[2021] KEHC 9455 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CIVIL APPEAL NO. 21 OF 2018

THE STANDARD GROUP............................1ST APPELLANT

NORBERT JAYIER SEWE..........................2ND APPELLANT

V E R S U S

CHEPNGETICH BEATRICE...........................RESPONDENT

(Being an Appeal from the Judgment of Hon. S. M. Mokua (CM) in Kericho CMCC. No.31 of 2017 delivered on 10/07/2018)

JUDGEMENT

1. The Respondent filed Kericho CMCC. No.31 of 2017 as Personal Representative of the Estate of the late JULIUS KIMUTAI LANGAT (Deceased) seeking General Damages and Special Damages against the Appellants in respect of fatal injuries sustained by the Deceased on 24th April, 2015 along Kericho-Kisumu road at SITOTWET AREA when he was hit by Motor Vehicle Registration No. KBT 987J Toyota Pick-up.

2. The Respondent stated in his plaint that the Motor Vehicle was carelessly and recklessly and/or negligently driven without due care and attention by the 2nd Appellant when it violently hit the Deceased who was a pedestrian causing him fatal injuries.

3. The 1st and 2nd Appellants filed a Defence dated 22nd February, 2017 denying the Respondent’s claim and the case proceeded to full hearing.

4. The Respondent called two witnesses and both parties closed their respective cases. The Trial Court found the Appellant 100% liable and assessed damages as follows:-

Damages for pain and suffering - Kshs. 50,000/=

Loss of Expectation of life - Kshs. 100,000/=

Loss of Dependency

10,000/= x 2/3 x 12 x 20 - Kshs. 1,600,000/=

Special Damages - Kshs.200,000/=

TOTAL - Kshs.1,950,000/=

5. The Appellant has now appealed to this Court on the following grounds:-

(i) THAT the Trial Court erred in holding that the Appellant is 100% liable in negligence without considering the evidence adduced.

(ii) THAT the Trial Court erred in failing to apportion liability against the weight of the evidence.

(iii) THAT the Trial Court erred in failing to hold that there was no eye witness who testified in favour of the Respondent.

(iv) THAT the Trial Court did not take into account that the ownership of the Motor Vehicle was not proved.

(v) THAT there was no evidence that the Appellants were to blame for the Accident.

(vi) THAT the award was outright excessive in the circumstances of this case.

(vii) THAT the Trial Court applied the wrong principles of the law in assessment of damages.

(viii) THAT the award of Kshs. 1,951,500/= was excessive and not supported by law or evidence.

6. The parties filed written submissions in the Appeal.

7. The Appellants submitted that the Respondent did not prove her case to the required standard and further that the award of Kshs. 1,950,000/= as General Damages and Special Damages is not justified.

8. The Appellants also submitted that from the plaint, it was alleged that the Deceased was walking along the road when the Motor Vehicle violently hit the Deceased causing him fatal injuries but no evidence was adduced to prove the same.

9. The Appellant submitted that the good samaritan who pursued the vehicle after the accident and intercepted it at Kapsoit road block was not called as a witness and neither did he record his statement.

10. The Appellant also submitted that the Respondent was not at the scene of accident and she said in Court that she learnt about the accident from PW.3 Mr. David Too who was the Assistant Area Chief and an eye witness to the accident.

11. The Appellants submitted that the Trial Court erred in holding the Appellants 100% liable yet the Respondent failed to prove her case.

12. On the issue of assessment of damages, the Appellants submitted that Kshs. 1,950,000/= as General Damages was excessive and/or on the higher side taking into account that the circumstances of the accident remain a mystery, the Appellants submitted that the Trial Court did not have factual material and/or a legal basis and/or backing and hence the Judgment was erroneous and did not reflect the correct position.

13. On quantum of damages under the Law Reform Act, the Appellants submitted that the Trial Court ought to have awarded Kshs. 10,000/= and they relied on the case of MERCY MURIUKI and ANOTHER -VS- SAMUEL NDUATI MWANGI and ANOTHER [2019] eKLR where Kshs. 10,000/= was awarded.

14. For lost of Expectation of Life, the Appellants submitted that the Trial Court made a conventional award of Kshs. 100,000/= which would have been fair if the Respondent had established her case.

15. On the claim under the Fatal Accident Act Cap 32 Laws of Kenya, the Appellants submitted that awards under this head are determined by the following:-

(a) Age of the Deceased;

(b) Loss of Earnings; and

(c) Loss of Dependency.

16. The Appellants submitted that there is no dispute that from the death certificate, the age of the deceased was 38 years. On loss of earnings, the Appellant submitted that Kshs. 6,000/= should have been adopted instead of Kshs. 10,000/= as the Deceased who died in 2015 was a logger line cutter as per regulations of wages (general) Amendment Order 2013.

17. The Appellants also submitted that a multiplier of 11 years should have been applied as the Deceased was in the informal sector. The Appellants relied on the case of MONICA NJERI KAMAU -VS- PETER MONARI ONKOBA [2019] eKLR where the Court applied a multiplier of 11 years where the Deceased was 39 years. The Appellants did not object to a dependency ratio of 2/3.

18. The Appellants submitted that the award for loss of earnings should therefore be 6,000 x 12 x 11 x 2/3 = 528,000/=.

19. The Appellants also submitted that the sum of Kshs. 100,000/= awarded under the Law Reform Act should be discounted from the award under the Fatal Accident Act as was held in the case of SAMMY KIPRUTO ROP and ANOTHER -VS- FRANCIS CHERUIYOT BARBELIO (Sued as Personal Representative of PENINA JEPTOO (DECEASED) [2016] eKLR.

20. On the issue of Special Damages, the Appellants submitted that the same must be strictly pleaded and proved and it was submitted that this was not done as the evidence by the respondent was largely hearsay and the documents produced did not bear the revenue stamp as required by Section 19 (1) of the Stamp Duty Act.

21. The Respondent opposed the Appeal and filed written submissions dated 4th December, 2020 in which they condensed two issues in the Appellant’s submissions namely, liability and assessment of quantum of damages under the heading loss of Dependency.

22. The Respondent submitted that PW.2 and PW.3 were eye witnesses to the Accident and their evidence is clear on the manner Motor Vehicle Registration No. KBT 981J was being driven prior to the Accident and that as a result the Motor Vehicle had a tyre burst hence hitting the Deceased off the road.

23. The Respondent submitted that the evidence of the two witnesses was not controverted since the Appellants did not call any witnesses. The Respondent relied on the cases of LEI MASAKU -VS- KALPAMA BUILDERS LTD NAIROBI HCCA. NO.40 OF 2007 and OLUOCH ERIC GOGO -VS- UNIVERSAL CORPORATION LTD NAIROBI HCCA NO.263 OF 2006 where it was held that the evidence given on oath remains unchallenged and un controverted if there is no evidence in rebuttal.

24. On the issue of assessment of quantum of damages, the Respondent submitted that for the Appellate Court to interfere with the award of damages, it must be shown that the Trial Court applied wrong principles and/or the award of damages was manifestly high or excessive or inordinately low in the circumstances of the case.

25. The Respondent submitted that the Deceased who was 38 years old was married and had two children and that he was the sole bread winner. The Deceased had a Power Saw business and was earning Kshs. 1,000/= per day totaling Kshs. 30,000/= per month and that the loss of earning was Kshs. 20,000/= after deducting expenses. The Court applied a multiplicant of Kshs. 10,000/=.

26. The Respondent also submitted that a multiplier of 20 years was appropriate and reasonable taking into account the fact that the Deceased was aged 38 years. The Respondent relied on the cases of ABEDNEGO MUNYAO -VS- ZIPPORAH S. MUSYOKA & ANOTHER MAKUENI HCCA. NO.173 OF 2017 where a multiplier of 20 years was applied where the Deceased was 41 years and GUYO JILLO & ANOTHER -VS- LILIAN KANYUA MARSABIT HCCA 9 OF 2018 where a multiplier of 17 years was upheld where the Deceased was 43 years old.

27. On awarding damages under both the Law Reform Act and the Fatal Accidents Act, the Respondent submitted that in the case of HELLEN WARUGURU WAWERU (Suing as Personal Representative of PETER WAWERU (Deceased) -VS- KIARIE SHOE INDUSTRIES LTD, NYERI CA NO.22 OF 2014, the Court of Appeal held that it does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as they are only awarded under the Law Reform Act and therefore the issue of duplication does not arise.

28. On the issue of Kshs. 50,000/= awarded for pain and suffering, the Respondent relied on the case of SUKARI INDUSTRIES -VS- CLYDE MACHIMBO JUMA [2016] eKLR where Kshs. 50,000/= was awarded for pain and suffering.

29. On the issue of Special Damages, the Respondent submitted that the issue was not raised in the grounds of Appeal.

30. I have considered the rival submissions filed by the parties. I find that the issues for determination in this Appeal are as follows:-

(i) Whether the Respondent proved her case to the required standard.

(ii) Whether the Trial Court applied the wrong principles in assessing the quantum of damages.

31. On the issue of liability, I find that the testimonies of the two witnesses for the Respondent was not challenged since the Appellants did not call any witnesses.

32. There is evidence that the Appellant’s Motor Vehicle hit the Deceased off the road. The standard of prove required in Civil cases is a balance of probabilities and I find that the same has been established.

33. On the issue of assessment of damages, I find that there is no basis for interfering with the award by the Trial Court since it has not been shown that the Trial Court applied the wrong principles or awarded an ordinately high or low award.

34. There is undisputed evidence that the Deceased was thirty eight (38) years at the time of the Accident and that he was married with two children.

35. There is evidence that he was in the Power Saw business earning Kshs. 1,000/= per day which would amount to Kshs. 30,000/= per month but the Court used a multiplicant of Kshs. 10,000/= and a multiplier of 20 years.

36. I find that the Appeal herein lacks in merit and I dismiss the same with costs to the Respondents.

Delivered, signed and dated at Kericho this 29th day of January, 2021.

A. N. ONGERI

JUDGE