1. The background of the appeal is that vide a plain dated 13th April 2022, the Plaintiff/Respondent averred that on or about 4th December 2020 along Nairobi-Mombasa highway, at Jomvu Junction, the Defendant/Appellant, his driver, agent and/or servant negligently managed, controlled and/or drove the Defendant’s motor vehicle registration number KBW 872R/ZC 5941 and caused it to knock down the deceased who was a lawful road user on the said road thereby occasioning him fatal injuries.
2. The Plaintiff/Respondent prayed that judgment be entered against the Defendant/Appellant for special damages as per paragraph 6 of the Plaint, for general damages under the Fatal Accident Act Cap 32 of the Laws of Kenya and under the Law Reform Act cap 26 Laws of Kenya for the benefit of the estate of the deceased, and costs and interests on special and general damages.
3. This suit was heard in the trial court and judgment delivered on 14th May 2024 where the court found the Appellant 100% liable. On general damages, the court awarded Kshs. 10,000 for pain and suffering, Kshs. 200,000 for loss of expectation of life, Kshs. 2,000,000 for loss of dependency, and Kshs. 199,890 for special damages. The Plaintiff/Respondent was also awarded costs and interest of the suit.
4. Being dissatisfied, the Appellant appealed the judgment and decree through the Memorandum of Appeal dated 15th May 2024 on grounds that the learned trial magistrate erred in law and in fact in failing to hold that the suit therein was statutorily time barred, that the learned trial magistrate erred in law and in fact in holding that the Plaintiff/Respondent had proved its case on negligence on a balance of probability, that the learned trial magistrate failed to evaluate the evidence on record and gave undue weight to hearsay inadmissible evidence and failed to appreciate that the evidential burden had not shifted to the Appellant hence ended up shifting the burden of proof to the Appellant, that the learned trial magistrate erred in law and in fact in failing to hold that the Plaintiff/Respondent was not entitled to damages under the Law Reform Act and Fatal Accidents Act for filing the suit over 6 months from date of grant, that the learned trial magistrate in making awards for damages both under the Law Reform Act and the Fatal Accidents Act took into account factors he ought not to have taken into account and overlooked factors he ought to have taken into account hence erred in principle and ended up making awards for damages under the two Acts that were erroneous and inordinately high, and that the learned trial magistrate erred capriciously and arbitrarily in assessing damages.
5. The Appellant prayed for orders that judgment of the trial court be set aside and replaced with an order dismissing the Plaintiff/Respondent’s suit with costs, that in any event, the damages be assessed downwards, and that the Appellant be awarded costs of this appeal and in the subordinate court.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 4th November 2024 submitted on whether the suit herein is time barred under the Limitation of Actions Act, the Law Reform Act and the Fatal Accidents Act that once letters of administration ad litem are issued, a suit on behalf of the deceased should be instituted within 6 months of obtaining the grant so as to grant remedies under the Law Reform Act. That a fatal claim arising from an accident should be instituted within 1 year of happening of death arising from the subject accident. That one is not entitled to claim relief under the Fatal Accident Act and Law Reform Act where the suit is instituted outside the 6 months period of obtaining grant ad litem.
7. The Appellant relied on the holding in the case of Farmers Choice Company Limited v Dorleen Anyango Wasonga & Another (2015) eKLR. The Appellant maintained that no leave was sought to file the suit out of time. That the suit was filed on 24th May 2022 while the deceased died on 4th December 2020. The Appellant further cited the cases of Yvonne Damaris Kimanthi & Lincoln Karwingo Njeru (Suing as the Administrators of the Estate of Newton Mugendi Njeru (Deceased) v Pathologists Lancet Kenya Limited (Civil Case 2009 of 2017) (2019) KEELRC 119 (KLR) (Employment and Labour) (20 December 2019) (Ruling) and Wanja v Kago (Civil Appeal E006 of 2021) (2022) KEHC 10332 (KLR) (13 July 2022) (Judgment).
