(Being an appeal and cross-appeal against the judgment and decree of the Resident Magistrate at Msambweni Hon. Joy Mutimba delivered on 29/7/2024 in Msambweni MC CC No. E169 of 2023).
JUDGMENT
1. The appeal and cross-appeal herein arise from the same trial court judgment delivered on 29/7/2024. After the appellant (defendant in the magistrates court case) (hereinafter appellant) filed his memorandum of appeal dated 26/8/2024, it emerged that the respondent (hereinafter respondent/cross-appellant) (plaintiff in the magistrates court case) had also filed her appeal almost at the same time. By consent of the parties, the two appeals were consolidated and proceeded as one.
2. The respondent herein sued the appellant for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the benefit of the estate of the late Charles Kibaria Muriithi (the deceased) and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the benefit of the dependents of the deceased. She pleaded that on 26/3/2022 at around 0930 Hours the deceased was a pedestrian along Diani Beach road near Cape of Good Hope hotel when he was knocked down by motor vehicle registration number KCG 453F driven and owned by the appellant. The respondent blamed the accident on the negligence of the appellant.
3. In his statement of defence dated 29/1/2024 the appellant denied the claim and in the alternative blamed the deceased for having wholly or substantially contributed to the accident.
4. At the hearing the respondent gave evidence as PW 2, Damaris Wanjeri Kabia, and called PW 1, Kelvin Menja, a colleague of the deceased at Cape of Good Hope car wash and an eye witness.
5. PW 1 testified that he witnessed the accident first hand. That the deceased was just about to finish crossing the road to go to their work station at the car wash when the appellant’s vehicle driven at high speed from Ukunda towards Diani Beach direction and overtaking another knocked the deceased down. The impact threw the deceased up in the air and he came down with a force and hit the ground thereby sustaining grave injuries. The appellant who was the driver of the vehicle did not leave the scene. PW 1 said that he was so horrified seeing the deceased lying on the ground. The deceased was then taken to Diani Beach hospital and later transferred to Msambweni County Referral hospital.
6. In-cross examination PW 1 said that the accident vehicle was in its rightful lane and was not overtaking another.
7. The respondent gave evidence that she was a wife of the deceased and they had one daughter. They were wholly dependent on the deceased’s income of KShs 1500/= per day at the car wash and they had lost that support after his demise. She had spent money on the medical attention for the deceased before he passed on and also on funeral arrangements. She produced various documents which were not contested, to support her case.
8. The appellant gave evidence as DW 1, Alose Johnstone Kivuli. His evidence was that while driving on the said road, the deceased suddenly darted across the road from the left side in an attempt to cross to the other side. DW 1 tried to brake and to avoid knocking the deceased down but that was not possible. He therefore blamed the deceased for the accident.
9. In cross-examination, the appellant conceded that the road is a busy one with pedestrians. He conceded that a driver should be on the lookout but also said a pedestrian should equally be on the lookout.
10. After hearing the case the learned trial magistrate found the appellant wholly liable for the accident. It awarded the respondent damages of KShs 100,000/= each for pain and suffering and loss of expectation of life and KShs 90,500/= special damages for funeral and other expenses. These are not contested. On damages for loss of dependency, the trial court used a multiplier of ¹∕₃ for the award reasoning that the respondent had not proved that she was a wife of the deceased but had proved that the deceased had one child. The court also declined a prayer for KShs 30,000/= as medical expenses for failure by the respondent to support the claim with relevant receipts.
11. Both the appellant and the respondent were aggrieved by the said judgment and appealed to this court as indicated above.
12. The appellant through a memorandum of appeal dated 26/8/2024 challenges the judgment of the trial court praying that the court should apportion liability between the appellant and the respondent and make an award consistent with the nature of injuries sustained by the respondent.
13. In the cross-appeal through a memorandum of appeal dated 28/8/2024, the respondent raised two issues, first the failure by the trial court to make an award for medical expenses and second, the finding that the respondent did not prove that she was a wife of the deceased thereby leading the learned trial magistrate to use a low dependency ratio and thereby making a manifestly low award.
14. The appeal and cross-appeal were heard as one by way of submissions filed by learned counsels for both parties.
15. In his submissions the appellant proceeded to correct his first prayer in the memorandum appeal. The prayer in the memorandum of appeal is that the assessment of quantum by the learned trial court be set aside and substituted therefore with an award “consistent with the nature of injuries sustained by the respondent.” (emphasis mine). In the submission learned counsel states that this court adopts a global figure approach as opposed to the multiplier/multiplicand approach adopted by the trial court in assessing damages for loss of dependency. Unfortunately, the appellant did not amend the memorandum of appeal in order to accord with that submission.
