[2022] KEHC 489 (KLR)

Ministry of Interior and Coordination of National Government & 2 others v Apollo ((Suing as the Legal Representative of the Estate of the late Joyce Kina Apollo)) (Civil Appeal 32 of 2019) [2022] KEHC 489 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 489 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 32 of 2019

LM Njuguna, J

May 11, 2022

Between

Ministry of Interior and Coordination of National Government

1st Appellant

John Mutegi Kirema

2nd Appellant

Attorney General

3rd Appellant

and

George Muriithi Apollo

Respondent

(Suing as the Legal Representative of the Estate of the late Joyce Kina Apollo)

(This was an appeal from the Judgment of the Chief Magistrate’s Court of Kenya at Embu and delivered on 17. 06. 2019 in Embu CMCC No. 275 of 2016)

Judgment

1. The appellants herein were the defendants in CCMC No. 275 of 2016 wherein they were sued by the respondent vide a plaint dated 15. 10. 2017, in which they claimed general damages, special damages, cost of the suit and interest.

2. The cause of action arose from a road accident which occurred on or about February 10, 2016 along Embu- Runyenjes Road at Murari when the 1st and 3rd defendants, their agents or servants driving motor vehicles registration number GK B 546F and KCF 2325R so negligently drove, managed and or controlled the said motor vehicles that they collided, occasioning fatal injuries to the deceased for which the estate of the deceased holds the 1st,2nd 3rd and 4th defendants liable for negligence and or vicariously liable.

3. The particulars of negligence were particularized in paragraph Five (5) of the plaint wherein the plaintiff sought orders as enumerated in the plaint.

4. The appellants herein filed their respective defences in which they denied liability and further claimed that if at all any accident occurred as alleged and which allegation was denied, then the same was caused solely and/or substantially contributed to, by the negligence and carelessness of the deceased.

5. The respondent further sought leave to amend their pleadings citing reasons inter alia that the sought for amendment intended to bring before the court the real issues in dispute between the parties and in particular, the actual registered owner of motor vehicle registration number GKB 546F; the court granted leave pursuant to which the 3rd defendant was enjoined in the suit but on the 5. 01. 2018, the plaintiff withdrew suit against the 3rd defendant with no order to costs.

6. The respondent filed a reply to the 4th defendants statement of defence wherein he reiterated all the contents of the plaint in its ordinary and natural meaning and proceeded to put the appellants herein to strict proof thereof; further, the respondent went on to deny any negligence on the part of the deceased and urged this court to strike out the appellants’ defences and enter judgment as prayed.

7. The matter proceeded for hearing wherein the court found that the 2nd defendant was 100% liable for the accident and then entered judgment in favour of the plaintiff against the three defendants jointly and severally for an amount of Kshs. 448,030 inclusive of costs of the suit and interests at court rates.

8. The appellants being dissatisfied with the award, appealed the judgment to this court vide a memorandum of appeal dated 21. 06. 2019 in which they cited eight (8) grounds of appeal which are generally on liability and award on damages.

9. The court directed that the appeal herein be canvassed by way of written submissions which the parties herein duly filed.

10. The appellants herein submitted that though the respondent alleged negligence on the part of the defendants, the only witnesses to the respondent’s case were the respondent himself and the police officer and none of these witnesses were at the scene of the alleged accident. Reliance was made on the case of Benjamin Mwenda Muketha suing as the legal representative of Mercy Nkirote v Abdikadir Sheikh & 2 others [2018] eKLR. Further that, the respondent only produced a death certificate which stated the cause of death as raised intracranial pressure due to subdural hematoma due to head injury/road traffic accident and no post mortem report was produced to prove that the accident was actually the cause of the deceased’s death. In that regard, it was submitted that the evidence relied on by the trial court was hearsay evidence which is inadmissible and therefore the whole judgment should be set aside.

