[2023] KEHC 24801 (KLR)

Njagi & another v Iruma Njeru, Niceta Wawira Njue & Agnes Ngithi Runjih (As Legal Representative of the Estate of Daniel Njue Njeru - Deceased) (Civil Appeal E072 of 2022) [2023] KEHC 24801 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24801 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E072 of 2022

LM Njuguna, J

November 3, 2023

Between

Julius Muriithi Njagi

1st Appellant

Harrison Waihenya Muthoni

2nd Appellant

and

Iruma Njeru, Niceta Wawira Njue & Agnes Ngithi Runjih (As Legal Representative of the Estate of Daniel Njue Njeru - Deceased)

Respondent

(Appeal arising from the decision of Hon. P.M. Mugure (Ms.) PM in Principal Magistrate’s Court at Wang’uru Civil Case No. 38 of 2020 delivered on 15th August 2022)

Judgment

1. The appeal herein has been filed vide memorandum of appeal dated 22nd August 2022 wherein the appellants, being dissatisfied with the above-mentioned decision, now seeks orders that:a.The entire decision be set aside;b.The honourable court be pleased to set aside the finding on liability and re-assess liability afresh;c.The honourable court be pleased to hold that the awards given by the honourable court for loss of expectation of life and loss of dependency were excessive and the same should be reviewed downwards or set aside;d.The appellants be awarded the costs of this appeal and of the lower court case; ande.Such other orders as this court shall deem fit.

2. This appeal is premised on the following grounds:a.The learned trial Magistrate erred in law and in fact in holding the appellants 100% liable for the accident despite the weighty evidence tendered before the court by the appellants, which clearly established negligence on the part of the deceased;b.The learned trial Magistrate erred in law and in fact by awarding an inordinately high amount for loss of expectation of life;c.The learned trial Magistrate misdirected herself in law and in fact by erroneously adopting a multiplier of 24 years in computing damages for loss of dependency without taking into account the age of the deceased at the time of the accident;d.The learned trial Magistrate misdirected herself in law and in fact by awarding inordinately high amounts for damages for loss of dependency;e.The learned trial Magistrate erred in law and in ignoring the material evidence of the defense and the appellant’s written submissions on both liability and quantum.

3. The plaintiffs/respondents filed a tortous claim seeking judgment against the defendants/appellants for special damages of Kshs. 76,790/=, general damages, costs of the suit with interest and any other relief as the court deems just. The brief facts of the case are that on 12th July 2019, the deceased was lawfully driving motor vehicle registration number KCC 200F along Embu-Mwea Road. That on reaching Kimbimbi Red Soil area, he stopped beside the road to pick a passenger and when he was loading luggage, another motor vehicle registration number KCK 673B was so carelessly, negligently and/or recklessly driven by the defendant or his authorized driver, servant and/or agent without any due care, regard and/or attention, that he lost control, veered off the road and hit the deceased causing him to sustain fatal injuries. Consequently, the plaintiffs/respondents suffered loss and damages. The defendants/appellants filed their statement of defence denying the allegations made by the plaintiffs/respondents and putting them to strict proof thereof. They stated that the deceased was liable for the accident due to his own negligence.

4. At the trial, PW1 who is the 2nd wife of the deceased stated that on the fateful day, she received a phone call from her neighbor informing her that the deceased had been involved in an accident. That she called her co-wife and they were taken to the hospital where the deceased had been taken where they confirmed that it was him. That the deceased died four days after he was admitted, being survived by two wives and four children whom he took care of with his daily earnings of Kshs. 1,800/= as a driver of Neno Sacco Matatus. She produced documents to support her case. On cross-examination, she stated that she did not witness the accident and the eye witness was not present in court. That she did not have Mpesa or bank statements to prove the earnings of the deceased who died at the age of 46 years. On re-examination, she stated that she used to receive money in cash from the deceased.

5. PW2 was a police officer at Wang’uru Police Station at the time of the accident. He produced the police abstract which detailed the accident. He stated that the deceased had stopped and was attending to passengers when the motor vehicle registration number KCK 673D Fuso Canter rammed into the stationery motor vehicle, causing minor injuries to one passenger and fatal injuries to the deceased.

6. PW3 testified that she saw the motor vehicle KCK 673D being driven very fast and went on to hit the deceased’s motor vehicle which was parked outside the road beyond the white line. That the lorry did not stop and was stopped by another vehicle coming from Embu direction. That she witnessed the accident and was able to identify the driver of the lorry that killed the deceased.

7. DW1, the 1st appellant herein, stated that he saw the deceased standing in his lane and did not move even after hooting. He stated that after the accident, he stopped. That he was the driver of the said lorry and that he was charged with two traffic offences and he paid fines.

8. The trial court awarded special damages as pleaded even though the funeral expenses were not proved. An award of general damages was made as follows: pain and suffering- Kshs. 100,000/=, loss of expectation of life- Kshs. 150,000/= and Loss of dependency-Kshs. 4,423,564. 80/= based on a multiplier of 24 years and the minimum wage applicable at the time.

9. In this appeal the court directed the parties file their written submissions and the parties complied.

10. The appellants submitted that, at trial, it was their case that the driver of motor vehicle KCC 200F was standing outside the vehicle on the road while loading luggage into the vehicle. That while driving, the 1st appellant saw another vehicle coming from Embu towards Mwea on the opposite lane, which encroached onto his lane while overtaking another vehicle. That in the process of avoiding an accident with the oncoming vehicle, he slightly veered off the road and hit the deceased with the side mirror of the lorry. He reminded the court of its role as an appellate court to evaluate the evidence of the trial court, as stated in the case of Selle Vs. Associated Motor Boat Company (1968) EA 123 at 126.

11. That from evidence, it was clear that the deceased was the author of his own misfortune when he decided to load luggage on top of his vehicle while standing on the road thereby exposing himself to imminent danger. Reliance was placed on the cases of Joyce Gathoni Wathena & Another (suing as personal representatives of the estate of Simon Karie Mburu) Vs. Mbugua David & Another (2020) eKLR and David Kinyanjui & 2 Others Vs. Meshack Omari Monyoro Civil Appeal no. 125 of 1993 and stated that 30% of liability should be blamed on the deceased. As to the argument that the general damages were excessive, the appellants cited the cases of Butler Vs. Butler (1984) KLR 225 and Mbogo Vs. Shah (1968) eKLR. They disputed the multiplicand applied by the trial court as the one applicable should be the minimum wage commensurate with the place where the deceased lived.

12. As for the multiplier, they relied on the case of Rose Mwikali Kyalo (suing as the legal representative of the estate of Michael Kyalo Katumo) Vs. Danrose Kenya Ltd & Another (2015) eKLR where the court applied a multiplier of 10 years for a person who died at 46 years old. They urged the court to award damages for loss of dependency at Kshs. 1,118,024/= using a multiplier of 10 years, multiplicand of Kshs. 13,975. 30 and two thirds ratio. That in the alternative, should the court choose to uphold the finding of the trial court on this, then this court should apportion 30% liability to the deceased.

13. It was the respondents’ submission that trial court’s award of general damages for pain and suffering was just and fair and should be upheld. They relied on the cases of FMM & Another Vs. Joseph Njuguna Kuria & Another (2016) eKLR and Alice O. Alukwe Vs. Akamba Public Road Services Ltd & 3 others (2013) eKLR. They urged this court to uphold the award for loss of expectation of life and relied on the cases of Isaac Michael Okenye Vs. lacheka Lubricants Limited & Another (2017) eKLR, FMM & Another Vs. Joseph Njuguna Kuria & Another (2016) eKLR and Richard Macharia Nderitu Vs. Philemon Rotich Langas (2013) eKLR.

14. On loss of dependency, it was their argument that the deceased would have worked gainfully as a driver until the age of 70 years and therefore a multiplier of 24 years was adequate. They urged the court to apply a multiplicand of Ksh. 23,039. 40/= in acknowledgment of the fact that not all employers pay their workers through pay slips and that this decision lies in the discretion of the court. They further relied on the case of Nyamira Tea Farmers Sacco Vs. Wilfred Nyambati Keraita & Another Kisii Civil Appeal No. 68 of 2015 (2011) eKLR as cited in the case of Mwita Nyamohanga & Another Vs. Mary Robi Moherai (suing on behalf of the estate of Joseph Tagare Mwita) & Another (2015) eKLR.

15. Based on the competing arguments and the memorandum of appeal, the issues for determination are:a.Whether the trial court’s determination on liability is to be upheld; andb.Whether the trial court’s award of general damages for loss of expectation of life and loss of dependency are inordinately high.

16. This being a first appeal, it is important that I revisit the evidence adduced at trial as stated in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where it was held thus:“...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..."

17. On the first issue of liability, it is a matter of fact and can be determined through examination of evidence. PW3 testified that she was standing along the same road waiting to board a vehicle when she saw the 1st appellant driving fast. That the deceased was standing outside the vehicle loading luggage onto the top carrier of the vehicle, when the appellant’s vehicle hit him. She indicated that it would not have been possible for the deceased to evade the accident and she did not recall if the 1st appellant hooted. DW1, on the other hand, stated that he tried to hoot but the deceased did not move away from the road as he was standing within the lane on which the 1st appellant was driving. He blamed the deceased for stopping the vehicle at an undesignated place. In the appellants’ submissions, they stated that the 1st appellant attempted to swerve to avoid an accident when he saw an oncoming vehicle which was overtaking and had entered his lane.

18. According to Sections 107 and 109 of the evidence Act, I am bound to make a finding on liability on a balance of probabilities. In the case of Palace Investment Ltd Vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, it was held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

19. From the evidence adduced, it is possible that the 1st appellant, while driving, failed to exercise due care as he tried to swerve to make way for an oncoming vehicle that was within his lane, and in the process, fatally injured the deceased. If the 1st appellant had not swerved to avoid the oncoming vehicle, it is likely that the deceased would not have been injured at all. It is likely that by the time the deceased saw the appellant’s vehicle, it was too late to act so as to avert the accident. On a balance of probabilities, it is my view that the 1st appellant caused the accident and the appellants are 100% liable.

20. On the second issue of award of general damages for loss of expectation of life, the trial court awarded Kshs. 150,000/= under this head. The court discussed the essence of this award in the case of Benham Vs Gambling, (1941) AC 157 where it was held:“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”

21. An award under this head must be modest and I take the view of the court in the case of Mercy Muriuki & Another Vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR, where the court observed:“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 Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”In my view, the award of general damages for loss of expectation of life by the trial court is reasonable and I find no reason to interfere with the same.

22. On the general damages for loss of dependency, the trial court applied the multiplicand of the minimum wage of Kshs. 23,039. 40 and a multiplier of 24 years, assuming that the deceased would have retired at 70 years old. A ratio of ⅔ was applied. In their submissions, the appellants stated that the trial court erred in applying the wrong minimum wage considering the fact that the deceased hailed from Kiritiri in Embu County.

23. I do agree with the appellants’ argument and having perused the Regulation of Wages (General) Amendment Order, 2018, the applicable figure is on the 8th row 9th column, which is Kshs. 18,881. 12/=. The figure applied by the trial court is applicable for Nairobi, Kisumu and Mombasa. As regards the multiplier, it was argued that the deceased would have retired at 70 years old and therefore a multiplier of 24 years was applied.

24. In the case of Elizabeth Ngina Muthoka Vs. Martin Musila Kombo & another [2009] eKLR the court held that the deceased, who was 46 years old at the time of his death would have worked for another 29 years in his line of work as an associate professor. The court noted that the deceased, like many practitioners in his field hardly retire. In this case, I am inclined to accept the multiplier of 24 years on the same basis. The dependency ratio of ⅔ is sufficient considering that the deceased was survived by 2 wives and 4 children who are still in school. Therefore, the applicable formula would be: Kshs. 18,881. 12/= ×12 ×24 ×⅔=Kshs. 3,625,175. 04/=.

25. In this appeal, the award for pain and suffering and special damages were not challenged and so I will leave them settled as awarded by the trial court.

26. Consequently, having considered the arguments by counsel and the relevant case laws, I find that the appeal partially succeeds. For the avoidance of doubt, this court awards and orders as follows:a.Liability Ratio 100%Special damages Kshs. 76,790/=General damagesb.Pain and suffering Kshs. 100,000/=c.Loss for expectation of life Kshs. 150,000/=d.Loss of dependency Kshs. 3,625,175. 04/=e.Total damages payable to the appellants: Kshs. 3,951,965. 04/=f.The general damages to attract interest from the date of the judgment of the trial court until payment in full, but special damages will attract interest from the date of filing of the plaint.g.Each party to bear its own costs of the appeal.SUBPARA 1.

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………...…..for the Appellants…………………………………………….…....for the Respondent