[2022] KEHC 15036 (KLR)

Kilonzi & 2 others v Matoi & another (Civil Appeal E023 of 2021) [2022] KEHC 15036 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15036 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E023 of 2021

RK Limo, J

November 2, 2022

Between

Jacob Mutie Kilonzi

1st Appellant

John Munuve

2nd Appellant

Kenya Kazi Services Ltd

3rd Appellant

and

Rose Mwikali Matoi

1st Respondent

Joseph Ngundi Maivi

2nd Respondent

(An Appeal from the Judgement of Hon. M. Onkoba, PM vide Mwingi CMCC No. 14 of 2020)

Judgment

1. This is an appeal from the judgement of Hon M. Onkoba, PM vide Mwingi CMCC No 14 of 2020. The suit was in relation to a road traffic accident involving motor vehicle registration No KBP 369G driven by 1st appellant and owned by the 2nd and 3rd appellants herein.

2. The respondent suing as a personal representative of the estate of Matoi Maivi (deceased) blamed the appellants for negligence in driving the motor vehicle registration No KBP 369G on December 7, 2017 as a result of which an accident occurred where the deceased got injured and later died from the injuries he sustained during the accident.

3. It was the respondents’ contention that at the time of the accident, the motor vehicle was being driven by the 1st appellant so negligently that he permitted the same to vie off the road causing the accident of which the deceased sustained fatal injuries.

4. It was averred that as a result of the deceased’s death, the respondents who were named as his dependants suffered loss and damage. The respondents claimed for loss of dependency under the Fatal Accidents Act and damages for pain, suffering and loss of expectation of life under the Law Reform Act as well as special damages.

5. In their statement of defence dated March 31, 2020 and filed onMay 13, 2020, the 1st, 2nd and 3rd appellants denied the claim and put the respondents to strict to proof. In particular, the appellants denied that the 1st appellant was negligent in his driving as alleged by the respondents.

6. During trial, the respondents called two witnesses in support of their case. PW1 PCJames Kingori attached to Mwingi Traffic base confirmed that police were called to the scene on the material day. That upon arriving at the scene, they found the said vehicle in a ditch with the deceased inside. Seriously hurt and that he later succumbed to the injuries.

7. PW2 Joseph Ngundi Maivi told the trial court that he was an occupant of the subject motor vehicle together with the deceased who was his brother. He stated that they were travelling to Kitui in the hired vehicle for purposes of attending an election petition. That before they arrived their destination, the driver lost control of the vehicle and it rolled three times. He stated that his brother sustained severe injuries and died at hospital the same day. The witness blamed the 1st appellant for the accident stating that he was careless in his driving. He also stated that the deceased was survived by his wife and nine children and that he supported his family from his income which earned as a business man. He also stated that the deceased earned about Kshs 30,000 per month.

8. At the conclusion of the trial, the learned magistrate found the 1st appellant being the driver of the motor vehicle 100% liable for the accident while the 2nd and 3rd appellants were found to be vicariously liable as the owners of the said vehicle.

9. While holding in favour of the respondents in its judgment of April 7, 2021, the trial court noted that the appellants did not provide evidence to controvert the 2nd respondent’s version of the events leadings to the occurrence of the accident. As for quantum, the learned magistrate awarded Kshs 100,000/- for loss of expectation of life, Kshs 20,000/- for pain and suffering, Kshs 2,400,000/- for loss of dependency and Kshs 58,000/- for special damages. The total amount awarded to the respondent was Kshs 2,578,550/- The respondents were also awarded costs of the suit.

10. The appellants were dissatisfied with the judgment and filed this appeal vide a memorandum of appeal dated April 16, 2021 on April 28, 2021 raising the following grounds;i.That the learned magistrate erred in law and fact in arriving at a decision contrary to law and facts/ evidence placed before the trial court.ii.That the honoarable magistrate erred in law and in fact in finding the appellants 100% liable for the accident that took place on December 7, 2017 on the account of the sole and uncorroborated evidence of one Joseph Ngundi Maiviiii.That the honourable magistrate erred in law and in fact in using Kshs 20,000 as the deceased’s earning wehereas there was no proof thereof.iv.That the learned magistrate erred in law and facts and as a consequence of ground (ii) above arrived at an exaggerated figure of Kshs 2,400,000. 00v.That the learned trial magistrate erred in law and fact in failing to apply precedent law thereby bringing disrepute to judicial precedence.

11. In their submissions dated August 5, 2021 and filed on August 16, 2021, the appellants fault the trial court for awarding what they deem to be inordinately high and excessive damages to the respondents.

