THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E069 OF 2022
I SPY AFRICA LIMITED………......................….........………………1ST APPELLANT
DAVID MWALUI…………………….....…........…………….…………2ND APPELLANT
VERSUS
EUNICE WANJIRU KANJA and MARY WANGARI NJUGUNA
(Suing as the administrators to the estate of the late
JOHN MBAU MBUGUA- Deceased) ………………………......….…. RESPONDENTS
(Being an Appeal from the Judgment and Decree of Hon. E. Olwande (CM) in Mavoko PMCC. No. 745 of 2020 delivered on 28/4/2022)
JUDGEMENT
By a plaint dated 25th September 2020, the Respondents (Plaintiffs then) sued the Appellants (Defendant then) as the legal representatives of the estate of JOHN NJAU MBUGUA who died in a road accident on 23rd November 2017 claiming damages under the Law Reform Act and Fatal Accidents Act. The Respondents’ case was that on the material day, the deceased was a pedestrian along Mombasa-Nairobi highway at All Parking stage when the 2nd Appellant negligently dove the 1st Appellant’s motor vehicle registration number KCG 767A that he caused the same to violently knock down the deceased causing him fatal injuries. The Respondents blamed the 2nd Appellant for the accident and they gave the particulars thereof in paragraph 5 of the Plaint. They held the 1st Appellant vicariously liable for the accident.
By Statement of Defence dated 2nd November 2020, the Appellants (Defendants before the trial court) denied the Claim and pleaded contributory negligence against the deceased and they gave particulars thereof at paragraph 5 of the Statement of the Defence. They also denied the particulars of loss and damage and put the Respondents to strict proof.
The matter proceeded for hearing when the Respondents called three witnesses while the Appellants called one witness.
PW1 the 1st Plaintiff testified and relied on her witness statement filed as her evidence in chief. In her statement she stated that the deceased was her son and that he was employed as a matatu conductor in the Nairobi-Kitengela route. She narrated how on 23/11/2027 she was informed of the accident by her daughter-in-law and Co-plaintiff. She went to Shalom Hospital where she found the deceased then injured and undergoing treatment. The deceased eventually succumbed to his injuries on 25/11/2027. She stated that as a result of the death of the deceased she has lost his support both emotionally and financially. She stated that the deceased was earning Kshs.30,000/= and had a young wife and three children.
In cross examination, she stated that the deceased was her first-born son and that when she went to see him in hospital, he was conscious but in serious condition. She confirmed that she had obtained the Grant to file the suit and that at the time of preparation of the Death Certificate she was not asked the occupation of the deceased.
PW2, the 2nd Plaintiff also testified and relied on her witness statement as her evidence in chief. She stated that the deceased was her husband and was the sole bread winner of their family. She was informed of the accident on 23/11/2027 through a phone call by one Elijah Ngigi Kihia. She called her mother-in-law and informed her of the same and they both went to the hospital where the deceased had been taken. They found him undergoing treatment. They decided to transfer him to Kenyatta Hospital as the injuries were quite serious but unfortunately, he succumbed to his injuries on 25/11/2017. She stated that the deceased left behind five dependents being herself, her mother-in-law, and three children. She stated that that his death had caused them untold emotional and financial suffering. She produced the exhibits listed of the List of Documents as PExt.1 to 8 in the order they were listed. She sought for damages.
In cross examination she stated that she does casual jobs and that the deceased was a conductor earning Kshs.30,000/= per month. She could not tell who gave the details that were filled in the death certificate. She could not tell who was blamed for the accident.
PW3 Elijah Ngugi Kihia witnessed the accident. He relied on his witness statement as his evidence in chief. In his statement he narrated how the accident happened. He stated that on the material day, he was driving a matatu and the deceased was his conductor. At Mlolongo at All Pack Stage, they dropped a certain woman who had a child and luggage. The deceased assisted her cross the road and on returning back to the vehicle he was hit by the accident vehicle. He was hit just as he had finished crossing the road. The impact threw the deceased to the side of the road.
The accident vehicle stopped about 30M ahead after hitting the deceased. Him and the driver of the accident vehicle took the deceased to Shalom Hospital. He then called the wife of the deceased and informed her of the accident. They transferred the deceased to Kenyatta National Hospital.
PW3 identified the Plaintiff’s as the mother and wife of the deceased. He stated that he worked with the deceased for about 1 year before the accident and that the deceased was earning Kshs.30,000/= per month. He blamed the driver of the accident vehicle for speeding. He stated that All Pack stage has many people but it was not busy as it was 3.00PM. He stated that the speed at which the driver was driving was too high for the area. He maintained that if the driver was doing a speed of 30-40km/h the accident would not have happened.
In cross examination PW3 stated that he has been a driver for 20 years and the road where the accident happened is a busy highway. He stated that the recommended speed in the area should be about 30km/h. He stated further that there was no vehicle nearby when the deceased started to cross and that he was hit when he had finished crossing the road.
At this point of video clip was played for the witness and he admitted the deceased emerged from in front of a truck and he was running as he crossed the road. He admitted that the deceased could not see the oncoming vehicle on the second lane and that it was not safe for the deceased to cross when the second lane was not visible to him.
In re-examination, he stated that the deceased could be seen when he was almost crossing the road. He stated that the camera of the video caught his image in front of the vehicle hence it means the deceased was in front of the vehicle could be seen.
DW1 was the driver of the accident vehicle on the material day. He relied on his witness statement as his evidence in chief. He stated that he was driving from the Mlolongo weigh bridge towards Industrial area. There was a lorry in front of him and a matatu parked on the shoulder of the road. The lorry suddenly moved to the outer lane where they were to the inner lane without indicating. As he moved at a fairly slow speed, the deceased suddenly emerged running in front of the lorry. On seeing him, he applied emergency brakes and swerved to the left. Unfortunately, he hit him slightly on the side and threw him off the road as he attempted to jump.
