[2022] KEHC 15488 (KLR)

Kimaiyo v Nyakweba (Suing as the legal representative of the Estate of the deceased Seline Kerubo Nyakweba)) (Civil Appeal 18 of 2018) [2022] KEHC 15488 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15488 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 18 of 2018

RE Aburili, J

November 16, 2022

Between

Pius Kimaiyo

Appellant

and

Stephen Barongo Nyakweba

Respondent

Suing as the legal representative of the Estate of the deceased Seline Kerubo Nyakweba)

(An appeal arising out of the judgement and decree of the Honourable R.M. Ndombi in the Chief Magistrate’s Court at Kisumu delivered on the 1st August 2018 in Kisumu CMCC No. 371 of 2013)

Judgment

Introduction 1. The appellant Pius Kimaiyo was sued by the respondent Stephen Barongo Nyakweba (suing as the legal representative of the estate of the deceased Seline Kerubo Nyakweba in the subordinate court for general and special damages as a result of the fatal injuries sustained by the deceased Seline Kerubo Nyakweba after a road traffic accident that occurred on the July 25, 2011 when the deceased was walking off the road along Mosque road and was knocked down by the appellant who was riding motorcycle registration number KMCL 827W.

2. The parties failed to agree on liability hence the trial magistrate found the appellant 100% liable and proceeded to assess damages in favour of the respondent damages as follows:Pain and suffering - Kshs 120,000Loss of dependency – Kshs 479,999. 99Loss of expectation of life – Kshs 100,000Special damages –Kshs 160,375General damages - Kshs 750,000

3. Aggrieved by the trial court’s judgment and award, the appellant filed his memorandum of appeal dated August 31, 2018, setting out the following grounds:i.The learned chief magistrate erred in law and in fact when she considered wrong and irrelevant factors in arriving at the quantum of damages awarded thereby arriving at a figure that no court properly directing itself on the law and fact would have awarded in the circumstances of the case.ii.The award of quantum is against the weight of the evidence.iii.The finding on liability is also against the weight of the evidence.

4. The parties filed submissions to canvass the appeal herein.

The Appellants’ Submissions 5. It was submitted that the trial magistrate erred on liability and quantum as she shifted the burden of proof contrary to the provisions of section 107 of the Evidence Act. The appellant submitted that no eye witness or investigating officer was called as a witness and that further, the plaintiff himself was not at the scene.

6. The appellant further submitted that the respondent was not the victim in this matter and it was an error of law for the trial court to treat his evidence as that of a person who got involved in the accident and to proceed to hold the appellant 100% liable on the basis of hearsay evidence.

7. It was submitted that the trial court further erred when it incorrectly invoked the principle ofres ipsa loquitor when the same was not relevant to the particular circumstances of the case specifically when the court stated that the mere occurrence of the accident was in itself sufficient proof of negligence.

8. On quantum of damages, it was submitted that the trial magistrate ignored the evidence on record that the deceased was a 96-year-old dependant and instead treated her as if she was taking care of anyone and as such, the trial court erred in awarding general damages of Kshs 750,000 by relying on the multiplier method which had no applicability to the peculiar circumstances of the case.

9. The appellant submitted that this court had repeatedly held that the multiplier method of assessing damages was not mandatory in all situations and must be abandoned as was held by Ringera J in the case of Ngalali Mutua & another.

10. On special damages, the appellant submitted that the plaintiff pleaded Kshs 160,735 but informed the court during his testimony that he had spent Kshs 58,000. The appellant further submitted that there was no evidence adduced by the plaintiff/respondent herein in support of his figure of Kshs 160,735 and as such ,the same was not proved and thus the trial magistrate erred in awarding the same.

The Respondent’s Submissions 11. The respondent submitted that the appellant was solely liable for the accident as he admitted in his pleadings that he was unable to apply the brakes on his motorcycle and that he hit the deceased.

12. The respondent further submitted that the appellant’s character raised suspicion as he denied hitting the deceased during his testimony in chief in court and stated that he only assisted in taking the deceased to hospital whereas in his written statement, he stated that he was unable to apply the brakes on his motorcycle and admitted hitting the deceased.

13. The respondent submitted that the burden of proof was on a balance of probabilities and that he adduced evidence of the appellant’s ownership of the subject motorcycle and that the accident occurred on the date pleaded. The respondent submitted that the trial court was thus right in finding the appellant 100% liable.

14. The respondent further submitted that the trial magistrate did not err when awarding the respondent Kshs 50,000 for pain and suffering. He relied on the cases of Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the legal administrator of the Estate of the Late Robert Mwangi) [2019] eKLR and that of Sukari Industries Limited v Clyde Machimbo JumaHomabay HCCA No 68 of 2015 [2016] eKLR.

