(Being an appeal from the Judgment of the Hon. L.Wachira(CM) delivered on 14TH October,2021 in CMCC/91/2010)
BACKGROUND INFORMATION
1. By way of a plaint dated 15th May, 2020 the respondents sued the appellant seeking general damages under both the Law Reform Act and the Fatal Accidents Act, Special damages of Kshs.76,575, and costs and interest of the suit. In the plaint, the respondents pleaded that on 16th November 2019 the deceased was lawfully a pedestrian beside the road along Nairobi -Thika road at Kwa Kairu area when motor vehicle Reg. No. KCQ 313D Toyota S. Wagon was so carelessly, negligently and/or recklessly driven without any due care regard and/or attention by the Defendant or his authorized driver, servant and/or agent that he lost control of the vehicle, veered off the road and hit the deceased causing him to sustain fatal injuries. Consequently, the plaintiffs have suffered loss and pain.
2. The appellant filed his statement of defence dated 7th July 2020 in which the appellant denied allegations set out in the plaint. The appellant stated that the accident occurred when the deceased negligently and recklessly, without exercising due care and caution dashed into the highway attempting to cross it and knocked himself against the oncoming motor vehicle registration number KCQ 313D. The appellant also set out particulars of negligence on part of the deceased under paragraph 4 of the plaint.
THE EVIDENCE
3. In seeking to prove their case, the defendants/respondents gave evidence and called two other witnesses. PW1 PC Rashid Wesonga of Juja Police Station produced a police abstract of accident that which occurred on 16.11.2019 involving a pedestrian Vincent Muirui Kamu at Kwa Kairu area was hit by motor vehicle KCQ 233 ToY Rumio and he died and the accident was reported at Juja. He stated Sgt Kioko investigated the case. The driver of KCQ was to blame for the accident. He stated there is a Zebra crossing at the area and the rules is that drivers should slow down.
4. On being cross examined he stated the police abstract shows DW1 and he does not know if the driver was charged because he was not the investigating officer. He stated he was not able to trace the OB entry and he does not have the file and the abstract shows pending under investigation.
5. Pw2, Pauline Nduta Muthuyo testified that she sells vegetables and live at Juja. She testified that she was telephoned by a number and told about the accident. The deceased was her late husband and he died in a road accident. She testified that the deceased was a driver and he would make about Kshs.35,000/= per month and he was the bread winner. PW2 stated that deceased took care of housing and school fees. She stated they incurred loss as a result of his death. She stated that she spent on the funeral and produced Receipt and copy of records exhibit 5a and 5 b. She stated that the search show the owner and they buried the deceased as evidenced by receipt exhibit 6 and pray for damages for the death of her husband.
6. During Cross examination Pw2 stated that she works but she has a small child and she cannot work well. She confirmed that deceased was a driver and he would deal in stones and sand and ballast. PW2 stated it was casual job and he was working not every day and she does not have anything to show the earnings and he did not have a payslip.
7. Pw3, Joseph Muthondu Gitonga testified that he is a driver and testified that on material date he was at the stage at Kwa Kairu when vehicle KCQ 313 D came and the deceased was also at the stage. He stated that the vehicle came and went off the road and knocked the deceased. He testified that he knew the deceased and called the family and informed them. He testified that he blames the driver of KCQ 313 D because he drove carelessly and at a high speed.
8. On being cross examined he confirmed that he was at the stage with the deceased and him was not hit because he was a distance from deceased. He stated that Vincent did not do anything. He stated further that there are no barriers at the area and there were no people at the stage.
9. During the defence hearing, Dominic Mwangi, the appellant herein testified as DW1 and did not call any witness. He testified that he did not veer off the road and he was on the inner lane of Thika super highway. He testified that he was never on the service lane. He stated further that there are 2 lanes on the service lane and there is a stage. He testified that he was not on the outer lane of the superhighway and there was no other vehicle involved in the and the deceased was the only one who was hit.
10. DW1 testified the barriers are between the two lanes of the superhighway and where DW1 was and on the service lane there is no barrier. Dw1 testified that the pedestrian did not do anything to avoid the accident and he did not see the deceased appear. It was DW1 testimony that deceased appeared suddenly while running to cross the road and he applied emergency breaks but deceased hit his vehicle from the left side. Dw1 testified that there was nothing he would have done to avoid the accident. Dw1 testified that there is no pedestrian crossing or fly over and people are tempted to cross or run across the road. He stated that he was not careless and that if he was careless he would have hit other vehicles.
11. During cross examination DW1 confirmed that he was on the inner most lane and there were vehicles beside him, front and behind. He testified that the two vehicles were on his left, and the deceased came from the left. He confirmed that the accident occurred and his speed was 60-70 kph. DW1 confirmed that the deceased died on the same day.
At the conclusion of the trial, the trial court delivered a judgement dated 14th October,2021 in which it entered judgement against the appellant as follows; Liability
80: 20 for the plaintiff as against the defendant
QUANTUM
Pain and suffering Kshs 20,000.00
Loss of Expectation of life Kshs 100.000.00
Loss of Dependency Kshs 3.257,496.00
Special Damages Kshs 49,250.00
Total Kshs 3.426,746.00
20% contribution Kshs 685.349.20
Award!
Kshs 2.741.396.80(Two Million, Seven hundred and Forty-One Thousand, Three hundred and Ninety-Six Shillings and Eighty cents only. The Plaintiff is also awarded costs of the suit and interest on the general damages at court rates.”
12. Being aggrieved by the judgement dated 14th October 2021 specifically on finding on liability and award on loss of dependency the appellant filed this instant appeal vide a Memorandum of Appeal dated 12th November,2021 raising 13 grounds of appeal as follows;
i. The Trial Court erred in fact and in law in finding the Appellant 80% liable for the suit accident whereas there was ample evidence that the deceased caused the suit accident when he negligently attempted to cross the road.
ii. The finding of liability by the Trial Court is erroneous in law and in fact as the Court placed an unreasonable burden of care on the Appellant despite the negligent conduct of the deceased.
iii. The Trial Court erred in unjustifiably disregarding the evidence by the Appellant on how the suit accident occurred.
iv. The Trial Court took into account irrelevant matters and failed to take into account relevant matters in determining liability for the suit accident.
v. The Trial Court erred in not taking into account the fact that the general damages would be paid in an accelerated lump sum that can be invested to earn interest for the duration of dependency.
vi. The Trial Court erred in not considering that the quantum of damages of Kshs. 3,257,498/- invested at a current rate of 7% per annum would earn interest of Kshs. 228,024.72 yearly i.e., Kshs. 19,002.06 monthly whereas the court had based the deceased’s income on a monthly wage of Kshs. 13,512.90 x 2/3 = Kshs. 9,008.60.
vii. The Trial Court erred in unjustly enriching the Respondents by Kshs. 9,993.46 monthly i.e., Kshs. 19,002.06 less Kshs. 9,008.60.
viii. The Trial Court erred in not considering that apart from the Respondents being benefited as regards monthly income of Kshs. 9,008.60 the whole amount of dependency of Kshs. 3,257,496 instead of being extinguished at the expiry of the 30 years multiplier will remain intact for the dependents for life.
ix. When assessing damages for loss of dependency, the Trial Court erred in applying an exceedingly high multiplier of 30 years.
x. The Trial Court did not take into account the damages for loss of expectation of life when assessing damages for loss of dependency whereas the said sums would go to the same dependents.
xi. The Trial Court therefore erred in awarding general damages that were excessive and disproportionate.
xii. The Trial Court erred in disregarding the defence.13. The Trial Court erred in not giving reasons for condemning the Appellant to pay full costs of the suit despite finding that the deceased was negligent and caused the suit accident.
It is therefore proposed to ask this Honourable Court for these orders:That the Judgment and Decree of the Trial Court be set aside and/or be varied as the Court deems just. That the Appellant do have costs of this Appeal and costs of the suit before the Trial Court.
By consent of parties this appeal was canvassed by way of written submissions. The parties filed their respective submissions which I have carefully analyzed and considered and case law in support.
APPELLANT’S SUBMISSIONS:
13. The appellant submitted through Mr.Kamau who submitted that liability ought to have been apportioned at the ratio of 100% on the deceased. Appellant submitted that the deceased was the main cause of accident. The Appellant submitted that the deceased was running across the highway and he appeared suddenly. Appellant submitted that while travelling at a speed of between 60 and 70 KPH, which is below the statutory maximum speed of 110KPH, the appellant could not do much to avoid the deceased hence the accident. The appellant proposed that this court finds the deceased 100% to blame for the same. The appellant submitted that the trial court failed to considered how the deceased should have acted to avoid the accident. It was submission of the appellant that the appellant being in control of a vehicle was not the only factor to be considered in apportioning liability. The appellant place reliance on the case in Masembe v Sugar Corporation and another[2002]2 EA 434.
14. The appellant submitted on the assessment of general damages for loss of dependency that the trial court erred in not considering the fact that the general damages would be paid in an accelerated lumpsum that can be invested to earn interest for the duration of dependency.
15. The appellant submitted that trial court erred in not considering that apart from the respondents being compensated as regards monthly income of Kshs.9,048.60 the whole amount of dependency of Kshs.2,605,996.80 instead of being extinguished at the expiry of the 30 years multiplier, will remain intact for the dependants for life.
16. The appellant submitted that PW2 testified that she was a businesswoman selling vegetables and therefore was not wholly dependant on the deceased. He submitted that a ratio of 2/3 used was too high and proposed a ratio ½ because the deceased’s wife also contributed to their family’s sustenance. The appellant submitted that a multiplier of 30 years was too high and he proposed a multiplier of 25 years. The appellant submitted that loss of dependency to be worked out as follows;Kshs.13527*1/2 *12*25=Kshs.2,029,050/=
17. The appellant submitted that the trial court erred in not giving reasons for condemning the appellant to pay full costs of the suit despite that the deceased was negligent and caused the accident. In conclusion appellant urged this court to allow the appeal with costs.
RESPONDENTS SUBMISSIONS
18. The respondent submitted through Ms.Gathoni who submitted that the trial court found both parties contributed to the occurrence and using its discretion to award liability at a ratio of 80:20.
19. The respondent submitted on Multiplicand that there is no dispute that the deceased was a hard-working young man who was supporting his family. The respondent submitted that deceased died at 26 years and with his nature of work, the deceased could have worked past age of 60 years and thus there was no need of proof. The respondent relied on the case in Kabarnet Civil appeal No.8 of 2019 and Kemfro Africa Limited t/a Meru Express Services & Another Versus A.M. Lubia & Another (1985) Eklr. The respondent submitted that the appeal lacks merit and should be dismissed in entirety.
ANALYSIS AND DETERMINATION
20. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify.
21. It is clear that the determination of the appeal revolves around the question whether the appellant proved his case on the balance of probabilities on liability, damages on loss of dependency and costs of the suit. The provisions of sections 107,109 and 112 of the Evidence Act, on the burden of proof, were extensively dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
22. The admitted facts are that the deceased was fatally injured by suit motor vehicle registration number KCQ 313D Toyota S.Wagon which was being driven by the appellant at the material time. What is in dispute is apportionment of liability and who was to blame for the accident.
23. The trial court in assessing liability made a finding as follows:
“I will find that the defendant substantially contributed to the occurrence of the accident
20. This is not to say that the plaintiff was without blame. Evidence on record is that the deceased did not do anything as the vehicle approached.
21. Further the witness tells court that the decreased was waiting to cross the road. It is therefore likely that he was already on the road and was knocked down while crossing as testified by the defendant. The court is of the view that the deceased also partly contributed to the occurrence of the accident.
ln the circumstances, I will find that both parties contributed to the occurrence of the accident and use my discretion to apportion at the ratio of 80:20 for the plaintiff as against the defendant.”
24. I find that whichever way the accident occurred, the appellant had the duty to exercise care and attention, as a driver of a motorised vehicle in order to injuring other road users. The court takes judicial notice that the accident occurred within on highway and where the law limits speed at 60kph yet the PW3 testified that the appellant came driving at a high speed. That is another evidence of unreasonable conduct. Doing or failing to do what a reasonable would not do or do in the circumstance is what the law terms negligence.
25. In Masembe v Sugar Corporation and Another [2002] 2 EA 434, it was held that:
“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster that will permit his car at any time to avoid anything he sees after he has seen it… A reasonable person driving a motor vehicle on a highway with due care and attention, does not hit every stationary object on his way, merely because the object is wrongfully there. He takes reasonable steps to avoid hitting or colliding with the object.”
26. Applying the foregoing principle to the facts of this case, I find that there was sufficient evidence that the appellant failed in his expectation as a reasonable driver and should not have been wholly absolved from liability in the causation of the accident and injury to the deceased. I note the court also apportioned liability of deceased at 20% on grounds that he did nothing to prevent the accident from evidence adduced in court. Having set the above I find that the trial court did not error in apportionment of liability at 80:20 and therefore this court will not interfere with the discretion of trial court on liability.
27. On whether the trial court erred on awarding damages under the head of loss of dependency. It is the appellant submission that the trial court used a wrong multiplicand that was excessively high in awarding damages under this head.
28. I have considered the rival submissions on the quantum of damages, the authorities cited by the Appellants and Respondents in their submissions. Further, in dealing with an appeal on quantum I stand guided by the decision of the Court of Appeal in Bashir Ahmed Butt V Uwais Ahmed Khan [1982-88] KAR 5 where the court held that;
“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a Figure which was either inordinately high or low”
29. I have analyzed evidence on record and I note that according to the death certificate produced in court, the deceased was aged 26 years at the time of death. The deceased was married at the time of his death. The retirement age of civil servants generally is 60 years. Having been in the informal sector, he would probably have worked to past the legal age of retirement.
30. From my re-evaluation of the evidence, I find that the learned trial magistrate referred to the relevant evidence on record. That said, it is for me to determine whether the award was reasonable. In this instant case, the trial court used a multiplier of 2/3 and computed the damages as follows; loss of dependency will be as follows 30 × 12 × 13.572.90 × 2/3 =3,257,496.00. I find that the trial magistrate properly exercised her discretion in awarding damages under this head and therefore this court will not interfere with the damages as awarded.
31. I find that none of the grounds raised were proved and accordingly I dismiss the appeal with costs to the Respondent.
32. The costs of the appeal are assessed at an all inclusive sum of Ksh 150,000
DATED, SIGNED AND DELIVERED VIRTUALLY THIS------30TH------- DAY OF JULY 2024
WENDY . KAGENDO
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT…………….
FOR THE RESPONDENT--------------------
COURT ASSISTANT----------------------