[2022] KEHC 13356 (KLR)

Odhiambo v Chando (Suing Through Her Next of Friend Belinda Atieno Dede (Deceased) (Civil Appeal E009 of 2020) [2022] KEHC 13356 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13356 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal E009 of 2020

RPV Wendoh, J

October 3, 2022

Between

Vincent Odhiambo

Applicant

and

Denish Ooko Chando

Respondent

Suing Through Her Next of Friend Belinda Atieno Dede (Deceased

(An Appeal from the whole Judgement delivered by the Hon. R. K. Langat, Senior Resident Magistrate 443 of 2017)

Judgment

1. The appellant herein, Vincent Odhiambo preferred the instant appeal dated February 4, 2021 against the judgement of Hon RK Langat (SRM) Rongo, dated and delivered on January 21, 2020. The firm of Kimondo Gachoka & Co Advocates is on record for the appellant while the firm of Veronia Migai is on record for the respondent.

2. By a plaint dated December 7, 2107, the respondent filed a suit against the appellant as the legal representative of Belinda Atieno Dede (Deceased) to recover damages for injuries sustained by the deceased in a fatal accident which allegedly occurred on or about May 25, 2017. It was the respondent’s case that the deceased was a lawful pillion passenger on a bicycle along the Rongo - Awendo Road at DRC Area when the appellant’s motor vehicle registration number KBC 329Z Toyota Hiace Matatu was carelessly and/or negligently driven by its driver/owner/servant while trying to carelessly overtake another motor vehicle and as a result thereof, the vehicle hit or knocked the deceased as a result which she suffered fatal injuries.

3. The respondent particularized the negligence of the defendant and/or his servant, agent, driver and/or employee. The respondent further particularized the loss under the Fatal Accident Act and/or Law Reform Act. The respondent pleaded that the deceased was 21 years and a renowned business lady earning approximately Kshs 50,000/= per month. It was further pleaded that as a result of the accident, the life expectation of the deceased was cut shot and her dependants have suffered mentally and financially hence her estate has suffered loss and damages.

4. The appellant filed a defence dated 9/5/2018 denying the occurrence of the accident and denied the particulars of negligence attributed to the appellant and in the alternative pleaded negligence on the part of the deceased and the rider of motorcycle.

5. After the hearing, the trial Magistrate found in favour of the respondent and awarded her a sum of Kshs 1,542,668/= in damages.

6. Aggrieved by the outcome, the appellant filed the instant appeal and preferred eight (8) grounds of appeal as follows:-

7. a.The learned trial Magistrate erred in law and in fact in basing his findings on irrelevant issues not supported by evidence adduced or applicable in law;b.The trial court erred in law and in fact in apportioning liability at 50:50 despite overwhelming evidence to the contrary;c.That the trial court erred in law injudiciously, arbitrarily and exorbitantly awarding the respondent a sum of Kenya Shillings Three Million and Eighty-Five Three Hundred and Thirty-Six (3, 085, 336) as loss of dependency, pain and suffering and loss of expectation of life which amount was manifestly excessive and high in the circumstances and connotes an erroneous estimate of damages suffered. by dismissing the appellant’s case on technicalities;d.That the trial court erred in fact and in law by awarding Kenya Shillings Twenty Thousand for pain and suffering for a deceased that died on the spot of the accident;e.That the trial court erred in law and in fact by awarding Kenya Shillings Two Million Eight Hundred and Sixty-Two Thousand Three Hundred and Thirty-Six (2,862,336) despite overwhelming evidence to the contrary;f.That the trial court erred in law and in fact by awarding Kenya Shillings Two Hundred Thousand for loss of expectation of life;g.That the trial court erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arriving at an excessive and unjustified award.h.That the trial court erred in law and in fact by failing to consider the appellant’s evidence and submissions on record.

8. The appellant prayed:-a.That this appeal be allowed with costs.b.That this court set aside decree and judgement of the subordinate court and substitutes it with an order dismissing the entire suit with costs.c.That without prejudice to prayer (b) above, the finding of the Magistrate Hon RK Langat (SRM), delivered on January 21, 2021 on the issue of liability and quantum be set aside and the same be substituted with an award re- assessed downwards.d.That the costs of this appeal and the trial court be awarded to the appellant.

9. Directions on the appeal were taken that the appeal be canvassed by way of submissions. Both parties complied and the appellant submitted that all the grounds rest on the issue of quantum.

10. Under the head of loss of expectation of life, the appellant submitted that the award of Kshs 200,000/= was inordinately high and asked that it be substituted with an award of Kshs 100,000/=. It was submitted that since there was no proof of income, the trial court should have adopted an income of Kshs 6,896. 15 as provided for under the Regulation of Wages (General) (Amendment) Order, 2017and a multiplier of 30 years with a dependency ratio of 2/3 to bring the award to Kshs 1,655,076/=. In addition to the aforementioned, the appellant urged this court to find that a sum of Kshs 20,000/= would be appropriate under the head of pain and suffering and Kshs 100,000/= under the head of loss expectation which would be reasonable less 50% contribution.

11. On liability, it was submitted that from the evidence on record and taking into consideration that the deceased was a pillion passenger, she could not have done anything to avoid the accident and therefore cannot be held liable. The respondent urged this court to find that the trial court’s apportionment of liability at 50%:50% was lenient and that the appellant ought to bear 100% liability.

12. The respondent submitted that the Magistrate did not err in awarding Kshs 1,542,668/= after deducting 50% liability. The respondent invited the court to consider the case of Wilson Nyamai Ndeto & Another v China Wu Yi Limited & Another [2017] eKLR where the court awarded Kshs 8,626,620/=. It was further submitted that the deceased would have worked until retirement age and therefore a multiplier of 39 years was applicable and the dependency ration of 2/3 was proper. The respondent further urged this court to consider the inflation rate in the country in making its award.

13. This being the first appeal, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another v Associated Motor Boat Co Ltd[1968] EA 123.

14. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another [1988] eKLR where the Court of Appeal held: -“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

15. I have certainly read, understood and considered the appeal, the proceedings in the trial court and the submissions by both parties. The main issues for consideration are:-i.Liabilityii.Assessment of damages.

16. On the issue of liability, the magistrate aptly applied the evidence adduced having reviewed the evidence adduced by both parties. I agree with the trial court’s judgment at page 3 of paragraph 5 when the trial court said:-“Going by the evidence on record and the fact that the driver of motor vehicle KCD was charged for causing death by dangerous obstruction, it is logical that it is the one that had stopped abruptly at the middle of the road. PW1 testified that the said motor vehicle was in front of motor vehicle KCB and they were chasing each other this when KCD stopped abruptly then motor vehicle KCB which was following it closely also must have stopped abruptly otherwise there would have been a collision before the two. Since the motorcycle was following the two vehicles closely and was in high speed as was testified by PW1, the rider had no option but to overtake the two matatus only to come face to face with the oncoming lorry which PW1 testified that it was also in high speed.”

17. At paragraph 6, the court found that the evidence on record points a finger at both drivers of the two public service vehicles KCB 633M, KCD 972 and the cyclist. The court said:-“The evidence on record in my view, points a finger on the drivers of the 2 matatus and the motor cyclist. Each of them contributed to the accident in question. The driver of the motor vehicle KCD contributed to a large extent the cause of the accident having stopped abruptly at the middle of the road to pick a passenger but the same has not been made a third party. The 3rd party notice was filed but never served. The police abstract produced as an exhibit clearly lays blame on the driver of the said vehicle. The driver of the motor vehicle KCB and the rider also contributed equally by not keeping safe distance. The evidence on record was that the two vehicles were chasing each other closely thus when motor vehicle KCD stopped abruptly, the driver of KCB also had to stop abruptly and given that he had not maintained a safe distance as required by law. The cyclist had also not maintained a safe distance and he was forced to overtake otherwise he would have rammed on the motor vehicle KCB which he was following closely give that he was on high speed as was testified by PW2. PW3 and PW1 testified that the rider was hit by motor vehicle KCB when it tried to overtake the two matatus that had stopped abruptly. The driver of the said KCB was not called as a witness to she light on how the accident occurred. I am surprised that the defendant’s counsel has submitted that counsel on record for both parties entered consent to adopt the witness statement of the said driver. There is no such consent on record and this points to a deliberate act on the part of the counsel of the defendant to mislead the court.”

18. Having so found, that the 2 public service vehicles and a cyclist contributed to the accident, there is no evidence that the deceased who was a passenger contributed to the accident. Since the administrator of the deceased’s estate sued only the appellant, being one of the parties who contributed to the accident, it was incumbent upon the appellant to take out third party proceedings against the others involved. Having failed to do so, the appellant will bear liability and may take out third-party proceedings against the others unless he is time barred. In this case, there is no way that the passengers would have contributed to the accident. I find that the court’s finding apportioning liability was made in error and this court hereby sets aside the said finding. The appellant bears 100% liability.

19. The above position was reiterated by the Court of Appeal in Civil Appeal No 100 of 2017 Rosemary Mwasya v Steve Tito Mwasya & 2 Others[2018] eKLR where the court held:-“Our reasons for affirming the Judges conclusions are that the deceased as a passenger had no control over the manner in which the appellant drove/managed and or controlled the accident vehicle prior to the accident.” (emphasis)

20. On quantum, the duty of the appellate court to assess and interfere with damages, the principles are well settled. The Court of Appeal inBashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR set out the parameters under which an appellate court will interfere with an award in general damages when it held that: -‘An appellate court will not disturb an award for general 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 arrived at a figure which was either inordinately high or low...”

21. In Sheikh M Hassan v Kamau Transporters (1986) eKLR the Court laid down the guidelines for assessing damages for lost years under the Law Reform Act. These guidelines are: -a)“The sum to be awarded is never a conventional one but compensation for a pecuniary loss.b)It must be assessed justly and with moderation,c)Deduct the victims’ living expenses during the “lost years” for they would not form part of the estate.d)A young child’s present or future earnings in most cases would be nil.e)An adolescent would usually be real, assessable and small.f)Calculate the annual gross loss.g)Apply the multiplier (estimated number of “lost working years” accepted as reasonable in each case).h)Deduct the victim’s probable living expenses of a reasonably satisfying enjoyable life for him or her.”

22. On pain and suffering, in Civil Appeal No 42 of 2018 Joseph Kivati Wambua v SMM & Another (suing as the Legal Representatives of the Estate of EMM-(Deceased)Odunga J held:-“…a distinction ought to be made between a case where the deceased passes away instantly and where the death takes place sometimes after the accident. In the former, the award ought to be minimal as the legal presumption is that the deceased did not undergo pain before he died. However, where the deceased dies several hours after the accident during which time he was conscious and was in pain, an award for pain and suffering would not be nominal.”

23. PW2 Patrick Onyango, testified that the suit motor vehicle hit the motorcycle ferrying the deceased and the motorcycle veered off the road and hit an oncoming lorry. He also stated that the deceased died on the spot. The deceased must have died a painful death from the impact of the suit motor vehicle and also hitting an oncoming lorry. I am of the view that a sum of Kshs 100,000/= is commensurate as damages for pain and suffering.

24. On loss of expectation of life, I am persuaded by the findings in Lucy Wambui Kohoro v Elizabeth Njeri Obuong [2015]eKLR and in Civil Appeal No 113 of 2012 Makano Makonye Monyanche v Hellen Nyangena [2014] eKLR in which the Learned Judge RN Sitati held:-“I find no reason to interfere with the award on loss of expectation of life under the Law Reform Act as the same is always awarded at Kshs 100,000/= across the board and the same is eventually deducted to avoid double award to same beneficiaries.”

25. I therefore award a sum of Kshs 100,000/= as loss of expectation of life The said award shall eventually be taken into consideration and deducted from the final tally to avoid double compensation in the estate of the deceased.

26. On loss of dependency, the respondent stated that the deceased was his wife and they had a child who was 5 years old at the time of his wife’s demise. The dependants contemplated under the Fatal Accidents Act are defined under Section 4 (1) as follows: -“Every action brought by nature of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused [and shall…..be brought by and in the name of the execution or administrator of the person deceased]”

27. That being the case, the respondent is a dependant as contemplated under the Act. The respondent testified that the deceased was a business person earning Kshs 50,000/= per month. There were no documents produced in evidence as proof of the stated earnings, such as bank or even MPESA statements.

28. Be that as it may, in Nyamira Tea Farmers Sacco v Wilfred Nyambati Keraita and AnotherKisii Civil Appeal [2011] eKLR it was held that:-“…Without any tangible evidence as to the existence of the open air hair saloon and how much it used to make monthly, I do not think that the trial magistrate had any basis for settling for the conventional figure of Kshs 9,000/=. In the absence of proof of income, the trial magistrate ought to have reverted to the Regulation of wages (General Amendment Order 2005)…”

29. In the absence of documentary proof on the profession or other, and income of the deceased, the court falls back to the Regulation of Wages (General) Amendment Order, 2017 which was in force at the time of the deceased’s death. The deceased was said to be a business lady. Under the Regulation of Wages (General) Amendment Order there is no particular grade for a business lady. In exercise of this court’s discretion, and I will classify the deceased as general labourer. The wage for a general labourer was Kshs 6,896. 15 per month.

30. The deceased died at the age of 21 years. The choice of a multiplier is a matter of discretion which discretion has to be exercised judiciously. In Retco East Africa Limited v Josephine Kwamboka Nyachaki & another [2021] eKLR, the deceased, a boda boda rider died at the age of 23 years and the court adopted a multiplier of 27 years. In Ruth Wangechi Gichuhi v Nairobi City County[2013] eKLR, the court applied a multiplier of 30 years for the deceased aged 22 years at time of death. Ireri Moses v Peter Mutugi Muthike (suing as the legal administrator of Estate of the Late Mary Njeri Muthike (Deceased) [2019] eKLR the deceased was a student aged 23 years who was unemployed. The appellate court upheld the adopted a multiplier of 20 years. Taking into account the vagaries and uncertainties of life and also considering that the deceased left a young child, a multiplier of 30 years is reasonable.

31. On dependency, the only dependants of the deceased are her husband and child. The application ratio of 2/3 is reasonable. Under the head of loss of dependency, the court finds as follows: -Kshs 6,896. 15×30×12×2/3=1,655,076

32. In the end, the appeal partially succeeds. I hereby set aside the judgement and decree of the trial magistrate dated and delivered on January 20, 2020 and enter judgement in favour of the respondent as follows: -Liability 100% in favour of the respondentPain and suffering 100,000/=Loss of dependency 1,655,076/=Special damages 3,000/=Sub Total 1,758,076/=Loss of expectation of life (less) (100,000/=)Grand Total 1,658,076/=

33. Costs of the lower suit and interest awarded to the appellant and half the costs in this appeal.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 3RD DAY OF OCTOBER 2022. R. WENDOHJUDGEJudgement delivered in the presence of;N/A for the Appellant.NA/ for the Respondent.Ms Nyauke Court Assistant