15. The respondent further submitted that the award of Kshs. 100,000 for loss of expectation of life was right. He relied on the case ofMoses Akumba & another v Hellen Karisa Thoya (2017) eKLR where the court awarded Kshs 200,000 for loss of expectation of life for a deceased who was a fisherman. The respondent also relied on the cases of Patrick Kariuki Muiruri & 3 others v Attorney General [2018] eKLR and that of Vincent Kipkorir Tanui (Suing as the Administrator and/or Personal Representative of the Estate of Samwel Kiprotich Tanui(deceased) v Mogogosiek Tea Factory Co Ltd & another [2018] eKLR in which the court awarded Kshs 200,000 for loss of expectation of life.

16. On loss of dependency, the respondent submitted that the court was right in awarding Kshs 800,000 as the deceased was a peasant farmer supporting her children and other relatives prior to her untimely death.

Analysis and Determination 17. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing and hearing the witnesses testify. I will therefore assess the evidence before the trial court as I resolve the issues that arise in this appeal.

18. It is clear that the determination of the appeal revolves around the question whether the respondent proved his case on the balance of probabilities specifically in this instance, whether the trial court erred in apportioning liability against the appellant at 100% and secondly whether the trial court erred in its award of damages.

19. On liability, 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.”

20. The admitted facts before the trial court are that the deceased was fatally injured by motorcycle registration number KNCL 827W which was being driven by the appellant at the material time. None of the parties herein called any witness in support of their case. The respondent, the deceased’s son admitted that he was not an eye witness to the accident. The appellant testified on oath to the effect that he found the deceased lying on the ground in the place and took her to hospital. In his statement filed with his defence, he stated that he knocked the deceased after was unable to apply the brakes on his motorcycle. The question is who was to blame for the accident?

21. PW1, the respondent herein did not witness the accident take place. He testified that the deceased was walking off the road along Mosque road when the appellant recklessly and carelessly veered off the road and knocked the deceased down. He testified that although the deceased was rushed to hospital, she died on the August 1, 2011.

22. DW1, the appellant relied on his written statement in which he stated that he was heading home from work when the deceased came onto the road suddenly and despite applying the brakes and even swerving, he hit her with the steering wheel of the motorcycle. He further stated that he took the lady to Kisumu District Hospital and subsequently came to learn of her death.

23. In his testimony in court, the appellant stated that on the material date, he was riding the said motorcycle and that there was an accident and vehicles had parked on the side of the road. He stated that he found a woman who missed a vehicle and took her to hospital.

24. The trial court while invoking the doctrine or res ipsa loquitor as allegedly not pleaded by the respondent found that the appellant was negligent as he had complete control of the said motorcycle and held that the respondent had proved that the deceased was hit from behind and that the appellant had failed to rebut the same and found the appellant 100%.

25. The respondent in his amended plaint dated July 11, 2014 did not lead the doctrine of res ipsa loquitor. The question is whether the trial court was in error when she invoked the doctrine in the absence of any pleading.

26. It is trite that in action for negligence, the burden of proof rests upon the plaintiff alleging it to establish the element of the tort of negligence. However, negligence can be inferred in the absence of any other plausible explanation on how the accident occurred. This is the rationale behind the doctrine of re ipsa loquitor. In the case of Sally Kibiii and another v Francis Ogaro [2012] eKLR, the court was faced with such a scenario and it observed as follows:‘‘The Plaintiff in the trial only produced two witnesses who admitted that they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was caused by collusion of two vehicles and investigation were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to blame and the absence of an eye witness diminishes the appellant’s chance to prove a case of negligence against the defendant….to successfully apply this doctrine (res ipsa loquitor) there must be proof of facts that are consistent with negligence on the part of the defendant as against any other cause…….can safely presume that the mere fact that two cars being KAK 746J and KAG 331K collided, negligence was on the part of the defendant’s cause and not the other. The plaintiff must prove fact which give rise to what may be called res-ipsa loquitor situation.’’

27. In this case, there is no denial that the person who could have been in a better position to explain what exactly happened during the accident, perished in the accident.

28. This court has also noted from the respondent’s and the appellant’s pleadings that he did not plead the doctrines of res ipsa loquitor but as was correctly held in Margaret Waithera Maina v Michael K. Kimaru [2017] eKLR, it is not necessary that a plaintiff must plead res ipsa loquitor for the doctrine to apply. It is sufficient to prove facts which show that the doctrine applies.

