[2022] KEHC 9901 (KLR)

Richfield Engineering Ltd v Wambua (Suing as the Personal Representative of the Estate of Amos Muthiani Wambua Deceased) (Civil Appeal 6 of 2015) [2022] KEHC 9901 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9901 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 6 of 2015

MW Muigai, J

July 14, 2022

Between

Richfield Engineering Ltd

Appellant

and

Lither Mwikali Wambua (Suing as the Personal Representative of the Estate of Amos Muthiani Wambua Deceased)

Respondent

Judgment

1. By a Plaint dated March 10, 2013 and filed on July 18, 2013 the Appellant as the Respondent sued the Appellant as the Defendant in Mavoko CMCC No. 663 of 2013. The Appellant sought;-(a)General damages (b) special damages of Kshs.11,500/ (c) cost and interest of this suit.

2. The cause of action arose from a Road Traffic Accident that occurred on March 16, 2013when the Respondent is said to have been a lawful pedestrian along Namanga – Nairobi Road near Shell Petrol station or thereabouts when the motor vehicle registration number KAT 126 Z was driven carelessly, negligently in a zig zag manner thus knocking the Respondent who was completely off the road hence causing him serious injuries being;a.Blunt head injuryb.Fracture right femur

3. According to the Respondent the Appellant, its driver, servant and/or agent while in the cause of his employment of driving, drove so recklessly, negligently and/or carelessly in a zig zag manner along the said road thus knocking the Plaintiff who was completely off the road.

4. The particulars of negligence against the Appellant are pleaded at paragraph 7(a) to (h) of the Plaint. The Appellant relied on the doctrine of Res Ipsa Loquitor.

Defence Dated August 27, 2013 5. The Appellant denied all the Respondents averments in the Plaint save for its description. According to the Appellant he denied being the beneficial owner of the motor vehicle registration KAT 126Z and put the Respondent in strict proof; he also denied the occurrence of the accident and finally stated that if any accident occurred as alleged on the material date the same was entirely caused by and/or substantially contributed by the negligence on the part of the Plaintiff by walking along the said road. He stated that he had never been served with a Demand notice.

Reply to Defence Dated September 2, 2013 6. The Respondent reiterated the contents of the Plaint and denies the Respondent allegation that if any accident occurred it was caused or contributed by the negligence of the Appellant.

Amended Plaint Filed on March 12, 2014 7. By a Plaint dated March 10, 2014 and filed on March 12, 2014 the Appellant as the Respondent sued the Appellant as the Defendant in Mavoko CMCC No. 663 of 2013.

8. That the legal representative avers that the said accident was solely caused by careless and reckless driving of the defendant along the said road.

9. That due to the said negligence by the Appellant the deceased sustained fatal injuries as follows:-a.Blunt head injuryb)Cut wound on the left eye browc)Cut wound of the nasal bridged)Fracture right femur

10. The Appellant sought the following prayers;a.Damages under the Fatal Accident Act and Law Reform Actb.Special damages of Kshs.49,775/-c.Costs and interest of this suit

AMended Defendants Statement of Defence 11. The Appellant denied all the Respondents averments in the Plaint save for its description. According to the Appellant he denied being the beneficial owner of the motor vehicle registration KAT 126Z and put the Respondent in strict proof; he also denied the occurrence of the accident and finally stated that if any accident occurred as alleged on the material date the same was entirely caused by and/or substantially contributed by the negligence on the part of the deceased by walking along the said road. He stated that he had never been served with a Demand notice of intention to sue was served.

Evidence 12. PW.1 Lither Mwikali Wambua stated that Amos Muthiani Wambua (deceased) was her son. That the deceased had filed a case before he died and she was later substituted in his place after his death. The son died due to injuries sustained from a road accident. When he passed on he was aged 21 years. After the said road accident on March 16, 2013 Amos sustained serious injuries and he was unable to work. The deceased died due to head and leg injuries sustained in the accident. He underwent a leg surgery after the accident.

13. On cross – examination PW.1 stated that the accident occurred in March, 2013 and Amos (deceased) passed on in September, 2013. Between March, 2013 and September, 2013 the deceased was admitted at Shalom and Kenyatta Hospitals. The death of the deceased was caused by the said accident.

14. PW.2 No.53220 PC Charles Kariu stated that he was based at Athi River Traffic Base. That on March 16, 2013 at 3. 35 p.m. a report was made about an accident involving motor vehicle registration No. KAT 126Z Mitsubishi Gallant driven from Kitengela towards Nairobi which knocked down a pedestrian by the name Amos Muthiani Wambua (deceased). The victim was taken to Shalom Hospital and later referred to Kenyatta National Hospital. At the time the degree of injury was indicated to be maim. The victim died on September 24, 2013. I have no records to show the cause of death.

15. On cross –examination he stated that in the abstract there was no indication of the name of the driver. The accident motor vehicle was/is KAT 126 Z. The Defendant is a company not a driver. That he learnt of the death of deceased from the relatives on 1/07/2014.

16. PW.3 Dr. Patrick Mutinda Mukene a Medical Officer stated that he carried out the Post Mortem in respect of deceased on September 30, 2013 at Mbooni Sub-County Hospital. On observations, he found a scar at the nasal ridge 2cm long, scar at lateral side of the right thigh which was 30 cm and a scar at the right gluteal region. There was surgical injuries sustained during the fracture correction. The patient had a fracture of the femur and was treated at Kenyatta National Hospital, the fracture was fixed using a nail. The skull was obliterated sulci. There was clotted blood at the frontal clog and base of the skull. On the right thigh the deceased had a broken intramedullary nail. The probable cause of death was intracranial haemorrhage and haemorrhage in the right femur. The blood clots could cause complications with time. He signed the Post Mortem Form on 30/09/2013.

17. On cross-examination he stated that the death certificate is a reflection of the Post Mortem Report in summary. The accident could not have caused the breaking of the nail. The deceased died at home and not in hospital. There was no evidence that the patient was treated at Kenyatta Hospital after August. He died five months after the accident. The bone is supposed to heal between four to twelve months. He could not say that the doctors at Kenyatta were negligent as they fixed the nail. The said nail requires a lot of force to break.

18. In re-examination he stated that he did not prepare the death certificate. He said what he found in the Post Mortem. The nail could not have been fixed without a fracture. A complete healing for a fracture is about 12 months and depends on several factors.

Trial Court Judgment 19. The Trial Court delivered its judgment on 4th December, 2014 and awarded the Respondent/Plaintiff an award of Kshs.967, 296/- and costs of this suit.

Appeal Dated January 5, 2015 20. Aggrieved by the Judgment of the Trial Court delivered on 4/12/2014 the Appellant has appealed against the said decision based on the following grounds:-(1)That the Learned Trial Magistrate erred in law and in making an award for damages for pain and suffering, loss of future earnings and future medical expenses that were unsupported by the evidence before the Court.(2)That the Learned Trial Magistrate erred in law and in fact in basing his decision on extraneous matters not relevant to the facts in issue.(3)That the Learned Trial Magistrate erred in assessing general damages that are grossly so high as to represent an erroneous estimate of the loss suffered.(4)That the Learned Trial Magistrate erred in law and in fact in awarding special damages which were not strictly proved as required by the law.(5)That the Learned Trial Magistrate erred law and in fact in making an excessive award based on facts which were not pleaded and had no basis on the evidence tendered.

21. The Appellant urged the Court to set aside the judgment in CMCC No. 663 of 2013 and allow the Appeal and proceed to assess the quantum of damages awardable to the Appellant.

Appellant’s Submissions 22. The Appellant filed their submissions on March 3, 2022 and submitted that in the first plaint the Plaintiff claimed damages for injuries sustained from a road traffic accident of the 16/03/2013 and a Medical Report of Dr. Titus Ndeti whose conclusion was that the said Amos Muthiani Wambua had recovered well. In the Amended plaint the Plaintiff claimed additional claim for damages under the Fatal Accidents Act and Law Reform Act.

23. According to Dr. Mutina Mukene (PW.3) the cause of the deceased’s death was intracranial haemorrhage hence the injuries sustained during the accident could not have caused the death.

24. On the issue of an award given for lost years the Appellant submitted that this claim had not been proved by law since there was no proof of income was presented in Court. Also no document was given to show that the deceased was engaged in any income generating activity. The Appellant would have proposed an income of Kshs.6,000/- per month projected for 15 years subject to the 1/3 dependency ration giving a total of Kshs.360,000/-

25. The Appellant finally submitted that in the event that this Court finds that Respondents claim is merited under the Fatal Accidents Act and or Law Reform Act they would submit an award as follows:-a.Pain & suffering Kshs.100,000/b.Loss of Expectation Kshs.100,000/-c.Lost years Kshs.360,000/-d.Special damages Kshs. 49,120/-Total Kshs.609,120/-Less 20% Kshs.121,824/-Net Kshs.487,296

Respondent’s Written Submissions 26. The Respondent filed their submission onFebruary 3, 2022and based their submissions on the following issues;On the issue of whether the general damages awarded were excessively high it was submitted that the deceased herein was involved in a road traffic accident on March 16, 2013and sustained injuries and later succumbed on September 24, 2013; that the post mortem report produced showed that the cause of death was related to the accident hence the evidence justified the award by the Trial Court.

27. Reliance was made in the case of Josephine E. Mwandime –vs- Philip Mwangende - MSA HCCA 112 of 1997 where the deceased died after 49 days and was awarded Kshs.80,000/- by the Court.

28. As the deceased passed on several months after the said accident the Respondent submitted hat he has undergone a lot of pain and suffering before he finally met his death hence the award on loss of expectation of life was justified.

29. Reliance was made in the case of Muitha Mwalili –vs- Ulayan Edward & Anor– HCCC 539 of 1994 [2000]

30. The Respondent submitted that the deceased was aged 21 years old and unmarried at the time of this death – in the case of HCC No. 2409 of 1998 David Ngunje Mwangi –vs- the Chairman of the Board of Governors of Njiru High Schoolwhere the Court used a multiplier of 30 years for a deceased who died at 17 years old.

Determination 31. The Court considered pleadings evidence on record and written submissions of parties through Counsel. The issues that emerge for determination are appeal on liability and quantum.

32. This being a first appellate court, I am guided by the principles set out in the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

33. See also, Peters vs. Sunday Post Limited [1958] EA 424 on the same point where it was held that;“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.”

Liability 34. By the Trial Court’s judgment of 4/12/2014, the Trial Court determined liability on the consent on liability recorded/ filed on 5/8/2014 by Mr Mochama for the Plaintiff and Miss Gari for the Defendant at 80:20 in favour of the Plaintiff against the Defendant.

35. Written Submissions contesting liability on the issue of the actual cause of death of the deceased as the accident occurred on16/3/2013 and the deceased died on 24/8/2013; 6 months later. The issue of liability cannot be considered at this stage on appeal as parties resolved the issue of liability by a valid consent during trial which was not set aside. There was no issue raised before the Trial Court that the Consent should have been set aside on grounds of fraud, coercion or illegality. It remained binding to the parties. On the issue of injuries sustained during the accident on March 16, 2013, they included blunt head injury and fracture to right femur. On death, the Post Mortem revealed intracranial haemorrhage and haemorrhage on the right femur. There is a possibility the cause of death was/is related to the accident as the injuries are similar in nature blunt head injury and fracture of right femur intracranial haemorrhage and haemorrhage of the femur but not in degree.

Quantum 36. The Appellant took the view that the award of damages was excessive with regard to Loss of Dependency and proposed Ksh 360,000/- instead of Ksh 960,000/- under Fatal Accidents Act.In Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLR stated as follows:“Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country...”Section 4(1) of the Fatal Accidents Act 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…”Section 2 (1) of the same Act provides:-“child” means a son, daughter, grandson, granddaughter, stepson or stepdaughter;“parent” means a father, mother, grandfather, grandmother, stepfather or stepmother.

37. The dependency by PW1, the deceased’s mother is provided for under the Fatal Accidents Act. Although documentary evidence was not availed, PW1 testified that the deceased aged 21 years earned Ksh 400/-a week which would translate to Ksh 1,600/- per month. The Trial Court used/applied minimum wage for casual work as at 2015 at Ksh 8,000/-x 12x30x1/3 and came to Ksh 960,000/- Total came to Ksh 1,209,120 less 20% Ksh 967,296/-.

38. The assertion that the claim for lost years was not proved by law; In the case of Jacob Ayiga Maruja & another v Simeon Obayo [2005] eKLR, the Court of Appeal stated that;“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.”

39. The fact of lack of documentary evidence of either employment or business of the deceased and how much the deceased actually earned cannot deprive the dependants the claim for lost years. As long as there is evidence that the Defendant caused and/or contributed to damage loss or injury of the deceased through the accident that resulted in his demise, the family, his mother PW1 is entitled to what possibly would have been support/dependency.

40. The Court finds that the Trial Court in the absence of documentary evidence tabulated loss of dependency by using the minimum wage at the time.

Disposition1. The Appeal is dismissed and the Trial Court judgment of 4/12/2014 is upheld.2. Orders accordingly.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14/7/2022. (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE