AMOS ROTICH AND JOHN MWANGI KAGWAI VS ELIZABETH WANJIKU NJENGA AND JOHN KIBATHI NJENGA

1. The Appeal and cross appeal herein arise from the same trial court case. After the appellants (defendants in the lower court case) filed their memorandum of appeal, the respondents (plaintiffs in the lower court case) sought and were granted leave to file the cross-appeal in the appeal. The case thus proceeded as one.
2. The respondents herein sued the appellants for compensation for special and general damages under the Law Reform Act (Cap. 26) Laws of Kenya for the estate of the deceased and under the Fatal Accidents Act (Cap. 32) Laws of Kenya for the dependents.  They pleaded that the deceased was a pedestrian along the Southern By-pass at Njathaini area when the accident leading to his demise occurred. They blamed the accident on the negligent and careless manner that they claimed motor vehicle registration number KBD 132U was driven by the authorized driver, employee or servant of the appellants. The vehicle was registered in the name of the 1^st appellant with the 2^nd appellant being the beneficial owner or person in actual possession, use and control of the vehicle. The damages were claimed for the estate of the deceased which suffered loss and damage as a result of his demise.
3. In their joint statement of defence dated 10/1/2018 the appellants denied the claims and in the alternative blamed the deceased for having wholly or substantially contributed to the accident.
4. After hearing the case the learned trial magistrate entered judgment on liability in the ratio of 50:50 for both parties and awarded the deceased’s estate damages as follows:
   1. Loss of dependency     Kshs   4,680,000/=
   2. Loss of expectation of life   Kshs      100,000/=
   3. Pain and suffering      Kshs        50,000/=
   4. Special damages      Kshs      151,800/=

Total      Kshs    4,981,800/=

1. After applying the ratio of contribution on liability the same came to KShs 2,490,900/=. There was no award for costs.
2. The appellants were aggrieved by the said judgment and appealed to this court through a memorandum of appeal dated 19/12/2018 on 8 grounds which I will collapse into three as follows:-
   1. The learned magistrate’s finding that the appellants were liable for the accident was in error, unjust and against the weight of the evidence, based on misguided points of facts and wrong principles of law, the magistrate having failed to consider the appellant’s evidence and submissions.
   2. The learned magistrate unduly disregarded the appellant’s submissions and judicial authorities and relied on the respondents’ authorities which led him to award excessive damages.
   3. That the award of KShs 4,981,000/= damages was excessive and not supported by evidence.
3. The appellants therefore pray that this appeal against the judgment of the trial court be allowed, and the said judgment be set aside and the same be assessed afresh and the appellants be awarded costs of the appeal. Finally, that the court may grant further orders as it may deem fit.
4. In the cross appeal, the respondents have raised only one ground of appeal faulting the learned trial magistrate for apportioning liability equally between the deceased and the appellants against the weight of the evidence adduced by the respondents and in the absence of evidence from the appellants.
5. The court gave directions that the appeal and cross-appeal be canvassed by way of written submissions but only the respondent filed their submissions. The appellants did not. I have duly considered the respondents submissions.
6. The issues arising from the appeal and cross-appeal for this court’s determination are therefore the liability of the parties for the accident and whether the award of damages for dependency was justified or improperly made.
7. 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. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
8. At the trial, evidence for the respondents (then plaintiffs) was tendered by three witnesses; PW 1 PC Anthony Gituya from Kiambu Traffic Base who was the investigating officer, PW 2, Elizabeth Wanjiku Njenga, the mother of the deceased and the 1^st appellant herein and PW 3, Nicasio Kimani Njau an eye witness.   
9. The eye witness, PW 3 adopted his witness statement dated 16/10/2017 as his evidence in chief and also testified and was cross-examined. His evidence was that the deceased crossed the road at the designated crossing point but on the extreme left of the road, the accident matatu was overlapping, driving off its lane and driving fast when it hit him with its front left side. The impact caused the windscreen and front left headlight of the matatu to be smashed. The deceased was pushed to the front of the matatu while his cap lay a short distance behind. The driver moved a short distance ahead, then took off on foot abandoning the matatu at the scene. Many people, including PW 3 ran to where the deceased person lay. PW 3 identified the deceased as a person known to him as they stayed in the same neighbourhood.
10. Shortly after the accident, administration police officers from Njathaini post arrived at the scene followed by Traffic police officers. The traffic police officers took measurements of the scene and the accident vehicle was towed to Kiambu police station. The traffic police officers also removed the body of the deceased from the scene in the presence of the mother of the deceased who had arrived and was known to PW 3.
11. PW 2 on her part also adopted her witness statement dated 16/10/2017 as her evidence in chief and also testified in court. She said that she went to the scene upon being notified by a neighbour. She found the body of her son, the deceased lying there with his cap dropped a short distance from it. She covered the body with her loin cloth (lesso). Police officers arrived shortly and begun their investigations and removed the body to the mortuary in her company. While she was at the scene, PW 3 who was there informed her how the accident had occurred.
12. PW 1, the investigating officer said that he got information of how the accident occurred from the statement of the driver of the matatu. He said that it could not be proved that the driver of the matatu caused the accident.
13. The appellants did not call any witness at the hearing.
14. Upon considering the evidence tendered, the trial court found the deceased and the appellants to equally blame for the accident and apportioned liability in the ratio of 50:50. He assessed and awarded the plaintiff’s damages as follows:
    1. Loss of dependency     Kshs   4,680,000/=
    2. Loss of expectation of life   Kshs      100,000/=
    3. Pain and suffering    Kshs        50,000/=
    4. Special damages      Kshs      151,800/=

Total         Kshs  4,981,800/=

Less contribution   KShs 2,490,900/=

Net award    KShs 2,490,900/=

1. The first ground of appeal by the appellants is that the learned magistrate’s finding that the appellants were liable for the accident was in error, unjust and against the weight of the evidence, based on misguided points of facts and wrong principles of law, the magistrate having failed to consider the appellant’s evidence and submissions. I will consider this ground of appeal alongside the ground of the cross-appeal by the respondent faulting the learned trial magistrate for apportioning liability equally between the deceased and the appellants against the weight of the evidence adduced by the plaintiffs and in the absence of evidence from the defendants.
2. In response to the appeal, the respondent submits that the trial court properly evaluated the evidence that was on record and that the appellants did not tender any evidence and therefore cannot be heard to complain that their evidence was not considered.
3. I have set out above the evidence of the respondents on how the accident occurred. That evidence was not challenged at all.
4. But the trial court found that no clear evidence was brought before the court as to how the accident occurred. In evaluating the evidence, the trial magistrate placed much reliance on the evidence of the investigating officer even after finding that he never produced the measurements and sketch plans of the scene to aid the court in determining how the accident might have occurred.
5. Having found that there was no such evidence to aid the court in arriving at a fair determination, the trial magistrate went ahead and relied on the evidence of the investigating officer where he stated that the point of impact was on the left lane of the road as you face Ruiru direction and that the driver was on his lawful lane at the time of the accident contrary to the evidence of PW 3 that the vehicle was overlapping and being driven on the pavement. The trial magistrate went further to find that the deceased must have decided to cross the road without seeing the accident motor vehicle and thus contributed to the accident.
6. I find that the trial magistrate misapprehended the facts as presented before him in the evidence of PW 3 and PW 1 in arriving at that finding that there was no clear evidence before the court on how the accident occurred.
7. First, PW 3 strikes me as an honest witness who was not motivated by any ulterior motive such as gain in giving his evidence. He was present on the road at the time. He clearly saw how the accident occurred and he was consistent throughout on what he witnessed. The deceased had crossed the road using the designated pedestrian crossing to the end and was off the motorized lane when the driver of the matatu in a rush to beat the traffic overlapped another vehicle, meaning he used the wrong side and he was off his lawful lane and in the process knocked down the deceased.
8. Now there is no explanation why the investigating officer failed to bring the legends, measurements and sketch maps, if he prepared any, to court as evidence. Is it the case that if he did so, it could not have supported his allegation that the driver of the vehicle was not to blame for the accident? I dare say it is highly so. This is because, whereas the mother of the deceased was at the scene with PW 3 who told her how the accident had occurred, there is no indication that the investigating officer sought information from the mother, who would have referred him to PW 3 to explain how the accident occurred. In other words, he did not seek for evidence of an eye witness, yet there was one if not so many. He then failed to produce in court his own evidence of investigations at the scene in the form of legends, measurements and sketch maps. Yet the trial court went ahead to rely on his evidence, casting doubt on the evidence of PW 3, an eye witness to the accident. I find that in doing so, the trial court failed to take into account relevant evidence that had been tendered by the respondents to support their case at the trial. In doing so, it fell into error.
9. In considering the evidence tendered at the trial, I find that there is overwhelming evidence from an eye witness, PW 3 that the driver of the accident vehicle was not only negligent but reckless in his manner of driving. He drove off the road on the pavement, overlapping other vehicles obviously at a speed that was too fast in the circumstances and thereby caused the accident and failing to give due regard to pedestrians on the pavement and also at the pedestrian crossing. On his part, the deceased had used a designated point to cross the road and had successfully done so when he was knocked down.
10. The investigating officer relied on the statement of the driver of the vehicle which obviously would be in favour of the driver, unlike the poor deceased who had no tale of his own. Fortunately, there was someone else in the name of PW 3 who clearly put across the deceased’s story because he witnessed it first-hand. I find therefore that the evidence of the investigating officer was completely unreliable in light of the credible and unchallenged evidence of PW 3.
11. Accordingly, I find and hold that defendants/appellants herein should wholly bear the blame for the accident. I set aside the finding of the trial court on liability and substitute it with a finding of 100% liability against the defendants/appellants in this appeal.
12. The appellant has raised a dispute over the trial court’s assessment of quantum of damages and only on the issue of dependency. The appellants’ contention is that the deceased did not have any children and therefore the alleged dependents were not eligible for an award of damages under the Fatal Accidents Act.
13. Learned counsel for the respondent supports the assessment of damages by the trial court indicating that the court made a detailed analysis of the evidence and arrived at a reasoned decision.
14. The trial court considered the fact of dependency and the age of the mother of the deceased and arrived at a finding that dependency had been established to be KShs 15,000/= per month. Learned counsel submits that the award made is not so manifestly excessive as to be erroneous and thus warrant and interference by this court.
15. At the trial, learned counsel for the defendants/appellants herein submitted correctly in my view that the court should consider the work of the deceased as having been casual worker as indicated in the certificate of death produced in court as exhibit. I also note that the same was also from the evidence of his mother, PW 2.
16. Learned counsel for the appellants proposed a multiplicand of KShs 10,000/= as the minimum monthly wage of a casual worker at the time and a multiplier of 16 years based on the age of the deceased’s mother at 60 years at the time and a dependency ratio of ¹∕₃.
17. Learned counsel for the respondents on their part proposed to the court to adopt a multiplicand of KShs 24,000/= as the deceased’s earnings per month, a multiplier of 27 years and a dependency ratio of ²∕₃. As to the multiplier of 27 years learned counsel submitted that the deceased who died aged 30 years was subject to the government retirement age at 60 years. The respondents relied on the case of Wilson Nyamai Ndeto & another v China Wu Yi Limited & another [2017] eKLR where the High Court used a multiplier of 27 for a deceased who died aged 30 years.
18. The trial court in this case applied a multiplier of 26 years and following the Wilson Nyamai case above and I find no reason to disturb that finding.
19. On the dependency ratio, the evidence on record is that the only person who qualified to benefit as a dependent of the deceased was his mother since an award for loss of dependency is for the benefit of the deceased’s dependents who are defined under section 4(1) of the Act as the wife, husband, parent and child whose death was caused.
20. Dependency is a question of fact to be established in each case as per the evidence adduced by the parties. The plaintiff in the trial court must adduce evidence to establish the fact and extent of dependency. For instance, in the case of James Mukolo Elisha & Another vs. Thomas Martin Kibisu (2014) eKLR the Court of Appeal set aside an award under Fatal Accidents Act as dependency was not proved.
21. Opinion in the High Court judges is divided on whether dependency ratio where the deceased is unmarried ought to be ½ or ¹∕₃. There are various decisions which support a dependency ratio of ½ where the deceased was not married and without children but was supporting his parent or parents.
22. In Joseph Ndirangu Thuo & Another v Kamau Ngugi (Suing as legal representative and administrator of the estate of Peter Waweru [2019] eKLR the Court used a dependency ratio of ½ for an unmarried lady and cited various other cases in that line.
23. Similarly, in Steve Ongingo & Another v Susan Adongo Otieno & Another [2018] eKLR the Court used a dependency ratio of ½ where the deceased was unmarried. Also, in Attorney General v Savinah Francis (Suing as the personal representative of the estate of Peter Muse Muema [2020] eKLR the Court used a dependency ratio of ½.
24. The trial court reasoned that the deceased’s mother having stated explicitly that her son was sending her KShs 15,000/= per month, then that was the correct multiplicand to apply in the case since there was no evidence to controvert hers. This amounted to applying a dependency ratio of just about half. I find no reason to disturb that finding and I similarly adopt the same.
25. The evidence of the deceased having been a casual worker should have led the trial court to adopt the minimum wage as proposed by learned counsel for the defendants/appellants herein since the allegation that he was earning KShs 26,000/= per month or about KShs 1,000/= per day was not supported by any documentary evidence.
26. According to the Regulation of Wages (General) (Amendment) Order, 2015 published under the Labour Institutions Act in the Kenya Gazette under Legal Notice No.117 of 2015 pp. 188-190, the correct minimum wage at the time was KShs 10,107.10/=.
27. Taking all the foregoing into account, I see no reason advanced to deviate from the multiplier of 26 years used by the trial court. I would retain the same.
28. Accordingly, the calculation of dependency would be:

KShs 10,170.10 x 26 x 12 x ½ = KShs 1,586,535.60

1. There was no dispute on the award of damages for loss of expectation of life, pain and suffering and special damages and I have no reason to disturb them. They remain as awarded by the trial court.
2. The award by the trial court on loss of dependency having been set aside and substituted with KShs 1,586,535.60, the following is the final award by this court:

Loss of dependency      Kshs   1,586,535.60

Loss of expectation of life    Kshs      100,000.00

Pain and suffering       Kshs        50,000.00

Special damages       Kshs      151,800.00

Total Award       Kshs  1,888,335.60

1. Consequently, judgment is entered for the respondents against the appellants in the sum of KShs 1,888,335.60 together with interest at court rates.
2. Each party won an aspect of the appeal and cross appeal and I consider this to be a proper case in which to order each party to bear its own costs.
3. Orders accordingly.

Dated and Delivered at Kiambu on the Virtual Platform Teams this 13^th Day of June, 2024.

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