DW1 produced documents in his list of exhibits as DExts.1-4. The said exhibits included a video clip from a camera on the dashboard of his vehicle which showed hoe the accident happened. He stated that the maximum speed allowed in a built-up area is 50km/h and he was doing a speed of 40-45km/h.
In cross examination, he admitted that he had no evidence to show what speed he was doing. He also admitted that the clip does not show the speed he was doing. He stated that there was a truck in front of him. He admitted that the deceased was not hit by the truck but by the left side of his bonnet. He stated that the deceased was about 2M ahead when he saw him. He stated that his ability to see was limited to his lane and he did not expect that someone would have emerged from that part of the road because there was an oncoming vehicle.
Upon considering the parties pleadings, evidence and submissions, the trial magistrate analysed that DW1 was driving at a considerably high speed considering that the place was a matatu stage with a lot of movement of pedestrians and vehicles. If DW1 was driving at a speed of 40-45km/h as he alleged, he should have been able to stop the vehicle before hitting the deceased. The fact that he was unable to stop the vehicle even though it took a few seconds for the deceased to run across the width of the vehicle and the fact that he hit him with such impact as to cause fatal injuries indicates that DW1 must have been driving at a high speed.
However, the trial magistrate also found that the deceased could not escape blame since the place where the accident happened was a busy road with several lanes, it was not wise or prudent of the deceased to cross the road in front of a large vehicle when he could not see which other vehicles could possibly be on the other lanes. The basic rules of crossing the road as per the Highway Code require that a pedestrian first looks right and left to ensure that there is no vehicle on the road that poses a danger to him as he crosses the road. Sine he obviously could not see the outer lane because of the lorry that was obstructing his view, it was not proper for him to cross to the road at that time.
From the above analysis, the trial magistrate found the 2nd Appellant was to blame for causing the accident by driving at a high speed considering the circumstances of the road where the accident happened. The deceased was also to blame for crossing the road when his view of the entire road was obstructed. Consequently, the trial magistrate found the 2nd Appellant 70% to blame for the accident and the deceased 30% to blame,
On quantum of damages, the trial magistrate found that the same is payable under the Law Reform Act and the Fatal Accidents Act under the heads of Pain and suffering, Loss of expectation of life, Loss of dependency and special damages.
On pain and suffering, the trial magistrate observed that the deceased died two days after the accident. Counsel for the Appellant submitted for Kshs.50,000/= and relied on the case of:
FMM & Anor v Joseph Njuguna Kuria & Anor (2016) eKLR.
Frankline Kimathi Baaru & Anor v Philip Akungu Mitu Mborothi (2020) eKLR.
DMM (Suing as Admin of the Estate of LKM) v Stephen Johana Njue & Anor (2016) eKLR.
Counsel for the Appellants submitted for Kshs.200,000/= and relied on the case of Alexander Okinda Anangwe (Suing as the Admin of the Estate of Patricia Kezia Anangwe) v Reuben Muriuli Kahuha & Others NRB HCCC 1550/2005.
The trial court observed that the fact that the deceased died after (two) 2 days is an indication that he must have endured a considerable amount of pain and therefore the case of FMM and Frankline cited by the Appellants. Relying on the same and after taking into account the efflux of time, the trial magistrate was of the view that Kshs.100,000/= for pain and suffering would be adequate compensation.
On Loss of expectation of Life, the trial magistrate observed that courts usually award a conventional figure under this head bearing in mind the age of the deceased. The deceased dies at a youthful age of 34 years. He had his whole life ahead of him. This life was cut short by this accident. Counsel for the Appellant submitted for Kshs.100,000/= and relied on the cases of :
Wangare v Nkaru (2014) eKLR
Joseph Njuguna Mwaura (Suing as Admin for the Estate of Ann Nduta) v Builders Den Ltd & Anor (2014) Eklr
Joseph Kingori Wandurwa Loise Karimi Nyaga (2021) eKLR
Counsel for the Respondents on the other hand submitted for Kshs.300,000/= and relied on the case of George Moga v Nairobi Women’s Hospital & 3 Others (2015) eKLR. Having perused the cases cited by both Counsel, the trial magistrate found the same to be useful guides and proceeded to award Kshs.150,000/= under this head after taking into account the efflux of time.
On Loss of dependency, the trial magistrate observed that the court had to calculate the loss suffered by the dependents of the deceased taking into account his age, earnings and dependents. The deceased dies at the age of 34 years. The Respondents stated that the deceased was employed as a Matatu conductor a fact which is not disputed by the Appellant. The Respondents stated that the deceased was earning Kshs.30,000/= per month. There was no evidence of this. It was not lost on the trial court that in most cases those who are employed in the informal sector like the deceased was usually do not have their earnings documented in any manner. However, it is not disputed that he was gainfully employed and, in the circumstances, he must have been earning something.
The trial court being guided by the case of Beatrice W. Murage v Consumer Transport Ltd & Anor (2014) eKLR where the court held that:-
“Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wage”
The position has been buttressed in many other cases. The trial court therefore relied on the minimum wage as at the time of the deceased met his death to determine the earnings of the deceased. The minimum wage for the bus conductors in the year 2022 for a person who works within the city metropolis was Kshs.10,994 and Kshs.23,067. The trial court applied a wage of Kshs.20,000/= on consideration that at the age of 34 years, the deceased cannot be said to have been just starting out on his job.
As for the multiplier, the Appellants proposed a multiplier of 17 years while the Respondents proposed a multiplier of 32 years. In the trial court’s view, the deceased could have worked as a Matatu conductor till the ripe age of retirement that is 60 years and maybe beyond as is common with those employed in the informal sector. However, after considering the fact that the deceased could have died sooner from other causes, the trial magistrate found that a multiplier of 24 years would be fair and reasonable.
It was not disputed that the deceased was married and had children. His mother also testified that he used to help her. The trial court was of the view that a dependency ratio of 2/3 to be applicable
The award was calculated as follows:-
Kshs.20,000 x 12 x 24 x 2/3 = Kshs.3,840,000/=
30. In respect to special damages, the Respondents claimed for Kshs.112,991/= as follows:
Medical expanses Kshs.25,691.00
Post Mortem Kshs. 5,000.00
Morgue Charges Kshs. 6,650.00
Funeral expenses Kshs.25,000.00
Police Abstract Kshs. 100.00
M/v search Kshs. 550.00
Letters of Administration Kshs. 50,000.00
Total Kshs.112,991.00
The trial court observed that the Respondents had only produced in evidence receipts for medical expenses of Kshs.20,841 and Kshs.11,500 for mortuary charges which the trial court awarded.
For the funeral expenses, the trial court was guided by the case of Premier Dairy Ltd v Amarjit Singh Sagoo & Another (2013) eKLR Civil Appeal No. 312 of 2009 where it was stated:-
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to aa bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs.400,000/= was pleaded in the Plaint and witnesses who were the relatives of the deceased testified that they spent much more than this in preparing for and conducting a cremation, the learned judge awarded a sum of Kshs.150,000/= which sum he saw as reasonable and prudent amount to compensate the family for funeral expanses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages”.
The Respondents sought Kshs.25,000/= for funeral expenses which the trial magistrate awarded.
The other special damages were not proved, hence only Kshs.57,341 was awarded for special damages.
The final judgement was as follows:
Liability: 70:30 in favour of the plaintiff against the defendant
Quantum:
Pain and suffering Ksh.100,000.00/ =
Loss of expectation of life Ksh.150,000.00/ =
Loss of dependency Ksh.3,840,000.00/ =
Total Ksh.4,090,000.00/=
Less 30% contribution Ksh.1,227,000.00 =
Net award Kshs.2,863,000.00
The Respondents were also awarded the costs plus interest of the suit.
The Appellants being aggrieved by the whole of the said judgment lodged this appeal raising 17 grounds of appeal basically challenging liability and quantum.
The appeal was canvassed through written submissions. The Appellant’s submissions are dated 08/4/2024 whilst the Respondents submissions are dated 12/07/2024.
Appellant’s Submissions
The Appellants submitted that it is trite law that he who alleges must prove. The cited section 107 (1) of the evidence Act Cap 80 Laws of Kenya which provides that:-
“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
They relied on the case of Eastern produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR where the court stated that the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant.
It was the Appellants’ view that the evidence before the trial magistrate was sufficient to establish the particulars of negligence which were allegedly by the Appellants against the deceased and find him solely liable for the accident. That from the evidence at the trial court there were two eye witnesses in this accident; PW3 and DW1.
There was also a video footage that was taken by the camera on the dashboard of the accident vehicle that was produced by the Appellants as DExt.3 which was played during the trial and showed that the deceased had been running across the road when he suddenly emerged in front of a truck which was driving in the same direction with the Appellant’s car, which was almost side by side with it, at the time of the impact of the accident, which resulted into the death of the deceased.
The Appellants submitted that PW3 during cross examination admitted that the deceased emerged from in front of a truck and confirmed that he was running as he crossed the road. PW3 also confirmed that from the point the deceased started crossing the road, he could not see the oncoming vehicle while in front of the truck or the vehicle on the second lane.
That DW1 on the other hand adopted his witness statement which stated that he was driving from Mlolongo weighbridge towards industrial area. There was a lorry in front of him and a matatu parked on the shoulder of the road. The lorry suddenly moved from the outer lane where they were, to the inner lane without indicating. He stated that he was driving at a fairly low speed when the deceased suddenly emerged running from the front of the lorry. On seeing him, he applied emergency breaks and swerved to the left. Unfortunately, he hit him slightly on the side and threw him off the road as he attempted to jump.
The Appellants submit that from the evidence it is clear that the deceased crossed the road while running and from a point where he could neither see the entire road nor be seen by all drivers and riders on the road. He also crossed at a place that is not a designated pedestrian crossing in utter violation of the rules and guidelines of the Highway Code.
The Appellants cited Clause 5 of the Highway Code which provides for the designated pedestrian crossings. It provides that pedestrians should always cross the road at designated areas such as Zebra crossings, foot bridges and pedestrian underpasses or at areas controlled by traffic Marshalls. Otherwise, they should choose a place where they can see clearly in all directions and move toa space where drivers and riders can see them clearly.
That Clause 5 of the Highway Code further provides for the guidelines on how pedestrians should cross the road. They should look right, look left, look right again then listen before crossing. They should not run. If traffic is coming, they should let it pass look all around again and listen. They should not cross until there is a safe distance in the traffic and one is certain there is plenty of time because even if traffic is a long way off it may be approaching quickly. The pedestrian should only cross if there is no time between the point of crossing and the oncoming traffic. It is strongly emphasized that a pedestrian should not RUN while crossing the road.
It is the Appellants; understanding of the traffic regulations and the provision of the Highway Code that the right of way on any road, is given to motor vehicles. Not pedestrians. The only instance when a pedestrian has a right of way which is considered to be superior to that of any motor vehicle on the road is when the pedestrian is crossing the road on a Zebra crossing which is a designated pedestrian crossing. In that single instance, all motor vehicles on the road are required by law to stop and give way to such a pedestrian. Such Zebra crossing by their obvious white colour markings on the road are so visible from a distance that any motorist is expected to see it at a distance and slow down such that by the time he reaches it, he must come to a complete stop if there is any pedestrian crossing the road.
Where there is no such Zebra crossing, the right of way shifts to the motorists on the road, not the pedestrian. The motorists have the superior claim of being on the road where there is no Zebra crossing, and such a pedestrian must give way for any oncoming motorists, unless and until the pedestrian confirms, by looking to the right, the left and then the right again, and confirming that the road is clear before he can walk across the road, not running as he crosses. Further, the pedestrian should choose a place where they can see clearly in all directions. And move to a space where drivers and riders can see them clearly. This duty on the pedestrian is imposed on him to confirm that all lanes of the road are clear and safe. Not only one lane, such that if in his judgement it would only be safe to cross one lane and the rest of the lanes, would be unsafe, on account of other oncoming motor vehicles in the adjacent lanes, the pedestrian is required to wait until all the lanes are safe before he enters the road.
The Appellants submitted that at the trial court, the deceased did not confirm the road was clear on both lanes nor was there evidence that there was a Zebra crossing where the deceased had crossed which is a designated pedestrian crossing or that he had chosen a place he could see clearly in all directions and moved to a space where drivers and riders could see him clearly as provided by Clause 5 of the Highway Code. That the trial court therefore erred when it found the 2nd Appellant liable for the accident based on the fact he should have been able to stop the vehicle before hitting the deceased. The trial court was in obvious error to have shifted this burden to the 2nd Appellant when the 2nd Appellant had the right of way hence the burden automatically fell on the deceased to prove his claim of right to be on the road either by there being a Zebra crossing or that he had confirmed that the road was clear in both lanes before venturing to cross the road, by walking or that he had chosen a place he could see clearly in all directions and moved to a space where the drivers and riders could see him clearly which he did not do or prove.
The Appellants submitted that the deceased having broken such fundamental rules of the Highway Code, by failing to confirm that the road was clear before crossing, having opted to obviously run across the road, when it was clearly unsafe to do so, and the circumstances of him having been obscured from the vision of the 2nd Appellant immediately before he suddenly emerged, would not give any logical room for holding the Appellnats liable. Had he been walking, it would have been a different story. The pedestrian walking would have given the 2nd Appellant time to see him and take appropriate action to save the situation of harm. Not so, where he was running. it was so momentary fast. The Appellants relied on the Court of Appeal case in Patrick Mutie Kamau & Anor v Judy Wambui Ndurumo (1997) eKLR where the court found the Respondent therein 100% liable and held that pedestrians too owe a duty of care to other road users to move with due care and follow the Highway Code. Clearly, the accident was caused by the Respondent running suddenly across the road without due regard to his own safety and that of others. In that case which was relied on by the Appellants in their submissions the Respondent had crossed in front of a stationary bus without taking any or reasonable steps to ensure that it was safe to do so. The Appellants’ motor vehicle was moving on the said road and hit her since he could not see her emerge from the stationary bus.
Also, the case of Julius Omollo Ochando & Anor v Samson Nyaga Kinyua (2010) eKLR, the High Court found the Appellants not liable and set aside the apportionment of liability of 50%:50%. In allowing the appeal the High Court stated that given the circumstances of the accident, in particular the fact that the Respondent suddenly ran across the road onto the path of the Appellant’s vehicle which was travelling on the main highway, it was difficult to lay any blame on the 1st Appellant. The Court stated:-
“Moreover, the fact that the 1st Appellant was not charged, also negates the Respondent’s contention that the Appellant’s vehicle went off the road and hit him when he was off the road. I find that the evidence which was before the trial magistrate was sufficient to support the defence of the Appellants that the Respondent was hit by the Appellant’s vehicle in the middle of the inner lane, as he crossed the road.(....) therefore, the Respondent was negligent in crossing the road at a point where it was not safe for him to do so (....) on the other hand, the evidence before the trial magistrate was not sufficient to establish any of the particulars of negligence which were alleged by the Respondent against the 1st Appellant. It is true that the 1st Appellant had a lethal machine (vehicle), under his control and that the Appellant’s circumstances of the accident, in particular the fact that the Respondent suddenly ran across the road onto the path of the Appellant’s vehicle which was travelling on the main highway, it is difficult to lay blame on the 1st Appellant”
In view of the above submissions, the Appellants submitted that there was no evidence from the Respondents or their witness to prove how any of the particulars of negligence that they had alleged against the 2nd Appellant that could have attributed to the 2nd Appellant. They averred that the Respondent’s witness, PW3 in his witness statement dated 25/09/2020 and adopted in court stated at paragraph 8 that he had not seen the motor vehicle approaching until he realized that the deceased had been hit. He reiterated this statement during examination in chief and cross examination by stating that he had not observed the state of the road when the deceased was crossing hence, he did not see the motor vehicle registration No. KCG 767A approaching. There was therefore no evidence that the 2nd Appellant was driving at a high or excessive speed. The Appellants relied on the case of Kamanduu Kaumba & Anor v Kingsway Motors (2020) eKLR where the Judge upheld the decision of the trial court which dismissed the Appellant’s claim with costs to the Respondent on grounds that the Appellants had failed to prove their case against the Respondent on a balance of probabilities. It was held that:
“From the evidence on record, I do not see any iota of it going towards proving that the driver of the subject motor vehicle drove at excessive speed in the circumstances, or that he allowed the motor vehicle to collide with the deceased or that he failed to adhere to the rules of the Highway code or even that he drove on the wrong side of the road. As was held in Kiema Mutuku v Kenya Cargo Handling Services (1919) 2 KAR 25B
“There can be no liability without fault and a plaintiff must prove some negligence. Taking into account all the evidence on record, it is apparent that the plaintiff herein has failed to discharge the burden of proof by establishing the link between the defendant’s actions and the cause of action”
The Appellants submit that the above is what exactly happened in this case. The Appellants totally failed cause of actions to establish the link between the Respondent’s actions and the cause of action. It was also held in Stat Pack Industries v James Mbithi Munyao (2005) eKLR that:
“...not every injury is necessary as a result of someone’s negligence. That an injury per se is not sufficient to hold someone liable for the same.”
The above being the case, it would be presumptuous for this court to conclude that because the deceased died then the Respondent must be assumed to have been careless while driving and/or managing the subject motor vehicle”.
Relying on the above cited cases, the Appellants urged this court to find persuasion from the same and set aside the trial court’s apportionment of liability of 70%: 30% and find the deceased 100% liable for the accident in question. It was submitted that the deceased caused the accident in question by suddenly running across the road from a point where he could neither see the entire road nor be seen by all drivers without due
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E069 OF 2022
I SPY AFRICA LIMITED………......................….........………………1ST APPELLANT
DAVID MWALUI…………………….....…........…………….…………2ND APPELLANT
VERSUS
EUNICE WANJIRU KANJA and MARY WANGARI NJUGUNA
(Suing as the administrators to the estate of the late
JOHN MBAU MBUGUA- Deceased) ………………………......….…. RESPONDENTS
(Being an Appeal from the Judgment and Decree of Hon. E. Olwande (CM) in Mavoko PMCC. No. 745 of 2020 delivered on 28/4/2022)
JUDGEMENT
By a plaint dated 25th September 2020, the Respondents (Plaintiffs then) sued the Appellants (Defendant then) as the legal representatives of the estate of JOHN NJAU MBUGUA who died in a road accident on 23rd November 2017 claiming damages under the Law Reform Act and Fatal Accidents Act. The Respondents’ case was that on the material day, the deceased was a pedestrian along Mombasa-Nairobi highway at All Parking stage when the 2nd Appellant negligently dove the 1st Appellant’s motor vehicle registration number KCG 767A that he caused the same to violently knock down the deceased causing him fatal injuries. The Respondents blamed the 2nd Appellant for the accident and they gave the particulars thereof in paragraph 5 of the Plaint. They held the 1st Appellant vicariously liable for the accident.
By Statement of Defence dated 2nd November 2020, the Appellants (Defendants before the trial court) denied the Claim and pleaded contributory negligence against the deceased and they gave particulars thereof at paragraph 5 of the Statement of the Defence. They also denied the particulars of loss and damage and put the Respondents to strict proof.
The matter proceeded for hearing when the Respondents called three witnesses while the Appellants called one witness.
PW1 the 1st Plaintiff testified and relied on her witness statement filed as her evidence in chief. In her statement she stated that the deceased was her son and that he was employed as a matatu conductor in the Nairobi-Kitengela route. She narrated how on 23/11/2027 she was informed of the accident by her daughter-in-law and Co-plaintiff. She went to Shalom Hospital where she found the deceased then injured and undergoing treatment. The deceased eventually succumbed to his injuries on 25/11/2027. She stated that as a result of the death of the deceased she has lost his support both emotionally and financially. She stated that the deceased was earning Kshs.30,000/= and had a young wife and three children.
In cross examination, she stated that the deceased was her first-born son and that when she went to see him in hospital, he was conscious but in serious condition. She confirmed that she had obtained the Grant to file the suit and that at the time of preparation of the Death Certificate she was not asked the occupation of the deceased.
PW2, the 2nd Plaintiff also testified and relied on her witness statement as her evidence in chief. She stated that the deceased was her husband and was the sole bread winner of their family. She was informed of the accident on 23/11/2027 through a phone call by one Elijah Ngigi Kihia. She called her mother-in-law and informed her of the same and they both went to the hospital where the deceased had been taken. They found him undergoing treatment. They decided to transfer him to Kenyatta Hospital as the injuries were quite serious but unfortunately, he succumbed to his injuries on 25/11/2017. She stated that the deceased left behind five dependents being herself, her mother-in-law, and three children. She stated that that his death had caused them untold emotional and financial suffering. She produced the exhibits listed of the List of Documents as PExt.1 to 8 in the order they were listed. She sought for damages.
In cross examination she stated that she does casual jobs and that the deceased was a conductor earning Kshs.30,000/= per month. She could not tell who gave the details that were filled in the death certificate. She could not tell who was blamed for the accident.
PW3 Elijah Ngugi Kihia witnessed the accident. He relied on his witness statement as his evidence in chief. In his statement he narrated how the accident happened. He stated that on the material day, he was driving a matatu and the deceased was his conductor. At Mlolongo at All Pack Stage, they dropped a certain woman who had a child and luggage. The deceased assisted her cross the road and on returning back to the vehicle he was hit by the accident vehicle. He was hit just as he had finished crossing the road. The impact threw the deceased to the side of the road.
The accident vehicle stopped about 30M ahead after hitting the deceased. Him and the driver of the accident vehicle took the deceased to Shalom Hospital. He then called the wife of the deceased and informed her of the accident. They transferred the deceased to Kenyatta National Hospital.
PW3 identified the Plaintiff’s as the mother and wife of the deceased. He stated that he worked with the deceased for about 1 year before the accident and that the deceased was earning Kshs.30,000/= per month. He blamed the driver of the accident vehicle for speeding. He stated that All Pack stage has many people but it was not busy as it was 3.00PM. He stated that the speed at which the driver was driving was too high for the area. He maintained that if the driver was doing a speed of 30-40km/h the accident would not have happened.
In cross examination PW3 stated that he has been a driver for 20 years and the road where the accident happened is a busy highway. He stated that the recommended speed in the area should be about 30km/h. He stated further that there was no vehicle nearby when the deceased started to cross and that he was hit when he had finished crossing the road.
At this point of video clip was played for the witness and he admitted the deceased emerged from in front of a truck and he was running as he crossed the road. He admitted that the deceased could not see the oncoming vehicle on the second lane and that it was not safe for the deceased to cross when the second lane was not visible to him.
In re-examination, he stated that the deceased could be seen when he was almost crossing the road. He stated that the camera of the video caught his image in front of the vehicle hence it means the deceased was in front of the vehicle could be seen.
DW1 was the driver of the accident vehicle on the material day. He relied on his witness statement as his evidence in chief. He stated that he was driving from the Mlolongo weigh bridge towards Industrial area. There was a lorry in front of him and a matatu parked on the shoulder of the road. The lorry suddenly moved to the outer lane where they were to the inner lane without indicating. As he moved at a fairly slow speed, the deceased suddenly emerged running in front of the lorry. On seeing him, he applied emergency brakes and swerved to the left. Unfortunately, he hit him slightly on the side and threw him off the road as he attempted to jump.
DW1 produced documents in his list of exhibits as DExts.1-4. The said exhibits included a video clip from a camera on the dashboard of his vehicle which showed hoe the accident happened. He stated that the maximum speed allowed in a built-up area is 50km/h and he was doing a speed of 40-45km/h.
In cross examination, he admitted that he had no evidence to show what speed he was doing. He also admitted that the clip does not show the speed he was doing. He stated that there was a truck in front of him. He admitted that the deceased was not hit by the truck but by the left side of his bonnet. He stated that the deceased was about 2M ahead when he saw him. He stated that his ability to see was limited to his lane and he did not expect that someone would have emerged from that part of the road because there was an oncoming vehicle.
Upon considering the parties pleadings, evidence and submissions, the trial magistrate analysed that DW1 was driving at a considerably high speed considering that the place was a matatu stage with a lot of movement of pedestrians and vehicles. If DW1 was driving at a speed of 40-45km/h as he alleged, he should have been able to stop the vehicle before hitting the deceased. The fact that he was unable to stop the vehicle even though it took a few seconds for the deceased to run across the width of the vehicle and the fact that he hit him with such impact as to cause fatal injuries indicates that DW1 must have been driving at a high speed.
However, the trial magistrate also found that the deceased could not escape blame since the place where the accident happened was a busy road with several lanes, it was not wise or prudent of the deceased to cross the road in front of a large vehicle when he could not see which other vehicles could possibly be on the other lanes. The basic rules of crossing the road as per the Highway Code require that a pedestrian first looks right and left to ensure that there is no vehicle on the road that poses a danger to him as he crosses the road. Sine he obviously could not see the outer lane because of the lorry that was obstructing his view, it was not proper for him to cross to the road at that time.
From the above analysis, the trial magistrate found the 2nd Appellant was to blame for causing the accident by driving at a high speed considering the circumstances of the road where the accident happened. The deceased was also to blame for crossing the road when his view of the entire road was obstructed. Consequently, the trial magistrate found the 2nd Appellant 70% to blame for the accident and the deceased 30% to blame,
On quantum of damages, the trial magistrate found that the same is payable under the Law Reform Act and the Fatal Accidents Act under the heads of Pain and suffering, Loss of expectation of life, Loss of dependency and special damages.
On pain and suffering, the trial magistrate observed that the deceased died two days after the accident. Counsel for the Appellant submitted for Kshs.50,000/= and relied on the case of:
FMM & Anor v Joseph Njuguna Kuria & Anor (2016) eKLR.
Frankline Kimathi Baaru & Anor v Philip Akungu Mitu Mborothi (2020) eKLR.
DMM (Suing as Admin of the Estate of LKM) v Stephen Johana Njue & Anor (2016) eKLR.
Counsel for the Appellants submitted for Kshs.200,000/= and relied on the case of Alexander Okinda Anangwe (Suing as the Admin of the Estate of Patricia Kezia Anangwe) v Reuben Muriuli Kahuha & Others NRB HCCC 1550/2005.
The trial court observed that the fact that the deceased died after (two) 2 days is an indication that he must have endured a considerable amount of pain and therefore the case of FMM and Frankline cited by the Appellants. Relying on the same and after taking into account the efflux of time, the trial magistrate was of the view that Kshs.100,000/= for pain and suffering would be adequate compensation.
On Loss of expectation of Life, the trial magistrate observed that courts usually award a conventional figure under this head bearing in mind the age of the deceased. The deceased dies at a youthful age of 34 years. He had his whole life ahead of him. This life was cut short by this accident. Counsel for the Appellant submitted for Kshs.100,000/= and relied on the cases of :
Wangare v Nkaru (2014) eKLR
Joseph Njuguna Mwaura (Suing as Admin for the Estate of Ann Nduta) v Builders Den Ltd & Anor (2014) Eklr
Joseph Kingori Wandurwa Loise Karimi Nyaga (2021) eKLR
Counsel for the Respondents on the other hand submitted for Kshs.300,000/= and relied on the case of George Moga v Nairobi Women’s Hospital & 3 Others (2015) eKLR. Having perused the cases cited by both Counsel, the trial magistrate found the same to be useful guides and proceeded to award Kshs.150,000/= under this head after taking into account the efflux of time.
On Loss of dependency, the trial magistrate observed that the court had to calculate the loss suffered by the dependents of the deceased taking into account his age, earnings and dependents. The deceased dies at the age of 34 years. The Respondents stated that the deceased was employed as a Matatu conductor a fact which is not disputed by the Appellant. The Respondents stated that the deceased was earning Kshs.30,000/= per month. There was no evidence of this. It was not lost on the trial court that in most cases those who are employed in the informal sector like the deceased was usually do not have their earnings documented in any manner. However, it is not disputed that he was gainfully employed and, in the circumstances, he must have been earning something.
The trial court being guided by the case of Beatrice W. Murage v Consumer Transport Ltd & Anor (2014) eKLR where the court held that:-
“Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wage”
The position has been buttressed in many other cases. The trial court therefore relied on the minimum wage as at the time of the deceased met his death to determine the earnings of the deceased. The minimum wage for the bus conductors in the year 2022 for a person who works within the city metropolis was Kshs.10,994 and Kshs.23,067. The trial court applied a wage of Kshs.20,000/= on consideration that at the age of 34 years, the deceased cannot be said to have been just starting out on his job.
As for the multiplier, the Appellants proposed a multiplier of 17 years while the Respondents proposed a multiplier of 32 years. In the trial court’s view, the deceased could have worked as a Matatu conductor till the ripe age of retirement that is 60 years and maybe beyond as is common with those employed in the informal sector. However, after considering the fact that the deceased could have died sooner from other causes, the trial magistrate found that a multiplier of 24 years would be fair and reasonable.
It was not disputed that the deceased was married and had children. His mother also testified that he used to help her. The trial court was of the view that a dependency ratio of 2/3 to be applicable
The award was calculated as follows:-
Kshs.20,000 x 12 x 24 x 2/3 = Kshs.3,840,000/=
30. In respect to special damages, the Respondents claimed for Kshs.112,991/= as follows:
Medical expanses Kshs.25,691.00
Post Mortem Kshs. 5,000.00
Morgue Charges Kshs. 6,650.00
Funeral expenses Kshs.25,000.00
Police Abstract Kshs. 100.00
M/v search Kshs. 550.00
Letters of Administration Kshs. 50,000.00
Total Kshs.112,991.00
The trial court observed that the Respondents had only produced in evidence receipts for medical expenses of Kshs.20,841 and Kshs.11,500 for mortuary charges which the trial court awarded.
For the funeral expenses, the trial court was guided by the case of Premier Dairy Ltd v Amarjit Singh Sagoo & Another (2013) eKLR Civil Appeal No. 312 of 2009 where it was stated:-
“We do not think that it is a breach of the general rule that special damages must be pleaded and proved, to hold that families who expend money to bury or otherwise inter their dead relatives should be compensated. In fact, we do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with issues of record keeping when the primary concern to aa bereaved family is that a close relative has died and the body needs to be interred according to the custom of the particular community involved. The learned judge took what was a practical and pragmatic approach. Although a sum of Kshs.400,000/= was pleaded in the Plaint and witnesses who were the relatives of the deceased testified that they spent much more than this in preparing for and conducting a cremation, the learned judge awarded a sum of Kshs.150,000/= which sum he saw as reasonable and prudent amount to compensate the family for funeral expanses. We are of the respectful opinion that the judge was entitled to award that sum without in any way breaching the general rule we have referred to on the issue of special damages”.
The Respondents sought Kshs.25,000/= for funeral expenses which the trial magistrate awarded.
The other special damages were not proved, hence only Kshs.57,341 was awarded for special damages.
The final judgement was as follows:
Liability: 70:30 in favour of the plaintiff against the defendant
Quantum:
Pain and suffering Ksh.100,000.00/ =
Loss of expectation of life Ksh.150,000.00/ =
Loss of dependency Ksh.3,840,000.00/ =
Total Ksh.4,090,000.00/=
Less 30% contribution Ksh.1,227,000.00 =
Net award Kshs.2,863,000.00
The Respondents were also awarded the costs plus interest of the suit.
The Appellants being aggrieved by the whole of the said judgment lodged this appeal raising 17 grounds of appeal basically challenging liability and quantum.
The appeal was canvassed through written submissions. The Appellant’s submissions are dated 08/4/2024 whilst the Respondents submissions are dated 12/07/2024.
Appellant’s Submissions
The Appellants submitted that it is trite law that he who alleges must prove. The cited section 107 (1) of the evidence Act Cap 80 Laws of Kenya which provides that:-
“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
They relied on the case of Eastern produce (K) Ltd v Christopher Atiado Osiro (2006) eKLR where the court stated that the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant.
It was the Appellants’ view that the evidence before the trial magistrate was sufficient to establish the particulars of negligence which were allegedly by the Appellants against the deceased and find him solely liable for the accident. That from the evidence at the trial court there were two eye witnesses in this accident; PW3 and DW1.
There was also a video footage that was taken by the camera on the dashboard of the accident vehicle that was produced by the Appellants as DExt.3 which was played during the trial and showed that the deceased had been running across the road when he suddenly emerged in front of a truck which was driving in the same direction with the Appellant’s car, which was almost side by side with it, at the time of the impact of the accident, which resulted into the death of the deceased.
The Appellants submitted that PW3 during cross examination admitted that the deceased emerged from in front of a truck and confirmed that he was running as he crossed the road. PW3 also confirmed that from the point the deceased started crossing the road, he could not see the oncoming vehicle while in front of the truck or the vehicle on the second lane.
That DW1 on the other hand adopted his witness statement which stated that he was driving from Mlolongo weighbridge towards industrial area. There was a lorry in front of him and a matatu parked on the shoulder of the road. The lorry suddenly moved from the outer lane where they were, to the inner lane without indicating. He stated that he was driving at a fairly low speed when the deceased suddenly emerged running from the front of the lorry. On seeing him, he applied emergency breaks and swerved to the left. Unfortunately, he hit him slightly on the side and threw him off the road as he attempted to jump.
The Appellants submit that from the evidence it is clear that the deceased crossed the road while running and from a point where he could neither see the entire road nor be seen by all drivers and riders on the road. He also crossed at a place that is not a designated pedestrian crossing in utter violation of the rules and guidelines of the Highway Code.
The Appellants cited Clause 5 of the Highway Code which provides for the designated pedestrian crossings. It provides that pedestrians should always cross the road at designated areas such as Zebra crossings, foot bridges and pedestrian underpasses or at areas controlled by traffic Marshalls. Otherwise, they should choose a place where they can see clearly in all directions and move toa space where drivers and riders can see them clearly.
That Clause 5 of the Highway Code further provides for the guidelines on how pedestrians should cross the road. They should look right, look left, look right again then listen before crossing. They should not run. If traffic is coming, they should let it pass look all around again and listen. They should not cross until there is a safe distance in the traffic and one is certain there is plenty of time because even if traffic is a long way off it may be approaching quickly. The pedestrian should only cross if there is no time between the point of crossing and the oncoming traffic. It is strongly emphasized that a pedestrian should not RUN while crossing the road.
It is the Appellants; understanding of the traffic regulations and the provision of the Highway Code that the right of way on any road, is given to motor vehicles. Not pedestrians. The only instance when a pedestrian has a right of way which is considered to be superior to that of any motor vehicle on the road is when the pedestrian is crossing the road on a Zebra crossing which is a designated pedestrian crossing. In that single instance, all motor vehicles on the road are required by law to stop and give way to such a pedestrian. Such Zebra crossing by their obvious white colour markings on the road are so visible from a distance that any motorist is expected to see it at a distance and slow down such that by the time he reaches it, he must come to a complete stop if there is any pedestrian crossing the road.
Where there is no such Zebra crossing, the right of way shifts to the motorists on the road, not the pedestrian. The motorists have the superior claim of being on the road where there is no Zebra crossing, and such a pedestrian must give way for any oncoming motorists, unless and until the pedestrian confirms, by looking to the right, the left and then the right again, and confirming that the road is clear before he can walk across the road, not running as he crosses. Further, the pedestrian should choose a place where they can see clearly in all directions. And move to a space where drivers and riders can see them clearly. This duty on the pedestrian is imposed on him to confirm that all lanes of the road are clear and safe. Not only one lane, such that if in his judgement it would only be safe to cross one lane and the rest of the lanes, would be unsafe, on account of other oncoming motor vehicles in the adjacent lanes, the pedestrian is required to wait until all the lanes are safe before he enters the road.
The Appellants submitted that at the trial court, the deceased did not confirm the road was clear on both lanes nor was there evidence that there was a Zebra crossing where the deceased had crossed which is a designated pedestrian crossing or that he had chosen a place he could see clearly in all directions and moved to a space where drivers and riders could see him clearly as provided by Clause 5 of the Highway Code. That the trial court therefore erred when it found the 2nd Appellant liable for the accident based on the fact he should have been able to stop the vehicle before hitting the deceased. The trial court was in obvious error to have shifted this burden to the 2nd Appellant when the 2nd Appellant had the right of way hence the burden automatically fell on the deceased to prove his claim of right to be on the road either by there being a Zebra crossing or that he had confirmed that the road was clear in both lanes before venturing to cross the road, by walking or that he had chosen a place he could see clearly in all directions and moved to a space where the drivers and riders could see him clearly which he did not do or prove.
The Appellants submitted that the deceased having broken such fundamental rules of the Highway Code, by failing to confirm that the road was clear before crossing, having opted to obviously run across the road, when it was clearly unsafe to do so, and the circumstances of him having been obscured from the vision of the 2nd Appellant immediately before he suddenly emerged, would not give any logical room for holding the Appellnats liable. Had he been walking, it would have been a different story. The pedestrian walking would have given the 2nd Appellant time to see him and take appropriate action to save the situation of harm. Not so, where he was running. it was so momentary fast. The Appellants relied on the Court of Appeal case in Patrick Mutie Kamau & Anor v Judy Wambui Ndurumo (1997) eKLR where the court found the Respondent therein 100% liable and held that pedestrians too owe a duty of care to other road users to move with due care and follow the Highway Code. Clearly, the accident was caused by the Respondent running suddenly across the road without due regard to his own safety and that of others. In that case which was relied on by the Appellants in their submissions the Respondent had crossed in front of a stationary bus without taking any or reasonable steps to ensure that it was safe to do so. The Appellants’ motor vehicle was moving on the said road and hit her since he could not see her emerge from the stationary bus.
Also, the case of Julius Omollo Ochando & Anor v Samson Nyaga Kinyua (2010) eKLR, the High Court found the Appellants not liable and set aside the apportionment of liability of 50%:50%. In allowing the appeal the High Court stated that given the circumstances of the accident, in particular the fact that the Respondent suddenly ran across the road onto the path of the Appellant’s vehicle which was travelling on the main highway, it was difficult to lay any blame on the 1st Appellant. The Court stated:-
“Moreover, the fact that the 1st Appellant was not charged, also negates the Respondent’s contention that the Appellant’s vehicle went off the road and hit him when he was off the road. I find that the evidence which was before the trial magistrate was sufficient to support the defence of the Appellants that the Respondent was hit by the Appellant’s vehicle in the middle of the inner lane, as he crossed the road.(....) therefore, the Respondent was negligent in crossing the road at a point where it was not safe for him to do so (....) on the other hand, the evidence before the trial magistrate was not sufficient to establish any of the particulars of negligence which were alleged by the Respondent against the 1st Appellant. It is true that the 1st Appellant had a lethal machine (vehicle), under his control and that the Appellant’s circumstances of the accident, in particular the fact that the Respondent suddenly ran across the road onto the path of the Appellant’s vehicle which was travelling on the main highway, it is difficult to lay blame on the 1st Appellant”
In view of the above submissions, the Appellants submitted that there was no evidence from the Respondents or their witness to prove how any of the particulars of negligence that they had alleged against the 2nd Appellant that could have attributed to the 2nd Appellant. They averred that the Respondent’s witness, PW3 in his witness statement dated 25/09/2020 and adopted in court stated at paragraph 8 that he had not seen the motor vehicle approaching until he realized that the deceased had been hit. He reiterated this statement during examination in chief and cross examination by stating that he had not observed the state of the road when the deceased was crossing hence, he did not see the motor vehicle registration No. KCG 767A approaching. There was therefore no evidence that the 2nd Appellant was driving at a high or excessive speed. The Appellants relied on the case of Kamanduu Kaumba & Anor v Kingsway Motors (2020) eKLR where the Judge upheld the decision of the trial court which dismissed the Appellant’s claim with costs to the Respondent on grounds that the Appellants had failed to prove their case against the Respondent on a balance of probabilities. It was held that:
“From the evidence on record, I do not see any iota of it going towards proving that the driver of the subject motor vehicle drove at excessive speed in the circumstances, or that he allowed the motor vehicle to collide with the deceased or that he failed to adhere to the rules of the Highway code or even that he drove on the wrong side of the road. As was held in Kiema Mutuku v Kenya Cargo Handling Services (1919) 2 KAR 25B
“There can be no liability without fault and a plaintiff must prove some negligence. Taking into account all the evidence on record, it is apparent that the plaintiff herein has failed to discharge the burden of proof by establishing the link between the defendant’s actions and the cause of action”
The Appellants submit that the above is what exactly happened in this case. The Appellants totally failed cause of actions to establish the link between the Respondent’s actions and the cause of action. It was also held in Stat Pack Industries v James Mbithi Munyao (2005) eKLR that:
“...not every injury is necessary as a result of someone’s negligence. That an injury per se is not sufficient to hold someone liable for the same.”
The above being the case, it would be presumptuous for this court to conclude that because the deceased died then the Respondent must be assumed to have been careless while driving and/or managing the subject motor vehicle”.
Relying on the above cited cases, the Appellants urged this court to find persuasion from the same and set aside the trial court’s apportionment of liability of 70%: 30% and find the deceased 100% liable for the accident in question. It was submitted that the deceased caused the accident in question by suddenly running across the road from a point where he could neither see the entire road nor be seen by all drivers without due
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