12. On liability, the appellants submit that the trial court erred by relying on the testimony of the two prosecution witness stating that the same was unsupported by documentary evidence. They challenged Joseph Maivi’s (PW2) testimony that he was in the ill-fated vehicle as he was not injured. They further challenge the police officer, John Kingori’s (PW1) testimony stating that he was neither a witness nor the investigating officer. That he did not provide any sketch map of how the accident occurred.

13. The appellants have cited the case of Peter Kanithi Kimunya v Aden Guyo Haro (2014) eKLR as cited inJTK (suing as the father of WR –minor) v Bonaya Godana & another(2021) eKLR where it was held in part that a police abstract as extracted from records held by police is only evidence that a report of an accident was made.

14. The appellants have interestingly also cited the case of Caleb Juma Nyabuto v Evance Otieno Magaka & Anor(2021) eKLR where the court upheld the finding that the driver of a motor vehicle was 100% liable for an accident for failing to provide evidence that controverted the respondent’s version of how the accident occurred.

15. The appellants have also taken issue with the trial court’s holding on the damages under the Fatal Accidents Act (i.e damages for loss of dependency). They have faulted the multiplicand used by the trial court stating that there was no proof of the income earned by the deceased. They submit that the trial court should have adopted the Regulations of Wages (General) (Amendment) Order 2017 which provided Kshs 12,926. 55 as the wage afforded to a general labourer. They have cited two cases where the courts relied on general wage orders to determine the multiplicand, these arePleasant View School Limited v Rose Mutheu Kithoi & Anor [2017] eKLR and Beatrice W. Murage v Consumer Transport Ltd & Anor [2014] eKLR.

16. The respondents have opposed this and are seeking dismissal of the same. They submit that the trial court only heard their evidence in determination n of the case following failure by the appellants to adduce evidence. They have cited two cases to buttress their intention. The cases are Linus Nganga Kiongo & 3 others v Town Council of Kikuyu [2012]eKLR and Charles Ochieng Ogola vs Bhole Kondele Limited [2017] eKLR.

17. The respondents contend that the evidence ofPW2 was direct evidence that required no corroboration.

18. They submit that the multiplicand used by the trial court was a correct one because there was proof of income of the deceased. They rely on the decision of Ouma v Rosemary Atieno and Anor. (Suing as the legal representative of the estate of Joseph Onyango Amollo).

19. This court has considered this appeal and the response made. As a first appeal the duty of this court is to re-evaluate the evidence tendered with a view to reaching to conclusion/verdict on the issues at hand.

20. There are basically 2 issues in this appeal which have cropped up namely:i.Whether the trial court was correct in its finding on liability.ii.Whether quantum of damages under the different heads was correct.

(i) Liability 21. The appellants have contended that the trial court erred by putting too much weight on the evidence of PW2 whom they suspect was not involved in the accident. They have however conceded 30% liability urging this court to find that the respondent was 70% to blame.

22. The respondent on the other hand contends that the appellants were 100% to blame for the accindent.

23. In their amended plaint, the respondents blamed the accident on the driver’s negligence and relied on the doctrine of re ipsa loquitor. The law however still required them to prove on a balance of probability a prima facie case of negligence against the appellants as stipulated under section 107 of the Evidence Act cap 80 which provides;i.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 existii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

24. PW2 testified that he was travelling to Kitui with the deceased in the ill-fated vehicle when the accident occurred. That along Migwani, the driver of the vehicle, the 1st appellant lost control and it rolled three times. He testified that he escaped unhurt but his brother was not as lucky. He blamed the driver for over speeding.

25. The appellants are in their submissions challenged the evidence ofPW2 suggesting that he could not have been in the vehicle as he escaped without a scratch or injury. This is an interesting argument as it is very possible for one to be involved in an accident but escaped unhurt. The appellants are also challenging testimony by PW1 stating that the officer was neither an eye witness nor the investigating officer. They further submit that the officer did not provide any sketch maps of the scene and how the accident might have occurred.

26. While it is correct that PW1 only came to court to produce the police abstract, PW2 was an eye witness to the accident and he testified in court. The appellants did not call any evidence to controvert respondent’s evidence. The appellants also did not seriously challenge PW1’s evidence either by cross-examination or through evidence during the trial. PW1 stated that the driver was speeding and as a result, he lost control of the vehicle and it rolled three times. PW2 testified that the accident was along Migwani. This was corroborated by the police abstract produced by PW1 which recorded the place of accident as along Mwingi-Thika Road, Migwani area.

