MOSES KINYUA AND BHAVINMOTORS LIMITED VS HENRY NJAGI PETER & MARGARET WANJA NJAGI Suing as legal re of the estate of ESTHER MUTHONI

(Appeal arising from the decision of Hon. J.A. Otieno. in Embu CMCC No. E043 of 2020 delivered on 29^th March 2023)

1. The appeal herein has been filed vide memorandum of appeal dated 29^th March 2024 wherein the appellants, being dissatisfied with the decision of the court as abovementioned, now seek the following orders:
   1. That this appeal be allowed;
   2. That the judgment of the trial court be set aside and the award made therein be re-assessed;
   3. That the costs of this appeal be borne by the respondent; and
   4. That the court grants any other orders as it shall deem fit.
2. This appeal is premised on the grounds that:
   1. The trial magistrate erred in law and misdirected herself when she failed to consider the appellant’s submissions on both points of law and facts;
   2. The trial magistrate erred in law and fact by finding that the respondent was entitled to Kshs.30,000/= as general damages for pain and suffering, Kshs.150,000/= for loss of expectation of life, Kshs.1,502,640/= for loss of dependency and Kshs.71,670/= as special damages making a total of Kshs1,754,431/=;
   3. The trial magistrate erred in law and fact in unduly disregarding the evidence and judicial authorities cited by the appellants;
   4. The trial magistrate erred in law and fact in finding that the respondent was entitled to special damages of Kshs.71,670/= which was not specifically pleaded and proved.
3. The respondents filed a suit against the appellants seeking judgment against them for general damages under the Law Reform Act and the Fatal Accidents Act and special damages of Kshs.71,670/=. It was their averment that the deceased was a lawful pedestrian along Embu-Nairobi road on the 14/03/2020 at Rupingazi bridge area when the 1^st appellant drove motor vehicle registration number KCW 717S so negligently, carelessly and recklessly at a high speed without due care, regard and/or attention that while overtaking, he caused the motor vehicle to lose control and knocked down the deceased who sustained fatal injuries.
4. The 1^st appellant filed his statement of defense denying the averments made in the plaint and alluding negligence to the deceased. In their reply to defense, the respondents rehashed their averments made in the plaint. At the hearing, PW1 was PC Raphael Wagena of Embu Police Station who stated that the accident resulted in the death of the deceased and Police abstracts were issued to the family of the deceased. He produced the police abstract as evidence. On cross-examination, he stated that he was not well acquainted with the circumstances of how the accident occurred since the investigating officer in the case was transferred. That his only task was to produce the police abstract as evidence and he did so.
5. PW2 was Henry Njagi, one of the respondents herein, who stated that on the day of the accident at around 2:30pm, he received a call informing him that his daughter had been involved in a road traffic accident at Rupingazi area and she had been taken to hospital. That he went to the police station and he was referred to the mortuary where he found the deceased. That he returned to the police station and identified himself as the father of the deceased then he was given an abstract. He began burial arrangements and then applied for a death certificate in order to facilitate application for a limited grant.
6. He produced documentary proof as evidence in his case. He testified that the deceased was an untrained teacher and a casual laborer who earned Kshs.20,000/= per month, half of which went towards supporting her parents and siblings. On cross-examination, he stated that he visited the scene but did not find the vehicle or the deceased but he was told that the vehicle hit the deceased while she was walking off the road. That he did not have any proof of earnings for the deceased but she was working as an untrained teacher since 2010.
7. PW3 was Samuel Nyaga Joshua who stated that he was walking towards Embu on the left-hand side of the road when he saw the appellants’ oncoming motor vehicle coming from the opposite direction. That the motor vehicle lost control and veered off its lane onto the right-hand side lane. That some people were walking ahead of him and they were trying to get off the way of the motor vehicle but one of them was hit and she fell in a ditch. The motor vehicle landed on her with its rear tyre and that is how the deceased died. That the driver of the motor vehicle left his lane and while overtaking, hit the deceased who was walking on the right hand-side of the motor vehicle. He blamed the driver of the motor vehicle for the accident. On cross-examination, he stated that he clearly saw the motor vehicle that hit the deceased. That when the deceased saw the motor vehicle approaching, she hung on its door and it fell on her. That the police arrived at the scene around 20 minutes after the accident.
8. DW1 was PC Raphael Wagena of Embu Police Station, who was also PW1. He stated that the motor vehicle registration number KCW 717S was being driven by Patrick Wanjohi Mwangi from Meru to Nairobi when at Rupingazi bridge, there was a female passenger walking in the middle of the road. That the driver of the motor vehicle swerved to avoid hitting the pedestrian but she ran towards where the motor vehicle was heading. As a result, the deceased was accidentally hit and trapped underneath the motor vehicle which landed in a ditch on the right hand-side of the motor vehicle.
9. The deceased died on the spot. He stated that the driver was on his lane at the time of the accident and only swerved to avoid hitting the deceased who was walking in the middle of the road. On cross-examination, he stated that the OB did not indicate that the deceased was to blame for the accident and he did not know who was to blame. That the accident occurred near a bridge, explaining why the only place that the driver could swerve to was on the right.
10. The trial court found that the deceased as 20% liable for the accident. It awarded Kshs.30,000/= as general damages for pain and suffering, Kshs.150,000/= for loss of expectation of life, Kshs.1,502,640/= for loss of dependency and Kshs.71,670/= as special damages.
11. The appeal was canvassed by way of written submissions.
12. The appellants relied on the cases of Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd (2013) eKLR, Beatrice W. Murage (Suing as the legal Representative and administrator of the estate of the late Isaac Gicheru Murage) v Consumer Transport Ltd & Lunabala Magda Bulopa [2014] KEHC 3665 (KLR) and John Wamae Edward Kariuki David Kariuki Kibui  v Jane Kituku Nziva & Justus Kioko Kituku [2017] KEHC 1111 (KLR), Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR) and Seremo Korir & another v SS (suing as the legal representative of the estate of MS, Deceased) [2019] KEHC 11764 (KLR). They argued that the judgment of the trial court did not indicate whether the court had factored in or reduced the damages under the Fatal Accidents Act in awarding damages under the Law Reform Act yet this distinction ought to be made.
13. That the award under the Fatal Accidents Act should have been deducted from the award under the Law Reform Act since the beneficiaries are the same. They relied on the cases of Patrick Barasa v Serah Wambui Karumba (Suing as the legal representative to the estate of the late ALBERT CHEBAYA) [2019] KEHC 8017 (KLR), Francis Wainaina Kirungu v Elijah Oketch Adellah [2015] KEHC 4825 (KLR) and Dismas Muhami Wainarua v Sopon Kasirimo Maranta (suing as administrator and or personal representative of the estate of Partinini Supon (Deceased) [2021] KEHC 8500 (KLR).
14. The respondents submitted that the appellants have not attached a copy of the order/decree appealed from in line with Order 42 Rules 2 and 13 of the Civil Procedure Rules. That it is unclear what the appellants are challenging in this appeal since they have submitted on the issue of double award and not the issue of quantum as stated in the memorandum of appeal. They relied on the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR) where the court stated that there is no provision of law on reduction of awards under the Law Reform Act if the same party has been awarded damages under the Fatal Accident’s Act.
15. Further reliance was placed on the case of James Muthomi Njeru (Suing as Legal Representative of the Estate of the Late Agnes Tirindi Njeru) v Joseph Erasmus Mugo alias Joseph Mugoh [2021] KEHC 1859 (KLR) where the court stated that section 2(5) of the Law Reform Act and section 4(2) of the Fatal Accidents Act can be interpreted to mean that an award under one Act does not affect an award under the other. They urged the court to dismiss the appeal.
16. From the foregoing, the issue for determination is whether the damages awarded are just in the circumstances.
17. As a first appellate court, it is the duty of this court to reexamine the evidence adduced at trial afresh. This was held in the case of Coghlan v. Cumberland (1898) 1 Ch. 704, where the Court of Appeal (of England) stated as follows:

“Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.”

1. In this appeal, the appellants did not challenge apportionment of liability by the trial court. Therefore, the court shall only consider the issue of quantum. The trial court awarded Kshs.30,000/= as general damages for pain and suffering. the general rule in awarding damages for pain and suffering is that the award is kept as a minimum when the deceased died so soon after the accident. In this case, PW2 and PW3 testified that the deceased died on the spot. 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, the court observed:

“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 Ksh.100,000/- while for pain and suffering the awards range from Ksh.10,000/= to Ksh.100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

In my view, the award of the trial court is excessive given that the deceased died on the spot. In find that an award of Kshs.20,000/= is sufficient under the head of general damaged for pain and suffering, in the circumstances.

1. Regarding damages for loss of expectation of life, the trial court awarded Kshs.150,000/= noting that the deceased was 28 years old at the time of the accident.  The court stated thus in the case of Benham v. Gambling, (1941) AC 157:

“In assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness, the test is not subjective and the right sum to award depends on an objective assessment of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.”

1. Under this head, an award of Kshs.100,000/= should suffice in the circumstances and considering the above cited decision of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR.
2. On the general damages for loss of dependency, PW1 stated that the deceased was a 28-year-old untrained teacher and a casual labourer earning Kshs.20,000/= monthly. He did not have any document to prove the deceased’s income. The trial court applied the multiplier method with the minimum wage of 12,522.70/=, a multiplicand of 12 years and a ratio of ⅓, bringing the total to Kshs.1,502,640/=. The trial court also referred to comparable awards by other courts under similar circumstances.
3. It is my view that even though the deceased’s income was not proved it was prudent of the trial court to apply the minimum wage of a general labourer which is Kshs.12,522.70/= according to the Regulation of Wages (General) (Amendment) Order, 2018. The trial court applied a multiplier of 12 years which I agree with given the nature of casual labour which the deceased could possibly have engaged in until the strong age of 40 years. There was no proof of further dependency besides the deceased’s parents and siblings thus the ratio of ⅓ is fair and just.
4. On the issue of special damages, the trial court awarded the amount pleaded. The receipts produced by the respondent amount to a total of Kshs.51,870/= which is the only sum that has been strictly proved as should be the case with special damages. In the case of Maritim & Another v. Anjere (1990-1994) EA 312 at 316 it was held:

“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”

1. Therefore, in the end, I find that the appeal partially succeeds with orders thus:
   1. The trial court’s findings on liability are hereby upheld;
   2. General damages are hereby awarded as follows:
      1. Pain and suffering-   Kshs.20,000/=
      2. Loss of expectation of life-  Kshs.100,000/=
      3. Loss of dependency-   Kshs.1,482,640/=
   3. Special damages- Kshs.51,870/=.
2. Each party to bear its own costs of the appeal.
3. It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.