[2022] KEHC 17254 (KLR)

Metiaki v Muhia (Suing as Legal Representative of the Estate of Peter Muthoga Wambugu - Deceased) (Civil Appeal E050 of 2021) [2022] KEHC 17254 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17254 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E050 of 2021

SN Mutuku, J

November 10, 2022

Between

Amos Kennedy Metiaki

Appellant

and

Esther Wamuyu Muhia (Suing as Legal Representative of the Estate of Peter Muthoga Wambugu - Deceased)

Respondent

(Being an appeal from the judgement of Hon. E. Mulochi (R.M) which was delivered on 30th August, 2021 in Kajiado CMCC 121 of 2020)

Judgment

Introduction 1. This appeal arises from CMCC No 121 of 2020 where the Plaintiff sued the Defendant vide a Plaint filed in court on September 9, 2020 for damages under the Fatal Accidents Act and Law Reform Act, special damages in the sum of Kshs 95,750/- plus costs and interests.

2. The circumstances giving rise to that suit was a fatal traffic accident that occurred on March 26, 2020 along Isinya/Kajiado Road. The matter was heard fully and a judgement was entered for the Plaintiff against the Defendants as follows:i.Loss of expectation of life: Kshs 100,000. ii.Pain and suffering: Kshs 100,000. iii.Loss of dependency: Kshs 2,720,000. iv.Special damages: Kshs 95,750. Total: Kshs 3,015,750.

3. The Appellant was aggrieved by the judgement and decree of the lower court delivered on August 30, 2021 and has preferred this appeal on the following grounds:i.That the Honourable trial Magistrate erred in law and fact in finding that the Appellants were liable at 100%.ii.That the Honourable Trial Magistrate erred in law and in fact by arriving at a wrong conclusion on liability against the weight of the evidence on record.iii.That the Honourable Trial Magistrate erred in law and fact in calculating loss of dependency by using a multiplicand of kshs 20,000 without proof of earnings.iv.That the Honourable Trial Magistrate erred in law and fact by failing to use lump sum award due to lack of proof of earnings in calculating loss of dependency.v.That the Honourable Trial Magistrate erred in law and fact in awarding kshs 100,000 for pain and suffering despite the unfortunate demise of the deceased on the same day.vi.That the Honourable Trial Magistrate erred in law and fact by totally disregarding the submissions of the Appellant and thereby arriving at a wrong decision.vii.That the Honourable Trial Magistrate erred in law and fact in making such a high award.

4. The appeal was canvassed by way of written submissions following the directions of this court.

Submissions 5. On the issue of liability, the Appellant filed his submissions dated January 17, 2022. The Appellant is contesting the finding by the learned trial magistrate that the Appellant was 100% to blame for the accident. He is challenging the evidence in support of the Respondent’s case in the lower court that it was not sufficient to prove the case on a balance of probabilities. He has submitted that PW2, who testified there were several cars ahead of him and that he witnessed the accident at 7. 30pm is incredible; that PW3 did not witness the accident and therefore her evidence is hearsay and cannot have corroborated that of PW2. He submitted that PW4 was not truthful as he mentioned that he was the Investigating Officer yet the police abstract indicated that CPL Bonyo was the Investigating Officer.

6. The Appellant relied on various authorities including Domitila Wangui Karugu& another-vs- Dagu Hidris Haide [2020] eKLR in support of their evidence and submitted that from the above evidence on a balance of probabilities, the Defendant/Appellant has proved his case and the scales of justice tilts in his favour. They urged that submitted that liability should be apportioned equally between the Appellant and the deceased.

7. On the issue of quantum, the Appellant relied on the case of Butt-vs- Khan Civil Appeal no 40 of 1997 and submitted on loss of dependency, the amount awarded is excessive and that there was no documentary evidence to prove that the deceased was earning Kshs 20,000 per month from his boda boda business. The Appellant proposed a lumpsum award of Kshs 800,000 as adequate under this heading.

8. On pain and suffering, the Appellant submitted that the sum of Kshs 100,000 awarded was excessive since the deceased died on the same day, 3 hours from the time of accident, as indicated on the post mortem report. He argued that the deceased was not subjected to long period of pain and no evidence of pain was tendered and therefore the amount awarded was excessive and relied on various cases including Azan Enterprises Ltd-vs- Zuhura Syongit Robert [2020] eKLR where the court awarded 40,000 for pain and suffering. He proposed an award of Kshs 50,000 for pain and suffering as reasonable.

9. The Appellant urges that his appeal has merit and ought to be allowed with costs.

10. The Respondent filed their submissions dated March 20, 2022 in which 2 issues for determination have been raised: whether the judgment was against the weight of the evidence tendered and whether the damages awarded are excessive.

11. On the first issue the Respondent argued that evidence was given by PW1, PW2, PW3 and PW4 that the driver of motor vehicle Kxx 6xx was to blame for the accident; that the evidence of PW2 was corroborated by the evidence of PW3 and PW4 who saw the scene of the accident. These witnesses blamed the Appellant for the accident.

12. The Respondent argued that the Appellant did not give any iota of evidence to show any contributory negligence on the part of the deceased; that it is trite law that who alleges must prove and relied on sections 107(1) and 109 of the Evidence Act and submitted that the Appellant has not given a contrary account of what happened on the material day and that all he has done is to deny everything.

13. On the second issue, the Respondent has submitted that PW1 testified that her husband was a motor cycle rider who was the sole bread winner for the family and that his monthly income would be a minimum of 20,000 and that this was the figure submitted and adopted by the trial court and there was no evidence to the contrary. It was submitted that indeed no documentary evidence was issued as a result of the informal nature of the deceased business and relied on the case of Jacob Ayiga Maruja & another -vs- Simeon Obayo [2005] eKLR on that point.

14. On the issue of pain and suffering the Respondent argued that it was the evidence of PW1, PW2 and PW3 that the deceased was taken to hospital in great pain and had died while undergoing treatment at Kajiado hospital. that he suffered extreme pain and anguish due to multiple organ damage from multiple fractures sustained from the accident and therefore the amount of Kshs 100,000 awarded by the trial court was adequate. In support of that argument, the Respondent relied on David Kahuruka Gitau & Another -vs- Nancy Ann Wathithi Gitau & another [2016] eKLR.

15. The Respondent asked this court to dismiss the appeal with costs to the Respondent and uphold the judgment of the lower court.

Determination 16. I have read the record of the lower court, the record of appeal and submissions of the parties. Mine is to evaluate and consider this matter afresh with a view to arriving at an independent decision.

17. I have read the evidence adduced in the lower court. It is clear to me that according to the evidence Pw2, he was riding his motor cycle from Kajiado to Isinya at about 7. 30pm; the weather was good and that though it was 7. 30pm he had his head lights on and that he saw the vehicle hit the deceased. He testified that the point of impact was on the right lane as one drives towards Isinya from Kajiado. PW2 was headed towards Isinya the same direction the Appellant was headed while the deceased was headed towards Kajiado on his correct lane.

18. PW3 stated that the weather was good and that she was driving home. She did not witness the accident but on arrival at the scene she stopped her car and went out. She testified that in company of other motorists, they located the deceased who had been knocked off his motorcycle and they rushed him to hospital. She was driving from Isinya side towards Kajiado. Her evidence is that both motor vehicle number Kxx 60xx and motor cycle number KMxx 7xx were lying on the right lane of the road facing Isinya.

19. The evidence of PW4 confirmed that police investigations confirmed that motor vehicle Kxx 6xx was overtaking a fleet of vehicles and that there was a motor cycle from the opposite direction. That the driver of the motor vehicle, the Appellant herein, knocked down the motor cycle rider, the deceased, who fell 15 metres from the baseline and that the accident was on the right side.

20. PW4 testified on cross examination that when the police abstract was prepared the matter was still under investigation and that after the completion of investigations, the Appellant was charged with causing death by dangerous driving.

21. The appellant gave his defence that the impact was on the left side lane. That he lost control of the vehicle and found himself on the right lane. On cross examination he stated that he took the victim to hospital and that he was not reckless in driving. The Appellant did not clarify the impact that caused him to lose control of his motor vehicle to find himself on the left lane was between which motor vehicles.

22. After careful analysis of all the evidenced, I find that the evidence in support of the Respondent’s case sufficient to prove this case on a balance of probabilities. PW2 was behind the vehicle being driven by the Appellant and other motorists, all travelling on the left lane towards Isinya from Kajiado direction. The deceased was riding on the opposite direction on the right lane from Isinya towards Kajiado direction. All the evidence on the point of impact show that the accident occurred on the right land facing Isinya and that the deceased was on his lawful lane. It cannot therefore be true as stated by the Appellant that the impact was on the right lane.

23. The evidence is clear that the accident occurred at Road Block area near Ken Chick near Isinya and that the Appellant was overtaking a number of vehicles when he hit the deceased. On a balanced of probabilities, the Respondent proved her case in the lower court. There is no evidence to show that the deceased did anything to contribute to the accident. Therefore, I have no basis to apportion liability between the Appellant and the deceased. I agree with the trial court that the Appellant is 100% liable for the accident.

24. On the issue of quantum, I have considered the submissions of both parties and reviewed the authorities relied on by each party. Both parties agree that no document was produced to show the income of the deceased. The same is also not provided under the minimum wage. The trial court in its judgement noted that an income of Kshs 20,000 per month for a boda boda rider is modest and very possible. This finding was based on the evidence of PW1 who testified that her husband was earning about that amount per month. It is now well settled as per the authority

25. In Francis K Righa versus Mary Njeri (Suing as Legal Representative of the Estate of James Kariuki Nganga 2021 eKLR, the Court restated the guidelines on the role of an Appellate Court on the question of re-assessment of damages and states:‘….that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived as is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision…’

26. I find the amount of Kshs 20,000 stated by PW1 as the monthly earnings by the deceased a boda boda rider reasonable. I note that the trial magistrate relied on Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR where the Court of Appeal stated that:'…We do not subscribe to the view tha the only way to prove profession of a person must be by the production of certificates and that the only way to prove earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet they earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.'

27. I find no reason to disturb the findings of the trial court on this issue. I will take Kshs 20,000 as the monthly earnings of the deceased and using this figure and the fact that at the age of 38 years the deceased would have worked to the age of 55 years as found by the trial court, then there is no reason for me to disturb the amount arrived at as follows: 2/3 x 20,000 x 17 x 12 = Kshs 2,720,000.

28. On pain and suffering the trial court awarded an amount of Kshs. 100,000 which the Appellant argued was excessive. In the case of Butt v Khan [1978] eKLR it was held 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. I have no reason to disturb this award and will uphold the same.

29. The upshot of my determination of this appeal is that after careful consideration of the grounds of appeal, the evidence on record, the submissions by parties and various authorities cited, I find no reason to disturb the findings of the trial court. I disagree with the Appellant that the deceased contributed to the accident and that the awards by the trial court were excessive.

30. Consequently, I hereby find that this appeal is not merited and is hereby dismissed with costs to the Respondent with the result that the judgment of the trial court is hereby upheld.

31. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER, 2022. S. N. MUTUKUJUDGE