[2022] KEHC 17002 (KLR)

Wanjiku (Suing as the Administrator of the Estate of Nancy Wanjiku Karanja-Deceased) v Shah & another (Civil Appeal E040 of 2021) [2022] KEHC 17002 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17002 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E040 of 2021

GWN Macharia, J

December 15, 2022

Between

Beatrice Muthoni Wanjiku (Suing as the Administrator of the Estate of Nancy Wanjiku Karanja-Deceased)

Appellant

and

Anish Kara Shah

1st Respondent

Kara Commoditiea Ltd

2nd Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha in CMCC No. 389 of 2019 a delivered by Hon. K. Bidali (Mr), CM on 21st day of July, 2021))

Judgment

The appeal 1. Being aggrieved with the findings of the learned trial magistrate, the Appellant lodged the instant appeal vide a Memorandum of Appeal filed on August 12, 2021. The Appellant prays that, this Court sets aside the judgment and decree of the trial court of July 21, 2021, judgment be entered as set out in the prayers in the plaint and she be awarded costs of the appeal.

2. The appeal is based on the following grounds, that:i.The Honourable Magistrate erred in law and in fact by failing to have due regard, take into account and appreciate the substantive issues of law and facts raised by the Appellant during the hearing and in the submissions, authorities and other documents on record.ii.The Honourable magistrate erred in law and in fact by finding that the Appellant’s evidence in support of her claim did not meet the threshold of the balance of probability standard despite there being sufficient evidence on record to hold otherwise.iii.The Honourable Magistrate erred in law and fact by failing to consider that the Appellant’s Replies and Preliminary Objection to the Respondent’s application forming the substratum of this appeal lacked merit.iv.The Honourable Magistrate erred in law and fact by finding that the Appellant’s evidence in support of her claim did not meet the threshold of the balance of probability standard despite there being sufficient evidence on record to hold otherwise.v.The Honourable magistrate erred in law and fact by failing to consider that the 2nd Respondent being the undisputed owner of motor vehicle registration number KBK123Y/ZD3230 was undeniably and vicariously liable for the accident forming the substratum of this appeal.vi.The Honourable magistrate erred in law and fact by failing to consider the overriding objective of the law to ensure the dispensation of justice.vii.In all circumstances of the case, the Honourable Magistrate erred in dismissing the Appellant’s suit.

3. The Appeal was canvassed by way of written submissions.

Background 4. The Appellant initiated the claim in the Magistrate’s Court vide a Plaint dated May 28, 2019 for damages under the Fatal Accidents Act & the Law reforms Act, special damages as well as costs and interests. The suit was dismissed with costs, the learned trial magistrate having found that the claim was not proved on a balance of probabilities.

5. It was the Appellant’s case that the deceased was a passenger in motor vehicle registration number KBM 020L on May 31, 2017 when at Muniu Area along Naivasha-Maai Mahiu Road the 2nd Respondent’s vehicle registration KBK 123Y/ZD 3230 under the control of the 1st Respondent was carelessly controlled that it collided with the motor vehicle registration KBM 020L.

6. The Respondents opposed the claim by the Appellant by filing a Statement of Defence on August 15, 2019 in which they denied negligence on the part of the 1st Respondent and him being in control of the motor vehicle as at the time of the accident

Evidence 7. This being the first appeal I am required to reconsider the evidence adduced, re-evaluate it and draw my own conclusions, bearing in mind that I did not hear or see the witnesses who testified. See Abok James Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR (Civil Appeal No 161 of 1999) in which it was stated:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.

8. The Appellant was the only witness in the Plaintiff’s case. She produced documents and stated that she did not witness the accident. She adopted her statement and confirmed that the deceased died as a result of the accident. The documents were all produced by consent of the parties. The Appellant indicated that the dependants were listed as per the chief’s letter. The deceased operated businesses and supported her family.

9. The Respondents called the 1st Respondent as their only witness. He adopted his statement and confirmed that he was a director of the 2nd Respondent Company. He testified that he was not driving motor vehicle registration number KBK 123Y on the date of the accident. He did not deny ownership of the said motor vehicle and confirmed it was involved in an accident.

Submissions 10. The Appellant in support of the appeal filed submissions on April 20, 2022. The first issue raised was whether she had proved her claim on a balance of probability. In this regard, she submitted that it was not contested that an accident occurred and the deceased died as a result of the same. The police abstract produced by consent of the parties confirmed the occurrence of the accident and the motor vehicles involved. The Appellant faulted the trial court for finding that, since the 1st Respondent denied being the driver of the motor vehicle owned by the 2nd Respondent, vicarious liability would not arise. The Appellant cited the cases of William Kabogo Gitau v George Thuo & 2 others [2010] eKLR and Kamanduu Kaumba & another v Kingsway Motors [2020] eKLR to buttress the submission herein.

11. On whether there arose vicarious liability, the Appellant submitted that the 1st Respondent though he denied being the driver of the vehicle involved in the accident, acknowledged the ownership of the said motor vehicle and that he was a director of the owner as well as was aware of the accident that involved their subject motor vehicle. On the said basis, the Appellant urged the Court to find vicarious liability was established on the part of the 2nd Respondent.

12. The Appellant urged the Court to set aside the findings of the learned trial magistrate dismissing the suit and accordingly award damages as follows: Kshs 30,000. 00 for pain and suffering, Kshs 4,000,000. 00 for loss of dependency and Kshs 100,000. 00 for loss of expectation of life, Kshs 25,550. 00 as special damages as well as costs of the appeal.

13. The Respondents filed their submissions on May 25, 2022 in which they urged the Court to uphold the findings of the learned trial magistrate. On whether the Appellant had proved her claim on a balance of probability, it was the Respondents’ submission that the Appellant failed to discharge the burden of proof. The Respondents submitted that the police abstract giving information as to how the accident occurred would have been produced by the maker and as such, the same having indicated that the matter was still pending under investigations, the learned magistrate properly held that negligence was not proved.

14. It was further submitted that, the Appellant having failed to prove that the 1st Defendant was the driver of the motor vehicle belonging to the 2nd Respondent, failed to establish the doctrine of vicarious liability.

15. On the issue of award under the Fatal Accidents Act and the Law Reform Act, the Respondents submitted that the persons listed as dependants were adults and that there were no special circumstances as to why they depended on the deceased. The Respondents averred that no loss of dependency ought to be awarded. It was urged that the appeal be dismissed with costs.

Analysis and determination 16. I have carefully considered the submissions by both parties and re-evaluated the evidence on record and find that the following issues arise for determination:i.Whether the Appellant proved her case on a balance of probability.ii.If the answer to the first issue above is in the affirmative, what quantum is payable.iii.Whether the appeal is merited.

17. The provisions of Sections 107,109 and 112 of the Evidence Act, on the burden of proof, were extensively dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

18. In Evans Nyakwana vs Cleophas Bwana Ongaro (2015) eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

19. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

20. As to whether the accident occurred is not a matter in dispute. The involvement of the 2nd Respondent’s motor vehicle in the said accident as well as its ownership is not denied. The said contents emanate from the abstract produced by consent of the parties. The said abstract shows that the deceased was the driver of motor vehicle KBM 020L, a fact that is also not disputed. However, the 1st Respondent denies being the driver of the motor vehicle registration No KBK 123Y/ZD 3230 at the time of the accident.

21. The Court of Appeal in Civil Appeal No 100 of 2017 Rosemary Mwasya vs Steve Tito Mwasya & 2 Others (2018) eKLR as to the role of a passenger in an accident held:“Our reasons for affirming the Judges conclusions are that the deceased as a passenger had no control over the manner in which the appellant drove/managed and or controlled the accident vehicle prior to the accident.”

22. In the foregoing, somebody must shoulder the blame for the accident. The duty of the Appellant was merely to demonstrate that the deceased was involved in the accident and she was not to blame for it. To this extent, I find and hold that the Appellant proved her case on a balance of probability. The deceased being a passenger in no way contributed to the accident as she did not have the control of the motor vehicle she was travelling in. The Respondents on the other hand failed to adduce any evidence indicating the deceased was in control and/or made an attempt to control the motor vehicle she was travelling in as a passenger. In the circumstances, the deceased cannot be held to have contributed to the occurrence of the accident. Only the drivers of the two motor vehicles involved in the accident can be held liable for the same. The Respondents having not enjoined any other party who they seek to blame for the accident, must shoulder some responsibility for the accident.

23. This is a case I find is not clear as to who, between the two drivers should be wholly blamed. In a similar instance, the Court in the case of Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] eKLR (High Court of Kenya at Naivasha Civil Case No. 23 of 2015) stated thus:“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under Section 107 of the Evidence Act the Plaintiff was obligated to prove his allegations of negligence against the Defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers….The Plaintiff’s and Defendant’s account of the accident was equally doubtful. Of the collision however there is no dispute. In the circumstances, and based on the decision of the Court of Appeal in Hussein Omar Farah and Anne Wambui Ndiritu, I must find that the deceased and DW1 contributed equally in causing the collision and both must shoulder liability at 50:50. ”

24. From the facts of the case, the 1st Defendant makes a mere denial that he was not driving his employer’s vehicle just for purposes of avoiding liability. The fact of the occurrence of the accident and which vehicles were involved is not disputed. On the other hand, the Appellant was not an eye witness and could not thus attest or rubberstamp who, between the two drivers, was to blame. For this reason, I apportion liability equally between the parties as, despite the occurrence of the accident no party can be blamed wholly for contributing to the same and/or to a greater proportion. Each party will bear 50% liability.

25. On the assessment of damages, it is undisputed that the deceased died from the injuries sustained from the accident. She was undergoing treatment at Kijabe Hospital flowing from the evidence of the Appellant. The claim is brought under the Fatal Accidents Act as well as the Law Reform Act.

26. Under the Law Reform Act, damages are awarded for pain and suffering depending on the amount of pain the deceased endured before he died. The longer and hence more pain the higher the damages. The Appellant’s testimony was that the deceased died a day after the accident while receiving treatment. She produced death certificate indicated the deceased’s place of death as Kijabe Hospital. In the circumstances, I find that the deceased endured pain prior to her death for a prolonged period and award Kshs. 30,000. 00 as proposed by the Appellant. See Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] eKLR where an award of Kshs. 100,000. 00 was affirmed on appeal for a deceased who passed on a day after the accident.

27. On loss of expectation of life, the Appellant sought Kshs 100,000. 00. In the case of Allan Owiti Awuor & another v Tabitha Micere Mathu (Suing As Personal Representative of The Estate Of Peter Math Ng’ang’a)[2021] eKLR where the deceased was 57 years old as herein, the Court saw no need to interfere with an award of Kshs 100,000. 00 for loss of expectation of life. I find that an award of Kshs 100,000. 00 sought by the Appellant is reasonable and allow the same.

28. On loss of dependency the Appellant testified that the deceased was 57 years of age as at the time of death and no evidence has been tendered to vicissitudes of life or other imponderables or illness which would have shortened the deceased’s working life.

29. Further, the deceased was self-employed and would not have been bound by the retirement age of 60 years. Depending on the venture, a person can well work past the age of sixty years. In the circumstances, I find that a multiplier of 10 years is fair. See Midland Media Limited & another v Pauline Naukot Aule (Suing as the Legal Representative of the Estate of the late Esinyon Esokon Ekai)[2020] eKLR

30. On the income of the deceased, she was a business lady. No proof of her earnings has been adduced before the Court. It is prudent then that the court reverts to the basic wages in terms of the Regulations of Wages (General) (Amendment) Order for the relevant period, year 2017. Under the 2017 Regulations, a general worker’s monthly income is stated as Kshs.12,926. 55. On this, the Court of Appeal in Jacob Ayiga v Simon Obayo (2005) eKLR had the following to say:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed”

31. On the multiplicand, the deceased’s dependants are adults. The dependency on their deceased mother was not established, and if they ever depended on her, the dependency was minimal. I would thus apply a multiplicand of 1/3.

32. I accordingly tabulate loss of dependency as follows: 12,926. 55x12x10x1/3 = 517,040. 00

33. On special damages, the Appellant prayed for and proved Kshs 25,550. 00,

Disposition 34. In conclusion, I find the appeal succeeds and the decision of the learned trial magistrate dismissing the suit is set aside. The final assessment of damages is as follows:a.Pain and suffering Kshs 30,000. 00b.Loss of expectation of life Kshs 100,000. 00c.Loss of dependency Kshs 517,040. 00d.Special damages Kshs 25,550. 00e.Sub total Ksh 672,590. 00f.Less 50% contribution Ksh 336,295. 00Net Total Kshs 336,295. 00

35. The Appellant shall have costs of the appeal.

36. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:Ms Kuria h/b for Mr Kamau for the AppellantMr Kamau for the Respondents.