[2022] KEHC 9826 (KLR)

Onyancha (Suing as the Personal representative and legal administrator of the Estate of Beatrice Kerubo Nyakundi alias Kwamboka (Deceased)) v Makini (Civil Appeal Suit E048 of 2021) [2022] KEHC 9826 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9826 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal Suit E048 of 2021

JN Kamau, J

July 19, 2022

Between

Norah Ann Onyancha

Appellant

Suing as the Personal representative and legal administrator of the Estate of Beatrice Kerubo Nyakundi alias Kwamboka (Deceased)

and

Duke Ayusa Makini

Respondent

(Being an appeal from the Judgment and decree of Hon W. C. Waswa (RM) delivered at Nyamira in the Chief Magistrate’s Court Case No 84 of 2020 on 28th June 2021)

Judgment

Introduction 1. In his decision of June 28, 2021, the Learned Trial Magistrate, Hon W. C. Waswa, Resident Magistrate, found Beatrice Kerubo Nyakundi alias Kwamboka (hereinafter referred to as “the deceased”) and the Appellant herein to have been equally liable for the accident herein. He entered judgment in favour of the Appellant herein as follows:-Pain and suffering Kshs 50,000/=Loss of expectation of life Kshs 150,000/=Loss of dependency Kshs NilSpecial Damages Kshs 75,350/=Kshs 275,350/=Less 50% Kshs 137,675/=Kshs 137,350/=Plus costs of the suit and interest thereon.

2. Being aggrieved by the said decision, on July 6, 2021, the Appellant herein filed a Memorandum of Appeal dated July 1, 2021. She relied on three (3) grounds of appeal.

3. The Appellant’s Written Submissions were dated February 16, 2022 and filed on February 18, 2021 while those of the Respondent were dated April 1, 2022 and filed on April 19, 2022. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis. 4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

5. This was aptly stated in the case of Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123 where the court therein held that the appellate court is not bound necessarily to accept the findings of fact by the court below and that on appeal while it must reconsider the evidence, evaluate it itself and draw its own conclusions, it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

6. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-a.Whether or not the Learned Trial Magistrate erred in having found the Appellants to have been jointly and severally to blame for the accident herein warranting interference by this court; andb.Whether or not the Learned Trial Magistrate erred in having awarded the 1st Respondent herein damages that were excessive and/or inordinately high warranting interference by this court.

7. The court therefore found it prudent to determine the said issues under the following distinct and separate heads.

I. Liability. 8. The Appellant submitted that No 8xxxx PC Justus Kipkoech (hereinafter referred to as “PW 1”) who was stationed at Nyamira Police Station and Peterson Oirere Atambo (hereinafter referred to as “PW 3”), an eye witness to the accident established her case on a balance of probability. She therefore faulted the Learned Trial Magistrate for having found the deceased to have been 50% liable for the accident. Although she alluded to an authority to support her argument, none was cited in her Written Submissions.

9. On his part, the Respondent submitted that apportionment of liability at 50%was fair because the Appellant failed to prove her case on a balance of probabilities. He placed reliance on the case of Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR where it was held that in civil cases, the standard of proof was on a balance of probabilities and the burden of proof lay with the party who alleged. He also relied on the case of Lakhamshi v Attorney General [1971] EA 118, 120 as quoted in Calistus Juma Makhanu v Mumias Sugar Co Ltd & another [2021] eKLR where it was held that in traffic cases, where evidence was insufficient to establish the negligence of any party, the court had to find the parties equally to blame.

10. Notably, the Appellant did appeal the equal apportionment of liability as a ground of appeal in her Memorandum of Appeal as provided in Order 42 Rule 1(2) of the Civil Procedure Rules, 2010 that stipulates that the memorandum of appeal shall set forth all the grounds of appeal. She alluded to the same for the first time in her Written Submissions.

11. Technically, the court ought not to have considered the same as she did not amend her Memorandum of Appeal so as to include the same as provided in Order 42 Rule 3 of the Civil Procedure Rules. Be that as it may, as the Respondent did not object to the said issue having been raised at the submission stage and bearing in mind the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, this court deemed it fit, just and in the interests of justice to consider the arguments that had been set forth.

12. It was evident that the only Prosecution witness who saw the accident occur was PW 3. Although he could not remember the date of the accident, he testified that on that material date at around 1. 00 pm, he was at Kemera Market on the right side facing Nyamira direction when he saw the deceased on the left side facing Nyamira when Motor Vehicle Registration Number KCC 934 (hereinafter referred to as “the subject Motor Vehicle”) hit her. He stated that the said Motor Vehicle was being driven at a speed of 70kph and was on the same side as the deceased.

13. His further evidence was that the deceased was off the road before the yellow line and had not started crossing the road. He was emphatic that he could see the yellow lines on the road. He averred that the driver of the said subject Motor Vehicle was not driving at a high speed but that the deceased was thrown up in the air and landed in the middle of the road.

14. According to the Respondent herein, on April 21, 2019, he was driving the subject Motor Vehicle from Kisii to Itombe via Kemera at a speed of 50 kph. He reduced the speed to 20kph when he reached a bump. Just then the deceased abruptly entered into the road between vehicles as a result of which she was hit by the side mirror and left side of the subject Motor Vehicle.

15. According to PW 1, the Occurrence Book did not show the point of impact and that the Police Abstract Report did not indicate who was to blame for the accident.

16. This court had due regard to the decision of the Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] eKLR where it was held:-“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

17. Having said so, the court ought to consider which parties are involved in an accident. The liability between a driver of a Motor Vehicle and a pedestrian cannot be equated unless it is so crystal clear that a pedestrian put himself or herself in a position that a driver could not be anticipated such as when a pedestrian jumps into a road on a suicide mission.

18. In all other instances, drivers are expected to exercise due care and diligence and take all evasive action to road users who may themselves be negligent on the roads as that is not an unreasonable thing to expect.

19. In this particular case, the accident occurred near a market where there were pedestrians. It appeared to have been a built up area where speed is ordinarily limited to 50kph or less. This court concluded that it was in a built up area as there was a bump. The Respondent was therefore expected to have reduced his speed while driving in the area.

20. The deceased could not have sustained fatal injuries on being hit by a vehicle that was being driven at 20kph. The fact that the deceased died from the injuries was proof that the Respondent was driving at a high speed. This court was thus persuaded by PW 3’s evidence that the deceased was thrown up in the air and fell on the road because the Respondent was driving at an excessive speed in a built up area and dismissed his evidence that the deceased merely fell on the ground upon being hit by the left side mirror.

21. Taking all the circumstances of the accident into consideration, this court found and held that both the deceased and the Respondent were negligent but because the Respondent was in charge of a motor vehicle which could be deemed to have been a lethal weapon, this court found and held that apportionment of liability at 65%- 35% against the Respondent and the deceased respectively was appropriate as the point of impact was not discernible from the evidence that was adduced in court. The fact that the deceased landed in the middle of the road suggested that she was not on the side of the road. If the accident occurred off the road, the deceased would probably have landed on the side of the road.

II.Quantum. 22. Grounds of Appeal Nos (1), (2) and (3) were dealt with under this head as they were all related. They were, however, dealt with under the following distinct and separate heads.

A. Pain and Suffering. 23. The Appellants urged this court to re-assess the sum of Kshs 50,000/= that was awarded under this head and award a sum of Kshs 150,000/=. She relied on the case of Nancy Ann Wathithi Gitau & Another [2016] eKLR where the court awarded a sum of Kshs 100,000/= where the deceased died thirty (30) minutes after the accident.

24. On his part, the Respondent asked this court not to disturb the sum that was awarded by the court. He placed reliance on the case of Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR and Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR as quoted in the case of Wachira Joseph & 2 Others v Hannah Wangui Makumi & another [2021] eKLR where the courts therein awarded a sum of Kshs 50,000/= for pain and suffering.

25. As was held in the case of Kiwanjani Hardware Limited & another v Nicholas Mule Mutinda [2008] eKLR, an appellant court will not disturb an award of damages unless the same is inordinately low or high so as to represent an erroneous estimate or was based on an entirely wrong principle.

26. This court agreed with Majanja J’s observations expressed in the case of Wachira Joseph & 2 others v Hannah Wangui Makumi & another (Supra), a sum of Kshs 50,000/= - Kshs 100,000/= have been awarded under the head of pain and suffering.

27. The award of Kshs 50,000/= for pain and suffering that was awarded by the Learned Trial Magistrate was not so inordinately high or inordinately low to have warranted the interference by this court. This court did not therefore find any merit in the Appellant’s argument in this regard.

B. Loss of Exepectation of Life. 28. The Appellant urged this court to maintain the award of Kshs 150,000/= that the Learned Trial Magistrate awarded for loss of expectation of life. The Respondent submitted that there was no need for this court to interfere with the same.

29. Accordingly, this court left the award of Kshs 150,000/= for loss of expectation of life undisturbed.

C. Loss of Dependency. 30. The Appellant submitted that the Learned Trial Magistrate erred for not having awarded her damages under the head of loss of dependency. She argued that she had tendered in evidence a letter from the Chief indicating that the deceased was an orphan and that she (the Respondent) was the one who was taking care of her before her death and thus asked this court to consider this as an exceptional case and invoke the provisions of Section 4(1) of the Fatal Accidents Act.

31. She urged this court to award a lump sum figure as the deceased was a college student and she died at the age of eighteen (18) years. In this regard, she placed reliance on the cases of Francis Odhiambo Nyunja & 2 Others v Jospehine Malala Owinyi (suing as the legal administrator of the estate of Kevin Osore Rapando (deceased) [2020] eKLR and Zachary Abusa Magoma v Julius Asiago Ogentoto & another [2020] eKLR where the courts therein each awarded a global sum of Kshs 1,500,000/= for loss of dependency where the deceased persons were aged seventeen (17) years and in college respectively.

32. She further relied on the case of Kenya Power & Lighting Co Ltd vs Sophie Ngele Malemba & another [2019] eKLR where Kemei J upheld an award for loss of dependency to brothers and sisters of the deceased therein on account fact that had the deceased’s mother been alive, the award of loss of dependency would have been given to her to assist the deceased’s siblings as they had been looking up to him after their mother passed away.

33. On his part, the Respondent was emphatic that the Appellant was the deceased’s aunt and did not therefore fall within the definition of a dependant. He submitted that the Appellant did not prove dependency which was a matter of evidence as was held in the case of Abdalla Rubeya Hemed v Kayuma Mvurya & another [2017] eKLR as was quoted in the case of Samuel Mutitu Nderitu ( suing on his own behalf and as Legal representative of the Estate of Gladys Muringi Nderitu (deceased) vs Erastus Mutahi Mugambi[2021] eKLR.

34. This court noted that Section 4(1) of the Fatal Accidents Act Cap 32 (Laws of Kenya) provides as follows:-“Every action brought by virtue 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…”

35. This court took the view that Section 4(1) of the Fatal Accidents Act was clear as to the limit of the persons who could bring a cause of action for the claim of loss of dependency. An aunt, cousin, nephew, niece, grandparent were not envisaged by the Act. If it was the intention of Parliament to have had extended relatives claim for loss of dependency, nothing would have been easier than for it to have included any other person (emphasis court) to be a dependant within the meaning of Section 4(1) of the Fatal Accidents Act.

36. This court thus respectively took a different view from Kimei J in the case of Kenya Power & Lighting Co Ltd v Sophie Ngele Malemba & another (Supra) because there was a risk of expanding the list of beneficiaries outside what was allowed by the law. Indeed, in the African context, distant cousins could also claim to be persons who can bring an action for loss of dependency for relatives they never even interacted with in their lifes merely because they were relatives. This expansion can be abused by busy bodies out to benefit monetarily from a deceased person. Wives, husbands, parents and children are more often than not direct dependants.

37. This court thus agreed with the Respondent that the claim for loss of dependency was not payable and that the Learned Trial Magistrate did not err when he did not award any sum under that head.

Conclusion. 38. Accordingly, this court found and held that Grounds of Appeal Nos (1), (2) and (3) were not merited and the same be and are hereby dismissed.

Disposition_ 39. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on July 8, 2021 was partly merited. The effect of this is that the equal apportionment of liability against the Appellant and the Respondent herein that was entered by the Learned Trial Magistrate be and is hereby set aside and/or vacated and the same be and is hereby replaced with a Judgement that liability be and is hereby apportionment at 65%- 35% basis against the Respondent and Appellant herein respectively.

40. Accordingly, judgment be and is hereby entered in favour of the 1st Respondent herein against the Appellant herein for the sum of Kshs 178,977. 50 made up as follows:-Pain and suffering Kshs 50,000. 00Loss of expectation of life Kshs 150,000. 00Loss of dependency Kshs NilSpecial Damages Kshs 75,350. 00Kshs 275,350. 00Less 35% Kshs 96,372. 50Kshs 178,977. 50Plus costs of the suit and interest thereon at court rates. Interest on damages for pain and suffering and loss of expectation of life will accrue from the date of judgment while interest on special damages accrue from the date of filing suit.

41. As the Appellant was partially successful in the Appeal herein, each party will bear its own costs of the Appeal herein.

42. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF JULY 2022J. KAMAUJUDGE