The Respondent’s case established that the appellants were to blame. 27. The appellants’ submission that testimonies from PW2 on how the accident occurred needed corroboration is unfounded. Occurrence of the said accident was a matter of fact and the evidence given by PW2 was admissible on account of him being present when the accident occurred. His testimony qualifies as direct evidence. Under section 62 and 63 of the Evidence Act, the law provides that oral evidence must be direct evidence. It will be admissible if it meets the requirements set out under the two sections; ‘‘62. All facts, except the contents of documents, may be proved by oral evidence63. 1.Oral evidence must in all cases be direct evidence2. For the purposes of subsection (1), “direct evidence” meansa)with reference to a fact which could be seen, the evidence of a witness who says he saw itb)with reference to a fact which could be heard, the evidence of a witness who says he heard itc)with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner.’’

28. There is no requirement for corroboration of PW2’s evidence under the Evidence Act. Corroboration would have been required if the witness was a child of tender years and if the case was of a criminal nature.

29. The appellants failure to adduce evidence to controvert the respondents’ case which established negligence was their main undoing and left the respondent’ version of how the accident occurred unchallenged.a)19. In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No834 of 2002, Lesiit, J. citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No 548 of 1998 appreciated that:-“Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counter-claim are unsubstantiated. In the circumstances, the counter-claim must fail.’"b)The Court of Appeal in the case Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Shulter & another [1979] eKLR said:“The respondents filed a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.”c)In the case ofJTK (Suing at the Father of WR - Minor) v Bonaya Godana & another [2021] eKLR relied upon by the appellant’s Justice Odunga highlighted several cases on this issue as well’d)The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani)HCCC No 834 of 2002, Lesiit, (J as he then was) held;“Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counter-claim are unsubstantiated. In the circumstances, the counter-claim must fail.”e)In Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya) Kisumu HCCC No 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter civil appeal No 23 of 1997 the court held;In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence

30. There is no dispute that the appellants offered no evidence in defence to challenge the respondent on liability. The evidence tendered by the respondents and two witnesses on liability were uncontroverted.

31. The trial court was right in finding that the respondent has proved her case on a balance of probability, which is the standard applicable in civil cases, and that the appellants were 100% liable. That finding on liability is upheld by this court in light of the authorities above and aforestated reasons.

Quantum of Damages 32. There hasn’t been a challenge on the damages awarded for pain and suffering as well as damages awarded by the trial court for loss of expectation of life being the conventional figure of Kshs 100,000 provided under the Law Reform Act.The appellants have however raised issue with the multiplicand adopted by the trial court of Kshs 20,000/- while making a determination on the damages under the head of loss of dependency.

33. Loss of dependency is a claim that arises from the Fatal Accidents Act. Section 4 (1) of the Fatal Accident Actwhich provides:‘‘Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought.’’

34. Principles of reference in award for damages of loss of dependency are the multiplicand, multiplier and dependency ratio.

35. The appellants have submitted as follows on this head, that it was not proven that the deceased earned Kshs 20,000/- per month as such the court erred as it should have relied in the Regulations of Wages (General) (Amendment) order 2017 which provide the earnings of a general labourer as Kshs12,926. 55/-

36. The trial court awarded the respondent Kshs, 2,400,000 under loss of dependency and the court found that the respondent had not proved the deceased’s earning and went ahead to find that the deceased’s earning was Kshs 20,000 per month which in my view was erroneous. The trial court stated that it was using a proposal made by the respondents and found that the same was ideal.

37. The same in this court’s view would have ideal if the deceased income was definite but was not. PW2 stated that the deceased was a chicken and honey seller but there was no proof of income from his business. In the circumstances the safe approach on head would have been an award in form of a global figure.

38. The same principle was adopted in Mary Khayesi Awalo & another v Mwilu Malungu & another Eld HCCC No 19 of 1997 [1999] eKLR where Nambuye J, (as then was) stated that: -As regards the income of the deceased there are no bank statements showing his earnings. Both counsels(sic) have made an estimate of the same using no figures. In the courts opinion that will be mere conjuncture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.

39. The Court of Appeal, R. N Nambuye J, P. O Kiage J , J. Mohammed J in Francis K. Righa v Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga [2021 referenced the case of Butler v Butler [1984] KLR 225 which provides a guideline on the role of the court in assessment and reassessment of damages as follows;“...that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision...”

40. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, the court held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

41. The deceased was 45 years old. He left behind a widow and nine children to cater for. In my view a global figure of Kshs 2,400,000 is not inordinately so high to attract intervention by this court. The same is upheld with the only difference being that the sum is a global award.

42. The other awards on pain and suffering and special damages are uncontested. They are therefore, upheld.

43. In the end save as I have found out above, this appeal is disallowed for lacking in merit. I will order the appellants to pay half of this appeal to the respondent.

DATED, SIGNED AND DELIVERED AT KITUI THIS 2ND DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE