[2022] KEHC 10109 (KLR)

Mmbaya & another (Suing as the legal representatives of the Estate of the Late Dominic Otieno Odondo) v Western Express Coach (Civil Appeal 124 of 2019) [2022] KEHC 10109 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10109 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 124 of 2019

TM Matheka, J

July 8, 2022

Between

Caroline Mutimbi Mmbaya

1st Appellant

Brian Oburu Otieno

2nd Appellant

Suing as the legal representatives of the Estate of the Late Dominic Otieno Odondo

and

Western Express Coach

Respondent

(An appeal against the Judgment of Hon. Amwayi (RM) delivered on 3rd April, 2019 at the Chief Magistrate’s Court at Molo CMCC No. 235 of 2017)

Ruling

1. The Appellants herein, in their capacity as personal representatives of the Estate of Dominic Otieno Odondo (hereinafter referred to as “the deceased), filed a suit against the Respondent in Molo Chief Magistrate’s Court being Civil Suit No. 235 of 2017 in which they sought Special Damages of Kshs.70,950/=, Loss of Expectancy, General Damages under the Fatal Accidents Act and the Law Reform Act and Costs and Interests.

2. According to the plaint, on or around 31st January, 2017, the Deceased was lawfully travelling as a passenger in Motor Vehicle Registration Number KCG 271N along Nakuru-Eldoret Highway, when the defendant’s driver, agent and/or servant, so negligently drove and controlled the said Motor Vehicle that it collided with Motor Vehicle Registration Number KCC 059E and as a result of the said accident the deceased suffered fatal injuries.

3. The particulars of negligence against the Respondent/Defendant pleaded were as follows;i.Driving at a speed which was excessive in the circumstances;ii.Failing to keep any proper look out or to have any sufficient regard for motor vehicles moving along the road;iii.Failing to see the aforesaid Motor Vehicle Registration Number KCC 059E in sufficient time to avoid colluding with it or at all;iv.Failing to give any or adequate warning of his approach;v.Driving without due care, caution and attention;vi.Failing to stop, slow down, swerve or in any other manner control the said Motor Vehicle;vii.Causing or permitting the accident to occur;viii.Failing to have regard for the safety of the passengers;&ix.Causing death of the deceased by dangerous driving.

4. The Appellants pleaded that as a result of the deceased’s death, his estate suffered loss and damage particulars whereof were pleaded.

5. It was further pleaded that the deceased at the time of his death, was survived by his wife, four sons aged 24 years,19 years,17 years and 7 years respectively and four daughters aged 21 years, 15 years,13 years and 9 years respectively. According to the Appellants, at the time of his death, the deceased was aged 51 years, was a driver for Western Express Coach Limited (the Respondent herein), led a happy and vigorous life and utilized his income for the upkeep of his dependents and offsetting loans.

6. It was averred further that as a result of deceased death, his life was considerably shortened and in consequence his estate suffered loss and damage.

7. The respondent filed their Defence dated 31st August, 2017 and totally denied the Appellants’ case. It averred that any accident as may be proved by the appellants to have occurred was caused by or substantially contributed by the driver of Motor Vehicle KCC 059 E. The particulars of negligence against the Motor Vehicle Registration Number KCC 059E were as follows:-i.Failing to give regard or take any adequate precaution for the safety of the other users of the road and especially the passengers in the motor vehicle KCG 271N;ii.Failing to stop, swerve or in any way avoid colliding with the Motor Vehicle KCG 271 N;iii.Failing to give any warning to the driver of motor vehicle KCG 217 N of his approach;&iv.Failing to follow the laid down traffic laws and regulations and especially as to giving way to other motor vehicles

8. The Respondent admitted that the deceased was employed as its driver a consequence of which the deceased was precluded from claiming from it as a third party.

9. The Respondent prayed that the Appellants’ suit be dismissed with costs against it.

Appellants’ Case 10. In support of their case, the Appellants called two witnesses. The first witness who testified as PW1 was PS No. 92216 PC Fredrick Otieno Opondo. In his testimony, he confirmed that the deceased died in the accident that involved two Motor Vehicles KCG 271N Isuzu Bus belonging to the Respondent and Mercedes Bus KCC 059E. He said the accident was reported on 31st January 2017 vide OB Number 2/31/01/2017 and that a Police Abstract was issued on 4th April, 2017 at Mau Summit Police station. He produced the Police Abstract Report as P. Exhibit 1.

11. In cross examination he stated that he was not the investigating officer and he was unable to confirm if the deceased at the time of the accident was a passenger or driver.

12. PW2 was Caroline Mutambo Mboya. She was the deceased’s widow. She stated that her husband was involved in an accident and died. He was travelling to western while aboard Motor Vehicle Western Express Registration Number KCG 271 N, a bus. She said her husband was a driver however at the time of the accident he was not driving. She learned about the accident from a Good Samaritan and she travelled to Molo Mortuary where she identified the deceased’s body. She stated that she got married to the deceased in 1995 and together they were blessed with children. That the deceased used to earn Kshs. 35,000/- and was the sole bread winner of the family as she does not work. She prayed for compensation.

13. She produced the following documents as exhibits;a.Letters of administration- P. Exhibit 2. b.Death Certificate- P. Exhibit 3. c.Copy of Chief’s letter dated 7/4/2017- P. Exhibit 4d.Burial Permit- P. Exhibit 3(b)e.Post Mortem P. Exhibit 5. f.Copy of Records P. Exhibit 6. g.Transport Receipts – P. Exhibit 7h.Identification documents for dependents – P. Exhibit 8i.Mortuary Receipt- P. Exhibit 9j.Coffin Receipts- P. Exhibit 10k.Rent Receipts- P. Exhibit 11l.Fees Structure- P. Exhibit 12m.Demand Letter- P./ Exhibit 13

14. During Cross examination, she confirmed that the deceased was employed by the respondent as a squad driver but stated that the police informed her that on the date of the accident he was not driving. She stated that three of her children are adults and confirmed that she had only produced four birth certificates. She stated that she does casual jobs of washing clothes.

15. In re-exam, she stated that the age of the children was as indicated by the chief in his letter she produced as P. exhibit 4.

16. On the part of the Respondent, they closed their case without calling any witness.

17. After hearing the evidence, the learned trial magistrate found that the Appellants failed to prove the Respondent’s/defendant’s negligence on a balance of probability and dismissed the suit with costs to the Defendant.

18. According to the trial court based on the evidence before it was unable to establish the circumstances surrounding the accident particularly how the accident happened, if at the material time the deceased was a driver or a passenger and that the police abstract that was produced did not indicate who was to be blamed for the accident or the findings of the police.

19. Aggrieved by the said judgment the Appellants now appeals to this court on the following grounds:-1. That the learned magistrate erred in law and in fact in evaluating the evidence on record and arrived at a wrong conclusion that the Appellant did not prove his case to the required standard and hence dismissed it.2. That the trial magistrate erred in law and in fact in failing to acknowledge the appellants’ evidence where it was confirmed that the deceased was not driving or in control of the Motor Vehicle No. KCG 271 N at the time of the accident which evidence was not contradicted by the defendant.3. That the trial court erred in law and in fact in failing to find that the deceased being a passenger at the time of the accident was then owned a duty of care by the respondent’s driver, agent and or servant driving Motor Vehicle registration number KCG 271 N which duty was then breached.4. That the trial magistrate erred in law and in fact by dismissing this suit notwithstanding the respondent’s failure to call any witness or produce any evidence so as to rebut the Appellant’s evidence.5. That the learned trial magistrate erred in law and fact in not considering the doctrine of res ipsa loquitur.

