[2022] KEHC 9776 (KLR)

Musila & another v Nyakundi & another (Civil Appeal E91 of 2021) [2022] KEHC 9776 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9776 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E91 of 2021

RB Ngetich, J

July 14, 2022

Between

Annastacia Kanini Musila

1st Appellant

Peter Mulwa Musila (Suing as legal representative of the Estate of George Musila Mulwa) (Deceased)

2nd Appellant

and

Fredrick Nyarangi Nyakundi

1st Respondent

Jackson Muteti Syengo

2nd Respondent

(Being an appeal from the judgment of Honourable Senior Resident Magistrate, M. Wanjala (SRM) delivered at Thika Chief Magisrates Court Civil Suit no. 497 of 2018 delivered on 6 th May 2018)

Judgment

1. This appeal arises from a suit filed by the appellants/plaintiff in the trial court in his capacity as legal representatives of the Estate of George Musila Mulwa following an accident which occurred on the 1st day of August, 2017 along Thika Garissa road between motorcycle KMDL 080D driven by the deceased and motor vehicles KCE518P and KTF 181. As a result the deceased sustained fatal injuries. The appellants blamed the respondents for the accidents.

2. On May 6, 2021the trial court made the following findings:-a.The suit against Spring Board Capital Limited was withdrawn by consent.b.The suit against the 2nd respondent was dismissed with costs.c.Awarded liability in the ratio of 50:50 between the appellant and the 1st respondent.d.Awarded the appellant general damages for pain and suffering Kshs. 100,000/=, Loss of expectation of life Kshs. 80,000/=, Loss of dependency Kshs. 868,608/= and Special damages Kshs.25,865/=.e.Awarded costs of the suit to the appellants and interest.

3. Aggrieved by the said judgment, the appellants filed a Memorandum of Appeal on May 25, 2021 citing the following seven (7) grounds:a.That the learned trial Magistrate erred in law and in fact in failing to find the deceased was 50% liable for the accident when he did not contribute to causing the accident.b.That the learned trial Magistrate erred in law and in fact by finding that both the 1st respondent and the 2nd respondent were jointly liable for the accident.c.That the learned trial Magistrate erred in law and in fact in making an award of Kshs. 25,865/= as special damages instead of Kshs. 111,865/= which expenses were properly pleaded and proved.d.That the learned trial Magistrate erred in law and in fact in finding that the appellant did not prove visible receipts from AIC Kijabe Hospital when the original receipts were visible and had the hospital’s official stamp.e.That the learned trial Magistrate erred in making an award of general damages under the Law Reform Act and Fatal Accidents that was manifestly low in the circumstances.f.That the learned trial Magistrate erred in law and in fact by ignoring the appellant’s submissions in his judgment without proper reasons to do so.g.That the learned trial Magistrate erred in law and in fact in concluding that he did contrary to the evidence on record.

4. On September 22, 2021 directions were taken for the appeal to be disposed of by way of written submissions, with which parties have complied.

The Appellant’s Case 5. From the evidence adduced, the deceased was a businessman aged 60 years and earning a monthly salary of Kshs. 35,000/=. He was married and survived by six (6) chidren and a wife all of whom depended on him.

6. In the plaint, the appellants prayed for special damages of Kshs. 121,865/= general damages, costs and interests.

7. At the hearing the appellants called one witness PW1, Anastacia Kanini testified she filed the case on behalf of the estate of her late husband. She adopted her witness statement dated June 19, 2018 filed on June 20, 2018. The witness was stood down and the court directed the appellants to file a comprehensive witness statement, the statement was filed on October 19, 2020.

8. On November 17, 2020, PW1 was recalled, she testified the deceased was engaged in the business of sharpening knives and earned a monthly salary of Kshs. 35,000/= but she did not adduce any evidence on the same. She did not also adduce any evidence on whether the deceased had a licence for driving the motorcycle. She states the accident was occasioned by the lorry, though she confirmed she was not at the scene.

Respondent’s Case 9. Spring Board Capital Limited filed its response on 14th September 2018 denying the averments of the plaint. In the statement of defence stated that the motor Vehicle KCE518P has collateral for a loan secured by the 1st Respondent and thus it did not confirm joint ownership as the 1st Respondent was servicing the loan and applied through a notice of motion application filed on September 20, 2018 to have the suit against it struck out.

10. The 1st Respondent in a response filed the memorandum of appearance together with the statement of defence on August 22, 2018 in which he denied the averments of the plaint. He denied the occurrence of the accident and submitted if the same happened, it was contributed by the negligence of the driver of Motor cycle KMDL080D and the driver of motor vehicle KTF 181.

