[2022] KEHC 16479 (KLR)

Mbugua (Suing as the legal representative of the Estate of the Late Samuel Wamuiga Waithaka) v Kariuki (Civil Suit 268 of 2015) [2022] KEHC 16479 (KLR) (Civ) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16479 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 268 of 2015

CW Meoli, J

December 15, 2022

Between

Ann Muthoni Mbugua (Suing as the legal representative of the Estate of the Late Samuel Wamuiga Waithaka)

Plaintiff

and

Paul Kariuki

Defendant

Judgment

1. Ann Muthoni Mbugua, (hereafter the plaintiff) sued Paul Kariuki (hereafter the defendant) seeking damages under Law Reform Act and the Fatal Accidents Act in connection with a road traffic accident that occurred on August 4, 2012 and in which Samuel Wamuiga Waithaka (hereafter the deceased) sustained fatal injuries. It was averred that the accident occurred along Nairobi – Nakuru Highway at a place called Kinoo at about 8:00am; that the defendant, his authorized driver, agent, servant and or employee so negligently drove and or controlled the motor vehicle registration number KBN 556N that it knocked, hit and or ran over the deceased, a pedestrian; and that the deceased sustained severe injuries from which he subsequently died.

2. On May 18, 2015 the defendant filed a statement of defence denying the key averments in the plaint and liability and averred that the accident was wholly and or substantially caused by the deceased’s negligent conduct as a pedestrian.

3. The matter proceeded to full hearing on March 23, 2022. During the trial, the plaintiff testified as PW1. Her testimony was to the effect that the deceased was her husband and that the couple had two children. The bulk of her testimony was contained in her witness statement filed on August 4, 2015 which she adopted as her evidence-in-chief. She asserted that she and her two children depended on the deceased and have suffered loss from his death. She claimed that the deceased earned a combined income of Kshs 400,000/- per month from formal employment and his own business. Under cross-examination by the defence counsel, PW1 stated that she operated a business jointly with the deceased and had a monthly turnover of Kshs 20,000/- to Kshs 30,000/-. Challenged to tender evidence that her first child had special needs, she said she had no documentary evidence in that regard. She reiterated that her union with the deceased was solemnized under Kikuyu customary law.

4. Mary Mwihaki Mbugua testified as PW2. She testified that the deceased was her colleague at an NGO called UMMA. That on August 4, 2012 she had driven to Kikuyu to pick up the deceased and witnessed the accident as she was waited for him. She similarly adopted her witness statement filed on August 4, 2015 as her evidence in chief. The gist of the statement was that the defendant’s vehicle lost control and knocked down the deceased who was standing by the wall opening intending to cross the Nakuru/Naivasha side of the carriage way.

5. During cross-examination she said that she was a part time employee at the NGO; that that while seated in her car which she had parked by the road facing Nairobi direction, she witnessed the accident; that the scene of the accident was a pedestrian crossing located in an opening within wall-median separating the Nairobi-Naivasha dual carriage way; and that the deceased had first successfully crossed the road in respect of the Nairobi- Naivasha side of the dual carriageway but on reaching the wall opening and in the process of crossing side of the Naivasha-Nairobi carriageway, was knocked down by the defendant’s vehicle which was on the inner lane.

6. The witness explained that the deceased was preparing to cross the pedestrian crossing towards her parked vehicle when he was knocked down. She further asserted that traffic was light at the time and that the defendant’s motor vehicle did not stop at the pedestrian crossing adjacent to the opening in the wall dividing the dual carriageway. She denied that because there was no opening or pedestrian crossing at the particular section of the road, the deceased had sat astride over the said wall before leaping on to the road. She said that although the matter was reported at Kabete Police station, the police did not record her statement in respect of the accident.

7. The defendant testified as DW1. He too adopted his witness statement dated June 12, 2019 as his evidence in chief. The gist of his evidence was that he was driving his motor vehicle registration number KBN 556N along Nairobi-Naivasha Road on the material date when the deceased suddenly leapt onto the road from the dividing wall. He denied that there was a pedestrian crossing at the place where the accident occurred but confirmed the existence of openings in the wall-median on the dual carriage road. He contended that there was heavy traffic; that he was driving behind a matatu and immediately saw an object that turned out to be the deceased, drop down from the wall after the matatu ahead of him had suddenly switched lanes from the inner to left lane; and that the deceased jumped over wall-median that separated the dual carriage way.

8. He asserted although he reported the accident at Kabete Police Station, he was never charged with a traffic offence concerning the accident. He reiterated that he was driving carefully, and that the accident occurred on account of the deceased having jumped over the wall-median separating the dual carriage. During cross-examination, he confirmed the occurrence of a collision involving his motor vehicle and the deceased as a result of which his vehicle sustained right frontal damage and stated that he was driving at an average speed of 60 Km/ph.

9. At the close of the trial, the parties filed written submissions. Counsel for the plaintiff in submitting on liability, restated the plaintiff’s evidence and contended that had the defendant been driving at a moderate speed as he approached the pedestrian crossing, he would have stopped in time to avoid the accident. Especially as he had a clear view of the scene of the accident and the extensive damage to his car lends credence to the fact that his vehicle was speeding. Thus, he ought to be held 100% liable for the accident.

10. Addressing the issue of quantum of damages, counsel reiterated the plaintiff’s evidence. Urging an award under the Law Reform Act counsel sought award of damages for loss of expectation of life in the sum of Kshs 100,000/- and Kshs 150,000/- for pain and suffering.

11. On damages for lost dependency, counsel asserted that the deceased was aged 44 years at the time of his demise could have been in gainful formal employment until 65 years of age and thereafter worked on his personal business up to the age of 75 years. Thus, had he lived, the deceased would have enjoyed 31 years of gainful employment during which the immediate and extended family would have fully depended upon him. The court was thus urged to apply a multiplicand of Kshs 400,000/-, a multiplier of 25 years and a dependency ratio of two-thirds bring the total award on damages under the Fatal Accident Act to Kshs 80,000,000/-. Counsel called to aid several decisions including Nairobi HCCC No 1638 of 1998 Beatrice Wangui Thairu v Ezekiel Barngetuny & Another, Coast Bus (Msa) Ltd v Fatimabhai Osman Suleiman & Another [2020] eKLR, and Crown Bus Services Ltd & 2 Others v Jamilla Nyongesa & Amida Nyongesa [2020] eKLR.

12. It was submitted that the special damages claim in the sum of Kshs 54,500/- had been specifically pleaded and proved and ought to be allowed. In conclusion counsel urged the court award a total sum of Kshs 80,304,500/- plus costs of the suit and interest.

13. The defendant counsel cited the provision of section 107, 108 & 109 of the Evidence Act as to the burden of proof on the part of the plaintiff. And asserting the doctrine of volenti non fit injuria, counsel relied on the decision in Julius Omolo Ochanda & Another v Samson Nyaga Kinyua [2010] eKLR to contend that the deceased in attempted to cross the road by jumping over the wall-median placed himself at risk of injury. Counsel challenged the credibility of the evidence of PW2 which she asserted did not advance the plaintiff’s case. In the alternative counsel argued that if the court is of a contrary view as to the circumstances leading to the accident it ought to hold the deceased 90% liable for the accident.

14. She submitted that there was no proper pleading in the plaint for damages under the Law Reform Act and damages for loss of expectation of life, pain and suffering are benefits of the deceased’s estate and are payable where a valid grant of letters of administration is produced by the claimant, which is not the case here. It was further asserted that the plaintiff did not tender evidence of dependency on the deceased and various documents variously referenced in the plaintiff’s submissions, were never produced by the plaintiff at hearing in support of the averments in the plaint. The court was urged to dismiss the suit with costs.

15. The court has considered the pleadings by the respective parties, evidence as well as the submissions filed in respect of the matter. The sole issue for this court’s determination is whether plaintiff has established her case on a balance of probabilities. In Wareham t/a AF Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that:“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or court on the basis of those pleadings pursuant to the provisions of order xiv of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

16. The plaintiff’s claim is founded on founded on negligence. It is trite that onus is on the plaintiff to prove the allegations of negligence as pleaded in the plaint. The applicable law as to the burden of proof is found in section 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:-“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.However, section 109 of the same act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited -Civil Appeal No 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the court to believe in its existence.”

17. In Karugi & Another v Kabiya & 3 Others [1987] KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

18. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd v Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

19. In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley v Gypsum Mines Ltd (2) [1953] AC 663 at p 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

20. There is no dispute that an accident occurred on the material date at Kinoo, along the Nakuru/Nairobi side of the dual carriage way, that the accident involved the deceased and the defendant’s vehicle, and that the deceased sustained fatal injuries. It is not disputed that the two sides of the dual carriage way are separated by a wall which has openings within it. The key issue for determination was whether the defendant was liable for negligence. At the hearing, PW1 and PW2 adopted their respective witness statements. Evidently, PW1 did not witness the accident in question whereas PW2 was presented as the plaintiff’s eyewitness. PW2 by her written statement claimed that she witnessed the accident while seated in her car by the roadside at Kinoo and that the defendant’s vehicle lost control and hit the deceased who was waiting at the wall opening in readiness to cross the Nakuru/Nairobi side of the carriage way. Significantly, this witness only revealed during cross examination that she was a sister of the plaintiff, a fact clearly concealed in both statements of the witnesses.

21. The foregoing fact and some of the assertions made by PW2 in her evidence created doubt as to her credibility as for instance, the claim that while seated in her car she could see the deceased cross the Nairobi/Nakuru carriageway despite existence of the wall, that separates the two carriage ways. Equally, claims that while so observing the deceased she also could see in her rear view mirror the defendant’s vehicle approaching from Nakuru direction appears rather incredible. What could have piqued her interest in that vehicle before the accident when there were other vehicles on the road? More incredulous was the fact that although she claims to have met with the scene visiting police officers, she never recorded a statement with the police concerning the accident. Even assuming that police did not contact her, nothing stopped her and her sister from availing themselves to police for this purpose.

22. However, it is the description of the occurrence of the accident by PW1 that the court found the most problematic. The witness was hard pressed to explain exactly where the deceased was at the time of being knocked down. Having stated in her witness statement that the deceased was waiting on the pavement (supposedly at the wall opening) for the road to clear in order to cross the Nakuru/Nairobi carriage way, in cross examination she could only state that the deceased was standing “next” to the wall opening. She nevertheless confirmed that the vehicle ahead of the defendant’s had passed without stopping, and evidently did not hit the deceased. Which would mean that for the defendant’s vehicle to hit the deceased, it must have left the road and climbed onto the pavement at the wall opening. The witness did not expressly assert such event in her evidence while vigorously denying that the deceased was perched astride the wall before he leapt onto the road in the path of the defendant’s vehicle.

23. Unfortunately, the plaintiff did not call a police officer to tender sketches of the accident scene or other material that would have given a clearer picture of how the accident occurred and who was to blame. Reviewing the evidence of PW2, the court is doubtful that she witnessed the accident as she claimed, or at all. Indeed, it appears to the court that the defendant’s account was more plausible, namely, that the deceased who had perched himself astride the wall had leapt onto the road in the face of oncoming traffic in the inner lane and though the vehicle ahead of the defendant’s managed to swerved to avoid him, the defendant’s vehicle hit him sending him over the wall to the opposite carriage way.

24. As held in Civil Appeal No 254 of 1996 Patrick Mutie Kamau & Anor v Judy Wambui Ndurumo, a pedestrian owes a duty to other users of the road to observe the highway code and to exercise due care and regard for his own safety and that of others on the road. It appears that the deceased herein courted danger by lunging over the median wall and jumping onto the road in the face of oncoming traffic.

25. The plaintiff’s case was dealt a further mortal blow by the failure of the plaintiff to produce as exhibits in the case, the documents earlier filed into court. These included the copy of grant of letters in respect of the estate of the deceased, the introduction letter from the local administration showing the plaintiff as widow of the deceased, the police abstract, death certificate and records evidencing the deceased’s income.

26. The defendant in his defence denied all the key averments in the plaint including the claim for lost dependence and additionally alleged negligence against the deceased. Thus, the onus fell on the plaintiff to tender evidence in support of her averments. A party must adduce evidence in support of his pleadings, in default of which the pleadings remain mere statements of no probative value. On this aspect, Madan, J (as he then was) in CMC Aviation Ltd v Cruise Air Ltd (No 1) [1978] KLR 103; [1976-80] 1 KLR 835, expressed himself as follows: -“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence, and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.”See also Mohammed & Another v Haidar [1972] EA 166; Francis Otile v Uganda Motors Kampala HCCS No 210 of 1989; and Peter Kimani Kairu t/a Kimani Kairu & Company Advocates v Anna Marie Cassiede & Another [2019] eKLR .

27. The court has said enough to demonstrate that the plaintiff has failed to prove her case which must fail and is accordingly dismissed. However, considering the facts of the case the court will order that each party bears its own costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 15TH DAY OF DECEMBER 2022. C MEOLIJUDGEIn the presence of:Mrs Gulenywa for the plaintiffMrs Githae for the defendantC/A: Adika