11. It was further submitted that the trial court awarded damages that were too high based on the fact that no direct evidence was produced. That the court erred in awarding Kshs. 100,000. 00 while in real sense the deceased by the time that she was found, was already dead. Reliance was made on the case of Fredrick Gataka Mungai v George N Kibunyi & another Nairobi HCCC No 1993 of 1990. In addition, it was submitted that the sum of Kshs. 150,000. 00 awarded for loss of expectation of life was unmerited as it was not supported by the evidence on record and the law. Reliance was made on the case of Moses Koome Mithika & Another v Doreen Gatwiri & Another suing as the legal representative and administrator of the estate of Phinehas Murithi (deceased) [2020] eKLR. In the end, it was prayed that the whole judgment of the trial court be set aside with costs to the appellants.

12. The respondent on the other hand submitted that the judgment was based on witness testimonies and documents produced by the parties. That the trial court relied on correct principles and doctrines in reaching its findings and that no evidence was led to prove any of the elements that need to be proved for an appellate court to interfere with the decision of the court that had the benefit of seeing the witnesses testify.

13. In regards to special damages, it was submitted that it is trite that special damages, must be specifically pleaded and strictly proved and the same were pleaded per the plaint; dealing with the award for the loss of expectation of life, it was submitted that the same was not inordinately high or based on any wrong principle. Reliance was made on the case of West Kenya Sugar Co. Ltd v Phillip Sumba Julaya (suing as the administrator and personal representative of the estate of James Julaya Sumba[2019] eKLR. In regard to award for pain and suffering, it was submitted that it is now settled that for pain and suffering, the amount awarded is generally between Kshs.10, 000. 00 and Kshs. 100,000. 00 with the more awards being made where the death occurred much later after the accident. That in the case herein, the death certificate reflects that death occurred on the same day of the accident and therefore, the amount awarded by the trial court was within the range and so the same should not be disturbed. In the end, the respondent urged this Honourable Court to uphold the award by the trial court.

14. The appeal herein is on both liability and quantum of damages and the issue for determination is whether the learned magistrate used the correct principles in apportioning liability and equally assessing the quantum of damages.

15. I have considered the appeal herein, the grounds thereof and the submissions and authorities relied on by both parties.

16. The suit before the trial court was founded on the tort of negligence and therefore the burden lay on the plaintiff/ respondent to prove the elements of the tort of negligence to wit; duty of care owed to the deceased; the deceased duty having been breached, and that as a result of that breach, the estate suffered loss and damage. The Court of Appeal in East Produce (K) Limited v Christopher Astiado OsiroCivil Appeal No. 43 of 2001 held that the onus of proof is on he who alleges and in matters where negligence is alleged, the plaintiff must prove some negligence against the defendant. This is because there is as yet no liability without fault in the legal system in Kenya.

17. It is trite that a driver owes a duty of care to other road users. He is expected to take due regard of the other road users while driving and ensure safety of other road users. So was the 2nd appellant herein (being the driver of motor vehicle GKB 546F) in breach of this duty of care? Was the breach proved to the required standards?

18. The standard of prove required in civil cases is that of balance of probabilities. Kimaru, J in William Kabogo Gitau v George Thuo & 2 others[2010] 1 KLR 526 in discussing what amounts to proof on a balance of probabilities stated that: -“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

19. Similarly, Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 while discussing the degree of proof held that: -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probabilities are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”[See Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015) eKLR].

20. PW1 in the trial court gave evidence that he did not witness the accident but relied on the abstract and further confirmed that the investigations were done and the 2nd defendant/appellant was blamed for the accident. PW2 on his part testified that the deceased herein who was his mother, was hit by a GK vehicle and that he never witnessed the said accident but was informed by a neighbor. That the deceased was standing at the stage when the vehicle hit the deceased from behind and so he only saw the vehicles at the police station. In the same breadth, the 2nd defendant/appellant admitted to driving at a speed of 70km/h in a market place wherein the accident occurred.

