[2023] KEHC 26872 (KLR)

Sisa v Otieno & another (Suing as the Legaal representatives of thhe Estate Of Willis Odiwuor Otieno) (Civil Appeal E050 of 2023) [2023] KEHC 26872 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26872 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E050 of 2023

RE Aburili, J

November 30, 2023

Between

Philister Natsala Sisa

Appellant

and

Joyce Cynthia Akoth Atieno

1st Respondent

Charles Otieno Ondiegi

2nd Respondent

Suing as the Legaal representatives of thhe Estate Of Willis Odiwuor Otieno

(An appeal arising out of the Judgement of the Honourable G.C. Serem in the Chief Magistrate’s Court at Kisumu delivered on the 7th March 2023 in Kisumu CMCC No. E170 of 2020)

Judgment

Introduction 1. The appellant PHILISTER NATSALA SISA herein was sued for general and special damages under the Fatal Accidents Act and the Law Reform Act by the respondents following fatal injuries arising from a road traffic accident that occurred on the 30th August 2019 along the Kisumu – Ahero road where the deceased was a passenger in a tuk-tuk registration number KTWB 780R.

2. In her defence, the defendant denied liability and attributed the occurrence of the accident to the driver and owner of the lorry that hit the tuk-tuk from behind.

3. The trial magistrate in her judgement found that in the absence of a third-party notice, the respondent had to bear the full liability. The trial magistrate went ahead and awarded the respondent quantum of damages for loss of dependency of Kshs. 3,686,240, Kshs. 10,000 for pain and suffering, Kshs. 100,000 for loss of expectation of life and special damages of Kshs. 3,550 bringing the total award to Kshs. 3,796,595.

4. Aggrieved by the said decision, the appellant filed a memorandum of appeal dated 22nd March 2023 and filed on the 28th March 2023 raising the following grounds of appeal;a.That the learned trial magistrate erred in fact and in law by failing to dismiss suit and apportioning 100% liability to the appellant without considering the circumstances of the case.b.That the learned trial magistrate erred in law and in fact in finding in favour of the respondent against the appellant when there was totally no credible evidence or proof of negligence on the part of the appellant.c.That the learned trial magistrate erred in law and fact in awarding the respondent Kshs. 3,686,240 damages under the Fatal Accident’s Act which award was too excessive in the circumstances.d.That the learned magistrate erred in law and in fact in adopting a multiplicand of Kshs. 23,039 for a driver which income and occupation was not pleaded and proved.e.That the learned magistrate erred in law and in fact in relying on the maximum number of productive working years which was 20 years in the circumstances and failing to consider vicissitudes of life when awarding damages under the Fatal Accidents Act.f.That the learned magistrate erred in law and in fact in adopting a multiplier of 20 years which was an erroneous estimate of lost years.g.That the learned trial magistrate’s exercise of discretion in assessment of quantum was injudicious.

5. The parties agreed to file submissions to canvass the appeal.

Appellant’s Submissions 6. The appellant submitted that they were blameless as they could have not enjoined the owner of the unknown trailer as its particulars were unknown and further as they had proved to this court that they were not negligent and thus the trial magistrate erred in holding the appellant 100%.

7. On the award of loss of dependency, the appellant submitted that the multiplier of 20 years was okay and not to be interfered with whereas it was erroneous for the trial magistrate to adopt a multiplicand of Kshs. 23,039 noting that no evidence was adduced in the form of pay slip to prove the deceased’s earnings.

8. It was submitted that the deceased having died on 16. 4.2018 the court ought to have used the Regulation of Wages (General) (Amendment) Order, 2018 for purposes of adoption of the appropriate multiplicand since the deceased died on 30. 8.2019. The appellant thus submitted that the said Order provided for a minimum wage of Kshs. 7,240. 95

9. The appellant thus submitted that the instant appeal had merit and ought to be allowed.

Respondent’s Submissions. 10. It was submitted that the deceased was neither in control of the tricycle nor the lorry that caused the accident and that he was a lawful fare paying passenger in the suit tricycle. The respondents further submitted that the driver of the suit tricycle was negligent in joining the main road without due care and attention to other on -coming traffic hence he was hit by the unknown lorry.

11. The respondents submitted that the unknown lorry was not joined as party to the suit by the defendant hence, the Appellant cannot apportion any liability to a person who is not a party to the suit. Reliance was placed on the case of James Gikonyo Mwangi v D M (Minor Suing through his Mother and next Friend, I M O) [2016] eKLR.

12. The Respondents submitted that the trial magistrate was justified in holding that the Appellant could not apportion blame to a third party not enjoined in the suit as the Appellant failed to file the said third party application hence the submission that the third party was to blame does not hold water at all thus the Appellant was wholly to blame for the accident.

13. The respondents relied on the case of Alex Njoroge & another v Florence Nduku Mutua [2021] eKLR and that of Mary Njeri Mwangi V Peter Mahuni & Another (2016) eKLR.

14. On the quantum awarded, it was submitted that the trial magistrate was right in awarding the same. On the multiplicand used by the court, it was submitted that the respondents proved that the deceased was a driver and as such the trial court was right in adopting the minimum wages regulations of 2018 to determine the minimum wage of a driver as Kshs. 23,039

Analysis and Determination 15. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

16. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

17. Having considered the Appellant’s Grounds of Appeal and the parties’ Written Submissions, it appears to this court that the issues that had been placed before it for its determination: -Whether or not the apportionment of liability was fair and reasonable in the circumstances of this case.Whether or not the award of quantum was inordinately low in the circumstances of this case so as to warrant interference by this court.

18. This court therefore deals with the issues under the separate heads shown herein below.

Liability 19. On liability, In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:“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.”

20. That seems to have been the position in Isabella Wanjiru Karangu v Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142 and Mahendra M Malde v George M Angira Civil Appeal No. 12 of 1981, where it was held that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.

21. In this case, the crux of the matter is that the appellant faulted the trial magistrate for apportioning liability at 100% against her whereas there was evidence that there was a truck that rammed the appellants tuk-tuk from the rear and the fact that the appellant did not have the details of the said truck for purposes of instituting third party proceedings should not be held against her.

22. In response, the respondent submitted that the deceased was a passenger in the appellant’s tuk-tuk and as such liability could not be apportioned against him whereas it was incumbent upon the appellant to institute 3rd party proceedings.

23. It is true that the alleged involvement of a third party was pleaded by the appellant on paragraph 7 of her defence dated 23rd March 2021 and filed on the 26th March 2021. However, pleading is not enough, a party ought to lead evidence based on his pleadings after all he who alleges must prove.

24. The appellant did not seek to have the alleged third party joined in this suit. I agree with Kimaru, J as he then was, in Pauline Wangare Mburu v Benedict Raymond Kutondo & Another [2005] eKLR where he expressed himself as hereunder:“Having evaluated the evidence I do hold the driver of motor vehicle registration number KAM 466B solely liable for the said accident…. The defendants jointly and severally are therefore liable to the plaintiff in damages for the death of the deceased. As stated earlier in this judgment, the defendants did not deem it necessary to issue a third party notice to enjoin the owner of motor vehicle registration number KAH 129V to this suit. In the circumstances therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit. The defendants shall therefore bear 100% liability.”

25. I also agree with the holding of Okwany, J in James Gikonyo Mwangi v D M [2016] eKLR, where she expressed herself as hereunder:“I further find that the respondent had no reason to enjoin a third party to the suit as the respondent was positive that it was the appellant’s driver to blame for the accident and nobody else. On cross-examination PW1 stated as follows:“I blame our driver for speeding and veering off its lane. That is why I did not enjoin the other Motor Vehicle.”It is worthy to note that it was the appellant who has introduced the aspect of a third party in this proceeding and I find that under those circumstances it was incumbent upon the appellant, if his case was that a third party was to blame for the accident, to enjoin the said third party as he had already alluded to in his own pleadings (defence) at paragraphs 5 and 7. Order 1 Rule 15 provides for an elaborate procedure to be undertaken by a defendant claiming against a person not already a party to the suit…To my mind, the appellant was under an obligation, if he felt that someone else was responsible for or contributed to his predicament in the case, to enjoin that someone else so that he can claim from him any loss or award that he may suffer, should the case be determined in favour of the respondent. A court of law can only determine the case or issues between the parties who are before it and not those parties who should have been or are yet to appear before it. I find the suggestion or contention by the appellant that the respondent should have sued the third party owner of the unregistered motor vehicle to be erroneous and misguided. This is so because passengers have no contract with third party vehicles on the road. The contract is with the owner and/or driver of the vehicle they are travelling in to drive them safely to their destinations. It is the appellant who had a contract with 3rd party vehicles on the road in respect to safe-driving and if the third party acted to his detriment, then I reiterated that the appellant should have called him to account through the third party proceedings. (See Boniface Klaiti & Another vs Michael Kariuki Kamau [2007] eKLR). The appellant failed to pursue the third party proceedings and cannot be allowed to evade his responsibilities towards his passengers. I therefore find that the trial court was justified to hold that the appellant was 100% to blame for the accident.”

26. I associate myself with the views expressed by Mulwa, J in Brian Muchiri Waihenya v Jubilee Hauliers Ltd & 2 Others [2017] eKLR that:“The defendants failed to enjoin the party it blamed for the accident as a third party or a co-defendant. They did not blame the plaintiff at all, and in any event, being a passenger the plaintiff who had no control of the vehicle he was travelling in can not be held to have contributed to the collision of the two vehicles. It is not enough for the defendants to submit that the plaintiff chose to sue the available party as the party to blame. They too were at liberty to enjoin any other party they deemed was liable.”

27. This court was of a similar view in Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR where I held that:“Furthermore, if or at all KAY 069X was or contributed to the occurrence of the material accident, this court wonders why the defendants did not issue the owner thereof with a third party notice or notice of claim for indemnity or contributions. In the absence of any such third party proceedings against the owner of KAY 069X this court cannot make any finding on its liability or contribution to the occurrence which contribution is not apparent. I therefore dismiss any shifting of blame to the owner of KAY 069X by the defendants.”

28. Therefore, the Appellant ought to have joined the owner of the alleged truck as a third party to the said proceedings as provided under Order 1 rule 15 of the Civil Procedure Rules. Based on the above authorities as well as the decision of Wambiliangah, J in Loyce Anyona Olum v Benjamin Kimondo Kisumu HCCC No. 105 of 1993 that a defendant ought to apply for a third party notice if allegations are made against the third party. The failure to do so was a barrier in making any findings adverse to the alleged third party.

29. The testimony of PW3 that was not controverted was that the driver of the appellant’s tuk-tuk, DW1 tried to get back on the road and did not see the trailer that was coming behind him and on noticing it, swerved back to the pedestrian side of the road and hit the pavement.

30. The evidence of DW1 was that he was hit from the rear by the truck and that he blamed the truck driver for the accident. It is clear from the evidence that DW1 was not attentive while driving and that is why he did not notice the truck behind him on time forcing him to swerve back on the pedestrian side of the road. He drove without due care and attention consideration the prevailing circumstances.

31. The deceased could not have been found negligent. He was a passenger. Okwengu, J (as she then was) in Samuel Mukunya Kamunge v John Mwangi Kamuru NyerI HCCA No. 34 of 2002 held that:“Where the deceased was a passive passenger in the motor vehicle and the evidence adduced shows that the accident was caused by a tyre burst and that the driver lost control of the motor vehicle, without an explanation how the accident occurred, the evidence was sufficient to establish on a balance of probabilities that there was negligence on the part of the Respondent’s driver hence his inability to control the vehicle as a rear tyre burst would not ordinarily cause a motor vehicle to overturn if the vehicle is being driven at a reasonable speed with due care and attention.”

32. This was the position adopted by Trvelyan, J in Gian Singh Panesar and Others v Lochab and Another [1966] EA 401 where he held that:“…this finding only affects the first plaintiff, who was the driver, for the passengers in the car were not identified with the driver’s negligence. In such circumstances it is no defence for the defendants to prove that someone else contributed to the accident.”

33. Accordingly, I have no basis for interfering with the findings of the learned trial magistrate on this issue of liability. I have considered the evidence on record and there is no basis upon which I can interfere with his findings that the Appellants were 100% liable for the accident.

34. I thus find no error in principle in the manner the trial court apportioned liability as between the parties herein. I decline to interfere with the same and uphold the finding and holding of the trial court on liability.

Quantum 35. The appellant did not challenge the award made by the trial court under the Law Reform Act but instead challenged the award of the trial court on loss of dependency under the Fatal Accidents Act.

36. It was the appellant’s case that the trial court was erroneous for the trial magistrate to adopt a multiplicand of Kshs. 23,039 noting that no evidence was adduced in the form of pay slip to prove the deceased’s earnings. The appellant submitted that the deceased having died on 16. 4.2018 the court ought to have used the Regulation of Wages (General) (Amendment) Order, 2018 that provided for a minimum wage of Kshs. 7,240. 95

37. In in Butt v Khan [1982-88] KAR 1 it was held -“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 so arrived at a figure which was either inordinately high or low”.

38. From the proceedings of the lower court, the respondent, PW2 testified that the deceased was a farmer earning Kshs. 15,000. It was her testimony that she did not have proof of his income or work but that the deceased used to toil the land. In re-examination PW2 stated that her husband was a PSV driver.

39. This Court notes that no documentary evidence was produced by the appellant to prove that the deceased was working as a farmer earning Kshs. 15,000 or as a PSV driver. The death certificate shows that the deceased was 35 years old and he died of severe head injury with intracranial bleed due to road traffic accident.

40. In the present case, the deceased’s earnings could however not be ascertained. The appellant suggested Kshs. 7,240. 95 in line with the provisions of the Regulation of Wages (General) (Amendment) Order 2018.

41. Since no documentary evidence was produced as proof of the deceased’s actual monthly income, the Trial Court could have adopted either the multiplier approach or global sum approach. She adopted the former approach

42. In the case of Mwanzia v Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji [2007] eKLR, the court made the following observation;“The multiplier approach is just a method of assessing damages. It is not a principle of law or a 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 amount of annual or monthly dependency and the expected length of the dependency are known 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.”

43. In this case there was no evidence to support the averments of the deceased’s monthly income or that he worked as a farmer or PSV driver and as such I hold the view that an award based on the global sum approach would be more appropriate.

44. In the case of the case of Acceler Global Logistics v Gladys Nasambu Waswa & Christopher Obedi Hanna (suing as the Administrators and legal representatives of the estate of Agripa Melise Williem), the deceased was a 41-year-old driver and no proof of monthly income was produced. Although in the said case the multiplier approach was adopted in calculating the loss of dependency, the High Court on 10th January, 2020 upheld an award that had been made by the Trial Court on 19th December, 2018, in the sum of Kshs. 2,129,184 for loss of dependency.

45. In the case of Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR the deceased was a 40-year-old man who had two children and a wife, the court proceeded to uphold the Trial Court’s award of Kshs. 2,000,000/= for loss of dependency.

46. In this case, the trial court awarded the respondent Kshs. 3,686,240, for loss of dependency. Considering the authorities cited herein for older persons, it is my view that the award of the trial magistrate was manifestly excessive.

47. Based on the aforementioned authorities, I am satisfied that an award of a global sum of Kshs. 2,000,000 for loss of dependency would be sufficient in the instant case taking into consideration the deceased’s age as well as the young age of his child who was 2 years old at the time of the deceased’s passing.

48. The upshot of the above is that this appeal on quantum is allowed. The judgement and decree of the trial court is hereby set aside and substituted with the following award:Pain & suffering – Kshs. 10,000Loss of expectation of life - Kshs. 100,000Los of dependency – Kshs. 2,000,000Total - Kshs. 2,110,000Add Proven Specials – Kshs. 3,550Grand Total - Kshs. 2,113,550

49. Interest on general damages at court rates will accrue from date of judgment in the lower court until payment in full. Interest on special damages will accrue from date of filing suit until payment in full.

50. As the appeal is partially successful on quantum only, I order that each party bear their own costs of the appeal.

51. File closed.

DATED SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF NOVEMBER, 2023. R.E. ABURILIJUDGE