[2023] KEHC 24789 (KLR)

Kithinji v Nancy Wagatwe Kaburi & George Murimi Munene (Suing as Administrators of the Estate of James Munene George - Deceased) & 2 others (Civil Appeal 2 of 2018) [2023] KEHC 24789 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24789 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 2 of 2018

LM Njuguna, J

November 3, 2023

Between

Joseph Kithinji

Appellant

and

Nancy Wagatwe Kaburi & George Murimi Munene (Suing as Administrators of the Estate of James Munene George - Deceased)

1st Respondent

Anthony Mwaura Kahuro

2nd Respondent

Beatrice Wangui

3rd Respondent

(An appeal from the Judgment of Hon. SMS Soita CM in Kerugoya CMCC No. 166 of 2012 delivered on 30th November 2017)

Judgment

1. Vide Memorandum of appeal dated 15th January 2018, the appellant seeks orders that the appeal be allowed and the entire judgment in Kerugoya CMCC No. 166 of 2012 delivered by Hon. SMS Soita CM on 30th November 2017, be set aside with costs. The appeal is premised on the following grounds:a.The learned Magistrate erred in law and fact by finding the appellant 100% liable in negligence regardless of the evidence tendered against such a finding, whilst Kenyan Law has not reached the stage of liability without fault;b.The learned Magistrate erred in law and fact for considering irrelevant matters in arriving at the said decision in favour of the respondents as against the appellant;c.The learned Magistrate erred in law and fact when he awarded a sum of Kshs. 10,995,415/= as damages, which amount is manifestly excessive and high in the circumstances and connotes an erroneous estimate of the damages suffered;d.The learned Magistrate erred in law and fact in failing to consider and adopt the appellant’s written submissions on record and the authorities annexed therein in support of the appellant’s case;e.The learned Magistrate erred in law and fact by failing to follow rules of precedents in awarding special damages; andf.The learned Magistrate erred in law and fact for considering irrelevant matters in arriving at the said decision in favour of the respondent as against the appellant.

2. The background of the case is that, the plaintiffs/respondents filed the plaint dated 10th May 2012 and subsequently a further further amended plaint amended 04th August 2016 seeking judgment against the defendant/appellant for special damages of Kshs. 195,415/=, damages under the Fatal Accidents and the Law Reform Acts, costs of the suit and interests. They alleged negligence against the appellant stating that on/or about the 1st of December 2010 at around midnight, the deceased was lawfully driving tractor registration number KBC 059G along Makuyu-Sagana Road when near Tana River, the 2nd defendant who was the driver of the motor vehicle registration number KBD 836Y, negligently and carelessly drove, managed and/or controlled the said vehicle that he caused and/or permitted it to violently collide with the tractor from the rear, causing fatal injuries to the deceased.

3. That the said accident was also caused due to the negligence of the driver of motor vehicle registration number KBB 258L who negligently and carelessly drove, managed and/or controlled the said vehicle that he caused and/or permitted it to violently collide with the tractor from the rear, causing fatal injuries to the deceased. The appellant filed a further amended statement of defense dated 19th November 2015 denying the allegations made in the further amended plaint and put the respondents to strict proof thereof.

4. At the trial, PW1 was a police officer from Sagana Police Station- who stated that on the fateful night, an accident occurred involving 3 motor vehicles namely KBC 059C tractor, KBD 836Y canter lorry and KBB 258L Toyota pick-up. That the canter was trying to overtake the tractor when the driver saw the oncoming pick-up. That in an attempt to return to his lane, the canter rammed into the back of tractor which lost control from the impact and collided with the pick-up after all the drivers lost control of their vehicles. That the driver of the tractor died. He produced the police abstract and witness summons. On cross examination, he stated that all vehicles are supposed to be fitted with seat belts and he does not know if the tractor had them. That the pick-up was on its rightful lane of the road.

5. PW2 was travelling as a front-seat passenger in motor vehicle KAR 043K that was being driven behind the canter. He stated that the canter tried to overtake the tractor but retreated because of an oncoming vehicle. That the oncoming pick-up collided with the tractor and according to him the vehicle was being driven at high speed. That he saw the deceased lying dead on the tarmac, after falling off the tractor due to the impact. On cross-examination, he stated that from where he was sitting, he saw the whole ordeal happening. That when the canter hit the tractor, the tractor entered the lane of the oncoming pick-up. That according to him, the pick-up was speeding because the impact was great.

6. PW3 was the wife of the deceased who stated that on the fateful night, the deceased was travelling back from Kisumu where he had gone for business and had called her telling her that he had reached Thika on the way home, and she went to sleep. That at around 1:00am, a neighbor informed her that there had been an accident at Sagana Bridge involving a tractor. That she called the deceased but a stranger answered the call telling her that the deceased had been involved in the accident and had died on the spot.

7. It was her testimony that she went to the scene but was advised to go to Karatina District Hospital mortuary where she found the deceased. That the tractor belonged to the deceased and he used to earn about Kshs. 120,000/= from it. That he died at the age of 52 and is survived by four children. On cross-examination, she stated that she repaired the tractor for Kshs. 133,400/=. That the deceased was also earning a rental income and his aggregate monthly income was about Kshs. 195,000/=. That she has tried to carry on with the business but not in the same way as the deceased. That two of her children are still in school and are being sustained with the little income she is collecting. That the accident that resulted in the death of her husband was caused by other people.

8. The defendants at trial did not offer any testimony or evidence in rebuttal. The court found the appellant 100% liable for the accident and was ordered to pay Kshs. 10,995,415/= to the respondents being special and general damages.

9. In this appeal, the parties were directed by the court to file their written submissions and both sides complied.

10. The appellant, in his submissions, reminded the court of its role as an appellate court as stated in the case of Selle Vs. Associated Motor Boat Co. Ltd (1968) EA. That the appellate court should unsettle the damages awarded by a trial court when the same is erroneous or based on wrong principles as stated in the case of Joseph Kyalo Maundu Vs. Musau Mulela & Another (2019) eKLR. He relied on the maxims of volenti non fit injuria and ex turpi causa non oritur action. It was his argument that blame should be equally apportioned to the driver of the pick-up and the canter as it is unclear as to which of the alleged impacts caused the deceased to topple from the tractor.

11. The appellant discredited the testimony of PW2 who was the alleged eye witness and who inferred that it was dark and that he did not see much of what transpired during the accident. He also stated that the testimony of PW1 was not accurate as he was not the original investigating officer and that he did not visit the accident scene. He relied on the case of Hussein Omar Farah Vs. Lento Agencies (2006) eKLR. That the trial court applied the multiplier method to arrive at the award of general damages and yet PW3 did not produce any proof of earnings and that whatever earnings from business were uninterrupted by the death of the deceased.

12. That PW3 further testified that the earnings were gross amounts from which other expenses were drawn and that the actual earnings were unascertained. For this argument, he relied on the cases of Maina Stephen Mathu & 2 Others Vs. David Kanja Macharia & Esther Wangui Mwai (suing as administrators of the Estate of James Gachoka Macharia) (2019) eKLR and Omar Sharif & 2 Others Vs. Edwin Matias Nyonga & Maxwell Musungu (suing as personal representatives and administrators of the estate of Enos Nyonga-deceased) (2020) eKLR. He stated that the general damages should be reduced by half as the award can be invested in the family business for good return and cited the cases of Beatrice Wangui Thairu Vs. Hon. Ezekiel Barngetuny & Another – Nairobi HCCC No. 1638 of 1988 (unreported) and Boru Vs. Onduu (1988-1992) KAR 291. He urged the court to adopt a dependency ratio of ½, a multiplier of 8 years and a multiplicand of Kshs. 50,000/=.

