[2024] KEHC 11890 (KLR)

Ngugi (Suing as the Legal Representative of the Estate of Wangui Ngugi (Deceased)) v DPL Festive Limited (Civil Appeal E293 of 2023) [2024] KEHC 11890 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11890 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E293 of 2023

TW Ouya, J

September 23, 2024

Between

Peter Ndonye Ngugi

Appellant

Suing as the Legal Representative of the Estate of Wangui Ngugi (Deceased)

and

DPL Festive Limited

Respondent

(Being an appeal against the judgement and decree of the Hon. Catherine Mburu (PM) delivered on 12th July, 2023 in Kikuyu SPMCC No. E037 OF 2020)

Judgment

Background 1. Peter Ndonye Ngugi, (hereinafter the Appellant), the Plaintiff before the lower Court, initiated Kikuyu SPMCC No E037 of 2020 (hereinafter lower Court suit), the Defendant before the law Court, by way of plaint on 2nd March, 2020 against DPL Festive Limited (hereinafter the Respondent) claiming General & Special Damages under Fatal Accident Act and the Law Reform Act and costs of the suit in respect of the Estate of the late Wangui Ngugi (hereinafter the Deceased). The claim arose from a road traffic accident that occurred on 2nd March, 2017 along Wangige Road at Kwa Magu when the Respondent’s driver, agent and or servant duly authorized to drive motor vehicle registration number KBW 725Y (hereinafter the suit motor vehicle) so negligently and or recklessly drove, managed and or controlled the suit motor vehicle that he caused it to violently ran into the Deceased. That as a result of the negligence of the Respondent’s driver, the Deceased was fatally injured and died soon after the accident.

2. The Respondent filed a statement of defence denying the key averments in the plaint and liability. It went on to aver in the alternative that if the purported accident occurred (which was denied), the same was wholly caused and or materially contributed to by the negligence of the Deceased.

3. The suit proceeded to full hearing, during which only the Appellant adduced evidence in support of the averments in his pleadings. In its judgment, the trial Court found that the Appellant had failed to prove his case on a balance of probabilities and thus proceeded to dismiss the suit with costs to the Respondent.

4. Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on multitudinous grounds in his memorandum of appeal as itemized hereunder: -i.That the learned magistrate erred in fact and in law in apportioning 100% liability to the Deceased who was lawfully crossing the road along Wangige Road at Kwa Magu, which finding was against the weight of the evidence on record.ii.The learned magistrate misdirected herself in finding that there was no supporting evidence as to how the accident occurred yet there was cogent evidence of causation from the police abstract and the police officer. Her finding that the Deceased was solely to blame for the accident and the author of her own misfortune, was based on no evidence hence arrived at a wrong decision in dismissing the Appellant’s suit against the Respondent.iii.The learned trial magistrate erred in law and in fact in failing to appreciate the evidence that was placed before her and in taking into account extraneous issues hence failed to award general damages for pain and suffering, loss of expectation of life and loss of dependency which decision was erroneous and against the evidence that was placed before her.iv.The learned magistrate erred in law and in fact in failing to follow the reasonability test expected of a reasonable person driving a motor vehicle on a highway.v.That the learned magistrate erred in law and in fact in failing to be guided by the law on fair apportionment of liability.vi.That the trial magistrate erred in fact and law by failing to award the Appellant general and special damages despite the Appellant having proved her case to the required standard.vii.The learned magistrate erred in fact and in law in failing to give due weight and relevance to the evidence of PW1 and PW2 and casually holding that the Deceased was fully to blame for the accident as she was crossing the road and hence to blame for the accident.viii.The learned magistrate erred in law and fact in failing to value the evidence of PW1, the police officer as independent in nature which evidence was clear that the Respondent’s driver of motor vehicle registration number KBW 725Y was to blame for the accident.ix.That the trial magistrate erred in law and in fact by wrongly evaluating the evidence on record more so PW1’s evidence as to the occurrence of the accident and therefore arrived at a wrong conclusion and judgment on liability.x.The learned magistrate erred in law and in fact in failing to appreciate that, it was not in dispute that the Deceased died as a result of the road accident, the occurrence of the accident and the involvement of motor vehicle registration number KBW 725Y was not challenged and disputed.xi.The learned magistrate misdirected herself in the appraisal of the evidence by failing to consider that the authenticity of the police abstract and death certificate, which documents proved that the Deceased died as a result of the said road accident, had not been rebutted.xii.The learned trial magistrate erred by failing to appreciate that the Appellant had proved his case on a balance of probabilities which was uncontroverted by the Respondent.xiii.That the learned magistrate erred in law and in fact in giving a lot of reliance to the Respondent’s submissions in the matter the accident might have happened which submission dwelt on presumption as opposed to evidence and facts on record.xiv.The learned magistrate erred in law and in fact by disregarding the Appellant’s testimony when the same was not rebutted by failure on the part of the Respondent to call a defence witness.xv.That the trial magistrate erred in fact and law by writing a judgment that is not only incomplete but also not based on proper evaluation and consideration of pleadings, evidence on record, submissions and applicable law and principles for award of damages.xvi.The learned magistrate erred in law and in fact to consider and or give due weight to the Appellant’s submissions on the issues for trial before the Court and in particular on the issues of liability and quantum of damages.xvii.That the learned Principal magistrate restricted herself and failed to look at the evidence in its entirety hence arrived at a wrong decision in dismissing the Appellant’s suit against the Respondent.xviii.The learned magistrate erred in law and in fact in failing to take into account principle in the doctrine of Res Ipsa Loquitor as pleaded by the Appellant.xix.The learned magistrate erred in law and in fact by being biased against the Appellant.xx.The learned magistrate erred in law and in fact in failing to appreciate that the Deceased person’s life was prematurely shortened and her children suffered loss and damage.” (sic)

