[2023] KEHC 26936 (KLR)

Subru Motors Limited v Onyoni (Suing as the administrator and legal representative of the Estate of Gibon Gosore Ogechi (Deceased) & 2 others (Civil Appeal E210 of 2020) [2023] KEHC 26936 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26936 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E210 of 2020

AN Ongeri, J

December 15, 2023

Between

Subru Motors Limited

Appellant

and

Linet Nehema Onyoni (Suing as the administrator and Legal representative of the Estate of Gibon Gosore Ogechi (Deceased)

1st Respondent

Kevin Muchangi Mberia

2nd Respondent

Gichuki Winfred

3rd Respondent

(Being an appeal from the Judgment and decree of Hon. D. A. Ocharo (P.M) in Milimani CMC No. 5836 of 2013 delivered on 6/3/2019)

Judgment

1. The 1st respondent Linet Nehema Onyoni (Suing as the administrator of the estate of Gibon Gisore Ogechi (Deceased) filed Milimani CMCC 5836 of 2013 seeking damages under both the Law Reform Act and the Fatal Accidents Act and special damages of kshs.78,065 in respect of fatal injuries which the deceased sustained on 27/3/2012 when he was hit by motor vehicle registration no. KBQ 786T while he was walking within a residential compound.

2. The appellant was enjoined by the 2nd respondent as a 3rd party. The 2nd and 3rd respondents entered appearance and filed defences denying the 1st respondent’s claim.

3. The 2nd respondent enjoined a 3rd party who is now the appellant.

4. The court entered judgment in favour of the 1st respondent against the 2nd respondent and the 3rd party (appellant) jointly and severally in the following termsLoss of dependency 3,643,392Loss of expectation of life 60,000Pain & suffering 95,000Special damages 78,065Total 3,876,457

5. The 3rd party (appellant) filed this appeal on the following grounds;a.Thatthe Learned trial magistrate erred in law in finding that the Appellant was liable for the accident in the absence of any evidence on record.b.Thatthe Learned magistrate failed to appreciate the law and submissions made on behalf of the appellant thus reaching a conclusion that was contrary to the law;c.Thatthe Learned trial magistrate erred in law and in fact in not finding that the 1st Respondent did not prove her case on a balance of probability as she did not adduce any evidence in court of how the accident happened and on why she would find the 3rd party liable or culpable for the alleged accident.d.Thatthe Learned trial magistrate erred in law and in fact in not following the law relating to award of general damages and liability.e.Thatthe Learned trial magistrate erred in awarding the claim of special damages without proof of documentary evidence in form of actual receipts.f.Thatthe Learned trial magistrate erred in law and in fact in failing to set out issues raised in the pleadings and analyze each of them in her judgement in relation to the documentary evidence tendered.g.Thatthe Learned Magistrate erred in failing to give a reasoned judgment as required by Order 21 Rules 4 and 5 of the Civil Procedure Rules that is capable of being executed.h.Thatthe Learned magistrate erred in law and fact in granting such an unjust and excessive award of General Damages without laying a foundation on any of the pleadings filed by the Plaintiff.i.Thatthe Learned magistrate considered and gave undue weight to irrelevant issues that favoured the Respondent or/and totally failed to consider the relevant issues;j.Thatthe Learned trial Magistrate relied on hearsay documentary evidence which was never produced in evidence or as exhibits.k.Thatthe Learned magistrate erred in law and in fact in disregarding the discrepancies and contradictions in the evidence of the 1st Respondent and in so doing reached a wrong decision.l.Thatthe Learned trial Magistrate delivered a judgment which was clearly against the weight of evidence.m.Thatthe learned magistrate failed to consider the evidence in its totality hence reaching a wrong conclusion of both facts and law.

6. The parties filed written submissions as follows; the appellant submitted that the 1st respondent did not testify about the alleged accident. On cross examination she clarifies that the deceased died due to head injury secondary to road accident with frontal orbital walls and zygomatic fractures.

7. The appellant argued that it can therefore be inferred that the deceased died from a falling object that fell and hit the top most part of the deceased head. There was no connection or link between the alleged accident and the deceased head injury.

8. The appellant submitted that the post mortem report was not produced and the same was fatal to the 1st respondent’s case. The 1st respondent further indicated that there was a traffic case at Kibera 1 case No. 1012 of 2012 but never attached a charge sheet, proceedings or judgement. It was the appellant’s argument that this case involved pure speculation by the 1st respondent as she did not prove the existence of the accident.

9. On liability the appellant submitted that because no liability was established against it as no eye witness was called to testify nor any explanation tendered on how the accident occurred therefore the burden of proof was not discharged.