8. On whether the Plaintiff established legal and evidential burden of proof in proving negligence against the Defendant/Appellant herein, the Appellant cited the cases of Dharmagma Patel & Another v T A (a minor suing through the mother and next friend H H) (2014) eKLR and Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another (2010) eKLR and submitted that the question of whom to blame for the alleged accident of 4th December 2020 is squarely pegged on whether the Plaintiff/Respondent proved her case against the Appellant on a balance of probabilities. That the burden of proof is defined under Sections 107, 108 and 109 of the Evidence Act and that in a case where a party sues another for negligence, they bear the evidential burden to show that the acts or omissions complained of gave rise to the allegation. The courts dealt with the issue in the case of Mbuthia Macharia v Annah Ndwiga & Another (2017) eKLR which was reiterated in the case of Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau (2016) eKLR. The Appellant submitted that the Respondent neither witnessed the accident nor visited the scene and that her averments in the pleadings that the deceased was knocked down while using the road could not establish negligence in the absence of further evidence.
9. On whether assessment of damages under the loss of dependency and loss of expectation of life is warranted under the circumstances, the Appellant cited the cases of Janet Chonge Walumbe & 2 Others v Julius Mwaniki & Another (2019) eKLR and Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago (2020) eKLR and submitted on damages under the Law Reform Act that the award of Kshs. 10,000 for pain and suffering is not disputed. However, the Appellant urged the court to award Kshs. 50,000 for loss of expectation of life.
10. On damages under the Fatal Accidents Act, the Appellant stated that the Plaintiff pleaded that the deceased was 42 years old, in good health and was a pastor but the Plaintiff never stated the income of the pastor. That considering the deceased’s form of employment, the court should abandon the multiplier approach in favour of award of a global sum. The Appellant made references to the cases of Stella Nasimiyu Wangila & Another v Raphael Oduro Wanyamah (2016) eKLR, Justo Mungathia Mwithalie & Another v Joseph Maore Angacia & Another (Suing as the legal representative of the estate of EKM (deceased) (2022) eKLR which cited the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another (2017) eKLR, and Oyugi Judith & Another v Fredrick Odhiambo Ongong & 3 Others (2014) eKLR. The Appellant submitted that the global award of Kshs. 2,000,000 for loss of dependency was excessive in the circumstances. That should the court be convinced to award general damages under the Fatal Accident’s Act, an award of Kshs. 1,200,000 would be appropriate. The Appellant therefore prayed that the appeal be allowed with costs.
11. The Respondent filed submissions dated 27th November 2024 and contended that the Appellant did not adduce any evidence to rebut the Respondent’s case. That the police abstract produced clearly showed that the suit motor vehicle belonged to and was in possession and control of the Defendant. The Respondent therefore urged the court to find so as pleaded in the plaint, witness statement and evidence on record. The respondent cited the case of Maina (Suing as the administrator of the estate of Mary Wanjiku Mwangi) v Mbaya & Another (Civil Appeal 163 of 2019) (2023) KEHC 3335 (KLR) (20 April 2023) (Judgment) where the court determined the issue of uncontroverted evidence.
12. On pain and suffering, the Respondent urged the court to uphold the award of Kshs. 10,000 pursuant to the holding in Melbrimo Investment Company Limited v Dinah Kemunto & Francis Sese (Suing as personal representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) (2022) eKLR. On loss of expectation of life, the Respondent submitted that the deceased is said to have been 49 years of age at the time of death, he was healthy, working and providing for his family as shown in the pleadings but the accident cut his life short. The Respondent urged the court to uphold the award of Kshs. 200,000. On loss of dependency, the Respondent urged the court to uphold the trial court’s holding of a global sum of Kshs. 2,000,000. That however, if the is inclined to look at it differently, the Respondent urged the court to adopt a sum of Kshs.13,572.90 as a multiplicand being the prevailing minimum wage for a general labourer at the time of the deceased’s death, and a multiplier of 11 years hence Kshs. 13,572.90 x 12 x 11 x 2/3 = Kshs. 1,194,415.20. That on special damages, the Respondent pleaded and strictly proved Kshs. 200,090.00 which they urged the court to award accordingly. The Respondent submitted that Exh.1 being limited grant for purposes of filing, prosecuting or defending suit, the same cannot be deemed to have offended any provisions of the law.
13. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle vs. Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
14. I have considered the Record of Appeal dated 24th June 2024 and submissions by the parties. The issues for determination are: -
(a) Whether the suit herein was time barred under the Limitation of Actions Act, Law Reform Act and Fatal Accidents Act
(b) Whether negligence on the part of the Defendant/Appellant was proved to the required standard
(c) Whether the assessment of damages under loss of dependency and loss of expectation of life was proper
(d) Who should bear costs
15. On whether the suit was time barred, the Appellant submitted that the suit herein is time barred under the Limitation of Actions Act, the Law Reform Act and the Fatal Accidents Act that once letters of administration ad litem are issued, a suit on behalf of the deceased should be instituted within 6 months of obtaining the grant so as to grant remedies under the Law Reform Act. That a fatal claim arising from an accident should be instituted within 1 year of happening of death arising from the subject accident. That one is not entitled to claim relief under the Fatal Accident Act and Law Reform Act where the suit is instituted outside the 6 months period of obtaining grant ad litem.
16. The Respondent submitted that the Appellant amended defence on 19th March 2024 under paragraph 12 stated that the suit was time barred under the Limitation of Actions Act while the claim for damages were statutorily time barred under the Law Reform Act and the Fatal Accidents Act. That however, the amended defence is not specific as to which sections they purport the suit offended. That the Respondents obtained limited grant for purposes of filing, prosecuting and/or defending the suit. That there is therefore no full grant as to be deemed to have offended any provisions of the law.
17. This court has perused the Record of Appeal filed herein and established that the Appellant filed a Statement of Defence dated 23rd June 2023 and later filed a Notice of Motion application dated 19th March 2024 seeking leave to amend the defence, which application was allowed. This court confirms that indeed the Appellant pleaded in the Amended Defence that the suit was statutorily time barred under the Limitation of Actions Act and the claims were statutorily time barred under the Law Reform Act and the Fatal Accidents Act. The Respondent had an opportunity to respond to the Amended Defence and even submitted on it.
18. Section 2(3) of the Law Reform Act provides that: -
No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either: -
a. proceedings against him in respect of that cause of action were pending at the date of his death; or
b. proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation.
19. Section 9(2) of the Fatal Accidents Act provides: -
No proceedings shall be maintainable in respect of a cause of action which by virtue of the provisions of this section has survived against the estate of a deceased person unless either: -
a. proceedings against him in respect of that cause of action were pending at the date of his death; or
b. proceedings are taken in respect thereof not later than six months after his personal representative took out representation.
20. It is an undisputed fact that the cause of action arose on 4th December 2020, Limited Grant of Letters of Administration Ad Litem were obtained on 26th August 2021 and the case was lodged in court on 24th May 2022. Pursuant to the provision above therefore, the Respondent did not demonstrate diligence in filing suit on time.
21. This court has perused proceedings of the trial court and notes that provisions of Section 27 and 30 (3) of the Limitation of Actions Act were not complied with to persuade the trial court to exercise its discretion to grant leave to the Respondent to file suit out of time.
22. The Respondent’s claim that only limited grant for purposes of filing, prosecuting and/or defending the suit was obtained and not the full grant, and that the same is deemed not to have offended any provisions of the law does not hold.
23. This court finds that the trial court was at fault in awarding on liability and quantum without addressing the issue of whether the suit was statutorily time barred. No leave was sought to have the claim admitted out of time. I will therefore not belabor analysis the other issues for determination.
24. In the upshot, judgment delivered on 14th May 2024 in Mombasa Chief Magistrates Civil Suit No. 811 of 2022 is hereby set aside. Costs to be borne by the Respondent.
DATED and DELIVERED VIA CTS at MOMBASA this 04TH day of FEBRUARY 2025
2. The Plaintiff/Respondent prayed that judgment be entered against the Defendant/Appellant for special damages as per paragraph 6 of the Plaint, for general damages under the Fatal Accident Act Cap 32 of the Laws of Kenya and under the Law Reform Act cap 26 Laws of Kenya for the benefit of the estate of the deceased, and costs and interests on special and general damages.
3. This suit was heard in the trial court and judgment delivered on 14th May 2024 where the court found the Appellant 100% liable. On general damages, the court awarded Kshs. 10,000 for pain and suffering, Kshs. 200,000 for loss of expectation of life, Kshs. 2,000,000 for loss of dependency, and Kshs. 199,890 for special damages. The Plaintiff/Respondent was also awarded costs and interest of the suit.
4. Being dissatisfied, the Appellant appealed the judgment and decree through the Memorandum of Appeal dated 15th May 2024 on grounds that the learned trial magistrate erred in law and in fact in failing to hold that the suit therein was statutorily time barred, that the learned trial magistrate erred in law and in fact in holding that the Plaintiff/Respondent had proved its case on negligence on a balance of probability, that the learned trial magistrate failed to evaluate the evidence on record and gave undue weight to hearsay inadmissible evidence and failed to appreciate that the evidential burden had not shifted to the Appellant hence ended up shifting the burden of proof to the Appellant, that the learned trial magistrate erred in law and in fact in failing to hold that the Plaintiff/Respondent was not entitled to damages under the Law Reform Act and Fatal Accidents Act for filing the suit over 6 months from date of grant, that the learned trial magistrate in making awards for damages both under the Law Reform Act and the Fatal Accidents Act took into account factors he ought not to have taken into account and overlooked factors he ought to have taken into account hence erred in principle and ended up making awards for damages under the two Acts that were erroneous and inordinately high, and that the learned trial magistrate erred capriciously and arbitrarily in assessing damages.
5. The Appellant prayed for orders that judgment of the trial court be set aside and replaced with an order dismissing the Plaintiff/Respondent’s suit with costs, that in any event, the damages be assessed downwards, and that the Appellant be awarded costs of this appeal and in the subordinate court.
6. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 4th November 2024 submitted on whether the suit herein is time barred under the Limitation of Actions Act, the Law Reform Act and the Fatal Accidents Act that once letters of administration ad litem are issued, a suit on behalf of the deceased should be instituted within 6 months of obtaining the grant so as to grant remedies under the Law Reform Act. That a fatal claim arising from an accident should be instituted within 1 year of happening of death arising from the subject accident. That one is not entitled to claim relief under the Fatal Accident Act and Law Reform Act where the suit is instituted outside the 6 months period of obtaining grant ad litem.
7. The Appellant relied on the holding in the case of Farmers Choice Company Limited v Dorleen Anyango Wasonga & Another (2015) eKLR. The Appellant maintained that no leave was sought to file the suit out of time. That the suit was filed on 24th May 2022 while the deceased died on 4th December 2020. The Appellant further cited the cases of Yvonne Damaris Kimanthi & Lincoln Karwingo Njeru (Suing as the Administrators of the Estate of Newton Mugendi Njeru (Deceased) v Pathologists Lancet Kenya Limited (Civil Case 2009 of 2017) (2019) KEELRC 119 (KLR) (Employment and Labour) (20 December 2019) (Ruling) and Wanja v Kago (Civil Appeal E006 of 2021) (2022) KEHC 10332 (KLR) (13 July 2022) (Judgment).
8. On whether the Plaintiff established legal and evidential burden of proof in proving negligence against the Defendant/Appellant herein, the Appellant cited the cases of Dharmagma Patel & Another v T A (a minor suing through the mother and next friend H H) (2014) eKLR and Jamal Ramadhan Yusuf & Another v Ruth Achieng Onditi & Another (2010) eKLR and submitted that the question of whom to blame for the alleged accident of 4th December 2020 is squarely pegged on whether the Plaintiff/Respondent proved her case against the Appellant on a balance of probabilities. That the burden of proof is defined under Sections 107, 108 and 109 of the Evidence Act and that in a case where a party sues another for negligence, they bear the evidential burden to show that the acts or omissions complained of gave rise to the allegation. The courts dealt with the issue in the case of Mbuthia Macharia v Annah Ndwiga & Another (2017) eKLR which was reiterated in the case of Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau (2016) eKLR. The Appellant submitted that the Respondent neither witnessed the accident nor visited the scene and that her averments in the pleadings that the deceased was knocked down while using the road could not establish negligence in the absence of further evidence.
9. On whether assessment of damages under the loss of dependency and loss of expectation of life is warranted under the circumstances, the Appellant cited the cases of Janet Chonge Walumbe & 2 Others v Julius Mwaniki & Another (2019) eKLR and Zachary Abusa Magoma v Julius Asiago Ogentoto & Jane Kerubo Asiago (2020) eKLR and submitted on damages under the Law Reform Act that the award of Kshs. 10,000 for pain and suffering is not disputed. However, the Appellant urged the court to award Kshs. 50,000 for loss of expectation of life.
10. On damages under the Fatal Accidents Act, the Appellant stated that the Plaintiff pleaded that the deceased was 42 years old, in good health and was a pastor but the Plaintiff never stated the income of the pastor. That considering the deceased’s form of employment, the court should abandon the multiplier approach in favour of award of a global sum. The Appellant made references to the cases of Stella Nasimiyu Wangila & Another v Raphael Oduro Wanyamah (2016) eKLR, Justo Mungathia Mwithalie & Another v Joseph Maore Angacia & Another (Suing as the legal representative of the estate of EKM (deceased) (2022) eKLR which cited the case of Abdalla Rubeya Hemed v Kayuma Mvurya & Another (2017) eKLR, and Oyugi Judith & Another v Fredrick Odhiambo Ongong & 3 Others (2014) eKLR. The Appellant submitted that the global award of Kshs. 2,000,000 for loss of dependency was excessive in the circumstances. That should the court be convinced to award general damages under the Fatal Accident’s Act, an award of Kshs. 1,200,000 would be appropriate. The Appellant therefore prayed that the appeal be allowed with costs.
11. The Respondent filed submissions dated 27th November 2024 and contended that the Appellant did not adduce any evidence to rebut the Respondent’s case. That the police abstract produced clearly showed that the suit motor vehicle belonged to and was in possession and control of the Defendant. The Respondent therefore urged the court to find so as pleaded in the plaint, witness statement and evidence on record. The respondent cited the case of Maina (Suing as the administrator of the estate of Mary Wanjiku Mwangi) v Mbaya & Another (Civil Appeal 163 of 2019) (2023) KEHC 3335 (KLR) (20 April 2023) (Judgment) where the court determined the issue of uncontroverted evidence.
12. On pain and suffering, the Respondent urged the court to uphold the award of Kshs. 10,000 pursuant to the holding in Melbrimo Investment Company Limited v Dinah Kemunto & Francis Sese (Suing as personal representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) (2022) eKLR. On loss of expectation of life, the Respondent submitted that the deceased is said to have been 49 years of age at the time of death, he was healthy, working and providing for his family as shown in the pleadings but the accident cut his life short. The Respondent urged the court to uphold the award of Kshs. 200,000. On loss of dependency, the Respondent urged the court to uphold the trial court’s holding of a global sum of Kshs. 2,000,000. That however, if the is inclined to look at it differently, the Respondent urged the court to adopt a sum of Kshs.13,572.90 as a multiplicand being the prevailing minimum wage for a general labourer at the time of the deceased’s death, and a multiplier of 11 years hence Kshs. 13,572.90 x 12 x 11 x 2/3 = Kshs. 1,194,415.20. That on special damages, the Respondent pleaded and strictly proved Kshs. 200,090.00 which they urged the court to award accordingly. The Respondent submitted that Exh.1 being limited grant for purposes of filing, prosecuting or defending suit, the same cannot be deemed to have offended any provisions of the law.
13. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle vs. Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
14. I have considered the Record of Appeal dated 24th June 2024 and submissions by the parties. The issues for determination are: -
(a) Whether the suit herein was time barred under the Limitation of Actions Act, Law Reform Act and Fatal Accidents Act
(b) Whether negligence on the part of the Defendant/Appellant was proved to the required standard
(c) Whether the assessment of damages under loss of dependency and loss of expectation of life was proper
(d) Who should bear costs
15. On whether the suit was time barred, the Appellant submitted that the suit herein is time barred under the Limitation of Actions Act, the Law Reform Act and the Fatal Accidents Act that once letters of administration ad litem are issued, a suit on behalf of the deceased should be instituted within 6 months of obtaining the grant so as to grant remedies under the Law Reform Act. That a fatal claim arising from an accident should be instituted within 1 year of happening of death arising from the subject accident. That one is not entitled to claim relief under the Fatal Accident Act and Law Reform Act where the suit is instituted outside the 6 months period of obtaining grant ad litem.
16. The Respondent submitted that the Appellant amended defence on 19th March 2024 under paragraph 12 stated that the suit was time barred under the Limitation of Actions Act while the claim for damages were statutorily time barred under the Law Reform Act and the Fatal Accidents Act. That however, the amended defence is not specific as to which sections they purport the suit offended. That the Respondents obtained limited grant for purposes of filing, prosecuting and/or defending the suit. That there is therefore no full grant as to be deemed to have offended any provisions of the law.
17. This court has perused the Record of Appeal filed herein and established that the Appellant filed a Statement of Defence dated 23rd June 2023 and later filed a Notice of Motion application dated 19th March 2024 seeking leave to amend the defence, which application was allowed. This court confirms that indeed the Appellant pleaded in the Amended Defence that the suit was statutorily time barred under the Limitation of Actions Act and the claims were statutorily time barred under the Law Reform Act and the Fatal Accidents Act. The Respondent had an opportunity to respond to the Amended Defence and even submitted on it.
18. Section 2(3) of the Law Reform Act provides that: -
No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either: -
a. proceedings against him in respect of that cause of action were pending at the date of his death; or
b. proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation.
19. Section 9(2) of the Fatal Accidents Act provides: -
No proceedings shall be maintainable in respect of a cause of action which by virtue of the provisions of this section has survived against the estate of a deceased person unless either: -
a. proceedings against him in respect of that cause of action were pending at the date of his death; or
b. proceedings are taken in respect thereof not later than six months after his personal representative took out representation.
20. It is an undisputed fact that the cause of action arose on 4th December 2020, Limited Grant of Letters of Administration Ad Litem were obtained on 26th August 2021 and the case was lodged in court on 24th May 2022. Pursuant to the provision above therefore, the Respondent did not demonstrate diligence in filing suit on time.
21. This court has perused proceedings of the trial court and notes that provisions of Section 27 and 30 (3) of the Limitation of Actions Act were not complied with to persuade the trial court to exercise its discretion to grant leave to the Respondent to file suit out of time.
22. The Respondent’s claim that only limited grant for purposes of filing, prosecuting and/or defending the suit was obtained and not the full grant, and that the same is deemed not to have offended any provisions of the law does not hold.
23. This court finds that the trial court was at fault in awarding on liability and quantum without addressing the issue of whether the suit was statutorily time barred. No leave was sought to have the claim admitted out of time. I will therefore not belabor analysis the other issues for determination.
24. In the upshot, judgment delivered on 14th May 2024 in Mombasa Chief Magistrates Civil Suit No. 811 of 2022 is hereby set aside. Costs to be borne by the Respondent.
DATED and DELIVERED VIA CTS at MOMBASA this 04TH day of FEBRUARY 2025