[2022] KEHC 17130 (KLR)

United Millers Limited & another v Wambacha (Suing as the Personal Representative of the Estate of Rose Nasipwondi Wakuma - Deceased); Ndirangu (Third party) (Civil Appeal 28 of 2020) [2022] KEHC 17130 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17130 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal 28 of 2020

AC Mrima, J

December 15, 2022

Between

United Millers Limited

1st Appellant

Dennis Cheruiyott Bett

2nd Appellant

and

Richard Barasa Wambacha (Suing as the Personal Representative of the Estate of Rose Nasipwondi Wakuma - Deceased)

Respondent

and

Anthony Maina Ndirangu

Third party

(Being an Appeal arising out of the judgment and decree of Hon. C. M. Kesse (Principal Magistrate) in Kitale Chief Magistrate’s Court Civil Case No. 229 of 2018 delivered on 23/04/2020)

Judgment

Introduction: 1. The appeal subject of this judgment emanated from the judgment and decree in Kitale CMCC NO. 229 of 2018 Richard Barasa Wambacha (Suing as the personal representative of the Estate of Rose Nasipwondi Wakuma (Deceased) vs. United Millers Limited & Dennis Cheruiyott Bett & Another (hereinafter referred to as ‘the civil suit’).

2. In his Plaint dated 20th June, 2018, the Respondent herein, then the Plaintiff, Richard Barasa Wambacha, averred that on 31st January, 2018, Rose Nasipwondi Wakuma, the deceased in this matter and who was his wife, was a fare paying passenger aboard motor vehicle registration number KBJ 434Y (hereinafter referred to as ‘the third-party vehicle’). In the course of travelling along the Kitale-Webuye Road within Kiungani area, an accident occurred involving the said third party vehicle and motor vehicle registration number KCJ 110Q make Hino Lorry (hereinafter referred to as ‘the lorry’).

3. As a result of the accident, the deceased sustained fatal injuries. The Respondent blamed the owner and driver of the lorry who are the 1st and 2nd Appellants herein respectively for occasioning the accident. He thus sought damages under the Fatal Accident Act and the Law Reform Act.

4. After full hearing of the civil suit, the trial Court found the Appellants wholly liable in negligence. The Court then awarded general damages of Kshs. 120,000/= under the Law Reform Act, Kshs. 1,152,000/= under the Fatal Accidents Act and special damages of Kshs. 45,000/=. The Respondent was also awarded costs of the suit and interest at court rates.

5. The Appellants were aggrieved by the decision and preferred an appeal.

The Appeal: 6. A Memorandum of Appeal dated 2nd November, 2020 was filed. The Appellants preferred 7 grounds of appeal. They faulted the trial Court for determining non-issues. They also challenged the adoption of the multiplier approach yet there was no evidence to support any earnings.

7. The Appellants were also of the view that liability ought to have also been apportioned to the third party. They decried that the trial Court failed to consider their submissions.

8. Finally, the Appellants faulted the award on general damages finding the same manifestly excessive. They urged this Court to substitute the decision of the trial Court with a proper finding by allowing the appeal with costs.

9. The parties canvassed the appeal by way of written submissions.

10. The Appellants’ submissions were dated 18th July, 2022. The Appellants wholly attributed blame to the third party adding that the Respondent failed to establish liability on their part. They submitted that the third party caused the accident for overtaking and stopping dangerously and abruptly. As a result, the 2nd Appellant who was the driver of the lorry could not escape the said accident regardless of the efforts applied. They added that since PW2 (the Police Investigating Officer) painted no vivid picture of the scene of accident by way of inter alia, sketch maps, he could not ascertain who was at fault.

11. They further discredited PW3’s evidence stating that he could only testify as to the occurrence of the accident but not the circumstances leading to the said accident. In further laying credence to their plea to be absolved, the Appellants submitted that DW1, painted a clear picture of the accident by drawing a sketch map coupled with interviews from eye witnesses yet the trial Magistrate failed to take that into account.

