[2023] KEHC 24430 (KLR)

Smoothel and Data Solutions v Ngetich & another (Suing as the legal representatives of the Estate of David Kiplangat Ngetich (Deceased)) (Civil Appeal 31 of 2019) [2023] KEHC 24430 (KLR) (18 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24430 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 31 of 2019

RL Korir, J

October 18, 2023

Between

Smoothel And Data Solutions

Appellant

and

Tabitha Chepngetich Ngetich

1st Respondent

Kipkemoi Ngetich

2nd Respondent

Suing as the legal representatives of the Estate of David Kiplangat Ngetich (Deceased)

(Being an Appeal from the Judgment of Kibelion K. at the Magistrate’s Court in Bomet, Civil Suit Number 43 of 2018)

Judgment

1. The Respondents (then Plaintiffs) as the Legal Representatives of the estate of David Kiplangat Ngetich, sued the Appellant (then Defendant) for General and Special Damages arising from an accident involving Motor Cycle Registration Number KMDZ 023U and Motor Vehicle Registration Number KBH 930M in which the said David Kiplangat Ngetich sustained fatal injury.

2. In its Judgement dated 20th November 2019, the trial court awarded Kshs 2,720,105/= as General and Special Damages to the Respondents (then Plaintiffs).

3. Being aggrieved with the Judgment of the trial court, the Appellant through its Memorandum of Appeal dated 7th December 2019 appealed against the liability and quantum of damages and relied on the following grounds:-i.That the learned trial Magistrate erred by arriving at a finding on liability at 100% against the Appellant which was not supported by evidence adduced at the hearing.ii.That the learned trial Magistrate erred both in law and fact in basing his fining on irrelevant matters.iii.That the learned Magistrate erred in law and in fact in failing to appreciate or take into account the Appellant’s submissions at all.iv.That the Respondents’ case was not proved on a balance of probability as required by law.v.That the learned trial Magistrate’s award of damages was improper, unrealistic and inappropriate under all circumstances of the case.vi.That the learned trial Magistrate erred on all points of fact and law in as far as both liability and award of damages is concerned in light of the circumstances herein.

4. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to my own findings and conclusions. In this, I take guidance from the case of Kiilu& Another vs. Republic (2005)1 KLR 174, where the Court of Appeal stated:-“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses”.

The Plaintiffs/Respondents’ case. 5. Through their Plaint dated 11th April 2018, the Respondents stated that on 30th July 2017, the deceased while aboard Motor Cycle Registration Number KMDZ 023U along Bomet-Narok road was knocked down by Motor Vehicle Registration Number KBH 930M.

6. The Respondents stated that the Appellant was the owner of Motor Vehicle Registration Number KBH 930M and on the material day was under the control of his agent or driver, Richard Monchore. That the Appellant was negligent in causing the accident and particularized the negligence in paragraph 4 of the Plaint. It was the Respondents’ further case that the deceased had dependants and the said dependants were listed in paragraph 6 of the Plaint.

7. It was the Respondents’ case that at the time of the death of the deceased, he was aged 31 years and that he earned approximately Kshs 15,000/= per month which he used to support his family members. That by his demise, the deceased’s estate and dependants suffered grave loss and damage.

8. The Respondent’s claim against the Appellant was for Special and General Damages under the Law Reform Act and Fatal Accidents Act.

The Appellant’s/Defendant’s case 9. Through its statement of defence dated 2nd November 2018, the Appellant denied that it was the driver or registered owner of Motor Vehicle Registration Number KBH930M and that the said motor vehicle was under the control of one Richard Monchore. The Appellant further denied the occurrence of the accident.

10. The Appellant denied the particulars of negligence levelled against its driver. That if any accident happened, it was contributed to by the sole negligence of the deceased. It particularized the negligence in paragraph 6 of its statement of Defence.

11. The Appellant stated that the Respondents were not entitled to general and special damages under the Law Reform Act and Fatal Accidents Act.

12. Pursuant to the directions of this court on 17th November 2022, the Appeal was canvassed by way of written submissions.

The Appellant’s written submissions. 13. In their submission dated 13th March 2023, the Appellants submitted that trial court erred in finding it 100% liable as the Respondents did not prove their case on a balance of probability. That in her testimony, the Respondent failed to narrate to the court how the accident happened and that the trial court ought to have been guided by the evidence adduced before it as it never visited the scene of the accident.

14. It was the Appellant’s submission that there can never be liability without fault. That the Respondents ought to have showed how it was at fault. It was their further submission that the trial court ought to have dismissed the Respondent’s case due to lack of evidence. They relied on Morris Njagi & another vs Beatrice Wanjiku Kiura (2019) eKLR and Mary Wambui Kabugu vs Kenya Bus Service Limited (1997) eKLR.

15. The Appellants submitted that the Respondent did not call any eye witness in support of her case and neither did the call the investigating officer to explain to the trial court the results of their investigations. They further submitted that PW2 was not the investigating officer and he did not produce a sketch map which could have helped the trial court have a picture of the scene of the accident. They relied on Evans Mogire Omwansa vs Benard Otieno Omolo & another (2016) eKLR.

16. In regards to pain and suffering, the Appellants submitted that the deceased died after four days and he underwent pain and suffering. They further submitted that the award of Kshs 200,000/= by the trial court under this head was excessive and that the award should be reduced to Kshs 100,000/= which was sufficient compensation.

17. In regards to loss of expectation of life, the Appellant proposed a conventional global figure of Kshs 60,000/=. It relied on Joseph Kahiga Gathii & Paul Mathaiya Kahiga (suing as the administrators of the estate of the late Lydia Wanjiku Kahiga and Elizabeth Murugi Kahiga) vs World Vision Kenya & 2 others (2014) eKLR.

18. On the loss of dependency, the Appellant submitted that there was no evidence of the deceased’s income and he proposed that this court adopts the sum of Kshs 8,500/= as the deceased’s income as per the Regulation of Wages (General Amendment) Order 2013.

19. It was the Appellant’s submission that this court considers the vagaries of life and adopts a multiplier of 10 years. It relied on Board of Governors of Kangubiri Girls High School & another vs Jane Wanjiku & another (2014) eKLR and Mombasa Maize Millers Limited vs W I M (suing as the representative of J A M (deceased) (2016) eKLR.

20. Under dependency ratio, the Appellant proposed that this court adopts the ration of 1/3 since dependency was not substantively proven. They argued that the Respondents did not produce a Chief’s letter, marriage certificate or birth certificates of the children to prove dependency.

21. In total under general damages, the Appellant proposed an award of Kshs 340,000/=.

22. It was the Appellant’s submission that the Respondent did not deserve an award under special damages as they did not prove the same through production of receipts. That the receipts that were given did not bear the name of the Respondent and were not related to the case at hand.

The Respondents’ written submissions. 23. Through their submissions dated 29th March 2023, the Respondents submitted that PW1 and PW2 testified that the accident happened when the subject motor vehicle hit the motor cycle from behind as it attempted to overtake it. That the motor vehicle had a tyre burs, lost control and knocked the deceased fatally. They further submitted that this evidence was not controverted or rebutted as the Appellant did not call any witness to testify.

24. It was the Respondent’s submission that the Appellant did not adopt its witness statement but it closed its case without any evidence. It was their further submission that the trial court’s finding on liability was based on the evidence and the appeal on liability cannot stand. They relied on Michael Matonye Munyao & another vs JNK (suing as the legal administrators of the estate of JOA) (2019) eKLR.

25. Under pain and suffering, the Respondents submitted that the award of Kshs 200,000/= was appropriate considering that the deceased endured pain. They relied on David Kahuruka Gitau & another vs Nancy Ann Wathithi Gitau & another (2016) eKLR.

26. On the issue of multiplicand, the Respondents submitted that the evidence that the deceased earned Kshs 15,000/= was not rebutted. That the deceased was PW1’s husband and this was a fact that was within her knowledge. They further submitted that the Appellant never submitted any figure to the trial court under this heading and it could not fault the figure awarded by the trial court. They relied on Richard Matheka Musyoka & another vs Susan Aoko & another (suing as the administrators ad litem of Joseph Onyango Owiti) (2016) eKLR.

27. On the issue of the multiplier, the Respondents submitted that the deceased was aged 31 years at the time of his death and that he was not in formal employment whose retirement age was 60 years. That the multiplier of 20 years adopted by the trial court was too low. They relied on Mildred Aori Odunga vs Hussein Dairy Limited (2010) eKLR and Janet Syokau Okoye (legal rep of the estate of Julius Uvyu Mutune) vs James Mathendu (2016) eKLR.

28. On the issue of the dependency ratio, the Respondents submitted that the ratio of 2/3 was proper since a bigger percentage of his income would go towards the maintenance of his dependants.

29. I have gone through and carefully considered the Record of Appeal dated 29th August 2022, the Supplementary Record of Appeal dated 25th October 2022, the Appellant’s written submissions dated 13th March 2023, the Respondents’ written submissions dated 29th March 2023 and there are two issues for my determination: -i.Whether liability was apportioned correctly.ii.Whether the award on quantum was unreasonably high.

Whether liability was apportioned correctly. 30. Tabitha Chepngetich Ngetich (PW1) testified that on the material day (30th July 2017), motor vehicle registration number KBH 930M knocked the deceased who was riding motor cycle registration number KMDZ 023U from behind causing him fatal injuries. She produced a copy of records from NTSA and the same was marked as P.Exh2. It indicated that as per 17th November 2017, the owner of motor vehicle registration number KBH 930M was the Appellant. The production of P.Exh 2 was not disputed by the Appellant and the ownership of the said motor vehicle was not challenged during cross examination. It is therefore my finding that at the date of the accident, motor vehicle registration number KBH 930M belonged to the Appellant.

31. PW1 further testified that she witnessed the accident. That she was waiting for the deceased and as the deceased approached her, motor vehicle registration number KBH 930M had a tyre burst and hit the deceased from behind. When she was cross examined she stated that she was waiting for the deceased on the road.

32. The Appellant did not call any witness to testify or adduce evidence that would explain the circumstances of the accident. I concur with Mwongo J. in Michael Matonye Munyao & another v JNK (suing as the legal administrators of the estate of JOA) (2019) eKLR, where he stated that:-“I do not see how the case of WK v Ghalip is of any assistance to the appellant here. This being an appeal, and no evidence on contributory negligence, indeed no defence evidence at all, having been adduced, there can be no appeal on contribution. The WK case clearly demands that there must be evidence of the blameworthiness of both parties before apportionment of liability. In this case there is absolutely no defence evidence at all. In the brief case of Interchemie EA Ltd v Nakuru Veterinary Centre Ltd [2001] eKLR, Mbaluto J held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. In this light, I have no choice but to treat this as an appeal purely against the quantum of damages awarded”.

33. A trial court has discretion to apportion liability after hearing the witnesses and considering the evidence adduced. An appellate court will interfere only if it finds that the trial court was clearly wrong, or apportioned liability based on no evidence or applied the wrong principle. In Khambi and Another vs. 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.”

34. It was clear from the proceedings that the testimony of PW1 who was an eye witness to the accident was uncontroverted. PW1 cogently stated what she witnessed and it was therefore wrong for the Appellant to submit that the Respondent did not narrate to the trial court how the accident happened.

35. While it is true that No. 72792 PC Reyand Lwembe Nzae was not the investigating officer and that he did not produce sketch maps to assist the court to have an idea as to how the accident occurred, the same was not fatal to the Respondents’ case as I am satisfied by the sufficiency of PW1’s testimony regarding the circumstances of the accident. PW1’s evidence was clear, cogent and most importantly her evidence regarding the circumstances and the cause of the accident were not rebutted.

36. It is therefore my finding that the apportioning of 100% liability on the Appellant by the trial court was proper and I so hold.

Whether the award on quantum was unreasonably high. 37. For an appellate court to interfere with the award by the trial court, it must be convinced that the trial Magistrate acted upon some wrong principle of the law or that the award was extremely high or extremely low so as to make it erroneous. The Court of Appeal in Johnson Evan Gicheru vs Andrew Morton & Another (2005) eKLR, held that:-“In order to justify reversing the trial judge on the question of the amount of damages it was generally necessary that the court of appeal should be convinced that either the judge acted upon some wrong principle of law or, that the amount awarded was so extremely high or so very small as to make it, in the judgement of the court, an entirely erroneous estimate of the damage to which the appellant was entitled”.

38. In regard to the pain and suffering, the trial court awarded Kshs 200,000/=. The Police Abstract marked as P.Exh 8 stated that the accident occurred on 30th July 2017. The Death Certificate marked as P.Exh 4b which indicated that the date of death was 4th August 2017. PW1 testified that the after the deceased was knocked down, he was taken to Longisa and later to Tenwek Hospital where he died 4 days later. Both parties were in agreement in their submissions that the deceased must have suffered significant pain and suffering before he eventually died. The Appellant faulted the trial court’s award of Kshs 200,000/= and urged that Kshs 100,000/= would be sufficient for pain and suffering. It is my finding that the award of Kshs 200,000/= under this head was reasonable and I see no need to interfere.

39. On the loss of expectation of life, the trial court awarded Kshs 100,000/=. The Appellant submitted that an award of Kshs 60,000/= was sufficient. In Ndeti & another (Suing on their own behalf and as administrators of the estate of Gerald Ndeti Mutua (Deceased)) vs Mwangangi & another (Civil Appeal E282 of 2021) (2022) KEHC 15732 (KLR) (Civ) (28 November 2022) (Judgment), Mulwa J held that:-“The conventional award for loss of expectation of life is Kshs 100,000/=……..”

40. Similarly in Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) (2022) eKLR, while discussing the award of loss of expectation of life, Kamau J. held that:-“It was this court’s considered view that a sum of Kshs 80,000/= was low considering the inflationary trends and the low value of the Kenya Shilling. Bearing in mind that courts have awarded higher sums than Kshs 100,000/= under this head, this court was not persuaded that it should interfere with the award of Kshs 100, 000/= that was awarded by the Trial Court as the same was fair, just and reasonable in the circumstances”.

41. The Appellant has not convinced this court why it should interfere with the award of loss of expectation of life. His suggestion was without a basis and his proposal of Kshs 60,000/= under this head is rejected. It is my finding therefore that the trial court’s award of Kshs 100,000/= under this head was proper and just.

42. On loss of dependency, Section 4 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, parents and the child if the person, whose death 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 cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct.

43. The claim for loss of dependency constitutes the multiplicand, the dependency ratio and the multiplier.

44. On the issue of the multiplicand, the Respondents stated that the deceased was employed by Chemusian Company Limited and earned Kshs 15,000/=. PW1 produced a bundle of payslips and a letter from Sovereign Group Limited which were marked as P.Exh 6.

45. I have gone through the bundle of payslips and the said letter and I have noted that they were payslips from the year 2015 and 2016. In my view, they are immaterial to this case as the accident occurred on 30th July 2017 and it was unclear if the deceased was working for Chemusian Company Limited at the time of his death.

46. Additionally, the letter from Sovereign Group Limited dated 17th August 2015 indicated that the deceased was to work for them as a gardener for a period of one year from 17th August 2015. The letter further indicated that the contract was for one year and that his employment would terminate as the last date of the contract. This meant that the deceased’s contract would end sometime in August 2016. There was no evidence that his contract was renewed to allow him work for them until August 2017. Consequently, this letter was also immaterial to this case.

47. It was evident that the deceased’s income and occupation at the time of his death was unknown, this court cannot use the minimum wage approach. That leaves this court with no option other than to award a reasonable sum under this head. In the case of Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji (2007) eKLR, where Ringera J. (as he then was) held that:-“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.”

48. I reject the Appellant’s proposal of Kshs 8,500/= as the multiplicand. He based this amount on the Regulation of Wages (General Amendment) Order 2013. By the time the accident was happening the Regulation of Wages (General Amendment) Order 2013 had already been replaced by Regulation of Wages (General Amendment) Order 2015 which was then subsequently replaced by Regulation of Wages (General Amendment) Order 2017 which would have awarded Kshs 5,844. 20/= and Kshs 6,896. 15/= respectively.

49. The trial court awarded the sum of Kshs 15,000/= as the multiplicand based on his employment at Chemusian Company Limited. I respectfully disagree with the trial court’s reasoning on the award of the multiplicand. However, I do find the amount of Kshs 15,000/= to be a reasonable award under this head.

50. On the issue of multiplier, the trial court used a multiplier of 20 years. The Appellant submitted that the adoption of the multiplier of 10 years. The Respondent submitted that the 20 years that the trial court adopted was low.

51. In the case of Roger Dainty vs Mwinyi Omar Haji & another (2004) eKLR, the Court of Appeal held that:-“To ascertain the reasonable multiplier in each case the court would have to consider such relevant factors as the income of the deceased, the kind of work deceased was doing, the prospects of promotion and his expectation of working life.

52. In adopting the use of 20 years as the multiplicand, the trial court was of the opinion that the deceased would have worked up and until he was 51 years old. In the authorities that the Respondents have relied on, the courts had the opinion that the deceased in both cases would have worked up to the age of 60 years.

53. I am not convinced by the Appellant’s submission that due to the vagaries of life and the fact that the deceased was not employed in public service, that a multiplier of 10 years would be sufficient. It is my finding that the use of 20 years as the multiplier by the trial court was reasonable and I will not disturb the same.

54. On the dependency ratio, it is trite that dependency is a question of fact to be established in each case. The Respondent submitted that the trial court’s use of the ratio of 2/3 was proper since a bigger percentage of his income would go towards the maintenance of his dependants who also included his aging parents. The Appellant on the other hand urged this court to adopt the ration of 1/3 as the Respondents did not prove dependency. That they did not produce a Chief’s letter, a marriage certificate or birth certificates.

55. The particulars of the deceased’s dependants are contained in paragraph 6 of the Plaint. PW1 also produced a letter from the Chief dated 11th August 2017 and marked as P.Exh 5 which confirmed that the deceased had a wife (PW1) and two sons, Collins Kibet and Evans Cheruiyot. I am satisfied that the deceased had dependants as listed in the Plaint.

56. It is the presumption in law that the deceased is taken to spend 1/3 of his income on himself and 2/3 is available as reserve for his dependents. I agree with the trial court’s use of 2/3 as the dependency ratio and I so hold.

57. In summary therefore, I concur with the trial court’s award of Kshs 2,400,000/= as loss of dependency and I so hold.

58. With regard to Special Damages, the Respondent pleaded: -Legal fees Kshs 20,000/=Search of m/vehicle Kshs 500/=Registration of demand Kshs 105/=Post Mortem and treatment Kshs 40,043. 52/=

59. The Respondents produced a receipt marked as P.Exh 1b from the firm of Khan and Associates which showed that the Respondents incurred Kshs 20,000/= as professional fees. They also produced a postage stamp receipt marked as P.Exh 7b which indicated that they paid Kshs 105 as postage fee. There was no other evidence adduced by the Respondents to support payment for the search of the motor vehicle and for treatment and post mortem. I agree with the trial court’s award of Kshs 20,105/= as special damages and I so hold.

60. In the final analysis, I have not found any mistake on the part of the trial court in awarding of the damages and apportioning of the liability. The trial court did not act on any wrong principle of law and its award was reasonable. It does not warrant interference by this court.

61. In the end the Appeal dated 7th December 2019 is dismissed.

62. The Respondents are awarded the costs of the Appeal while the costs of the suit shall remain as awarded by the trial court.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 18TH DAY OF OCTOBER , 2023. .........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Ms. Kusa for the Respondent, N/A for Kibichiy and Co. for the Respondent.