[2017] KEHC 3182 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL APPEAL NO. 7 OF 2016

SUSAN NJOKI (Suing as the Administrator of the Estate of

FRANCIS MWANIKI THEURI.....................................APPELLANT

VERSUS

JOSEPH KIIRU................................................1ST RESPONDENT

TRU PREMIER LIMITED................................2ND RESPONDENT

JUDGEMENT

The appellant Susan Njoki Mwaniki suing as the executor of the estate of Francis Mwaniki Theuri, herein after referred as the deceased filed this appeal challenging a judgement of the lower court dated 3/3/2016 at Kajiado. The appellant was aggrieved by the decision of the trial magistrate dismissing her claim on liability and quantum arising from a road traffic accident which the deceased was involved in on the 18th January, 2007.

The appellant filed nineteen grounds of appeal in her memorandum dated 6/6/2016. The gist of the nineteen grounds can be distilled and condensed into two main issues as the complaint the appellant has against the judgement of the trial magistrate namely:-

(1) That the learned magistrate erred in law and fact in not finding that the defendants were negligently liable in the manner motor vehicle registration KAZ 144R was driven as a result an accident occurred in which the deceased suffered fatal injuries.

(2) That the learned magistrate erred in law and fact in not finding that the defendants jointly were liable to compensate the appellant under the Fatal Accidents and the Law Reform Act on both general; and

(3) General damages.

The brief background:

It was pleaded in the filed in court on 18/3/2015 that on the 16th June 2014 the deceased was lawful passenger in motor vehicle KAZ 144R which was being driven by the 1st respondent and owned by the 2nd respondent. That the said vehicle while being managed and controlled by the 1st respondent was driven carelessly and recklessly; it was further averred that the 1st respondent failed to give passengers sufficient time to disembark, failed to have a proper lookout or at all on the road, contrary to the highway code. Being in the necessary hurry and failing to give sufficient time to the passengers to alight before proceeding with the journey. The applicant also pleaded the doctrine of resipsa loguitor.

As the result of the accident the deceased sustained fatal injuries necessitating the claim for general, special damages, cost and interest at court rates. The respondents filed a joint defence and denied particulars tot eh occurrence of an accident, ownership of the subject motor vehicle and that at any one time it was driven by the 1st respondent on behalf of the 2nd respondent. The respondents further contended that there were no such acts of negligence as pleaded by the appellant.

In a rejoinder the respondents averred and on without prejudice that if such an accident occurred the same was due to the negligence of the deceased. The particulars of negligence are as set out under paragraph 6 of the defence.

After a full trial the learned magistrate dismissed the entire claim on both liability and quantum.

This being a first appeal this court is mandated in law to consider a fresh the evidence adduced before the lower court and be able to come up with its own decision. In discharging this duty this court has to bear in mind that it neither saw or heard the witnesses which the trial magistrate had the advantage of assessing the demeanor and draw relevant conclusions from them from the matter. This was well illustrated in the case of Peters v Sunday Posts Ltd [1958] EA 424 at pg 429:

“It is a strong thing for an appellate court to differ from the finding on a question of fact, or the judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

It is against this background i proceed to consider the evidence adduced at the trial by both the appellant and the respondents. The appellant PW1 Susan Njoki the wife of the deceased told the court that she received information about the accident. According to PW1 she proceeded to Garland’s Medical Centre where the deceased was pronounced dead while undergoing treatment. PW1 further testified that the death of the deceased caused them to incur burial and mortuary expenses totalling to Ksh.204,000. During the deceased lifetime PW1 stated that he was actively involved in farming earning Ksh.60,000 per month.

The appellant also in support of her case called in PW2 Joseph Maina and PW3 Joseph Mwangi whose testimony was to the effect that they were informed of the death of the deceased. In each of the evidence by PW2 and PW3 they travelled to the hospital where the body of the deceased had been taken after the accident. The two witnesses confirmed that they did not know anything on how the accident occurred. PW2 and PW3 further told the trial court that each participated in the burial arrangements where Ksh.250,000 – 300,000 was collected as funeral expenses.

PW4 Paul Chege testified as the clinical officer who attended the deceased at Garland’s Medical Centre where he passed on while undergoing treatment.

PW5 Robert Iluna a police officer attached to Ongata Rongai police station told the court on the nature of investigations conducted in respect of motor vehicle KAZ 144R which had been involved in an accident with the deceased. His evidence revealed that the vehicle had no pre-accident defects nor was the investigations concluded as to the cause of the deceased.

The respondents on their part had Karanja Mwangi, the conductor of the said motor vehicle registration KAZ 144R on the fateful day. In his testimony DW1 denied that the 1st respondent was negligent in the manner he drove the subject motor vehicle. His version of the accident was that the deceased sat next to the door. In the course of the journey according to DW1 the deceased opened the door and jumped out of the vehicle resulting in the accident and subsequent fatal injuries. The witness absolved any blame on the part of the driver.

Mr. Kimemia learned counsel for the appellant took issue with the entire judgement by the trial court which he argued based on the grounds in the memorandum of appeal. Learned counsel submitted that from the pleadings occurrence of the accident and ownership of the motor vehicle are not in dispute. He further submitted that from the pleadings and the evidence the deceased was a lawful passenger in the 2nd respondent’s motor vehicle registration KAZ 144R being driven by the 1st respondent. Learned counsel further argued and submitted that the particulars of negligence in the manner the 1st respondent drove the said motor vehicle were not controverted.

On liability learned counsel urged this court to find that the appellant had taken out limited grant of Letters of Administration to file the suit on behalf of the estate of the deceased. Learned counsel submitted that the obvious inference of this accident was the driver who carelessly and negligently failed to control the vehicle before the deceased could comfortably disembark. Learned counsel submitted that the trial magistrate erred in law and fact from evaluating the evidence to come to the right conclusion that the accident could not have occurred save for the negligence on the part of the 1st respondent. He cited the following authorities to buttress the points of law arising in this appeal; Safari Link Aviation Limited v Trident Aviation Kenya Limited & Ano. Nairobi Civil Suit No. 585 of 2008, W.K. (Minor) suing through next friend and mother L.K. v Ghalib Khan Neer Construction Nyeri Civil Appeal No. 328 of 2005 on the issue of apportionment on contributory negligence. Roman Hintz & Ano. Civil Appeal No. 72 of 1983 where the court held that a claim under the Fatal Accidents Act may be brought by the personal representative of the deceased or by the dependant in her personal capacity.

Mr. Kinyanjui learned counsel for the respondents disputed several notices of the hearing and venture did not file any response to the main appeal.

This court will therefore proceed to determine the appeal within the respondents input as to what their position could be on the matter.

As regards quantum learned counsel for the appellant submitted that the deceased died at the age of sixty years. Learned counsel contended that the deceased was married to the appellant and were blessed with children who depended on him for guidance and financial support. In his view the deceased died of the fatal injuries caused by the negligence acts of the 1st respondent. This resulted in the appellant incurring burial expenses totalling to Ksh.265,700 which she prays for from the respondents. He further argued and submitted that the learned trial magistrate erred in law and fact in not finding that he estate of the deceased was entitled to both general and special damages plus costs of the suit.

I have considered the trial court record, the evidence, submissions by learned counsel for the appellant and the impugned judgement. The first issue to be considered is whether the appellant proved her case on a balance of probabilities that the accident of 16/6/2014 occurred as a result of the negligence on the part of the 1st respondent.

First as a matter of law under section 107 (1) of the Evidence Act it provides that, “whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts exist.”

That burden is well espoused in Halsburys Laws of England, 4th Edition in the following passage at pg 662 paragraph 476:

“The burden of proof in an action for damages for negligence rests primary on the plaintiff, who, to maintain the action must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This invites the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of duty a causal connection must be established.”

In Clerks & Lindsell on Torts 20th Edition at pg 55, the learned author on the burden of proof had this to say:

“The burden of proving causation rests with the claimant in almost all instances. The claimant must adduce evidence that is more likely than not that the wrongful conduct of the defendant in fact resulted in the damage of which he complains.”

This was the case in the dicta by the Court of Appeal in CMC Aviation Ltd v Cruis Air Ltd (1) [19758] KLR 103 where Madan JA held:

“Pleadings contain the averments of the three concerned until they are proved or disapproved or there is admission of them or any of them by the parties they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence.”

In this case i approach the inquiry as to liability in two stages. In the first stage whether the appellant proved on a balance of probabilities, the particulars of negligence raised against the 1st respondent who was the driver of the motor vehicle in her respective pleadings? The short and only correct answer to this is a resounding no.

At the trial of the action the appellant PW1 led the evidence that she received a report that the deceased has been involved in a traffic accident. PW2 and PW3 in support of the plaintiff’s case also attended to the occurrence of an accident in which the deceased suffered fatal injuries.

As the three witnesses wholly blamed the driver of the offending motor vehicle none of them could shade light or show quite clearly how the collusion took place. This court could understand their predicament because PW1, PW2 and PW3 witnessed the accident. The investigating officer PW5 visited the scene of the accident after it had already taken place. According to PW5 evidence he detained the vehicle and it was inspected with a report certifying that there were no pre-accidents detected. In his overall assessment there was no eye witness who recorded the statement except the explanation from the driver who alleged that the deceased jumped off the bus before it fully made a complete stop.

What therefore PW1, PW2 and PW3 told the trial court was a mere occurrence of an accident but failed in any way to prove acts of negligence attributable to the 1st respondent in this appeal. It is a rule of thumb that a court will not grant any relief in personal injury claim unless the respondents’ negligence is either admitted or preserved and there is no evidence to controvert it.

In the second stage i consider the allegations of negligence made by the appellant relying on the doctrine of resipsa loguitor. The circumstantial evidence relied upon by the appellant and her witnesses was that the deceased was a passenger in motor vehicle KAZ 144R. According to the evidence of PW1, PW2 and PW3 the deceased was hit and ran over by the vehicle sustaining severe fatal injuries.

What PW1, PW2 and PW3 failed to tell the trial court was the manner of driving of the motor vehicle or acts of negligence at the time which would not allow him to control the vehicle as expected and required. There was no evidence before the trial court that the tragic accident happened because there was a defect or latent defect on the part of the 2nd respondent’s motor vehicle that contributed to the occurrence of the accident. In any event the certificate of inspection revealed no pre-accident defects relevant to the cause of the accident. There is no doubt in my mind that the appellant never placed before the trial court plausible evidence as at what time the deceased founded himself overrun by the same motor vehicle he was boarding as a passenger. The evidence available from the record is clear that the bus did not collude with any other vehicle nor was there an accident which caused it to overturn.

In view of the fact that there was no evidence on how the accident occurred, the question is whether the explanation by the respondent witness shows the probable cause of the accident was not due to their negligence of their driver. I am guided by the court’s decision in the case of Nzuri Muhludin v Nazzar bin Seif [1960] EA 201 at 207 where the court stated:

“In the light of the dicta set out above i accept counsel for the respondents propositions that the respondents can avoid liability if they can show either that there was no negligence on their part which contributed to the accident or that there was no probable cause of the accident which does not connote negligence on their part or that the accident was due to circumstances not within their control.”

On a doctrine of resipsa loguitor in the case of Russeiv L. 85 S. WRY [1908] 24 TLR 548 as follows:

“That there is, on the circumstances of the particular case some evidence which viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed than that the occurrence took place without; the rest speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody, that is some want of reasonable care under the circumstances. Resipsa liguitor does not mean, as i understand it that merely because at the end of a journey a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implies negligence. That is absurd, it means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things which is complained of.”

In a commentary and dicta by the Court of Appeal in the case of Enibu Public Road Services Ltd v Riimi CA No. 23 of 1967 the court held:

“The doctrine of resipsa loguitor is one which a plaintiff by proving that an accident occurred in the circumstances in which an accident should not have occurred; thereby discharges in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff in those circumstances does not have to show any specific negligence, he merely shows that an accident of that nature should not have occurred in these circumstances which lead to the inference, the only reasonable inference that the only reason for the accident must therefore be negligence of the defendant.”

In the instant case applying the above principles the conductor of the bus gave evidence to displace the prima facie case on the presumption of negligence. According to the testimony by the conductor on the material day the deceased who has seated next to the door opened it and jumped out resulting in a fall where he was hit and run over by the tyres of the vehicle. It has not been shown that the 1st respondent or the bus driver lost control or overturned to force an emergency exit by the deceased. The investigating officer did not answer the elementary question what the initial report indicated as the cause of the accident.

This is one case the trial court could have invoked the doctrine of resipsa loguitor; the thing speaks for itself (see the Black’s Law Dictionary 9th Edition pg 1424). It is my judgement that the learned trial magistrate considered every aspect of the matter on liability and i find no credible evidence to the contrary to overturn his decision on appeal.

For these reasons i would on evaluation of the nine main grounds the learned counsel for the appellant submitted on to be lost on the basis that negligence was not proven. The appeal is therefore dismissed.

Dealing with the second issue on quantum i am enjoined to make some findings in view of the fact that it comprises part of the dissatisfaction by the appellant. The learned counsel submitted that there was ample proof that the appellant obtained grant of Letter of Administration Ad Litem issued by the High Court at Machakos dated 23/2/2015. This grant entitles the appellant to file suit as the administrator to the estate of Francis Mwaniki Theuri under the Law Reform Act. It is deponed in the evidence that the relationship between the appellant and the deceased was one of husband and wife as already submitted there was a competent claim under the Law Reform Act.

However in taking the evidence before the trial court the issue of the existence of the grant of Letters Ad Litem duly issued by a competent seemed to have eluded the learned trial magistrate it is my contention that the record is crystal clear that the appellant annexed a copy of grant of Letters of Ad Litem at the very what stage of filing the plaint together with supporting affidavit, witness statements and annextures. The appellant was lawfully entitled to claim of damages under the Law Reform Act. I have no doubt that i had been sitting as a trial judge i should have awarded Ksh.100,000 for loss of expectation of life and Ksh.10,000 for pain and suffering.

As for damages under the Fatal Accidents Act the principles on which damages are to be assessed are clearly stated in the case of Radha Krishen M Rachabai Murlidhar [1958] EA 268. The East African Court of Appeal held as follows:

“In considering an award of damages under the Fatal Accidents Ordinance (read Act) the court should ascertain the age, expectation of working life, wages and expectations of the deceased and what proportion of his net income. The deceased would have made available for his dependants from which the annual dependency could be calculated. This annual sum should then be capitalized by multiplying it by a sum representing so many years purchase having regard to the expectation earning life of the deceased and the expectation of life and dependency of the widow and children. Then the separate sum arrived at should be discounted to allow for the prospect of remarriage of the widow or the acceleration of the receipt by the widow of what her husband left her by his death, with a deduction for the value of the deceased’s estate of which is dependants get the benefit. The resulting sum, which must depend upon a number of estimates and imponderables is the lump sum the court should apportion among dependants.”

The deceased in this case was aged about 64 years. He left behind a widow aged 54 years and four children all of them adults. The applicant in her evidence told the trial court that the deceased earned Ksh.60,000 per month from his farming activities but produced no bank statements or any financial statements. The learned trial magistrate in his judgement went for the global sum principle and awarded Ksh.200,000 under this head.

I must say that it is a general principle of law that an appellate court will not ordinarily interfere with the exercise of discretion of the trial court unless it is shown that while exercising discretion the trial magistrate or judge misdirected himself in some matter as a result a wrong decision was reached or there was a failure of justice or the award was manifestly high or low in the circumstances of the case to warrant interference, (Mbogo v Shah [1968] EA 93).

In the instant appeal i have examined and evaluated the evidence before the trial court and the learned counsel submissions seeking this court intervention to vary the award.

Applying the principles and the dicta in Radha Krishen case and Mbogo v Shah (Supra) the evidence placed before the learned trial magistrate was unsatisfactory both on the factors outlined in Radha Krishen case on assessment of damages under the Fatal Accidents Act.

Secondly it seems to me the learned trial magistrate doing the best he could with the material before him there is no evidence that he fell in error on fact or law in awarding global sum of Ksh.200,000. The appeal on quantum therefore lacks merit. The entire appeal on both liability and quantum is struck out with costs to the respondents.

Dated, signed and delivered in open court at Kajiado on 5/10/2017.

.........................

R. NYAKUNDI

JUDGE

Representation:

Mr. Kimemia for the appellant present

Mr. Kinyanjui for the respondent absent

Mr. Mateli Court Assistant