11. In response, the 3rd Respondent filed a memorandum of appearance together with a statement of defence on November 15, 2019, in which he denied the allegations in the plaint. He denied the occurrence of the accident and the particulars of negligence, he states if the accident ever occurred the same was caused by the sole negligence of the deceased while riding Motor Cycle KMDL 080D and the driver of Motor Vehicle KCE 518P.

12. The trial court adopted the consent to strike out the suit against Spring Board Capital Limited on April 1, 2019.

13. In defence DW1 Jackson Muteti stated that he was not at the scene but he was informed of the accident.

14. DW2 Duncan Irungu the driver of Isuzu Lorry KDF181 testified the driver of motor vehicle KCE 518P branched without indicating while the motorcycle rammed into the Saloon Car throwing off the motorcyclist and hitting the hind wheels of the lorry. He blamed the driver of KCE 518P for not giving way to the Motorcyclist.

Appellants Submissions 15. Counsel filed submissions on October 26, 2021 and submitted that evidence of DW2 corroborated the evidence of PW2 and from the evidence on record, the motor vehicle KCE is to blame for the accident thus the deceased should not be apportioned 50% liability;that the driver of the motor vehicle KCE 518P should bear the greater responsibility as he failed to keep a proper lookout before taking a turn. It was submitted the 1st Respondent should be 80%liable.

16. The appellant’s advocate further submitted that the 2nd Respondent failed to keep proper distance to enable him to brake when he saw the accident.

17. That the appellants satisfied the legal burden of proof and proved their case on a balance of probabilities as provided under Section 107 (1), 109 and 112 of the Evidence Act and urged this court to find the deceased was not 50% liable for the accident.

18. Counsel submitted that the copies of receipts submitted were not illegible but the original receipts adduced at the hearing were legible and submitted that it is unjust for the appellants not to be awarded the special damages when it is evident the deceased was treated at Kijabe Hospital and died in the same facility. Counsel urged court to find the trial court erred in awarding special damages of Kshs. 25,865/= in place of Kshs. 111,865/= as pleaded.

19. Counsel further submitted that the award of Kshs. 868,608/= as damages for loss of dependency was very low and urged the court to interfere and adopt a multiplier of ten (10) years as the deceased died aged 60 years and cited the case of Abson Motors & 2 others v Sinema Kitsao & nor Administrators of the estate of the late Kitsao Kajefwa Kitungu[2016] eKLR where the deceased was a herbalist and died at the age of 85 years the court gave a multiplier of five (5) years.

20. And in Sokoro Plywood Ltd & another v Njenga Wainaina [2007] eKLR where the deceased died at the age of 60 years and the court applied a multiplier of ten (10) years, counsel submitted that the deceased had a wife and six (6) children who depended on him and urged the court not to disturb the ratio of 2/3 ratio applied by the trial court.

21. Counsel further submitted that the deceased earned a salary of Kshs. 35,000/= but in the absence of proof, the court was urged to use the appropriate Regulation of Wages Amendment Order 2018 under Legal Notice No. 2 and adopt the minimum wage of ungraded Artisan Kshs. 18,319. 50 per month and urged this court to grade the deceased as an ungraded Artisan and prayed for damages of Kshs. 1,465,560/= under the fatal accident act.

22. Counsel for the appellant urged this court to interfere with the trial court award of damages of Kshs 100,000/= under pain and suffering and Kshs. 80,000/= for loss of expectation of life and in the alternative award Kshs.. 200,000/= and Kshs.150,000/= respectively and submitted that the deceased was in good health despite his age and that he endured pain and suffering as he died a day after the accident; and cited the case of Moses Akumba & another v Hellen Karisa Thoya [2017] eKLR where the court upheld the decision of the trial court and decided that the award of Kshs. 200,000/= for loss of expectation of life was fair and not inordinately high and Mwita Nyamohanga & another v Mary Robi Moherai suing on behalf of Agnes Boke Mwita & another Migori Civil Appeal No 3 of 2014 [2015] eKLR where the deceased died aged 50 years and the court awarded Kshs. 100,000/= for pain and suffering.

1St Respondent’s Submissions 23. The 1st respondent filed written submissions on 23rd November 2021 and submitted that the appellants have failed to prove the 1st Respondent's liability; that the deceased was the author of his own misfortune and cannot use the court system to unjustly enrich themselves. 1st respondent submitted that the deceased failed to take precautions for his own safety by riding at an excessive speed, overtaking carelessly, riding a defective motorcycle and riding without a driving license while overlapping and urged this court not to interfere with the trial court's judgment.

24. Counsel further submitted that all road users must keep a proper look-out. The statement by the 1st Respondent blamed the deceased for failing to keep a proper lookout to avoid the deceased from hitting the 1st Respondent’s vehicle.

25. Further the appellants failed to prove negligence on the part of the 1st Respondent;that the evidence of PW1, PW2 and DW1 did not prove negligence on the part of the 1st Respondent and urged the court to find that blame lies on the deceased and the 2nd Respondent.