29. The court of Appeal inFred Ben Okoth v Equator Bottlers Ltd [2015] held in the relevant part as follows:‘‘Proof of causation is crucial to the success of most of the action in tort, except in instances where the doctrine of ‘‘res ipsa’’ is applicable.’’

30. I have considered the decision cited by the respondent in Benter Atieno obonyo v Anne Nganga & another [2021 ]eKLR where the court regretted having to dismiss some two cases because the plaintiff failed to prove their case to the required standard. In that case, the plaintiff was unable to prove that the defendant caused the accident because she did not witness the accident and the police officer called to testify was not the investigating officer and there was no credible evidence on which negligence could be inferred.

31. In this case, this court finds that the evidence tendered by the appellant who was the rider of the offensive motor cycle shows negligence on his part, which negligence can be inferred against him. There is no way the deceased could have at one time entered the road and be knocked and at another time she was found lying on the road seeking help after an accident and the appellant therefore only became a good samaritan who picked her and took her to the hospital for treatment. That being said, a reasonable driver/rider who is approaching an accident area is reasonably expected to slow down or even stop. Failure to do so is not expected of a reasonable man and is thus ipso facto negligence.

32. Indeed, there is no dispute from the evidence adduced that the appellant knocked down the deceased from behind. What that means is that the rider saw the pedestrian ahead of him and therefore the question is, what avoiding act did he take to avoid hitting her? In my view, order 11 of the Civil Procedure Rules was intended for disclosure of all evidence that a party wishes to rely on at the trial. One cannot record and file into court a statement of his evidence saying something materially different from what he testifies on oath. If that happens, then such a person is lying in both statements on oath and before taking an oath. This is so because the law is now against trial by ambush hence the appellant cannot be left to give evidence that is totally at variance with his statement filed in court together with his defence.

33. In Masembe v Sugar Corporation and another [2002] 2 EA 434, it was held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.”

34. Applying the foregoing principle to the facts of this case, I find that there was sufficient evidence that the respondent failed in his expectation as a reasonable rider and should not be absolved from liability in the causation of the accident and injury to the deceased.

35. Having earlier noted that the respondent was not an eyewitness to the accident whereas the appellant was there when it happened, the appellant’s written statement that the deceased came onto the road suddenly was at variance with his testimony in court that he found the deceased on the side of the road and took her to hospital, in my view, the respondent proved his case on a balance of probabilities and that the trial court was not in error when it invoked the doctrine of res ipsa loquitutr to infer negligence on the part of the appellant who gave evidence that was not credible. In William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLE 526 the court 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.”

36. The trial court was not in doubt as to who caused the accident that led to the deceased’s death. This court is similarly not in doubt. It is for the aforementioned reasons that I find that the doctrine of res ipsa loquitur applies in the circumstances of this case and that the respondent proved his case on a balance of probabilities. The appellant’s testimony in court and his written statement that he relied on brought forth material inconsistencies in the appellant’s version of events. I find and hold that the appellant was to blame for the occurrence of the accident and I hereby find him liable at 100%. The trial court’s finding on liability was therefore sound and is hereby upheld.

As To The Quantum Of Damages Payable To The Respondent 37. The appellant submitted that the trial court erred in following the multiplier method in awarding damages that had no applicability to the peculiar circumstances of the case. The guiding principles in deciding whether or not to interfere with the award of damages made by the trial court have been established in various judicial pronouncements.

38. Assessment of damages are matters that are within the discretion of the trial court and the appellate court ought to respect that discretion if properly exercised. This was aptly expressed by the Court of Appeal in Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenya) v Kiarie Shore Stores Limited [2015] eKLR thus:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate court will not disturb an award of damages unless it is so inordinately high or law as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure, which was either inordinately high or low. The court must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one or that, short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages.”

39. The appellant argued that the award of Kshs 750,000 on loss of dependency was excessive. I note that from the trial court record, the court awarded Kshs 479,999. 99 for loss of dependency and not Kshs 750,000 complained of here.

40. The Court of Appeal in Chunibhai J Patel and another v P. F Hayes and others [1957] EA 748, 749, stated the law on assessment of damages under the Fatal Accidents Act and held as follows:“The court should find the age and expectation of the working life of the deceased and consider the ages and expectations of life of his dependants, the net earning power of the deceased (i. e his income less tax) and the proportion of his net income which he would have made available for his dependants. From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying by a figure representing so many years’ purchase. (emphasis added)”

41. The appellant faulted the trial court for using the multiplier method when the global sum approach was more appropriate. In Mwanzia v Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa v Gichumu Githenji [2007] eKLR, the court made the following observation:“The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice should never do.”

42. In the same breath, the court in Moses Mairua Muchiri v Cyrus Maina Macharia (suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, 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.”

43. In his amended plaint, the respondent pleaded that the deceased was aged 75 years old and in good health prior to her death. The post-mortem report produced as PEx4 detailed the deceased’s age as 80 years old. Further in this case, it was alleged that the deceased was a peasant farmer supporting her sons and other relatives. No evidence was adduced to support the allegation that the deceased had any dependants or even to ascertain her age.

44. Further, based on PEx4 that put the deceased’s age at 80 years old, it was not ascertainable as to the amount of money the deceased earned, if any, from her peasant farming as alleged by the respondent.

45. InFrankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR the court was dealing with a similar issue, it stated as follows:[23]. In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.[24]. The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

46. For the above reasons, I find that this would have been an appropriate case to use the global sum approach rather than the multiplicand method used by the trial court.

47. I also note that the trial court after awarding the respondent damages under the Law Reform Act and Fatal Accidents Act, proceeded to award the respondent general damages of Kshs 750,000. This in my view was an error and if upheld would amount to double compensation.

48. It is for the aforementioned reasons that I find that the trial court erred in the manner of calculating damages awarded to the respondent for loss of dependancy. For these reasons, I find that the trial court proceeded on wrong principles and considered irrelevant factors in arriving at the award for damages and as such, those errors call for interference of the awards made. I aside the award of damages as awarded to the respondent.

49. I will thus proceed to consider the quantum of damages awardable to the respondent.

50. In China Civil Engineering & another v Mwanyoha Kazungu Mweni & another[2019] eKLR High Court on appeal upheld a global sum award of Kshs 700,000 for loss of dependency where the deceased was aged 79 years old.

51. In the case of Moses Maina Waweru v Esther Wanjiru Githae (suing as the personal representative of the estate of the late David Githae Kiririo Taiti [2022] eKLR where the deceased died at the age of 68 years and left one dependant, the court made an award ofKshs 800,000 for loss of dependency.

52. Comparing the above awards and considering circumstances of this case, which is similar to the China Civil Engineering Co Case-supra, I find that a global award of Kshs 700,000 is reasonable for loss of dependency under the Fatal Accidents Act.

53. As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.

54. The trial court awarded Kshs 120,000 for pain and suffering andKshs 100,000 for loss of expectation of life. These were damages under the Law Reform Act.

55. In the case of Rahima Tayab & others v Anna Mary Kinanu – civil appeal No 29 of 1982 (1983) KLR 114, KAR 90 Potter, JA had this to say:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

56. In the case of Mercy Muriuki & another v Samuel Mwangi Nduati & another (suing as the legal administrator of the Estate of the late Mwangi)2019 eKLR it was 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 award range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

57. The evidence on record specifically from the burial permit, PEx3 shows that the deceased died on the August 1, 2011, that is 5 days after the accident occurred. I therefore find that an award of Kshs 70,000 would be reasonable for pain and suffering.

58. On Loss of expectation of life, the court in the case of Mercy Muriuki & another supra stated that an award of Kshs 100,000 was conventional for loss of expectation of life. I thus find that an award of Kshs 100,000 is sufficient under this head.

59. Turning to special damages, the appellant submitted that there was no evidence adduced by the plaintiff in support of his figure of Kshs 160,735 and further that the plaintiff testified that he had spent Kshs 58,000.

60. The test to be applied in this award of damages is clearly articulated in the cases of Mariam Maghema Ali v Jackson M. Nyambu t/a Sisera Store civil appeal No 5 of 1990 andIdi Ayub Shaban v City Council of Nairobi1982 – 1988 IKAR 681 which laid down the principle that special damages in addition to being pleaded must be strictly proved.

61. In this case, I find that the receipts on record and produced as documentary evidence in support of special damages amount to a total of Kshs 132,857, this is the amount that is proved and is hereby awarded. The award of Kshs 160,735 is therefore set aside.

62. In the end, I find this appeal partially successful. I uphold the trial court’s finding on liability at 100%. I however allow the appeal against quantum of damages and set aside the award and substitute the same with the following awards under the different heads:Loss of expectation of life – Kshs 100,000Pain and suffering – Kshs 70,000Loss of dependency –Kshs 700,000Special damages – Kshs 132,857Total Kshs 1,002,857. 000

63. General damages will attract interest at court rates from the date of judgment in the lower court until payment in full. Special damages will earn interest from the date of filing suit until payment in full. The respondent shall have costs of the suit in the court below and costs of this appeal assessed at Kshs 50,000.

64. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE