[2022] KEHC 16973 (KLR)

Kihiu (Suing as the administrator of the Estate of John Wambugu - Deceased) v Shah & another (Civil Appeal E042 of 2021) [2022] KEHC 16973 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16973 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E042 of 2021

GWN Macharia, J

December 15, 2022

Between

Grace Wachu Kihiu (Suing as the administrator of the Estate of John Wambugu - Deceased)

Appellant

and

Anish Kara Shah

1st Respondent

Kara Commoditiea Ltd

2nd Respondent

(Being an appeal from the judgment and decree in Naivasha Chief Magistrate’s Court CMCC No 388 of 2019 delivered by Hon K Bidali (Mr), CM on July 27,2021)

Judgment

The appeal 1. Being aggrieved with the findings of the learned trial magistrate, the Appellant lodged the instant appeal vide a Memorandum of Appeal filed on August 13, 2021. The Appellant prays that, this Court sets aside the judgment and decree of the trial court of July 27, 2021, judgment be entered as set out in the prayers in the plaint and he be awarded costs of the appeal.

2. The appeal is based on the grounds that:i.The Honourable Magistrate erred in law and in fact by failing to have due regard, take into account and appreciate the substantive issues of law and facts raised by the Appellant during the hearing and in the submissions, authorities and other documents on record.ii.The Honourable magistrate erred in law and in fact by finding that the Appellant’s evidence in support of her claim did not meet the threshold of the balance of probability standard despite there being sufficient evidence on record to hold otherwise.iii.The Honourable Magistrate erred in law and fact by failing to consider that the 2nd Respondent being the undisputed owner of motor vehicle KBK 123Y/ZD 3230 was undeniably and vicariously liable for the accident forming the substratum of the appeal.iv.The Honourable Magistrate erred in law and fact by failing to consider and uphold the overriding objective of the law to ensure the dispensation of justice.v.In all circumstances of the case, the Honourable Magistrate erred in dismissing the Appellant’s suit.

3. The appeal was canvassed by way of written submissions.

Background 4. The Appellant initiated the claim in the Magistrate’s Court vide a Plaint dated May 28, 2019 for damages under both the Fatal Accidents Act & the Law Reform Act seeking general damages, special damages as well as costs and interests. The learned trial magistrate found that the case was not proved on a balance of probabilities and dismissed the suit with costs.

5. It was the Appellant’s case that the deceased was the driver of motor vehicle registration number KBM 020L on May 31, 2017 when at Muniu Area along Naivasha-Maai Mahiu Road the 2nd Respondent’s vehicle registration KBK 123Y/ZD 3230 under the control of the 1st Respondent was carelessly controlled that it collided with motor vehicle registration KBM 020L. The deceased died as a result of the said accident.

6. The Respondents opposed the claim by the Appellant by filing a Statement of Defence on August 15, 2019 in which they denied negligence on the part of the 1st Respondent and him being in control of the motor vehicle as at the time of the accident

Evidence 7. This being the first appeal I am required to reconsider the evidence adduced, re-evaluate it and draw my own conclusions, bearing in mind that I did not hear or see the witnesses who testified. See Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123 where the Court stated as follows: -“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due to allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence.

8. The Appellant was the only witness in her case. She produced documents and stated that she did not witness the accident. She adopted her statement and averred that the deceased died as a result of the accident. The documents were all produced by consent of the parties. The Appellant indicated that the dependants were listed as per the chief’s letter. The deceased operated businesses and supported her family. She was the widow to the deceased.

9. The Respondents called the 1st Respondent as the only witness. He adopted his statement and confirmed that he was a director of the 2nd Respondent. He testified that he was not driving motor vehicle registration number KBK 123Y on the date of the accident. He did not deny ownership of the said motor vehicle and confirmed it was involved in an accident.

Submissions 10. The Appellant in support of the Appeal filed submissions on April 20, 2022. The first issue she raised was whether she had proved her claim on a balance of probability. In this regard, she submitted that it was not contested that the accident occurred and the deceased died as a result of the same. The police abstract produced by consent of the parties confirmed the occurrence of the accident and the motor vehicles involved. The Appellant faulted the trial court for finding that, since the 1st Respondent denied being the driver of the motor vehicle owned by the 2nd Respondent, vicarious liability would not arise. She cited the case of William Kabogo Gitau v George Thuo & 2 Others[2010] eKLR and Kamanduu Kaumba & another v Kingsway Motors [2020] eKLR

11. On whether there arose vicarious liability, the Appellant submitted that the 1st Respondent though he denied being the driver at the time of the accident, acknowledged the ownership of the said motor vehicle, that he was a director of the owner and was aware of the accident that involved their subject motor vehicle. On the said basis, the Appellant urged the Court to find vicarious liability was established on the part of the 2nd Respondent.

12. The Appellant thus urged the Court to set aside the findings of the learned trial magistrate and award Kshs 10,000. 00 for pain and suffering, Kshs 4,000,000. 00 for loss of dependency, Kshs 100,000. 00 for loss of expectation of life, special damages of Kshs 25,550. 00 as well as costs of the appeal.

13. The Respondents filed their submissions on May 25, 2022 in which they urged the Court to uphold the findings of the learned trial magistrate. On whether the Appellant had proved her claim on a balance of probability, it was the Respondents’ submission that the Appellant failed to discharge the burden of proof. They submitted that the police abstract giving information would have been produced by the maker and as such having stated that the matter was still pending under investigations, the learned magistrate properly held that negligence was not proved. Further, the Appellant having failed to prove the 1st Defendant was the driver of the said motor vehicle belonging to the 2nd Respondent failed to establish the doctrine of vicarious liability.

14. On the issue of award under the Fatal Accidents Act and the Law Reform Act, the Respondents submitted that the persons listed as dependants were adults and that there were no special circumstances as to why they depended on the deceased. The Respondents averred that no loss dependency ought to be arrived at and the same out to be set aside entirely. It was urged that the the appeal be dismissed with costs.

Analysis and determination 15. I have carefully considered the submissions by both parties and re-evaluated the evidence on record and find that the following issues are up for determination:i.Whether the appellant proved her case on a balance of probability.ii.If the answer to the first issue above is in the affirmative, what quantum is payable.iii.Whether the appeal is merited.

16. The provisions of Sections 107,109 and 112 of the Evidence Act, on the burden of proof, were extensively dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

17. In Evans Nyakwana vs Cleophas Bwana Ongaro (2015) eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

18. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau vs George Thuo & 2 Others [2010] 1 KLR 526 stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

19. As to whether the accident occurred is not a matter in dispute. The involvement of the 2nd Respondent’s motor vehicle in the said accident as well as its ownership is not denied. The said contents emanate from the abstract produced by consent of the parties. The said abstract shows that the deceased was the driver of motor vehicle KBM 020L, a fact that is also not disputed. However, the 1st Respondent denies being the driver of the motor vehicle registration No KBK 123Y/ZD 3230 at the time of the accident. The Court of Appeal in the Court of Appeal Civil Appeal No. 100 of 2017 Rosemary Mwasya vs Steve Tito Mwasya & 2 Others (2018) eKLR had the following to say as regards the role of a passenger in an accident:“Our reasons for affirming the Judges conclusions are that the deceased as a passenger had no control over the manner in which the appellant drove/managed and or controlled the accident vehicle prior to the accident.”

20. In the foregoing, somebody must shoulder the blame for the accident. The duty of the Appellant was merely to demonstrate that the deceased was involved in the accident and she was not to blame for it. To this extent, I find and hold that the Appellant proved her case on a balance of probability. The deceased being a passenger in no way contributed to the accident as she did not have the control of the motor vehicle she was travelling in. The Respondents on the other hand failed to adduce any evidence indicating the deceased was in control and/or made an attempt to control the motor vehicle she was travelling in as a passenger. In the circumstances, the deceased cannot be held to have contributed to the occurrence of the accident. Only the drivers of the two motor vehicles involved in the accident can be held liable for the same. The Respondents having not enjoined any other party who they seek to blame for the accident, must shoulder some responsibility for the accident.

21. This is a case I find is not clear as to who, between the two drivers, should be wholly blamed. In a similar instance, the Court in the case of Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] eKLR (High Court of Kenya at Naivasha Civil Case No 23 of 2015) thus:“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under Section 107 of the Evidence Act the Plaintiff was obligated to prove his allegations of negligence against the Defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers….The Plaintiff’s and Defendant’s account of the accident was equally doubtful. Of the collision however there is no dispute. In the circumstances, and based on the decision of the Court of Appeal in Hussein Omar Farah and Anne Wambui Ndiritu, I must find that the deceased and DW1 contributed equally in causing the collision and both must shoulder liability at 50:50. ”

22. From the facts of the case, the 1st Defendant makes a mere denial that he was not driving his employer’s vehicle just for purposes of avoiding liability. The fact of the occurrence of the accident and which vehicles were involved is not disputed. On the other hand, the Appellant was not an eye witness and could not thus attest or rubberstamp who, between the two drivers, was to blame. For this reason, I apportion liability equally between the parties as, despite the occurrence of the accident no party can be blamed wholly for contributing to the same and/or to a greater proportion. Each party will bear 50% liability.

23. Having settled the issue of liability, the next issue for determination is the quantum payable. For damages for pain and suffering and loss of expectation of life, I am guided by Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR where 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 pain and suffering the awards range from Kshs 10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”

24. In view of the foregoing, the awards of Kshs 10,000. 00 for pain and suffering as well as Khs 100,000. 00 for loss of expectation of life as proposed by the Appellant would be adequate compensation.

25. On loss of dependency the Appellant testified that the deceased was 55 years of age as at the time of death and no evidence has been tendered to vicissitudes of life or other imponderables or illness which would have shortened the deceased’s working life. Further, the deceased was self employed and would not have been bound by the retirement age of 60 years. Depending on the venture, a person can well work past the age of sixty years. In the circumstance, I find that a multiplier of 12 years is fair. See Midland Media Limited & another v Pauline Naukot Aule (Suing as the Legal Representative of the Estate of the late Esinyon Esokon Ekai) [2020] eKLR

26. On the income of the deceased, he was a businessman. His type of business or skill is not ascertained or mentioned. No proof of his earnings has been adduced before the Court. In the circumstances, it is prudent that the court reverts to the basic wages in terms of the Regulations of Wages (General) (Amendment) Order for the relevant period, the year 2017. Under the 2017 Regulations, a general worker’s monthly income is stated as Kshs 12,926. 55. My conclusion is illustrated by the Court of Appeal case ofJacob Ayiga v Simon Obayo (2005) eKLR where it was stated:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed”

27. On the multiplicand, the deceased’s dependants are adults. However, it is the Appellant’s testimony that the last child was still school going. All the children were adults as at the time of the deceased’s death. The school going child had already undertaken two years of a three-year diploma course in electronics. In the circumstances, I am of the informed view that a multiplicand of 1/3 is reasonable.

28. Thus, the loss of dependency is tabulated as; 12,926. 55x12x12 x1/3 = 620,448. 00

29. On special damages, the Appellant prayed for and proved Kshs 25,550. 00,

Disposition 30. In conclusion, I find the appeal succeeds and the decision of the learned trial magistrate dismissing the suit is set aside. I enter judgment for the Appellant against the Respondents as follows:a.Pain and suffering Kshs 10,000. 00b.Loss of expectation of life Kshs 100,000. 00c.Loss of dependency Kshs 620,448. 00d.Special damages Kshs 25,550. 00Sub-total Ksh 755,998. 00/Less 50% contribution Ksh 377,999. 00Less Contribution of 50% Kshs 377,999. 00Net Total Kshs 377,999. 00

31. The Appellant shall have costs of the appeal.

32. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. G W NGENYE-MACHARIAJUDGEIn the presence of:Ms Kuria h/b for Mr Kamau for the Appellant.Mr Kamau for the Respondents.