[2022] KEHC 1222 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO 18 OF 2020

OURU SUPERSTORES LIMITED.................................................................APPELLANT

VERSUS

MARY BUYAKI

SAMWEL OKENYURI OGUTUsuing as the LegalRepresentatives of

OMAMBIA NEHEMIA OGUTU..........................................DECEASED/RESPONDENT

(Appeal from the judgment and decree of Hon. M.M.Nafula, (Senior Resident Magistrate)

Dated and delivered on the 29th May 2019 in the original Ogembo PMCC No.37 of 2014)

JUDGMENT

1. The respondent filed a suit before the subordinate court on account of a road traffic accident which occurred on 21st March 2012 along Nyagancha-Magenche road.

2. According to the respondent, Nehemiah Omambia Ogutu (deceased) was offloading goods from motor vehicle registration No. KBM 736P when the appellant’s driver without notice to the deceased suddenly drove the motor vehicle causing the deceased to fall from the vehicle. The deceased suffered fatal injuries and died. The respondent alleged that the appellant’s driver was negligent and the appellant should be vicariously liable for the tortuous acts and omissions committed to the deceased.

3. The respondent therefore sought special damages, general damages, interest and costs of the suit.

4. The appellant in denying the claim filed its statement of defence. According to the appellant, the deceased was not offloading shop goods from the vehicle at the time the accident occurred and that the appellant is not responsible for the accident.

5. It was pleaded in the alternative that without the knowledge of the appellant’s driver, the deceased climbed the reverse of the lorry after the vehicle had taken off and fell from a moving vehicle. The defendant thus claimed that the accident was as result of the negligence on the part of the deceased.

6. The trial magistrate conducted a full hearing and found the appellant Kshs 100% liable for the accident and made the following award on damages:

a) Pain and suffering…………………...100,000/-

b) Loss of expectation of life…………..150,000/-

c) Loss of dependency………………2,800,000/-

d) Special damages……………………..49,500/-

TOTAL………………………………3,099,500

7. The appellant aggrieved by the finding of the trial magistrate filed a memorandum of appeal dated 18th February 2020 raising 10 grounds of appeal. The appeal challenges the trial magistrate’s decision on liability and quantum and the appellant further contends that the judgment is a nullity as it was delivered without notice to the parties contrary to Order 21 Rule 1 of the Civil Procedure Rules 2010.

ANALYSIS AND DETERMINATION

8. At the hearing of the appeal the court directed that the appeal be disposed of by way written submissions. The court further directed the parties to file their respective submissions and both parties complied.

9. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See the case of Selle v Associated Motor Boat Company Ltd[1968] E.A. 123, 126).

10. The appellant in his submissions argued that the trial magistrate did not consider its evidence that the deceased was an intruder who climbed on the reverse of the lorry and exposed himself to known and unknown danger. They cited the case of John Ouko Yogi v Spin Knit Co. Ltd, H.C.C.A. No. 117 of 2000where the court observed that:

“The finding of the trial magistrate that the appellant was the author of his own misfortune therefore is not misplaced and has foundation. The Appellant embarked on a course of action which he knew or ought to have known would cause injury to him. The decision of the Appellant to embark on the said course of action can only be described as an action of a volunteer who risks his health by undertaking an inherently dangerous activity. The appellant did not care that he would be injured. Where such a person is injured he cannot blame anyone. In the instant Appeal the respondent was able to prove on a balance of probabilities that the appellant in fact engaged in an activity which he had been specifically warned against. I am aware of the decision of Mghosi versus Gayatri Engineer Works [1981] KLR 163where a court of concurrent jurisdiction as this one held that it was not enough for an employer to provide safe working systems or appliances, he required to also ensure that the system is followed and the proper appliances used. In the instant Appeal, the appellant was not only trained, but was warned by notices posted near his place of work of the do’s and don’ts of operating the said machine. He chose to ignore the said warnings to his peril. He was consequently injured.”

11. The most crucial witness for the respondent was Henry Nyabuto Oguche (Pw2) who witnessed the accident. He testified that on the material day he saw the vehicle and noted that goods were being offloaded from the vehicle. Pw2 recalled that he saw 3 people engaged in offloading of goods. Pw2 explained that one person was on top of the lorry reading a list while the other two were on the ground. Pw2 testified that after the goods were offloaded, two people including the person who had the list of goods went to sit at the vehicle’s front cabin. The deceased who was in the rear part of the lorry was standing and holding on to the door of the lorry. Pw2 recalled that after the lorry moved for about 100 meters, the deceased fell down.

12. The appellant on the other hand relied on the evidence of Dickson Moturi Onchera (Dw1) who was the driver of the lorry. He testified that he did not witness the accident but was told by people that an accident had occurred as the deceased had fallen from the rear of the lorry. According to Dw1 the deceased was a stranger who fell down while trying to board the vehicle. However, Dw1 was not an eye witness to the accident and cannot therefore for certain prove that the deceased fell down as he tried to board the lorry.

13. It is clear from the evidence of Pw2, who was an independent witness that the deceased helped to offload goods from the appellant’s lorry, was allowed to be a passenger and fell down as the vehicle too off.

14. The fact that the deceased was not an employee of the appellant is not disputed. The appellant denied that the deceased was under its employment. Samuel Ogembo Okenyari (Pw1) testified that the deceased was a casual labourer and used to work at an estate earning Kshs 10,000/- per month. The appellant have submitted that the deceased was not a lawful passenger and neither was he an employee of the appellant and he therefore understood the risks of getting on to the rear of the vehicle.

15. The court in Beatrice William Muthoka & another (Both Suing as Legal Representatives of the Estate of the Late William Muthoka Yumbia (Deceased)) v Agility Logistics Limited [2020] eKLR was faced with the question of whether the estate of a deceased who died while on board on the respondent’s trailer was entitled to damages and the court found the respondents 100% liable. The court observed as follows:

“… it is in my opinion clear that the deceased cannot be said to have consented to the risk of an accident or consented to negligence when he asked for the lift from the respondent’s employee as the driver owed him a duty of care as such this defence [volenti non fit injuria] cannot apply…………………….

……………My understanding of this doctrine on vicariously liability is for the claimant to establish the agency relationship between the master and the servant; alongside with the task thereby delegated to him to perform on behalf of the master. Thus in Basley v Curry {1999} 174 DLR the Court pronounced itself as follows:

“The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts. It is fair that the person or organization that creates the enterprise and hence the risk should bear the loss.”

…………………….……….It is not in dispute that the respondent was not in the business of carrying fare paying passengers, but this argument is almost taoutological. This suggests that whether the negligent act furthers the respondent’s aims is more relevant when it points the other way, because one assumes that intentional torts do not further employer’s ends; it is only remarkable when the intentional torts do, in fact making imposition of vicarious liability appropriate. By clothing the driver, servant or agent with power of being in control of the aforesaid motor vehicle, the respondent introduced a risk however small but real of its abuse. This in my view the respondent may fairly be held responsible for the misuse of such power done in the course of his duties as delegated in the contract of service……………………………………………From the evidence adduced, the respondent failed to show that the act though done in disobedience of his notification, the appellant did nothing to contribute to the assumption of that consequential loss and damage.”

16. I am therefore inclined to agree with the findings of Nyakundi J in Beatrice William Muthoka & another case (supra) that the appellant is culpable for every wrong doing of its servant/driver that he (the driver) commits in the course of the service, even where such acts with no express command of the appellant.

17. According to the testimony of Pw2, the deceased was holding on to the door of the lorry as the appellant’s driver drove away. In my view, the deceased ought to have known that by holding on to the door of a moving lorry, there was a probability that the locks of the lorry could dislodge and as a result real risk would be occasioned. The deceased owed himself a duty of keeping himself from harm’s way. The appellant cannot therefore be held to be 100% liable for the accident and in the circumstance; I apportion liability in the ratio of 50:50 as against the parties.

18. I shall now turn to consider the issue of damages under the Fatal Accident Act and the Law Reform Act. The principles which an appellate court will interfere with an award in general damages was stated by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR as follows:

‘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...’

19. The appellant argues that the deceased’s death certificate indicate that he was a peasant farmer and that the respondent failed to show how they were maintained by the deceased. It was also argued that the multiplicand of 35 years was applied by the trial court yet the deceased was not working and a street urchin.

20. The court in determining a multiplier must consider the deceased the age of dependants and the expected length of dependency, expectations of earning life and vicissitudes of life. In Roger Dainty v Mwinyi Omar Haji & Another MSA CA Civil Appeal No. 59 of 2004 [2004]eKLR, the Court to Appeal observed that;

“To ascertain the reasonable multiplier or multiplicand in each case, the court would have to consider such relevant factors as the income or prospective income of the deceased, the kind of work the deceased was engaged in, the prospects of promotion and his expectation of working life.”

21. The court in Marko Mwenda vs. Bernard Mugambi & Another Nairobi HCCC No. 2343 of 1993 held that:

“In adopting a multiplier the Court has regard to such personal circumstances of both the deceased and the dependants as age, expectations of earning life, expected length of dependency and vicissitudes of life. The capital sum arrived at by applying the multiplicand to the multiplier is then discounted to allow for the fact of receipt in a lump sum at once rather than periodical payments throughout the expected period of dependency. The object of the entire exercise is to give the dependants such an award as would when wisely invested be able to compensate the dependants for the financial loss suffered as a result of the death of the deceased…The multiplier approach is just a method of assessing damages and not a principle of law or 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 ages of the dependants, the net income of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are unknown 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. Such sacrifice would have to be made if the multiplier approach was insisted upon in this case.”

22. It was not disputed that the deceased was 19 years old, was unmarried and without children at the time of his death. Pw1 testified that they were being maintained by the deceased at the time of his death. However the Court of Appeal in Dickson Taabu Ogutu (suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & Another (2020)eKLRheld that:

The onus was on the appellant to prove that their aged parents were indeed dependent on the deceased and the extent of loss they have suffered considering the fact at the time of the hearing the appellant, also their son, had a job at the County Governor’s office. We reiterate the holding in Albert Kubai Mbogori v Violet Jeptum Rahedi [2017] eKLR;

“The degree of dependency on the deceased’s income is a matter of fact. In Boru –vs-Onduu [1982-1988] KAR 299, the Court expressed that,

“The extent to which the family is being supported must depend on the circumstances of each case. To ascertain it the judge will analyze the available evidence as to how much the deceased earned and how much he spent on his family. There can be no rule or principle in such a situation.”

23. In this case, Pw1 testified that the deceased was his son and that he is a farmer. In the circumstance, Pw1 was therefore making an income from farming and capable of taking care of himself and his family. The ratio applied by the trial magistrate of 2/3 was therefore high. The deceased being unmarried and without children, I find that a dependency ratio of 1/3 is proper.

24. Pw1 testified that the deceased was a casual laborer earning Kshs 10,000/- per month. According to the evidence of Pw2, the deceased on the day of his death was offloading goods from the lorry of the appellant and in my view the respondent thus proved that he was a casual laborer. According to the Regulation of Wages (General) (Amendment) Order, 2012, casual workers/general laborers earned Kshs 4,577 .20/-. The amount of Kshs 10,000/- applied by the trial magistrate was therefore high and I find that the deceased being a casual worker earned 4,577 .20/-.

25. I also find that the multiplier of 35 years adopted by the trial court was adequate. In the case of 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.

26. The appellant also submitted that the trial magistrate’s award on pain and suffering was excessive and therefore relied on the case of Simon Bogonko v Alfred Mongare Mecha & Another (suing as the legal representatives of the estate of Akama Mong’are (deceased) [2019] eKLR where an award for Kshs 100,000/- for pain and suffering was reduced to Kshs 20,000/-.

27. In Lucy M. Njeri v Fredrick Mbuthia & Anor Civil Case No. 1484 of 1993 [2006]eKLR the estate of the deceased was awarded Kshs. 50,000/= for pain and suffering as the deceased had died on the same day and Kshs. 70,000/= for loss of expectation of life. Considering that the deceased did not suffer for long after the accident, I find that the award for pain and suffering was excessive. I therefore substitute the award of Kshs. 100,000/= with an award of Kshs. 50,000/= while the award on loss of expectation is set aside and substituted with an award of Kshs 100,000/-.

28. In conclusion, the appeal is allowed and I set aside the award of the trial court and substitute it with the following award:

KSHS

Pain and suffering 50,000

Loss of expectation of life 100,000

Dependency – [4,577. 20 x 12 x 35 x 1/3] 640,808

790,808

Less 50% contribution 395,404

Special damages 49,500

TOTAL 444,904/-

29. The appellant shall have half the costs of the appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF MARCH 2022.

R. E. OUGO

JUDGE

In the presence of:

Mr. Mulisa For the Appellant

Mr. Orayo For the Respondent

Aphline Court Assistant