[2023] KEHC 25579 (KLR)

Petrocity Enterprises Ltd & another v Muhatia (Suing as the Legal Representative to the Estate of Benedict Ling’oori Muriswa - Deceased) (Civil Appeal E145 of 2022) [2023] KEHC 25579 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25579 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E145 of 2022

RN Nyakundi, J

November 21, 2023

Between

Petrocity Enterprises Ltd

1st Appellant

Scarce Comodities Ltd

2nd Appellant

and

Andrew Musirwa Muhatia (Suing as the Legal Representative to the Estate of Benedict Ling’oori Muriswa - Deceased)

Respondent

(Being an appeal from the judgment and decree of Hon. Naomi Wairimu (SPM) delivered on 30. 09. 2022 in Eldoret CMCC No. E32/2021; between Andrew Musirwa (Suing as the legal representative and administrator of the estae of Benedict Ling’ori Musirwa) versus Petrocity Enterprises Ltd and Scarce Commodities Ltd)

Judgment

Coram: Before Justice R. NyakundiRioba Onyinkwa & Company AdvocatesMwinamo Lugonzo & Company. Advocates 1. The appeal challenges the judgment and decree of Hon. Naomi Wairimu (SPM) made on 30. 09. 2022 both on quantum and liability. In the trial Court the Respondent had sued the Appellant claiming general damages under the Law Reform Act and Fatal Accident, special damages plus costs and interest of the suit arising from road accident that occurred on 23. 11. 2019, wherein it is alleged that the Appellants through its driver or agent drove Motor Vehicle Registration No. KBY 138U U/ZC353O that he caused the same to knock down the deceased and as a result the deceased sustained fatal injuries. 2. The appellants filed a statement of defence dated 6th March, 2021 denying the respondent’s allegations as indicated in the defence. He claimed in the alternative that the accident was caused due to the whole or substantial negligence of the deceased.

3. The matter proceeded for full trial and judgment was delivered on 30. 09. 2022 against the appellant as follows:a.Liability 10%:90% in Favor of the Respondentb.Pain and Suffering ……………. Kshs. 50,000/=c.Loss of Expectation of life …. Kshs. 150,000/=d.Loss of dependency …………… Kshs. 4,320,000/=e.Special Damages…………………. Kshs. 90,000/=Less 10% contribution ……… Kshs. 461,000/=Grand total Kshs. 4,149,000/=

4. Aggrieved by the above judgment and decree of the trial court, the appellant filed this appeal setting out 8 grounds of appeal, challenging the judgment both on liability and quantum of damages awarded.

5. The grounds are as follows: -1. That the learned magistrate erred in law and in fact by finding and/or holding the appellant 90% liable without taking into account the evidence on record.2. That the learned trial magistrate erred in law and facts by failing to dismiss the respondent’s claim against the appellants in view of the evidence on record.3. That the learned trial magistrate erred in law and fact by failing to consider the appellant’s submissions on both liability and quantum.4. That the learned magistrate erred in law and fact by adopting the wrong principles in assessment of damages payable to the respondent thereby arriving at an erroneous decision.5. That the learned magistrate erred in law and in fact in awarding excessive damages for loss of expectation of life considering the age of the deceased.6. That the learned magistrate erred in law and fact by adopting a sum of Kshs. 15,000/= as the multiplicand despite that the same was not proved.7. That the learned magistrate erred in law and fact in adopting the maximum multiplier of 36 years without taking into account the vicissitudes and vagaries of life and/or comparable authorities.8. That the learned magistrate erred in law and fact in adopting a dependency ratio of 2/3 when the same was not proved and/or supported by evidence on record.

6. The appeal was canvassed by way written submissions. The Appellants on 02. 10. 2023 filed submissions dated 9. 09. 2023 while the Respondent on 20. 06. 2023 filed submissions dated 19th June 2023.

The Appellants’ Submissions 7. On liability, the appellant’s counsel submitted that the learned magistrate erred in holding the appellants 90% liable for the accident. This is because the testimonies nor the evidence adduced during trial pointed towards the blame worthiness of the appellants.

8. It was further submitted for the appellant that PW1’s evidence was merely hearsay and neither aided the trial court in determining the point of impact of the accident nor in establishing who was to blame for the accident. That PW3 who was an eye witness not only contradicted himself, but also gravely misdirected the trial court.

9. Counsel maintained that it is clear that the eye witness could not consistently and honestly tell the court what had transpired and therefore, his evidence was not credible and instead, it was misleading and the trial court ought not to have relied on it in its determination.

10. With regard to the award of damages under the Law reform act, counsel submitted that the award was excessive and urged this court to be guided by the principles enunciated by the court of appeal in the case of Barnabas v Ombati (Civil Appeal E43 of 2021). It was submitted for the appellant that the trial magistrate adopted the wrong principles and left out relevant factors while making a determination on the damages awardable to the respondent under the Law Reform Act thereby arriving at an excessive amount.

11. On pain and suffering, counsel argued that the generally accepted principle is that very nominal damages will be awarded for pain and suffering if the death followed immediately after the accident. Reliance was placed on the case of Mary Muriuki and another versus Samuel Mwangi Nduati and another. (Suing in as the lead administrator of the estate of the late Mwangi) (2019) eKLR. To this end, he proposed an award of Kshs. 10,000/=

12. On loss of expectation of life it was submitted for the appellant that the award of Kshs. 150,000/= was excessive in the circumstances and proposed an award of Kshs. 100,000/=. On this counsel relied on Mary Muriuki and another versus Samuel Mwangi Nduati and another. (Suing in as the lead administrator of the estate of the late Mwangi) (2019) eKLR.

13. Counsel submitted that Kshs. 15,000/= was applied by the court without any legal basis. That the respondent in his statement which was later adopted as his evidence in chief stated that the deceased was a farmer and was also pursuing a Diploma in Petroleum Geo-Science and earning Kshs. 30,000/= per month. During hearing, testifying as PW2, he testified that the deceased was earning Kshs. 15,000/= per month. On cross examination, he testified that the deceased was earning Kshs. 16,000/= to Kshs. 17,000/= per month. Counsel urged that the trial court ought to have been based on the minimum wage which stood at Kshs. 7,240. 95 for general damages for general labourers in all other areas apart from cities and municipalities as provided under the regulation of wages (General)(Amendment) Order, 2018.

14. It was submitted for the appellant that in adopting the multiplier approach, the settled law is that the court must bear in mind the expectation of earning life od the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature. Counsel cited the case of Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989The appellant’s counsel urged this court to adopt a multiplier of 23-26 years.

15. On dependency, counsel argued that it is a question of fact which must be proved. He relied on the case of Chania Shuttle vs Mary Mumbi (Suing on behalf of the estate of Francis Mungai Karanja (deceased) (2017) eKLR.

16. According to the appellant, the respondent averred that the deceased used to support his family and siblings in terms of food, shelter and clothing. However, no form of documentary evidence was produced in support of the same. Counsel urged the court to adopt a ration of 1/3.

The Respondent’s Submissions 17. On liability, counsel supported the findings of the trial court and stated that the evidence of the police officer, the eye witness and the defence witness statement were relevant in determining the issue of liability.

18. According to the respondent, the evidence of the police officer PW1 was to the effect that the Lorry KBY 138 U/ZC 3530 was being driven from the Webuye direction headed towards Eldoret when at Pemugi Area it veered off the road knocking down the deceased who was cycling away from the road. The deceased was cycling the bicycle in the same direction as the lorry coming to Eldoret.

19. Counsel maintained that the accident took place off the road and the driver of motor vehicle registration KBY 138/ZC 3530 could see the deceased ahead but did not take any step to avoid knocking him down. It was therefore submitted that the award on liability was reasonable.

20. On damages for loss of dependency, it was submitted that the deceased was a farmer earning Kenya Shillings Twenty Thousand (Kshs. 20,000/=) per month and was also pursuing a Diploma Course in Petroleum Geo-Science. That he died at the age of 24 years. It was also submitted that the deceased was a sole supporter of his family, having dependants including father, mother sister and brother who have suffered a great loss as a result of the deceased death.

21. Therefore, according to the respondent the dependency ration of 2/3 adopted by the court was reasonable as the deceased was the sole bread winner of his family and immediate relatives. Counsel cited the case of John Mwangi vs Patrick Kariuki & Anor. Nakuru HCCC No. 99 of 1994.

22. On damages regarding loss of expectation, the respondent submitted that the award of Kshs. 150,000 was reasonable as the deceased was aged Twenty-four (24).

23. With regard to pain and suffering, the respondent’s counsel submitted that an award of Kshs. 50,000/= was reasonable in the circumstances and sufficed to compensate the deceased for pain and suffering that the deceased underwent. Counsel cited the case of Mwalla Katana Mwagongo versus Kenya Post and Telcom.

24. On special damages, the respondent pleaded for expenses of Kshs. 90,000/=, which according to the respondent was favourable. The respondent urged the court to take judicial notice that bereaved families do not usually keep receipts for funeral expenses.

25. Finally, the respondent submitted that the appeal lacks both in merit on the issue of liability and quantum of damages and urged the court to dismiss the same with costs.

Analysis & Determination 26. Being a first appeal, the Court is mandated to delve into the factual details as presented before the trial court, analyse the same and arrive at a conclusion, conscious of the fact that the trial court had the advantage of observing the witnesses testify.

27. Section 78 of the Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts or original jurisdiction in respect of suits instituted therein. The above provision was interpreted by the court in the case of Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123. The court pronounced itself as follows:-…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 into account of particular circumstances or probabilities materially to estimate the evidence.”

28. The issues I find for determination are quantum and liability. The appellant submitted that the trial court erred in holding the appellant 90% liable especially when the evidence adduced by PW1 was hearsay and PW3 stated that had witnessed the occurrence of the accident but he contradicted himself.

Liability 29. In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”

30. The undisputed that indeed an accident occurred on 23. 11. 2019 wherein Appellants through its driver or agent drove Motor Vehicle Registration No. KBY 138U U/ZC353O that he caused the same to knock down the deceased and as a result the deceased sustained fatal injuries.

31. The appellant maintains that it is the Respondent to blame whereas the respondent blames the appellant for occasioning the said accident.

32. To what extent is the respondent liable? In determining this, the court will analyse the evidence presented at the trial court.

33. PW1 a police officer based at the Eldoret Police station confirmed that an accident was reported on the 23. 11. 2019 involving motor vehicle registration number KBY 138U/ZC 3530 and a peddle cyclist Benedict Ling’ori. The witness stated that the vehicle was heading towards Eldoret from Webuye when it veered off the road on the left side and knocked the peddle cyclist who died on the spot.The witness produced a police abstract and stated that she was part of the team that went to the scene of the accident although she was not the investigating officer.

34. PW2 testified that his son who was a student and farmer died in an accident on 23. 11. 2019. The witness stated that the deceased was 24 years old and was earning Kshs. 15,000/= at the time of his demise and he produced documents to support the claim. The witness produced a grant, death certificate, burial permit, letter from the area chief, search, receipt, demand letter and a letter from Eldoret Technical training institute.

35. PW3 testified that he was driving to Eldoret town on the 23. 11. 2019 when the lorry driving ahead of him at high speed and in a zig zag manner hit the cyclist who was on the side of the road. The witness stated that the driver of the lorry drove off and was stopped at Paul’s bakery.

36. I have considered the parties’ arguments in this regard. It is not denied that the deceased was a cyclist. According to DW1, when he was stopped by a motor cyclist saying that he had hit someone. He did not see anything being hit.

37. It is my considered view that the appellants’ driver did not exercise due care towards other road users. In my view, the trial court in arriving at liability ratio of 90:10%, took into account that the deceased person ought to have exercised a little care as well. For that reason, I am unable to fault the trial court’s finding on liability.

Quantum 38. On quantum, the appellant faulted the trial court for adopting a ration of 2/3 without any proof. Further that the trial court erred in awarding the damages under the Law reform Act and the Fatal accidents Act.

39. It has long been held that an appellate Court should not interfere with exercise of discretion by a trial court unless it acted on a wrong principle, took into account irrelevant factors or failed to take into account relevant factors.

40. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1985] Kneller. J.A, stated:The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V. Manyoka [1961] E.a. 705, 709, 713; Lukenya Ranching And Farming Co-operatives Society Ltd V. Kavoloto [1970] E.A., 414, 418, 419. This Court follows the same principles.”

41. The question is whether this court should interfere with the damages awarded by the trial Court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

42. Starting with the head of loss of expectation of life, the appellant proposed Kshs. 150,000/- while respondent proposed Kshs. 100,000/-. I am guided by the decision of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR where the court observed that:-The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs.100,000/- while pain and suffering the awards range from Kshs.10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”

43. All the parties herein are in agreement that the deceased succumbed to injuries on the spot, and there is no evidence that he endured a lot of pain before breathing his last. I will thus award Kshs. 20,000 for pain and suffering and Kshs.100,000 for loss of expectation of life.

44. On loss of dependency, PW2 testified that the deceased was a 24-year-old who was a student and farmer. The appellant contested that Kshs. 15,000/= adopted was erroneous and further that it is reasonable expected that the deceased was being taken care of by his parents and such the ratio of 2/3 adopted by the court was not reasonable. The appellant urged the court to adopt a minimum wage of Kshs. 7,240. 95/= and a multiplier of 23-26 years and a dependency ratio of 1/3.

44. The Court of Appeal in Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] eKLR observed that:In our view, there was sufficient evidence that the deceased was a business lady. All that was required of the court was to assess the net income of the deceased, given the business enterprise that she was undertaking and the evidence that was available before the court.

45. In Jacob Ayiga Maruja & Anor vs.Simeon Obayo[2005]eKLR, the Court of appeal in dealing with a similar situation in which a plaintiff had no documentary proof of the deceased’s earning, stated as follows:In our view, there was more than sufficient material on record from which the learned Judge was entitled to, and did draw the conclusion that the deceased was a carpenter and that his monthly earnings were about Shs. 4,000/= per month. We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”We reiterate that it would be unrealistic and unfair to expect strict proof of income through documents in regard to a small business enterprise carried out by a sole proprietor who is deceased. If there is sufficient evidence that the deceased was carrying out the alleged business, the court has to assess the income, doing the best that it can in the circumstances of the case.We find that the learned judge misdirected herself and abdicated her responsibility in failing to assess the deceased’s net income as she was expected to assess the income as best as she could, using the little evidence available. The minimum wage of Kshs. 11,995/- was an appropriate place to begin because the deceased being a business lady carrying out a timber and furniture business, she must at least have employed a carpenter for the business and was unlikely to earn less than the carpenter. In our view given the evidence before the trial Judge including the bank statement showing monies going into and out of the deceased’s account, a sum of Kshs 30,000/= would have been appropriate as the net monthly income of the deceased.

46. It is my considered view that the minimum wage as urged by the appellant could be a good place to start but I am mindful of the deceased’s young and vibrant age. It is expected that overtime, his earnings could increase. Having said so, I find the sum of Kshs. 15,000/= adopted by the trial court reasonable.

47. I now turn to consider the multiplier adopted by the trial magistrate. The appellant urged the court to adopt a multiplier of 23-26 years whereas the respondent submitted that the multiplier of 36 years adopted by the trial court was reasonable. I take judicial notice that from the latest World Bank data life expectancy in Kenya is between 64 and 69 years.

48. The deceased being a student and a farmer and in good health could well live up to the expected retirement age. I however take into account the vicissitudes and vagaries of life and it is my considered view that a multiplier of 33 years is reasonable.

Dependency Ratio 49. .As for the dependency ratio Section 4 (1) of the Fatal Accidents Act Cap 32 Laws of Kenya provides as follows: -Action to be for benefit of family of deceasedEvery 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, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:…”

50. The deceased left behind parents and siblings. He must have supported them in some way. In that regard the ratio could not have been 2/3. The ratio of 1/3 would be appropriate.

51. Turning to special damages, in the case of Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”The aritimetic could the work out as: (15,000x33x12x1/3)

52. The Respondent pleaded special damages of Kshs. 90,000/= and the same was not challenged in the appeal. I shall not therefore interfere with the award on special damages

53. In the end the appeal partially succeeds and the court proceeds to enter judgment in favour of the Respondent in the following terms;i.Liability .................90:10% against the Appellantii.Pain and Suffering…………………. Kshs 20,000iii.Special damages ……………………..Ksh 90,000iv.Loss of expectation of life ……… Kshs 100,000v.Loss of dependency Kshs ………. Kshs. 1,980,000Total Kshs 2,190,000less 10% contribution Kshs (219,000/=)Nett due Kshs 1,971,000Costs of this appeal to the Respondent.It is so ordered

SIGNED, DATE AND DELIVERED AT ELDORET THIS 21TH DAY OF NOVEMBER 2023. In the presence ofMr. Matekwa for the 1st Appellant........................R.NYAKUNDIJUDGE