21. In my view, the evidence adduced by the witnesses, directly pointed to the negligence of 2nd defendant as wholly responsible for the accident which led to the demise of the deceased. Though negligence was attributed to the deceased and the owner/driver of motor vehicle KCF 235F, no negligence was proved against the deceased and as rightly observed by the learned magistrate, the owner of motor vehicle KCF 235F was not joined as a party to the case.

22. It is trite that awarding damages is a discretion of the trial court and the same cannot be disturbed on appeal unless the appellate court is satisfied that the trial court in assessing the damages took into account an irrelevant factor or left out of account a relevant issue or that, the amount is inordinately low or high that it might be wholly erroneous. In the case of Savana Saw Mills v George Mwale Mudomo[2005] eKLR, the court stated as follows: -I must state from the outset that the award of general damages is a discretion of a trial court and an appellate court will be slow to interfere with such discretion unless the discretion is exercised on wrong principles of law.

23. In regard to pain and suffering, the appellants submitted that an award of Kshs.10,000. 00 is sufficient while the respondent submitted that the award of Kshs.100,000. 00 as awarded by the court was within the acceptable range. I am guided by the death certificate of the deceased which indicates that the deceased died on the same date the accident happened and as such, the court being guided by the proposals by the parties, awarded an amount of Kshs 100,000. 00. In the case of Sukari Industries Limited v Clyde Machimbo Juma HCCA No. 68 of 2015 where Majanja J in arriving at an award of Kshs. 50,000. 00 was of the view that higher damages will be awarded if the pain and suffering is prolonged before the death. Therefore, I am of the view that an amount Kshs. 50,000. 00 is a reasonable amount having in mind the fact that the deceased died the same date of the accident.

24. On the limb of loss of expectation of life, the appellants had proposed an amount of Kshs.90,000. 00. They submitted that the amount awarded by the trial court was inordinately high thus warranting this court’s interference; the trial court proceeded to award an amount of Kshs. 150,000. 00 based on the age of the deceased who was 79 years old. In the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (suing as the legal administrator of the estate of the late Robert Mwangi)(2019) EKLR, the court awarded an amount of Kshs. 100,000. 00 under this head and was three (3) years ago. The rational principle should in my view, be as underscored by Dickson J. of the Supreme Court of Canada in Andrews v Grand & Toy Alberta Ltd {1977} 83 DLR where the court stated;“The monetary evaluation is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being ganged by earlier decisions, but the award must also of necessity not be arbitrary or conventional. No money can provide true restitution.”

25. In my view, the same cannot be said to be inordinately high. I have no reason to interfere with it.

26. In regards to special damages, the principle is that special damages must be both pleaded and proved. That is why Lord Goddard C.J. in Bonham Carter v Hyde Park Ltd [1948]64 TLR 177 said: -“... Plaintiffs must understand that, if they bring actions for damages it is not enough to write particulars and so to speak, throw them at the court, saying “this is what I have lost, I ask you to give these damages, they have to be proved.”

27. In this case, the trial court proceeded to award Kshs. 198,030. 00 and wherein the respondent had proposed an amount of Kshs. 357,945. 00. I note that the respondents produced receipts in support of the special damages that were awarded by the trial court.

28. In regards to damages for loss of dependency, the respondent had proposed an amount of Kshs. 50,000. 00 as an adequate amount in the given circumstances while the appellant submitted that the dependants listed in the plaint were adult children and that they are recognized as dependents under section 4 (1) of the Fatal Accident Act. In the end, it was the appellants’ case that the deceased had no dependants. The trial court was in agreement and proceeded not to award any amount under that head. The respondent on the other hand seems satisfied in that regard as there is no cross appeal.

29. In the end, I find that the appeal succeeds to the extent indicated.

30. Respondent’s award in terms of damages should be as here below:i.Special damages - Kshs. 198,030. 00ii.Loss of expectation of life - Kshs. 150,000. 00iii.Pain and Suffering - Kshs. 50,000. 00Total Kshs.398,030. 00

31. Each party will meet its own costs of the appeal.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE………………………………………… for the Appellants…………………………………………… for the Respondent