[2022] KEHC 9872 (KLR)

Masheti & another v Esoro & Odari (Suing as the legal representatives of the estate of Hudson Odari Esolio-Deceased) & another (Civil Appeal 403 of 2018) [2022] KEHC 9872 (KLR) (Civ) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9872 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 403 of 2018

JK Sergon, J

July 8, 2022

Between

Gregory Masheti

1st Appellant

Mary Shilwatso Likhanga

2nd Appellant

and

Difina Kageha Esoro & Alfred Jumba Odari (Suing as the legal representatives of the estate of Hudson Odari Esolio-Deceased)

1st Respondent

Rosemary Ngunu

2nd Respondent

(Being an appeal from the judgment and decree of Honourable D.W. Mburu (Mr.) (Principal Magistrate) delivered on 10th August, 2018 in CMCC no. 562 of 2014)

Judgment

1. The 1st respondents who are the plaintiffs in CMCC NO. 562 OF 2014 instituted the suit vide against the appellant and the 2nd respondent respectively, in their capacity as the legal representative of the estate of Hudson Odari Esolio (“the deceased”) through the plaint dated 10th February, 2014 seeking both general and special damages as well as costs of the suit and interest.

2. The 1st appellant was sued in his capacity as the driver of the motor vehicle registration number KAU 516X (“the subject motor vehicle”) while the 2nd appellant and the 2nd respondent were sued as the beneficial and/or registered owners of the subject motor vehicle at all material times.

3. The 1st respondents pleaded in the plaint that sometime on or about 13th February, 2011 while the deceased was lawfully walking along Mbagathi Road in Nairobi area, the subject motor vehicles being negligently driven by the appellant, lost control and knocked down the deceased together with one Wycliffe Agala, causing their respective deaths. The particulars of negligence were laid out under paragraph 5 of the plaint.

4. The 1st respondents also pleaded that the deceased who died aged 27 years and while working as a building mason, left behind the following dependants:a)Gilbert Esolio Odari Son 10 yearsb)Difina Kageha Esoro Mother 69 years

5. The 1st and 2nd appellants entered appearance and put in their statement of defence dated 20th March, 2014 jointly to deny the averments made in the plaint.

6. Prior to the trial, the record shows that the 1st respondents withdrew the suit against the 2nd respondent on 6th March, 2017.

7. At trial, one of the 1st respondents testified and called one (1) other witness whereas the appellants closed their case without calling any witnesses.

8. Upon close of submissions, the trial court entered judgment in favour of the 1st respondents and against the appellants jointly and severally, in the following manner:a)Liability 100%b)General damages(i)Pain and suffering Kshs. 90,000/=(ii)Loss of expectation of life Kshs. 100,000/=(iii)Loss of dependency Kshs.3,000,000/=c.Special damages Kshs. 74,000/=Total Kshs.3,264,000/=

9. Being aggrieved by the abovementioned judgment, the appellants have now approached this court by way of an appeal. Their memorandum of appeal dated 27th August, 2018 features the following grounds of appeal:i.That the learned trial magistrate erred in fact and law and misdirected himself in finding that the 1st respondent is entitled to general damages under the Law Reform Act of Kshs.264,000/= and under the Fatal Accidents Act for loss of dependency of Kshs.3,000,000/= which amount is excessive.ii.That the learned trial magistrate erred in law and fact and misdirected himself in failing to consider the submissions by the appellant together with the authorities relied on by the appellant.iii.That the learned trial magistrate wholly erred in law and fact in arriving at his said decision.

10. The appeal was canvassed through written submissions.

11. The appellants submit that liability was not proved against them since the police abstract which was tendered in evidence indicated that the matter was pending under investigation at the time and that none of them has ever been charged in relation to the accident, and have cited Mbugu David & another v Joyce Gatthoni Wathena & another [2016] eKLR in which case the court held that it is upon a plaintiff to prove negligence against the defendant in order for a claim for negligence to succeed.

12. On quantum, the appellants proposed a multiplier of 15 years, a multiplicand of Kshs.7,586/= going by the minimum wage regulations 2011 which were in force at the time of the deceased’s death and a dependency ratio of 1/3 under the head of loss of dependency, to be tabulated as follows:Kshs.7,586/= x 15 x 12 x 1/3 = Kshs.455, 160/=

13. On damages for pain and suffering, the appellants are of the view that an award in the sum of Kshs.10,000/= would suffice, citing the case of John Mureithi Kariuki v George Mwangi [2012] eKLR where the court awarded a similar sum to the estate of a deceased who died while undergoing treatment.

14. The appellants further propose the sum of Kshs.70,000/= as a suitable award under the head of loss of expectation of life and have quoted the case of John Mureithi Kariuki v George Mwangi (supra) where a similar award was made.

15. Finally, the appellants urge this court to deduct the awards made under the Law Reform Act from those made under the Fatal Accidents Act.

16. In reply, the 1st respondents contend that the evidence tendered proves that the appellants were liable for the material accident and hence the trial court acted correctly in entering a finding of liability against them. The 1st respondents rely on the case of Pritoo v West Nile District Administration [1968] EA 428 wherein it was held that where it is proved that a car caused damage/injury by negligence, in the absence of evidence to the contrary, it is presumed that the car was driven by the person for whose negligence the owner is liable.

17. On quantum, the 1st respondents urge this court to uphold the respective awards made under the various heads.

18. The 1st respondents are also of the view that the awards made under the Law Reform Act ought not to be deducted from those under the Fatal Accidents Act since the issue of duplication does not arise, as is alleged by the appellants. The 1st respondents drew reference from the case of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (2015) eKLR in which the court determined that duplication does not arise where awards are made to the beneficiaries/dependants under both the Law Reform Act and the Fatal Accidents Act.

19. I have considered the rival submissions and various authorities cited on appeal. As is required of an appellate court, I have re-evaluated the evidence which the trial court had the opportunity to consider, as well as the trial court’s findings on the same.

20. As earlier mentioned, the appeal touches on the findings on liability and quantum, specifically the awards made under the heads of pain and suffering, loss of expectation of life and loss of dependency.

21. On liability, PC Gabriel Mativo who was PW1 produced the police abstract and stated that on the material date, the driver of the subject motor vehicle veered off the road and knocked down the deceased and another person who were both walking off the road.

22. In cross-examination, the witness stated that he was not the investigating officer in the matter and that the police abstract which indicated that the matter was still pending under investigations, was issued eight (8) months following the accident.

23. In re-examination, the witness stated that the contents of the police abstract are derived from the Occurrence Book and restated that the subject motor vehicle veered off the road prior to the accident.

24. One of the 1st respondents, namely Alfred Jumba Ondari who was PW2 produced the copy of records amongst other documents.

25. In cross-examination, he testified that he did not witness the accident.

26. Upon taking down the evidence, the learned trial magistrate found that since the 1st respondents had proved their claim for negligence as against the appellants; and further found that the appellants had not proved contributory negligence despite pleading it in their statement of defence. Consequently, the learned trial magistrate found the appellants 100% liable.

27. Upon my re-examination of the evidence, it is not in dispute that the accident took place on the material date and involving the parties herein and the deceased. It is also not in dispute that the deceased died as a result of injuries sustained in the accident.

28. Upon my further re-examination of the evidence, I note that while it is apparent that the matter was still pending under investigation at the time of taking evidence by the trial court and it is not clear what the outcome of the investigations was subsequently, I am satisfied that the learned trial magistrate upon considering the pleadings and documents tendered and supported by the relevant oral testimonies, correctly found that the 1st respondents had proved the particulars of negligence on a balance of probabilities and which particulars were not challenged by the appellants, by way of any contrary evidence.

29. Moreover, the 1st respondents pleaded the doctrine of res ipsa loquitur which would prove relevant in determining whether there was negligence on the part of the appellants.

30. The said doctrine was aptly discussed in the authority of Susan Kanini Mwangangi & another v Patrick Mbithi Kavita [2019] eKLR with reference to the East African Court of Appeal’s decision in Embu Public Road Services Ltd. v Riimi [1968] EA 22 where the following was enunciated:“The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant…The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstances not within his control.”

31. From my understanding of the above rendition, a mere pleading of the doctrine presupposes that a plaintiff has discharged his or her burden of proof and in order to escape liability, a defendant is required to demonstrate that there was either no negligence on his or her part, or that there was contributory negligence.

32. In the present instance, the 1st respondents discharged the burden of proof by pleading the doctrine and it fell upon the appellants to disprove it but they did not.

33. On the subject of contributory negligence on the part of the deceased, upon my re-examination of the evidence, I; similar to the learned trial magistrate; find that the appellants did not tender any evidence at all to support their assertions that the deceased contributed to the accident.

34. In my reasoned view, therefore, the learned trial magistrate arrived at a reasonable finding on liability and I see no need to interfere with the same.

35. On quantum, the law sets out that an award of the trial court can only be interfered with in the following scenarios as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR:a)Where an irrelevant factor was taken into account.b)Where a relevant factor was disregarded.c)Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

36. Going by the grounds of appeal and submissions filed, it is clear that the appeal is challenging the award made under the following heads.

a) General damages (i) Pain and suffering 37. On their part, the 1st respondents proposed an award in the sum of Kshs.100,000/= whereas the appellants proposed an award of Kshs.10,000/= and cited the case of John Mureithi Kariuki v George Mwangi (supra) where a similar award was made.

38. The learned trial magistrate on his part awarded the sum of Kshs.90,000/= with reliance on the case of Joseph Kahiga Gathii & Paul Mathaiya Kahiga (Suing as the Administrators of the Estate of the Late Lydia Wanjiku Kahiga and Elizabeth Murugi Kahiga Both Deceased) v World Vision Kenya & 2 others [2014] eKLR in which the court made an award in the sum of Kshs.60,000/= to the estate of a person who died on the date of the accident.

39. Upon my study of the record, it is evident that the deceased died a day following the accident and while undergoing treatment in hospital. He therefore likely experienced a great deal of pain preceding his death.

40. Upon considering the case of Silverstone Quarry Ltd & Another v Beatrice Mukulu Kang’uta (suing as administrator of the estate of Philip Musyoka Muthoka) [2020] eKLR where the court awarded the sum of Kshs.50,000/ on appeal under this head and the case of Antony Njoroge Ng’ang’a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng’ang’a Njoroge) v James Kinyanjui Mwangi & 2 others [2022] eKLR in which the court awarded the sum of Kshs.30,000/=; both instances involving persons who died one day after the respective accidents, I am convinced that the award made by the learned trial magistrate fell on the higher side.

41. In my view, the sum of Kshs.50,000/= would constitute a more reasonable award under this head.

(ii) Loss of expectation of life 42. Here, the 1st respondents suggested an award in the sum of Kshs.150,000/= while the appellants suggested the sum of Kshs.70,000/= with reference to John Mureithi Kariuki v George Mwangi (supra).

43. The learned trial magistrate in turn entered an award in the sum of Kshs.100,000/=.

44. The evidence on record shows that the deceased died at the young age of 27 years. There is nothing to indicate that he was of ill health.

45. The courts have been known to grant the conventional sum of Kshs.100,000/= under this head. Upon considering the conventional award of Kshs.100,000/= made in the case of Mumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate of Patrick Kweyu Ashuma (Deceased) & another [2018] eKLR I am convinced that the award made by the learned trial magistrate was within the range of conventional awards and I see no need to interfere with it.

(iii) Loss of dependency 46. Under that head, the 1st respondents had proposed a multiplicand of Kshs.216,000/= together with a multiplier of 25 years and a dependency ratio of ¾ to be tabulated as follows:216,000 x 25 x 12 x ¾ = Kshs.5,400,000/=

47. The appellants proposed a multiplicand of Kshs.7,586/= and a multiplier of 15 years together with a ratio of 1/3 to be tabulated as hereunder:7,586 x 15 x 12 x 1/3 = Kshs.455,160/=

48. In his assessment, the learned trial magistrate applied a multiplicand of Kshs.15,000/= and a multiplier of 25 years and a ratio of 2/3 which he tabulated as follows:15,000 x 25 x 12 x 2/3 = Kshs.3,000,000/=

49. On the multiplicand, it was the evidence of the 1st respondents that the deceased worked as a building mason at all material times and earning a daily salary of Kshs.800/= and though there were no documents to support that salary, I concur with the reasoning by the learned trial magistrate that a person’s earnings need not be proved solely by way of documentary evidence.

50. In view of the foregoing, I am of the view that the minimum wage regulations would have applied. I made reference to the Minimum Wage (General) (Amendment) Order, 2013 which would have been applicable in the present matter. Upon my perusal of the same, I note that in the absence of a category of ‘mason’ the most applicable category would be that of general labourer, whose monthly salary amounts to the sum of Kshs.9,780. 95. This would therefore constitute the suitable multiplicand in my view.

51. On the multiplier, the evidence tendered shows that the deceased was aged 27 years when he died.

52. Upon considering the case of Jeremiah Njuguna & Another v Angela Yator & Edel Biwott (Administrators of Paul Kiplagat) [2016] eKLR where the court applied a multiplier of 25 years for a deceased who died aged 27 years, I am satisfied that the multiplier applied by the learned trial magistrate was within range and I see no reason to interfere with it.

53. On the dependency ratio, upon considering the dependants of the deceased as pleaded and supported by way of credible evidence, I am satisfied that the ratio of 2/3 is reasonable.

54. Consequently, the tabulation of the awards under this head shall be:Kshs.9,780. 95 x 25 x 12 x 2/3 = Kshs.1,956,190/=

55. In respect to the question of double compensation which was raised on appeal by the appellants, I make reference to the case of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (2015) eKLR where the subject was elaborated as follows:“duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise…”

56. More importantly, the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR appreciated that:“In my view what section 2(5) of the Law Reform Act means is that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. To be taken into account and to be deducted are two different things. The words used in s. 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should not be taken into account and not necessarily deducted…There is no requirement in law or otherwise for him to engage in a mathematical deduction…”

57. Going by the above, it is clear that the 1st respondents were lawfully entitled to seek general damages under both statutes and there was no need for the learned trial magistrate to deduct the damages awarded from the total award.

58. The upshot is that the appeal partially succeeds. Consequently, the awards of Kshs.90,000/= and Kshs.3,000,000/= made on general damages for pain and suffering, and loss of dependency are hereby set aside and is substituted with awards in the sum of Kshs.50,000/= and Kshs.1,956,190/=.

59. For the avoidance of doubt, the judgment on appeal is as follows:a)General damages(i)Pain and suffering Kshs. 50,000/=(ii)Loss of expectation of life Kshs. 100,000/=(iii)Loss of dependency Kshs.1,956,190/=b)Special damages Kshs. 74,000/=Total Kshs.2,180,190/=b)b. The 1st respondents shall have interest on special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full.c)c. Parties to bear their respective costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ...................................J. K. SERGONJUDGEIn the presence of:................ for the 1st and 2nd Appellants……………………………. for the 1st Respondents……………………………. for the 2nd Respondents