[2022] KEHC 2481 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 165 OF 2018

LIVING WATER INTERNATIONAL...........1ST APPELLANT

DANIEL NGANGA........................................2ND APPELLANT

VERSUS

JOSEPHINE MIUNDE MUNYAO..................RESPONDENT

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. G H ODUOR

(CM) DATED 21ST SEPTEMBER 2018 IN CIVIL SUIT NO 181 OF 2009)

JUDGEMENT

1. On 16th January 2009, the appellant’s late husband was involved in a road traffic accident along Njoro –Elburgon road. He was driving motor vehicle registration number KAV 980P which collided with motor vehicles registration number KAW 975D owned by the 1st appellant and driven by the 2nd appellant. The said accident fatally wounded him.

2. The respondent commenced proceedings seeking both general and special damages as a result of the said accident. After a full trial the court found the appellant 100% liable for the accident and awarded her and the estate general damages for pain and suffering Kshs 50,000, of Kshs6,400,000 for loss of life and special damages of Kshs 167,095 as well as costs and interest.

3. The appellants being dissatisfied with the said judgement filed this appeal citing 8 grounds which in summary can be termed as challenging both liability and quantum.

4. When the matter came up for direction the court directed the parties to file written submissions which they have complied and the same can be summarized as hereunder.

Appellant’s submissions.

5. The appellant submitted that the trial court contrary to the decision in KARUGI & ANOTHER V. KABIYA & 3 OTHERS C.A. NO 80 OF 1982 shifted the burden of proof to the appellants. This was clear in regard to the findings by the court that the appellants failed to provide evidence that their vehicle was in good conditions. In other words, they should have produced an inspection report.

6. On the same vein the appellants submitted that the trial court failed to appreciate that despite the tyre burst the 2nd appellant tried all that he could to avoid the accident, namely, hooting and flashing the lights. The court believed the evidence of PW2 but disbelieved DW1.

7. On quantum the appellants faulted the trial court for finding that the award of pain and suffering was Kshs 50,000 instead of Kshs 10,000 they had proposed as the deceased died on the spot.

8. Under the heading of loss of dependency, the appellants submitted that the trial court should have awarded a figure of Kshs. 10,000 as being a fair compensation as there was no evidence to support the deceased’s income. The award of Kshs. 50,000 per month was excessive in the circumstances.

9. The appellants therefore urge the court to reverses the judgement by the trial court by setting it aside and agreeing with their proposals. They also prayed for costs.

Respondents submissions.

10. The respondents essentially agreed with the findings of the trial court and urge this court to dismiss the appeal.

11. Under heading on liability the appellant agreed that indeed it was true that the appellants caused the accident as per the testimony of PW2 and PW3. As a result of the tyre burst the appellants motor vehicle KAW 975D left its side of the road, hit another lorry KBD 733Y and thereafter the deceased’s vehicle. There was therefore no way the deceased would have avoided the accident.

12. There was no evidence, they further submitted, that the appellants motor vehicle was in good conditions and therefore incapable of causing the accident. It was incumbent upon the appellants to establish this by producing the necessary evidence and in particular the inspection report.

13. Under quantum, the respondent agreed with the trials courts finding and indicated that the deceased was aged 45 years and full of life. He was a businessman and vented for his family. His children whose birth certificates were produced were schooling in private institutions and he was well managing his private car. There were also evidence of bank statements to show his financial capacity.

Analysis and determination.

14. The duty of this court at this level was well spelt out in the case of SELLE V. ASSOCIATED MOTOR BOAT CO. LTD (1968)as hereunder.

"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 allowance in this respect..."

15. The twin issues of liability and quantum is truly what ought to be established as clearly submitted by the parties herein.

16. The occurrence of the accident was not in doubt. The same involved the three motor vehicles namely, KAW 975D owned by the appellants, KBD 733Y whose owner was not brought into the matter and KAV 980R owned and driven by the deceased.

17. The only eye witness to the incident other than Dw1 was Pw2 who testified that he was at the scene. He testified in part that;

“I saw the lorry swerving on the road. The canter had stopped ahead. There was a motor vehicle from Nakuru towards Elburgon which was on its proper lane. The lorry which had been meandering on the road collided with that motor vehicle and threw it up in the air. The small motor vehicle fell and the lorry came and fell on top of the saloon. The saloon had been on the left side.”

18. On cross examination he said that initially he thought it was a tyre burst and that the canter had been hit from behind. He as well said that there were trees and the corner where the collision had occurred.

19. Taking the totality of the evidence herein this court is persuaded that the accident occurred as a result of the tyre burst experienced by the 2nd appellant’s vehicle. Though there was some doubt by PW2 whether it was indeed a tyre burst that he heard, the doubt was cleared by Dw1 when he confirmed in his evidence that there was a tyre burst. The burst therefore let the lorry lose control and hit the canter as well as the deceased vehicle ultimately.

20. Was there any contribution by the deceased to the accident.? None has been exhibited by the appellants. PW3 the police officer confirmed that the deceased was on his right lane. The same was admitted by DW1. This court does not find any liability by the deceased at all. The owners of the canter vehicle were not brought to the scene to explain their part although in my view being on the same lane with the deceased, i doubt whether they would have been culpable.

21. In the premises, I do not find the submissions by the appellants on liability tenable. It was them to exhibit the road worthiness of their vehicle. Tyre bursts don’t simply happen without any cause. It is more probably than not that the tyre may have been worn out and if not perhaps for any other reason. The 2nd appellant was in control of the vehicle and not the deceased. The production of an inspection report ought to have cleared the air. I respectfully do not think that it was the duty of the respondents to prove the conditions of the appellant’s vehicle before and after the accident.

22. Consequently, the findings by the trial court that the appellants were 100% liable for the accident is valid for all intent and purposes.

23. On quantum this court again does not find any point of departure from what the trial court found. The age of the deceased was well established by the production of the certificate of death. The same applied to the children where birth certificates produced were not contested. The schools and institutions which they attended were not questioned.

24. The court although there was no evidence that he earned up to Kshs 1 million monthly has perused the available bank statements. The same were not current but as they can be deduced from the balances the deceased was running various accounts and was definitely a person of means. He appeared to have led an average lifestyle and I do not find a multiplier of Kshs50,000 by the trial court unreasonable. Although the appellants submitted that the accounts included some loans, this lends credence to the fact that he was a sound businessman and capable of being trusted by the financial institutions to be able to access credit facilities.

25. In this vein, the proposal by the appellants of Kshs. 10,000 was too low in the circumstances. A classic example is the fact that one of the children Getare Catherine Mutindi was schooling at Kabarak University with an annual fee of kshs100,000 or thereabouts.

26. This court sees no need to disturb the special damages awarded as the same were proven.

27. For the above reasons, this court does not find any reason to fault the findings by the trial court. The appeal is otherwise dismissed with costs to the respondents.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF FEBRUARY 2022.

H K CHEMITEI.

JUDGE