26. Further the evidential burden of proving liability did not shift to the Respondents and urged the court to dismiss the 1st Respondents.

27. Counsel submits the appellants proved only under special damages out Kshs. 111,865/= pleaded and cited the case of Hahn v Singh Civil Appeal No 42 of 1983 [1985] KLR 716 where the court proved that special damages must not only be specifically claimed (pleaded) but also strictly proved…. For they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.

28. On award under pain and suffering, counsel urged the court to award Kshs. 10,000/= and relied on the case of New Kenya Co-operative Creameries Ltd (formerly) Kenya Co-operative Creameries & another v Chebusit Arap Langat [2013] eKLR where the court awarded Kshs. 10,000/= where the deceased died on the same day.

29. On award under loss of dependency,counsel for the respondent submitted that it was not proved as dependant's list adduced in court proves the last born was 27 years while the oldest was 39 years and no documents were availed to show that they were maintained by the deceased before his demise and urged the court to interfere with the ratio 2/3 and instead replace it with 1/3. The respondent cited the case of Chania Shuttle v Mary Mumbi [2017] eKLR where the court found the trial court applied a wrong principle in awarding a dependency ratio of 2/3 and replaced the dependency ratio with 1/3 where all the children were adults who failed to prove on the deceased.

30. The 1st Respondnet urged this court to use a multiplier of five (5) years considering the uncertainties and vicissitudes of lifeon income. The 1st respondent urged the court to be guided by the minimum wage guidelines by the government and adopt the deceased income as Kshs. 6,415. 55/= as per the gazette notice of July 4, 2017, deduct the award given under the Law Reform Act from the award given under the Fatal Accidents Act, and proceed to award Kshs. 128, 211/= for loss of dependancy as follows 6,415. 55x12x5x1/3;and award the appellants to be awarded total damages of Kshs. 138,211/=

2Nd Respondent’s Submissions 31. The 2nd Respondent filed on February 18, 2022 submitting on liability and quantum of damages.

32. On liability, counsel submitted that the respondents were to blame for the accident as DW2 the only eyewitness testified the deceased rammed on motor vehicle KCE and the motorcyclist were thrown onto the truck. It submitted there was no evidence adduced that established negligence on the 2nd Respondent. The appellant failed to prove negligence particularized in the plaint on the 2nd Respondent and cited the case of Eastern Produce (K) Limited v Christopher Atiado Osiro [2006] eKLR.“it is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position is well laid down in the case of Kiema Mutuku v Kenya Cargo Hualing Services Ltd [1991] 2 KAR 258 where it was held that there is as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

33. The 2nd respondent urged the court to uphold the decision of the trial court and find the deceased and the 1st Respondent were to blame for the accident.

34. On issue for pain and suffering, counsel contends the same was not listed in the Memorandum of Appeal but the deceased had died a day after the accident and an award of Kshs. 50,000/= is sufficient.

35. Under Loss of dependency/lost years, counsel submitted that it amounts to double compensation when the court awards damages for loss of years and loss of dependency if the benefit goes to the same person. According to counsel, the appellants failed to prove dependency by the listed beneficiaries as required by law and the appellants are only entitled to the claim for lost years being a claim that was proved.

36. The 2nd Respondent urged to uphold a multiplier of eight 8 years as the deceased died aged 60 years and cited the case of JosephKahiga Gathii & Anor vs World vision Kenya & 2 others [2014] eKLR in which the deceased died aged 56 years and the court adopted a multiplier of eight (8) years.

37. On multiplicand the 2nd respondent urged minimum wage of Kshs 13,572/= as a general labourer as the income of the deceased was not known and uphold award of Kshs. 868,608/= by the trial court.

38. On special damages the 2nd respondent urged court to award special damges specifically proved and receipt is to be admitted to have the adhesive revenue stamp.

39. In conclusion, the 2nd respondent urged this court to uphold the trial court's judgement and dismiss the appeal with costs to the 2nd Respondent.

Analysis And Determination 40. This being the first appeal, I am obligated to re-evaluate the evidence of the trial court and come up with my own conclusion. I am however minded of the fact that unlike the trial court, I did not have the chance to hear witnesses and observe their demeanor, for this I give due allowance. This position was held in the case of Selle & another v Associated Motor Board Company Ltd. [1968] EA 123, where the court held as follows:-“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this 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..."

41. I have, perused trial court, considered grounds of appeal and the submissions filed by counsel for both parties. I consider the following as issues for determination:-1. Who is to blame for the accident and to what extent.2. Whther damages awarded should be interfered with.

(i) Who is to blame for the accident to what extent__ 42. It is not disputed that the accident involved a motor vehicle KCE 518P, a Toyota Premio and make Isuzu TX and a motorcycle KMDL 080D.The deceased was a motorider. There is no doubt that the beceased and both respondents had a duty of exercising diligence while using the road; a duty to look out for other road users and to control the motorcycle and the two vehicles while on the road.

43. Evidence adduced show that motor vehicle KCE 518P Toyota Premio was turning to the right towards Kisii junction from Makongeni side while the motorcycle was from Garissa direction. The motor rider rammed into the lorry KTF 181 and the motorcycle was thrown off and hit the body of the lorry.

44. PW2 Charles Mwadime produced the abstract in respect to which confirmed that the accident that occurred on 1st August 2017 involving motor vehicle KCE 518P, a Toyota Premio and KTF 181 make Isuzu TX and a Motorcycle KMDL 080D. He testified that motor vehicle KCE 518P was turning to the right towards Kisii junction from Makongeni side, the motorcycle from Garissa direction, rammed into the lorry and the motorcycle was thrown off and hit the body of the lorry.

45. In defence,the 1st respondent blamed the deceased who was riding Motor Cycle KMDL 080D while the 2nd respondent blamed Motor Cycle KMDL 080D and the driver of Motor Vehicle KCE 518P for the accident.

46. No independent eye witness testified. From the evidence adduced, the lorry KTF 181 make Isuzu TX was hit from behind by the motorcycle after collision with the 1st respondents vehicle lorry KTF 181 make Isuzu TX. No evidence is adduced that link the 2nd respondent vehicle to causing the accident.

47. On the other hand ,the 1st respondent’s vehicle KCE5818P Toyota Premio was blamed for taking a turn before checking the road to ensure it was safe to turn. In my view the driver of KCE5818P Toyota Premio was to blame to a greater extent for failing to ensure that the road was safe before turning. On the other hand the deceased would have been able to swerve and avoid the accident or reduced the impact if he was not driving at high speed. He has a portion of blame for the accident and in my view,he should shoulder 30% liability.

48. From the foregoing I am inclined to interfere with finding on liability and apportion liability in the ratio of 30:70 in favour of the appellant. The appellant to shoulder 30% liability and 1st respondent 70% liability.

(ii) Whether damages awarded should be interfered with 49. I wish to look at damages under each head

(a)Pain and Suffering 50. The appellant was awarded Kshs 100,000. They have urged this court to grant Kshs. 200,000/=. I note that the deceased died the same day and in my view an award of Kshs 100,000/= was sufficient in the circumstances.

(b) Loss of expectation of life 51. Kshs. 800,000/= was awarded by the trial court for loss of expectation of life. I have considered the age of the deceased being 60 years and looking at authorities, Kshs 80,000/= under that head is reasonable.

(c ) Loss of dependency 52. On the monthly wage applied, there is no doubt that the appellant failed to avail documents to support earnings of Kshs 35,000/=. The trial Court in adopting a multiplier of Kshs 13,572/= being the minimum wage figure. The appellants argue that the court should have adopted the minimum wage of ungraded Artisan Kshs. 18,319. 50 per month as per the Regulation of Wages Amendment Order 2018 under legal notice No. 2. I however note that there was no prove that the deceased was an Artisan and further the accident occurred on August 1, 2017 not year 2018. I will not therefore interfere with the multiplicand applied by the trial court.

53. On multiplier,the deceased died at the age of 60 years. The plaintiff testified the deceased was doing business though no documents were availed to that effect. There was no evidence adduced to the effect that the deceased was of ill health. However, taking into account the vicissitudes of life, the trial Magistrate used her discretion and adopted a multiplier of eight (8) years. I will not disturb the trial courts finding on the multiplier of eight (8) years.

54. On dependency ratio,there is no doubt a ratio of two thirds was applied by the court. It is not challenged in the appeal and I will not interfere.Thus 13,572/=x 8 x12 x 2/3=868,608/=

(d) Special damages 55. The appellant was expected to pray and prove for special damages. The special damages proved were Kshs 140 +550 +1175+24,000/= 25,865/=. Receipt for funeral expenses is listed as number six (6) in the plaintiff’s list of documents but it is not attached. There is no mention of the expenses in evidence adduced by the plaintiff in court. I will not therefore interfere with award by trial court under special damages.

Final Orders:- 56. 1Appeal partially succeeds. Liability apportioned at the ratio of 30:70 between the appellant and 1st respondent. Appellant to shoulder 30% liability and 1st respondent 70% liability.2. Damages awarded by trial court to contribution ratio of 30:70. 3.No orders as to costs of appeal.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 14TH DAY OF JULY, 2022. RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court AssistantMr. Odere holding brief for Mr. Nyamwaya for 1st respondentMs. Kinyaja for 2nd respondentMs. Wanga for appellant