[2022] KEHC 3133 (KLR)

Ndatho v Kireu ((Suing as the Legal Representative of The Estate of Mark Murimi Marigu)) (Civil Appeal 7 of 2020) [2022] KEHC 3133 (KLR) (16 March 2022) (Judgment)

Neutral citation: [2022] KEHC 3133 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal 7 of 2020

LW Gitari, J

March 16, 2022

Between

Gerald Muthengi Ndatho

Appellant

and

Peter Marigu Kireu

Respondent

(Suing as the Legal Representative of The Estate of Mark Murimi Marigu)

(Being an appeal against the ruling of learned Magistrate P.N. Maina (S.P.M) at Marimanti in the Senior Principal Magistrate’s Court Civil Case No. 15 of 2019 delivered on 9th July, 2020. )

Judgment

Introduction 1. This is a first appeal against the judgment and decree of the Senior Resident Magistrate’s Court at Marimanti in CMCC No. 15 of 2019 (Marimanti) delivered on 9th July 2020.

2. The Respondent, as the administrator of the Estate of Mark Murimi Marigu (deceased), instituted a civil suit against the Appellant seeking to recover damages under the Fatal Accidents Act and Law Reform Act, arising out of fatal injuries suffered by the said Mark Murimi Marigu, (to be referred to as the deceased) following a road traffic accident that occurred on 29th September 2018.

3. As per the Plaint dated 29th May 2019, the deceased was riding motorcycle registration no. KMEB 253T along the Gatunga-Marimanti road on the material date when the Appellant or his authorized driver or servant allegedly drove, managed or controlled motor vehicle registration no. KAD 971F Toyota Pick-up causing it to lose control, leave its lawful lane and rum into the deceased’s motorcycle claiming his life.

4. The Appellant denied the claim in its entirety. Specifically, he denied being the registered owner of the motor vehicle registration number KAD 971F. He also denied the occurrence of the said accident. It was the Appellant’s contention that if indeed the said accident occurred, the same was wholly or substantially contributed by the negligence of the deceased.

5. After trial, the subordinate court apportioned liability at the ratio of 80:20 against the Appellant and awarded a global sum of Kshs. 1,700,000/= as general damages and Kshs. 35,000/= as special damages together with costs of the suit plus interests.

6. Aggrieved by the said decision, the Appellant has now instituted this appeal on grounds That:a.The learned Senior Resident Magistrate erred in law and fact in the manner he apportioned liability which was against the weight of evidence.b.The learned Senior Resident Magistrate exhibited open bias in favour of the Respondent by apportioning liability against the appellant in the ratio of 80% without any basis or proof and against the weight of evidence.c.The learned Senior Resident Magistrate erred in law and in fact by applying a multiplier of 2/3 which was unfounded and against the weight of evidence.d.The learned Senior Resident Magistrate applied wrong principles in the assessment of quantum payable to the Respondent and thus awarding sums that are inordinately high in the circumstances.

7. The Appellant thus prays for orders That:a.This appeal be allowed and the decision and judgment of the learned Senior Resident Magistrate in Marimanti CMCC No. 15 of 2019 be set aside.b.This honourable court be pleased to re-evaluate the evidence and make its own findings and judgment with regard to both liability and quantum.c.The Appellant be awarded the costs of the appeal and the costs of the suit in the trial court.

8. The appeal was canvassed by way of written submissions. The Appellant filed his written submissions on 7th April 2021 while the Respondent filed his submissions on 10th June 2021.

The Appellant’s Submissions 9. On liability, it was the Appellant’s submission that the liability apportioned by the trial court was against the weight of the evidence adduced at trial as the investigation officer testified that he did not know who was to blame for the accident as there were no independent witness to the accident.

10. It was further his submission that the trial court ought to have apportioned liability at the ratio of 50:50 given that the investigations into the incident could not reveal who was to blame for the accident. He relied on the case of Platinum Car Hire and Tours Limited v Samuel Arasa Nyamesa &another[2019] eKLR; Jeneby Mawira v Annwhiller Mwende Rugendo &another[2017] eKLR; and Rosemary Kaari Murithi v Benson Njeru Muthitu & 3others[2020] eKLR.

11. On the issue of quantum, the Appellant submitted that the damages awarded by the trial court were inordinately high. It was thus his submission that an award of Kshs. 800,000/= would be fair compensation in the circumstances. He relied on the case ofJohn Macharia Mwangi v Josphat Muriungi Muguongo & another (Suing as the legal representative of the estate of Christine Nkirote Muriungi (deceased))[2020] eKLR where the court awarded a global sum of Kshs. 1,000. 000/= for loss of dependency where the deceased was aged 31 years and survived by two school going children as well as supporting her father, and her income had not been proved.