10. The 1st respondent submitted that the appeal herein is a non-starter and should be dismissed in lime because vide a ruling dated 30/7/2020 in CMCC No. 5836 of 2013 the appellant was granted leave to file the appeal within 14 days.

11. However, the appeal herein was instituted through a memorandum dated 18/8/2020 way after the 14 days had lapsed. The appeal herein was therefore file out of time and without leave of court.

12. The 1st respondent submitted that she proved her case in the trial court to the required standard and the 2nd respondent was found wholly liable for the accident and the appellant vicariously liable.

13. The Appellant further submitted that the accident that caused the death of her husband occurred on 27/3/2012 at around 11. 00 pm. Motor vehicle registration number KBQ 786T that was being driven by the 2nd respondent and belonging to the appellant knocked down the deceased and occasioned fatal head injuries.

14. The matter was reported at Kabete Police Station and during the hearing PW1 a police officer presented the Police Abstract which indicated that the 2nd respondent was charged with the offence of causing death by dangerous driving.

15. A medical report by Kenyatta National Hospital dated 29/3/2012 indicated that the cause of death was severe head injury secondary to a road traffic accident.

16. It was the 1st respondent’s submission that her husband was of good health until 27/3/2012 when he was involved in the tragic accident. Until that time the deceased was employed by BABS Security Services Ltd as a Security Guard and was earning a net salary of Kshs. 14,232 per month which salary he used to support the 1st respondent, their daughter and his mother.

17. Further, the 1st respondent submitted that she produced the deceased pay slip as proof of the same. The 1st respondent indicated that her husband died on 29/3/2012 at 12. 30 pm, 3 days after the accident.

18. The 3rd respondent submitted that the trial court was correct in its decision by dismissing the suit against her and finding the appellant and the 2nd respondent wholly liable for the accident.

19. Further, that the appellant was legally and procedurally enjoined when pre-trial directions were taken but still refused to give any evidence during the hearing of the case.

20. The duty of the 1st appellate court is to re-evaluate the evidence adduced at the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

21. In the case of Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

22. The issues for determination in this appeal are as follows;i.Whether the 1st respondent proved her case to the required standard.ii.Whether the Trial Court was right in discharging the 3rd respondent.iii.Whether the award of damages was excessive.iv.Whether the trial court relied on hearsay documentary evidence.v.Whether the appeal should be allowed.

23. On the issue as to whether the 1st respondent proved her case on a balance of probabilities, the standard required is on a balance of probabilities.

24. There was evidence that the matter was reported at Kabete Police Station and during the hearing PW1 a police officer presented the Police Abstract which indicated that the 2nd respondent was charged with the offence of causing death by dangerous driving.

25. On the issue as to whether the Trial Court was right in discharging the 3rd respondent, I find that the appellant was legally and procedurally enjoined when pre-trial directions were taken and there was evidence that is not disputed that the 3rd respondent sold the subject motor vehicle to the Appellant.

26. On the issue as to whether the trial court relied on hearsay documentary, I find that the 1st respondent produced receipts in support of the special damages.

27. On the issue as to whether the award of damages was excessive, I find that there was evidence that the deceased was in good health until 27/3/2012 when he was involved in the tragic accident.

28. There was evidence that until that time the deceased was employed by BABS Security Services Ltd as a Security Guard and was earning a net salary of Kshs. 14,232 per month which salary he used to support the 1st respondent, their daughter and his mother.

29. There was evidence that the deceased was working and the 1st respondent produced his pay slip as proof of the same. The 1st respondent testified that her husband died on 29/3/2012 at 12. 30 pm, 3 days after the accident.

30. I find that the award of damages was not excessive. The deceased was 28 years and he was in good health and would have worked for 32 years up to the retirement age of 60 years and the court gave a multiplier of 32 years.

31. In the case of Board of Governors of Kangubiri Girls High School & Another - Jane Wanjiku & Another (2014) eKLR.The court held as follows;“The choice of a multiplier is a matter of court’s discretion which discretion has to be exercised judiciously with reason”.

32. The Trial Court also applied a multiplicand of 2/3 since the deceased was a married man with a wife, a child and his mother who depended on him and his salary was Kshs. 14,232 per month.

33. In the case of Beatrice Wangui Thairu -vs- Hon. Ezekiel Bangetuny & Another Nairobi HCC No. 1638 of 1988 (UR) – the court held as follows;“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency.Such value is called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life of the dependants and the chances of life of the deceased and dependants.”

34. The Trial court’s award was reasonable in the circumstances of this case.

35. I find that the appeal herein lacks in merit and the same is dismissed with costs to the 1st respondents.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent