[2019] KEHC 7717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 1 OF 2017

SWAN CARRIERS LTD....................................................................APPELLANT

=VERSUS=

DAMARIS WAMBUI (Suing as the legal representative to the estate of the late

MARITIM MWANGI NGIRIGASHA.........................................RESPONDENT

(Being an appeal against the Judgment of Hon. M. Omido, Senior Resident Magistrate delivered on the 16th December, 2016 in Nakuru CMCC No.274 of 2015)

JUDGMENT

INTRODUCTION

1. The respondent/plaintiff filed suit against the appellant/defendant seeking general and special damages for the death of Martin Mwangi Ngirigasha (deceased) who died as a result of collision between motor vehicle registration number KBZ 076Q which he was driving and respondent’s motor vehicle registration number KAN 140 V. The trial court found the defendant/respondent 100% liable. Damages were assessed at kshs.3,700,000.

2. The defendant/appellant being dissatisfied with the trial court’s decision filed this appeal on grounds summarized as hereunder:-

a) That the learned trial magistrate erred in law and in fact in holding the appellant 100% liable in negligence in the absence of eye witness’s account, sketch maps and plans and other factual evidence.

b) That the learned trial magistrate erred in law and in fact in failing to hold and find that the burden of proofing negligence wholly lay on the respondent which burden was not discharged.

c) That the learned trial magistrate erred in law and in fact in relying on entries in a police abstract as conclusive evidence of negligence without a basis in law for holding so.

d) That the learned trial magistrate erred in law and in fact in failing to hold and find that the deceased Martin Mwangi Ngirigasha who was the driver of motor vehicle registration number KBZ 076Q wholly to blame for the subject accident as by evidenced by of PW2 and the final resting place of both accident vehicles’

e) That the learned trial magistrate erred in law and in fact in adopting a multiplicand for Kshs 35, 000. 00 on the basis of correspondence issued 2 months to the date of accident without corroboration by other evidence including a pay slip, bank statements, tax returns; and adopting a multiplier of 13 years and a dependency ratio of 2/3 without a legal or factual basis of doing so.

f) That the learned magistrate erred in law by making double award in in failing to take into account and discount the award made under the Law Reform Act while making the award under the Fatal Accidents Act.

APPELLANT’S SUBMISSIONS

3. The appellant submitted that the accident having involved two vehicles, the doctrine of res ipsa loquita cannot apply. Appellant further submitted that the respondent was required to prove negligence of the appellant’s vehicle and that the burden was not discharged. Appellant submitted that plaintiff’s witnesses never witnessed the accident. Appellant cited authorities on obligation of the claimant to link the injury to someone’s injury. In Lucy Muthoni Munene Vs Kenneth Muchange & Kenya Bus Services Ringera J dismissed the suit as there was no eye witnessed called to prove claim of negligence.

4. Further in the case of Philip Chemwolo Vs Augustine Kibende [1986] eKLR the court held that contents of police abstract and traffic proceedings cannot taken as evidence; that the burden still lie on the party alleging to prove claim of negligence. Appellant submitted that from evidence of PW2 both vehicles’ final position after the accident was right side road facing Eldoret direction meaning the deceased was driving on his right side of the road, a clear case of negligence on his part.

5. On damages appellant submitted that there was clear error of law by making awards under both Law Reform Act and Fatal Accidents Act. Appellant cited the case of Maina Kaniaru & Another Vs Josphat Muriuki Wangindu Civil Appeal No.148 of 1989where the court held as follows:-

“…..the rights conferred under section 2 (6) of the law reform Act(cap 26 LOK) for the benefit of the estates of deceased persons are stated to be in addition to and not in derogation of any rights conferred on dependants of the deceased persona by the Fatal Accidents Act. This does not mean that damages can be recovered twice over but that if damages recovered under Law Reform Act devolve on the dependants the same must be taken into account in reduction act….”

The appellant urged court consider the above principles while exercising its discretion in assessing general damages.

6. Further, on assessment of damages the employment letter relied on was issued 2 months before the accident and that it is not in a conventional format; thus there is no document to support the deceased’s earnings like bank statements and tax returns as the figure quoted is within tax bracket; that the deceased having died at 37 years the multiplier of 13 years was high and that a maximum of 10 years should have been applied due to uncertainties of life. The appellant urged court to apply minimum wage and take note of the fact that the family is getting lump sum.

RESPONDENT’S SUBMISSIONS

7. The respondent opposed appeal on both liability and quantum. Respondent submitted that the appellant never adduced evidence in the trial court and it would therefore be difficult to challenge the respondent’s evidence. Further that the doctrine of res ipsa loquita was pleaded and sufficiently relied on by the respondent; and contrary to appellants submission, the doctrine applies in the respondent’s case; that the respondent sufficiently discharged burden of prove in the trial court and was supported by the doctrine heavily.

8. Respondent further submitted that the police abstract was produced with consent of both parties and that no question on veracity of police abstract was raised despite the fact that the appellant was represented. The appellant submitted that the police abstract squarely blamed the appellant’s vehicle for the accident and it had legal burden to discharge but failed to do so; that the appellant adduced no evidence to rebut respondent’s evidence.

9. On failure to avail eyewitness, the respondent urged the court to be guided by a recent court of appeal decision in Rahab Micere Murage (suing as legal representative of Esther Wakiini Murage Vs AG & 2 Otherswhere the court relied on police abstract, as there were no eyewitness. Counsel further submitted that most of respondent’s witnesses were deceased and failure by appellant to challenge evidence adduced as required by Section 112 of Evidence Act is an attempt to steal a match; that the appellant had opportunity to challenge evidence on resting place of the vehicle and that the evidence adduced on negligence spoke for itself. She argued that, the court cannot be called to analyze evidence through submissions.

10. In respect to quantum, respondent argued that, it is the employer not the respondent who produced the letter and there is no conventional employment document. Counsel cited the case of Jacob Ayiga Maruja vs Simon Obayo,Civil Appeal No.167 of 2002 where the court of appeal held that production of document is not the only way a litigant can prove his profession and earnings as such stand would occasion injustice to very many Kenyan who are illiterate, keep no record and yet earn a living in various ways. She submitted that the multiplier and multiplicand applied are reasonable.

11. In a rejoinder counsel for the appellant submitted that the respondent could only rebut evidence if the respondent discharged its burden by availing evidence to support police abstract; he said no sketch plan was produced to show point of impact.

DETERMINATION AND ANALYSIS.

12. This being first appellate court, I have a duty to reevaluate evidence adduced in the trial court and arrive at an independent determination. This I do while minded of the fact that I never got the opportunity of taking evidence first hand and will therefore give due allowance.

13. On perusal of proceedings, I note that PW2 owner of lorry registration number KBZ 076Z testified that it was heading to Kampala from Nairobi therefore facing Eldoret direction. She added that after the accident, the lorry lay on the right side of the road facing Eldoret meaning right lane of direction it was heading; and further that the other lorry KAN 140V was also on the same side. PW2 testified that lorry KAN 140V was blamed for the accident. She said all occupants of the lorry died in the accident.

14. In cross-examination, PW2 testified that prior to employing the deceased; he had been employed as driver by Citi Hopper for more than 10 years. She said her vehicle had been on the road for 2 months. She said the lorry left Nairobi at 8pm. The accident occurred at Salgaa at 12. 00 a.m. She informed court that the driver had not worked during the day and that there was no law barring travelling at night.

15. The defendant did not avail any witness nor filed submissions. There was no eyewitness of the accident. The trial magistrate relied on police abstract produced to arrive at determination on liability. He noted that the abstract indicated that the driver of motor vehicle KAN 140V was to blame and found the driver of the vehicle 100% liable.

16. Though the appellant submits that the contents of the police abstract was not corroborated, the appellant never challenged that evidence in the trial court. No evidence to the contrary was adduced. Ordinarily the police are expected to carry out investigations before arriving at the decision as to who is to blame for the accident. Their findings are recorded in occurrence book. I believe they did that before recording in occurrence book that the driver of KAN140V was to blame for the accident. Police abstracts lifts the contents of occurrence book. The appellant who fully participated in the trial court did not challenge that evidence. Standard of prove in civil matters is on a balance of probabilities. On the absence of evidence to the contrary to challenge evidence adduced the court is left with no option but to rely on evidence available.

17. In the absence of any other evidence on record, this court is inclined to consider evidence adduced to find if plaintiff proved her case on a balance of probabilities. From the foregoing, I find that plaintiff discharged her burden and I have no reason to interfere with decision on liability.

18. In respect to quantum the deceased’s earning is challenged; reason being that the letter of employment was issued 2 months prior to the accident and that it is not in the conventional format. I however note that salary indicated in the letter is kshs.25,000. Contrary to ground (e) of the memorandum of appeal, I note that the trial magistrate applied a multiplicand of 25,000. There is nothing to show what the deceased was earning for period he worked for Citi Hopper which is estimated at over 10 years by PW2.

19. My view however is that in the absence of sufficient documentation on employment, minimum wage should be applied. On perusal of minimum wage schedule, minimum wage for commercial truck drivers for year 2013/2014 was kshs.24,719. 50. This should have been applied as multiplicand.

20. On multiplier, it is not disputed that the deceased was 37 years old. Retirement in Kenya age is 60 years; it is however common knowledge that drivers may continue working for individuals or private entities beyond sixty years if the eye sight remain good. A multiplier of 13 years is fair in my view is reasonable. I therefore uphold it. Assessment under loss of dependency will therefore be adjusted as per minimum wage. Thus 24,719,50 x 13 x 12 x 2/3=2,570,828.

21. On the issue of double award under Law Reform Act and Fatal Accidents Act, I am guided by decision in the case of Mumias Sugar Company Limited V Francis Wanalo [2007] eKLRwhere the court of Appeal held as follows:

“…loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as separate head of damages. The award can be a token, or modest or substantial depending on circumstances of each case. There is no formula for assessing loss of earning capacity.”

22. On perusal of the judgment of the trial magistrate, I note that he opted to assess damages for pain and suffering and loss of earning under separate headings. It is clear from assessment under the headings of pain and suffering, which he never put into consideration loss of earning capacity. This is confirmed by explanation given for award under the next heading of loss of earning capacity. There is no indication of mix-up. Record show that the resolve to asses separately was clear in his mind as he did the assessment.

23. Damages are as follows:-

i. Pain and suffering……………………………………20,000

ii. Under fatal accidents Act……………………….. 2,570,828

iii. Loss of expectation of life…………………………..100,000

GRAND TOTAL…………………………………………….2,690,828

FINAL ORDERS

1. Appeal on liability is dismissed

2. Appeal on monthly earnings of the deceased allowed and reduced to minimum monthly wage of kshs.24,719,50 thus reducing damages under Fatal Accidents Act to 2,570,828.

3. I set aside judgment entered on quantum and enter judgment for plaintiff against the defendant for kshs.2,690,828

4. Each party to bear own costs of the appeal.

Judgment Dated, signed and delivered at Nakuru this 9th day of May, 2019.

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

RACHEL NGETICH

JUDGE

IN THE PRESENCE OF:-

Schola Court Assistant

Mburu Holding Brief for Mr. Murimi Counsel for Appellant

N/A Counsel for Respondent