[2019] KEHC 6202 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

CIVIL APPEAL NO. 14 OF 2017

NJIRU BENSON MURAGE.....................................................................APPELLANT

VERSUS

PETER NJUE ZACHARIAH(Suing as the administrator

of the Estate of JUSTIN MUKUNDI NJUE).........................................RESPONDENT

(An Appeal from the judgment of the Embu Senior Principal Magistrate in CMCC No. 145 of 2016 delivered on 4/04/2017)

J U D G M E N T

A. Introduction

1. This is an appeal whereas the appellant was dissatisfied with the decision of Embu Senior Principal Magistrate in CMCC No. 145 of 2016 challenging the finding on liability and the quantum of damages.

2. The suit before in the magistrate’s court was for compensation in terms of special and general damages arising from a fatal road traffic accident involving the deceased who was hit by motor vehicle registration No. KAN 215 S belonging to the appellant. The case was determined in favour of the respondent at 100% liability and all-inclusive damages of Kshs. 3,040,000/= were awarded.

3. The appeal was based on five (5) grounds to the effect that the magistrate erred in finding the appellant liable for the accident; that the damages awarded were excessive and that the judgment did not comply with the provisions of the law.

4. The parties disposed of the appeal by way of written submissions.

B. Appellant’s Submissions

5. It is the appellant’s submission that trial magistrate erred in finding him liable for the accident as he had rebutted the respondent’s evidence with both testimonial and documentary evidence as was evidenced by the inspection report. The appellant further submitted that the traffic court found that he had no case to answer and dismissed the traffic case. It was further contended that the fact that it took three weeks for him to be identified as the driver of the offending motor vehicle was inconsistent with the testimony of PW2 who claimed that he had identified the appellant during the accident.

6. The appellant further submitted that the judgement by the trial court violated the provisions of Order 21 Rule 4 that provides that judgements in defended suits do contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. He relied on the case of South Nyanza Sugar Co. Ltd v Omwando Omwando [2011] eKLR where the court opined that a judgement that lacks the requirements set out in Order 21 rule 4 of the civil procedure rules should be expunged.

7. He further submitted that the trial court had no basis for the multiplicand and multiplier it adopted since no evidence was introduced by the plaintiff. He submitted that where there was no proof that the deceased was employed by the court should adopt the minimum wage provided in the Regulations of Wages (General Amendment) Order as was held in Gachoki Gathuri (suing as legal rep of the estate of James Kinyua Gachoki (deceased) v John Ndiga Njagi Timothy & 2 Others [2015] eKLR.

8. He also submitted that the trial court erred by using a multiplier of 35 years as opposed to 20 years as he had proposed in his submissions. He also submitted the award of Kshs. 200,000/= for loss of expectation of life was exaggerated. He relied on the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR where the court stated that the conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= - 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.

9. He further submitted that the learned magistrate failed to consider the appellant’s submissions in arriving at his judgement. For the above reasons, the appellant submitted that trial court award be revised as follows;

a) Pain & Suffering – Kshs. 50,000

b) Loss of expectation of life – Kshs. 100,000

c) Loss of dependency –5,000×?×12×20=Kshs. 400,000

Total . Kshs. 550,000

Respondent’s Case

10. It is the respondent’s submission that the trial magistrate took all the evidence produced in court and rightly held the appellant 100% liable for the accident as the appellant did no adduce evidence to prove liability against any other party and thus, liability fell wholly on him as was held in the case of Obed Mutua Kinyili v Wells Fargo & Another [2014] eKLR.

11. He further submitted that the fact that the traffic court acquitted him did not make him blameless for the accident. He relied on the cases of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR, Kefa Omanyala Ingura v Ibrahim Omerikit Papai [2015] eKLR and that ofJohn Kibicho Thirima v Emmanuel Parsmei Mkoitiko [2017] eKLR where the courts all held that an acquittal in a traffic case did not absolve a party of negligence in a traffic accident compensation suit.

12. He further submitted that the court re-evaluate the dependency ratio adopted by the trial court from ½ to ? based on the court’s decision in the case of Gachoki Gathuri (suing as legal rep of the estate of James Kinyua Gachoki (deceased) v John Ndiga Njagi Timothy & 2 Others [2015] eKLRwhere the court adopted a dependency ration of ? where the deceased had parents who were not recognised by the trial court as dependants of the deceased.

C. Analysis & Determination

13. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, bear in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

14. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd[1968] EA 123and Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows:-

“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

15. Having looked at the Appellant’s grounds of appeal and the parties’ respective submissions that the issues for determination are as follows;

a) Whether the trial magistrate erred in law by failing to give a concise statement of the case, statement of evidence adduced by parties, points of determination, the decision thereon and reasons for his judgement.

b)Whether the trial magistrate erred in law and in fact in finding the appellant liable for the accident.

c) Whether the trial magistrate erred in law and in fact in awarding manifestly excessive and undeserved general damages of Kshs. 3,040,000/=.

16. The first issue raised by the appellant relates to failure by the trial magistrate to indicate the issues for determination, the decision thereon and reasons for such decisions contrary to the mandatory provisions of Order 21 Rule 4 of the Civil Procedure Rulesand failure to make a determination on the Appellants counter-claim.

17. Order 21 Rule 4 of the Civil Procedure Rules provides as follows:

“Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decisions”.

18. On perusal of the judgment, I note that it clearly contains a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision. There is no requirement that the said components of a judgment be worded or arranged in a certain manner. It is sufficient that they are contained in the judgment in whatever manner, wording or style.

19. The respondent called one witness PW2, who testified that the defendant caused the accident on the material day. He was very specific that the appellant was speeding and lost control thereby hitting the deceased who was walking on the left side of the road. The appellant failed to controvert this evidence but made a general denial that he was not involved in the accident. He admitted that he was driving home that material evening along the road and scene of the accident. In his statement, he said that the accident occurred about 200 meters from his home. He also admitted that police investigated the case and charged him with causing death by dangerous driving. He was later released in Traffic Case No. 234 of 2015.

20. The appellant argued that since he was discharged in the traffic case he bears no liability for the deceased’s death. It is trite law tht an acquittal on a traffic offence does not exempt a person from civil liability.

21. In the Court of Appeal case ofMichael Hubert Kloss & another v David Seroney & 5 others [2009] eKLRthe court of appeal held:

“The acquittal of Kloss in the traffic case would, of course not be binding on a civil court subsequently considering the issue of negligence on a standard of proof which is lower than “proof beyond reasonable doubt”. As this Court stated in Robinson v Oluoch [1971] EA 376:

“It is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident.”

22. It follows therefore that the appellant had an obligation to prove on a balance of probabilities that he was not liable for the accident to controvert the evidence of the respondent which he failed to do. In my considered view, the respondent’s evidence against the appellant was sufficient to prove his case on the balance of probabilities.

23. As regards damages, the principles on which an appellate court may disturb an award of damages are well settled. An appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages as was enunciated in Butt v. Khan Civil Appeal No. 40 of 1997 thus: -

“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 arrive at a figure which was either inordinately high or low.”

24. In the case ofKemfro Africa Ltd t/a Meru Express Services Gathogo Kanini v. A.M. Lubia C.A. 21 of 1984 [1882-1988[ 1 KAR 727where the said principles were explained.

25. From the proceeding and from the respondent’s evidence, no concrete evidence of the deceased’s earnings was tendered. PW1 testified that the deceased earned Kshs. 30,000/= per month but failed to adduce evidence on the source of income.

26. In Mwanzia -Vs- Ngalali Mutua Kenya Bus Ltdand quoted in Albert Odawa -Vs- Gichumu Githenji Nku Hcca No. 15 of 2003 [2007], KLR,Justice Ringera was of the following view:

“The multiplier approach is just a method of assessing damages. It is not a principle of law or a 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 the 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.”

27. This reasoning was adopted in Mary Khayesi Awalo & Another -Vs- Mwilu Malungu & Another ELD HCCC NO. 19 of 1997 [1999] eKLRwhere Nambuye J., stated that: -

“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimating his income in the absence of proper accounting books.”

28. I am of the considered view that the trial court should have awarded a global sum in the absence of concrete evidence of earnings. In the instant case, the deceased was aged 29 years and the only dependants he had were his parents for he was not married.

29. It is my considered view that an award of Kshs. 800,000/= would adequately compensate the respondent.

30. I rely on the case of Mary Khayesi Awalo (Supra)where the deceased was aged 28 years and had dependants including his mother and his children. The dependants were awarded a global sum Kshs. 450,000/= for loss of dependency in the year 1999. I will however take into consideration the factors of inflation for the last twenty (20) years in assessing the damages.

31. On perusal of the judgment, I note that the magistrate did not explain the basis of using the multiplicand of Kshs. 15,000/= which he used to assess damages for loss of dependency that resulted to an award of Kshs. 2,700,000/= which I find to be on the higher side. In my considered view, the magistrate failed to take into consideration that there was no evidence of income of the deceased and also used the wrong principle of adopting the multiplicand based on income that was not established. This gives this court the justification to interfere with this item of damages.

32. On pain and suffering, the generally accepted principle 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 awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. The deceased died immediately after the accident. The trial court awarded the respondent Kshs. 50,000/= for this item which I find adequate.

33. On loss of expectation of life, the trial court awarded Kshs. 200,000/= as compensation on the ground that the deceased estate’s suffered loss and damages. The court in Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLRawarded a conventional sum for loss of expectation of life of Kshs 100,000/=. The magistrate did not base the award on conventional decisions. I thus review the trial court award downwards to Kshs. 100,000/=.

34. I hereby set aside the award of the magistrate’s court and enter judgment in favour of the respondent in the following: -

a) Pain & Suffering – Kshs. 50,000

b) Loss of expectation of life – Kshs. 100,000

c) Loss of dependency – Kshs. 800,000

TotalKshs. 950,000

35. The appellant shall bear costs of the lower court suit while each party shall bear their own costs for this appeal.

36. The appeal is hereby allowed.

37. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 25TH DAY OF JUNE 2019.

F. MUCHEMI

JUDGE

In the presence of: -

Ms. Wawira for Mugendi for Respondent