[2022] KEHC 10946 (KLR)

Okoma v Odinga & another (Suing as Administrators and Personal Representatives of the Estate of Sakina Misiko Deceased) (Civil Appeal E032 of 2021) [2022] KEHC 10946 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10946 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E032 of 2021

WM Musyoka, J

June 10, 2022

Between

Dorine Namukhula Okoma

Appellant

and

Sebii Akungwi Odinga

1st Respondent

Samuel Mukhuyu Misiko

2nd Respondent

Suing as Administrators and Personal Representatives of the Estate of Sakina Misiko Deceased

(Appeal from judgment and decree of Hon G Ollimo, Senior Principal Magistrate, in Butere PMCCC No 70 of 20193, of 3rd June 2021)

Judgment

1. The appellant had been sued the respondents, at the primary court, for compensation arising out of the death of the deceased, following a traffic road accident on February 13, 2019, along Sabatia-Butere Road. The deceased was a pedestrian who she got into a collision, with a motor vehicle registration mark and number KBZ 775Y, said to have belonged to the appellant, and liability was attributed on the appellant on account of negligence. The appellant filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the appellant pleaded that, if any accident occurred, it must have been due to negligence on the part of the deceased, or she contributed to it, or it was beyond the control of the appellant. A trial was conducted, and the court found in favour of the respondents, apportioned liability at 100% against the appellant, and awarded damages totaling Kshs 2, 273, 550. 00.

2. The appellant was aggrieved, hence the appeal. It has raised several grounds: that the trial court disregarded the appellant’s defence and submissions; ignored the principles of awarding damages and chose to apply the global figure approach instead of the multiplier approach; erred in awarding a sum of Kshs 2, 273, 550. 00 which was inordinately high; and assessed liability at 100% when the evidence by the respondents was conflicting. She sought the setting aside of the judgment and decree, and a reassessment of the liability and quantum of compensation.

3. On November 3, 2021, the parties suggested disposal of the matter by way of written submissions. None of the parties had filed written submissions, by the time the matter was mentioned on January 24, 2022, when I allocated to it a date for judgment.

4. From the memorandum of appeal, dated July 2, 2021, the issues raised on appeal, and which fall for determination, are:a.Whether the trial court erred in assessing liability;b.Whether the trial court erred in applying the global figure approach to assessment of general damages instead of the multiplier approach; andc.Whether the award of Kshs 2, 273, 550. 00 was inordinately high.

5. On liability, the starting point should be that the incident was a collision between a motor vehicle and a pedestrian. The evidence that was laid before the trial court is set out in the witness statements filed before the court and in the oral statements of the witnesses. PW1, the 1st respondent, adopted her statement. She did not witness the accident. PW2, Wilson Nambaka Akhware, said that he witnessed the accident, at 8. 00 PM on February 13, 2019. The deceased, according to him, was walking along the road, off the road, when the vehicle hit her from behind. He described the vehicle as having been moving in a zig zag manner. The deceased was allegedly hit while she was on the left side of the road, and she fell off the road. PW3, No 110324 PC Steven Kyallo, produced the police records on the accident, according to which the accident vehicle hit the deceased while she was on the left side of the road. During cross-examination, he stated that the deceased was to blame, for she crossed the road from left side of the road to the right. During reexamination, he stated that the driver was charged with careless driving. DW1, Ramadhan Wanga, was the driver of the accident vehicle. He said that the deceased emerged from the side of the road, and abruptly began to cross it in the face of the oncoming vehicle. He said that he saw her while she was in the middle of the road, he hooted and swerved, but he still hit her, and he stopped seven metres from the point of impact. He conceded that he had been charged with a traffic office. He said that the deceased crossed on a straight path, then again said she was moving in a zig zag manner.

6. There is no contest that a collision happened between the deceased and the vehicle, the dispute is on whether there was negligence of the part of the driver of the vehicle or whether the pedestrian contributed. From the testimonies presented by the eyewitnesses, what exactly happened is conflicting. PW2 alleges that the deceased was hit off the road, while walking along the road, in the same direction with the vehicle; while DW1 says that she was hit while she was in the middle of the road, crossing it. The testimony of PW3 was not helpful, for the witness did not give an indication of the point of impact, as established from the police investigations, which would have resolved the conflicting statements by PW2 and DW1. He stated that the police investigations pointed to the deceased being blameworthy, for crossing the road from left to right, whatever that meant. Yet, DW1 was still charged with careless driving. So, if the pedestrian was to blame, why then did the police charge the driver? The utility of the testimony and evidence presented by PW3, was that a collision did happen between the deceased and a vehicle belonging the appellant, which fact the appellant does not contest.

7. The trial court believed the case presented by the respondents and assessed liability at 100%, because of the inconsistencies in the case presented by the appellant, and the unreliability of the evidence presented by the police. I agree entirely with the trial court. Lots of things do not add up about what PW3 and DW1 told the court, and the evidence presented by PW2, was more reliable and believable. I note that DW1 conceded that PW2 was at the scene. I am, therefore, not persuaded that the finding by the trial court on liability could be faulted, after all the trial court had the benefit of hearing and seeing the witnesses testify.

8. The next issue is about the trial court adopting the global figure approach instead of the multiplier approach. The parties have not submitted, and, therefore, I have not had the benefit of their insights and positions on this. However, the law appears to be that it would be at the discretion of the trial court to choose the approach to adopt for the purposes of assessment of damages. Ringera J in Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd, cited in Albert Odawa v Gichimu Gichenji [2003] eKLR, said as follows about the multiplier approach:“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.”

9. Going by Mwanzia Ngalali Mutua v Kenya Bus Services (Msa) Ltd (supra), I do not see basis upon which I can conclude that the trial court fell into error for adopting the global award approach instead of the multiplier approach, and, therefore, the award of Kshs 2, 000, 000. 00 cannot be faulted in the circumstances.

10. Overall, I find no merit in the appeal. I hereby dismiss the appeal with costs own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022W MUSYOKAJUDGEMr Erick Zalo, Court Assistant.Mr Otsyeno, instructed by EK Owinyi & Company Advocates, for the appellant.Mr Mukisu, instructed by Mukisu & Company, Advocates, for the respondent.