[2016] KEHC 2993 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CIVIL APPEAL NO. 75 OF 2014

BETWEEN

MULTIPLE HAULIERS (EA) LIMITED …..……………………...………..….. 1ST APPELLANT

PETER MUTETI ……………………………………………..……………….. 2ND APPELLANT

AND

WILLIAM ABIERO OGEDA suing as the representative

of CHRISTINE ARGLERA ABIERO (DECEASED) ……....…….......…….. 1ST RESPONDENT

GIDION KANYORE ……………………………………………...………… 2ND RESPONDENT

BENARD MBAKA ………………………………………………………… 3RD RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. L. Gitari, CM at the Chief Magistrates Court at Kisumu in Civil Case No. 274 of 2007 dated 5th June 2014)

JUDGMENT

1. The 1st respondent, William Abiero Ogeda, was the plaintiff in the original suit before the subordinate court where he sued as the personal representative and legal administrator of the estate of Christine Arglera Abiero (‘’the deceased’’).

2. The suit was filed against the appellants, 2nd and 3rd respondents for damages under the Law Reform Act (Chapter 26 of the Laws of Kenya) and Fatal Accidents Act(Chapter 32 of the Laws of Kenya). According to the plaint, the deceased was travelling as fare paying passenger in motor vehicle registration number KAS 869L (“the Matatu”) owned by the 3rd respondent and driven by the 2nd respondent along Ahero-Kisumu Road on or about 18th April 2007. On nearing Rabuor market, the 1st appellant’s motor vehicle registration number KAU 317K (“the Trailer”) and driven by the 2nd appellant veered from its lane and collided with motor vehicle KAS 869L. The deceased died as a result of the injuries sustained in the accident.

3. The 2nd and 3rd respondents did not enter an appearance while the appellants filed a statement of defence where they denied the 1st respondents claim. The appellants blamed the accident on the 2nd and 3rd respondents and stated that the accident was as a result of the recklessness and negligence on the part of the 2nd respondent who drove the Matatu carelessly thereby causing the collision. The trial court found the appellants fully liable for the accident and assessed damages at Kshs. 640,000/- under the Fatal Accidents Act. The appellants appealed against the decision while the 1st respondent cross-appealed.

4. The appellant contested the issue of liability and quantum. Mr Yogo, counsel for the appellants, submitted that liability should have been apportioned since the accident was as a result of a collision. He argued that the trial court failed to consider the fact that the 2nd and 3rd respondent did not enter appearance hence the trial court should not have imposed full liability against the appellants. On the issue of quantum learned counsel argued that the dependency ratio of 2/3 applied by the trial court was inordinate as parties submitted on a 1/3 ratio. He was of the view that since the deceased was not employed, there was no basis for applying 2/3 ratio.

5. Mr Madialo, counsel for the 1st respondent, cross-appealed on the issue of quantum. He submitted that the deceased was aged 21 at the time of her death and as such a multiplier of 20 years was on the lower side given that the retirement age is set at 60 years. Counsel also took issue with the amount of minimum age applied by the trial court as the multiplicand and argued that Kshs. 4,000/- was too low given that the minimum wage at the time Kshs. 7,000/-.

6. As this is the first appeal, I am alive to the responsibility of the court. This court is called upon to analyse and re-assess the evidence on record and reach its own conclusions bearing in mind that it neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co.[1968] EA 123and Kiruga v Kiruga & Another[1988] KLR 348).

7. The evidence before the trial court was as follows. PW 1, the deceased father, testified that at the time of her death the deceased was aged 21 years. He stated that the deceased had completed her secondary school education and she was waiting to join Medical Training College to train as a nurse. He told that court that the deceased’s documents proving that she had actually completed her O level education or that she was just about to join college were lost.

8. The appellant did not dispute that there was a collision between the Matatu and the Trailer. PC Chakala (PW 2) produced a police abstract which confirmed as much. PW 4 and PW 5 gave direct testimony. PW 4, who was a passenger in the Matatu and was seated next to the driver, told the court that as Matatu was going towards Rabuor, it met the Trailer coming from the opposite direction. The Trailer left its lane and came on to the opposite lane and collided with the Matatu. The driver of the Matatu tried to avoid the collision by moving to left side but it ended up rolling. In cross-examination, PW 4 was firm that the Matatu was moving slowly and the collision took place on its side of the road beyond the yellow line. This evidence was corroborated by PW 5, who observed the accident as he was riding his bicycle. He stated that the Matatu overtook him whereupon he saw the Trailer coming towards his direction. He saw the Trailer leave its lane, go to the lane of the Matatu and hit it on the side. The Matatu rolled off the road several times.

9. Although there was a default judgment on against the 2nd and 3rd respondents, the learned magistrate was entitled to assess the evidence and reach her own conclusion. There was clear testimony of the eyewitnesses, PW 4 and PW 5, which was that the trailer left it side of the lane and hit the matatu causing it to roll off the road. The appellants did not call any witnesses to rebut the testimony adduced by the witnesses or to prove the particulars of contributory negligence that it had pleaded in its defence. The trial court was entitled to apportion liability and based on the unequivocal and unrebutted testimony of the two witnesses. I cannot say the learned magistrate erred in imposing full liability on the appellants since there was no other evidence that the magistrate could rely on to reach any other conclusion. I too come to the same conclusion and affirm the finding on liability.

10. I now turn to the issue of quantum. According to the particulars pleaded in the plaint, the deceased was aged 21 years old and, “intended to join college to train as a P1 teacher or alternatively train as a Community Health Nurse. She had prospects of a verily bright future. She was a healthy girl with good prospects of continued good health and development of a career on which dependant reasonably expected dependency.” The 1st respondent cited himself, as the deceased father, mother and two brothers as dependants.

11. In assessing the damages under the Fatal Accidents Act, the trial magistrate used the multiplier approach to assess damages by taking the minimum wage of Kshs. 4000/- and used a multiplier of 20 years and a dependency ratio of 2/3. The appellant and 1st respondent both contested the assessment of damages. What is clear is that the deceased had barely left school and although she had prospects of going to school to further her education, these prospects were illusionary and speculative as there was nothing to base her expected earnings on. This is a case where the multiplier approach was wholly inappropriate.

12. In this respect I would adopt the reasoning by Ringera J., in Mwanzia v Ngalali Mutua and Kenya Bus Services (Msa) Ltd & Another quoted by Koome J., in Albert Odawa v Gichimu GichenjiNKU HCCA No. 15 of 2003[2007] eKLRwhere he expressed the following view;

The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependancy, and the expected length of the dependancy are known or are knowable without undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.

13. I also note that although both parties applied a dependency ratio of 1/3, the learned magistrate assessed the ratio at 2/3 which was erroneous and in disregard of the parties agreed position. Further, such a ratio could not be justified in the circumstances as the dependants pleaded are not contemplated under the section 4(1) of the Fatal Accidents Act which states;

Every action brought by nature of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused [and shall…..be brought by and in the name of the execution or administrator of the person deceased]……[Emphasis mine]

The brothers of the deceased are not dependants for purposes of the Fatal Accidents Act hence the dependency ratio would definitely reduce when this is taken into account.

14. The general principle is that the appellate court should be slow to interfere with the discretion of the trial court to award damages except where the trial court acted on wrong principles of the law, that is to say, it took into account irrelevant factor or failed to take into account relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages (see Butt v Khan [1982-88]1KAR 1, Mariga v Musila [1982-88] 1 KAR 507).

15. As I have demonstrated, the learned magistrate not only erred in applying the incorrect principle in assessment of damages but disregarded the agreed position of the parties contained in their submissions.

16. I therefore set aside the award of damages made by the trial magistrate and substitute the same with a global sum of Kshs. 300,000/00. The sum shall accrue interest at court rates from the date of judgment in the subordinate court.

17. Since the cross-appeal has failed and the appeal has partially succeeded, the appellant shall have half the costs of the appeal.

DATEDandDELIVEREDatKISUMU this 30th day of September 2016.

D.S. MAJANJA

JUDGE

Mr Yogo instructed by Otieno, Yogo, Ojuro and Company Advocates for the appellants.

Mr Madialo instructed by S.O. Madialo and Company Advocates for the respondent.