[2022] KEHC 16978 (KLR)

Samuel & 2 others v Ndung'u & Chege (Suing as administrator of the Estate of Peter Chege Nyoro (Deceased) & 2 others (Civil Appeal 28 of 2019) [2022] KEHC 16978 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16978 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 28 of 2019

GWN Macharia, J

December 15, 2022

Between

Kipkurui Samuel

1st Appellant

Kisin James

2nd Appellant

Samuel Kiptoo Samoei

3rd Appellant

and

Jane Wanjiru Ndung'u & Alice Wamuhu Chege (Suing as administrator of the Estate of Peter Chege Nyoro (Deceased)

1st Respondent

Alicewamuhu Chege

2nd Respondent

Catherine Wanjiru Ngobu

3rd Respondent

(Being an appeal from the Judgment and Decree of the Chief Magistrate's Court at Naivasha in CMCC No. 189 of 2019 delivered by the Hon. J. Karanja (PM) on 18th January, 2019))

Judgment

1. The deceased, Peter Chege Nyoro, died in a road traffic accident which occurred on September 20, 2009 along Maai Mahiu – Naivasha Road. The accident involved motor vehicle registration number KAP 609S in which the deceased was travelling as a lawful passenger in a motor vehicle registration number KAC 030J, driven at the time by the 3rd appellant, beneficially owned by the 1st appellant but registered in the name of the 2nd appellant. The respondents pleaded that on the material date, the 1st appellant so carelessly and negligently drove, managed and controlled motor vehicle registration number KAC 030J that it lost control, veered off the road and collided with motor vehicle registration number KAP 609S. As a result, the deceased sustained fatal injuries for which the respondents herein sought compensation.

2. The appellants denied the claim in entirety and blamed the accident on the negligence of the driver of motor vehicle registration number KAP 609S. As such, the Appellants enjoined the 3rd respondent, Catherine Wanjiku Ngobu and Equity Bank (K) Ltd to the suit as third parties in their capacity as the owners of the said motor vehicle.

3. Only Equity Bank filed a third party’s defence contending that the motor vehicle was solely owned by the 3rd respondent herein and its interest on the same was merely that of a financier as it financed the purchase of the vehicle.

4. Upon hearing the claim, the trial court apportioned liability between the appellants and the 3rd respondent in the ratio of 80:20 in favour of the 1st and 2nd respondents herein. The 3rd respondent was to bear 20% while 80% was ordered to be borne by the appellants. The trial court then awarded the 1st and 2nd respondents damages as follows: Kshs 30,000/- for pain and suffering; Kshs 100,000/- for loss of expectation of life; Kshs 1,465,432/- for loss of dependency; and, Kshs 500 for special damages.

5. Aggrieved by the said decision, the appellants’ lodged an appeal vide a memorandum of appeal dated July 10, 2019. They raised the following eight grounds of appeal:1. The trial magistrate erred in law and in fact and misdirected himself in delivering a judgment in favour of the plaintiffs when the plaintiffs had failed to prove their case to the required standard.2. The trial magistrate erred in law and in fact in not taking into consideration the submissions tendered on behalf of the defendant's and/or in ignoring the issues raised on behalf of the defendants.3. The trial magistrate erred in law and in fact in apportioning 80% liability against the defendants when the evidence on record showed the third party to be wholly blameworthy or to the greater extent.4. The trial magistrate erred in law and in fact in finding that dependency had been proved when the evidence adduced did not support that finding.5. The trial magistrate erred in law and in fact in his assessment of damages for loss of dependency and in particular in adopting the multiplicand of Kshs 9,641/= without proper justification and/or basis.6. The trial magistrate erred in law and fact in failing to appreciate the applicable principles in the assessment of damages under the Fatal Accidents Act and the Law Reform Act.7. The trial magistrate erred in law and in fact in awarding damages that were manifestly excessive in the circumstances.8. The learned magistrate's decision was unjust, against the weight of evidence, was based on wrong principles of law and occasioned miscarriage of justice.

Summary of Evidence 6. This being a first appeal, it is the duty of this court to review and evaluate the evidence on record afresh and draw its own conclusions although due allowance must be given to the fact it did not have the benefit of seeing or hearing the witnesses. See Selle & another v Associated Motor Boat Co Ltd & others [1968] EA 123.

7. PW1, No 66361 PC Adan Jirma of Naivasha Traffic base testified that according to the police abstract prepared in respect to the subject accident, on the material day, motor vehicle registration No KAC 030J Toyota Corolla was being driven towards Naivasha from Mai Mahiu. At ASTU police area, it collided with motor vehicle KAP 609S lorry. Peter Chege who was a passenger in KAC 030J died as a result of the accident. The investigating officer also died in 2010 but he had worked with him for one year and knew his signature. PW1 produced the abstract in evidence as P exhibit 1.

8. On cross-examination, PW1 stated that whereas the police abstract indicated that the matter was still under investigation, the position of the file was not known as the investigating officer died without handing over the same. He also stated that he did not have the occurrence book nor the motor vehicle inspection reports for the two vehicles.

9. PW2, Jane Wanjiru Ndungu, the 1st respondent herein was the deceased’s widow. She testified that on the material day, the deceased was picked by one Peter Chege Wanjiku in motor vehicle registration KAP 609S to go to Naivasha District Hospital. She was later called and told that they had gotten an accident at Mirera. She went to hospital and found that he had died. The deceased left behind five dependants being herself, 3 children and his mother. She blamed the Appellants for the accident. PW2 tendered the following documents in evidence: letters of administration (P exhibit 2), the deceased’s death certificate (P exhibit 3), motor vehicle search (p exhibit 4) and a receipt issued in that respect (P exhibit 5), receipt for Kshs 1075 for letters of administration (P exhibit 6), copy of burial permit (P exhibit 7) and demand letter (P exhibit 7(a) and 7 (b)).

10. In cross-examination, PW2 stated that she married the deceased in a customary ceremony. She however had no evidence to show that the deceased left three children and she did not know how the accident occurred.

11. PW3, Richard Mawa Kariuki was an eye witness. He testified that on the material day, he boarded motor vehicle registration number KAP 609S at Mai Mahiu. There were four other people in the car and he was the fifth person. He alighted at Anti Stock Theft Unit stage and the vehicle then continued with the journey to Naivasha. After the vehicle moved for about 20 meters, the vehicle he had alighted from collided with a lorry registration number KAC 030J which was coming from Naivasha. The lorry hit the small vehicle with the right tyre causing it to roll and fall. The Anti Stock Theft Unit officers came to the scene upon hearing the impact and started assisting the occupants of the small car who had fallen off the vehicle. About 4 people died on the spot. PW3 recorded a statement with the investigating officer. However, he was never called to testify in a criminal case. In his view, the vehicle that was on the wrong was KAC 030J lorry. He blamed it for the accident.

12. In cross-examination, PW3 stated that he was not related to the people who were in the Toyota Corolla and was not aware whether the occupants in that car were related although they spoke as one family. The saloon car landed about 20 metres off its side on the left. Point of contact was the driver's tyre. The lorry did not overturn. It hit the small car then moved a bit and stalled. It was on high speed.

13. PW4, No 80090 PC Paul Muthengi from Naivasha Traffic Base testified that he was aware of the subject accident but he was not the investigating officer. He confirmed that the matter was being investigated by PC Rono who was deceased. PW4 however stated that he had the records of accident. According to the records, it was a fatal accident which occurred on 20th September, 2009 at 6pm at Mirera area along Naivasha - Mai Mahiu area near Anti Stock Theft Unit. It involved two motor vehicles registration number KAC 030J Mitsubishi lorry and KAP 6098 Toyota Corolla. Four people died as a result of the accident while others were seriously injured. The entry on Occurrence Book (OB) says that KAC 030J was being driven by Samuel Kipkuru from Mai Mahiu direction when it collided with the salon car. PW4 could not deduce what happened to the police file although he stated that he looked for it in vain. He simply relied on the OB entry and police abstract report. He was not aware whether anyone was charged or not.

14. In cross-examination, PW4 stated that the OB entry did not indicate who was to blame for the accident. In reexamination, he stated that it is not mandatory to include names of witnesses in the police abstract report.

Analysis and Determination 15. The appeal was canvassed by way of written submissions which this court has duly considered against the grounds and record of appeal. The issues for determination are:(i)Whether the learned trial magistrate’s apportionment of liability was erroneous; and,(ii)Whether the trial court misdirected itself in awarding damages for pain and suffering and loss of dependency.

Whether The Learned Trial Magistrate’s Apportionment Of Liability Was Erroneous 16. The general rule is that a trial court’s finding on apportionment of liability should not be interfered with save in exceptional cases as it is an exercise of discretion. In Khambi & another v Mahithi & another [1968] EA 70, it was held thus:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”

17. The appellants submitted that the trial court erred and misdirected itself in its analysis of the evidence tendered when arriving at the finding that they were 80% liable. They contended that there was no compelling evidence by any of the 1st and 2nd respondents' witnesses on who was to blame for the accident. They argued that the learned magistrate largely based his findings on PW3's testimony while disregarding the inconsistencies and discrepancies that arose during cross-examination and which were pointed out in the appellants' submissions. They pointed out the following: That PW3 claimed to be a fare paying passenger which is unlikely as motor vehicle KAC 030J is clearly a private and not a commercial motor vehicle; That the sole witness listed in the police abstract was investigating officer Rono who is since deceased; that PW3, Richard Maina Kariuki is not mentioned anywhere in the police abstract as an eye witness or survivor and was therefore an unreliable witness. According to the appellants therefore, had the trial court given their submissions due consideration, it would have found the 3rd respondent liable at a degree higher than 20%.

18. On the other hand, the 1st and 2nd respondents submitted that the appellant has not demonstrated why the trial court’s apportionment of liability is wrong. They contended that the appellants have not demonstrated what evidence showed that the third party was wholly blameworthy or to a greater extent at 20%. They urged that by dint of the testimonies of PW1, PW3 and PW4, it was proven that an accident occurred on September 20, 2009 involving the appellant's motor vehicle and the Appellants were blamed for the same.

19. In the instant case, the evidence of PW1, PW3 and PW4 showed that an accident occurred along Naivasha – Maai Mahiu Road involving the appellants’ motor vehicle and the 3rd respondent’s motor vehicle. Whereas the police abstract and the OB entry did not indicate who was to blame for the accident, PW3, an eye witness was categorical that the appellants’ motor vehicle which was coming from Naivasha was being driven from side to side and at a high speed. PW3 also attested to the fact that the appellants’ motor vehicle hit the 3rd respondent’s motor vehicle, in which the deceased was a passenger, with the right tyre causing it roll and fall.

20. In the circumstances, it is apparent to me that the learned trial magistrate’s apportionment of liability was reached on the basis of the facts and circumstances as placed before the court. That being so, I see no reason to interfere with the trial magistrate’s discretion in this regard.

Whether The Trial Court Misdirected Itself In Awarding Damages For Pain And Suffering And Loss Of Dependency 21. As a general principal, the assessment of damages is a matter of the exercise of court’s discretion and as such, an appellate court will normally be slow to interfere with such discretion unless the trial court misdirected itself in arriving at the award in question. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR stated as follows in this regard:“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...”

22. The appellants too contest the awards given in respect of pain and suffering and loss of dependency. I make an analysis of the same as under.a.Pain and suffering1. The appellants seek to have the award of Kshs 30,000 reviewed downwards to Kshs 10,000/- on the basis that no evidence was tendered as to whether the deceased died on the spot or not. To support this submission, the appellants relied on the case of Harjeet Singh Pandal v Hellen Aketch Okudho [2018] eKLR.2. Damages for pain and suffering are recoverable by the estate of a deceased person as compensation for the pain suffered before death which results from an accident. In Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR, Majanja, J observed thus:“…it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.

25. Whereas no evidence was led as to whether the deceased died on the spot or not, the death certificate tendered in evidence clearly shows that the deceased died on the same day of the accident due to a crashed skull. Given that the sums awardable under this head have ranged from Kshs 10,000/- to Kshs 100,000/- from past precedents, the sum of Kshs 30,000/- awarded by the trial court cannot be said to so excessive as to warrant interference. I therefore decline to upset the award.b.Loss of Dependency

26. On this, the appellants submitted that the multiplicand applied by the trial court in computing the award is misconceived and without sound basis. They contended that the multiplicand of Kshs 9,641 applied by the trial court was wrong since the Regulation of Wages (General) Amendment) Order, 2006which was in force up to April 30, 2010 gives the minimum wage for a general worker in towns other than Nairobi, Mombasa and Kisumu as Kshs 4,792 per month. Further, the appellants submitted that no documentary evidence, was adduced to show that the deceased left any dependents. In their view, the trial court's findings are based on pure speculation.

27. On the other hand, the 1st and 2nd respondents submitted that dependency was sufficiently proved as the 1st respondent herein was issued with the letters of administration in her capacity as the widow of the deceased. It was also submitted that the deceased had a wife, mother and three minors who were all dependent on him. Further, the respondents noted that the trial magistrate correctly considered the multiplicand of Kshs 9,641/= based on the earning metrics at the time.

28. The trial magistrate adopted the multiplier approach in calculating the damages for loss of dependency. From the record, it is evident that no documentary evidence was tendered in evidence to show what kind of work the deceased was engaged in and what he earned from such engagement, if any, prior to his death. It was therefore appropriate for the trial magistrate to adopt the minimum wage prescribed under the Regulation of Wages (General) (Amendment) Order as the monthly earnings and/or multiplicand. The only concern is whether the sum of Kshs 9,641/- adopted was correct.

29. The deceased died in Naivasha in September 2009. The applicable minimum wage as submitted by the appellants is as per the Regulation of wages (General) (Amendment) Order, 2006 which in force until May 1, 2010. Under the Order, a general labourer in other municipalities outside Nairobi, Mombasa and Kisumu earned Kshs 4,792/-. Accordingly, I find an error in the multiplicand adopted by the trial magistrate.

30. As regards the dependency ratio, the trial court adopted 2/3 on the ground that the deceased was obviously a family man. At paragraph 5 of the plaint, the particulars of the dependants of the deceased were listed as follows: Alice Wamuhu Chege – mother, Jane Wanjiru Ndung’u – wife, JN – son (minor), AW – daughter (minor), and EN – son (minor). No documentary evidence in the form of birth certificates or letter from the chief was tendered to prove that the deceased had three children. Notably however, the Appellants did not controvert the testimony of PW2 in that regard. They closed their case without calling any witness or tendering anything in evidence. In the premises, I see no reason to fault the trial magistrate for adopting a dependency ratio of 2/3. The same is upheld.

31. The award for loss of dependency shall therefore be calculated as follows: 4,792 x 12 x 19 x 2/3 = 732. 025. 92.

Conclusion. 32. Consequently, this appeal only succeeds on the award of loss of dependency. The trial magistrate’s award of Kshs 1,465,432/- for loss of dependency is hereby set aside and substituted with an award of Kshs 732,025. 92. The 1st and 2nd respondents are awarded the costs of this appeal. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. GWWN GENYE-MACHARIAJUDGEIn the presence of:Mr Mburu for the appellants.No appearance for the respondents- duly notified online for two weeks running.