[2023] KEHC 26002 (KLR)

Obaga v Joseph Mulwa Mutula & Damaris Ndunge (Suing as the Administrators of the Estate of Timothy Kulwa Mulwa) (Civil Appeal E0296 of 2022) [2023] KEHC 26002 (KLR) (Civ) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26002 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E0296 of 2022

AN Ongeri, J

December 1, 2023

Between

Gilbert Otero Obaga

Appellant

and

Joseph Mulwa Mutula & Damaris Ndunge (Suing as the Administrators of the Estate of Timothy Kulwa Mulwa)

Respondent

(Being an appeal from judgment and decree of Hon. W. Wanjala (PM) in Milimani CMCC No. 7087 of 2018 delivered on 11/2/2022)

Judgment

1. The respondent was the plaintiff in Milimani CMCC No. 7087 of 2018 where he filed the suit as the personal representative of the Estate of Kula Mulwa (deceased) for compensation under the Law Reform Act and the Fatal Accidents Act seeking compensation from the respondent for fatal injuries the deceased sustained on 24/10/2015 when he was knocked down by motor vehicle registration no. KBT 177L while a pedestrian along Nairobi- Mombasa Road.

2. The trial court found that the deceased who was a tout fell when he was running to board the vehicle.

3. The trial court apportioned liability at 50:50% and assessed damages as follows;Damages under the Law Reform Act 140,000Loss of dependency 900,000Special damages 54,550Total 1,040,000Less 50% contributory negligence 520,000Net award 520,000

4. The appellant is aggrieved with the award of the trial court and has appealed on the following grounds;i.The learned magistrate erred in fact and in law in holding the applicant/appellant 50% liable.ii.That the learned trial magistrate erred in law and fact by failing to judiciously analyze the evidence on record and the appellant’s submissions and authorities thereby arriving at a finding on quantum that was manifestly high, erroneous, untenable, unfair and unjust to the appellants.iii.The learned magistrate erred in fact and in law in failing to consider the evidence of the applicant/appellant defence witnesses, DW – 1 police officer, DW 2 the driver as well the PW 1 who was the police officer.iv.The learned magistrate erred in law and in fact in awarding under the head of liability in the ration of 100% against the defendants the same based in the wrong principles of law as the same was excessively high and unjust without considering that DW 2 stated that the plaintiff was to blame for the accident as the deceased was a tout who was chasing after the vehicle and tried to hang on the applicants/appellants motor vehicle which was in motion, where he slid thus resulting to the accident. The DW 2 evidence was backed up by two police officers (DW 1 and PW 1) who produced the extract of the OB which is the initial report made to police.v.The learned magistrate erred in fact and in law in finding that the respondent was entitled to general damages of ksh.1,040,000/= to be subjected to 50% liability. The same was too high and the same is not justified.vi.The learned magistrate erred in fact and in law in failing to consider the appellants’ submission on liability and quantum.vii.The learned magistrate erred in fact and in law in failing to consider conventional award in cases of similar nature.

5. The parties filed written submissions as follows; the appellant submitted that the respondents did not discharge the burden of proof on a balance of probability to show that the appellant was responsible for the accident.

6. On quantum the appellant submitted that the deceased estate was awarded Kshs. 1,040,000 less 50% contribution amounted to Kshs. 520,000 damages of kshs.140,000 under the law reform Act, Kshs. 900,000 under loss of dependence and Kshs. 54,550 under special damages. The appellant submitted that the award of Kshs. 900,000 under the head of loss of dependency was adequate and sufficient compensation and the same should be upheld.

7. The respondent submitted that PW3 testified in support of the Respondent's case. He gave direct evidence on how the accident happened.

8. There was evidence that the subject motor vehicle stopped at the accident scene and the deceased while trying to board, DW2 sped off causing the deceased to fall off and sustain fatal injuries.

9. On the other hand, DW2 who was the only witness testified in support of the Appellant's case. It was his evidence that he stopped at the accident scene to have passengers alight and after being signaled by his conductor that all passengers had alighted, he drove off when the deceased who was a suspected tout ran after the subject motor vehicle in a bid to hang on it, missed and fell hence sustaining fatal injuries. His conductor was not called to corroborate his case on how the accident occurred.

10. The respondent submitted that the only direct evidence on how the accident happened was that of PW3 and DW2. Further it was not proved that the deceased was a tout who was trying to hang on the subject vehicle. DW2 further testified that he saw the deceased trying to board the subject motor vehicle but he nevertheless drove off. He also testified that he did not see how the accident happened and he did not stop immediately after the accident.

11. It is apparent that DW2 was negligent in his act of releasing the clutch suddenly and taking off at a speed without paying attention to those boarding especially the deceased causing the accident. The respondent avered that based on the evidence and the acts of the parties the trial court used the correct principle in awarding liability.

12. On the award of Kshs. 1,040,000 the respondent contended that there is nothing in the court record which suggests that in arriving at its decision on Damages payable to the deceased estate under the Law Reform Act, the trial court applied the wrong legal principles or took into account irrelevant considerations. It was proved that the deceased was aged 16years.

13. The trial court in making a global award for loss of dependency applied the correct principles of law and in support cited Bobmil Industries Ltd & Another v Kenned Indakwa Eshiteni [2010] eKLR where the deceased was a minor and the court adopted a global sum of Kshs. 1,200,000

14. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced at the trial court and to arrive at its own conclusion whether to support the findings of the trial court. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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 demeanor of a witness is inconsistent with the evidence in the case generally.”

15. The issues for determination in this appeal are as follows;i.Whether the trial court was right in apportioning liability at 50:50ii.Whether the award of damages was inordinately high.

16. On the issue as to whether the trial court was right in apportioning liability at 50:50%, I find that in the absence of clear evidence how the accident occurred, the trial court was right in apportioning liability at 50:50%.

17. There was evidence that the subject motor vehicle stopped at the accident scene and the deceased while trying to board, the Appellant’s driver sped off causing the deceased to fall off and sustain fatal injuries.

18. The deceased who ran after the motor vehicle contributed to the injuries and in the circumstances, I find that the trial court was right in apportioning liability at 50:50%.

19. I uphold the finding on liability.

20. On the issue as to whether the award in respect of loss of dependency was too high, I have considered the following authorities;a.Twokay Chemicals Limited vs. Patrick Makau Mutisya & another [2019] eKLR, the appellate court upheld a global sum of Kshs. 1,500,000. 00 for loss of dependency for a minor aged sixteen (16) years.b.Zachary Abusa Magoma vs. Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR, the court awarded a global sum of Kshs. 1,500,000. 00 for loss of dependency.

21. I find a global figure of 900,000 reasonable.

22. I find that the appeal herein lacks in merit and I accordingly dismiss it with costs to the respondents.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. ................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent