ELEASE LIMITED VS PAUILINO KITHAKA KITHINJI AND JACLINE MWENDE KITHAKA

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CIVIL APPEAL NO. E156 OF 2023

ELEASE LIMITED………………….…………………..……APPELLANT

VERSUS

PAULINO KITHAKA & JACKLINE MWENDE KITHAKA

(Suing as Administrators of the Estate of the late

TIMOTHY MWANIKI KITHAKA) ………..………1^ST  RESPONDENT

LIQUID TELECOM ……………………………….…2^ND RESPONDENT

(Being an Appeal from the Judgment of Hon. B. Ojoo (CM) in Mavoko MCCC. No. E228 of 2021delivered on 31/5/2023)

JUDGMENT

Brief Facts

1. The Respondents (Plaintiffs before the trial court) instituted a suit as the legal Administrators of the Estate of the late TIMOTHY MWANIKI KITHAKA (deceased) vide a Plaint dated 07/4/2021 for damages, costs and interest for fatal injuries sustained in a motor vehicle accident that occurred on 26/11/2019.
2. The Respondents averred that on 26/11/2019, the deceased was lawfully and carefully crossing Nairobi-Mombasa Highway within Mlolongo at a pedestrian point, when motor vehicle registration number KCN 438C was so recklessly and carelessly driven, controlled and/or managed that the same was allowed to knock down the deceased and the result was fatal as the deceased succumbed to the injuries.
3. By an Amended Statement of Defence dated 06/09/2021, the Appellant (Defendant before the trial court) denied the Claim and pleaded contributory negligence against the deceased.
4. The matter proceeded for hearing.
5. Upon considering the parties pleadings, evidence and submissions, the Trial Court entered judgement in favour of the Respondents and against the Appellant in the following terms;
6. Liability 70:30 in favor of the plaintiff against the defendant
7. Pain and suffering Ksh.200,000.00/ =
8. Loss of expectation of life Ksh.200,000.00/ =
9. Loss of dependency Ksh.3,000,000.00/ =
10. Special damages Ksh.117,420.00/ =
11. Total Ksh.3,517,420.00/=
12. Less 30% contribution

Total award Ksh.2,462, 194.00/ =

1. The Appellant being aggrieved by the whole of the said judgment lodged this appeal raising 9 grounds of appeal basically challenging liability and quantum.
2. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 26/4/2024 whilst the Respondents submissions are dated 14/10/2024.

Appellant’s Submissions

1. On the issue of liability, the Appellant submitted that, in her testimony, DWI, Jackline Mwende stated that the deceased was crossing the road at Nairobi-Mombasa Road when he was knocked down.
2. The investigation report produced by the Appellant indicated at page 3 of the said report that 120 meters from the scene of the accident was a pedestrian crossing from which the deceased and PW2 would have crossed the road. The said report at page 11 further indicated that no charges had been preferred against the driver of KCN 438C in relation to the said accident.
3. Notably, there was no zebra crossing or indication to show that the area was a legally designated crossing path for pedestrians. From the DWI testimony, it was clear that the deceased crossed and/or attempted to cross at an undesignated place where there was no zebra crossing.
4. The deceased, being a pedestrian, owed a duty of care to himself and other road users for ensuring the road was clear before crossing the road, a duty which he breached.
5. The Appellant reiterated the position on page 157, paragraph 20 of the record of appeal wherein the trial magistrate, while quoting the case in Zarina Akbarali Shariff &another vs Noshir Pirosesha Senthna & Others (1963) opined that:

"it is expected that Pedestrians would exercise precaution while crossing or walking on the road. "

1. That it is evident that there were no negligent actions and or commissions attributable to the Appellant. If anything, the Respondent could not pin point any evidence to support their averments that the Appellant was driving at an excessive speed, negligent or any other allegations as in the plaint.
2. From the foregoing, the Appellant invited this court to find that the trial magistrate erred in apportioning liability at 70:30 against the Appellant. In the circumstance, such apportionment is too high noting that the deceased disregarded his own safety and causing the said accident.</><> >> ></><><>" ></></><><>>>><>>>>> ></><><>" >></><><> >></><><>“ ></></><><>><>>>. ><>>> ></><><>"></><><>></><><>"></><><> ></><><>></><><> ></></><><>>> >> ></><><>" ></><>><><>>> ></><><>“ >></><><>></><>><><>> > >></><>"<>></><><> ></></><>><><>>>><>><>>>></><>"<>></><>< >><><>>> >> ></><><>" ></></><><>>>> > >(>, ><>></><>< > ><>><> </><>><><>>>>> ></><><>"... ></><><> >><>><>><>><>><>>>><>>>><> >>><>>>></><>><> ><><>></><><>></><><>>> >> ><>>> ><>><>><>><>><>><>>>></></></><> </><><>><>><>>>><>>>></></></><> </><><>>> (><>>>></></></><> </><><>>> ></><> •  ><> </><>•    ><> </><><>>> >> ><>><>> > ></></></><> </><><>>> ></><> </><><>></><> </><><>></><> </><><>>> >>>, > ></><><><>“></> </><>>>><><><>></></><> </><><>>> >> ></><><><>“></><> </><><>></><> </></><> </><><>>> ></><> </><><>>> >> >>/= >. </> </></><><> </></><><>>> >> >: </></><><>> >>></><><>>>, >>, >>></><> </><><><>> ></><><>>>, >>, >>></><> </><><>>> </>> </>><><><>> ><> </></><>“> </></><><>></><><><>>, >></></><><>“</>>> >> >>>“>[>>.”  </><><>> </><><>>>, ></><><> >> >> <>>. </></><> </><><>>> >> >> ><>>> >> <>>></><><>“<>></></><><><> </></></><>> > ><>“<><>></></><>><>; “></></><> </><><>>> ><>></>. ></><> </><><>>> ></><><>></><><>>> <>[>, ></><><>“></><><>< id>I have perused the Record of Appeal, considered and weighed the evidence that was adduced and rival submissions on the appeal and I now proceed to determine the appeal herein.
3. The issues for determination in this appeal are as follows:
   • Whether the trial learned magistrate applied the correct principles of law and available facts in apportioning liability.

• • Whether the learned trial magistrate applied the correct principles of law and available facts in assessment on damages payable to the Respondent.

Determination on liability

1. The claim herein being an action for negligence, like in all civil litigation, the burden is always on the Claimant to prove that the Respondent was negligent.
2. I have considered the record and at paragraph 7 of the Amended Statement of Defence, the Appellant pleaded and contended that the accident was caused solely or substantially contributed to by the deceased and the particulars are set out thereof. The Appellant also denied the claim for the reasons that it is the deceased who was inattentively crossing the road at undesignated crossing area for pedestrians without taking any reasonable steps or measure to ensure his safety.
3. PW2 testified that indeed on 26/11/2019, the deceased was involved in a fatal road traffic accident while crossing Mombasa Road at a usual pedestrian crossing point at Mlolongo.  That the accident occurred along Mombasa Road at a usual pedestrian crossing point at Mlolongo when motor vehicle registration number KCN 438C which approached at such a high speed, failed to stop /slow down to give the deceased ample time to cross the road thereby knocking him down. He blamed the driver of motor vehicle registration number KCN 438C for carelessly and recklessly driving the said vehicle and causing the death of the deceased.
4. DW1 testified stating how the accident occurred and the element of contributory negligence clearly comes out.
5. In the case of Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, the Court held as follows:

“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury.  In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:

“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.  For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”

1. On whether the deceased is liable for contributory negligence. The law on contributory negligence is to apportion proximate cause and blameworthiness where appropriate.  In De Frias v Rodney 1998 BDA LR 15 it was held as follows:

“Contributory negligence required the foreseeability harm to oneself.  A person is guilty of contributory negligence, if she ought reasonably to have foreseen that if she did not act as a reasonable prudence person she might be hush and in reckoning must take into account the possibility of others being careless.  All that is required here is that the plaintiff should have failed to take reasonable care for her own safety.  I do not find that the plaintiffs conduct was in any way contributory negligence. In the agony of the circumstances, she made an unsuccessful attempt to avoid the collusion.”

1. What the above principle attempts to explain is that the negligence calculus is a framework for a trial court faced with such situational analysis to decide what precautions the reasonable person would have taken to avoid the harm.   The classic definition of negligence given by Alderson B in Blyth vs Birmingham Waterworks Co. [1843 – 60] ALL ER 478

“Negligence is the omission to do something which a reasonable man, guided upon those considerations with ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

1. In my view negligence and contributory negligence comes in infinite forms and would therefore depend on a case-to-case basis. Furthermore, once the Plaintiff has established a prima facie case showing the Defendant is guilty of negligence the onus to discharge that burden in rebuttal rests with the defendant.
2. In the instant case the Defendant/Appellant pleaded and contended that the claim was denied for the reasons that the Appellant who was inattentively crossing the road at undesignated crossing area for pedestrians without taking any reasonable steps or measure to ensure his safety. The Appellant also testified stating how the accident occurred and the element of contributory negligence clearly comes out.
3. Pursuant to the foregoing, this court does not find any reason to disturb the finding of the trial court on contributory negligence at 70% against the Appellant and 30% against the Deceased.

Determination on quantum

1. The fact of the matter of assessment of damages is purely at the discretion of the trial court of facts.  The idea that an appellate Court would fundamentally differ with the trial Court is neither here nor there.  That is the attention of the principle in Loice Kagunda v Julius Gachau Mwangi CA 142 OF 2003 the Court of Appeal held that:-

“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence a appellate Court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons make a wholly erroneous estimate of the damages suffered.  The question is not what the appellate Court would award but whether the lower Court acted on the wrong principles.” (See Mariga v Musila {1984} KLR 257).

1. Under the Law Reform Act, the Respondent adduced evidence that the deceased was aged 37 years old and had a young child aged 7 years. That he was in good health and provided for his family physically, emotionally and materially. According to PW1, the family has been robbed of a central pillar and the deceased’s child has lost the opportunity to enjoy nurture by his father. That barring the oddities in life, the deceased still had many more productive years.
2. For pain and suffering
3. Pain and suffering is an award meant to compensate for pain endured by a person before death. On pain and suffering, the trial court awarded Kshs.200,000/=. The Respondent proposed Kshs.600,000/= whilst the Appellant proposed Kshs.50,000/=. There is no dispute that the accident occurred on 26/11/2019 and the deceased died on 14/12/2019 about 28 days after which was a prolonged period and must have endured immense pain.
4. I will therefore not disturb the trial court’s finding under this head.
5. I am persuaded by the finding in the case of Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (suing as the Legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR where Muchemi J. stated: -

“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs.100,000 while for pain and suffering the awards range from Kshs.10,000 to Kshs.100,000 with higher damages being awarded if the pain and suffering was prolonged before death”.

1. Loss of expectation of life
2. The Respondent trial court awarded Kshs.200,000/= under this head and relied on the case of Moses Akumba & Another v Hellen Karisa Thoya (2017) eKLR where the court held that an award of Kshs.200,000/= for loss expectation of life for a deceased who was a fisherman was not inordinately high, in the cases of Patrick Kariuki Muiruri & 3 Others v AG (2018) eKLR the court made an award of Kshs.200,000/= under this head and in Vincent Kipkorir Tanui (Suing as the personal Representative of the Estate of SKT(Deceased) v Mogogosiek Tea Factory Co. Ltd & Anor (2018) eKLR an award of Kshs.200,000/= was made.
3. I have considered the authorities that were relied upon by the trial court under this head and I find them to be applicable and persuasive to the instant case. Similarly, I will uphold the award of Kshs.200,000/= under this head.
4. Loss of dependency
5. Under the Fatal Accident Act, the deceased was aged 37 years old and had a young child aged 7 years. That he was in good health and provided for his family physically, emotionally and materially. According to PW1, the family has been robbed of a central pillar and the deceased’s child has lost the opportunity to enjoy nurture by his father. That barring the oddities in life, the deceased still had many more productive years. The Respondents’ counsel submitted that the deceased would have worked up to the age of 65 years and longer noting he was working in a private setting.

They relied on the case of Melbrimoinvestment Company Ltd vs Dinah Kemonto & Anor (2022) eKLR.

1. The 1st Respondent submitted that the deceased was aged 37 years old and was a businessman making Kshs.30,000/= per month though no document was adduced to support the claim. That he would have worked up to the age of 65 years. The 1st Respondent relied on a multiplicand of Ksh.30,000/= and a multiplier of 26. It was thus proposed that loss of dependency should be calculated as follows:

Kshs.30,000 x 26 x12 x 2/3  = Ksh.6,240,000/=.

1. On the other hand, the Appellant placed reliance on Labour Institutions Act Regulation Wages (General) (Amendment) Order, 2018 which provided for monthly minimum wage for general labour outside the municipalities as Ksh.7,240.95. It was thus proposed that loss of dependency should be calculated as follows:

Kshs.7,240.95 x 13 x 12 x 1/3 =Ksh.376,529.40

1. The Appellant further submitted that in view of the passage of time on the precedent they had cited, the evidence on record and taking into account considerations of vastitudes of life and inflation, Kshs.426,529,40. Would be commensurate and substantive compensation.
2. I note that the Appellant did not show how he arrived at the proposed award of Kshs.426,529.40 as loss of dependency. It is my view that the same was misplaced and unsubstantiated.
3. The Appellant proposed a dependency ratio of 2/3. On multiplicand, the Appellant proposed Kshs.7,240.95 as per the Regulation of Wages (General) (Amendment) Order 2018 for a general laborer. On multiplier, the Appellant submitted there was no evidence to show the deceased was in good health. They therefore proposed 20 years taking into account the uncertainties of life relying on the case of Mariera vs Nzuki & Anor (2021) KEHC and Haji Ashraf & Anor vs Sidi Masha Kalama & Another (2021) eKLR.
4. On this head of damages, the trial magistrate stated that as regards assessment of loss of dependency where proof of earning is non-existent the emerging jurisprudence is as was illustrated in the Court of Appeal decision of Jacob Ayiga v Simon Oboyo (2005) eKLR where the court stated as follows:

“We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the Respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed”

1. The trial magistrate also cited the case of Joseph Mwangi Wanyeki v Alex Muriithi Muchoki & Anor (2019) eKLR where R. Nyakundi enunciated the principle thus:

“The mere fact that the deceased earnings from farming activities and boda boda business was not supported by actual receipts and other accountable documents does not mean it is a speculative compound as an estimate of the loss suffered by virtue of his death. I do not subscribe to the narrative that an approach on assessment on damages on loss of dependency is a question of mathematical precision.”

1. Therefore, in determining the loss of dependency, lack of proof of deceased’s earning is not fatal to the claim as the court has discretion to apply the above principles to base such calculations on global sum approach to award what is appropriate. Needless to add that assessment of damages is a discretionary judicial function within the laid down settled principles. The court remaining faithful to the doctrine of stare decis, the assessed amount need only be reasonable in the circumstances of the case. In this case, the Plaintiff’s evidence that the deceased supported his family was not controverted. On the other hand, the 1st Plaintiff’s claim that the deceased supported her and their father, 2nd Plaintiff, was outrightly unsupported. The Plaintiff would have adduced such evidence such as documents like Mpesa statement to make the claim believable. All the same, in an African set up, children as expected to take care of their old or aging parents and younger siblings by providing for them materially from time to time. That would have been the likely scenario here. In the upshot, the trial magistrate observed that this was a fit case to apply the global sum approach. Doing the best she could and considering all factors, she found that an award of Kshs.3,000,000/= for loss of dependency would suffice.
2. I have considered the trial court’s judgment under the head of loss of dependency. The court applied the global approach and awarded a figure of Kshs.3,000,000/= but did not elaborate on the global approach. She did not give any multiplicand or cite any cases that guided her in reaching the finding save for the authorities she cited which basically dealt with instances where no proof of earning was available at all. The trial court’s finding on loss of dependency was therefore erroneous estimate of compensation and has to be disturbed
3. On the above award this court is guided by the principles applicable to an assessment of damages under the Fatal Accidents Act which were enunciated in the case of  Odera v Adoyo & another (Suing as the Legal Representatives of the Estate of Vincent Ochieng Adoyo - Deceased) (Civil Appeal 13 of 2020) [2023] KEHC 17962 (KLR) (30 May 2023) (Judgment) which referred to the case of Richard Matheka Musvoka & another v Susan Aoko &  (suing as the administrators ad litem of Joseph Onyango Owiti (Deceased)) (2016) eKLR where J. Ringera stated as follows:-

"The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants."

1. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed Vs Kayuma Mvurya & Another [2017] eKLR as follows:-

“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.”

1. I find that the dependency ratio of 1/3 is reasonable considering that the deceased died at the age of 37 years and was not married although he left behind a young child of tender age and elderly parents who relied on him for care. The Respondent submitted that the deceased was a businessman making Kshs.30,000/= per month though no document was adduced to support the claim. I will thus adopt a multiplicand of Ksh.30,000/= per month. I am guided by the case of Mwita Nyamohanga & Another V Mary Robi Moherai Suing on Behalf of The Estate of Joseph Tagare Mwita (Deceased) & Another [2015], where Hon. Justice Majanja (as he then was) held that:

“As concerns the estate of Stephen Nyamohanga, the learned magistrate relied on the Regulation of Wages (General Amendment) Order to determine the multiplicand.  In my view, this was an error as the deceased’s wife testified that he earned Kshs.9,000/= per month. 

1. The multiplier is the number of years that the deceased would have gainfully income earning engagement. The deceased was engaged in private business would have been expected to be so engaged up to the age of about 65 years. In this case, I find it prudent to apply a multiplier of 23 years.
2. This court is inclined to disturb the trial court’s award under this head by adopting a multiplier of 23 years as opposed to the trial court’s blanket award of Kshs.3,000,000/= as follows;

Kshs.30,000 x 12 x 23 x 1/3=Kshs.2,760,000.00

1. As regards the award special damages, the trial court awarded Kshs.117,420/= which amount was pleaded and proven by receipts in the same amount. These include:
2. Motor vehicle Search     Ksh.       500.00
3. Letters of Administration Ad Litem Ksh.  15,000.00
4. Hospital and Funeral expenses  Ksh.100,195.00

Total     Ksh.117,500.00

1. The trial magistrate stated that, Advocate fees and hospital expenses, the Respondent adduced receipts. For funeral expenses, PW1 admitted that they did not have all the receipts. However, it is not disputed that the deceased was buried. In deed, in spite of lack of receipts, this court ought not to turn a bling eye to the fact that there were funeral costs incurred as a result of the burial of the deceased and the magistrate cited the case of Estate of MMM (Deceased) v Chairman Board of Governors [xxx] Boys   High School (2018) eKLR. The question rather was whether the amount claimed was reasonable which the magistrate was of the considered opinion was just and reasonable for burial expenses.
2. On special damages, the Appellant relied on the case of Bonham Carter (supra) and  submitted that of the documents filed by the Respondent, only the payment of motor vehicle search and costs of ><>>> ><>>> >> ><>><><>><><>></><> ></><><>><><>></><> ></><><>><><>></><> ></><><>><><>></></><><>></></></></><>        <>><><>></></><><><><><>><><>></><> ></><><>></><><>></></></></><><>></><>>> ><><> ></><><> ></><>>> ><><>></><>><>><>>