. The calculation for loss of dependency is thus; 23 x 2/3 x 10,239/- x 12= Kshs 1,883,976/-.

30. By way of comparison, the award of the trial court was quite far from my above finding and hence had the appeal been unsuccessful, I would not have upheld the finding of the trial court but would have interfered with it somewhat.

31. The appellant took issue with the inclusion of the cost of the motorcycle as part of special damages. Special damages cannot be inferred by the law. See Stros Bucks Aktie Bolag v Hutchinson (1905) AC 515. Special damages must be specifically pleaded and must also be strictly proved – See the case of Hahn v Singh [1985] Kenya Law Reports 716, where the Court stated thus,

“…special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves.”

32. A Plaintiff who claims special damages must therefore adduce evidence or facts which give satisfactory proof of the actual loss he or she alleges to have incurred. Where documents filed by the Plaintiff fail to meet this strict proof then special damages are not awarded. The question then would be, was the cost of the motor cycle the cost that the respondent suffered as a result of the accident? The answer is a resounding no.

33. With regard to the claim for compensation for the loss of the motor cycle, I am guided by the Court of Appeal case of Nkuene Dairy Farmers Co-op Society Ltd & Anor v Ngacha Ndeiya (2010) eKLR where it was stated:-

“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty.”

34. It follows from the above case that there was need for the respondent to prove the loss occasioned to the motor cycle and that the same flowed from the wrongful actions of the appellant so as to be entitled to compensation for the value of the motor cycle and this is where the vehicle assessment is required; the same has not been availed. I therefore find that the trial court erred, it took into account an irrelevant factor when awarding special damages and to the extent that it did so, the award ought not to be allowed to stand.

35. The rest of the amounts proposed by the trial court would remain undisturbed had the appeal been unsuccessful.

36. The upshot of the foregoing is that the appeal has merit. The same is allowed. The judgement of the trial court is hereby set aside and substituted with an order that the Respondent’s suit is hereby dismissed with costs to the Appellant. The Appellant is awarded the costs of the appeal.

It is so ordered.

Dated and delivered at Machakos this 26th day of January, 2021.

D. K. Kemei

Judge