5. In light of afore captioned itemized grounds of appeal, the Appellant seeks before this Court orders to the effect that: -a.This appeal be allowed and the lower Court’s judgment be set aside in its entirety.b.The decision of the trial magistrate dismissing the Appellant’s suit on liability be and is hereby set aside and substituted with the judgment finding and holding that the Respondent was liable for the accident at 100%.c.This honorable Court does award the Appellant and made an assessment on special damages, pain and suffering, loss of expectation and loss of dependency.d.This honorable Court does award costs and interest in the lower Court to the Appellant.e.This honorable Court does award costs in this appeal to the Appellant.” (sic)

6. Directions were taken on disposal of the appeal by way of written submissions. Submissions of which the Court has duly considered.

Submissions 7. On the part of the Appellant, addressing the Court on liability, counsel began by contending that the Respondent failed to challenge the Appellant’s case and or call evidence in rebuttal or in support of the averments in its statement of defence therefore the Appellant’s evidence was uncontroverted. It was further submitted that the trial Court erred in arriving at the conclusion that the accident occurred as a result of the Deceased crossing the road as such, she was the author of her own misfortune whereas there was no evidence from the Respondent to support the said conclusion. Counsel further assailed the trial Court’s decision by asserting that failure to call an eye witness to the accident was not fatal to the Appellant’s case in light of evidence in the police abstract that was enough to prove negligence on the part of the Respondent. The Court of Appeal decision in Rahab Micere Murage (suing as a representative of the estate of Esther Wakiini Murage) v Attorney General & 2 Others [2012] eKLR and the decision in Swan Carriers Ltd v Damaris Wambui (suing as the legal representative of the estate of the late Maritim Mwangi Ngirigasha) [2019] eKLR were called to aid in the foregoing regard.

8. On quantum of damages, counsel anchored her submissions on the decision in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 on when an appellate Court can interfere with the award of damages by a trial Court. Concerning special damages, while citing Halsbury’s Laws of England, 4th Ed. Vol. 17, the cases of Charles C. Sande v Kenya Co-operatives Creameries Ltd, Civil Appeal No. 154 of 1992, Rottger v Dusa & Another (suing on behalf of the estate of Wilson Baya Thoya) (Civil Appeal No. 063 of 2023) [2023] KEHC 26630 (KLR) and the Court of Appeal decision in Premier Dairy Ltd v Amarjit Singh Sagoo & Another [2013] eKLR, counsel urged the Court to award damages as pleaded and proved to the tune of Kshs. 20,750/-

9. With respect to the award under Law Reform Act, on pain and suffering, the Court was urged to award Kshs. 50,000/- as it was established during trial that the Deceased did not die immediately on accord of the fact that she passed on while undergoing treatment at St. Theresa Hospital. The decision in Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR was cited on the same. Concerning loss of expectation of life, counsel relied on the decisions in Acceler Global Logistics v Gladys Nsambu Waswa & Another [2020] eKLR and David Kaharuka Gitau & Another v Nancy Ann Wathithi Gitau & Another [2016] eKLR in urging an award of Kshs. 150,000/- under the said head. Under the Fatal Accident Act, on loss of dependency, it was submitted that the Court ought to apply the minimum wage of Kshs. 5,000/-, apply a multiplier of four (4) years in light of the Deceased’s advanced age and a dependency ratio of 2/3 given that the Deceased had dependants. The decisions in Paul Ouma v Rosemary Atieno Onyango & Another (suing as the legal representative in the estate of Joseph Onyango Amollo (deceased) [2018] eKLR, Beatrice W. Murage v Consumer Transport Ltd & Another [2014] eKLR and Phillip Musyoka Mutua v Veronica Mbula Mutiso [2013] eKLR were relied on respectively. In summation the Court was urged to award a total sum of Kshs.420,750/- in damages.

10. On the part of the Respondent, responding to the Appellant’s submission on liability, counsel anchored his submissions on the provisions on Section 107, 108 & 109 of the Evidence Act and the decision in Statpack Industries v James Mbithi Munyao [2005] eKLR to contend that onus was on the Appellant to establish a causal link between the Respondent’s negligence and the Deceased’s death of which he failed to do whereas the trial Court did not err in arriving at the finding it did on the issue. While calling to aid the decisions in Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR, Bwire v Wayo & Sailoki (Civil Appeal No. 032 of 2021) [2022] KEHC 7 (KLR), Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, Mary Wanjiru v Lucy Njeri Munyua & Another [2020] eKLR, M’mbula Charles Mwalimu v Coast Broadway Company Limited [2021] eKLR and Lakhamshi v Attorney Genral [1971] EA 118-120 counsel argued that the Appellant’s oral and documentary evidence failed to prove negligence as against the Respondent on a balance of probabilities on accord of the fact that there was no eye witness to the accident whereas failure on the part of the Respondent to call evidence did not lessen the Appellant’s burden of proof. Counsel thus urged the Court to sustain the trial Court’s finding on liability however in the alternative and without prejudice to his earlier submissions, if the Court were to apportion liability the same ought to be equally apportioned as between the parties.

11. On quantum of damages, counsel began by relying on the decision in Paul Ouma v Sarah Akinyi & Monica Achieng Were (suing as the legal representative in the Estate of Paul Otieno Were) (Deceased) [2018] eKLR to argue that if the Court were inclined to award damages the award made under the Law Reform Act ought to be deducted in full from the award made under the Fatal Accident Act as the Deceased’s estate ought not benefit twice from the claim. Submitting on the award under the Law Reform Act, on pain and suffering counsel called to aid the decision in Moses Koome Mithika & Another v Doreen Gatwiri & Another (suing as the legal representative and administrator of the estate of Phineas Muriithi (Deceased) [2020] eKLR in urging the Court to award Kshs. 10,000/- on accord on the fact the Deceased died shortly after the accident. On Loss of expectation of life, while citing the decision in Florence Awuor Owouth v Paul Jackton Ombayo [2020] eKLR an award of Kshs. 80,000/- was proposed as reasonable compensation under the head.

12. Submitting on the award under the Fatal Accident Act, counsel called to aid the decision in Samuel Mutitu Nderitu (suing on his own behalf and as the legal representative of the estate of Gladys Muringi Nderitu(Dceased) v Erastus Mutahi Mugambi [2021] eKLR to submit that dependency is a matter of fact of which the Appellant failed to proof therefore this Court ought uphold the trial Magistrate’s decision and summarily decline to award under the said head. On special damages, counsel relied on the decision in Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR to argue that it is trite law that special damages ought to be specifically pleaded and proved. That in light on the Appellant’s pleadings claiming a total of Kshs.15. 750/-, what was specifically proved was the sum of Kshs. 550/- that this Court ought to award. In conclusion, it was submitted that this should uphold the trial Court decision however if the alternative apportion liability and award damages as submitted.

Disposition and Determination 13. The Court has considered the record of appeal, the pleadings and original record of the proceedings. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate Court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123. Further, it is trite that an appellate Court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the Court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278.

14. That said, a revisit of the memorandum of appeal and submissions by the respective parties before this Court it is evident that the appeal turns on the twin issue of liability and awardable damages.

15. Pertinent to the determination of issues before this Court are the pleadings, which formed the basis of the parties’ respective cases before the trial Court. See; - Court of Appeal decision in Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91. This Court had earlier outlined the gist of the respective parties’ pleadings, as such it serves no purpose restating the same at this juncture. Further, having equally identified what the dispute before the trial Court granted on, the key question for determination is whether the trial Court’s findings on the issues falling for determination therein were well founded. To contextualize the latter, it would be apposite to quote in extenso the relevant facets of the impugned judgment. The trial Court after restating the evidence tendered before it addressed itself as follows concerning; -"….According to the Plaintiff the accident robbed off his mother who was a farmer aged 74 years at the time of the accident.He testified that he was not at the scene. He learnt of the accident from the area chief who called him on phone.There being no eye witness, the only credible evidence is that of PW1 PC Kiboi who stated that the deceased was crossing the road when the accident occurred.It therefore means that the deceased was the author of her misfortune. The Plaintiff hasn’t proven negligence on the part of the defendant.Effectively, the Plaintiff’s suit is dismissed for failure to prove liability.” (sic)

16. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. Whereas, it is well trodden that the same is on a balance of probabilities meaning that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. See Court of Appeal decision in Mumbi M'Nabea v David M.Wachira [2016] eKLR. Hence, the duty of proving the averments contained in the plaint lay squarely on the Appellant vice versa with respect to the averments contained in the Respondent’s statement of defence. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

17. Further, this Court has repeatedly observed that the mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd V. Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The Court in that case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated 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.”

18. In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

19. Before the trial Court, PC Kiboi Ibrahim - No. 88397, testified as PW1. Adducing the police abstract into evidence, the gist of his testimony was that on the date in question the suit motor vehicle was being driven from Wangige towards Kikuyu wherein it hit the Deceased, who was a pedestrian, while crossing the road at the time. He went on to state that the Deceased succumbed to her injuries while undergoing treatment at St. Theresa Hospital and that Corporal Njogu was the Investigating Officer (IO) however he had since been transferred. On cross examination, he stated that according to the Police Abstract and Occurrence Book (OB), the case was still Pending Under Investigation (PUI). He further confirmed that he did not have the police file in Court and that he was not the Investigating Officer (IO). In re-examination, it was his evidence that the Deceased did not die on the spot however passed on 50 minutes after the accident. That as per the OB, the Investigating Officer booked the accident at 0901Hrs visited the hospital at 0917Hrs and later booked the accident at 0955Hrs. He equally confirmed that driver of the suit vehicle hasn’t been charged and that there was no eye witness to the accident.

20. The Appellant testified as PW2. He began by adopting his witness statement as his evidence in chief and adducing into evidence the documents No. 2 - 8 appearing in his list of documents as PExh. 2-8. On cross-examination he stated that he was called by the area Chief while he was at work and was asked to visit St. Teresa Hospital to meet his mother (Deceased). He confirmed having not been at the scene of the accident and that when he arrived at the hospital, he found the Deceased had since passed on.

21. Evidently from the afore captioned statement, neither PW1 nor PW2 witnessed the accident. PW1 was not the Investigating Officer nor did he adduce the Police file or the OB extract before Court. Further from his evidence it was not clear who was to blame for the accident as the matter was still PUI save from his testimony that the Deceased was hit while crossing the road. Evidently, PW1’s evidence was entirely garnered from the entries made in Police Abstract, of which ordinarily are entered after the fact. Neither the O.B extract nor the police file were exhibited before the trial Court. Not even a sketch plan of the accident scene was produced at the hearing, to aid on the issues of liability. Thus, other than merely confirming the occurrence of the accident, PW1’s testimony did not contain any admissible and or credible evidence as to how the accident occurred and was of no probative value to the question of liability. PW2’s evidence equally did not offer any succor on the question of liability as he did not witness the accident and confirmed arriving at the hospital after the Deceased had passed on. In sum, the Appellant did not tender evidence in proof of the allegations of negligence as itemized in Paragraph 4 of the Plaint as against the Respondent, key among them being:- that the suit vehicle was being driven recklessly and at high speed, the Respondent’s failure to keep any proper control of the suit motor vehicle and or the suit motor vehicle being driving on the wrong side of the road, among other particulars.

22. The trial Court, though not in prodigious detail, appears to have considered the facts and pleadings before it and hence appreciated the full purport of the Appellant’s evidence and as a consequence arrived at the decision it did. Further, from the Appellants’ adopted witness statement, he appears to impute that the Respondent’s motor vehicle was the cause of the Deceased’s untimely demise. Applying the principle of causation and proximate cause to the instant matter, the Court of Appeal in Timsales Limited v Stanley Njihia Macharia [2016] eKLR while discussing the principle of ‘causation’ cited with approval the decision by Musinga J (as he then was) in South Nyanza Sugar Co. Ltd vs. Wilson Ongumo Nyakwemba [2008] eKLR quoting Statpack Industries Limited vs. James Mbithi Munyao HCCA No. 152 of 2003 (UR) where it was held that: “It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence and his injury. The plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence.” In the instant matter it is difficult to draw a causal link between the alluded particulars of negligence as itemized in Paragraph 4 of the Plaint and the Deceased’s untimely demise in light of the deficiencies in PW1’s and PW2’s evidence on liability, as earlier noted. The frail attempt by PW1’s evidence on re-examination did not aid the Appellant’s cause. Whereas the supposition on negligence by both PW1 and eventually the trial Court that the Deceased was the author of her own misfortune was not buttressed by any tangible evidence either.

23. It would be remiss not to observe that the Appellant has before this Court relied on the decisions in Rahab Micere Murage (supra) and Swan Carriers Ltd Wambui (supra) to assert that failure to call an eye witness was not fatal to his case whereas the trial Court was in error in finding in the affirmative on the issue. This Court has taken the liberty of perusing the said decisions. In the former decision, the Deceased was a passenger aboard one of two motor vehicles that caused an accident whereas doctrine of Res Ipsa Loquitor would invariably be applicable in the circumstance given that the Deceased was palpably not in control and or contributed to the collusion accident between the two (2) motor vehicle in the said decision. As regards the latter decision, the same is not binding on this Court that notwithstanding whereas the particular circumstances in the decision vary from the instant matter herein, given that in the said decision the Police Abstract categorically and wholly apportioned blame on one of two motor vehicles that caused the accident. Therefore, the foregoing decisions do not aid the Appellant’s cause on appeal. Lastly, the Appellant’s contestation that failure on the part of Respondent to call evidence rendered his evidence uncontroverted and the Respondent wholly liable cannot stand in light of the dicta in Karugi & Another (supra).

24. In conclusion, the Appellant failed to establish on a balance of probabilities that the Respondent was blameworthy and liable for the unfortunate accident and this Court cannot fault the trial Court for arriving at the decision it did on liability. Under Section 107 of the Evidence Act, the burden of proof lay with the Appellant and if his evidence did not support the facts pleaded, he failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). Consequently, the appeal herein lacks merit and ought to be dismissed with each party to bear their own costs.

25. Determinationi.This Appeal is hereby dismissed.ii.The Judgement and/or Decree in Kikuyu SPMCC No. E037 of 2020 delivered on 12th July 2023 is hereby sustained and or upheld.iii.Each party to bear their own costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF SEPTEMBER, 2024. ROA 14 days.HON. T. W. OUYAJUDGEFor Applicant Kamotho holding brief for KihikaFor Respondent N/ACourt Assistant Martin Korir