12. The Appellants further impugned the trial Court’s reliance of the findings embedded in the Police Abstract. They submitted that the fact of the police blaming the 2nd Appellant was not tantamount to apportionment of liability upon the 2nd Appellant in negligence. They were of the view that the trial Court ought to have interrogated further into the circumstances of the accident by scrutinizing the witness accounts during the hearing.

13. In view of the above, the Appellants urged that the trial Court ought to have dismissed the suit as no evidence supported the suit in its entirety. The decision of the trial Court was thus per incuriam especially taking into account the fact that the third party failed to enter appearance in spite of proper service of the third party notice.

14. On damages, the Appellants submitted that since the Respondent had failed to establish liability as against them, he was not entitled to any award on damages. Without prejudice to the foregoing, the Appellants conceded that damages under the Law Reform Act and special damages were fairly awarded. They challenged the award on damages under the Fatal Accidents Act. Proposing that the same be awarded at Kshs. 340,000/=, the Appellants submitted that the trial Court ought to have relied on the Regulation of Wages (General Amendment) Order, 2013 capping earnings at Kshs. 8,500/=. They added that this Court ought to award the sum using a 5-year multiplier as the deceased was 5 years shy of the retirement age.

15. The Respondent’s filed his submissions dated 30th May, 2022. They argued that the trial Court arrived at proper findings on both liability and quantum. For this hypothesis, the Respondent relied on the testimonies of PW2 and PW3.

16. The Respondent took note that since both vehicles were heading in the same direction, the 2nd Appellant unequivocally drove negligently and at a high speed and failed to keep proper distance and be on the lookout in the event of an emergency and eventually hit the third-party vehicle.

17. The Respondents further relied on the preliminary findings recorded in the Police Abstract that blamed the 2nd Appellant for causing the accident and the fact that the 2nd Appellant was charged in traffic proceedings in Kitale Chief Magistrates Court Traffic Case No. 130 of 2018. He also submitted that since the deceased was not blamed for causing the accident, being a fare-paying passenger, liability could only be attributed to the 2nd Appellant.

18. Regarding quantum, the Respondent submitted that the trial Court arrived at the ultimate award by applying the correct legal principles.

19. On general damages under the Fatal Accidents Act, the Respondent argued that he was the deceased’s husband and together sired 7 children amongst them minors and three of them were still dependent on the deceased. The dependency ratio of 2/3 was appropriate as well as the multiplicand of Kshs. 12,000. 00 and the multiplier of 12 years, it was argued. The Respondent further urged this Court to uphold the award on damages under the Law Reform Act and on special damages.

20. In view of the foregoing, the Respondent urged this Court to dismiss the appeal with costs.

Analysis: 21. The role of the first appellate Court was discussed in Abdul Hammed Saif vs. Ali Mohamed Sholan (1955) 22 E.A.C.A. 270. Even though the case was an appeal from the High Court to the Court of Appeal still the applicable legal principles are similar to appeals from the lower Courts to the High Court, hence, its relevance.

22. The Court of Appeal stated as follows: -…. 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 demeanour of a witness is inconsistent with the evidence in the case generally….

23. See also Selle & Another vs. Associated Motor Boat Co. Ltd. & Others (1968) EA 123.

24. This Court has carefully considered the Memorandum of Appeal and the parties’ rival submissions as well as the authorities relied upon. The Court has also considered the evidence relied on at trial by both parties.

25. The Court also takes not that on 8th April, 2019, the trial Court entered interlocutory judgment against the third-party. The effect thereof was that the trial Court was to determine the liability between the then Defendants (now Appellants herein) and the third party. Out of the said determination, any liable party would then shoulder the requisite award.

26. This Court will now consider the appeal on the main twin grounds of liability and quantum.

Liability: 27. Three persons testified on the aspect of the liability. They are PW2, PW3 and DW1.

28. PW2 was a police officer. He was the investigating officer in respect of the subject accident. PW3 was a passenger in the third-party vehicle. DW1 was an investigator from Remack Loss Assessors who was commissioned by the insurers of the lorry.

29. The evidence of PW2 and PW3 was adopted from Kitale Chief Magistrates Court Civil Suit No. 130 of 2018 which was a suit arising out of the instant accident. This Court had the occasion of perusing the said Court file.

30. The evidence-in-chief for DW1 was also adopted from the said Civil Suit No. 130 of 2018. The DW1 was then cross-examined before the trial Court in this matter.

31. PW2 testified that he carried out the investigations over the accident. He visited the scene of accident and recorded statements from witnesses including the 2nd Appellant. According to PW2, he established that the driver of the third-party vehicle had slowed down at Kiungani area so as to cross a road bump when the 2nd Appellant, being the driver of the lorry, rammed into the rear of the third-party vehicle thereby pushing the third party vehicle off the road into a trench.

32. The statement by the 2nd Appellant to the police was attested to by PW2. He stated that the 2nd Appellant had revealed in writing that the lorry lost its brakes as it was approaching the third-party vehicle and despite efforts by the 2nd Appellant to avoid hitting the third-party vehicle, the accident nevertheless occurred. The police file was produced in evidence in Civil Suit No. 130 of 2018.

33. PW2 further testified that he would be surprised of any finding that the third-party vehicle was to blame since according to him it never contributed to the accident or at all.

34. The 2nd Appellant did not testify in Civil Suit No. 130 of 2018 and also in the instant civil suit. It was, however, DW1 who attempted to bring up another version of how the accident occurred.

35. DW1 carried out his investigations as from 13th March, 2018. He produced his report dated 29th March, 2018. He stated that the basis of the report was the police OB report and witness statements.

36. DW1 gathered during his investigations that the third-party vehicle had overtaken the lorry and immediately returned back to the lane and stopped to pick passengers without regard to the fact that it was unsafe to stop at such a short distance. DW1 stated that the source of the said information was some boda-boda riders who refused to record statements with him.

37. The report by DW1 also contained a statement allegedly by the 2nd Appellant. In that statement, the 2nd Appellant seemed to vouch that the third-party vehicle dangerously overtook the lorry and immediately stopped to pick passengers, hence the accident.

38. Going by the record, it may be the case that the 2nd Appellant recorded two statements. One with the police and another one with DW1. The statements were different in the manner in which the accident occurred. In such a case, it was imperative upon the 2nd Appellant to testify and be accordingly examined as to ascertain the truth according to him. As said, the 2nd Appellant did not testify. There was no any plausible reason or at all as to why the 2nd Appellant did not testify.

39. The 2nd Appellant’s version as propounded by DW1 was based on statements by persons who did not testify including the 2nd Appellant and the boda-boda riders. As such, the Appellants were under a legal duty to comply with Section 33 of the Evidence Act, Cap. 80 of the Laws of Kenya and lay a basis for reliance on statements without calling the makers. No such basis was laid in the civil suit.

40. The resulting effect of such statements is that they are heresay and inadmissible in evidence. Therefore, the evidence by DW1 that the third-party vehicle dangerously overtook the lorry and immediately stopped to pick passengers, hence the accident, is inadmissible and cannot be relied on as a basis of any finding on liability in this matter. Indeed, the report and evidence of DW1 have so little, if any, probative value in the matter.

41. The upshot is that the evidence by PW2 and PW3 on how the accident occurred remain uncontroverted and this Court finds and hold that the accident occurred as how the 2nd Appellant informed the police. For avoidance of doubt, the lorry lost its brakes as it was approaching the third-party vehicle and all efforts by the 2nd Appellant to avoid hitting the third-party vehicle were futile.

42. On the basis of the foregoing, no liability can be attached to the third party. The trial Court was, therefore, right in finding the Appellants wholly to blame for the occurrence of the accident.

43. The appeal on liability is, hence, unsuccessful and is hereby dismissed.

Quantum: 44. An appeal on quantum of damages is one relating to the manner in which a trial Court assessed damages. An assessment of damages is generally a difficult task as it hinges on a Court’s exercise of discretion.

45. A Court in assessing damages is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an appellate Court must be slow to interfere with such an exercise of discretion. (See Butler vs. Butler (1982) KLR 277. )

46. The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus: -The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

47. This position was restated by the Court of Appeal in Arrow Car Limited -vs- Bimomo & 2 others (2004) 2 KLR 101 and also in Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd (2013) eKLR.

48. This Court will now reconsider the various heads of damages.

49. On the damages under the Law Reform Act, the trial Court allowed Kshs. 20,000/= for pain and suffering before death. According to the post mortem, the deceased was pronounced dead on arrival at Kitale County Referral Hospital on the day of the accident. As the deceased died shortly after the accident, the award of Kshs. 20,000. 00 is reasonable.

50. On damages for loss of expectation of life, the Court awarded the Respondent Kshs. 100,000/=. The trial Court found that the deceased was 55 years old at the time of her death. It further observed that she had no history of any chronic illness. The autopsy revealed that save for the injuries that she had sustained, she was generally in good condition. Her life was only cut short by the accident. This Court agrees with the trial Court’s observations and upholds the award under that head.

51. Next is the award for damages for lost years or loss of dependency under the Fatal Accidents Act. The Appellants propositioned that the Court ought to have awarded Kshs. 340,000/= by adopting a 2/3 dependency ratio, a multiplier of 5 years and a multiplicand of Kshs. 8,500/=.

52. It was argued that there was no documentary evidence to support the award in the sum of Kshs. 1,152,000/=.

53. In arriving at the award, the trial Court was guided by the decision in Jacob Ayiga Maruja & Another vs. Simeon Obayo C.A. 167/2000 [2005] eKLR in holding that documentary evidence was not the only way to prove profession. The trial Court was satisfied that the deceased was a businesswoman. It observed that she was engaged in the business of selling groceries at Kitale Municipal Market earning Kshs. 40,000/= monthly.

54. The trial Court then noted that the Respondent proposed a multiplicand of 12,000/= which was unchallenged. In that regard, the trial Court applied a 2/3 dependency ratio, a multiplier of 12 years and Kshs. 12,000/= multiplicand in arriving at the award for loss of dependency.

55. It is a fact that the Respondent placed no documentary evidence to establish that the deceased was a vendor at the Municipal Market and that she earned Kshs. 40,000/= monthly. The Respondent only relied on his oral testimony to that end.

56. Indeed, as rightly pointed out by the trial Court and in light of the vicissitudes of our society, it is not always pragmatic that every household in Kenya will have documentary evidence in support of a person’s earnings. The informal sector remains the heart of dependency for a lot of citizens of the country. However, it is not lost that documentary evidence is the best-case evidence whose probative value will always remain weighty. What then are the guiding principles which a Court should consider when faced with circumstances where there is no documentary evidence on earnings?

57. This Court recently dealt with this issue in Civil Appeals No. E045 and E046 of 2021 John Rotich Limo (suing as the legal Administrator of the estate of Martin Kiplagat Limo (deceased) -versus- Rose Ngoyai and Job Mabonga (unreported) in the High Court at Kitale in stating as follows: -68. The manner in which damages for lost years ought to be arrived at has, by now, been a well-trodden path. Briefly put, where there is evidence of income on the part of the deceased or such income can be appropriately ascertained say for instance through the duly gazetted minimum wages or any other manner as to enable the Court appropriately determine the multiplicand, then a Court is enjoined to undertake the mathematical process of calculating the lost years by inter alia using the multiplicand, the earnings among other parameters.

69. In instances where it is not possible to ascertain the deceased’s income, say for instance where the deceased was not in any formal employment, business or such-like engagements, a Court is called upon to adopt a global sum.

58. The aforesaid was reiterated in Franklin Kimathi Maariu & another vs. Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu (Deceased) [2020] eKLR where the Court held as follows: -…. In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach ……. as the appropriate mode of assessing the loss of dependency…

59. In Mwanzia vs Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa vs Gichumu Githenji Nakuru High Court HCCA No. 15 of 2003 [2007] eKLR, the Court made the following observation: -…. The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are known or are knowable without undue speculation; where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

60. Similarly, in Moses Mairua Muchiri vs. Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (Deceased) [2016] eKLR, the Court held as follows: -… It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, Courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case….

61. Returning to the case at hand, there was no evidence on the earnings by the deceased. Further, such possible earnings could not be ascertained say by way of the relevant Regulation of Wages (General) (Amendment) Order since there is no such cadre as Grocery Sellers or any equivalent in the said orders.

62. It is, therefore, the finding of this Court that since there was no evidence of earnings and none could be reasonably ascertained, then the best way for assessment of damages under this head was by way of adopting a global sum.

63. Be that as it may, this Court will only review the award of Kshs. 1,152,000/= on the lost years if it happens to be an exaggerated award. In ascertaining so, this Court must also consider the award of damages awarded under the limb of loss of expectation of life under the Law Reform Act as well as previous awards in similar cases.

64. The deceased died at the age of 55 years. He was survived by the husband and 7 children. Only one of the children was still a minor at the trial in the civil suit.

65. PW1 was the husband and the widower. He did not, however, testify on his contribution to the well-being of the family. There was also no evidence that the adult children were dependent on the deceased. Given that most of the children were adults and PW1 was still alive, the dependency by the family on the deceased could not be that much pronounced.

66. Since there are many ways in which a person remains important in a family unit regardless of the social status, a reasonable award must issue, at least, for such recognition. In this case, the deceased was a businesswoman at the Municipal Market. She definitely made earnings and the family was, in one way or the other, dependent on her.

67. By taking the foregoing into account and in view of some Court awards in such similar cases, this Court is convinced that the award of Kshs. 1,152,000/= made by the trial Court, coupled with the award on loss of expectation of life and in the unique circumstances of this case, is on the higher side. With utmost respect to the trial Court, this Court will review the award downwards. An amount of Kshs. 800,000/= will serve as adequate compensation on the limb of lost years.

68. On special damages, the Respondent sought special damages including for police abstract at Kshs. 200/=, Death certificate at Kshs. 50/=, Mortuary fees at Kshs. 2,100/=, Purchase of the coffin at Kshs. 17,000/=, Post mortem report fee at Kshs. 1,500/=, other hospital charges at Kshs. 4,100/=, transportation costs at Kshs. 12,500/= and funeral expenses at Kshs. 50,000/=. Ultimately, the trial Court awarded special damages in the sum of Kshs. 45,080/=.

69. Having carefully considered the receipts produced in evidence and the special damages as pleaded, this Court is satisfied that the trial Court appropriately allowed the special damages.

70. With the above findings, the appeal on quantum is, therefore, partly allowed on the limb of loss of dependency or lost years.

Disposition: 71. With the foregoing analysis, this Court hereby makes the following final orders: -a.The appeal on liability is hereby dismissed.b.The appeal on quantum only succeeds on the limb of loss of dependency or lost years under the Fatal Accidents Act. The award of Kshs. 1,152,000/= is hereby reviewed to Kshs. 800,000/=.c.The rest of the findings and awards by the trial Court are upheld.d.Given that the appeal has partly succeeded, each party shall bear its own costs on appeal.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 15TH DAY OF DECEMBER, 2022. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Mr. Kibichiy, Counsel for the Appellants.Mr. Soita, Counsel for the Respondent.Kirong/Regina – Court Assistants.