[2020] KEHC 1365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 9 OF 2020

MURITU KINYANJUI..................................................APPELLANT

VERSUS

JANE MUTHONI NJIRU...................................1ST RESPONDENT

TITUS NJIRU.....................................................2ND RESPONDENT

JAMES KARIUKI WANJAU...........................3RD RESPONDENT

JUDGMENT

A. Introduction

1. The 1st and 2nd respondent instituted a suit against the appellant and the 3rd respondent herein in Embu CMCC No. 30 of 2011 claiming general damages both under the Law Reform Act and the Fatal Accident Act; special damages amongst other reliefs.

2. The crux of the suit was that the deceased (Noah Ndwiga Moses) was travelling as a fare paying passenger in motor vehicle registration number KAG 720J owned, driven and controlled by the appellant. That the said motor vehicle out of negligence on the part of the appellant collided with motor vehicle registration number KAP 016G driven by the 3rd respondent herein. The particulars of negligence on the part of the appellant and the 3rd respondent were itemized in the plaint.

3. The appellant herein entered appearance and filed his statement of defence and denied liability. He averred that if the alleged accident did occur, then the same was wholly caused by the and/or substantially contributed to by the negligence on the part of the 3rd Respondent herein.

4. The trial court vide the orders made on 2/12/2016 granted leave for the 3rd respondent to be served via substituted service. However, the 3rd respondent herein did not enter appearance and as such the suit proceeded ex-parte. The 1st respondent (PW1) produced birth certificates as prove of the fact that they had two children with the deceased. She called the Investigating Officer (PW2) who testified that he was not able to tell who was to blame for the accident and the vehicle the deceased was in at the time of the accident. PW3 who was an eye witness testified that the appellant’s motor vehicle (Datsun pickup) was joining the highway from a weather road at high speed and failed to give way to the Nissan which was on the highway and knocked it. The passengers in the Datsun Pickup were thrown out to the road and one of the victims was the deceased herein. She testified that she was able to know him as he was from his area. That the two vehicles collided and the matatu was hit on the driver’s side.

5. The Appellant (DW1) testified that the deceased was not a passenger in his motor vehicle and that at the time of the accident, he was driving along Embu – Kiritiri road heading towards Kiritiri. That he indicated that he wanted to join the right and the canter which was trailing him slowed down and he started turning but before he was through, he was hit by a Nissan matatu which was overtaking the said canter. That the impact forced his motor vehicle to fly and hit the pedestrians on the road and that the vehicle was hit from behind. He denied that the deceased was a passenger in his motor vehicle as he never used to carry fare paying passengers. He blamed the owner/driver of the matatu.

6. The trial court in its judgment found in favour of the 1st and 2nd respondents herein. It is this judgment which is subject of the instant appeal. The gravamen of the appeal is that the trial court erred on both liability and the assessment of general damages.

B. Submission by the parties

7. The appeal was canvassed by way of written submissions. In a nutshell, it was the appellant’s submissions that the evidence by the PW2 and PW3 in the trial court did not place any blame on the appellant herein. Further that, the appellant’s evidence which was not shaken by the plaintiff’s evidence was never considered by the trial court. As such, the trial court erred in apportioning liability at 50:50 and ought to have held the 3rd respondent 100% liable. Reliance was made on Embu HCCA No. 53 of 2010- Robert Muriithi Njeru –vs- Diocese of Embu Salesians of Don Bosco (2015) on the burden of proof on the balance of probabilities. The appellant further submitted that the trial court erred in applying the multiplier of 15 years and in doing so failed to consider the several vicissitudes and uncertainties of life that would have curtailed the deceased’ life before attaining the age of 64 years. Reliance was made on Edner Gesare Ogega –vs- Aiko Kebiba (suing as a father and a legal representative of the Estate of Alice Bochere Aiko (deceased) (2015) eKLR where the appellate court held that uncertainties of life and the changes in life expectancy ought to be considered. The appellant further submitted that the trial court erred in applying a multiplicand of Kshs. 20,000/- despite there being no evidence as to the amount the deceased was earning. The court was invited to adopt lump sum/global sum instead of delving into estimating incomes and professions. Reliance was made on John Wamae & 2 others –vs- Jane Kituku Nziva & another (2017) eKLR. It was submitted, therefore, that the award on loss of dependency ought to be discounted to a global sum of Kshs. 400,000/-.

8. The 1st and 2nd respondents filed joint submissions and submitted that the trial court was right in apportioning 50% of the liability to the appellant and that the court considered the evidence before it as to the negligence on the part of the appellant. Further that the multiplicand of Kshs. 20,000/- was reasonable in the circumstances as the deceased was a businessman earning a monthly income of Kshs. 30,000/- and who was in good health and his prospects of a long happy life was cut short by the accident. Reliance was made on Jacob Aviga Maruja & another –vs- Simeone Obayo Civil Appeal No. 107 of 2002 (2005) eKLR and Siyaram Enterprises & another –vs- Samuel Nyachani Nyachani (2015) eKLR on the ways of proving income. The respondents further submitted that the trial court did not err in applying the multiplier of 15 years and reliance made on Joyce Wangechi Mbugua & another –vs- Herman Singh Mariwa & another (2006) eKLR, Benedita Wanjiku Kimani –vs- Changwon Cheboi & another (2013) eKLR andJane Kanaga Kaduyu –vs- Another (2014) eKLR. It was further submitted that the judgment by the trial court was well within the confines of the law and evidence tendered in court.

C. Issues for determination

9. This being the first appellate court, it is required to re-evaluate the evidence adduced in the trial court and arrive at an independent determination. While doing this, this court ought to be minded of the fact that unlike the trial court, it never took evidence first hand and never got opportunity to observe demeanor of the witnesses and should give due allowance in that respect. (See the case of Alfeen Mehdimohammed v Basil Feroz Mohamed & 223 Others [2016] eKLR and Abok James Odera t/a A.J Odera & Associates vJohn Patrick Machira t/a Machira & Co. Advocates [2013]eKLR). Further, this court ought not to ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. Reliance in that respect was made on Mwangi –vs-Wambugu (1984) KLR 453).

10. I have certainly read and evaluated the record and evidence adduced by the appellant. Further, I have considered the memorandum of appeal and the submissions and the authorities referred to by the parties herein.

11. It is not in dispute that there was an accident involving motor vehicles registration number KAP 016E and KAG 720J as a result of which the deceased herein died. The ownership of the said motor vehicles is not in dispute either. However, the appellant’s evidence before the trial court was that he was hit from behind by the 3rd respondent as a result of which his motor vehicle flew and hit the pedestrians on the road. He denied that the deceased was a passenger in his motor vehicle and further blamed the 3rd respondent for the accident. It is my opinion that from the said analysis, the issues which this court is invited to decide are; -

I.Who between the appellant and the 3rd respondent was to blame for the accident if at all, and if both were to blame, to what extent is each to blame.

II.Whether the trial court erred in awarding the general damages?

D. Determination of the issue

I. Whether the appellant or the 3rd respondent was liable for the accident which caused the death of the deceased herein

12. The suit before the trial court was founded on the tort of negligence and therefore the burden lay on the 1st and 2nd respondents to proof the elements of the tort of negligence to wit; duty of care owed to the deceased; the deceased duty has been breached, and that as a result of that breach the estate has suffered loss and damage. The Court of Appeal inEast Produce (K) Limited -vs- Christopher Astiado Osiro Civil Appeal No. 43 Of 2001held 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.

13. It is trite that a driver owes a duty of care to other road users. He is expected to take due care of the other road users while driving and ensure safety of other road users. So was the appellant herein (being the driver of one of the accident motor vehicles) in breach of this duty of care? Was the breach proved to the required standards?

14. The standard of prove required in civil cases is that of balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- 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.”

Denning J. in Miller Vs 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 loose, because the requisite standard will not have been attained.”

(See Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another (2015) eKLR).

15. As I have noted elsewhere in this judgment, PW1 and PW2 in the trial court gave evidence that they did not witness the accident. PW3 on her part (who witnessed the accident) testified that the appellant herein was joining the highway from a rough road and at high speed and he hit the Nissan. Further that as a result of the impact, the deceased was thrown out from the appellant’s vehicle. The appellant in his evidence denied that the deceased was a passenger in his vehicle and testified to the effect that he was hit by the 3rd Respondent’s vehicle as a result of which his vehicle flew and hit pedestrians. He further testified that he had indicated that he was entering to the right and that the 3rd respondent’s motor vehicle which hit him was overtaking a canter which was trailing him. In cross examination, he testified that he was hit from behind.

16. From the above evidence, it is clear that there are two versions of evidence as to what happened. Considering the evidence by the parties before the trial court, it is my view that the 1st and 2nd respondents’ evidence was more persuasive that the allegations they had pleaded in their case are more likely than not to be what took place. PW3 who was an eye witness testified that the appellant was entering the highway from the rough road and hit the Nissan at around the driver’s side. In my view, the appellant’s evidence was just but an afterthought which could not hold in the circumstances.

17. Even considering his version of evidence, the same points to negligence on the part of the appellant. If theappellant had applied the use of the side mirrors as he had alleged, he would have been able to see the 3rd Defendant’s Nissan coming. It is a practice that before a driver enters a junction, as the appellant claimed to have been doing, such a driver ought to indicate and before turning to enter, he should ensure that the road is clear. He ought to have taken sometime before he started turning to ensure that there was no vehicle overtaking from behind. That is what is expected of a prudent driver.

18. In my view, if he was patient enough and if he applied proper use of his side mirrors, the accident in issue would not have occurred. The appellant herein was negligent in failing to ensure that the way was clear before entering to the right. If the appellant was turning to enter a junction, the most probable area to be hit by an overtaking vehicle ought to be the right side and not the back. It is my considered view that the appellant did not prove the fact that he was hit from behind.

19. The 1st and 2nd respondents pleaded negligence on the part of the 3rd respondent. However, there was no evidence tendered in that regard.

20. I note that there was no evidence as to whether the deceased was a passenger in the appellant’s motor vehicle. The appellant testified that his motor vehicle flew and hit the pedestrians. It is my view that even if that were the case, the appellant was negligent in making the turn without ensuring that the road behind him was clear. In my view it is immaterial whether the deceased was a passenger in the appellant’s vehicle or a pedestrian. The fact is that he died as a result of the accident herein.

21. As I have opined above, the appellant blamed the 3rd respondent for the injuries caused to the deceased which led to his death by averring that the 3rd respondent hit his motor vehicle from behind causing it to fly and hit the pedestrians (including the deceased). The appellant did not produce the inspection report for his motor vehicle to prove where the vehicle was hit. In my view, the appellant never disproved the evidence by 1st and 2nd respondent’s witness (PW3) that he was entering the highway at a high speed.

22. The 1st and 2nd respondents sued both the appellant and the 3rd respondent for the accident which involved their motor vehicles KAG 720J and KAP 016G. In his defence, the appellant attributed negligence to the 3rd respondent and blamed him for the occurrence of the accident. Notwithstanding the 3rd respondent’s failure to file a defence, the appellant still had the burden of proving negligence against the 3rd respondent. See the case of Daniel Toroitich Arap Moi Vs Mwangi Stephen Muriithi & Another [2014] eKLR.

23. Taking the two versions on how the accident occurred, it is more probable that the appellant hit the matatu from the side hence causing the death of the deceased herein. It is my view that the appellant did not discharge his evidential burden of proof as provided for under sections 109 and 112 of the Evidence Act. In Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:

“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

24. The appellant did not prove negligence on the part of the 3rd respondent herein. As such the trial court erred in apportioning 50% of blame on the 3rd defendant. There was no evidence to warrant such apportionment. In my view, the appellant ought to be held 100% liable.

II.Whether the trial court erred in awarding the general damages

25. It’s trite that award of damages by the trial court cannot be disturbed on appeal unless the appellate court is satisfied that either that the trial court, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (See Gitobu Imanyara & 2 others v Attorney-General[2016] eKLR and Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs. AM Lubia and Olive Lubia(1982 –88) 1 KAR 727 at p. 730).Further, assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. (See Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55).