13. The respondents submitted that on the question of liability, the appellant is the owner of the canter lorry according to Section 8 of the Traffic Act and that there has been no evidence proving otherwise. That the driver of the appellant did not do anything to avoid the accident as he was trying to overtake when it was not safe to do so, thereby making the appellant 100% liable, as was also held in the case of Agnes Akinyi Okeyo Vs. Marie Stopes- Kenya (2004) eKLR. It was their argument that the evidence adduced at trial was not rebutted and so the defendants at trial should be held liable. For this argument, reliance was placed on the cases of Raphael Mwaniki Kiboi Vs. Joseph Njogu Kinyua, Nairobi HCCC No. 3974 of 1998 and John Wainaina Kagwe Vs. Hussein Dairy Limited (2013) eKLR.

14. It was their submission that the fact that the appellant or the defendants at trial were not charged and convicted with traffic offences in criminal law, does not mean that they cannot be held liable for this tortous claim, as was held in the case of Philip Keipto Chemwolo & Mumias Sugar Co. Ltd Vs. Augustine Kubende (1982-1988) 1KAR 1036 at 1039-1040. They stated that the trial court’s findings on quantum are proper and should be upheld because the evidence adduced on the earnings of the deceased were not controverted at trial. That the multiplicand of Kshs. 193,337/= used by the trial court was fetched from the bank statements produced at trial and that the appellant has laid no basis for this court to revise this figure.

15. On the dependency ratio, they argued that the deceased was survived by a widow and four children who are all adults save for one. That three of the four children fully depended on the deceased for their basic needs and so the dependency ratio applied by the trial court is sufficient. That the multiplier of 25 years is sufficient as the deceased was 52 years old and would have worked gainfully for another 25 years before retiring. On this, they relied on the cases of George Moga Vs. Nairobi Women’s Hospital & 3 Others (2015) eKLR, Cornelia Elaine Wamba Vs. Shreeji Enterprises Ltd & Others (2012) eKLR and Board of Governors of Kungubiri Girls High School & Another Vs. Jane Wanjiku Muriithi & Another (2014) eKLR. They urged the court to uphold the decision of the trial court and not unsettle the award of damages as was stated in the case of Gitobu Imanyara & 2 Others Vs. Attorney General (2016) eKLR.

16. The 2nd and 3rd respondents submitted that the motor vehicle KBB 258L had nothing to do with the accident and that the appellant’s vehicle was wholly to blame for the accident. That the motor vehicle KBB 258L is not at any point reported to have veered off its lane during the accident and that they are also victims of the appellant’s negligence. They argued that failure by the defendants to adduce evidence does not mean that the court should not consider the merits of the case as was held in the cases of Bwire Vs. Wayo & Sailoki (Civil Appeal 032 of 2021) (2022) eKLR and Brian Muchiri Waihenya Vs. Jubilee Hauliers & 2 Others (2017) eKLR.

17. From the foregoing, I gather the issues for determination to be the following:a.Whether the finding of the trial court on liability is sound; andb.Whether the trial court’s award of general and special damages is justified.

18. While sitting as an appellate court, it is expected that I re-evaluate the evidence and make a finding vis-a-vis the finding of the trial court. In the case of David Njuguna Wairimu Vs. Republic (2010) eKLR the Court of Appeal held thus:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

19. On the first issue for determination, liability is to be established based on the evidence adduced at the trial. PW2 stated that he was travelling as a front-seat passenger in a vehicle that was behind the appellant’s vehicle. That he saw the appellant’s vehicle attempting to overtake the deceased’s tractor but may have miscalculated the move and therefore tried to fall back into its place behind the tractor. That in the process of this maneuver, the appellant’s motor vehicle rammed into the back of the tractor, sending it into the opposite lane where the motor vehicle belonging to the 2nd and 3rd respondents was oncoming, being rightfully on its lane. That the 2nd and 3rd respondents’ motor vehicle rammed into the tractor. He added that it was unclear to him whether the deceased died due to impact of the appellant’s vehicle or the 2nd and 3rd respondent’s vehicle and that he (PW2) only saw him lying on the road.

20. In my view, if the appellant’s driver had not rammed into the back of the tractor, the deceased would not have ended up onto the opposite lane. Also, if the deceased would not have ended up onto the opposite lane, the tractor would not have been hit by the oncoming vehicle belonging to the 2nd and 3rd respondents. The appellant, at trial, did not rebut any of the evidence adduced and did not testify, thereby failing to offer the court his side of the story to enable the evidence to be considered on a balance of probabilities. These circumstances lead me to believe that the appellant is solely liable for the accident and therefore, the finding of the trial court on liability shall remain unsettled.

21. On the second issue for determination, the special damages were pleaded as Kshs. 195,415/= as per the further amended plaint. The amounts have been substantiated through receipts produced with the plaintiff’s list of documents dated 04th August 2016. I am therefore satisfied that the special damages as awarded by the trial court are to be upheld.

22. As for general damages, the trial court chose to only award damages for loss of dependency and none under the heads of pain and suffering and loss of expectation of life as guided by the Court of Appeal decision in the case of Kemfro Africa Ltd Vs. Lubia & Another (1987) eKLR. As regards, loss of dependency, the trial court applied the multiplier method using a multiplicand of Kshs. 90,000/=, multiplier of 15 years and ⅔ dependency ratio and awarded Kshs. 10,800,000/=.

23. I have examined the bank account statement provided by the 1st respondent at trial and do note that the same is proof that the deceased had a significant income, even though the statement was not interpreted by an accountant to ascertain the income and expenditure from the various streams. PW3 who is the widow of the deceased stated that they have cummulative income of about Kshs. 195,337/= from rent and farming activities carried out by the deceased, such that after his death, the productivity of those activities has diminished. She also stated on cross-examination that it is from the same account that they drew money for farm inputs and other expenditures. The trial court noted that the assets of the deceased are still intact and available, for instant, the rental properties, and went on to award the general damages for loss of dependency as stated hereinabove.

24. The deceased was involved in the unconventional occupation of farming whose nature is that it requires a unique set of experience and subject matter expertise for instance knowledge of seasons patterns, etc.., for it to be of financial benefit. Further, the appellant has not demonstrated using material evidence that this court should depart from the trial court’s finding.

25. As to whether this court should apply a global sum, this approach generally applies to ordinary and conventional occupations and the circumstances of each individual case and where the claimants have not proved income of the deceased. In this case, I have noted that the claimant put forward overwhelming proof of income. The trial court heard the witnesses and took evidence leading to its findings as recorded. It is this record that I have considered in finding that a global sum cannot apply in this case. It is not upon the court to reduce quantum where the evidence was unimpeachable, and this court shall not participate in denying the respondent the fruits of her judgment.

26. However, in my view, the multiplicand applied by the trial court is excessive considering the fact that rental income is unascertained. The appellant, in his submissions, suggested that a multiplicand of Kshs. 50,000/= would be sufficient in this case, which suggestion is reasonable. Given the nature of work that the deceased was involved in, he was bound to work gainfully until the age of 70 years as a farmer in business, therefore a multiplier of 18 years is reasonable. The deceased was survived by a widow and four children, among whom only one was working and the rest were dependent on the deceased. A multiplier of ⅔ would suffice in the circumstances. I therefore compute the general damages for loss of dependency as follows:Kshs. 50,000×18×12×⅔=Kshs. 7,200,000/=

27. I am guided by the sentiments of the court in the case of Gitobu Imanyara & 2 Others Vs Attorney General [2016] eKLR, where the Court of Appeal held that:“…In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook Vs Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that: “An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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.”

28. Further, in the case of Savanna Saw Mills Ltd Vs Gorge Mwale Mudomo (2005) eKLR the Court stated as follows: -“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

29. Therefore, I find that the appeal partially succeeds with respect to quantum. The trial court’s finding on liability is hereby upheld. For the avoidance of doubt, the court makes the following orders:a.Liability 100% against the appellantb.General damagesLoss of dependency Kshs. 7,200,000/=c.Proven special damages Kshs. 195,415/=Grand Total Kshs. 7,395,415/=d.Each party to bear their own costs of this appeal.e.The monetary awards of general and special damages will earn interest at court rates from the date of the judgment of the lower court and the date of filing the plaint respectively until payment in full.It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………....………………………………………………...…..for the Appellant………………………………..…………………………………………….…....for the Respondents