[2023] KEHC 26047 (KLR)

Wanjiru & another v Waithaka (Suing as the administrator of the Estate of Lilian Nyagura Ndungo) (Civil Appeal E031 of 2020) [2023] KEHC 26047 (KLR) (Civ) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26047 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E031 of 2020

DAS Majanja, J

November 30, 2023

Between

Stanley Gachunu Wanjiru

1st Appellant

Braeburn Schools Limited

2nd Appellant

and

Watson Ndungo Waithaka

Respondent

Suing as the administrator of the Estate of Lilian Nyagura Ndungo

(Being an appeal from the Judgment and Decree of Hon. E. Wanjala, SPM dated 20th February 2020 at the Magistrates Court at Nairobi, Milimani in Civil Case No. 8413 of 2020)

Judgment

1. Before the Subordinate Court, the Respondent filed suit against the Appellants seeking damages under the Law Reform Act and the Fatal Accidents Act following an accident that took place on 23. 11. 2023 along Ngong Road near National Oil Petrol Station around China Centre. The Deceased was a pedestrian when she was hit by the 2nd Appellant’s motor vehicle registration number KCG 055F being driven by the 1st Appellant. After hearing the matter, the Subordinate Court apportioned liability at the ratio of 70:30 in favour of the Respondent and awarded her damages amounting to Kshs. 3,215, 410. 00 subjected to the 30% liability.

2. According to the Memorandum of Appeal dated 28. 07. 2020, the Appellants appeal is against the judgment on liability and quantum of damages. The thrust of the appeal is that the trial court erred in law and in fact in apportioning liability at the ratio of 70:30 in favour of the Respondent, that the damages awarded are inordinately high in the circumstances of the case and that the trial court erred in law and in fact by awarding damages under both the Law Reform Act and the Fatal Accidents Act. The appeal was dispensed with by way of written submissions which I have duly considered.

3. The determination of liability is a question of fact. In the circumstance, this court, as an appellate court is enjoined to review the evidence on records and come to an independent conclusion as to whether it should uphold the decision of the trial court making an allowance for the fact that it did not have the opportunity of hearing the witnesses first hand (Selle v Associated Motor Boat Co. Ltd (1968) EA 123).

4. The submission of the Appellants is that the Respondent’s testimony was not sufficient enough to shift the burden of proof to the Appellants. They submit, as they did in the lower court, that he did not discharge his burden of proof on a balance of probability. As such, it was erroneous for the trial court to have shifted the blame on the Appellants.

5. I have evaluated the evidence before the trial court. The Respondent (PW 1), was the sole witness in the Plaintiff’s case. He was not at the scene of the accident and was only informed of the deceased’s death. Does that mean that the Appellants are absolved of liability? A case cannot fail simply because there was no eye witness. The court must consider all the evidence and make an inference from which liability may be established. In Abbay Abubakar Haji v Marain Agencies Company & Another [1984] 4 KCA 53, the Court of Appeal observed that, “There can be no doubt that it is the clear duty of a court to arrive at a finding on the facts, however difficult the circumstances may be, if that is at all possible. The court cannot, as Denning LJ said, wash its hands of the case and shrink from arriving at a conclusion simply because the evidence is deficient in some respects.” (see also Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita [2019]eKLR and EWO suing as the next friend of minor COW v Chairman Board of Governos Agoro Yombe Secondary School [2018] eKLR).

6. Had the Respondent been the only witness, the court would be right to dismiss the case as there was no evidence upon which the court could conclude that the Appellants were negligent. In this case though, the 1st Appellant admitted that an accident took place on the material date. On the material day at about 7. 45pm, it was wet and raining and he was driving at about 30 – 40kph when the deceased jumped on the road from the right to the left side. He was unable to break whereupon he hit her causing her to suffer injuries which resulted in her death.

7. The occurrence of a road traffic accident by itself means that there must be something which caused the accident. The mere fact that there was no eye witness to state clearly what happened does not mean that the driver of a motor vehicle escapes liability. The court must consider the circumstances of the case and make a reasoned finding.

8. In its analysis, the trial court noted the testimony of the 1st Appellant. He stated that at the time of the accident, it was raining, it was misty and it was dark. Indeed, the accident occurred at around 7. 40 pm. The driver stated that he only saw the deceased after the vehicle had hit her. He further stated that he could not see the side of the road. The trial court thus questioned his other version of the story which stated that the deceased jumped into the road, that she was on phone, that the driver tried to apply brakes but the vehicle was too close and the road was slippery due to the rain thus knocking the deceased – yet he was driving at the speed of between 30 and 40 Km/hr. Those are indeed two complete versions of the testimony.

9. The 1st Appellant’s testimony is uncontroverted. The only inference the court can draw from the admission is that the he ought to have been more careful given the time of the accident and, the fact that it was raining and wet. It is doubtful whether the vehicle moving at the speed of between 30 - 40 Km/hr would have knocked a person to the extent of inflicting multiple organ injuries outlined in the post mortem report prepared by Dr. Ndegwa. As per the report, the deceased died on the spot. In Felister Nduta Muthoni & Another v. Attorney General [2004] eKLR, the court found the driver to have been negligent and to have been speeding where the impact was so great that it caused the victim to sustain fatal injuries soon after the accident. On the other hand, it is also possible that the Deceased jumped onto the road. There no evidence to show that the Deceased did not jump onto the road thus contributing to the accident. The Deceased was not hit on the sidewalk. According to the 1st Appellant, the pedestrian crossing was a distance away. Based on the 1st Appellant’s uncontested testimony, the finding that the deceased should shoulder 20% liability is not supported by the evidence. I reverse this finding and apportion liability at 40% against the driver and 60% against the Deceased.

10. Turning to the issue of damages, the trial court observed that the Deceased died on the spot thus she awarded Kshs. 35, 000. 00 for pain and suffering based on the decision in Joseph Njuguna Mwaura (Suing in his capacity as the personal representative of Susan Nduta) v. Builders Den Limited & Another [2014] eKLR where the High Court awarded KShs. 30,000. 00 considering inflation. The Appellants had prayed for Kshs. 10,000. 00 under this head while the Respondent had prayed for KShs. 100,000. 00.

11. The Respondent was awarded Kshs. 100,000. 00 for loss of expectation of life. The court relied on Benedeta Wanjiku Kimani v. Changweon Cheboi & another [2013] eKLR where the Court observed that the conventional sum for the loss of expectation of life is Kshs. 100,000. 00. The Respondent had proposed an award of Kshs. 300,000. 00.

12. Under the Fatal Accidents Act, the Court awarded a multiplier of 31 years considering the age of the deceased, a dependency ratio of 1/3 since she was not married and did not have a family of her own. Based on the pay slips adduced in evidence to show that the deceased was working at Coptic Hospital, the trial court used a net salary of Kshs. 24,515. 00 as the multiplicand.

13. The principles upon which an appellate court can disturb a quantum of damages awarded by a trial judge are settled. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (No. 2) [1987] KLR expressed this position as follows:The appellate court must be satisfied that either the trial 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.

14. In totality, the only factor which I find that the trial court did not consider is the age of the parents of the deceased who were the sole dependants. It was pleaded in the Plaint that the father was 55 years and the mother was 49 years. The Appellants in their submissions proposed a multiplier of 15 years. They relied on the case of Francis K. Nthiwa v. Gregory K. Mwangangi & another [2009] eKLR where the court held that the age of the dependants ought to be taken into account when arriving at a multiplier. The court in the said case adopted a multiplier of 15 years where the deceased was 19 years and the parents were 52 and 37 years respectively.

15. I agree that the age of the deceased’s dependants is a material and relevant consideration is assessing the multiplier as it represents the period of expected dependency. In this case, I am inclined to agree with the submission of the Appellants that a multiplier of 15 years would be sufficient if the age of the dependants is taken into account. Loss of dependency would therefore be computed on that basis as follows: Kshs. 24,515. 00 X 12 X 15 X 1/3 = Kshs. 1,470,900. 00.

16. The question whether the trial magistrate ought to have subtracted the damages awarded for loss of expectation of life under the Law Reform Act from the total award is answered by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (Supra) where it explained as follows:6. 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.7. The Law Reform Act (cap 26) section 2(5) provides that the rights conferred by or for the benefit of 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.8. The words "to be taken into account" and "to be deducted" are two different things. The words used in section 4(2) of the Fatal Accidents Act are "taken into account". The section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction.”

17. A perusal of the judgment of the trial court shows that she acknowledged and justified her award under section 2(5) of the Law Reform Act. I do not therefore find error with the trial court’s failure to deduct the KShs. 100,000. 00 awarded under the Law Reform Act for loss of expectation of life.

18. In conclusion therefore, I vary the judgment of the trial court only to the extent that the amount of Kshs. 3,039,860. 00 for loss of dependency is hereby substituted with Kshs. 1,470,900. 00.

19. Each party shall bear their own costs of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2023. D.S. MAJANJAJUDGEMr Janjo instructed by Madhani Advocates LLP for the Appellants.Ms Muchira instructed by L. N. Muchira and Company Advocates for the Respondent.