[2022] KEHC 15137 (KLR)

Sorora & another (Suing as the Administrators of the Estate of the Late Noah Sorora Kasaine) v Karuga & another (Civil Appeal E006 of 2020) [2022] KEHC 15137 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15137 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E006 of 2020

SN Mutuku, J

July 5, 2022

Between

Clara Ng’onene Sorora & Moses Lesriyo Kanana (Suing as the Administrators of the Estate of the Late Noah Sorora Kasaine)

Appellant

and

Peter Macharia Karuga

1st Respondent

Mwanzia Kilonzo

2nd Respondent

(Being an appeal from the judgement and decree of the Chief Magistrate’s Court at Kajiado before Hon. E. Mulochi delivered on 14th December2020 in Kajiado CMCC No. 70 of 2020)

Judgment

1. The Appellants being aggrieved by the Judgement and Decree of Hon E Mulochi, Resident Magistrate, issued and delivered on December 14, 2020, hereby appeals against the whole of the said judgement and sets out its grounds of Appeal as follows:(a)That the Learned Magistrate erred in law and fact in taking into account irrelevant issues and arriving at a wrong conclusion.(b)That the Learned Magistrate erred in law and in fact in canvassing issues not before the court and arriving at a wrong decision.(c)That the Learned Magistrate erred in law and in fact in apportioning liability at 50:50 and failing to consider the Appellants evidence and submissions in awarding very low damages.

2. They urged that the appeal be allowed with costs.

3. The appeal was canvassed by way of written submissions.

4. The Appellants filed their submissions dated October 27, 2021. Counsel for the Appellants submitted on two issues, firstly, whether the Plaintiff contributed to the accident in any way. On this issue it was submitted that the duty of the court on first appeal is in a way a retrial where the court is called upon to re-evaluate and re-consider all the evidence adduced and make its own independent conclusions.

5. On liability, it is submitted that PW2 was an eye witness at the time of accident and according to his evidence the lorry was to blame for the fatal accident; that his testimony was corroborated by the police officer, PW1, who arrived at the scene soon after; that though PW2 did not record a statement with the police, it does not mean that he was not an eye witness. It was submitted that judgement on liability by the learned trial magistrate should be set aside and the court should enter 100% liability against the Defendants in favour of the Appellant.

6. The Appellants are not challenging the award of Kshs 100,000 for lose of expectation of life and Kshs 50,000 for the pain and suffering under the Law Reform Act. The Appellant, however, contests the award under the Fatal Accidents Act.

7. On the issue of damages it is submitted that the trial magistrate did not give sufficient reasons as to how he arrived at the meagre Kshs 30,000 from the proven 96,800 earnings a month; that PW2 and PW3’s testimony as to the occupation and earnings of the deceased stood unchallenged and uncontroverted as the Defendants failed to produce any evidence to the contrary; that the trial magistrate erred in failing to refer to the case law preferred in regard to the number of years.

8. It is submitted that the deceased was in the private sector and would have worked until he was 70 years. Citing Violet Jeptum Rahedi v Albert Kubai Mbogori [2013] eKLR, where the court stated that, “a private business…..cannot be limited by any formal retirement age….he should have been able to carry on business probably into his late 60’s/early 70’s”, it was submitted that the trial court should have used the multiplier of 36 years.

9. The Appellants cited Silas Mugendi Nguru v Nairobi Women’s Hospital [2014] eKLR where the court used a multiplier of 25 years where the deceased was aged 29 years and worked in the private sector and Paul Ouma v Sarah Akinyi and Monica Achieng Were (suing as the legal representatives in the estate of Paul Otieno Were (deceased) [2018] eKLR where the court adopted a multiplier of 26 years where the deceased was aged 29 years. They proposed a multiplier of 36 years and calculated the award of damages under the Fatal Accidents Act as follows:Kshs 61,200 x 12 x 36 x 2/3 = Kshs17, 625,600.

10. On costs the Appellants argued that costs follow the event. It is their argument that the trial magistrate failed to award costs to the Plaintiff and should this Court find in favour of the Appellants, then costs should be awarded to the Appellants in the primary suit and in this appeal as well as interest on damages from the date of judgement.

11. The Respondents filed their submissions dated December 21, 2021. They argued that the Appellants have not argued on ground (a) and (b) of their Memorandum of Appeal but concentrated on liability and quantum of damages and therefore these two grounds ought to fail.

12. On ground (c) of the Memorandum of Appeal they submitted that given the evidence adduced in this case, the deceased was totally to blame for the accident by violating the provisions of traffic regulations.

13. They submitted that a multiplier of 20 years is appropriate based on the vagaries and uncertainties of life; that as a result the pay of the rider ought to have been considered on the basis of minimum wage under Regulation of Wages (General)(Amendment) order 2017; that there is no specific provision of motor cycle riders but there is a provision for wheeled tractor driver which range from Kshs 12,791. 70-16,724. 75 and therefore the award of 25,000 lacked basis and is too high in the circumstances.

14. The Respondents submitted, further, that the Appellants have challenged the issue of costs in their submissions but this issue did not constitute grounds of appeal and therefore the same should be disregarded by this court. They urge that the entire appeal lacks merit and should be dismissed with costs.

Determination 15. It is clear to me from the outset that the Appellants did not address grounds (a) and (b) of their memorandum of appeal. They have concentrated mainly on ground (c) on the issue of liability and apportioning liability to a ratio of 50-50. It is also clear to me that the Appellants are not contesting damages awarded in respect of the Law Reform Act. It is to the issue of damages awarded under the Fatal Accidents Act and the issue of liability that this court will deal with in this appeal.

16. I have fully read the record of the lower court. I have noted that the Appellants’ case was supported by evidence of 3 witnesses. The first to testify is Police Constable Chris Odhiambo from Isinya Police Station. He was the Investigating Officer in respect of the accident that occurred on February 22, 2019 in the early hours of that day. The accident involved a lorry registration number KBX 168L, make Isuzu and Motor Cycle registration number KMES 332D.

17. PW1 visited the scene after the accident. He told the court that he did not find an eye witness and that investigations did not establish the direction the motor cycle was coming from. According to him, the police were unable to establish who to blame for the accident.

18. His evidence is that the impact was on the left side of the lorry; that the motor vehicle was about 100-150 meters from the point of impact and that there were skid marks about 10 meters before point of impact. He stated that they found the driver of the lorry at the scene and that the motor cycle was on the left side of the road. He reiterated his testimony on cross-examination and stated that the deceased’s body was on the left side of the road. He said that he lorry was on the left side of the road and had moved from the point of impact in a zigzag manner and stopped at 100-150 metres away. He stated that the lory was not facing Kitengela, the direction to which it was initially travelling, but it was slightly covering part of the left lane.

19. He testified, further, that the body of the cyclist was at the scene, on the left side of the road facing Kitengela about 3 ½ metres from the baseline (on the edges). He said that the motor cycle was cut into two, the front part was stuck un the front wheels of the lorry and the rear part was stuck in the rear wheels.

20. The second witness to testify was Moses Lesoyio Kanana, PW2. He adopted his witness statement dated July 23, 2020. I have read that statement. It shows that PW2 was at Succos Area the scene of the accident. He stated that the deceased used to operate his motor cycle along Kitengela/Isinya Road and used to ferry his passengers at Succos area which was his base. He stated that on February 22, 2019, the deceased was riding his motor cycle No KMES 332D on the extreme left side of the road when motor vehicle number KBW 168L, which was being driven at high speed, veered off the road and knocked down the deceased who died minutes after the accident.

21. On cross-examination he testified that the accident took place at 5am; that the accident took place about 30 metres from where he was standing; that the lorry passed him travelling towards Kitengela; that he knew the deceased; that the motor cycle was coming from travelling towards Isinya direction; that he heard the lorry hit the motor cycle; that he saw the rear side of the lorry; that he walked to the scene; that he found the deceased between the front tyres of the lorry.

22. The 3rd witness is the wife of the deceased, Clara Ng’onene Sorora. She adopted her witness statement dated July 23, 2020. I have read that statement. It shows that she was a housewife and that the deceased, her husband, was the sole bread winner of the family. She stated that she was informed of the accident by Moses Kanana (PW2), on the morning of February 22, 2020. She stated that her husband was a motor cycle rider who used to earn Kshs 1,800 per day and also a farmer and herdsman earning Kshs 50,000 per month from his farming and cattle keeping business and that he used to give her Kshs 1,200 per day from the motor cycle business to take care of the family including extended family and Kshs 30,000 at the end of the month to take care of rent, school fees, clothing and other family needs. She said they spend Kshs 100,000 for burial. On cross-examination she told the court that they lived in their own home.

23. The defence case was supported by the evidence of Mwanzia Kilonzo, (DW1), the driver of the lorry. His evidence is that he was driving at 60 km per hour at the time of the accident; that the lorry stopped 5 meters after the point of impact; that the motor cycle was coming from Kitengela towards Isinya; that the cyclist came to his side and that he tried moving away from the cyclist but he hit the left front headlight of the lorry.

24. On cross examination he stated that he was with his turn boy but he is not a witness. He stated that the cyclist hit the left front headlight and that the cyclist died on the spot.

25. I have considered this evidence. In my view, it is not correct for the police (PW1) to state that there was no eye witness. There was Moses, PW2, and the turnboy accompanying DW1. I don’t know why the police did not consider these two as witnesses. DW1 was the driver of the lorry. He was involved in the accident and it is possible that he will tell lies to shift the blame from himself.

26. I have considered the evidence of Moses. He was standing near the scene of the accident. He saw the lorry pass him. According to him, the lorry was on high speed. It was driving towards Kitengela on the left side of the road. It was therefore on the correct lane as far as traffic regulations dictate. According to Moses, the deceased was riding his motor cycle on the extreme left of the road. He was travelling towards Isinya. It means that he was on the wrong side of the road. Given the notoriety of motor cycle riders in this country, I think it is not wrong for this court to take judicial notice that motor cycles in this country ride anywhere they can manage to direct their cycles.

27. It is the word of the DW1 against that of Moses. DW1 said that the deceased was moving towards him head on. Moses said that the deceased was riding on the extreme left of the road. He did not clarify whether he was inside the left lane or outside the road. What is clear to me, though, is that had the deceased been riding head on towards the lorry, the impact would have been at the middle of the lorry. The impact was on the left front of the lorry.

28. Evidence shows that the lorry skidded for 10 metres before the impact and that it moved in a zigzag manner and stopped at 100 to 150 metres from the point of impact. It is obvious to this court that the lorry was being driven at high speed. The trial court agreed with PW1 that evidence does not establish who to blame and apportioned liability at the ratio of 50-50. Although evidence shows that the deceased was riding on the left side of the road, there is evidence of PW2, Moses, that he was on the extreme left. There is no evidence that he was on the lane of the oncoming lorry, but there is evidence to show that he was riding towards Isinya. Definitely he was on the wrong side of the road.DW1 said he was driving at 60KPH but I doubt his evidence for the reason that had he been at 60KPH, he would have managed to control the vehicle and avoid hitting the cyclist. Given these circumstances I do not wish to disturb the finding of the trial court in apportioning liability at 50-50. See the Court of Appeal decision in Hussein Omar Farah v Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006]eKLR where the court observed that:“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.”

29. On the issue of damages under the Fatal Accidents Act, I have taken into account that the deceased was aged 29 years at the time of his death. He was a rider said to earn Kshs 1,800 per day and Kshs 50,000 from farming and cattle keeping. The trial court disbelieved this evidence and instead averaged his monthly earning at Kshs 30,000. But this is not the figure used to calculate damages. Instead the court used Kshs 25,000. No reasons are given for this reduction.

30. I have considered the evidence of PW3. She told the court that her late husband used to give Kshs 1,200 per day and Kshs 30,000 per month. I have also considered that the deceased was 29 years old at the time of his death. There is no retirement age for people doing his kind of business but age catches up with people all the time. I doubt that he would have been as agile and energetic to run a motor cycle business after the age of 60 years. However, there is no age limit for keeping cattle. A multiplier of 26 would have been ideal in my view.

31. It is my view, after considering this matter, the monthly earnings of the deceased taking into account the evidence on his motor cycle business and cattle keeping business, the amount of Kshs 30,000 per month is within reason. I also find the dependency ratio of 2/3 is the appropriate one. Therefore damages under the Fatal Accidents Act should be calculated as follows:Kshs30,000 x 12 x 26 x 2/3 = Kshs 6,240,000

32. In conclusion, the only adjustments this court sitting on appeal has done is the monthly earnings from Kshs 25,000 to Kshs 30,000 and the number of years he would have been able to do his business from 21 to 26 years. The final amount payable to the Appellants is as follows:(a)Damages under the Law of Reform Act(i)Pain and suffering = Kshs 50,000. (ii)Loss of expectation of life = Kshs 100,000. (b)Damages under the Fatal Accidents Act = Kshs 6,240,000.

33. I have considered the order that each party bears owns costs. Although awarding costs is discretionary, it is my view that in exercising that discretion and denying the Appellants who are the successful party in the lower court costs was a misdirection on the part if the trial court. It is my view that the Appellants ought to have been awarded costs of the suit and interest in the lower court and in this appeal. For the above reason, I award costs of the suit in the lower court and also in this appeal. I also award interest at court rates.

34. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 5TH JULY 2022. S N MUTUKUJUDGE