[2023] KEHC 24748 (KLR)

Nguri & another (Suing as personal representatives of Felix Mutuma Mwiti - deceased) v Mwiti & another (Civil Appeal E149 of 2022) [2023] KEHC 24748 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24748 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E149 of 2022

PM Mulwa, J

November 2, 2023

Between

Isaac Kennedy Nguri

1st Appellant

Elishiba Wanjiru Njuri

2nd Appellant

Suing as personal representatives of Felix Mutuma Mwiti - deceased

and

Juliet Gatwiri Mwiti

1st Respondent

Justah Gakii Mwiti

2nd Respondent

(Being an appeal against the judgment and decree by Hon. J. A. Agonda -PM in Ruiru Civil Case No. E201 of 2021 delivered on 23rd June 2022)

Judgment

1. This is an appeal and cross-appeal against the judgment of the Principal magistrate at Ruiru in Civil Suit No. E201 of 2022 on both liability and quantum. In that suit, the Respondents in the plaint filed on 12th May 2021 contended that on or about 13th June 2020, at 8. 00 pm or thereabout at the Githurai area on the Thika-Nairobi Highway the 1st Appellant driver and/or agent of the 2nd Appellant negligently, carelessly and/or recklessly drove Motor Vehicle registration no. KCF 637M Honda Airwave caused the same to hit Felix Mutuma Mwiti and killed him on the spot.

2. The Appellants jointly filed their statement of defence on 9th July 2021, denying the contents of the plaint. More specifically they deny the occurrence of the accident and further deny that the 1st Appellant was the driver of the Motor Vehicle KCF 637M while the 2nd appellant was the owner. They deny the deceased died as a result of the accident. They denied the particulars of negligence as particularized in the plaint. They prayed that the suit be dismissed.

3. At the hearing the plaintiff called 3 witnesses while the defence called 1 witness. Upon consideration of the evidence, the trial court in its judgment dated 23rd June 2022, apportioned liability in the ratio of 20:80 in favour of the plaintiffs against the defendants and awarded Kshs. 50,000/= for pain and suffering, Kshs 100,000/= under the head loss of expectation of life, Kshs. 2,160,000/= loss of dependency, Kshs. 118,450/= as special damages.

4. Dissatisfied by the said judgment the Appellants filed the instant appeal vide a memorandum of appeal dated 4th July 2022, citing the following grounds;i.That the trial magistrate erred in law and in fact as she did, when she failed to properly evaluate the evidence on record thus reaching an erroneous decision on the issue of liability.ii.That the trial magistrate erred in law and in fact as she did, on evaluation of liability.iii.The trial magistrate erred in law and in fact as she did by basing her decision on irrelevant matters and failing to base her decisions on the facts and evidence on record thereby arriving at an excessive award on the issues of damages.iv.That the trial magistrate erred in law and fact as she did, on the assessment of the quantum of general damages under the Law Reforms Act for pain and suffering, loss of expectations of life and loss of dependency.v.The trial magistrate erred in law and in fact by basing her decision on irrelevant matters and failing to base her decision on the facts and evidence on record.vi.That the trial magistrate erred in failing to follow and uphold legal parameters and binding precedents on the assessment of general damages under the Law Reform Act and liability in similar circumstances.

5. The Appellants proposed to ask that the appeal be allowed and the judgment in Ruiru SPMCC No. E201 of 2021 be set aside/quashed, and this court to re-assess the issue of liability and damages awardable and costs be awarded to the Appellants.

6. Through their notice of cross-appeal dated 1st November 2022, the Respondents sought to have the learned trial magistrate judgment varied on the following grounds:i.The learned trial magistrate erred in law and in fact when she failed to properly evaluate the weight of the evidence on record produced by the Respondents herein thus reaching an erroneous decision on liability.ii.The learned trial magistrate erred in law and in fact in her findings on liability in view of the evidence presented before the court by the Respondents herein.iii.The learned trial magistrate erred in law and in fact in her assessment of damages for loss of dependency.iv.That the learned trial magistrate erred in law and in fact in her finding by virtue of the 1st Appellant having confirmed that the accident occurred.

7. It was proposed to ask that the cross-appeal be allowed and the appeal be dismissed, set aside the judgment of the learned trial magistrate, apportion liability to the appellants at 100% and re-assess the quantum of damages awardable to the Respondents. Costs of the appeal be granted to the Respondents.

8. The parties agreed to canvass the appeal by way of written submissions which each party duly filed.

Appellants’ submissions 9. In their submissions dated 6th June 2023, the Appellant faulted the trial magistrate for finding them liable for the accident. They argue that none of the Respondents’ witnesses testified to have witnessed the accident and their evidence was based on hearsay. It was also argued that the abstract adduced by Pw1 failed to indicate who was liable for the accident.

10. It was stated that Dw1 was the only eyewitness who testified that the accident was wholly contributed by the deceased for crossing the road at an undesignated place, and all efforts to avoid the accident were futile. It was stated that where there is no crucial evidence on who was to blame for the accident the two parties, both should be held equally to blame. The case cited was Karanja v Malele [1983] KLR 142.

11. On the issue of general damages, it was argued that the employment letter dated 18th March 2021 did not disclose the name of the business or workshop and the nature of the engagement the deceased was undertaking. That the employer failed to attend court to give evidence in corroboration of the alleged letter. The mode of income of Kshs 9,000/= weekly was disputed as no evidence was adduced to prove the same. There was no proof that the deceased supported his siblings and parents and the same remained allegations.

12. It was argued that the deceased having died at the age of 28 years and considering the retirement age is 60 years, the deceased had 32 more years before retirement and considering the unenforceable eventualities in his life a global sum approach was the proper one to use as compared to the multiplier approach. It was submitted that a global sum of Kshs. 800,000/= would suffice considering the current economic inflation.

Respondents’ submissions 13. It was submitted for the Respondents that since the circumstances as to the occurrence of the accident were well within the knowledge of the 1st Appellant he was duty-bound by Section 112 of the Evidence Act to discharge the burden of proof. It was argued that the 1st Appellant failed to take necessary precautions to avoid hitting the deceased, and thus ought to be fully liable for the accident.

14. It was argued that the 1st Appellant ought to be held 100% liable as the accident was not disputed. It is prima facie evidence the death of the deceased (Felix Mutuma Mwiti) was caused by the negligence of the 1st Appellant. The Respondent pleaded the doctrine of Res Ipsa Loquitor which shifted the burden of proof to the Appellants to prove the 1st Appellant applied brakes to avoid the collision which they failed to. It was argued the Respondents had demonstrated the Appellants were 100% liable for the accident.

15. On the award of damages, the Respondents submitted the Appellants failed to object to the Respondents letter dated 18th March 2021 that proved the deceased Felix Mwiti worked in the informal sector earning Kshs. 9,000/= weekly. It was argued that the deceased died at 28 years and had 32 years to live and thus the learned trial magistrate erred in computing using 15 years ignoring the fact the deceased had more years to live. It was further stated the Respondents proved through the chief’s letter the parents and sister were dependent on the deceased. It was proposed that the correct multiplier to use is 36,000×32 years ×2/3 ×12 = 9,216,000/=.

16. The award of Kshs 100,000/= on pain and suffering was not disputed as the deceased Felix Mwiti died on the spot.

17. Counsel submitted that an award of Kshs 150,000/= under the head loss of expectation of life would suffice as the deceased died aged 28 years with good health and had many productive years ahead.

18. In conclusion the Respondents urged the court to allow the cross-appeal and award costs of the appeal.

Analysis and determination 19. This being a first appeal, the duty of this court is to re-evaluate the entire case and come up with its findings in the matter this is as set out in the case of Selle vs Assorted Motor Boat Company 1968 EA Company 1968 EA 123-126 where the court stated as follows: “…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 that he has clearly failed on some part to take account of particular circumstances or probabilities…”

20. I have considered the grounds of appeal, grounds of cross-appeal, the record of appeal and the parties’ submissions. The issues for determination are: –i.Whether the trial magistrate erred in law and fact in the apportionment of liability.ii.Whether the trial magistrate erred in law and fact in the award of damages.iii.Who is entitled to the costs of the appeal?

Liability 21. The Appellants aver that the trial court erred in finding them 80% liable for the accident and death of the deceased. it was their contention that the accident was solely caused by the negligence of the deceased who crossed the road at an undesignated place. It was argued that the 1st Appellant was the only eyewitness who gave an account of what happened and that the Respondents’ evidence was based on hearsay as the investigating officer Pw1 testified on what he was informed by 3rd parties as she was not present at the scene. It was proposed that the court do apportion liability in the ratio of 50:50.

22. On the other hand, the Respondents urged the court to find the appellants wholly liable for the accident as they failed to prove before the court the extent of the precautions taken to avoid the collision in the absence of skid marks on the road.

23. Having perused the records, the evidence and the judgment of the trial court, I note that the trial magistrate duly considered relevant evidence of all the witnesses in coming to her conclusion. In particular, the trial magistrate stated in her judgement that she had considered all the evidence and testimony given by the witnesses. She noted that DW1 chose not to testify against the allegations of negligence in the manner in which he drove KCF 637M and in the absence of skid marks failed to apply emergency brakes while driving at 70 kph. The trial court went ahead to find the accident was majorly caused by the negligence of DW1 in the manner he controlled, drove and managed motor vehicle KCF637M. The learned trial magistrate also blamed the deceased for having crossed a busy highway where there was no zebra crossing and endangered his life. She apportioned liability in the ratio of 80:20.

24. In the foregoing, I do not see any reason to depart from the trial court’s finding on liability which I hereby uphold.Damages

25. It is trite law that an appellate court will not interfere with the assessment of damages merely because it could have awarded a higher or lower figure. This was the finding of the court in the case of Kemfro Africa Limited t/a “Meru Express Services [1976]” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR;“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, 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.”

26. Further in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR the court stated as follows: - “It is the law that the assessment of 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 simply because it would have awarded a different figure if it had tried the case at the first instance …”

27. In the instant case, the trial court awarded Kshs. 50, 000/= under the head pain and suffering; and Kshs. 100,000/= for loss of expectations of life. In her judgment the learned trial magistrate opined that the deceased died while undergoing treatment at Thika Level 5 hospital and that he must have endured serious pain prior to his death. From a perusal of the record though, it is evident, from the testimony of the investigating officer (Pw1) that the deceased died at the scene of the accident.

28. According to the Respondents an award of Kshs. 150,000/= for loss of expectations of life and Kshs. 100,000/= under pain and suffering would suffice. The Appellants proposed an award of Kshs. 100,000/= under the head loss of expectations of life and Kshs. 10,000 under pain and suffering.

29. In Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) [2019] eKLR the court observed that: “The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the award range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

30. In the case of Sukari Industries Limited v Clyde Machimbo Juma, Homa Bay HCCA NO. 68 of 2015 [2016] eKLR the deceased had died immediately after the accident and the trial court awarded Kshs. 50,000/= for pain and suffering. Majanja, J. held that: “On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.”

31. In my view, therefore, the award of Kshs. 50,000/= for pain and suffering is not manifestly excessive. In the circumstances, I see no reason to depart from the trial court’s award which I hereby uphold.

32. On the award of loss of expectations of life this court opines that the conventional award is Kshs. 100,000/= which the trial court awarded. The deceased died at the age of 28 years. It is my finding that the trial magistrate did apply the wrong principles in the circumstances and therefore, the award of Kshs 100,000/= is upheld.

33. In respect of the head on loss of dependency, the Appellants challenged the use of the multiplier approach and submit that a global sum approach of Kshs. 800,000/= would be appropriate. That the income of the deceased and/or ascertained dependency was not proved. The Respondents submitted the trial magistrate erred in adopting a multiplier of 15 years as the deceased died aged 28 years and could have worked until the retirement age of 60 years.

34. In Jacob Ayigo v Simon Obayo [2005] eKLR it was expressly stated as follows: “We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.”

35. Further in the case of P.N.M. & Another v Telcom Kenya Ltd & Others [2015] eKLR, the court applied a multiplier of 30 years for a 26-year-old deceased.

36. From the foregoing, I find that the trial magistrate’s use of 15 years was unreasonable and, in the circumstances, interfered with the same and adopt a multiplier of 27 years considering the vagaries in life and the fact that the deceased died aged 28 years and could have worked up to 60 years.

37. As for the multiplicand the trial magistrate noted that prior to the death of the deceased he worked as a mechanic earning Kshs 1,500/= daily. However, the court took into consideration the minimum wage Regulations Order 2015 and adopted a multiplicand of Kshs 36,000/= per month.

38. In the cases of Board of Governors of Kangubiri Girls High School & Another vs Jane Wanjiku (2014) eKLR the Court of Appeal pronounced itself as follows: “The choice of a multiplier is a matter of the court’s discretion which discretion has to be exercised judiciously with a reason”

39. There are numerous authorities that provide that the court can either use the multiplier approach or the global sum approach. It is also an accepted principle that where the income of the deceased has not been properly proved the trial court can adopt the wages as per the Wages Renumerations Order. I find that the trial magistrate exercised her discretion judiciously when she adopted the minimum wage as per the Wages Regulations Order 2015. I accordingly uphold the multiplicand of 36,000/=.

40. The appellants argue that dependency was not proved. the Respondent attached a chief’s letter which indicated the deceased was not married at the time of his death but his parents and sister were dependent on him. The trial court adopted the one-half (½) ratio dependency.

41. Going by the decided authorities that allow for one-half (½) of the dependency ratio for unmarried persons, this court finds that the trial court did not err in adopting the same.

42. I have looked at the judgment and note that despite the trial court adopting the one-half (½) dependency ratio the learned trial magistrate went ahead to use the one-third (1/3) ratio bringing the sum total to Kshs. 2,160,000/= in place of 3,240,000/=.

43. From the foregoing the computation under the head loss of dependency is as follows:36,000×1/2 ×12×27 years = 5, 832,000/=

44. As the award of special damages was not contested this court will not interfere with the sum awarded of Kshs. 118, 450/= which was properly proved.

45. FINAL ORDERS:a.The appeal lacks merit and the same is dismissedb.The cross-appeal partly succeeds to the extent regarding the award on loss of dependency. The court grants the award as follows: -i.Pain and suffering - Kshs. 50,000/-ii.Loss of expectation of life - Kshs. 100,000/-iii.Loss of dependency - Kshs. 5,832,000/-iv.Special Damages - Kshs. 118,450/-Kshs.6,100,450Less 20% contribution Kshs. 1,220,090/-Total award Kshs. 4,880,360/-c).Costs of the appeal are awarded to the Respondents.Orders accordingly.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBUTHIS 2ND DAY OF NOVEMBER 2023. ...............................P.M. MULWAJUDGEIn the presence of:Ms. Ochieng - for the AppellantsMr. Ngome - for RespondentsDuale – court assistant