[2022] KEHC 15592 (KLR)

Kiarie v Wanjiru & another (Both suing as legal representatives of the Estate of Daniel Waweru Nduati) (Civil Appeal 24 of 2020) [2022] KEHC 15592 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15592 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal 24 of 2020

J Wakiaga, J

November 16, 2022

Between

Andrew Kagwa Kiarie

Appellant

and

Emma Wanjiru

1st Respondent

David Mwangi Nduati

2nd Respondent

Both suing as legal representatives of the Estate of Daniel Waweru Nduati

(Appeal from the original Judgment Kandara SPM’s Civil Case No. 192 of 2017 Before S. Mutunga – Senior Resident Magistrate)

Judgment

1. The Appellant was sued by the Respondent in respect of a road traffic accident which occurred on December 25, 2016 along Sagana-Kenol road involving the Appellant’s Motor Vehicle Registration NoKBL 155B and the deceased.

2. It was stated in the Plaint dated September 18, 2017 that the said accident occurred as a result of the negligence of the part of the Appellant and or his servant, driver or agent the particulars of which were contained therein.

3. By a defence thereon dated 13th day of November 2017, the Appellant denied the occurrence of the said accident and on/or without preference basis averred that if the same occurred, then it was caused by the negligence of the deceased.

4. By a Judgment thereon dated May 30, 2019, the Trial Court found the Appellant liable at 90% against the deceased at 10% and awarded damages as follows: -a.Under fatal accident Act - 3,000,000b.Loss of expectation of life - 100,000c.Pain and suffering - 10,000d.Special damages - 5503,110,550(e)Deduct award under the LRA 100,000Total 3,010,550Less 10% contribution 301,055Award payable 2,709,495

5. Being aggrieved by the said award, the Appellant filed this Appeal and raised the following grounds of Appeal:a.The learned Magistrate erred in Law and fact in finding and holding the Appellant 90% liable.b.That the Honourable Learned Magistrate erred in law and fact in awarding general damages to the Respondent amounting to Kshs 2,709,495/=.c.That the quantum of damages is excessive and an erroneous estimate of the damages that may be awarded to the Respondents considering the circumstances of the case before the subordinate Court and the weight of precedents in similar circumstances.d.That the Honourable Magistrate erred in law and facts by disregarding established principles in awarding damages in the case before her.

Submissions 6. Directions were given that the Appeal be heard by way of Written Submissions, which were duly filed. On behalf of the Appellant it was submitted that the Respondent witnesses were not eye witnesses to the occurrence of the accident and were only informed of what had happened.It was submitted that although the Respondent pleaded that the deceased used to earn Kshs 40,000/-, there was no proof thereof at the trial and further the police abstract did not lay any blame upon the Appellant.

7. It was therefore concluded that the Respondent failed to discharge the burden of proof of the negligence on the part of the Appellant for which the following cases were submitted in support: Mbugua David & Another v Joyce Gathoni Waithera & Another [2016] EKLR where the Court held that there was no liability without failing in the legal system in Kenya that the Plaintiff must prove negligence.

8. It was contended that the Respondent did not tender enough evidence to discharge the burden of proof imposed by Law and therefore the deceased should be held liable entirely for the accident. It was finally contended that should the Court find that the Appellant is liable, then the Court should set aside the amount of Kshs 40,000/= and substitute the same with Kshs,5,436/= as per the General labourer and living in Saba Saba as per the Regulation of wages (General) Amendment Order 2015.

9. On behalf of the Respondent it was substituted on liability that the evidence adduced in court indicated that the deceased was hit by the Appellant’s Motor Vehicle at Murang’a Technical College and since there were bodaboda riders, it must therefore have been a pick up or dropping zone. In support the case of Tart Chilty & Co. (1931) Aller Page828-829 was tendered to the effect that if a man drove a Motor Car along the road, he is bound to anticipate that there may be things and people.

10. It was submitted that the mere fact that the Appellant was not charged in any traffic court is not relevant since liability in Civil Cases for negligence cannot be acquitted to liability in traffic offences which are criminal in nature where the standard of proof is beyond reasonable doubt.In support the following case was tendered: - Mosennete v Sugar Corporation & Another [2002] 2EA 434. It was therefore contended that having not tendered in any evidence, the Trial Court cannot be faulted in applying liability at 10% : 90%.

11. On the award of General Damages, it was submitted that the Court cumulatively awarded Kshs 2,709,495 in quantum and for pain and suffering, reference was made to the case of Hyder Ntenya Musili & Another v China Wayi Ltd & Another[2017] eKLR where the Court awarded Kshs 100,000/= as a conventional award for loss of expectation of life as opposed to Kshs 10,000/= awarded in this case.

12. On loss of dependency: - It was submitted that dependency ratio and multiplier were not disputed and that the wife of the deceased had testified that he was a businessman selling shoes with an income of Kshs 40,000/= though no proof was provided to that effect. It was submitted that lack of documents should not deter the Court in awarding the Plaintiff as was stated in the cases of Alphia Plus (program For Appropriate Technology Health) v Cephas Owuoth Najuma & Another [2015] Eklr And Jacob Ayuga Maruja & Another v Simeon Obayo[2005] Eklr.

13. It was contended that the deceased person was not working in Agricultural Industry and therefore the submission by the Appellant were not relevant to the case, as the deceased was a businessman who cannot be termed as unskilled employee. In support of the submissions reference was made to the following cases: Nyamira Tea Farmers Sacco v Wilfred Nyabeti Kerah & Another[2015] Eklrwhere the Judge held that in the absence of proof of income the trial Court ought to have reheld to Regulation of wages. But the case under consideration there was proof of income by way of the deceased wife’s testimony which was sufficient to prove income.

14. Further reference was made to the case of Isaack Kimani Kanyangi & Another v Hellen Wanjiru Rukanga[2020] eKLR where the Court held that it would be unrealistic and unfair to extent strict proof of income through documents in regards toSmall Business Enterprises And Benard Kinacho v Emmy Chebet Koskei[2021] Eklrwhere the Court adopted a multiple of Kshs 15,000/=. It was submitted that the trial Court considered the income of the deceased and considered that Kshs 25,000/= was sufficient.

15. It was submitted that should the Court find fault with the trial Court award under this heading then a global award of Kshs 2,500,800/= as was stated in the case of IsaacMurira M’mwanie & Another v Meshack Mutuma M’kuchina[2011] eKLR would suffice.

Determination 16. This being a first Appeal the Court is under a duty to re-evaluate the record of the trial Court to come to its own conclusion thereon.

Proceeding 17. The Respondent testified as PW1 and stated that the deceased was coming from work on December 25, 2016 when he died in a road accident when he was hit by a car and as a result she incurred expenses. In cross examination she stated that he died at 40 years.

18. The Appellant testified as DW1 and stated that he was driving his motor vehicle Reg. NoKBL 155B at about 50 KPH when he saw someone jump into the road trying to cross and hit the right side of his motor vehicle and that there were bodaboda riders there. In cross examination he stated that there was a corner and after that the road was straight. He applied emergency brakes and swerved.

19. The issue therefore for determination is whether the Trial Court was right in finding the Appellant liable at 90% and whether the award of damages was justifiable.

20. Liability is a matter of evidence and as rightly pointed by the Appellant is his Submissions, it was upon the Respondent to prove her case on a balance of probability and from the proceedings herein, it is clear that she did not witness this accident and neither did she call in any eye witness. In finding the Defendant liable the trial Court had this to say:-While I agree with the Defendant that among all those who testified, he is the only person who witnessed the accident, I find that his contention that the deceased was drunk had not been corroborated. I have no more reason to believe it than to disbelieve it. Secondly, the Court is not able to agree with the Defendant’s contention that he was driving at a speed of 40KPH at the material time. As the Plaintiff’s rightly submit, a vehicle driven as such a speed would not have caused the death of the deceased. The Defendant would have been able to control the vehicle and stop it/slow it down sufficiently in good time to avoid the accident or significantly reduce the impact. Further the Defendant mentioned that there was an inquest but he did not disclose the case number or in which Court or the findings of the Court in that inquest.In any case, the existence of an inquest and the failure of the police to prefer a charge for causing death by dangerous driving are not factors in themselves that would absolve the Defendant from liability in this case. The Court must determine each and every case before it on the basis of the law and the evidence.Doing the best I can from the materials placed before me, I find both the deceased and the Defendant were road users who owned each other as well as other road users a duty of care. It was upon each of them to be careful, diligent, keep a proper look out and ensure there was safety. Whether the deceased was crossing the road or just walking or sitting or standing by the road side, both parties needed to exercise due care and attention. The Plaintiffs in their submissions suggest apportionment of liability at 90:10 in favour of the Plaintiffs against the Defendant. I find that proposal to be a reasonable one in the circumstances of the case. Therefore, liability is apportioned at 90% on the part of the Defendant and 10% on the part of the deceased.

21. I am at a loss on what basis the trial Court disbelieved the Applicant in the absence of any rebutting evidence and having found as a fact that each of the Party was expected to be careful and diligent. It is therefore my finding that the trial Court fell into error in finding the Appellant at 90% in the absence of any evidence.

22. I would therefore allow the Appeal on liability and being the first Appellant Court upon assessing recorded evidence and taking into account the fact that the police through the police abstract produced in Court did not blame any of the parties for the accident, I would substitute the finding on liability with 50% : 50%.

23. On quantum, whereas the age of the deceased loss was disputed and the Appellant has not challenged the Court finding on the multiplier, I am at a loss on how the Court reached the figure of Kshs 25,000/= as the deceased income, the Plaintiff having testified once again without proof that his income was Kshs 40,000/=.

24. Loss of dependency is a matter of evidence and it multiplicand, the amount income multiplied by a suitable multiplier of expected working life lost by the deceased by the premature death and further by a factor of the dependency ratio, that is the ratio of the deceased income utilized on his dependant as was stated in Miriam Moraa v Joo[2021) Eklr.

25. In the case of Bor v Ondukquotes with approval in Kioko David Mutinda v Traslink Logistics (ea)Ltd [2020] eKLR. the Court had this to say:-“Loss of dependency is a matter of fact in every individual case and there is no rule of Law that two third or indeed any other fraction of the deceased income is deemed to be what is spent on the family”

26. In this case I find that the Respondent did not prove the deceased’s income as required in Law and in this I find support in case of Jacob Ayuga & Another (Supra) Submitted by the Respondent where the Court held:“That when dealing with the issue of the nature of evidence to support a case under dependency in Fatal Accident Act we do not substitute to the view that only way to prove the profession of a person must be by production of certificates and the only way of proving earnings is equally by the documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, if the documentary evidence is available, that is well and good”.

27. In this matter, the Respondent planked her figure out of the blues and the trial Magistrate also planked his figure out of the blues without any supporting evidence, documentary or otherwise and therefore find fault with the award under this heading which I set aside.

28. I therefore agree with the submissions by the Appellant that in the absence of proof of income, the Court could have properly taken into account the statutory regulation on basic minimum wages under Section 60(1) of the Evidence Act, however as submitted by the Respondent, the evidence tendered was that the deceased was not a general labourer but a businessman, whose business like “Sigalame’s’ the Court was not told, save that he was selling shoes.

29. This would have therefore has left the Trial Court with the option of using the global figure award as submitted by the Respondent. In this I find support in the case ofChen Wembu & 2 Others v Ikk Shah[2017] eKLR, where the Court reduced the lump sum payment from Kshs 1,680,080/= to Kshs 600,000/=.

30. Having taken into account the Respondent’s proposed global sum of Kshs 2,500,000/= and to use the language of the trial Court, doing the best I can without evidence tendered to support the nature of the business the deceased was engaged upon, I will substitute the award of the trial Court with a global award of Kshs 2,000,000/= (Two Million) subject to 50% contribution.

31. In the final analysis I allow the appeal on both liability and quantum and substitute the same with an award as follows:a.Liability - 50%:50%b.Loss of dependency - 2,000,000c.Loss of expectation of life - 100,000d.Pain and suffering - 10,000e.Special damages - 5502,110,550Less 50% 1,055,2751,055,275

32. Unlike the trial Court I decline to deduct the Award under the Fatal Accident Act having taken into account the same while assessing the global figure.

33. And it is so ordered.

HON. J. WAKIAGAJUDGEDATED, SIGNED AND DELIVERED THIS 16TH DAY OF NOVEMBER 2022. In the presence of:Carol Mutahi - Court AssistantHON. J. WAKIAGAJUDGE