(From the judgment in Civil Case No. E087 of 2022 delivered on 1st November 2023 by Hon. T. N. Sinkiyian (PM) at Voi Law Courts)
- In a judgment delivered on 1st November 2023, the learned trial Magistrate found 100% liability in negligence against the defendant (now appellant), and awarded damages to the respondents (plaintiff in the trial court) in the following terms:-
“46. Overall awards made
- General damages under Law Reform Act
- Loss of expectation of life Kshs. 200,000/=
- Pain and suffering Kshs. 200,000/=
- Under Fatal Accidents Act. General damages
- Loss of dependency Kshs. 35,000/= x 35 years x 12 x 1/3 = Kshs. 4,900,000/=
- Special damages Kshs. 275,000/=
47. The court enters judgment against the defendant for the awards above in favour of the plaintiffs. The defendant shall bear the plaintiff’s costs of suit with interest.
48. The awards above A & B will earn interest at court rates from the date of this judgment until payment in full. Interest on special damages shall accrue from filing of suit: 31/3/2022 at court rates until payment in full.”
- Aggrieved by the above decision of the trial court, the appellant has come to this court on appeal through counsel Murimi, Mbago & Muchela Advocates, on the following grounds:-
- That the learned trial Magistrate erred in law and in facts in finding the appellant fully liable.
- The trial Magistrate erred in law and facts and misdirected herself in finding the appellant 100% liable notwithstanding the evidence on record to the contrary in a claim of negligence.
- The learned trial Magistrate erred in law and fact in failing to take into account relevant factors evaluating the evidence on record on quantum of damages.
- The trial Magistrate erred to totally disregarding the appellant’s submissions and relying entirely on the respondents.
- The learned Magistrate misdirected herself in law by assessing damages that were manifestly excessive and incomparable to the current judicial awards for analogous injuries.
- The Magistrate erred in failing to appreciate and apply the principles applicable in assessment of damages.
- The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Murimi, Mbago & Muchela Advocates for the appellant, as well as the submissions filed by M. M. Uvyu & Company Advocates for the respondent. Both sides relied on decided court cases.
- This being a first appeal, I am reminded that I have a duty to evaluate all the evidence on record afresh and draw my own independent conclusions and inferences – see Sumaria & Another =Versus= Allied Industrial Ltd (2007) 2KLR and Selle & Another =Versus= Associated Motor Boat Company Ltd & Others (1968) EA 123.
- I have to remind myself also that as an appellate court, I should be slow in interfering with the trial court’s discretion in assessing damages unless the award was inordinately high or inordinately low as to amount to obvious erroneous figure – see Butt =Versus= Khan (1982 – 88) KAR. The burden was on the plaintiffs, now respondents to prove their allegations against the appellant. This burden is codified under Section 107 of the Evidence Act (Cap.80).
- This being a civil case, the standard of proof is on the balance of probabilities.
- In proving their case, the respondents called 2 witnesses. PW1 was PC Nicholas Kosgei who was not the investigating officer but produced A police abstract form on the accident, giving particulars of the motor vehicles involved, and the deceased who had died on the spot on the Mombasa – Nairobi highway near Mackinon Road trading centre. It was his evidence that the driver of the vehicle wherein the deceased was a passenger was to blame, and that the police recommended his prosecution by the Director of Public Prosecutions.
- PW2 was James Mulu Mutuku the father of the deceased Fredrick Mutune, whose evidence was that the deceased was a 25 year old form 4 leaver, working as shopkeeper and that he used to give the parents Kshs. 20,000/= monthly and that though he did not have payslips the employer wrote a letter to confirm the said employment and monthly salary of Kshs. 35,000/= He added that the deceased had no family and that they incurred burial expenses.
- The appellant did not tender any evidence at the trial, but parties counsel filed written submissions, with the appellant’s counsel suggesting 50%:50% liability and loss of dependency of Kshs. 7,240.95 x 12 x 15 x 1/3 = Kshs. 434,477/=.
- Having myself evaluated the evidence on record, and the submissions on both sides, both at the trial court and on appeal, I am of the view that the trial Magistrate was correct in finding liability against the appellant at 100% as the deceased was a passenger in the motor vehicle driven by him, and there is no evidence or even indication or suggestion that he contributed to the occurrence of the accident in any way.
- The only mistake of the trial court was to find in the judgment delivered on 1st November 2023 that the appellant’s counsel did not file written submissions, while infact Murimi, Ndumia, Mbago & Muchela Advocates for the appellant filed their submissions on 13th October 2023. From the evidence on record, I uphold the 100% liability in negligence as found by the trial court.
- On quantum of damages, in my view the awards for pain and suffering, and for loss of life expectancy under the Law Reform Act, are within range of recent awards. I will uphold the awards.
- Coming now to the award for loss of life dependency, my considered view is that the evidence on record did not prove a monthly income of Kshs. 35,000/= This is because there was no employment letter, or a payslip, but a letter written after the event which has less weight than a prior employment letter or payslip.
- Though I will not go by the monthly wage of Kshs. 7,240.95 suggested by counsel for the appellant, which must be the minimum wage for a labourer, in my view a monthly wage of Kshs. 18,000/= per month for a Shop Assistant in Mombasa is a reasonable estimate of the monthly income.
- The multiplicand of 35 years for a healthy 25 years old is in my view reasonable.
- I will thus interfere with the loss of dependency award which will now be Kshs. 18,000/= x 12 months x 35 years x 1/3 = Kshs. 2,560,000/=.
- As regards special damages, in my view the special damages awarded were pleaded and proved on the balance of probabilities.
- Consequently and for the above reasons, I uphold liability at 100%, but vary the award of damages and order as follows:-
- Pain and suffering Kshs. 200,000/=
- Loss of expectation of life Kshs. 200,000/=
- Loss of dependency
Kshs. 18,000 x 12 months x 25 years x 1/3 Kshs.2,560,000/=
- Special damages Kshs. 275,000/=
Total Kshs. 3,235,000/=
- The appellant will pay the respondents 50% of the costs of appeal.
Dated, signed and delivered this 7th day of May 2024 in open court at Voi virtually.
In the presence of:-
Alfred – Court Assistant
Ms. Atieno for the appellant
Mr. Ngure holding brief for Mr. Uvyu for respondent