[2022] KEHC 9824 (KLR)

Timba v Kiundu (Suing as the Administrator of the Estate of the Late Peter Wairiuko Wahito (Deceased) & another (Civil Appeal 164 of 2018) [2022] KEHC 9824 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9824 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 164 of 2018

MW Muigai, J

July 14, 2022

Between

Peter Timba

Appellant

and

Joyce Wahito Kiundu (Suing as the Administrator of the Estate of the Late Peter Wairiuko Wahito (Deceased)

1st Respondent

Ali Mohsen

2nd Respondent

(Being an Appeal from the Judgment and decree of Hon. M. Opanga (SRM) in Kangundo SPMCC No. 106 of 2016 delivered on 13th November, 2018)

Judgment

Plaint 1. Vide a Plaint dated 27th May, 2016 and filed on 21st July, 2016 the Respondent as the Plaintiff sued the Appellant as the Defendant in Kangundo PMCC No. 106 of 2016. The Respondent/Plaintiff sought for;(a)General damages.(b)Special damages – Kshs.49,102/-(c)Cost of this suit.(d)Interest from the date of filing this suit.

2. The cause of action arose from an accident that occurred on 18th day of February, 2015 when the deceased was lawfully and carefully boarding motor vehicle registration number KBE 711 V along Njiru – Mwiki Road at Gitwamba area when the said motor vehicle was so negligently driven, managed and/or controlled that the same was set on motion before the deceased had fully boarded causing him to fall and consequently the motor vehicle ran over him and the result was fatal as the deceased succumbed to the injuries while undergoing treatment at the hospital.

4. The Plaintiff relied on the doctrine of Res Ipsa Loquitor.

Defence 5. The 2nd Defendant denied that if there was an accident on the 18/02/2015 involving the said motor vehicle Reg. No. KBE 711V it was caused by the deceased negligence and put the Plaintiff to strict proof thereof. Particulars of the negligence on the side of the deceased was listed as follows;-a)Secretly and dangerously hanging on motor vehicle KBE 711V without due care.b)Hanging at the back of the motor vehicle without the knowledge and/or authority of the driver.c)Jumping onto motor vehicle before it had come to a stop.d)Conducting himself and exposed himself to dangere)Failing to observe appropriate safety standardsf)Failing to exercise all or any reasonable care for himself.g)Putting himself to needless perilh)Hanging on the said truck under the influence of alcohol.

6. That the 2nd Defendant denied that he was at all material times the beneficial or insurable interest of motor vehicle registration No. KBE 711 V and put Plaintiff to strict proof thereof.

7. That the 2nd defendant is a stranger to these proceedings. He denied that the plaintiff was entitled to any relief sought under the Fatal Accidents and Law Reform Acts.

8. The 2nd Defendant denied having been served with demand and notice to sue.

Reply To 2nddefendant’s defence 10. The Plaintiff avers that that the suit is competent and properly before Court.

Request for judgment 12. On 3rd August, 2017 the Respondent/Plaintiff filed a Request for judgment against the 1st Defendant Ali Mohsen.

Evidence Plaintiff’s Evidence 13. Pw.1 Joyce Wahito told the Court that she was the representative of the deceased. Her son died following a traffic accident which occurred at Gituamba Farm. The deceased was involved in a road traffic accident and the motor vehicle KBE 711V knocked him and he succumbed to the injuries. He was working in a quarry. He was earning about 10,000/- per month and he would give PW.1 Kshs.5,000/- per week to educate a child. By the time of his death he was aged 25 years old. He worked at the quarry for almost 1 year. He was not drunk as alleged and she blamed the driver of Motor vehicle Reg KBE 711 for the accident.

14. PW1 recorded Witness Statement, Police Abstract Exh -1; Copy of Records Exh-2; Demand Letter Exh-3 & Statutory Notice to Defendant’s Insurance Exh-4; Petition for Grant of Letters of Administration Exh -5; Grant of Letters of Administration Ad Litem Exh -6 & Chief’s Letter Exh-7; Death Certificate -Exh-10 and Mortuary & Funeral Expenses Receipt No 49102.

15. On cross – examination Pw.1 stated that on the material date the deceased was working on motor vehicle No. KBE 711V. He was not married and he had no children. She did not have anything to show that the deceased earned kshs.20,000/- but he used to give her 5,000/- per week. She used almost 100,000/- for his funeral. Pw1 did not witness the accident but she was told he had gone to take a cup when the driver drove the vehicle and knocked him. She used almost Ksh 100,000/-for funeral expenses.

16. Pw.2 Paul Agwenge Ochungo testified that on 18th February, 2015 a motor vehicle Registration KBE 711V knocked Peter (deceased) near Njiru at the quarry. He saw the driver who sent him for water. The deceased came and Pw2 asked to drink the water. He returned the cup and he put water and took to the driver. He brought back the cup and went to board the motor vehicle. Before he had fully boarded, the driver started off the motor vehicle causing Peter to lose balance. He fell and the motor vehicle ran over him. He suffered injuries and was rushed to Mama Lucy Kibaki Hospital. Pw2 was nearby attending to his lorry which was being repaired. The deceased borrowed the cup from Mama Uji and he borrowed the cup from him. Pw2 did not smell alcohol as it was alleged that Peter was drunk. The deceased did not smell of alcohol. Pw2 recorded his Witness Statement and relied on it in examination in Chief.

17. On cross- examination he stated that Peter (deceased) was knocked by the left tyre of the lorry then the lorry ran over his legs. The lorry was from the quarry heading to the gate. He could not tell if the deceased was a passenger on the motor vehicle but judging from the relationship he saw the driver sending him for water, he believed he was a passenger or he had asked for a lift. Both the deceased and driver knew each other.

18. On 26/6/2018, the parties agreed by Consent through their respective advocates to produce the Police abstract as exhibit without calling the Police Officer to testify. Police abstract -MFI- 1 – Exh 1.

Defense Hearing 19. Dw.1 Jacob Mukamba Kanja on his sworn statement stated that he had been a driver for over 18 years. That on 18/02/2015 an accident occurred involving motor vehicle Reg. No. KBE 711 V. He had written/recorded a statement with his lawyer earlier on and asked the Court to rely on the same as the evidence in chief. He further stated that on 18/2/2015 as he was leaving the quarry at Njiru- Gituamba. He stopped briefly at the gate to get a gate pass and as he was leaving someone boarded the motor vehicle and hanged on the left side. The man fell down because he was drunk. The rear tyre ran over him. He did not even know that he had run over the deceased but he heard people making noise on the side and he stopped, alighted and went out to check on what had happened and saw the man. The man was drunk. That he had seen him earlier but did not know him. In fact people had been told not to enter the quarry while drunk. It is not true he sent the man for water, he did not know him if he wanted water, he would have sent the one who loaded the motor vehicle. He did not know the deceased. The deceased was to blame for the accident. The suit to be dismissed.

20. On cross – examination he stated that he knew that the deceased was drunk because the loaders had told him so and he had also been told not to enter the quarry. He did not see the deceased through his side mirrors he was told by other people that he was hanging carelessly on the side of the road. He stated that he did not see the motor vehicle driven by Paul Ondingo Pw2.

Trial court judgment 21. On liability the Trial Court found that 1st Defendant was liable because each motor vehicle had/has side mirrors that help the drivers to see the sides of the vehicle and any reasonable person expected the defendant’s driver to have seen the deceased when he boarded the vehicle and should not have started driving until he was fully boarded or demanded he alighted if the deceased was an unauthorized passenger. Liability was assessed at 70:30 in favour of the Plaintiff against the Defendant.

22. On Quantum; General damages under Law Reform Act & Fatal Accident Act was/is as follows;a.Pain & Suffering Ksh 200,000/-b.Loss of Expectation of Life Ksh 300,000/-c.Loss of Dependency Ksh 4,000,000/-d.Special damages Ksh 49,102/-e.Total Ksh 4,549,102/-f.Less 30% Liability- 3,184,371/-The Trial Court in its judgment delivered on 13th November, 2018 awarded the Plaintiff a total sum of Kshs.3,184,371. 4/-.

Appeal dated 10thDecember, 2018 23. Aggrieved by the Judgment of the Trial Court delivered on the 13th November, 2018 the Appellant appealed against the said decision based on the following grounds:-(1)That the Learned Trial Magistrate erred in law and in fact by awarding the Respondent excessive general damages contrary to the evidence that was adduced.(2)That the Learned Trial Magistrate erred in law and in fact by adopting a global award on loss of dependency without any basis.(3)That the Learned Trial Magistrate erred in law and in fact by failing to deduct the award under the Law Reform Act from the award under the Fatal Accidents Act.(4)That the Learned Trial Magistrate erred in law and in fact by holding the defendants 70% liable for the accident which occurred on 18th February, 2015. (5)That the Learned Trial Magistrate erred in law and in fact by wholly relying on the submissions by the Plaintiff and disregarded the defendant’s submissions.(6)That the Learned Trial Magistrate erred in law and in fact by considering irrelevant factors while leaving out relevant ones in arriving at her decisions both on liability and quantum.(7)That the Learned Trial Magistrate judgment was arrived at in a cursory and perfunctory manner without any legal justification and the awards on General damages are excessive and oppressive to the appellant.

24. The Appellant sought the following orders;a)That the judgment of the Senior Resident Magistrate’s Court in Kangundo SPMCC No.106 of 2016 – Joyce Wahito Kiundu (suing as the administrator of the estate of the later Peter Wairiuko Wahito –vs- Peter Timba & Another be set aside and the plaintiff’s suit be dismissed with costs.b)That alternatively, this Court be pleased to assess the evidence afresh and make afresh determination on the issue of liability and the General damages payable to the Respondent.c)That such further or other orders be granted as this Court may deem fit and just.

Appellant’s Submissions 25. The Appellant filed his submissions on 1st March, 2022 and based the submissions on the following issues;-a)Who is to blame for the accident and to what extent?b)Whether the learned trial magistrate considered all the evidence and submissions tendered in reaching her final determination on liability and quantum?c)Whether the trial Court judgment should be interfered with?d)Whether the award made considered conventional awards for comparable claims?e)Whether the award made, consequently, was too high to constitute an erroneous estimate?

(a) Who is to blame for the accident and to what extent 26. From the evidence adduced it was evident that the deceased was the author of his own demise having hang on the truck when the same was reckless and negligent of him therefore the deceased was 100% liable for causing the accident and urge this Court to determine as such and dismiss the 1st Respondent’s case with costs.

(b) Whether the learned trial magistrate considered all the evidence and submissions tendered in reaching her final determination on liability and quantum? 27. It was submitted that the Court simply gave lip service to the principle to stare decisis erroneous awards which were unjustified since on the limb of pain and suffering, the deceased died on 19th February, 2015 a day after the accident and the authority cited – in the case of Loise Wairimu Mwangi & Anor –v- Joseph Wambue Kamau [2006] eKLR was not applicable.

28. Also in the case of Oyugi Juma Joseph –vs- Grace Omwanda Ogolla & Anor [2020] eKLR the Court relied on the case of Sukari Industries Ltd –v- Clyde Machimbo Juma[2016] eKLR and held that;-“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years hence I cannot say that that the sum of Kshs 50,000 awarded under this head is unreasonable.

29. On the limb of loss of expectation of life, the deceased herein died aged 25 years. His occupation was unknown. A figure of Kshs.100,000 will be reasonable. Reliance was made in the case of Paul Ouma –vs- Sarah Akinyi and Monica Achieng Were (suing as the legal representative in the Estate of Paul Otieno Were (deceased) [2018] eKLR where the Court reduced the Trial Court’s award of Kshs.140,000/- under this head and substituted it with kshs.100,000/-. In making the award the Court held as follows:-“On loss of expectation of life, the Trial Court awarded Kshs. 140,000/= which the Appellant urged is excessive and should be reduced to Kshs. 70,000/=. The Respondent did not agree. The Appellant has not urged why an award of Kshs. 140,000/- is excessive for loss of expectation of life for the deceased who died at the age of 26 years. The death certificate exhibit 5 produced as exhibit reveals the deceased died at the age of 29years. I have considered the authorities relied upon and evidence on record and find an award of Kshs. 100,000/= for loss of expectation of life would be proper.

30. On loss of dependency in the case of Philip Mutua –vs- Veronicah Mule Mutiso [2013] where the Court held that where income is not proved, the income of unskilled worker ought to apply. The minimum wage as at 19th February, 2015 for casual labourers was Kshs.10,000/-. The same ought to be used in this case with a multiplier of 20 years with 1/3 dependency ratio considering the deceased was unmarried.

31. Reliance was made in the cases of Oyugi Juma Joseph –vs- Grace Omwanda Ogolla & Another, Mumbi Ngumbi Kasamu (suing as the legal representative of the Estate of Boniface Mulinge Mbithe (deceased –v- Mutua Mulaa & Another [2019] eKLR), New Kenya Co-op Creameries ltd (formerly KCC) & Anor vs Chebusit Arap Langat [2013] eKLR.

32. On the issue of special damages, it is trite law that special damages must specifically be pleaded and proven hence the special damages awarded as 49,102/- and ought to be substituted to Kshs.36,942/- which was the net after deduction.

33. On the whether the trial court judgment should be interfered with the case of Peter Omolo –vs- Match Masters limited [2017] eKLR, High Court Civil Appeal No.79 of 2013 – Nairobi this Court revaluates the Trial Courts determination the following was stated;-“On the quantum of damages, the law is quite clear and there is no dispute about the principles applicable in an appeal relating to quantum of damages. The assessment of damages is an exercise of judicial discretion by the trial magistrate and an appellate court should be slow to reverse the trial court’s award unless it is shown that he acted on wrong principles or awarded so excessive or little damages that no reasonable court would; or he had taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and, in the result arrived at a wrong result. These principles have been cited and approved in several cases among them; Butler v Butler [1984] KLR 225, Butt v Khan [1981] KLR 349, Kemfro Africa t/a Meru Express & Another v. A. M. Lubia & Another [1982 – 88] 1 KAR 72 and Mariga v Musila [1984] KLR 257. ”

34. Also in the case of Cecilia Mwangi & Another –vs- Ruth W. Mwangi [1997] eKLR High Court Civil Appeal No. 251 of 1996 – Nyeri where the Court in dealing with an appeal against quantum of damages had this to say;-“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards ...

35. On whether the award made, consequently, was too high to constitute an erroneous estimate it was submitted that the award was inordinately high in the circumstances and ought to be revised downwards.

36. It was finally submitted that the deceased Respondent was 100% liable for causing the accident.

Respondent’s written submissions 37. The Respondent filed their submission on 1st February, 2022 and stated that the issues of determination are;-a)Whether the trial learned magistrate applied the correct principles of law and available facts in finding the appellants 70%.b)Whether the learned trial magistrate applied the correct principles of law and available facts in assessment on damages payable to the Respondents.c)Whether the learned trial magistrate determined on the amount payable to the respondent was inordinately high as to present an entirely erroneous estimate of compensation to which the Respondent was entitled.

38. It was submitted that Section 107(1) of the Evidence Act, Cap 80 Law of Kenya provides that; whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. In this case the Respondent testified before the Trial Court and produced documents and called one eye witness (Pw.2).

39. From the testimonies and documents produced in respect of Respondents’ case before Trial Court there is no doubt that the accident herein occurred and the deceased sustained serious injuries occasioned by the subject accident and later succumbed to the same while undergoing treatment.

40. According to the Appellant’s witness Dw.1 testimony, he admitted that the deceased fell off his driven vehicle and was run over by the rear tyre whereby he sustained severe injuries and later succumbed. He further stated that he never saw how the deceased fell off the vehicle but only heard people scream on the side and that he was told by the loaders that the deceased was drunk.

41. The driver being a professional trained on how to drive a motor vehicle safely on the road and having the relevant license to do so he bears the bigger blame in a case of an accident which he could have avoided by utilizing his skills well eg using the side mirror.

42. From the above analysis, available evidence and cited authorities the Trial magistrate did not err in any law or principle in making awards and the said awards cannot be termed as inordinately high as to present an entirely erroneous estimate of compensation to which the Respondent was entitled.

43. Reliance was made in the case of Violet Jeptum Rahedi –vs- Albert Kubai Mbogori [2013] civil suit No. 676 of 2009, in the case of Beatrice Mukulu Kang’uta & Another –vs- Silverstone Quarry limited & another [2016] eKLR, Civil Case No. 56 of 2014.

44. Also in the case of Benson Awino Jura –vs- Foam Mattress limited [2012] Civil appeal No. 30 of 2007 where the Court held that ;“Both parties quantified, the Appellant sought for Kshs.450,000/= while the espondent assessed damages at Kshs.100,000/=. The comparable by the respondent were very old. The Appellant on his part relied on authorities at least dating 5 years back and with similar injuries in Wainaina Mwangi -Vs Attorney-General HCCC No.3473 of 1991 decided on 31st July, 1997 the Court in a case where the appellant sustained loss of vision awarded Kshs.450,000/=. I find the sum in the circumstances of this case and the cost of the shilling to be a fair amount.

46. The Respondent finally submitted that this Court dismisses the Appellant’s appeal as the same is not sustainable and uphold the learned Trial Magistrate’s decision as the same remains sacrosanct and takes its way.

Determination 46. The Court considered pleadings evidence on record and written submissions of parties through Counsel. The issues that emerge for determination on Appeal are liability and quantum.

47. This being a first appellate court, I am guided by the principles set out in the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

48. See also, Peters vs. Sunday Post Limited [1958] EA 424 on the same point where it was held that;“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.”

Liability 49. The 1st ground of appeal is that the Trial court erred in law and in fact by holding the defendants 70% liable for the accident which occurred on 18th February, 2015.

50. The Plaintiff pleaded and relied on the doctrine of res ipsa loquitor.The Plaintiff relied on the doctrine of res ipsa loquitor which means according to the Black’s Law Dictionary (8th Ed.) page 1336, “the thing speaks for itself”.

51. In Nandwa vs. Kenya Kazi Limited [1988] eKLR, Court of Appeal (Gachuhi JA) cited, with approval, a portion Barkway vs. South Wales Transport Company Limited [1956] 1 ALLER 392, 393 B on the nature and application of the doctrine of res ipsa loquitur as follows:“The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the Respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.”

52. The Appellant relied on the evidence of DW1, the driver who stated during the trial that he was drove to the gate and stopped to get the gate pass. It was while he was driving off that the deceased hung on the left side of the lorry unnoticed. He eventually fell off due to his drunken state and the vehicle ran over him.

53. The driver stated that he did not know that he ran over the deceased let alone see him boarding the lorry he was only alerted when people around caused commotion prompting him to stop the vehicle.

54. The Appellant submitted that the particulars of negligence pleaded were not proved and DW1’s evidence remains uncontroverted. The deceased was wholly to blame for the accident as he hang on the lorry carelessly and negligently. DW1 confirmed that deceased was not one of the loaders, the deceased simply hang on to the lorry without consent and knowledge of the driver. DW1 confirmed that the head cabin of the lorry was totally closed and he had no way of seeing what was happening at the back through the centre mirror.

55. The Respondent submitted that the Plaintiff discharged the burden of proof provided by law under Section 107 of the Evidence Act. The Plaintiff’s case testimonies of witnesses and exhibits produced proved that a road traffic accident occurred, that involved motor vehicle Reg. KBE 711V ran over the deceased as the driver of the lorry failed to slow down/stop as the deceased boarded the lorry. The deceased thereby sustained serious bodily injuries from the accident and later succumbed to his death while undergoing medical treatment.

56. The Respondent took issue with the evidence of the driver DW1 which was hearsay in that he testified he did not see the deceased fall off from the motor vehicle but was alerted by people who screamed and he stopped and that he was told by loaders that the deceased was drunk.

57. The Respondent submitted the Trial Court rightly found that the 1st Defendant was liable because each motor vehicle had/has side mirrors that help the drivers to see the sides of the vehicle and any reasonable person expected the defendant’s driver to have seen the deceased when he boarded the vehicle.

58. This Court considered the rival submissions as made in the Trial Court and in submissions herein and is guided by the following cases;In the case of Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, it was held that:“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it.... A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object .... Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently...”

59. In the case of Isabella Wanjiru Karanja vs Washington Malele Nbi Civil appeal No 50 of 1981 Hon. Chesoni J observed;“What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine when Washington had none and all things being equal she was under an obligation to keep greater lookout for other road users.”

60. These principles outlined by the case-law above applied to the instant Appeal, this Court finds that DW1 ought to have as a reasonable driver anticipated through exercise of due care and attention, that the deceased whom on the one hand he claims he saw hang on the lorry and fell off as he was drunk and on the other hand he claims he did not see the deceased latch on to the lorry but was stopped by members of the public who shouted at him to stop, having climbed onto the lorry albeit without his consent or authority, he would have slowed down or stopped until the deceased was fully on board or stopped the lorry and made enquiries why the deceased climbed onto the lorry in the 1st place and where he was heading to yet he was not a loader and had no consent/authority to get onto the lorry.

61. This Court noted with concern that the evidence of DW1 was inconsistent. On the one hand he testified that he stopped briefly at the gate to get a gate pass and as he was leaving someone boarded the motor vehicle and hanged on the left side. The man fell down because he was drunk. The rear tyre ran over him.

62. On the other hand he stated, he did not even know that he had run over the deceased but he heard people making noise on the side and he stopped, alighted and went out to check on what had happened and saw the man. The man was drunk. That he had seen him earlier but did not know him. In fact, people had been told not to enter the quarry while drunk.

63. DW1 confirmed that the head cabin of the lorry was totally closed and he had no way of seeing what was happening at the back through the center mirror. If the driver could not see from the centre mirror because he was blocked and he did not use the side mirrors as alleged, then how did he see someone board the Lorry/vehicle at the Gate and hanged on the left side? If he saw the deceased climb onto the lorry while at the gate where he stopped to get a gate pass why did he drive on/off without confirming why the deceased latched onto the lorry and yet he did not know him, he was not a loader and had no consent or authority to board the lorry? DW1 is not a credible witness in light of the inconsistent testimony on record.

64. The Defense made no mention/denial of Pw2 and that he was at the scene that day and he witnessed the accident. Dw1 only denied that PW2’s lorry Reg KBA 111X was not at the scene but not that PW2 was at the scene. DW1 also denied that he asked for water and the deceased gave him it is while taking the cup back and he got onto the lorry and seemed to know DW1 that the accident occurred.

65. This Court is persuaded by PW2 evidence, he gave direct evidence and witnessed the accident. He was at the scene. The driver ought to have exercised due care and attention in light of reasonably foreseeable circumstances on the road and the deceased ought to have exercised due care and attention in latching onto the lorry. The allegation that the deceased was drunk was/is not proved by any evidence on record. The Trial Court’s reasoning and finding on liability and apportionment of liability at 70:30 is supported by the evidence on record. This Court upholds Trial Court’s finding on liability.

Quantum 66. The other grounds of appeal relate to quantum; the Appellant submitted that the award was/is not based on conventional awards for comparable claims and was/is too high and should set aside.

Pain & Suffering: 67. The Appellant submitted that the deceased died on 19th February, 2015 a day after the accident and was /is confirmed by death certificate. In Loise Wairimu Mwangi & Anor –v- Joseph Wambue Kamau [2006] eKLR supra the case was not applicable as the deceased died after 43 days after the accident and proposed Ksh 30,000/- for pain and suffering. In Sukari Industries Ltd –v- Clyde Machimbo Juma[2016] eKLR supra the sums have ranged from Kshs 10,000 to Kshs 100,000/-.

68. The Respondent relied on Beatrice Mukulu Kang’uta & Another –vs- Silverstone Quarry limited & another [2016] eKLR, Civil Case No. 56 of 2014 supra where the deceased who died on the same day was awarded for pain and suffering Ksh 200,000/-Ksh 200,000/- was on the higher side and Ksh 30,000/- way below and in the circumstances, it is hereby reduced to Ksh 100,000/ to account for inflationary rates.

Loss of Expectation of Life; 69. The Appellant submitted that the deceased herein died aged 25 years. His occupation was unknown and a figure of Kshs.100,000 would be reasonable with reference to the case of Paul Ouma –vs- Sarah Akinyi and Monica Achieng Were (suing as the legal representative in the Estate of Paul Otieno Were (deceased) [2018] eKLR where the Court reduced the Trial Court’s award of Kshs.140,000/- under this head and substituted it with Kshs.100,000/-. The Respondent submitted that the deceased suffered severe bodily injuries and succumbed while undergoing treatment. This Court finds no reason to disturb this limb of Ksh 300,000/- taking into account inflationary trends.

Loss of Dependency 70. The Appellant submitted relying on Philip Mutua –vs- Veronicah Mule Mutiso [2013] supra, where the Court held that where income is not proved, the income of unskilled worker ought to apply. The minimum wage as at 19th February, 2015 for casual laborer’s was Kshs.10,000/-. The same ought to be used in this case with a multiplier of 20 years with 1/3 dependency ratio considering the deceased was unmarried.

71. The Plaintiff/Respondent Pw1 testified as per evidence on record that He was earning about 10,000/- per month and he would give PW.1 Kshs.5,000/- per week to educate a child. By the time of his death he was aged 25 years old. He worked at the quarry for almost 1 year.

72. In Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLR stated as follows:“Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country...”Section 4(1) of the Fatal Accidents Act provides as follows:-“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused…”Section 2 (1) of the same Act provides:-“child” means a son, daughter, grandson, granddaughter, stepson or stepdaughter;“parent” means a father, mother, grandfather, grandmother, stepfather or stepmother.The dependency by PW1 as the deceased ‘s mother is provided for under the Fatal Accidents Act. Taking into account that the Deceased worked in the Quarry but no documents were provided, this Court will consider the global figure of Ksh 4,000,000/- reduced to Ksh 3,000,000/- as the beneficiary has also claimed under the Law Reform Act.

73. Special damages Ksh 49,102/- pleaded and proved as per the Trial Court record are as indicated Ksh 49,102/- The appeal raised issue with general damages only.

74. The Respondent contends that that since the 1st Respondent proved her claim under Fatal Accidents Act the amount is deductible under Law Reform Act. This Court begs to differ as follows;The Court of Appeal in Hellen Waruguru Waweru in Nyeri Civil Appeal No. 22 of 2014 (2015) e KLR stated that;“An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. The words 'to be taken into account' and 'to be deducted' are two different things.

Disposition1. The Appeal succeeds in part and is dismissed in part as follows;Pain & Suffering- Kshs 100,000. 00Loss of Expectation of Life Kshs 300,000. 00Loss of Dependency Kshs 3,000,000. 00Special Damages Kshs 49,102. 00Total Kshs 3,449,102. 00Less 30% Liability Kshs 1,034,730. 60Net Kshs. 2,414,371. 402. The order on interest and costs made by the Trial Court shall remain in force. There shall, however, be no order as to the costs of the appeal in this Court as both parties have partially succeeded in their respective contentions.3. Orders accordingly.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14TH JULY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE