DAVID MWANGI AND A.E TRANSPORTERS LTD AND 1 Others VS LAUREEN MUTHEU MATHEKA AND JAMES MWALIMU NZUI

JUDGMENT

1. On 15/06/2021, the learned trial magistrate in Makindu MCC No. 449/2016 delivered a judgment in which he found the defendant (now appellants) 100% liable for the road traffic accident that occurred on 12/2/2015.
2. In the pleadings, the plaintiff now respondents had sued the defendants seeking general damages under the Fatal Accident Act, and the Law Reform Act for the fatal injuries sustained by Julius Tumbo Mwalimu (deceased).
3. It was their case that on the material day he was riding his motor cycle registration No. KMCV 869Y along the Nairobi-Mombasa road. When he reached Makindu the appellant’s motor vehicle registration no. KBK 447J/ZD 2680 was so negligently driven that it crushed the motor cycle causing the deceased’s fatal injuries from which he died.
4. It was their case too that the deceased was a teacher, upon whose salary the family depended on and they sought damages for loss of dependency.
5. The learned trial magistrate found in their favour and using the pleaded salary of the deceased of Kshs. 23,480/= per month adopted a multiplier of 29 years at 2/3 dependency arriving at the sum of Kshs. 5,447,360/= he added sum of expectation of life at Kshs.100,000/=, pain and suffering at Kshs.10,000/= special damages pleaded and proved at Kshs.550 making a total award of Kshs.5,557,919/=.
6. The record shows that the defence did not avail any oral evidence in defence but relied on the judgment in the Makindu MCTRC NO. 5 of 2015 Republic –vs- Elijah Njugi – where the learned trial magistrate found the accused not guilty of the charge of causing death by dangerous driving. (My concern is that the copy of the judgment in the record of appeal is mostly it is faint, illegible, uncertified and does not even bear the name of the magistrate who delivered it.)
7. That besides the appellants were aggrieved by the judgment and filed this appeal on the following grounds: -
8. That the learned magistrate erred in law and in fact in failing to consider the evidence submitted by the appellants.
9. That the learned magistrate erred in law and in fact in finding the appellants wholly liable for the accident and in ailing to apportion liability.
10. That the learned magistrate erred in law and fact in assessing damages for loss of dependency by adopting an erroneous multiplicand and multiplier.
11. Parties agreed to canvass the appeal by way of written submissions.
12. I have carefully perused the rival submissions, the authorities cited and the evidence on record in the subordinate court.
13. The issues for determination are whether the learned magistrate erred in his findings, on liability and quantum.
14. It is not in dispute that in exercising the appellate jurisdiction, as the 1^st appellate court, this court is bound to consider the evidence afresh, review it, re-analyse it and draw its own conclusions – always bearing in mind that I never saw nor heard the witnesses. This was laid down in Selle & Anor –vs- Associated Motor Boat Company Ltd & Others (1968) E.A 123 among other authorities cited by the appellant. I am properly guided
15. On liability it was submitted for the appellant   that the trial court did not give weight to the evidence on record and should have taken the evidence of the eye witness with a pinch of salt.
16. This is a good place to review the evidence – PW1 was not at the scene – and only spoke of what she heard. PW2 was the police officer who produced the police abstract which indicated a road traffic accident between motor vehicle registration no. KBK 447/2D 2680 and motor cycle KMCV 869Y whereby there was a fatality with resepct to Julius Tumbo Mwalimu. PW3 was Joshua Munene Kinyili who testified that he witnessed the accident, his contacts were taken by the police – but he was never called by the police to record a statement or testify in the traffic case. He described how the accident happened – that the appellant’s motor vehicle was overtaking and swerved onto the side where the motor cyclist was riding – hitting the motor cycle – which fell and the motor vehicle crushed he cyclist and the motor cycle with its rear wheels.
17. This testimony was not received in the traffic court neither did the owner of the lorry testify to controvert the evidence. In the traffic case the lorry was found to have some blood stains and brain  matter, and although the same could not generate sufficient DNA to match that of the deceased in that case,  that was evidence that the lorry (appellant’s motor vehicle) had been in contact with a human being and not in a good way. Hence the fact that the accident happened is not in dispute only that the defence did not give its side of the story.
18. It was argued by the appellants that the acquittal of the driver in the traffic court ought to have counted as his defence. However, there are two different standards of proof between the criminal matter and this matter. One requires proof beyond a reasonable doubt, the other proof on a balance of probabilities; In the criminal traffic matter he was charged with causing death by dangerous driving. In this tortious claim he is being accused of driving the lorry in a negligent manner causing the accident that led to the death of the deceased herein.
19. On the issue of negligence, the evidence of PW3 was not controverted as nothing was placed before the court to show that he was an untruthful witness and that his evidence could not be believed.
20. The defence cited the respondent’s witness one Sammy Mutuku Kioko in the traffic case – and the findings of the trial magistrate. However, the proceedings of that traffic matter were not placed before this court so that the court could read for itself what this witness was alleged to have stated before the court.
21. In any event with respect to this case and this court’s finding, of facts in issue and the facts in the subordinate court, the Court of Appeal inChemwolo & Another vs- Kubende (1986) KLR, the had this to say:-

" ...it was not correct for the learned judge to refer to Mr. Chemwolo's conviction because section 47 A of the Evidence Act (Cap 80) declare that where a final judgment of a competent court in criminal proceedings has been declared any person to be guilty of a criminal offence, after the expiry of the time limited for appeal, judgment shall be taken as conclusive evidence that the person so convicted was guilty of that offence. It follows that in the civil proceedings which are contemplated, Mr. Chemwolo's conviction will be conclusive evidence that he was guilty of carelessness..."

1. The Court proceeded to note that conviction for the traffic offence did not determine the issue of negligence on the part of either of the parties The Court stated-

"...it was not for the trial judge to read proceedings in the traffic case as if the evidence recorded there was the final position in the case. Not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well-known that both parties to an accident might have driven carelessly and each could be convicted to careless driving for their respective types of carelessness..."

1. Hence the Respondent was only expected to establish negligence on the part of the respondent’s driver and that was clearly done by PW3. Thereafter the driver was bound to give an explanation , as stated by the Court of Appeal in Embu Public Service Ltd –vs- Riimi (1968) E.A page 22:

Where the circumstances of the accident give rise to the inference of negligence, then the defendant in order to escape liability has to show that there was a probable cause of action which does not connote negligence or that the explanation for the accident was consistent or with an absence of negligence”.

1. The defendant in this case did not give any evidence to escape liability. Doing so and being held accountable to do so does not shift the burden of proof. I am in agreement with the submissions of the appellant that the burden of proof never shifted to the appellant.  In

Michael Kariuki Muhu –vs- Charles Wachira Kariuki & Another (2015) e KLR the court stated:

“Applying the above law to the appeal herein, it is clear that the burden of proving liability for the occurrence of the accident in question, which accident from the evidence adduced in the lower court is not denied save for the manner in which it occurred, lay with the appellant throughout the trial and it never shifted to the respondents who had no counter claim in the suit against the appellant.

1. The appellant faced with the evidence of PW3 –ought to have challenged that evidence. As it is, it remains uncontroverted, and for this case, demonstrates the negligence on the part of the driver and without any challenge I found no reason to disturb the trial court’s finding on liability
2. On quantum,  two arguments were proposed by the appellant :–
3. That the deceased’s salary as presented did not factor PAYE. The respondents answer was that the salary at 24,000/= does not attract PAYE. There was no counter argument to this.
4. That the trial court ought to have factored in the   vicissitudes of life in that there was no guarantee that the deceased would have worked up to the age of 60 years. The Appellant urged the court to review the multiplier to 15 years instead of 29 years applied by the trial court. They cited Roger Dainty –vs- Mwinyi Omar Haji & Anor (2004) e KLR where deceased was 27 years and the court applied multiplier of 10 years.
5. The respondents relied on John Paul Lubalo Were (deceased) 2010 e KLR where the court used 29 years for a 31 year old;  Dismas Muhami Wainarua –vs- Sopon Kasirimo Morants (suing as the administrator of the estate of of Partinini Sopon (deceased) [2021] e KLR where the deceased was aged 24, and was awarded 30 years.
6. The Respondents urged the court not to disturb the lower court’s decision on quantum.
7. I have perused the authorities cited by the respondents – in Dismas Muhami – the issue was the 2/3 multiplicand the 31 years’ multiplier was not contested. In John Paul: the court was of the view that the retirement age of 60 years was fair and common place for a “person of the status of the deceased” – who was a clerk.
8. For the appellant the Court of Appeal in Roger Dainty clearly indicated that when it comes to multiplier there is no hard and fast rule as loss of dependency is a fact to be determined by the trial court.
9. In this case, PW1 told the court that the husband would give her Ksh/= 6000/= per month and cater for the needs of the 3-year child and he also supported his parents. It is now settled that it is the norm in our society for children to support their parents even when they have families of their own. That would appear to come close to the 2/3 dependency ratio that is commonly used in our jurisdiction.
10. I am persuaded that in calculating loss of dependency it is also necessary to factor the vicissitudes of life and the learned trial magistrate ought to have taken that into consideration. To that end I would set aside the multiplier of 29 years and substitute it with 24 years.
11. In the end, the appeal is partially successful.
12. Judgment is entered for the appellants in the following terms: -

Liability: - 100%

Loss of dependency: 23480x24x12x2/3= Ksh 4,508,160

loss of expectation of life- Ksh 100,000

Pain and suffering Ksh 10000

Special damages – Ksh 550

Total Award- 4,618,710

Plus, costs and interest at court rates.

Right of Appeal 30 days

Dated signed and delivered virtually this 13^th day of May 2023

……………………………………………………………….

Mumbua T Matheka

Judge