[2023] KEHC 23911 (KLR)

Sinohydro Tianjin Engineering Co Ltd v Okumu (Suing as the administratrix of the Estate of Joel Odhiambo Kimbage) & another (Civil Appeal E287 of 2020) [2023] KEHC 23911 (KLR) (Civ) (18 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23911 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E287 of 2020

JN Njagi, J

October 18, 2023

Between

Sinohydro Tianjin Engineering Co Ltd

Appellant

and

Alice Odhiambo Okumu (Suing as the administratrix of the Estate Of Joel Odhiambo Kimbage)

1st Respondent

Jeremiah Odiwour Okumu (Suing as th administratrix of the Estate Of Joel Odhiambo Kimbage)

2nd Respondent

(Being an Appeal against the Judgment of Hon. D.O Mbeya (Mr.) Senior Resident Magistrate delivered in Nairobi in Nairobi CMCC NO.6363 of 2018 on the 9th day of October 2020)

Judgment

1. The Respondents herein brought suit against the Respondent herein in their capacity as the administrators of the estate of Joel Odhiambo Kimbage claiming damages after their kin died after being knocked down by a motor vehicle belonging to the Appellant. The respondents blamed the Appellant`s driver for causing the accident. After a trial, the trial court found the driver of the Appellant wholly to blame for the accident. The court proceeded to award damages as follows:Loss of expectation of life …………….Ksh. 100,000/=Pain and suffering……………………..Ksh.50,000/=Loss of Dependency …………………..Ksh. 3,500,000/=Special damages ……………………….Ksh. 15,300/=

2. The Appellant was aggrieved by the finding on liability and the award and filed this appeal. The grounds of appeal are that:a.The learned trial Magistrate erred in law and in fact in finding that the Plaintiff had proved their case against the Defendant on liability at 100% when the evidence on record could not support such a finding.b.The learned trial Magistrate erred in law and in fact in failing to find that the Plaintiff’s evidence was of no probative value and could not establish any liability whatsoever against the Defendant as required by law.c.The learned trial Magistrate erred in law and in fact in completely misapprehending the Defence case and the evidence on record to the extent of holding DW1 liable for causing the subject accident whereas he was nowhere at the scene of the accident.d.The learned trial Magistrate erred in law and in fact in making an award under the Fatal Accidents Act whereas no such claim had either been pleaded or proved.e.That the learned trial Magistrate erred in law and in fact in holding that the case was one where a lump sum award could be made for loss of dependency and in awarding a sum of Kshs 3,500,000/- to the Respondents which amount is so excessive in the circumstances as to amount to an erroneous estimate of the damages which the Respondents would have been entitled to under this head had the same been pleaded and proved.f.The learned trial Magistrate erred in law and in fact in awarding a sum of Kshs 15,300/- to the Respondents in special damages as the same was not proved

Respondents/Plaintiffs` Case 3. Both Respondents testified as PW1 and PW2 in the case. It was the evidence of the 1st Respondent, PW1, that the deceased was her husband. That on the 6th November 2016 at around 8. 30 pm she was called by a friend who informed her that her husband had been involved in an accident along Kangundo road. She went to Buruburu police station where she found the body of the deceased and the motor vehicle, a grader, that had knocked down her husband. The body was taken to Lee Funeral Home. She later sued the Appellant.

4. The 2nd Respondent, PW2, on his part testified that the deceased was married to his sister. That on the material day he received a call from his father that the deceased had been killed in a road traffic accident. He went to Buruburu police station where he was shown the grader that had knocked down the deceased. He went to Lee Funeral Home and identified the body.

Appellant/Defendant`s case 5. The Appellant filed a defence on 23/11/2018 where it denied liability and attributed acts of negligence on the part of the deceased. It averred that the deceased was negligent by entering into a construction site where access was strictly prohibited to unauthorized persons.

6. The Appellant called one witness in the case, Simon Wachira, DW1. It was the evidence of the witness that he was in charge of security issues at the construction sites for the Appellant. His duties are to ensure that precautionary measures are taken at construction sites to safeguard the safety of everyone. That he was aware of the accident involving the deceased and one of the graders belonging to the appellant that occurred on 6/11/2016. It was his evidence that the accident occurred at around 7. 30 pm. That during the time of the accident Outering Road was under construction and was out of bounds for pedestrians. There were numerous signs warning pedestrians against accessing the site. He blamed the deceased for the accident because the deceased ignored cautionary measures and by passed the road to where the lever was working.

Submissions 7. The Appellant submitted that the witnesses called by the Respondents did not witness the accident and therefore their evidence that the deceased was in the pedestrian lane when he was knocked down ought to be ignored.

8. The Appellant argued that the trial Magistrate erred in fact by misapprehending the evidence that DW1 was the driver of the grader that was involved in the accident hence coming to the wrong conclusion.

9. The Appellant submitted that the Respondents did not prove their case on a balance of probability. It relied on the case of Mary Wambui Kabugu v Kenya Bus Service Limited [1997] eKLR and the case of Lilian Birir & another v Ambrose Leamon [2016] eKLR on the applicable standard of proof.

10. The Appellant disapproved the award of damages under the Fatal Accidents Act as well as the special damages as awarded by the trial court. The Appellant argued that the Respondent had not complied with the mandatory requirements of Section 8 of the Fatal Accidents Act which requires the Plaintiff to deliver to the Defendant full particulars of dependants.

11. The Appellant further contended that Respondents` advocates attempted to introduce the particulars of dependants and the deceased’s pay slip through their submissions which act is highly irregular. It cited the case of Nzioka Ndeti Nicholas & another v Esther Ndunge Manthi [Suing as the Legal Representative of the Estate of Stephen Manthi Malile (Deceased) [2019] eKLR where the court stated that:“The Court of Appeal in Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu Civil Appeal No. 302 of 1997 held that no judgement can be based on written submissions and that such a judgement is a nullity since written submissions is not a mode of receiving evidence set out under Order 17 Rule 2 of the Civil Procedure Rules [now Order 18 rule 2 of the Civil Procedure Rules]. The same Court in Muchami Mugeni vs. Elizabeth Wanjugu Mungara & another Civil Appeal No. 141 of 1998 found the practice of making awards on the basis of the submissions rather than the evidence deplorable.”

12. It was the Appellant’s argument that the trial court found that the deceased left a widow and three children yet no cogent evidence was adduced in proof of earnings during trial. The Appellant further faults the trial Magistrate for not giving justification for the award of Ksh. 3,500,000/= in general damages for loss of dependency.

13. The Appellant further submitted that the Respondents did not produce any documentary evidence to justify the award of special damages in the sum of Ksh. 15,300/=. Therefore, that the award was erroneous.

14. The Respondents on their part submitted that the Appellant through their witness had admitted to causing the accident. It was their argument that the Appellant was responsible for the accident and it had failed to demonstrate how the deceased contributed to the accident.

15. On the issue of general damages, the Respondent maintained that the award of Ksh.3,665,300/= was properly made in consideration of all the relevant principles governing the award of damages.

16. The Respondents contend that the appeal is fatally defective for failure to attach a decree on the record of appeal. They relied on the case of Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR where the court held that:“From the foregoing it is clear that an appeal can be rendered fatally defective in the absence of a decree. The Appellant herein has not attached a copy of the decree it follows therefore that his appeal is incompetent and should be and is hereby struck out with costs to the Respondent.”

17. The Respondent further submitted that the appeal is incompetent because the attached proceedings are not certified.

Analysis and Determination 18. This court being the first appellate court in this matter, the duty of this court is to evaluate the entire evidence on record bearing in mind that the trial court court had the advantage of seeing and hearing the witnesses testify and watch their demeanor. In this I take guidance in the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

19. I have considered the record of appeal and the respective parties’ submissions. The issues for determination are as follows:(1)Whether the appeal is fatally defective?(2)Whether the trial magistrate erred on his finding on liability?(3)whether the quantum of damages awarded by the trial court were excessiv

Whether the appeal is fatally defective 20. The Respondents contend that the appeal is fatally defective for failure to attach the decree on the record of appeal. I have looked at the record of appeal and noted that the Appellant filed a supplementary record of appeal dated 4th March 2022 that contained the decree of the trial court.

21. Order 42, Rule 13(4)(f) of the Civil Procedure Rules,2010 provides;“(4)Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say:(a)The memorandum of appeal;(b)The pleadings;(c)The notes of the trial magistrate made at the hearing;(d)The transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)All affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)The judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.” (emphasis added).

22. The court in the case of Elizanya Investments Limited v Lean Energy Solutions [2021] eKLR when dealing with the issue of failure to attach a decree by the appellant cited with approval the case of Nyota Tissue Products v Charles Wanga Wanga & 4 Others [2020] eKLR where the court stated that:“The rule applicable to the appeals to the High Court makes provision under Order 42 rule 13 (f) of the Civil Procedure Rules for the filing of a copy of the “judgment, order or decree appealed from and does not make it mandatory to attach the judgment and the decree. The Record of Appeal herein attached the Judgment of the trial court according to the requirements of Order 42 rule 13 (4) (f) of the Civil Procedure Rules, and in my respectful view, I would agree with the Court in Silver Bullet Bus case on the point, that it would be too draconian to strike out the appeal in these circumstances."The court in the case above went further to state that:“I am of the view that the use of the conjunction "or" means that an appellant is not mandatorily obligated to attach both the Judgment and the decree. Further, a decree is an extract of the Judgment appealed from.”

23. It is thus clear that failure to attach a certified copy of the decree on the record of appeal cannot invalidate an appeal or extinguish an appellant’s right to be heard as enshrined under Article 50 of the Constitution.

Whether the trial magistrate erred on his finding on liability 24. It is trite that an appeals court will be hesitant to overturn a trial court's factual determination, only doing so if it is proven that the trial court either took into account irrelevant information or neglected to consider pertinent details, resulting in an unfair outcome.

25. The Appellant in this case admitted that it is their motor vehicle that knocked down the deceased and caused his death. However, neither the Appellant`s witness nor the Respondents themselves gave an eye witness account of how the accident happened. None of them was at the scene when the accident took place.

26. The trial court made a finding that DW1 was the driver responsible for the accident. However, DW1 testified that he worked as the in charge of security at the Appellant’s construction sites. There was no evidence to indicate that he was the driver of the said grader. It is apparent that the trial Magistrate misapprehended the evidence before him and wrongly concluded that DW1 was the driver of the accident vehicle.

27. Be that as it, and considering that there was no eye witness to the accident, it is difficult to determine as to who between the driver of the grader and the deceased was responsible for causing the accident. It is trite that where it is not possible to determine as to which party in an accident was responsible for causing it then both should be held equally liable. The court of Appeal in Hussein Omar Farah v Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006]eKLR stated that the following on the issue:“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 held 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.

28. In this matter there is no basis on which to find that the Appellant’s driver was more to blame than the deceased. What is clear is that there was an accident involving the appellant’s grader and the deceased. In the absence of evidence as to how the accident took place, it is my view that both the driver of the grader and the deceased should be held equally to blame for occasioning the accident. Consequently, the trial magistrate’s finding on liability is set aside and substituted with a finding that liability is in the ratio of 50:50.

Quantum 29. The principles governing circumstances under which an appellate court can interfere with quantum of damages awarded by a lower court are well settled. In the case of Butt vs Khan (1977) 1KAR Law JA stated that:-“An Appellate court will not disturb an award for damages unless it is 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 arrived at a figure which was either inordinately high or low.”

30. The trial Magistrate awarded Ksh.100,000/= for loss of expectation of life and Ksh50,00/= for pain and suffering. I take note of the decision in 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 the following on awards under the two heads:-“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.”

31. The courts have usually awarded conventional sums of Ksh.100,000/= for loss of expectation of life. In Sukari Industries Limited vs. Clyde Machimbo Juma, Homa Bay HCCA No. 68 of 2015 [2016] eKLR, where the deceased had died immediately after the accident the court upheld an award of Ksh.50,000/= for pain and suffering. The evidence in this matter shows that the deceased died on the spot. There is nothing on record to indicate that he endured a lot of pain before his death. I will thus not interfere with the award of the learned Magistrate under these two heads.

32. On the loss of dependency, the 1st Respondent testified that the deceased was 39 years old and the sole breadwinner. She also testified that the deceased was employed and was enjoying a healthy life before the accident. The trial court in its judgment found that the deceased left a widow and three children who were dependent on him. The Appellant challenged this finding on the grounds that the Respondents did not comply with section 8 of the Fatal Accidents Act and no evidence was adduced to prove the extent of their dependency.

33. Section 8 of the Fatal Accidents Act states;8. Plaintiff to deliver full particulars of the persons for whom damages claimedIn every action brought by virtue of the provisions of this Act, the plaintiff on the record shall be required, together with the statement of claim, to deliver to the defendant, or his advocate, full particulars of the person or persons for whom, and on whose behalf, the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered.”

34. In the case of Elizabeth Gacoki w/o Kihara –v- Paul Ekulan & another (1987) eKLR the court held that:-“The Fatal Accidents Act, Cap 32 Laws of Kenya, does require that the full particulars of the deceased's dependants be set out in the claim, presumably to give some indication as to the extent of their dependency and the duration of the dependency. The plaintiffs were under a duty not only to supply those particulars but also to prove by evidence on a balance of probabilities the extent of their dependency on the deceased and, also, the duration of that dependency.”

35. In this case the particulars of the deceased`s dependants have not been listed anywhere in the plaint. In addition, no evidence was adduced to prove the extent of dependency of the alleged dependants. From the foregoing it is my finding that the only person who was dependent on the deceased was the widow, the 1st Respondent.

36. The 1st Respondent alleged that the deceased was earning a salary of Ksh.55,000/= however no evidence was introduced to support the same. The Respondents` advocate tried to introduce a pay slip alleged to be for the deceased through their submissions. The trial magistrate was correct in disregarding the pay slip as the same was not produced during the hearing.

37. The trial court awarded a global figure for loss of dependency as there was no evidence to support the earnings of the deceased. It is trite that where the earnings of a deceased cannot be ascertained so as to compute loss of dependency by way of the multiplier approach, the court can award damages by use of the lumpsum method of approach. In the case of Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, the court held as follows:“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.”

38. In Frankline Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu deceased [2020] eKLR where the court was dealing with a similar issue, it stated:“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency.The global sum would be an estimate informed by the special circumstances of each case. It will differ from case to case but should not be arbitrary. It should be seen to be a suitable replacement that correctly fits the gap.”

39. I am thereby in agreement with the trial court in this matter in resorting to the global method of approach to make the award. The question is whether the award of Ksh.3,500,000/= was manifestly excessive as contended by the Appellant.

40. In Twokay Chemicals Limited v Patrick Makau Mutisya & another [2019] eKLR, Odunga J.(as he then was) upheld an award of Ksh.1,500,000/= for loss of dependency. Similarly, in Joseph Maroa Wambura v Stellah Chepkurui Rere & another [2021] eKLR, Gikonyo J. upheld an award of Ksh.1,500,000/= for loss of dependency. In the latter case, the court cited the case of Zachary Abusa Magoma vs. Julius Asiago Ogentoto & Jane Kerubo Asiago [2020] eKLR where the court awarded a global sum of Ksh. 1,500,000/= for loss of dependency. In face of these authorities, I find that the award of Ksh.3,500,000/= by the trial court in this case was manifestly excessive. I will interfere with the award and proceed to make an award of Ksh.1,500,000/= for loss of dependency.

41. On the award of special damages, it is trite law that special damages must be both pleaded and proved before they can be awarded by the court. Suffice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716 where it was held that:“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.”

42. The Respondents filed copies of the police abstract, death certificate and copy of grant of letters of administration intestate. They claimed Ksh.200/= for obtaining the police abstract, Ksh.100/= for obtaining the death certificate and Ksh15,000/= for obtaining a grant of letters of administration, all totaling to Ksh.15,300/=. I find the sum claimed to be modest and thereby uphold the award of Ksh.15,300/= in special damages.

43. The Appellant argued that the trial court erred in awarding damages both under the Law Reform Act and under the Fatal Accidents Act. The scenario of double compensation under the two Acts was explained by the Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) Vs Kiarie Shoe Stores Limited [2015] eKLR where it was stated that what the court is required to do is to take into account the award under Law Reform Act and not necessarily to deduct it from the award under the Fatal Accidents Act. I find no evidence that the trial court was wrong in making awards under the two Acts.

44. Accordingly, the appeal succeeds on the issue of liability and on the award on loss of dependency. The finding of the lower court on liability and the award on loss of dependency are thus set aside. The final award is as follows:-Liability …………………………….…………ratio of 50:50(a)Loss of Dependency ……………..Ksh.1,5000,000/=(b)Loss of expectation of life ……….Ksh. 100,000/=(c)Pain and suffering ……………….Ksh. 50,000/=(d)Special damages ………………….Ksh 15,300/=Total …………………………….……..Ksh.1,665,300/=Less 50% contribution.

45. As the appeal has partially succeeded, I order each party to bear its own costs to the appeal.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF OCTOBER, 2023J. N. NJAGIJUDGEIn the presence of:Miss Mwose for AppellantMr. Ochieng for RespondentCourt Assistant – Amina30 days Right of Appeal.