20. The Appellants prayed that:-1. The appeal be allowed and judgement of the lower court be set aside.2. The respondent do pays the costs.3. The court grants any or further orders which would be justifiable in the circumstances.

21. The parties through their respective advocates agreed to canvas the appeal through written submissions on 10th February, 2022.

Appellants Written Submissions 22. The Appellants’ submissions are dated 22nd February, 2022 and they were filed on 7th February, 2022.

23. On the issue whether the defendant had a valid defence, the appellants’ counsel submitted that the trial magistrate considered the appellants case strictly without any regard to the defence relied upon by the respondents.

24. He submitted that the respondents in its defence merely denied the averments in the plaint and proceeded to blame a third party without instituting any third proceedings against it.

25. He stated that the respondent’s defence was therefore a mere sham and unproved.

26. On whether the applicant proved her case on a balance of probabilities, he stated that it was confirmed by both parties that the deceased was a passenger in the Respondent’s motor vehicle at the time of the accident and that the accident was a result of a collusion between Motor Vehicle Registration numbers KCG 271 N & KCC 059 E.

27. The Appellants’ counsel urged this court to find that there was no valid defence on record and both motor vehicles involved in the accident were to blame equally.

Respondent’s Written Submissions 28. The respondent filed their Submissions on 1st March, 2022.

29. The advocate for the Respondent only submitted on whether the appellants had proved their case on a balance of probabilities.

30. The counsel argued that the burden of proof in civil case is on the balance of probability as was held in the case of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR.

31. He submitted that section 107 of the Evidence Act places the burden of proof on the plaintiff. That as regards an action in negligence Halsbury’s Laws of England, 4th Edition at paragraph 662 at page 476 states as follows:“The burden of proof in an action for damages for negligence rest primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.”

32. It was therefore the Respondent’s submissions that the Appellants were required in the lower court to prove their claim against it on the balance of probabilities. For this proposition reliance was placed on the cases of Kirugi & anothermv Kabiya & 3 others [1987] KLR 347 & Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR.

33. The Respondent’s Advocate submitted that the evidence that was tendered by the appellants on liability was not sufficient. That PW2 never witnessed the accident, PW1 confirmed no investigation was conducted and he was unable to tell who was driving alleged motor vehicle and caused the accident. No evidence was led to prove the deceased was not a driver on the material date.

Analysis and Determination 34. Having considered the issues raised in this appeal and the respective parties ‘ submissions, It is clear that the determination of this appeal revolves around the question whether the Appellants proved their case on the balance of probabilities This being a first appellate court, it was held in Selle v Associated Motor Boat Co.[1968] EA 123 cited with approval in Techard Steam & Power Limited v Mutio Muli & Mutua Ngao [2019] eKLR that:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

35. This Court is mandated to revisit the facts as presented in the trial Court, analyze and evaluate them and arrive at its own independent conclusions, always keeping in mind and giving allowance for it, that the trial Court had the advantage of hearing and seeing the parties.

36. On the power to interfere with factual findings of the trial court, it was held by the then East African Court of Appeal in Ramjibhai v Rattan Singh s/o Nagina Singh [1953] 1 EACA 71 that:“This Court will not disturb a finding of a trial Judge merely because of an irregularity in the format of the judgement if it thinks that the evidence on the record supports the decision.”

37. The burden of proof was on the Appellants to prove that their case is not in doubt. In Evans Nyakwana v Cleophas Bwana Ongaro[2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore the evidential burden … is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

38. The question then is what amounts to proof on a balance of probabilities. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & another [2015] eKLR, the judges of Appeal held that:“Denning J. in Miller v Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say;-“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 probability is 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.”

39. From the evidence on record the Plaintiff/Appellant produced evidence through the police abstract that an accident occurred and there was a collision between two motor vehicle, KCG 271N and KCC 059E. The fact of the accident is admitted by the defence in their defence hence there is no dispute that an accident happened.

40. It is also the plaintiff’s testimony that the deceased was a squad driver that day and was not the one driving. The fact of the deceased having been an employee of the defendant/respondent and being in that bus on the material date is admitted by the defendant/respondent.

41. However the defendant/respondent did not call any evidence to controvert the plaintiff/appellants evidence given on oath that the deceased was not driving the bus.

42. On the material date the defendant/respondent had contended in its defence that;“the defendant does not deny the employment of the deceased as a driver for Western Express Coach Limited.”

43. The defendant respondent only contended that being its driver, he could not claim from the defendant. However, the defendant/respondent did not call any evidence to show that the deceased was the one driving the bus at the time the Road Traffic Accident happened. That evidence could only be within the knowledge of the defendant/respondent because it is the one that assigned its driver duties.

44. The plaintiff/appellant accused the defendant respondent driver of negligence since the deceased was a passenger in the bus.

45. In response the defendant/applicant blamed the other motor vehicle for the negligence, in its defence, it set out particulars of negligence as against the driver of motor vehicle registration number KCC 059 E, and denied all negligence against its own driver. However, despite giving Notice to join the driver of the other motor vehicle, the defendant/respondent did not do so. Clearly the defendant/respondent did not have any evidence to controvert the particulars of negligence set out by the plaintiff.

46. In any event the defendant/respondent’s allegations of negligence against a 3rd party could not have become an issue for determination as between the defendant/respondent and the plaintiff/appellant.

47. So from the evidence on record, and the pleadings;i)The accident was not denied, it was admitted by the defendant/respondent and the defendant/respondent blamed someone else for the same and not the deceased.ii)The defendant/respondent admitted that the deceased was its employee, as a driver, but did not blame the deceased for the accident.iii)There was no evidence that the deceased was among the motor vehicle that night, and that must be the reason why the defendant/respondent did not raise the Preliminary Objection against the suit it had threatened to raise.iv)The plaintiff/appellant established that there was an accident at the material time, her husband was a passenger in the defendant/respondent motor vehicle which collided with another motor vehicle, the admitted collision between the two (2) motor vehicles makes the matter res ipso facto. It is not normal for two (2) motor vehicles to collide on the road, one must get the into the way of the other, and the deceased not having control of the motor vehicles could not carry any blame for the same. The defence blamed a 3rd party, threatened to join that 3rd party into the suit but failed to do so, drawing the inference that they would not have succeeded as their drive was in the wrong.v)From these facts it is my view that the trial magistrate misdirected herself that the plaintiff/appellant had not established liability on the part of the defendant/respondent.In the circumstances I find the defendant/respondent 100% liable, for the accident.

48. With respect to damages, the trial magistrate stated in her judgment that she would have made the following award;1. Pain and SufferingThe deceased died on the same day. I would have awarded the estate of Kshs. 20,000/= for pain and suffering.2. Loss of expectation of lifeThe deceased was enjoying good health prior to his death. I would have awarded the estate of Kshs. 100,000/= under this head.3. Loss of dependencyThe deceased was aged 51 years old at the time of his death. It was adduced in evidence that he was a driver earning Kshs. 30,000/= per month and he was supporting his family. The award under this head would have worked as follows:-2/3 x 30,000/= x 12 x 8 = 1,920,000/=

11. I have no reason to disturb this award.Having found that the defendant respondent was responsible for the accident, the appeal succeeds.

12. Judgment is entered for the plaintiff/appellant against the defendant/respondent in the following terms;i.Liability 100%ii.Pain and Suffering; Ksh 20,000iii.Loss of expectation of life; Ksh 100,000iv.Loss of dependency; 1,920,000/=v.Special Damages; Ksh. 70,950/=,TOTAL= Kshs. 2,110,950/

12. The plaintiff/appellant to have costs here and below.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8THDAY OF JULY, 2022. MUMBUA T. MATHEKA,JUDGE.CA EdnaMudeshi Muhanda & Co. Advocates,Ameli Inyangu & Partners Advocates