[2022] KEHC 12691 (KLR)

Mungai v Mukuha (Suing as Administrator and or Personal Representative of the Estate of Duncan Wangugi - Deceased) (Civil Appeal 26 of 2017) [2022] KEHC 12691 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12691 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 26 of 2017

RM Mwongo, J

June 14, 2022

Between

Peter Ndungu Mungai

Appellant

and

Lucy Nduta Mukuha (Suing as Administrator and or Personal Representative of the Estate of Duncan Wangugi - Deceased)

Respondent

(Appeal from the judgment and decree of Hon. Esther K. Kimilu, SRM delivered on 6th June, 2017 in Naivasha CM Civil suit 424 of 2013)

Judgment

1. This is an appeal against the lower court’s judgment on both liability and quantum. The appeal raises the following three grounds:1. That the learned magistrate erred in awarding a multiplier amount of 30,000/- as the salary that was earned by the deceased without sufficient proof.2. That the learned magistrate erred in awarding 100% liability to the defendant. The evidence by eyewitnesses was contradictory to the testimony of the police officers.3. That the learned magistrate erred in law and in fact in failing to consider conventional awards for general damages in similar cases.

2. The background of the case is that the respondent brought a claim for general damages under both the Law Reform Act and Fatal Accidents Act on behalf of the estate of Duncan Wangugi. The deceased died on October 19, 2011 in a road accident involving motor vehicle KBQ 070J, Nissan van, owned by the appellant. The accident occurred along Thika road was attributed to the negligence of the driver of the said motor vehicle. The respondent also sought special damages.

3. The suit was defended. After hearing the suit the trial court held the appellant 100% liable for negligence. It made an award as follows:Pain and suffering Kshs 25,000. 00Loss of expectation of life Kshs 150,000. 00Loss of dependency Kshs 3,600,000. 00Special damages Kshs 5,860. 00Total Kshs. 3,780 860. 00The court also awarded costs and interest.

Parties’ cases 4. Parties filed written submissions as directed by court.

5. On liability, the appellant submitted that the deceased was a pedestrian who was to blame for not paying attention whilst crossing the road, resulting in his being hit by motor vehicle KBQ 070J. According to the appellant, PW3 CPL Mose Aduor attested that the deceased was knocked down while crossing the road as per the initial report in the Occurrence Book Number 9/19/10/2011, which did not indicate who was to blame. He further argued that DW1, No 62050 PC Ebrahim Nzwili corroborated PW1’s testimony.

6. The appellant further argued that the PW2 and PW4 stated that the deceased was hit on the edge of the road by an oncoming vehicle and alleges it is contrary to the police aversion. He urged that liability be shared 50-50 premised on the authorities of Valley Bakery Ltd & Another Musyoki[2005] and Ali Malik bothers Motors (K) Ltd & another v Emmanuel Oduor Onyango [2018] eKLR. These cases held that liability ought to be shared where there was contradictory evidence or where investigations were pending or incomplete, respectively.

7. On quantum, the appellant argued that the court erred by taking into account irrelevant factors and awarding quantum of KShs 3,600,000/- and utilized a multiplicand of 15 years for a 45 year old , and a multiplier of Kshs 30,000 and dependency ratio of 2/3 without proof. The appellant alleges that the letter of employment from IMS Ltd showed he was on contract on a call off system, when need arose, earning 2,500/- per day. The letter from IMS (PExb6) was contested as the appellant alleges it was not conclusive proof of employment.

8. Relying on authority, the appellant challenged the multiplier used by the trial court. He argued that the multiplier approach is only practical where factors such as amount of annual or monthly dependency are known. That in the absence of proof the court ought to have used the minimum wage of KShs 7,586 for 2011. On this, the appellant relied on the case of Mwanzia Ngalali Mutua and Kenya Bus Services Ltd Msa & another as quoted in Chege Kamau & another vs James Theuri Wachira (suing as the administrator and or personal representative of the estate of John Mwaniki Theuri (Deceased).

9. The appellant further submitted that courts have developed multiplicand guidelines taking into consideration vagaries of life. In Tobias Odoyo Oburu v Callen Kwamboka Okemwa & another suing as legal representative of Obed Okemwa Obwoge) (Deceased) [2018] Majanja J substituted the trial court’s multiplier of 20 years with 12 years where the deceased was 45 years. The appellants submit that a multiplier of 8 years would be reasonable considering the vicissitudes of life. He proposed a computation of KShs 7,586×12×8 × = 455,504. 00 to substitute the Kshs 3,600,000/- for loss of expectation of life.

10. On liability the respondent submitted that PW3 CPL Mose Aduour stated that the accident report the report was a matter pending investigation. The Respondent contends that PW3’s testimony stated that the report was not clear who made it as details of the person reporting were not taken. As for PW2 and PW4, they gave eye witness accounts as to how the accident happened as both were in the vehicle from which the deceased was alighting from and clearly saw what transpired.

11. The Respondent further contends that PW3 CPL Mose Aduor and DW1 PC Ebrahim Nzwili as per the record of appeal on page 51 and 58 respectively cannot tell who was to blame as they were neither the investigating officers nor based at Kasarani Police station at the material time, and that further investigations were not complete. As such that they cannot be said to contradict PW2 and PW4’s testimonies.

12. The respondent contends that the testimony of the two officers are only helpful in so far as they give particulars of and confirm the occurrence of the incident as of the accident. He noted that the claims in the Police Report that the deceased was hit while crossing the road does not state either the point of impact or where the deceased landed on impact; and the lack of a sketch plan of the accident scene was highlighted during trial

13. The respondent contends that the circumstances in Ali Malik bothers Motors (K) Ltd & Another v Emmanuel Oduor Onyango[2018] eKLR do not apply to the instant case as the parties therein blamed each other while in the instant case the court is dealing with two eyewitness accounts as against the two officers who neither investigated the matter nor visited the scene.

14. The Respondent further contends that the eyewitness testimonies of PW2 and PW4 were not countered and that trial court had only their versions of the eyewitness testimony to guide it on how the accident occurred. Citing the judgment in China Road and Bridge Corporation (Kenya) vs John Mburu HCCA No.2020 (Kajiado) they urged the court to be guided by the approach in that case. The respondent urged that no good ground has been submitted by the Appellant.

15. On Quantum the respondent submitted that the deceased was employed by IMS Ltd on a contract basis earning a daily wage of Kshs 2500/-. The respondent asserts that the deceased’s letter of employment was produced as PExb 6 without objection or challenge. She further had submitted for KShs 35,000/- per month and the learned magistrate applied Kshs 30,000/- which worked out to three working days a week at KShs 2500 per day. The Respondent pointed out that the deceased had worked for the appellant for three years before his demise.

16. The Respondent points to the divergent figures of KShs 8,000/- for the multiplicand and a multiplier of ten years while the same has been changed to KShs 7,568/- for the multiplicand and 8 years for the multiplier and argues that the appellant is being fastidious and wasting the court’s time

17. The Respondent argues that the deceased was a trained technician as proven by the documents produced at trial including an artisan grade 1 certificate. Thus, she argued, the erroneous figure submitted by the Appellant under the Regulation of Wages (General) (Amendment) Order 2011 is inapplicable since the earnings of the deceased were well proven by the letter of employment. Had it been unproven then the deceased would be entitled to the artisan grade 1 group of Kshs 17,118/-.

Issues for Determination. 18. Having carefully heard and considered the material before the court and the parties’ representations, I consider the issues for determination to be as follows:1. Which party was to blame for the accident?2. Whether the deceased an employee of IMS Limited within the meaning of the law3. Whether the damages awarded were properly arrived at and computed

Whether the deceased was an employee of IMS Ltd 19. Having carefully perused the record of appeal and the lower court file, I have seen that there was a letter produced as PExb 6 showing the deceased was an employee of IMIS Limited on a call off system, meaning he was contracted when need arose. It shows his payment rate was 2500/- net per day. The plaintiff’s testimony was that the deceased worked four days a week. In cross examination, this employment was confirmed by PW1 as permanent for an average of four days per week.

20. In their submission in the lower court the appellant stated that the plaintiff did not produce a letter of employment and that the salary was contested. However, I see no basis for the challenge by the appellant to the plaintiff’s letter produced as PExb 6, and find that the trial court could properly rely on it as evidence of the deceased’s earnings. This point is dealt with in more detail later.

21. The Employment Act provides for fixed-term contracts and indefinite contracts. Although the Employment Act does not have any specific provisions on fixed-term contracts, section 10 (3) (c) provides that where the employment is not intended to be for an indefinite period, the period for which it is expected to continue or, if it is for a fixed term, the employment contract ought to indicate the date when it is to end. As shown at page 17 of the Supplemental record of appeal, the deceased was an employee engaged from January 10, 2009 to October 18, 2011. And having artisan qualifications.

22. It is trite that employment in Kenya is governed by the general law of contract, as much as by the principles of common law. Thus, employment is basically seen as an individual relationship negotiated by the employee and the employer according to their special needs. The Employment Act distinguishes between a ‘casual employee’ and an ‘employee’ by defining the latter as a person employed for wages or a salary, which includes an apprentice and indentured learner; the former refers to a person who is paid at the end of each day and who is not engaged for a longer period than 24 hours at a time. Therefore according to the record of appeal at page 17 the deceased was an employee.

On liability 23. The real question in contention here is whether the deceased was a pedestrian carelessly crossing the road as alleged by the appellant on the basis of the police reports by officers who were neither eyewitnesses nor investigating officers, or whether he was standing at a stage when he was knocked down. Investigations were incomplete. PW3, corporal Mose Adour stated that the reportee’s details were not taken.; that the report was not comprehensive; that PW3 did not visit the scene; that he could not tell whether the pedestrian was crossing or standing at the time of the accident.

24. On the other hand, PW2 and PW4 who were both eye witnesses and fare paying passengers in KBL418H, both attested that the deceased was standing at a stage shortly after alighting the vehicle they were in when he was hit from a direction opposite the flow of traffic by KBJ 070J which then made a U-turn and re-oriented itself to face flowing traffic. PW4 also confirmed in cross examination, that the area had a stage near Baptist Church; that Thika road was under construction and that matatus use the service road.

25. The mere fact the appellant did not call the driver of Motor Vehicle No KBQ 070J who allegedly hit the deceased, is curious at the very least. The driver could have given a perspective that would have better informed the court. The absence of the driver can only be said to be curious

26. There was no evidence to controvert the evidence of the eyewitnesses that the deceased was a passenger in the motor vehicle which was being driven by DW1’s driver. According to the eyewitnesses (PW2 and PW4) the deceased was standing at a stage shortly after alighting the vehicle they were in when he was hit from a direction opposite the flow of traffic by the defendant’s vehicle KBJ 070J which then made a U-turn and re-oriented itself to face flowing traffic

27. In assessing liability, the court considers causation and blameworthiness. This was held by the Court of Appeal inIsabella Wanjiku Karanja v Washington Malele [1983] KLR where it was stated:“There are two elements in the assessment of liability, namely causation and blameworthiness. See Baker v Willoughby// [1970] AC 467. In my opinion there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. I would not disagree with the learned judge’s finding that the appellant’s speed was excessive in the circumstances, but the failure to keep a proper look out would seem to be the predominant factor.”

28. There is no evidence to link the deceased to either causation or blameworthiness. On the other hand there is evidence to link the defendant’s vehicle with both causation and blameworthiness.

29. In particular, the evidence of PW2. Francis Muchiru Nganga, an eyewitness and fare paying passenger in the motor vehicle KBL 418H testified that the deceased stood at the junction to cross over the service lane when Motor vehicle KBQ 040J emerged from direction of town and hit the deceased, drove on for 250 meters, emptied its passengers and re-oriented itself like it was travelling towards town.

30. Ultimately, like the trial court, I am inclined to accept the evidence of the eyewitnesses as more reliable, over the doubtful, ambivalent and speculative evidence of the police officer based as it was on incomplete investigations and absence of site visit or a sketch plan of the scene. These aspects were highlighted during trial.

Quantum 31. On quantum, the appellant did not challenge the awards for pain and suffering and loss of expectation of life. From the grounds of appeal and submissions, the challenge was on the award of Kshs 3,600,000/- for loss of dependency.

32. What therefore in contention is whether the letter from IMIS Ltd listed at page 17 of the Record of Appeal suffices as an employment contract or not. The evidence concerning the letter is at pages 44-47 of the ROA. The evidence is that the letter was an employment agreement. This was not debunked by the defendant. In his submissions before the trial court, he argued (pg 35 ROA):“The salary payable to the deceased was contested…the plaintiff did not produce a letter of employment. In the circumstances the plaintiff should have called a witness from the employer of the deceased…”

33. The appellant was entitled to challenge the admission of the letter of employment at the time of its production. He did not. He instead cross examined on it, and the result was that the information that the deceased was employed became all the more fortified. Thus, the appellant is not entitled at the appeal stage to now complain that the trial court was wrong in adopting the said letter as a basis for proof of earnings.

34. Submissions cannot replace evidence as was held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014]. In my view the trial court was entitled to rely on the letter as a contract of employment.

35. As for dependency period a dependency period of the deceased’s youngest child was 10 years as at the time the child was 9 years old.

36. The suit was brought under the Law Reform Act and the Fatal Accidents Act on behalf of the estate and dependants of the deceased. The dependants named were PW1, wife to the deceased and two children of the deceased and his parents. During the hearing, the respondent testified that the deceased used to give them Kshs. 10,000. In the witness statement filed with the plaint, she stated that the deceased used two-thirds of his income to support them. Dependency is a fact that should be proved by evidence. The respondent produced the birth certificates of the two children.

37. The appeal ground was that the trial magistrate awarded a multiplier amount of Kshs 30,000/-. In submissions, the appellant challenged the multiplier of 30 years in calculating the dependency as follows: 30,000 x 15 x 12 x 2/3. The appellant argues that the formula should have been based on a basic salary of 8000/- as follows 8000 x 12 x 10 x 2/3. I have already pointed out that the employment letter cannot be disregarded at appeal stage when it was not challenged at trial. It stands as evidence.

38. On this issue of the multiplier, the following authorities are apt: In Irene Kagandi & Mary Wanda Kaganda v W. Tiltrey Muthaiga Ltd – 1st defendant and Walter Juma – 2nd defendant, the learned Judge apportioned the aspect of loss of expectation of life and dependency for a 49 year old deceased person by adopting a multiplier of 11 years to calculate damages under this head. InJoseph Katuga Gathii v World Vision Kenya & others2010 eKLR the court permitted a multiplier of 8 years to determine the loss of earnings of the deceased who died aged 57 years. In Florence Gathee Miano v Mary Boniface & Jackson Wambua & another 2017 eKLR, the deceased died at the age of 57 and the trial magistrate admitted a multiplier of 10 years. On appeal, the High Court affirmed multiplier of 10 as applicable to the facts of the case

39. In this case the respondent proved the fact of death and dependency. The presumption in law is that deceased is taken to spend 1/3 of his income to himself while 2/3 is available as reserve for the dependents. The main provisions in the Fatal Accidents Act is to provide guidelines for compensation in the event of a wrongful death for the pecuniary losses of persons who were dependent on the deceased.

40. The uncontroverted evidence is that the deceased died aged 45 years. PW1 told the court that the deceased worked as a technician and earned 2,500 daily and would be engaged on average of 4 days weekly.

41. As regards loss of dependency, a husband with a family consisting of wife and children is, generally under the Fatal Accidents Act, taken to shoulder full responsibility for the family’s upkeep and maintenance, unless the contrary is shown by way of cogent evidence.

42. In arriving at the figure of Kshs 3,600,000 for loss of expectation of life and dependency the learned trial magistrate relied on the multiplier of 15 years and multiplicand of income per month of Kshs.30,000. It is a fact that the deceased was a technician. His Artisan Certificate from Thika Technical Training Institute, and National Trade Test Certificate Grade 1 were exhibited as PExbs 5 and 4 respectively. It is more probable that the deceased would have remained in intermittent employment till age 60 which is the usual retirement age, even taking into account the vicissitudes of life.

43. The only other point I would make is that the trial court did not properly consider that the employment of the deceased was based on a contractual arrangement which, as per the contract itself would come to an end on October 18, 2011. Taking this into account, I think the trial court ought to have considered that there would naturally be periods when the deceased would not be in employment as his contract would terminate intermittently. I would be prepared to reduce the multiplier by that amount of time taking into account those periods when his contract would terminate rendering him jobless and he would have to look for new contracts. I would estimate that for a period of about two months every year of those 15 years he might not have a contract. That is 30 months or 2. 5 years. Thus 15 years minus 2. 5 years= 12. 5 years.

44. In this case, the calculation I would therefore make is 30,000 *12. 5*12* 2/3 = 3,000,000/- I would reduce the award for loss of dependency to that amount.

45. I am mindful of the context and essential test of the principles in the cases of Mbogo V Shah (1968) EA93 and Kemfro Africa Limited t/a Meru Express Services (1976) & Anor vs Lubia & Anor, No 2 [1987] KLR 30) where in the following is held:“I think it is well settled that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

46. All in all, I am not otherwise inclined to interfere with the trial court’s assessment of damages, except as herein stated.

Disposition 47. In conclusion, and given all the foregoing, I find and hold as follows:a.The appeal succeeds in part on the issue of loss of dependency only, and the award on that head will therefore be Kshs 3,000,000/-b.In all other respects the appeal is dismissed and the trial court’s decision affirmed

48. No orders as to costs.

49. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 14TH DAY OF JUNE, 2022. ____________________________R MWONGOJUDGEDelivered in the presence of:1. Nganga Kimondo for Appellant2. Mrs Macharia for Respondent3. Quinter Ogutu - Court Assistant