The Respondent’s Submissions 12. It was the Respondent’s submission that the Appellant’s allegation that the deceased rider was to blame for the accident was an aforethought as he did not table any evidence to prove such an allegation. The Respondent further submitted that had the Appellant been on proper look out, he ought to have seen the subject motorcycle approaching, or at least ought to have heard it.

13. On quantum, the Respondent relied on the case of Kenya Red Cross v IDS (Suing as the legal representative of the estate of MDR (Deceased))[2020] eKLRwhere the High Court upheld the award of a global sum of Kshs. 1,300,000/= for a 13 year old student. The Respondent thus submitted that the award by the trial court was reasonable and not exorbitant.

Issues for Determination 14. This appeal is both on liability and quantum. In my view, the two main issues for determination by this court are:i.Whether the liability apportioned by the trial court was against the weight of the evidence adduced; andii.Whether the damages awarded by the trial court were inordinately high in the circumstances.

Analysis of Issues 15. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that this court did not have the opportunity of seeing and hearing the witnesses firsthand. This duty was stated in the case of Selle & another v Associated Motor Boat Co Ltd & others (1968) EA 123 in the following terms:

“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif v Ali Mohamed Sholan(1955), 22 E.A.C.A. 270).” 16. This court is therefore under the duty to reconsider and re-evaluate the evidence on record and draw its own conclusions. In doing so, it is not open for this court, as the first appellate court, to review the findings of the trial court simply because it would have reached different results if it were hearing the matter for the first time. [See: Peters -vs- Sunday Post Limited [1958] E.A. 424; Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR]

17. Below therefore is an examination of the evidence tendered at trial with the aim of arriving at the most appropriate liability to be apportioned and the quantum to be awarded, if any, in the circumstances of this case.

A. On liability 18. It is not contested that a road traffic accident occurred on 29th September 2018 involving motor vehicle registration no. KAD 971F driven by the Appellant and motorcycle registration No. KMEB 253T which the deceased was riding. It is also not in dispute that the said motor vehicle and motorcycle were heading the same direction when they got into contact at the gate of Gatunga Catholic Church. The impact was on the right door of the said motor vehicle.

19. The Respondent alleged that the Appellant was at all times relevant to this case, the registered proprietor/owner of motor vehicle registration No. KAD 971F. While the Appellant denied ownership of the said motor vehicle in his statement of defence, he later admitted that it was his motor vehicle in his witness statement which he adopted as his evidence during trial. Hence the question of ownership of the subject motor vehicle is not in issue. The statement which is in the investigations report stated as follows:“I am the owner of the motor vehicle KAD 971 F which I bought in 2016. ”In civil proceedings, facts which are admitted do not require proof. See Section 61 of the Evidence Act. A party who admits facts in dispute is estopped from denying such facts. Section 24 of the Evidence Act provides:“Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”What the section is stating is that a person should always stand by what he has stated and made the other party to believe it as the truth with regard to the matter. The person who gave that word or deed to be acted upon cannot be seen to deny the truth of it. The doctrine of estoppel forms the basis to bind people to their words or deeds which are said or done and are believed as truth by the party who acts on the same thereby changing their positions or circumstances.Section 120 of the Evidence Act provides protection to the party who acted on the word of person who made the admission. The party may be prejudiced if the other party who has admitted that he owns the motor vehicle is allowed to deny that fact. I find that the appellant is estopped from denying that he owns the said motor vehicle.

20. During trial, the Respondent adopted his statement dated 29th May 2019 as his evidence. It was his testimony that the deceased was his son and that he had bought for him the subject motorcycle.

21. Neither the police abstract produced by the Respondent as P.Exhibit 2 nor the investigations report produced by the Appellant as P.Exhibit 4 gave an expert finding on who was to be blamed for the said accident.It is important at this stage to look at the pleadings on the subject of liability.PARTICULARS OF NEGLIGENCE ON THE PART OF THE DEFENDANT’S AUTHORIZED DRIVER, SERVANT, AGENT AND/OR EMPLOYEEa) Driving Motor Vehicle KAD 971E at an excessive and dangerous speed in the circumstances.b) Reckless driving the suit motor vehicle in total disregard on other Road users.c) Negligently failing to brake, slow down, swerve of otherwise control and said motor vehicle to avoid the accident.d) Negligently violating the Traffic Rules and the Highway Code of Conduct and causing the accident.e) Driving without due care, prudence, skill and competence of a driver.From the proceedings before the trial magistrate, it was stated that evidence of PW1 was transferred from court File No.23/2019 as per consent of the parties under CC 23/2019 See page 119 of the Record of Appeal where the trial court stated:-“Court:PW1- PW1- evidence transferred from Civil Case 23/2019 as per consent of the parties under Civil Case No.23/19. ”I have not come across the evidence of the said PW1- (whose name is not given) in the entire proceedings. The learned trial magistrate in his Judgment alluded to evidence given by Jotham Murithi which does not appear anywhere in the proceedings before him. I have also not come across his witness statement anywhere. This is a court of record and relies on the record of the trial court in a matter that comes before it on appeal. This court will therefore not rely on the evidence of PW1- simply because it is not captured in the record of the proceedings before the trial court. As such I have not had an opportunity to analyze it. As stated in the case of Selle and Another –v- Associated Motor Boat Co. Ltd (Supra), this court has a duty to reconsider the evidence and re-evaluate it itself and draw its own conclusion. In essence therefore this court is supposed to reconsider all the evidence including that of the said PW1 and make its own finding. As per the record of the trial court, the only evidence tendered is that of PW2 who was the deceased’s father and did not witness the accident. It is trite law that pleadings such as plaint, and defence are merely averments which in themselves are not evidence. The averments in the pleadings are supposed to be proved with evidence. Where the plaintiff fails to adduce evidence, no decision can be founded on the pleadings. In this appeal, though the parties and the trial magistrate have relied on the testimony of PW1 whose name is not stated in the Judgment of the learned trial magistrate, it is deemed that the witness did not testify in this matter. The law provides that for the evidence given in a different case to be used in another matter, it must be used in any of the following circumstances:1. The evidence must have been given in a suit which is in a series of cases arising from the same transaction and one file is identified as a test suit on liability.2. Where the cases are consolidated.In this appeal, this was not the case. It was therefore wrong for the parties to transfer the evidence of the said PW1 to the present suit. No directions were taken on how the evidence was to be transferred. It follows that the respondent did not tender any evidence to prove liability on the part of the appellant. In this regard I find that ground (a) of the appellant’s grounds of appeal is proved. The learned trial magistrate erred by apportioning the liability against the weight of the evidence.

22. The Appellant testified that the deceased was overtaking dangerously when he banged on the right door of the Appellant’s motor vehicle. On cross-examination, it was the Appellant’s testimony that he never saw the motorcycle approach. He only heard a bang and then braked. He then stated that he was not sure if the deceased was overtaking.

23. On the other hand considering that the appellant was turning right and his vehicle was hit on the right the most likely scenario is that the deceased was trying to overtake the Respondent’s vehicle.In the circumstances, it is my view that both the deceased and the Appellant failed to exercise the degree of skill and care reasonably expected of a person using a public road.The Traffic Act (Cap 403 Laws of Kenya) provides for the law relating to traffic on the road. Under Section 68 of the Act provides for the Highway Code. Section 68(3) of the Traffic Act provides:“(3) A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.”The Act further creates offences relating to the manner of driving the motor vehicles on the road. These are provided under Section 46, 47 and 49. These Sections requires motorists to drive with due care and attention. The appellant was turning to the right when the accident happened. The vehicles behind him were supposed to give him way. The motor cycle rider who was behind him while trying to overtake had an obligation to slow down. He was also supposed to keep distance. It is my view that the appellant was not the one who could bear the greatest responsibility for the accident as he had put indicators to turn right when the cyclists banged him on the right door. The law is trite as established by a line of authorities that where the court is unable to determine who is to blame for the accident, liability is apportioned equally. In the case of Platinum Car Hire Limited –v- Samuel Arasa Nyamesi andanother,Majaja J, H.C Kisii C.A 29/2016 quoted with approval the Court of Appeal decision in the case of Berkly Steward Limited v Waiyaki(1982-1988) KAR where it is cited with approval the decision in Baker-v-Market Harborough Industrial Co-operative Society Ltd (1953) 1 KLR 1472, 1476 where Lord Denning LJ observed inter-alia that-“Every day proof of collision is held to be sufficient to call on the dependants for an answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court had nothing by which to drawn any distinction between them.”Justice Majaja stated that where the court is unable to determine who is to blame it has apportioned liability equally as illustrated by the Court of Appeal in Hussein Omar Farar v Lento Agencies C.A Nairobi, Civil Appeal No.34/2005 (2006) eKLR where it observed that-“In our view it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”In the end he held that – “ I too come to the conclusion that following the collision, the appellant and the second respondent must share culpability in the absence of any other evidence exonerating one or either party.”In this case the finding by the investigating officer was that he did not know who to blame since there were no independent witnesses to the accidents. He further stated that he could not blame the appellant for the accident. It is my finding that apportionment of liability by the trial magistrate was not supported by the evidence. The collition was between the vehicle driven by the appellant and the motor cycle. They both bear the blame for the collition. They should both be held to blame for the collition. The apportionment of liability by the trial magistrate cannot be upheld. The deceased cyclist certainly bears more responsibility than 20% assessed by the trial magistrate. He does not seem to have done anything to avoid the collition and had carried three passengers which must have interfered with his control of the motor cycle when confronted with danger. He failed to give way to the appellant who had indicated that he was turning to the right.In the circumstances, I find that the learned trial magistrate erred in his finding on liability. I set aside the finding and hold that the appellant and the respondent were equally to blame for the collition.

B. On Quantum 24. It is trite that an award of general damages is an exercise of judicial discretion based on the evidence placed before a court. This court will therefore not interfere with the trial court’s discretion unless it is demonstrably shown that it was not based on any evidence or was exercised on the wrong principles. [See: Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another (supra)]

25. In dealing with an appeal on quantum, the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan[1982-88] KAR 5 held that:“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

26. This is a claim under the Fatal AccidentsAct cap 32, Laws of Kenya. The relevant heads that address the issue of quantum include: Pain and suffering; Loss of expectation of life; and Loss of dependency/lost years. The Appellant has only challenged the award under the head of loss of dependency as per ground no. 3 of the appeal by faulting the learned trial magistrate for using a multiplier of 2/3.

27. In assessing damages for loss of dependency, the court can either use the multiplier approach or the global sum format. In using the multiplier approach, the court is obligated to consider the multiplicand, the multiplier and the dependency ratio to arrive at the loss. The extent of dependency is a question of fact to be established in each case.

28. On the other hand, global awards have also been applied in numerous decisions. In Albert Odawa v. Gichimu Githenji [2007] eKLR, Koome J ( as she then was) quoted Ringera J in Mwanzia v. Ngalali Mutua v Kenya Bus Services (Msa) Ltd &another wherein he stated:-“The multiplier approach is just a method of assessing damages. It is not a principle of law or 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 age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency 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.”

29. From the evidence on record in this case, the deceased was a small business trader operating as a bodaboda rider. Although it was the Respondent’s evidence that the deceased used to support the family, there was however no evidence that was adduced to prove the deceased’s income, if any. In addition, it was the Respondent’s testimony that the deceased was not formally married and was living with him in the Respondent’s house.

30. Guided by the holding in Albert Odawa’s case (supra), it is thus my view that the global award approach adopted by the trial court was the best approach in this case as it could not ascertain the exact income that the deceased was earning.

31. It is trite that in resorting to using the lump sum approach of awarding damages, the court should be guided by the age of the deceased, the expected length of dependency and the estimated income. The award should not be so inordinately high or low as to be a wrong estimate of damages [See the persuasive case of Michael Rimiri M’ingetha & another v Zipporah Mukomua M’ituri [2020] eKLR.

32. In the case of Geoffrey Obiero &another v Kenya Power & Lighting Corporation Limited &another[2019] eKLR, the court awarded a global sum of Kshs. 1,200,000/= under the head of loss of dependency where the deceased was a 25-year old man and there was no evidence to show his income or the nature of work he used to undertake.

33. On the other hand, the trial court relied on the case of Moses Akumba and another v Hellen Karisa Thoya[2017] eKLR where a single 25 years old fisherman, was awarded Kshs. 1,600,000/- after the court estimated his monthly income at Kshs. 20,000/= and applied a reasonable multiplier of 20 years.

34. As held in the case of Mbogo &another v Shah [1965] E.A. 93 andButt v Khan [1977] eKLR, an appellate court will only interfere with the exercise of the discretion of the trial court in awarding damages where it is shown that the discretion was not properly exercised. Taking this principle in mind and applying them to the facts of this appeal, and the fact the global sum approach is the most appropriate approach in this case, I find that the award by the trial court was inordinately high and should thus be interfered with. In my view, an award of Kshs. 1,200,000/= is reasonable.

ConclusionIn the end this appeal succeeds and is allowed.I order that-1) On liability apportionment by the learned trial magistrate is set aside and substituted with an order that liability be shared equally on a 50:50 basis for loss of dependency.2) The award of Kshs.1. 600,000/- is set aside and substituted with an award of Kshs.1,200,000/-3) Costs to the appellant.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16 TH DAY OF MARCH 2022. L.W. GITARIJUDGE16/3/2022Mr. Kiogora for the AppellantMr. Kaimba for the RespondentJudgment read out in open court.L.W. GITARIJUDGE16/3/2022