16. Learned counsel for the respondent has countered this submission by urging that they can only submit on the ground as set out in the memorandum of appeal. He has cited the case of Mwazame v University of Nairobi [2024] KEELRC 572 (KLR) where it was stated that the court should only consider the grounds as set out in the memorandum of appeal and not other issues raised in submissions but not forming part of the grounds in the memorandum.
17. I consider this to be a mere technicality that should not hamper this court from considering the substance of the appeal. It is apparent that the drafter of the memorandum of appeal was not keen to check that averment. I find no prejudice occasioned to the respondent by the failure to amend the memorandum to correct that mistake.
18. Learned counsel for the appellant further submits that the respondent failed to prove her case as required by law for various reasons. First, by not producing the police abstract which according to learned counsel not only proves the occurrence of the accident but also the circumstances thereof. Secondly by failing to call the investigating officer and failing to produce a sketch map and investigation diary.
19. Whereas this statement may be partly true to the extent that it is proof of occurrence of an accident, the converse cannot be true. That is, failure to produce a police abstract and call the investigating officer cannot be prima facie evidence that an accident never occurred. There is no need to belabor that issue for instance in this case where the occurrence of the accident is not disputed. Suffice it to say that assuming that the accident was never reported to the police at all, for whatever reason, it would not mean that the accident never occurred and no other evidence would be available to prove that it occurred. Section 143 of the Evidence Act (Cap 80) Laws of Kenya provides that no particular number of witnesses is required to prove a fact. Even so it happens from experience that adequacy of evidence in some kinds of cases may require the evidence of more than one witness, for instance cases where the law itself or judicial practice requires corroboration of evidence. However, this is not one such a case. Therefore, the submission that failure to call the investigating officer to produce the police abstract which would prove that the accident occurred should mean that it indeed never occurred cannot be serious.
20. Learned counsel further submits that the learned trial magistrate failed to consider that the deceased was crossing the road at an undesignated place without a marked pedestrian crossing, that the appellant was driving on his rightful lane and that the accident occurred during the day when visibility was proper and that PW 1 was not clear on the point of impact. However, it is a matter of common knowledge that not all roads in Kenya are marked with points for pedestrian crossing. In this case, it was not shown by the appellant that on this road at that particular place, there was a marked pedestrian crossing point which the deceased failed to use.
21. Learned counsel for the respondent, in response submits that the court should slow in overturning the findings of the trial magistrate on apportionment of liability as such determination is at the discretion of the trial court which had the advantage of seeing, hearing and assessing the demeanour of the witnesses. He submits further that the learned trial magistrate made a proper evaluation of the evidence before it and came to the right conclusion on the issue of liability.
22. Learned counsel for the appellant further submits on the cross-appeal that the learned trial magistrate was correct to find that the respondent did not prove the claim for medical expenses of KShs 30,000/= as there was no receipt to support it.
23. Learned counsel for the respondent on his part submitted citing various authorities that this court should be slow to upset the findings of the trial court both on liability and quantum.
24. Learned counsels filed authorities to support their submissions.
25. The issues arising from the appeal and cross-appeal for this court’s determination are therefore whether the decision by the learned trial magistrate apportioning liability wholly upon the appellant and whether the denial of award of damages for medical expenses and the finding that the respondent had not proved that she was a wife and therefore dependent of the deceased thereby leading the court to adopt a dependency ratio of ¹∕₃ were proper or are for upsetting.
26. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. I am guided in this respect by the cases of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 and Peters vs. Sunday Post Limited (1958) E.A 424. In the later case, it was stated by the Court of Appeal that:
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide ...”
27. The first ground of appeal by the appellant is that the learned magistrate’s finding that the appellant was liable for the accident was in error as there was no evidence placed before the trial court to support that finding and that the court ignored the evidence and submissions tendered by the appellant.
28. In response to the appeal, the respondent submits that the trial court properly evaluated the evidence that was on record and arrived at the correct finding that the appellant was wholly to blame for the accident.