26. It was submitted on behalf of the appellant that the trial court erred in applying the multiplier of 15 years and in doing so failed to consider the several vicissitudes and uncertainties of life that would have curtailed the deceased’ life before he could attain the age of 64 years. The appellant further submitted that the trial court erred in applying a multiplicand of Kshs. 20,000/- despite there being no evidence as to the amount the deceased earned. The appellant proposed that the general damages awardable ought to be global sum of Kshs. 400,000/-. The 1st and 2nd respondents on their part submitted that the trial court was right in apportioning 50% of the liability to the appellant and that the court considered the evidence before it as to the negligence on the part of the appellant. Further that the multiplicand of Kshs. 20,000/- was reasonable in the circumstances as the deceased was a businessman earning a monthly income of Kshs. 30,000/- and who was in good health and prospects of a long and happy life was cut short by the accident. Further that the trial court did not err in applying the multiplier of 15 years.

27. It is clear that the appellant in this regard challenged the award of damages for loss of dependency as was awarded by the trial court. The question which arises from the above submissions is whether the trial court was right in its award for loss of dependency?

28. The applicable principles in making an award for loss of dependency under the Fatal Accident Act were well stated in the case of In Ezekiel Barng’entuny –vs-Beatrice Thairu HCC No. 1638 of 1988where Justice Ringera (as he then was) held thus; -

“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased. The expectation of life and dependency of the dependents’ and the chances of life of the deceased and the dependents. The sum thus arrived at must then be discounted to allow the legitimate consideration such as the fact that the award is being received in a lump sum and award if wisely invested yield returns of an income nature.”

29. PW1 testified that the deceased was working as printers’ repairer. However, in cross examination, she was not able to provide such evidence of such earnings. It is trite that evidence as to earnings must be proved with evidence. Where there is no such evidence, the court ought to apply the minimum wages applicable at the time of death as long as it can be proved that the deceased was earning some income.

30. As the court held in Jacob Ayiga Maruja & Ano. V Simeane Obayo, Civil Appeal no.107 of 2002 [2005] eKLR, requiring that the only way to prove earnings should be by way of production of documents would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various way. That, it is not only documentary evidence which can prove these things.

31. However, in my view, mere statement that a person was earning a certain amount without any corroborative evidence cannot stand. In the instant case, it is my view that the trial court erred in applying Kshs. 20,000/- as multiplicand whereas there was no justification in support of the same. The trial court ought to have applied the amount as provided in the minimum wages.

32. It is not in dispute that the deceased died in March 2007 and as such, the applicable minimum wages ought to be that provided in the Regulation of Wages (General) (Amendment) Order, 2006 which came into operation on 1/05/2006. It is not disputed that the deceased was a printers’ repairer. That in my view is an artisan and can be classified as Artisan Grade I. He died within Embu Municipality. As such, the minimum wages applicable in this respect is Kshs. 11,031/-. The discretion of the trial court in making the above award ought to be interfered with as it is clear that the trial court did take into account an irrelevant factor and further left out of account a relevant one.

33. As to the multiplier, the appellant submitted that the trial court did not consider the several vicissitudes and uncertainties of life that would have curtailed the deceased’ life before he got to 64 years. The respondent invited this court to disregard the said submissions and find that the same was proper. I have perused the trial court’s judgment and in my view, the court rendered itself conclusively and precisely on the issue of the multiplier. The court applied the right legal principles in coming up with the said number of years and considered that the deceased was not in a formal employment where he was to retire at 60 years. The said multiplier ought not to be interfered with. As for dependency ratio and special damages, there was no ground of appeal in that regard.

34. Taking into consideration all the above, the trial court erred in awarding the general damages for loss of dependency and in doing so, it applied the wrong amount as multiplicand. Applying the right amount, which is Kshs 11,031/-, then the right amount under that head ought to be Kshs. 1,058,976/- calculated as follows: - Kshs. 11,031 x 15 x12 x2/3.

35. In the end, the appeal partly succeeds on the issue of quantum of damages. The appellant shall get half of the costs of the appeal.

36. It is so ordered.

Delivered, dated and signed at Embu this 2nd day of December, 2020.

L. NJUGUNA

JUDGE

…………………………………......……....for the Appellant

……………………………………………..for the Respondents