[2017] KEHC 737 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CIVIL APPEAL NO. 17 OF 2015 & 18 OF 2015

MOSES AKUMBA …..................................... 1ST APPELLANT

LEONARD MWALIMU MWERU ………. 2ND APPELLANT

VERSUS

HELLEN KARISA THOYA …………....…… RESPONDENT

JUDGEMENT

On 25/1/2012 the Late Kazungu Kenga was riding a bicycle while carrying Hellen karisa Thoya along Malindi-Kilifi road. The two were involved in an accident with motor vehicle registration number KBA 247M at Gede area and Kazungu Kenga died on the spot. Hellen Thoya filed Civil Suit No CMCC 242 of 2013 while the family of the deceased filed Civil Suit number 249 for 2013 before the Malindi Chief Magistrate’s court.

The trial court awarded the deceased’s family Kshs. 2,787,300 and Hellen Thoya Ksh. 407,000 as damages. The appellant filed these appeals contesting that decision on the following combined grounds:

1) The Trial Court’s decision is contrary to the evidence on record.

2) The Trial Court erred by holding that the driver of the accident motor vehicle did not testify and that the appellant did not adduce evidence for that was not the position.

3) The Trial Court erred in law and fact by not considering the evidence of the police including the sketch of the scene thereby making the appellant entirely liable.

4) The Trial Court wrongly evaluated the evidence and did not take into account relevant factors.

5) That the Trial Court erred by adopting a multiplier of 30 years which is inordinately high.

6) The Trial Court erred by making awards under both the Law Reform At and the Fatal Accident and that the assessment of damages under both acts is inordinately high.

Mr. Jengo appeared for the appellant. Counsel is contesting both the Court’s findings on liability and quantum. I have read the submissions my Mr. Jengo and what is emphasized is that the court, being a first appellate court, should re-evaluate the evidence on record and make its own findings on the issues. Counsel submit that the trial court in its judgment observed that the driver of the accident vehicle did not testify yet the driver testified. That conclusion led to a wrong finding on liability.

Mr. Jengo submit that the driver suddenly entered the main road and this led to the accident. The police evidence on the point of impact is of no probative value. Counsel relies on the loss of FRANCIS MBURU NJOROGE vs. REPUBLIC – NAIROBI HIGH COURT CRIMINAL APPEAL NO. 1131 OF 1986 where the court held as follows:

“The authorities would appear to indicate that it is the responsibility of the court to make a finding of point of impact as a fact. Secondly to do that the court has to treat the police officers as experts by establishing their experience in dealing with accidents for a considerable period. Such police officers would only state what they see on arrival at the scene stating where every debris on the road including the position of the vehicles after the impact. The court would then make up its mind as to the point of impact after taking into account all the circumstances of the including evidence of other witnesses.In the case of Charles Ng’ang’a Muhia Vs Republic the Court of Appeal said:-

“Opinion evidence given by police officer relating to the point of impact should never be accepted unless he can show that he has many years’ experience in inspecting the scenes of traffic accidents. He should give evidence only of what he saw at the scene on his arrival including every mark on or near the road and every piece of debris leaving it to the court to determine the point of impact”.

Counsel for the appellant contend that there was no evidence to prove that the driver of the vehicle veered off the road, that the victims were riding off the road and that the driver did not keep proper look our yet the trial magistrate made those findings.

On the issue of quantum, Counsel maintain that the awards are inordinately high. The trial magistrate awarded damages which exceeded its own jurisdiction of Kshs. 2 million. There was no evidence to prove that the deceased’s income was Ksh. 20,000 monthly. Counsel submit that since the deceased’s income was unknown, a sum of Kshs. 350,000 is sufficient for loss of dependency. The deceased’s parents were in their fifties and the multiplier of 30 years is high. Counsel maintain that the award of Kshs. 200,000 for loss of expectation of life is excessive. The amount awarded for funeral expenses was not supported by document.

Mr. Wambua Kilonzo appeared for the respondent. Counsel maintains that the trial court considered the defence evidence. The two cases were consolidated and the evidence in CMCC 242 of 2013 by the appellants was adopted as their evidence in file number 259 of 2013. For the bicycle had been on the road for about 10 minutes when they were knocked.

On quantum, Counsel maintain that the awarded charges are fair. Award can be made both under the Law Reform Act and Fatal Accidents Act.

Before the trial court were two separate case. In case No. 242 of 2013, PW1 Hellen Karis Thoya testified that on 25/11/2012 at about 6. 00 am she was being carried by the deceased on a bicycle heading towards the Malindi direction from Mombasa side. The bicycle was on the left side but not on the road. A small vehicle came from behind at high speed, veered off the road and knocked them. The vehicle then drove off. The victims fell on the bushes beside the road. The road at that section is straight and there was no other vehicle. PW1 suffered a fracture of her pelvic bone and bruises on her left leg.

During cross-examination, PW1 testified that they had been on the road for about 10 minutes when the accident occurred. They emerged from a footpath and joined the main road. It is her evidence that from the sound of the vehicle, it was travelling at high speed. She was seated on the frame of the bicycle as it had no back seat.

PW2 Cpl George Karakacha was stationed at the Malindi Police Station. He investigated the case. He charged the second appellant with the offence of causing death by dangerous driving (Traffic Case No. 1495 of 2012). He investigations found that the vehicle was driving towards the Malindi side, it veered off the road and knocked the bicycle that was on the side of the road. The brake marks were off the tarmac and the deceased’s body was six (6) meters off the road on the left side. According to him the impact was off the tarmac.

DW1 Leonard Mwalimu Mweri was the driver of motor vehicle registration number KBA 247M. According to him, the accident occurred at about 5. 00am. He saw a bicycle on his left side which wanted to cross the main road. He hooted and applied brakes but the accident occurred. The bicycle appeared suddenly. The bicycle left a path and joined the main road. He feared for his safety and drove off. The vehicle belongs to the first appellant. The road is straight and tarmacked. The weather was clear. There were no other vehicles on the road.

DW2 Moses Akumba is the owner of the accident vehicle. He had given DW1 the vehicle. The vehicle was damaged on the front bumper and the left side of the windscreen was also damaged. According to him DW1 as convicted of the offence of causing death by dangerous driving. The record and the trial court indicate that the evidence of DW1 and DW2 was to be adopted as the appellant’s evidence in cause no. 429 of 2013.

In the second case (429/2013), PW1 Kazungu Kenga Kadzomba is the mother of the deceased, Kazungu Kenga. She testified that the deceased was 25 years old and was not married. He was a fisher man in Uyambo area earning between Kshs. 1,000 to Kshs.1,500 daily. The deceased used to assist his parents and siblings. He died on the spot. They incurred burial expenses. The deceased went to school and finished Primary School education. He owned a fishing boat.

DW1 Moses Juma Akumba testified his evidence which he had tendered in CMCC 242 of 2013.

The appeal raises two issues.

1. Who was liable for the occurrence of the accident

2. What is the extent and damages payable to the respondents

The appellant’s contention is that the deceased while riding the bicycle emerged from a pathway and abruptly joined the main road. A sketch plan was produced to show the point of impact. The defence witness is the driver of the accident vehicle and saw all what happened.

The trial court was not convinced by the driver’s version of how the accident occurred. According to PW1, Hellen. The bicycle had been on the road for about 10 minutes. The vehicle approached them from behind, veered off the road and knocked them. PW2 investigated the case. It is his evidence that the vehicle veered off the road and knocked the bicycle that was off the road. According to PW2 the brake marks were off the road. The impact led to the death of one victim and the vehicle must have been overspeeding.

The evidence shows that the weather was clear. The road is straight and there was no other vehicle on the road. If DW1 was driving slowly or had proper control of the vehicle the accident would have been avoided. Although Counsel for the appellant maintains that the point of impact given by the police is of no probative value. I have different view on that.

When an accident occurs the police visit the scene and evaluate how the accident occurred. That evaluation is not confined to assessing the broken pieces of the vehicle on the ground. We should not discredit the experience of the police traffic officers which is accumulated ones a period of time. The police are able to see the skid marks of the accident vehicle, where the victim landed after the accident, where did the accident vehicle stop or how did it move/shelve at the time the accident occurs. All these factors enable the investigating officer to conclude as to who is to blame for an accident.

The driver of the motor vehicle was alone and driving at a straight stretch of the road. It is not alleged that the side of the road was bushy or covered by forest. Even assuming that the deceased emerged suddenly from the side, the driver could have seen him at a distance. If the driver was not over speeding, he could have slowed down and swerved to the right and avoid accident. I do find that the 2nd appellant was negligent as he failed to control the vehicle. The deceased was him from behind – PW1 was seated on the bicycle frame and did not absorb the impact of the accident. It was the deceased who took the first impact before being thrown to the bush. I entirely agree with the findings of the trial court. According to the owner of the vehicle, the driver was convicted and the offence of causing death by dangerous driving. She also proves that the drive was negligent. I do hold that the 2nd appellant was 100% liable.

From the submissions by Counsel for the appellant, the concern is for the award for the deceased victim. There is no contest on the award. Hellen Karisa Thoya was awarded Kshs. 400,000 as general damages. I will not disturb the award.

On the part of the deceased victim, it is submitted that the trial court held that the appellant had urged the court to award Kshs. 180,000 for loss of expectation of life. This made the court award Kshs. 200,000 which amount is exorbitant as per the appellant. The appellant urged the court to award Ksh. 80,000 and not Kshs. 180,000. Counsel for the appellant contends that this court can award a global figure as general damages for loss of dependency or use the minimum wage of Kshs.4,575. 20.

The deceased was 25 years old and not married. He was a fisherman. The record of appeal indicates that the deceased’s father was 52 years old and the mother 53 years old. There are five brothers and three sisters. Those under the age of 18 years are four. Counsel for appellant relies on the case of CHUNIBAHIA J. PATEL & ANO. VS P.F. HAYES & ANO. (1957) E.A 748 where the court of appeal observed as follows:

“The court should find the age and expectation of the working life of the decease and consider the ages and expectations of his dependant,the net earnings, power of the deceased i.e his income tax and the proportion of his net income which he could have made available for his dependants. From this it should be possible to arrive at the annual value of dependency, which must then be capitalized by multiplying a figure representing so many years purchase. The multiplier will bear a relation to the expectation of life and dependency of the widow and children. The capital sum so reached should be discounted to allow for possibility or proportionality of the re-marriageof the widow of what her husband left her, as a result of premature death. A deduction must be made for the value of the estate of the deceased because the dependants will get the benefit of that. That resulting sum (which must depend upon a number of estimates and imponderable) will be the lumpsum that the court should apportion among the various dependants”.

The question to be asked is whether the award by the trial court is inordinately high as alleged by the appellant, whether the trial court applied the wrong legal principles in its decision or whether it failed to take into account relevant principles. It is submitted that the award is beyond the jurisdiction of the trial court. Ordinarily the pecuniary jurisdiction of magistrates are provided genuinely by the Magistrate’s Courts Act. There is no document produced indicating that the trial magistrate lacked the jurisdiction to award Kshs. 2 million for loss of dependency.

Turning to each award, the trial court awarded Kshs. 50,000 for pain and suffering. Counsel for the appellant submitted for Kshs. 10,000. The circumstances of the case are that the deceased was cycling while carrying the 1st respondent. He was hit from behind and landed in the bush beside the road. He died on the spot. Although there was sudden death, it is clear that the deceased must have suffered a lot of pain. I will not disturb the award by the trial court.

With regard to loss of expectation of life, Counsel for the appellant submitted before the trial court that an award of Kshs. 70,000 was sufficient. Counsel for the appellant relied on the case of Victoria Ngendo Vs J.K. Njoroge, Nairobi HCC No. 1438 of 1989 where Kshs. 60,000 was awarded in 1993. On his part, Counsel for the respondent relied on the case of Silas Mugendi Nguru vs Nairobi Women Hospital, Nairobi HCC No. 34 of 2013 where Kshs. 150,000 was awarded for a 29 year old victim. This is a recent decision. Mr. Kilonzo urged the court to award Kshs. 250,000. My view on the issues of loss of expectation of life is that each life is important and equal. There should be no distinction between a poor man and a rich one, no distinction between one who is working and un unemployed person. The awarded damages are for loss of expectation of life. The deceased was aged 25 years and a healthy person. He was a fisherman as per his mother’s evidence. The normal expectation is that he was going to live upto the age of 60 years. Whether he was going to get formal employment or not is not an issue. It is the aspect of that life having been cut short that is being considered.

Due to the sudden death, the deceased’s life was shortened. All his expectations in this world were eroded. Having that in mind, we should then consider whether Kshs. 70,000 is sufficient to compensate for that loss. We should not view the deceased as a simple fisherman whose expectation in life was limited to fishing. No one knows what tomorrow has for him.

I do find that the award of Kshs. 200,000 is fair and not inordinately high. The other dispute involves loss of dependency.

The deceased’s parents have other children. There are three brothers who were aged 22 years and above. The deceased’s parents were not going to entirely rely on the deceased even of the other siblings are not employed. The deceased was self employed.

The trial court invoked the provisions of section 4 (1) of the Fatal Accident Act and was well guided on the applicable legal principles. The trial court found that the deceased had only two dependants – the parents. A mulitiplier of 30 years was adopted in my view that multiplier is abit high. The award is for the benefit of those two parents who were aged 52 and 53 years respectively. What this means is that the two parents would have lived upto the age of 80 years and beyond. The concern for the award is not how long the deceased would have lived but the extent and length of the dependency.

I do find that a multiplier of 20years would be sufficient. This would have extended the dependency to over 70 years.

The trial court adopted a sum of Kshs. 20,000 as the deceased’s salary each month. PW1 testified that the deceased was a fisherman earning between Kshs. 1000 -1,500 daily. It is obvious that the allegation court not be backed by any record or documentation. The deceased was working informally. According to his mother, he had a fishing boat and the proceeds were from selling fish. Counsel for the appellant is of the view that the court should adopt the minimum age of Kshs. 4,577. 220. It is clear to me that the deceased was active in life. There is no legal principal that any unemployed person should be considered to have been earning the minimum wage. Someone running a retail shop, kiosk or an eatery could be earning more than the minimum wage. The court simply has to consider whether a fisherman can earn Kshs. 5,000 each week in his fishing business. This is a possibility as it translates to about Kshs. 800 each day. I do find that the estimate of Kshs. 20,000 by the trial court is not exorbitant. The trial court adopted 1/3 dependancy ration which I find to be just. This is what the appellant is proposing.

On this head of award, workout is as follows:

20,000 x 20 x 12x 1/3 = 1,600,000.

The final issue involved the funeral expenses. The insistence on production of expenditure receipts for funeral expenses is no longer good legal practice. It is not possible for mourners to keep record for each expenditure on the deceased’s funeral. The pleadings has a claim of Kshs. 53,000 being Kshs. 35,000 for obtaining the Limited grant, Kshs. 2,300 being court fee for the limited grant and Kshs. 15,700 being burial expenses.

The trial court awarded a further Kshs. 100,000 being funeral and related expenses. PW1 testified that she paid Kshs. 35,000 for the limited grant and Kshs. 2,300 as court fee. She also spent Kshs. 15,700 which include Kshs. 6,000 for the postmorterm. That was the total burial expense. The extra award of Kshs. 100,000 is not supported by any form of alleged extra expense. I do find that the award is unnecessary and contrary to the evidence on record.

In the end, I do find that the appeal partly succeeds on liability the appellant’s found 100% liable. The total award for Appeal No. 17 of 2017 (Hellen Karisa Thoya) shall be left undisturbed. The award for Appeal No. 18 of 2015 shall be as follows:

1) Damages for Pain & Suffering Kshs. 50,000

2) Loss of Expectation of life Kshs. 200,000

3) Loss of dependency Kshs. 1. 600,000

4) Funeral Expenses Kshs. 15,700

5) Special Damages Kshs. 37,300

Total Kshs. 1,903,000

I do find hat parties shall bare their own cost of the appeal. The costs and interest awarded by the trial court shall not be disturbed.

Delivered, Dated and Signed at Malindi this 4th day of October, 2017.

Hon. Justice S.J. Chitembwe.