29. I have considered and re-evaluated the evidence tendered at the hearing. In doing so, I am guided by the case of Kiruga vs Kiruga & Another [1988] KLR 348, where the Court of Appeal observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
30. Evidence of how the accident occurred was given by two witnesses, PW 1, an eye witness colleague of the deceased and DW 1, the driver of the accident motor vehicle. There are some basic facts which they agreed upon. The deceased was crossing the road at the time. Under the given circumstances, there was no obstruction either for the driver or the deceased not to see the other on the road. There were many pedestrians on the road at the time.
31. PW 1 initially said that the driver was overtaking at high speed and that he was knocked down while he was almost finished crossing the road. But in cross-examination he denied that there was another vehicle on the road and said that the driver was driving on his lane.
32. DW 1 on his part said that the deceased suddenly emerged on the road without warning in an attempt to cross the road and that DW 1 had no other way of averting the collision.
33. That the appellant was driving at high speed was clearly stated by PW 1. But there was no attempt by the defence to counter that evidence. DW 1 only said that the deceased suddenly darted across the road from his (the driver’s) left hand side in an attempt to cross the road and he tried to brake as well as to swerve to avoid knocking down the deceased but that was not possible.
34. The learned trial magistrate considered and weighed the evidence of the two witnesses, evaluated the same and concluded that the appellant was wholly to blame for the accident.
35. Even as there was no evidence on the nature of injuries sustained by the deceased such as an eye witness account or post-mortem form it is apparent that the impact of the vehicle with the deceased was of such a great force that he sustained very severe injuries from which he died afterwards. PW 1 said that the impact of the collision threw the deceased in the air and he came down with force and hit the ground hard. This evidence by PW 1 was not discounted by that tendered by DW 1. It can therefore be safely concluded that the appellant was driving at high speed in the circumstances as was found by the learned trial magistrate.
36. Secondly, it is apparent that the appellant did not keep a proper look out or have sufficient regard for the pedestrians crossing the road at the time. The road was clear with clear visibility at 9.30 a.m. The accident occurred in an area where according to the appellant himself and PW 1 there was heavy human traffic at that time of the day. The appellant was familiar with that area as he used to travel frequently on that road. In these circumstances, it is not unreasonable to expect the appellant to be aware that in that area with heavy human traffic, there definitely were pedestrians using the road. The appellant testified that the deceased all of a sudden darted onto the road from the left side of his car. I find this difficult to accept. That evidence was countered by the evidence of PW 1 who said that in fact the deceased had almost finished crossing the road.
37. But, even if the appellant is given the benefit of his evidence that the deceased suddenly darted onto the road in order to cross, a vehicle driven at a reasonable speed by a driver giving a proper look-out under the circumstances described, the impact of the collision would not have been fatal. Clearly, at the time the appellant drove his motor vehicle along the road in the circumstances set out above, he had an obligation to keep a proper look out for many pedestrians who were using the road at the time. As has been said time and again, he was in charge of a lethal machine under circumstances that required him to be extra vigilante. I find that he failed in his obligation to do so and thereby caused the accident.
38. Therefore, the learned trial magistrate having believed the evidence of PW 1, there was no basis to apportion liability any less than finding the appellant wholly liable for the accident. Consequently, I find that the appeal on liability has no merit and the same fails.
39. Next issue to consider is the finding by the trial court that the cross-appellant/respondent failed to prove her marriage to the deceased and therefore failed to prove her dependency and the mode of assessment of the damages thereunder by the learned magistrate.
40. The issue of proof of marriage and paternity for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
41. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
42. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) eKLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and paternity is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
43. The learned trial magistrate relied on the reasoning in the former line of cases while the learned counsel for the respondent/cross-appellant has brought up the reasoning in the later line of cases. The issue could not have been envisaged by learned counsel at the trial and so they did not make the authorities available to the learned trial magistrate.
44. I am persuaded to follow the later school of reasoning for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
45. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
46. The respondent/cross-appellant presented evidence she was married to the deceased and that they had one child and both were depended on him, which evidence was not challenged. As was held in the Esther Chemutai Kibet case I am persuaded to find that the appellant was a wife of the deceased and she together with their child are dependents, as envisaged under Section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
47. I therefore, with respect, set aside the finding of the learned trial magistrate on that issue and find that the respondent/cross-appellant proved her dependency upon the deceased as a wife.
48. It is the appellant’s contention that assessment of damages for loss of dependency should have been on the global sum approach rather than the multiplier approach. Learned counsel relies on the case of Mwangi (Suing as the administrators of the estate of Peter Maina Mwangi (Deceased)) v Arim [2022] KEHC 3295 (KLR) for that proposition.
49. I am aware that assessment of damages is at the discretion of the trial court. The trial court had before it evidence by PW 1 that he was a workmate of the deceased and they would earn between KShs 1,500/= and KShs 2,500/= per day but that on some days they would go without anything. But he had no document to support that assertion. The respondent then produced evidence that the appellant spent approximately KShs 20,000/= per month on his family. This evidence was not challenged. It was not a case where there was no evidence of income at all as submitted by learned counsel for the appellant. However, the issue is whether this evidence was sufficient. It must be remembered that dependency is a matter of fact which must be proved by evidence. In the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR that:-
“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”
50. From the evidence tendered by PW 1 and the respondent/cross-appellant it is difficult to ascertain with some measure of exactitude what the deceased’s actual income was. In the case of Moses Mairua Muchiri v 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.”
51. To that extend, I agree with learned counsel for the appellant that the global sum approach would be appropriate to apply in this case.
52. Learned counsel for the appellant proposed an award of KShs 700,000/=. He relied on the case of Moses Wetangula & Another v. Eunice Titika Rengetinag [2018] eKLR where a 42-year old retired KDF officer deceased’s estate was awarded KShs 500,000/= for loss of dependency.
53. In a more recent case of Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the court on appeal upheld an award of Kshs. 2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
54. Consequently, I find that the trial court’s award of KShs. 1,600,000/= in damages for loss of dependency, where the deceased left a widow and one child, even though based on the multiplier approach was not inordinately high or low an award as submitted by learned counsels for the appellant and respondent respectively hence the appeal and cross-appeal both fail on this ground.
55. I will therefore affirm that award even though by using the global sum rather than the multiplier/multiplicand approach.
56. The claim for medical expenses was in the nature of special damages. I have checked the receipts produced and I have not found any to support the claim. The learned trial magistrate was correct to reject the same. Learned counsel for the cross-appellant has urged the court to adopt the same reasoning as for funeral expenses. However, the reasoning in the cases cited is that these are exceptional instances where special damages would not be supported by evidence such as receipts. In the case of medical expenses, there has to be an explanation why the receipts were not produced. It could be that the bill was paid by a good Samaritan or even by way of insurance and the same is not being claimed. To award that sum would amount to unjust enrichment for the cross-appellant. Therefore, the cross-appeal on that ground fails.
57. In conclusion, I find that other than the finding on the issue of proof of marriage of the appellant to the deceased and the substitution of the manner of assessment of damages for loss of dependency from the multiplier/multiplicand approach to the global sum approach, which in any case have not affected the finding on the damages awarded, the appeal and cross-appeal were not merited and they are respectively dismissed to that extend.
58. For clarity the awards of damages as made by the learned magistrate remain the same.
59. Each party shall bear his/her own costs of the appeal and cross-appeal.
60. Orders accordingly.
61. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 22nd of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Oile (Ms) for Appellant.
Muriithi for the Cross-Appellant/Respondent.
Hud Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
JUDGMENT
1. The appeal and cross-appeal herein arise from the same trial court judgment delivered on 29/7/2024. After the appellant (defendant in the magistrates court case) (hereinafter appellant) filed his memorandum of appeal dated 26/8/2024, it emerged that the respondent (hereinafter respondent/cross-appellant) (plaintiff in the magistrates court case) had also filed her appeal almost at the same time. By consent of the parties, the two appeals were consolidated and proceeded as one.
2. The respondent herein sued the appellant for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the benefit of the estate of the late Charles Kibaria Muriithi (the deceased) and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the benefit of the dependents of the deceased. She pleaded that on 26/3/2022 at around 0930 Hours the deceased was a pedestrian along Diani Beach road near Cape of Good Hope hotel when he was knocked down by motor vehicle registration number KCG 453F driven and owned by the appellant. The respondent blamed the accident on the negligence of the appellant.
3. In his statement of defence dated 29/1/2024 the appellant denied the claim and in the alternative blamed the deceased for having wholly or substantially contributed to the accident.
4. At the hearing the respondent gave evidence as PW 2, Damaris Wanjeri Kabia, and called PW 1, Kelvin Menja, a colleague of the deceased at Cape of Good Hope car wash and an eye witness.
5. PW 1 testified that he witnessed the accident first hand. That the deceased was just about to finish crossing the road to go to their work station at the car wash when the appellant’s vehicle driven at high speed from Ukunda towards Diani Beach direction and overtaking another knocked the deceased down. The impact threw the deceased up in the air and he came down with a force and hit the ground thereby sustaining grave injuries. The appellant who was the driver of the vehicle did not leave the scene. PW 1 said that he was so horrified seeing the deceased lying on the ground. The deceased was then taken to Diani Beach hospital and later transferred to Msambweni County Referral hospital.
6. In-cross examination PW 1 said that the accident vehicle was in its rightful lane and was not overtaking another.
7. The respondent gave evidence that she was a wife of the deceased and they had one daughter. They were wholly dependent on the deceased’s income of KShs 1500/= per day at the car wash and they had lost that support after his demise. She had spent money on the medical attention for the deceased before he passed on and also on funeral arrangements. She produced various documents which were not contested, to support her case.
8. The appellant gave evidence as DW 1, Alose Johnstone Kivuli. His evidence was that while driving on the said road, the deceased suddenly darted across the road from the left side in an attempt to cross to the other side. DW 1 tried to brake and to avoid knocking the deceased down but that was not possible. He therefore blamed the deceased for the accident.
9. In cross-examination, the appellant conceded that the road is a busy one with pedestrians. He conceded that a driver should be on the lookout but also said a pedestrian should equally be on the lookout.
10. After hearing the case the learned trial magistrate found the appellant wholly liable for the accident. It awarded the respondent damages of KShs 100,000/= each for pain and suffering and loss of expectation of life and KShs 90,500/= special damages for funeral and other expenses. These are not contested. On damages for loss of dependency, the trial court used a multiplier of ¹∕₃ for the award reasoning that the respondent had not proved that she was a wife of the deceased but had proved that the deceased had one child. The court also declined a prayer for KShs 30,000/= as medical expenses for failure by the respondent to support the claim with relevant receipts.
11. Both the appellant and the respondent were aggrieved by the said judgment and appealed to this court as indicated above.
12. The appellant through a memorandum of appeal dated 26/8/2024 challenges the judgment of the trial court praying that the court should apportion liability between the appellant and the respondent and make an award consistent with the nature of injuries sustained by the respondent.
13. In the cross-appeal through a memorandum of appeal dated 28/8/2024, the respondent raised two issues, first the failure by the trial court to make an award for medical expenses and second, the finding that the respondent did not prove that she was a wife of the deceased thereby leading the learned trial magistrate to use a low dependency ratio and thereby making a manifestly low award.
14. The appeal and cross-appeal were heard as one by way of submissions filed by learned counsels for both parties.
15. In his submissions the appellant proceeded to correct his first prayer in the memorandum appeal. The prayer in the memorandum of appeal is that the assessment of quantum by the learned trial court be set aside and substituted therefore with an award “consistent with the nature of injuries sustained by the respondent.” (emphasis mine). In the submission learned counsel states that this court adopts a global figure approach as opposed to the multiplier/multiplicand approach adopted by the trial court in assessing damages for loss of dependency. Unfortunately, the appellant did not amend the memorandum of appeal in order to accord with that submission.
16. Learned counsel for the respondent has countered this submission by urging that they can only submit on the ground as set out in the memorandum of appeal. He has cited the case of Mwazame v University of Nairobi [2024] KEELRC 572 (KLR) where it was stated that the court should only consider the grounds as set out in the memorandum of appeal and not other issues raised in submissions but not forming part of the grounds in the memorandum.
17. I consider this to be a mere technicality that should not hamper this court from considering the substance of the appeal. It is apparent that the drafter of the memorandum of appeal was not keen to check that averment. I find no prejudice occasioned to the respondent by the failure to amend the memorandum to correct that mistake.
18. Learned counsel for the appellant further submits that the respondent failed to prove her case as required by law for various reasons. First, by not producing the police abstract which according to learned counsel not only proves the occurrence of the accident but also the circumstances thereof. Secondly by failing to call the investigating officer and failing to produce a sketch map and investigation diary.
19. Whereas this statement may be partly true to the extent that it is proof of occurrence of an accident, the converse cannot be true. That is, failure to produce a police abstract and call the investigating officer cannot be prima facie evidence that an accident never occurred. There is no need to belabor that issue for instance in this case where the occurrence of the accident is not disputed. Suffice it to say that assuming that the accident was never reported to the police at all, for whatever reason, it would not mean that the accident never occurred and no other evidence would be available to prove that it occurred. Section 143 of the Evidence Act (Cap 80) Laws of Kenya provides that no particular number of witnesses is required to prove a fact. Even so it happens from experience that adequacy of evidence in some kinds of cases may require the evidence of more than one witness, for instance cases where the law itself or judicial practice requires corroboration of evidence. However, this is not one such a case. Therefore, the submission that failure to call the investigating officer to produce the police abstract which would prove that the accident occurred should mean that it indeed never occurred cannot be serious.
20. Learned counsel further submits that the learned trial magistrate failed to consider that the deceased was crossing the road at an undesignated place without a marked pedestrian crossing, that the appellant was driving on his rightful lane and that the accident occurred during the day when visibility was proper and that PW 1 was not clear on the point of impact. However, it is a matter of common knowledge that not all roads in Kenya are marked with points for pedestrian crossing. In this case, it was not shown by the appellant that on this road at that particular place, there was a marked pedestrian crossing point which the deceased failed to use.
21. Learned counsel for the respondent, in response submits that the court should slow in overturning the findings of the trial magistrate on apportionment of liability as such determination is at the discretion of the trial court which had the advantage of seeing, hearing and assessing the demeanour of the witnesses. He submits further that the learned trial magistrate made a proper evaluation of the evidence before it and came to the right conclusion on the issue of liability.
22. Learned counsel for the appellant further submits on the cross-appeal that the learned trial magistrate was correct to find that the respondent did not prove the claim for medical expenses of KShs 30,000/= as there was no receipt to support it.
23. Learned counsel for the respondent on his part submitted citing various authorities that this court should be slow to upset the findings of the trial court both on liability and quantum.
24. Learned counsels filed authorities to support their submissions.
25. The issues arising from the appeal and cross-appeal for this court’s determination are therefore whether the decision by the learned trial magistrate apportioning liability wholly upon the appellant and whether the denial of award of damages for medical expenses and the finding that the respondent had not proved that she was a wife and therefore dependent of the deceased thereby leading the court to adopt a dependency ratio of ¹∕₃ were proper or are for upsetting.
26. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. I am guided in this respect by the cases of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 and Peters vs. Sunday Post Limited (1958) E.A 424. In the later case, it was stated by the Court of Appeal that:
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide ...”
27. The first ground of appeal by the appellant is that the learned magistrate’s finding that the appellant was liable for the accident was in error as there was no evidence placed before the trial court to support that finding and that the court ignored the evidence and submissions tendered by the appellant.
28. In response to the appeal, the respondent submits that the trial court properly evaluated the evidence that was on record and arrived at the correct finding that the appellant was wholly to blame for the accident.
29. I have considered and re-evaluated the evidence tendered at the hearing. In doing so, I am guided by the case of Kiruga vs Kiruga & Another [1988] KLR 348, where the Court of Appeal observed that:-
“An appeal court cannot properly substitute its own actual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand.”
30. Evidence of how the accident occurred was given by two witnesses, PW 1, an eye witness colleague of the deceased and DW 1, the driver of the accident motor vehicle. There are some basic facts which they agreed upon. The deceased was crossing the road at the time. Under the given circumstances, there was no obstruction either for the driver or the deceased not to see the other on the road. There were many pedestrians on the road at the time.
31. PW 1 initially said that the driver was overtaking at high speed and that he was knocked down while he was almost finished crossing the road. But in cross-examination he denied that there was another vehicle on the road and said that the driver was driving on his lane.
32. DW 1 on his part said that the deceased suddenly emerged on the road without warning in an attempt to cross the road and that DW 1 had no other way of averting the collision.
33. That the appellant was driving at high speed was clearly stated by PW 1. But there was no attempt by the defence to counter that evidence. DW 1 only said that the deceased suddenly darted across the road from his (the driver’s) left hand side in an attempt to cross the road and he tried to brake as well as to swerve to avoid knocking down the deceased but that was not possible.
34. The learned trial magistrate considered and weighed the evidence of the two witnesses, evaluated the same and concluded that the appellant was wholly to blame for the accident.
35. Even as there was no evidence on the nature of injuries sustained by the deceased such as an eye witness account or post-mortem form it is apparent that the impact of the vehicle with the deceased was of such a great force that he sustained very severe injuries from which he died afterwards. PW 1 said that the impact of the collision threw the deceased in the air and he came down with force and hit the ground hard. This evidence by PW 1 was not discounted by that tendered by DW 1. It can therefore be safely concluded that the appellant was driving at high speed in the circumstances as was found by the learned trial magistrate.
36. Secondly, it is apparent that the appellant did not keep a proper look out or have sufficient regard for the pedestrians crossing the road at the time. The road was clear with clear visibility at 9.30 a.m. The accident occurred in an area where according to the appellant himself and PW 1 there was heavy human traffic at that time of the day. The appellant was familiar with that area as he used to travel frequently on that road. In these circumstances, it is not unreasonable to expect the appellant to be aware that in that area with heavy human traffic, there definitely were pedestrians using the road. The appellant testified that the deceased all of a sudden darted onto the road from the left side of his car. I find this difficult to accept. That evidence was countered by the evidence of PW 1 who said that in fact the deceased had almost finished crossing the road.
37. But, even if the appellant is given the benefit of his evidence that the deceased suddenly darted onto the road in order to cross, a vehicle driven at a reasonable speed by a driver giving a proper look-out under the circumstances described, the impact of the collision would not have been fatal. Clearly, at the time the appellant drove his motor vehicle along the road in the circumstances set out above, he had an obligation to keep a proper look out for many pedestrians who were using the road at the time. As has been said time and again, he was in charge of a lethal machine under circumstances that required him to be extra vigilante. I find that he failed in his obligation to do so and thereby caused the accident.
38. Therefore, the learned trial magistrate having believed the evidence of PW 1, there was no basis to apportion liability any less than finding the appellant wholly liable for the accident. Consequently, I find that the appeal on liability has no merit and the same fails.
39. Next issue to consider is the finding by the trial court that the cross-appellant/respondent failed to prove her marriage to the deceased and therefore failed to prove her dependency and the mode of assessment of the damages thereunder by the learned magistrate.
40. The issue of proof of marriage and paternity for purposes of dependency under the Fatal Accident’s Act has received varied opinions from the High Court. So far, I have not found a decision on the issue from the Court of Appeal. Some High Courts find that the issue has to be strictly proved by production of documentary evidence while others are flexible to find that where the plaintiff’s oral evidence is not challenged the same is sufficient.
41. In the first line of cases are for instance the one relied on by the learned trial magistrate of Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR) and Cherotich v Anzal Communications Ltd [2024] KEHC 2175 (KLR) where the courts found that dependency had not been proved due to lack of documentary evidence.
42. The other line of authorities has the cases of Esther Chemutai Kibet (Suing as the Legal Representative of the Estate of the Late Joseph Malakwen Bett) v Carbacid (C02) Limited & another [2017] KEHC 7474 (KLR) where the cases of Agnes Bosibori Ogega-vs- Tea Research Foundation & Another (2016) eKLR, and Ann Wangare Mwombe & 2 Others -vs- Peter Mukiri Gateri (2014) eKLR which followed the reasoning that unchallenged oral evidence of marriage and paternity is sufficient to prove dependency. More recently, the High Court following the same reasoning in Nation Media Group Limited v Thuo & another (Suing as the Administrators of the Estate of Josephat Nduati Kungu – Deceased) [2024] KEHC 4058 (KLR) stated thus:
“In the absence of any explanation by the Magistrate, I am at a loss as to how she arrived at her concluding statement that the deceased was unmarried. To me, my independent review of the evidence leads me to the finding that sufficient evidence was presented to support a finding that, apart from his parents, the deceased also left behind a wife and a son and that all four qualified as his “dependents” within the meaning envisioned under Section 4 of the Fatal Accidents Act earlier cited. With due respect, and unless the Appellant’s Counsel does not live in this very society, his submission that evidence of marriage was not proved simply because no marriage certificate was produced cannot be a serious one. The same goes to the allegation that paternity of the 1-year-old son was not proved simply because no birth certificate or notification of birth were produced. In any event, it must always be recalled that in civil cases, unlike in criminal proceedings, proof is not on a beyond reasonable doubt basis, but on the basis of balance of probabilities.”
43. The learned trial magistrate relied on the reasoning in the former line of cases while the learned counsel for the respondent/cross-appellant has brought up the reasoning in the later line of cases. The issue could not have been envisaged by learned counsel at the trial and so they did not make the authorities available to the learned trial magistrate.
44. I am persuaded to follow the later school of reasoning for the reason that in civil proceedings, proof of an issue is on a balance of probabilities and not beyond a reasonable doubt as in criminal cases. The standard of proof on a balance of probabilities has been explained in various decisions. Justice Mativo (as he then was) in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR referred to the decision of Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 which states that:
“The … (standard of proof) … is well settled. It must carry a reasonable degree of probability…If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”
45. In the case of Re H (minors) sexual abuse; standard of proof {1996} AC 563 The House of Lords laid down a series of guiding principles on standard of proof as follows:
a) Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.
b) The balance of probability standard means that the Court must be satisfied that the event in question is more likely than not to have occurred.
c) The balance of probability standard is a flexible standard. This means that when assessing this probability, the Court will assume that some things are inherently more likely than others.”
46. The respondent/cross-appellant presented evidence she was married to the deceased and that they had one child and both were depended on him, which evidence was not challenged. As was held in the Esther Chemutai Kibet case I am persuaded to find that the appellant was a wife of the deceased and she together with their child are dependents, as envisaged under Section 4 of the Fatal Accidents Act, and therefore entitled to an award of damages for loss of dependency.
47. I therefore, with respect, set aside the finding of the learned trial magistrate on that issue and find that the respondent/cross-appellant proved her dependency upon the deceased as a wife.
48. It is the appellant’s contention that assessment of damages for loss of dependency should have been on the global sum approach rather than the multiplier approach. Learned counsel relies on the case of Mwangi (Suing as the administrators of the estate of Peter Maina Mwangi (Deceased)) v Arim [2022] KEHC 3295 (KLR) for that proposition.
49. I am aware that assessment of damages is at the discretion of the trial court. The trial court had before it evidence by PW 1 that he was a workmate of the deceased and they would earn between KShs 1,500/= and KShs 2,500/= per day but that on some days they would go without anything. But he had no document to support that assertion. The respondent then produced evidence that the appellant spent approximately KShs 20,000/= per month on his family. This evidence was not challenged. It was not a case where there was no evidence of income at all as submitted by learned counsel for the appellant. However, the issue is whether this evidence was sufficient. It must be remembered that dependency is a matter of fact which must be proved by evidence. In the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR that:-
“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”
50. From the evidence tendered by PW 1 and the respondent/cross-appellant it is difficult to ascertain with some measure of exactitude what the deceased’s actual income was. In the case of Moses Mairua Muchiri v 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.”
51. To that extend, I agree with learned counsel for the appellant that the global sum approach would be appropriate to apply in this case.
52. Learned counsel for the appellant proposed an award of KShs 700,000/=. He relied on the case of Moses Wetangula & Another v. Eunice Titika Rengetinag [2018] eKLR where a 42-year old retired KDF officer deceased’s estate was awarded KShs 500,000/= for loss of dependency.
53. In a more recent case of Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR, the court on appeal upheld an award of Kshs. 2,000,000/= for loss of dependency where the deceased was 40 years old and had left behind a wife and two young children.
54. Consequently, I find that the trial court’s award of KShs. 1,600,000/= in damages for loss of dependency, where the deceased left a widow and one child, even though based on the multiplier approach was not inordinately high or low an award as submitted by learned counsels for the appellant and respondent respectively hence the appeal and cross-appeal both fail on this ground.
55. I will therefore affirm that award even though by using the global sum rather than the multiplier/multiplicand approach.
56. The claim for medical expenses was in the nature of special damages. I have checked the receipts produced and I have not found any to support the claim. The learned trial magistrate was correct to reject the same. Learned counsel for the cross-appellant has urged the court to adopt the same reasoning as for funeral expenses. However, the reasoning in the cases cited is that these are exceptional instances where special damages would not be supported by evidence such as receipts. In the case of medical expenses, there has to be an explanation why the receipts were not produced. It could be that the bill was paid by a good Samaritan or even by way of insurance and the same is not being claimed. To award that sum would amount to unjust enrichment for the cross-appellant. Therefore, the cross-appeal on that ground fails.
57. In conclusion, I find that other than the finding on the issue of proof of marriage of the appellant to the deceased and the substitution of the manner of assessment of damages for loss of dependency from the multiplier/multiplicand approach to the global sum approach, which in any case have not affected the finding on the damages awarded, the appeal and cross-appeal were not merited and they are respectively dismissed to that extend.
58. For clarity the awards of damages as made by the learned magistrate remain the same.
59. Each party shall bear his/her own costs of the appeal and cross-appeal.
60. Orders accordingly.
61. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 22nd of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Oile (Ms) for Appellant.
Muriithi for the Cross-Appellant/Respondent.
Hud Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.