[2023] KEHC 26661 (KLR)

Watu Nominees Company Limited v Jumbe & Wekulo (Suing as the Administratrixes of the Estate of Douglas Wekulo Lugongo) & another (Civil Appeal 81 of 2023) [2023] KEHC 26661 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26661 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 81 of 2023

DKN Magare, J

December 14, 2023

Between

Watu Nominees Company Limited

Appellant

and

Philis Nanzala Jumbe & Cynthia Nasimiyu Wekulo (Suing as the Administratrixes of the Estate of Douglas Wekulo Lugongo)

1st Respondent

Khatib Swaleh Abdalla Wheelchair

2nd Respondent

(Appeal from the Judgment and Decree of Hon. R.N Akee– RM dated 21/3/2023 arising from Mombasa CMCC No. E446 of 2021)

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. R.N Akee– RM dated 21/3/2023 arising from Mombasa CMCC No. E446 of 2021.

2. The Appeal is on liability and quantum.

3. The Memorandum of Appeal, however, is a classical study on how not to write a Memorandum of Appeal. The Appellant filed a prolitixious 8 - paragraph argumentative Memorandum of Appeal filed on 4th April 2023. The grounds are argumentative, unseemly and do not please the eye to read.

4. Order 42 Rule 1 that requires that the memorandum of Appeal be concise. The same provides as doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

5. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

6. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

7. The Memorandum of Appeal raises only two issues, that is: -a.The quantum of damagesb.Liability

8. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time.

9. The Plaint claimed damages for an accident involving Motorcycle Registration No. KMEV 864G which occurred on 1st June 2020 while the Deceased was riding on his wheelchair. The Respondents blamed the rider of the accident motorcycle for the accident for carelessly ramming into the deceased’s wheel chair. The Plaintiff set forth particulars of negligence for the motorcycle.

10. The Appellant entered appearance and filed Defence denying the particulars of negligence and injuries pleaded in the Plaint. The 1st Respondent however failed to enter appearance and default judgment was entered against him.

11. The Trial Court heard the parties and proceeded to render judgement on 21st March 2023. In the Judgement, the Court found 100% liability against the 1st and 2nd Defendants. The court also awarded Damages as follows:i.Pain and suffering Kshs. 50,000/=ii.Loss of Expectation of Life Kshs. 100,000/=iii.Loss of Dependency Kshs. 1,976,000/=iv.Special Damages Kshs. 210,451/=TOTAL KSHA 2,336,451/=.

12. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal.

Pleadings 13. The Plaintiffs testified as the administrators of the estate of the Deceased.

14. PW1, Phyllis Nanjala Jumbe relied on her witness statement and bundle of documents which she produced in Court.

15. It was her case that from the police abstract they obtained, the Defendants were the owners of the motorcycle that knocked down her late husband on 1st June 2020.

16. He further stated that the deceased was selling smokies and used to earn about Kshs. 35,000 per month. She also stated and produced evidence that the deceased was a sugarcane farmer who earned in income.

17. The witness also produced details of her children who were in school.

18. PW2, Cythia Wekulo Nasimiyu testieif that she was the daughter of the deceased at student at the Kitale Polytechnic. She also claimed damages as prayed in the Plaint.

19. The 2nd Appellant called DW1 Kenneth Mwavula who testified that he was the asset finance officer for the 2nd Appellant. It was his case that pursuant to the loan agreement, the accident motorcycle was sold and released to the 1st Defendant on 28th May 2019 and there was a memorandum of understanding through which the Appellant was only listed as owner of the motor vehicle for the purpose of protecting its interest.

20. It was thus the testimony of DW1 that the Appellant was not liable for the accident.

Submissions 21. The 2nd Appellant submitted that it was in error for the trial court to find vicarious liability against it because the 1st Defendant was not its agent because it had sold the accident motor vehicle.

22. It was submitted that the Respondent did not prove the case on liability against the Appellant as required under Section 107,108 and 109 of the Evidence Act and so the trial court erred in finding otherwise that the Appellant caused the accident.

23. Counsel submitted that there cannot be liability on the part of the Appellant without a fault.

24. Reliance was pegged on the cases of Sumer Sign Bachu v Nicholas Wainaina Kago Waweru (1976)e KLR and John Nderi Wamugi v Ruhesh Okumu Otiangala & 2 Others (2015)e KLR.

25. Further, counsel for the Appellant submitted that Section 8 of the Traffic Act on presumption of ownership did not apply to the Appellant who produced evidence that it had sold the accident motorcycle to the 1st Defendant and the name of the Appellant appeared on the Official Search Records merely as security for a loan. Reliance was placed on the case of Jared Magwaro v Primarosa Flowers Ltd (2018) eKLR to canvas this argument.

26. Therefore, it was submitted that there was no nexus between the 1st and 2nd Defendants as to yield vicarious liability and the trial court erred in failing to find as such.

27. On the quantum of damages, it was submitted that no evidence was produced in court to support the finding of the trial court that the deceased earned from selling smokies and from farming sugarcane.

28. It was also submitted that the general damages awarded for loss of dependency was excessive and not commensurate with the evidence produced in court and ought to be set aside.

Respondent’s submissions 29. The respondent submitted on liability that the documents produced in court were clear that the Appellant and the 1st Defendant were the registered owners and the Appellant had not discharged the burden as required under Section 8 of the Traffic Act.

30. As such, it was submitted that the presumption that they were the registered owners remained and the trial court was correct in finding both liable.

31. On quantum, counsel submitted that the curt did not err in the assessment of the damages.

32. On quantum, the Respondent submitted that the award by the trial court were commensurate to the injuries and should not be disturbed.

33. I was urged to dismiss the Appeal.

Analysis Duty of the first Appellate Court 34. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

35. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon 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.”

36. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

37. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

38. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

39. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

40. The issue in this case is whether the court should set aside the Judgement and Decree of the Trial Court.

41. On liability, the Plaintiffs blamed Motorcycle for the accident. The trial court found liability at 100% for the 1st and 2nd Defendants. I note the Appellant was listed as the owner of motorcycle per the motor vehicle copy of records dated 21st October 2020 and produced by the Respondent.

42. I have perused the judgement of the lower court. The trial court correctly found that the evidence of the Respondent was uncontroverted since the Appellant’s witness only conformed that the name of the Appellant was on the registered owner per the documents produced by the Plaintiff.

43. Although the witness asserted that the interest by the Appellant was of a lender only registered as security, there was no evidence to support this assertion and it was not clear why the Appellant was recorded as the sole registered owner per the records. It was upon the Appellant to produce evidence to connect the 1st Defendant as the owner which it failed.

44. Therefore, the presumption of motor vehicle ownership under Section 8 of the Traffic Act, as submitted by the Respondent, remained valid against the Appellant. I am thus unable to overturn the finding of the trial court which was supported by evidence.

Quantum 45. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.

46. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure.

47. Damages must be commensurate with similar injuries.

48. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.

49. Furthermore, in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

50. The trial court did not cite comparable authorities in its determination. This was in error. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”

51. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high.

52. There is no dispute that the Deceased was 51 years at the time of his demise.

53. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”

54. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to:-1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high.

55. I have perused the impugned judgment and I note that the trial court adopted a multiplier of 19 years and a multiplicand of 2/3 with income of Kshs. 13,000/-. The court as such adopted Kshs. 13,000/- as reasonable income though the Plaintiff had pleaded income from the sell of sausages as Kshs. 35,000 per month and Kshs. 78,000/= per month from sale of sugarcane. These, according to the court, were not proved.

56. The Court in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), Ringera J, as he then was, held at page 248 that:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

57. In my analysis, whereas the Appellant contended that there was no evidence produced in court to show that the Deceased earned income, I have no doubt on my mind that the award of Kshs. 13,000/- can not be said to be unreasonable because the evidence that the Deceased was a farmer and that he used to sell sugarcane remained uncontroverted. In any event, the Respondent did not appeal against the finding on income. However, the minimum wage is 13,610. 50 not 13,000/=.

58. In Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.

59. The Deceased was married with a family comprising a wife of 44 years old and 4 children aged between 4 and 22 years which were evidently in schools and he supported them. I consequently do not think the court applied wrong principles or failed to apply relevant principles in awarding a multiplicand of 2/3.

60. However, the multiplier of 19 years was on well supported as the same ought to have taken into consideration the retirement age and vicissitudes of life. In my view, as the deceased was 51 years old, he would have worked until a productive retirement time of 70 years, and due to uncertainties of life, and bearing in mind that he was in his wheelchair, a multiplier of 14 years would in my view be reasonable.

61. Though minimum wage is indicated as 13,000/= for an unskilled foreman. the correct wage is 13,610. 50.

62. Consequently, the award under loss of dependency is hereby stated as follows: 13,610. 50 x 14 x 12 x 2/3 = Ksh. 1,524,376/-. I therefore substitute award to that extent. As was held by Odunga J (as he then was) in J W N v Kassam Hauliers Limited [2020] eKLR17. Conventionally Courts have taken married persons more so with children to spend more on their families than themselves and apportioned a dependency ratio of 2/3. On the other had they have taken unmarried people to spend more on themselves more than their dependants more so parents hence have apportioned a dependency ratio of 1/3 which has over time been enhanced to 1/2. In this case it was submitted that as the deceased was married with 3 children he spent more on his family than self hence a dependency ratio of 2/3 would suffice.

63. On the perusal of the Memorandum of Appeal, the Appellant did not appeal against the damages for loss of expectation of life, pain and suffering and special damages and I will not delve into this arena.

Determination 64. In the upshot, I make the following Orders:i.The Appeal on liability is dismissed.ii.The Judgment of the Lower Court on damages for loss of dependency is set aside and substituted with Kshs. 852,000/=.iii.The other limbs remain the same.iv.As the Appeal is partially successful, each party shall bear their own costs in the Appeal.

DELIVERED, DATED AND SIGNED AT VIRTUALLY ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ajigo for the RespondentTolo for the AppellantCourt Assistant- Brian