[2022] KEHC 1349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 55 OF 2019

MASH BUS SERVICES LTD..........1ST APPELLANT

MASH EAST AFRICA LTD............2ND APPELLANT

-VERSUS-

PIUS KIOKO MUTWIKA.............1ST RESPONDENT

ROSE MUTNINI KIOKO ............2ND RESPONDENT

(Suing Representative of Estate of JACKSON WAMBUA KIOKO (DECEASED)

(Being an appeal from the judgment and decree delivered on 2nd July 2019 in Senior Principal Magistrates’ Court Makindu, Makindu SPMCC 29 of 2017)

JUDGMENT

1. In a judgment delivered on 2nd July 2019, the learned magistrate entered judgment for the respondents (plaintiffs in the trial court) against the appellants (defendants in the trial court) with costs and interests in the following terms –

“Accordingly, I enter judgment in favour of the plaintiff against the defendants jointly and severally as follows –

Loss of dependency …………………..Kshs.2,280,000/=

Loss of expectation of life ………….. Kshs. 100,000/=

Pain and Suffering …………………… Kshs. 100,000/=

Special damages ……………………… Kshs. 39,430/=

Total …………………………………….. Kshs.2, 519,230/=

2. Aggrieved by the decision of the trial court, the appellants have come to this court on appeal on the following grounds –

1. The learned magistrate erred in law and fact in holding and finding that the appellants were to blame for the accident giving rise to the suit before the lower court.

2. The learned magistrate erred in law and in fact in failing to take into account the evidence presented before the trial court and in particular the evidence of appellants’ witnesses which showed that JACKSON WAMBUA KIOKO (Deceased) was wholly to blame if not substantially to blame for the accident giving rise to the suit before the lower court.

3. The learned magistrate erred in law and in fact in (not) appreciating the evidence adduced and arriving at the conclusion reached.

4. The learned magistrate erred in law and in fact in holding and finding that respondents had proved their claim against the appellant.

5. The learned magistrate erred in law and in fact in failing to find that the evidence presented by the respondent could not sustain the pleaded claim.

6. The learned magistrate erred in law and in fact in failing to appreciate that the claim pleaded by the respondents in the plaint departed materially from the one sought to be proved by the respondents in their testimony given in court.

7. The learned magistrate erred in law and in fact in making an award of damages that was manifestly excessive and unsupported by the evidence before him.

8. The learned magistrate erred in law and in fact in making an award of damages that was unwarranted, grossly excessive and inconsistent with the evidence and or case law.

9. The learned magistrate erred in law and fact in holding and finding for the respondents.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the sub-missions filed by Anne W. Kimani advocate for the appellants, and B.M Mungata advocate for the respondents. I note that both counsel relied on decided court cases.

4. This being a first appeal, this court is bound to consider the evidence on record afresh and come to its own conclusions see Selle –vs- Associated Motor Boat Co. Ltd (1968) E.A 123, and Dorcas Wangithi Nderi –vs- Samuel Kaburu Mwaura & Another (2015) eKLR.

5. It is also trite, that appellate courts are slow to interfere with the exercise of discretionary power of a trial court in assessing damages. In this regard, in the case of Butt –vs- Khan (1981) KLR 349, the Court of Appeal stated as follows –

“The appellate court cannot interfere with the decisions of the trial court unless it is shown that the Judge proceeded on a wrong principle of law and arrived at misconceived estimates.

6. During trial, the respondents called Kioko Mutuku as Pw1 who adopted his witness statement as evidence in chief. It was his evidence that his son Jackson Wambua Kioko was involved in an accident on 08/03/2014, and that the son was hit while driving a motorcycle, was injured and later died. He produced the death certificate and post mortem report, and letters of administration. He produced receipts which he claimed showed that he spent Kshs.38,930/= regarding the death of his son.

7. The second witness, Pw2 Thomas Muli Liku, testified that the motor cycle on which he was riding together with the deceased was hit from behind by a Mash bus KBL 800K. As a consequence the deceased fell and was fatally injured. Pw3 was Cpl Edward Mwaura who testified that the report on the accident which was made to the police was that the motor-cycle was hit from behind.

8. Pw4 was Rose Muthini Kioko, whose evidence was that the deceased was her son aged 22 years, and was a carpenter with a monthly salary of Kshs.15,000/=. It was her evidence that other family members and herself depended on the deceased for upkeep.

9. On their part, the appellants called Dw1 Ibrahim Mohammed Ali the Mash Ltd bus driver, whose evidence was that he was driving the bus from Nairobi to Mombasa, and at Emali a motorcycle suddenly entered the road from the left crossing to the right. He tried to apply brakes but hit the motor cycle. He blamed the motor cycle driver for the accident.

10. After the close of the evidence, parties’ counsel filed written submissions. Subsequently, the magistrate delivered judgment and found the bus driver 100% liable in negligence for the accident, and made the contested award of damages which I have alluded to above.

11. The appellants have now come to this court on appeal and argued that the trial magistrate erred in finding the appellants’ bus driver 100% liable in negligence for the accident.

12. Indeed, the respondents had the burden to prove negligence against the appellants. The standard of proof in civil cases is on the balance of probabilities. Again, even if negligence of a party is proved, the window is not shut for a finding of contributory negligence on the part of the person who has proved negligence against another party – see Charles Ocharo Momanyi –vs- Limited Millers Ltd (2017) eKLRwherein the court held that –

“ ………… courts have on many occasions held that the decision to charge one and not the other person with the offence of careless driving is usually at the discretion of the police and the mere fact that one or two drivers are charged does not necessarily mean that the other driver is not liable at all.

13. In my view, the above case relied upon by the appellants’ counsel, states the correct position of the law on liability.

14. In the present case, the evidence of Pw2 Thomas Muli Liku, a passenger on the motor cycle is so clear that he heard the bang from behind. He was slightly injured. Pw3 Cpl Edward Mwaura also tendered evidence to the effect that the motor cycle was hit from behind, and the police charged the bus driver with careless driving. The driver of the bus Dw1 however said that the motor cycle emerged suddenly from the left side of the road. In my view, if the defence version were true, then both the deceased and the passenger of the motorcycle Pw2 would have been seriously injured or died as the motorcycle would have been run over by the bus. In the present case however, there is no evidence that the motor cycle was run over by the bus.

15. I thus find that the learned magistrate was correct in believing the respondents version and finding negligence on the appellants’ driver, and also finding that liability in negligence of the bus driver was 100%.

16. With regard to the quantum of damages awarded, the appellants argue on appeal that there was no documentary evidence to prove a monthly salary of Kshs.15,000/=. They argue that with the absence of documentary evidence on income of the deceased, the court should have applied the government minimum wage for a laborer at Emali of Kshs.5,844/= per month. They also argued that the magistrate erred in disregarding the multiplier of 25 years, proposed at the trial by the appellant’s counsel.

17. I note that with regard to loss of dependency, the respondent’s counsel proposed to the trial court that it be calculated as follows –

Kshs. 15,000 x 2/3x12 x38 = 4,560,000/=. The appellant’s counsel on the other hand proposed 5,000x12x25x1/3= Kshs.500,000/=. The trial court on its part, calculated loss of dependency as 15,000 x 38 x 1/3x12 = Kshs.2,280,000/=.

18. It follows from the above, that the magistrate took into account some of the proposals of the appellants’ counsel and some of the proposals of the respondents’ counsel. In my view the 38 years multiplier used by the trial court is reasonable since in Kenya now the retirement age is 60 years.

19. As for the monthly wage of the deceased, in the absence of at least an employment letter, I am of the view that the monthly earnings should have been adjusted to Kshs.10,000/= permonth. I do not agree with appellant’s counsel, that we go by the mere minimum wage, as that is the bare minimum wage and employers do not necessarily pay that low wage. I will thus interfere with the award figure for loss of dependency, to that extent.

20. Consequently, I allow the appeal in part, and order as follows –

1. I uphold the finding of the trial court on liability.

2. With regard to damages, I award damages as follows –

Loss of dependency

10,000x38/12x1/3…………………. Kshs.1,520,000/=

Loss of expectation of Life ………….Kshs. 100,000/=

Pain and Suffering …………………… Kshs. 100,000/=

Special Damages ………………………Kshs. 39,430/=

Total ………………………………………. Kshs.1,759,430/=

21. I award the respondents 70% of the costs of appeal against the appellants.

DELIVERED, SIGNED & DATED THIS 22ND DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

………………………………….

GEORGE DULU

JUDGE