Janet Njoki Kigo (Suing as the personal representative of the estate of the late Benson Irungu Wanjohi) v Daniel Karani Gichuki [2016] KEHC 5923 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.350 OF 2008

JANET NJOKI KIGO (Suing as the personal

representative of the estate of the late

BENSON IRUNGU WANJOHI)…………………………….PLAINTIFF

VERSUS

DANIEL KARANI GICHUKI ….…………………...……..DEFENDANT

JUDGMENT

1. This case was heard by Honourable D. Onyancha J and both parties’ cases closed.  They also filed written submissions.  Honourable Onyancha J was then transferred from the Nairobi station to Kabarnet High Court before he could write and deliver the judgment.  My duty in this respect  has  been to read the record and  write the judgment  based  on the  evidence on record, both parties having agreed  and the court having  made an order that  judgment  be  delivered based on the clear  and  legible  record left behind by Honourable  D. Onyancha J.

2. The plaintiff Janet Njoki Kigo instituted this suit as the personal representative of the estate of the late Benson Irungu Wanjohi.  In her plaint  dated  23rd July 2008 and filed  in court  on 30th July 2008, it  was alleged  that on or about  the 19th day  of August  2007, the late Benson  Irungu Wanjohi  was lawfully  walking  along  Komarock Road  in Nairobi  while the  defendant  was driving  motor vehicle  registration No.  KAT 940L when  the defendant  recklessly/negligently drove  or failed to manage/control the said  motor vehicle  causing  the  same to  violently  hit the said   Benson Irungu  Wanjohi occasioning him fatal injuries.  The plaintiff enumerated particulars of negligence attributed to the defendant as follows:-

a) Driving at a speed that was manifestly high in the circumstances.

b) Failing to adhere to traffic rules.

c) Failing to keep a look out or have regard for other road users and pedestrians, particularly the deceased herein.

d) Failing to hoot, swerve or in any other manner control, manage the motor vehicle so as to avoid the accident.

e) Failing to drive within the road and hence hitting the pedestrian.

f) And the plaintiff relied on the doctrine of Res Ipsa Loquitur for its full tenor and effect.

3. It was claimed that the deceased  was a young man full of  enterprise  with a promising  future and that the defendant’s acts  of negligence deprived him  of a prosperous  future hence the  claim for  loss of  expectation of life.

4. The deceased was survived by the plaintiff who was his mother.  The plaintiff claimed for both general and special damages to wit, mortuary charges shs 4150 and accident abstract shs 200.

5. The defendant Daniel Karani Gichuki entered an appearance and filed defence on 20th August 2008 through the law firm of Auta Nyakundi & Company Advocates filed on the same day. However, by a letter dated 13th October  2009 and filed in court on  16th October 2009, the firm of Auta Nyakundi  & Company Advocates repudiated  ever taking  instructions  from the defendant  and or filing  any pleading  or document  in court on his behalf.  The letter also called on the defendant to call on the said advocates for clarification but there appear to have been no response from the defendant.

6. In the defence dated 20th August 2008 filed on the same day, the defendant denied the plaintiff’s claim as pleaded.  He also denied that the plaintiff had the capacity to bring the suit, or that he was the registered owner of the accident motor vehicle no.  KAT 940 L or that it was ever driven, managed or controlled by the defendant in the manner described by the plaintiff and put the plaintiff to strict proof thereof.  The defendant also denied the manner in which the accident was alleged to have occurred and particulars of damage.  He also pleaded in the alternative, that the deceased was negligent and therefore solely and or substantially contributed to the occurrence of the accident in that:

a) He attempted to jump into a moving vehicle when it was unsafe to so hence exposing himself to what befell him.

b) Conducting himself without due regard to his own safety and safety of other road users in particular, motor vehicle registration No.  KAT 940L.

c) Causing him to be injured while under the influence of alcohol.

d) Attempting to board motor vehicle registration No.  KAT 940L without first ascertaining that it was safe to do so.

e) Attempting to forcefully board motor vehicle registration No.  KAT 940L at a place where there is no stage contrary to the traffic rules and the highway code.

f) Failing to heed to the warning and signs given to him by the driver of motor vehicle registration No.  KAT 940L.

7. The defendant further denied all other allegations against him and contended that the deceased had no source of income   to support the plaintiff and that to the contrary the deceased depended on the plaintiff.  He prayed for dismissal of the plaintiff’s suit against him with costs.

8. On 25th May 2011  the plaintiff  filed the list of  documents to be  relied on and on 25th May  2011  she filed agreed issues.  She  also complied  with pretrial requirement  under the new 2010 rules  and filed  a further list of  documents  on 28th November  2012 as well as her written  witness statement. Pre-trial directions were given on 21st  October  2013 by Honourable  Waweru J  who allowed  the plaintiff to fix a hearing  date after the  defendant failed to comply with Order 11 of the Civil Procedure Rules despite several  reminders  and indulgence by the court.

9. The hearing commenced on 7th April 2014 before Honourable Onyancha J.  The plaintiff Janet Njoki Kigo testified on oath as PW1.  She stated that the deceased Benson Irungu Wanjohi was her son who was knocked down by a motor vehicle on 19th August 2007 at Kariobangi in Nairobi.  That in the evening of that date she telephoned him at about 8pm-9pm but he did not answer.  She then telephoned his sister Milkah Muthoni to find out if the deceased was in his house as he was not responding to her phone calls.  Milkah told the plaintiff that Benson had gone to the plaintiff’s house.  The next morning there was still no answer from his phone.  That he worked in a garage at Kariobangi.  The plaintiff sent  Monica to check at his place of  work but he was not found  there so she went to report at Buruburu Police station where she  found that the police had the deceased’s identity card  and  she was informed  by the police  that the deceased  had been knocked  and killed  on the night of  19th August   2007.  She went to the City Mortuary and identified his body.  They buried him on 25th August 2007 and paid shs 4150 being preservation charges.  She got a burial permit; Police abstract and death certificate all which were produced as plaintiff’s exhibits    1-4.

10. The plaintiff then consulted  an advocate  and were  assisted  to file for and obtain  a grant  of letters of administration Ad Litem  produced  in evidence  as P exhibit 5 she also obtained search at Kenya Revenue Authority  for the killer motor vehicle  KAT 940L  which showed  the owner thereof  as being  the defendant.  She produced search certificate as P exhibit 6 and paid   shs 500/- for it.  The plaintiff also produced demand notice send to the defendant   as P exhibit 7 and notice to INVESCO Insurance Company Ltd the defendant’s insurers as P exhibit 8.

11. The plaintiff testified that the deceased  was a mechanic  and earned kshs  15000 per month at a Jua Kali  garage and used to give  her kshs 5000/- monthly to assist  her meet her needs.  She stated that he used to drink alcohol but was a careful person who cared about his life hence he could not have carelessly jumped into the road where he could be knocked by a motor vehicle.  She stated that the driver of the accident/offensive vehicle must have been negligent or reckless to know and kill the deceased.  She therefore claimed for damages stating that her deceased son was 26 years old at the material time and was single.

12. The plaintiff closed her case without calling any other witness albeit she had intended to call the police who investigated the accident.  The defence  was locked out  of presenting their case  by non availability  of their defence witness on 9th March 2015  even after being granted  several  adjournments  by the court to call their  witnesses  but to no avail.

13. The parties  were therefore  directed  to file their  written submissions  to enable the  court write a judgment  by which time  Honourable D. Onyancha J had  already been transferred  out of Nairobi station hence my writing of this  judgment, with the consent  of both parties  advocates  that I proceed  from  where   Honourable Onyancha  J left the  matter.

14. In their written  submissions  dated 24th March 2015 and filed  in court on 25th March  2015, the plaintiff’s counsel  submitted  that the  evidence  of the  plaintiff on how the  accident  took place  and hence on liability of the defendant   was not  controverted  and urged the court  to find, like  was  in  the case  of Linus Nganga  Kiongo & 3 Others  V Town Council of Kikuyu [2012] e KLR that “ where  no witness  is called on behalf  of the defendant, and  no evidence  is adduced  by the defendant, the evidence tendered  on behalf of the plaintiff stands uncontroverted.”  Counsel also relied  on Molo Mount Mineral Water Limited V Industrial and Development  Bank Limited  Nakuru High Court Civil Case No. 113 of 2004 {2012] e KLR  to support  the proposition   that under Section 107(1)  of the Evidence Act, whoever desires  any court to give judgment  as to any legal liability  dependent  on the existence of   facts which he asserts  must  prove the existence of those facts.

15. According to the plaintiff’s counsel, the plaintiff had proved all the particulars of negligence pleaded in her plaint.  She had also proved  ownership  of the offensive  motor vehicle by the defendant; relied on the doctrine  of Res Ipsa Loquitur and relied on the case of Msuri Muhiddin V Nazzor Bin Self Elkassaby and  Another [1960] EA 20T wherein it was held:

“ Where there is  a plea for  Res Ipsa Loguitur  the  respondent  could avoid  liability by showing  either  that there  was no negligence  on their part which contributed  to the accident  or that there   was a probable  cause of the accident  which did not connote negligence of their part  or that  the accident  was due to the circumstances not within  their control.  The speed  of the vehicle in relation  to the particular  road condition  was of most material  factor  and one  which normally within the control of the driver of the  vehicle, and there  was certainly a  duty  on the driver  to keep a proper  look out  to ascertain  the condition  of the road  to adopt  a speed of  the vehicle to it.”

16. The plaintiff also cited the following holding  in Wing V London General Omnibus  Company [1909]  2 K.B. 652 cited in the Msuri Muhiddin (supra) case that:

“Without   attempting to lay down  any exhaustive classification of cases  in which the  principle  of Res Ipsa Loquitur applies, it may generally  be said that the principle  of accident  and so much of  the surrounding  circumstances as was essential to  its occurrence  where within the sole control  and management  of the defendants, or their  servants  so that it is not  unfair  to  attribute   to them a prima facie  responsibility  for what happened.  An accident in the case of traffic on a highway is in marked contrast to such conditions of things.  Every  vehicle has to adopt  its own  behavior  of other persons  using  the road and  over the actions those in  charge of  the vehicle have control……”

17. On quantum of damages payable under the Fatal Accidents Act, the plaintiff  submitted that  she was  entitled  to loss of dependency and relied on the Regulation of Wages( General Amendment) Order 2013 LN 197 made  under  the Labour Institutions Act No. 12 of  2007 that a minimum monthly  wage of a vehicle  service worker (petrol and  service stations ) is kshs 12,654. 90 and the deceased  having been a mechanic aged 26 years, applying  dependency ratio of 2/3 and  retirement  age of 60 years, the plaintiff is  entitled to kshs 3,442,132-8 made up as follows: 12,654. 90 x 12 x 34  x 2/3 .  Reliance  was placed  on the case of Berly Bertha  Malowa Were( Administrators V Kenya  Ports  Authority HCC 246/2009 – Mombasa  where Ojwang J ( as he then  was )  found that :

“ Whereas no justification is  given for  placing the retirement  age at  54 years , placing  it at 60 years, quite apart from its  attribution to a government position  on labour matters is , in my opinion, to be judicially recognized  as fair  and common place for a person  of the status of  the deceased…..”

18. Further  reliance   was placed on Radha krishen  M Khenmaney  V Mrs Lachaba Murlidhar [1985] EA 268 where the court, citing  with approval  Pegy Frances  & Others  V Chunibhai J Patel &Another  CC 173 that:

“ The court should find the age  and expectation of working life  of  the deceased, and consider  the wages and expectations of the deceased ( that is, his income    less  tax) and the proportion of last net  income which  he would have made  available for his dependants.”

19. Under the Law Reform Act  ( Cap  26 ) Laws of Kenya  it  was submitted that the deceased  was pronounced  dead on arrival at the hospital  and therefore  an award of kshs 100,000/- was proposed  for pain  and suffering.

20. For loss of expectation of life the plaintiff submitted a figure of kshs 100,000/- relying on MushtaqHassan case.

21. The plaintiff also prayed for  reasonable  funeral expenses  of kshs  200,000/- relying on the cases of  Leaonard O. Ekisa  &  Another  V Major  K. Birgen [2005] e KLR  Petronilla Ojiambo Odori  V Peedle Building  Limited Mombasa HCC 561/1990 ( unreported)  and Jones Eshapaya Olumasayi & Another V Minial H. Halji Koyedia  & Another  [2008] e KLR .The plaintiff  also prayed for  costs  of the suit and interest  at court  rates   from the time of  filing suit.

22. In his  opposing  submissions filed on      20th April  2015, the  defendant  submitted that  on liability, the plaintiff had failed to discharge  the burden  of proof;  that she  was not  an eye witness  to the accident;  she gave  hearsay evidence; and  did not state  how the accident  occurred  and the hearsay  evidence  gathered  from Milkah Muthoni  who was not an eye  witness  was inadmissible.  Further that  failure to call Milkah and the investigating  officer to corroborate  the plaintiff’s  evidence  on what  transpired  on the  said date  was fatal  but  that should the court  find liability  against  the plaintiff  then it should  apportion it at  50:50.

23. On quantum of damages, it was submitted  that the expected dependency  was not proved, no document was produced to show  the amount of income  earned by the deceased  and that there  was a contradiction  in the figures claimed per  month in oral evidence  and  according  to the submissions  by  the plaintiff’s counsel.  It was also submitted that there was no evidence that the deceased was infact working.  The defendant’s counsel relied on Nairobi HCC 1484 of 1993 Lucy M. Njeri V Fredrick Mbuthia & Another. In the alternative, the defendant submitted that there was no known monthly earning and so proposed a minimum wage of shs 3000 for a general labourer.  He also urged the court to adopt a multiplier of 10 years, at retirement age of 50 years and a dependancy ratio of 1/3 bringing the figure to kshs 120,000.

24. Under  the Law Reform Act,  the defendant  proposed  shs 5000/-  for pain and suffering  relying on  the Lucy M. Njeri  Fredrick Mbuthia  & another(supra);Ngigi  Kimani V George Ikonya Thuo HCC 1300/1998 Nairobi  and Nyeri HCCA  76/2013  James Mugo  Manyara V James  Gitu Wambugu.

25. For loss of expectation of life the defendant proposed a sum of kshs 70,000/- relying on the Lucy M. Njeri V Fredrick Mbuthia & another (supra).  He also  relied on D.T. Dobie  & Company (K) Ltd V Wanyonyi Wafula Chebu  Kati MBS HCCA 88/2009; Rev Francis  Muchee Nthiga V Bohop N. Waweru Muranga HCCA  161/2010.

26. On specials   the defendant urged the court to disregard any other claim other than what was pleaded and proved by the plaintiff amounting to kshs 4350.

27. The plaintiff filed a  response to the defendant’s submissions on 20th June 2015 and on the question of liability, she  maintained that her  evidence  was uncontroverted hence  her case  stood proven on a balance of probabilities in that  she had proved that the defendant  owned  the offensive motor vehicle  at the material time  of the accident relying on Joel Mugo  Opija V EA Sea Food  Ltd [2013] e KLR.  Secondly, that the  doctrine of  Res Ipsa Loquitur  was applicable  in the circumstances  and relied on Anastacia Kamene  Chege V Lawrence  Nduati Giguta  Nairobi HCC 1786/84.  She also reiterated   the case of Linus  Nganga Kiongo& 3 Others  (supra)  that her  evidence  stood uncontroverted  as the defendant called  no witness to rebut the  evidence.

28. On quantum of damages, the plaintiff maintained that the death  certificate indicated that the  deceased’s occupation  was a mechanic and that under Cap  149, such  entity of  facts and  dates cannot be challenged  and shall be received as evidence  without any proof  of such entry.  She relied on Joachim Ndaire Macharia V Mary Wangare Ndaire & Another [2008] e KLR.

29. On loss of dependancy it  was submitted that the  evidence  by the plaintiff was not  in contradiction to the statutory minimum wage of  kshs  12,654 per  month but that since she is  bound by her testimony  she would adopt  the kshs 15,000/-  monthly income  thus making  the claim  kshs 4,080,000.  She also maintained her claim on the multiplier and multiplicand.

30. On proof of income and occupation of her deceased son, the plaintiff submitted that her evidence was not denied or controverted by the defendant.  She  relied on  Esther Nyambura  V Carnos Rashid Chepaurence & Another  [2008] e KLR  where it  was held:

“……..oral evidence is the testimony of a living person examined in court or before commissioner appointed by ……..  Oral evidence   if credible is sufficient to prove a fact.  It is only where  there are  contradictions in oral evidence  which occurs  in most cases  that documentary evidence  must be  looked for in order  to  see on which side the  truth lies.”

31. The plaintiff further  cited  Makau J in David Kimathi Kaburu V Gerald Mwobobia Murungi( suing as a legal representative   of the  estate of  James Mwenda  Mwobobia  (deceased) [2014] e KLR  where it was held that :

“……….there was no evidence to controvert the respondent’s evidence that the deceased made additional earnings from bodaboda business and farming.  There was evidence of the deceased being a skilled worker and trial court took that fact into account…….”  “………the court  is alive  of the fact that in  Kenyan society, most of the  individuals earnings  need not  be  proved by production  of documents  such as  banking statements  or  payment  vouchers  or pay slips.

Further to the above with the  modern technological in whichever  payments  are to be effected  through  use of  mobile phones or were payments can be made by cases without  requirement of payments  by cheques or execution of documents  to confirm payments s it is not necessary  to  produce  documentary proof.”

32. The plaintiff  further cited  Civil Appeal  decision in Jacob Ayiga Maruja V Simeon Obayo [2005] e KLR  that:

“ In our view, there was  more than sufficient  material  on record  from what the learned  judge  was entitled  to and did  draw the conclusion  that the  deceased  was a carpenter  and  that his  monthly earnings  were about kshs  4,000/- per month.  We do not subscribe  to the view that  the only way to prove the  profession of a person must  be by  the production of certificates  and  that the only way of proving earnings  is equally the production  of documents.  That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate keep no records and yet   earn their livelihoods in various ways.  If documentary evidence is available, that is well and good.  But he rejects any contention that only documentary evidence can prove these things.”

33. On the claim under the Law Reform Act, it was submitted that shs 100,000/- for pain and suffering   was justified.  She relied  on Benedeta Wanjiku Kimani V  Chaigwon Cheboi & Another  [2013] e KLR  where it  was held  inter alia  that the  amount  ranging from 10,000-100,000 under this head  was a conventional sum.

34. On loss of expectation of  life it  was contended that  the authority relied on by the  defendant  was decided   22 years  ago in  1993 hence  the court  should award  no less than shs 500,000/- under this head on the claim for general damages. On (reasonable funeral expenses) of shs  200,000 the plaintiff  maintained  that the  same is reasonable and had not been disputed  by the  defendant on his submissions hence  it matters  not that no receipts  were produced as was held in Jonnes Eshapaya  Olumasayi (supra) made 7 years ago.

35. On special damages it was submitted on behalf of the  plaintiff that she  had produced  all receipts  as per her  list and further  list of  documents  filed in court including  copy of limited grant of letters  of Administration Ad Litem relying  on Jonnes Eshapaya  Olumasayi(supra) case.

36. Based on the pleadings  before the court, oral and documentary  evidence  adduced, the rival  submissions by both parties’  advocates  and the  authorities cited, I am now  called upon to determine this case but I must  first make it clear that  I never  had the opportunity to hear  or see the witness as she testified  in court albeit  she was never  cross examined by the defence hence the  issue of  demeanor and credibility  of the witness cannot be  subject of this judgment.

37. From the pleadings, evidence and submissions on record, the following issues emerge for determination.

1. Whether the defendant was the owner of the accident motor vehicle.

2. Who was to blame for the material accident?

3. Is the plaintiff entitled to any damages both under the Fatal Accidents Act and Law Reform Act and or special damages and if so, how much?

4. What orders should this court make?

5. Who should bear the costs of the suit?

38. On the  first issue  of ownership of the accident  motor vehicle, the court  must  however  first determine whether  any  accident  occurred involving  the  material motor vehicle and  the  deceased at  the material place  and  on the material  date.

39. The police  abstract  produced by the plaintiff  shows that  on 19th August  2007, at  9. 30 pm along  Komarock  road, an accident  was  reported to  have occurred  along the said  road and  time  involving  motor vehicle  KAT  940L Isuzu  Minibus  and the deceased Benson Irungu Wanjohi who was classified  as an “intending passenger.”  The police abstract shows that the accident was reported at Buruburu police station vide IAR/137/07 OB 16 of 19th August 2007. As at   7th September 2007 when the police issued abstract No. 0042370, the case was still pending under investigations.

40. That evidence  of the occurrence of the accident  involving the  deceased and motor vehicle  KAT  940L Isuzu Minibus  was therefore  unrebutted  and hence  the answer  to the  question of occurrence  of the pleaded  accident is in the  affirmative.

41. On the question of  who was  the owner of  the accident  motor  vehicle, the said  police abstract  as issued  and produced by the plaintiff shows that  the subject  motor vehicle  was owned by  one  Daniel Karani Gichuki of P.O. Box 346, Nyeri.  Though the defendant  in his  defence  denied  owning  the accident motor  vehicle  the plaintiff did  produce a  certificate of registration issued  by Kenya Revenue Authority  on 21st  May 2008  showing  that Gichuki Daniel PIN No A0027057305  was the owner  of motor vehicle  KAT 940L.  There was no contrary evidence as to the ownership of the accident motor vehicle   hence the defendant, unchallengeably was the owner thereof.

42. The next issue is who was to blame for the material fatal accident involving the deceased Benson Irungu Wanjohi and the defendant’s motor vehicle registration no.  KAT 940 L Isuzu Minibuses?

43. In her pleadings, the plaintiff averred  that the  defendant  was wholly  to blame for  the material accident in that:

a) He drove at a speed that was manifestly high in the circumstances.

b) He failed to adhere to the Traffic Rules.

c) He failed to keep a look out or have regard for other road users and pedestrians, particularly the deceased.

d) He failed to hoot, swerve or in any other manner control or manage the motor vehicle so as to avoid the accident.

e) He failed to drive within the road and hence hitting a pedestrian.

44. As a consequence, it was averred that the deceased who was lawfully walking along Komorock Road in Nairobi was fatally injured. The defendant filed  a defence  dated  20th August  2008 denying all the above  averments  and contending that if the accident  pleaded  occurred  then it  was solely caused  by  hand or  substantially  contributed to by the deceased subject of this suit in that :

a) He attempted to jump into a moving motor vehicle when it was unsafe to do so hence exposing himself to what befell him.

b) Conducting himself without due regard to his own safety and or other road users in particular motor vehicle registration no.  KAT 940L.

c) Causing him to be injured while under the influence of alcohol.

d) Attempting to forcefully board motor vehicle registration number KAT 940L at a place where there is no stage contrary to the Traffic Rules and the Highway Code.

e) Failing to heed to the warning and signs given to him by the driver of motor vehicle registration number KAT 940L.

45. It is however important to note that indeed the plaintiff was not an eye witness to this fatal accident.  Neither did she call any eye witnesses or the police   who were“still investigating the accident” as at the time of the hearing of this suit as per the police abstract produced in court.  The defendant too never called any evidence to shed light on how the deceased might have been responsible for or contributed to the occurrence of the material fatal accident.  He maintained that  the burden  of proof  lay on the  plaintiff to proof acts of  the   defendant’s negligence as pleaded  and that the plaintiff gave  hearsay  evidence  as to what she  was told by her sister  Milkah  who  traced  the deceased’s steps  to Buruburu police station who  informed her that  the deceased had been knocked by a motor  vehicle and died and  that his body  lay at  the City Mortuary.  The police abstract   show that the deceased was an “intending passenger.”The plaintiff  maintained   in her submissions that even though she did not  call an eye witnesses to the fatal accident, the evidence she adduced  was  not  rebutted or controverted  by the  defendant and therefore  her evidence  on oath  that the  deceased  was  a careful person  who could not  have jumped  into the road  must be  taken to be credible  evidence  and therefore  the truth.

46. On the other hand, the defendant  maintained that in the  absence of  the evidence  of Milkah Muthoni  or the  investigating  officer of  the accident, the evidence  as given by the plaintiff was  hearsay  and therefore  inadmissible.  Both parties’  advocates  relied on persuasive  authorities which I have considered  carefully including  D.T. Dobie & Company (K) Ltd V Wanyonyi Wafula  Chebukati  (supra) citing  Linus Nganga  Kiongo & 3 Others  V Town Council of Kikuyu [2012] e KLR (supra)  where the  defendant  filed defence  and did not  testify  the court  held that the plaintiff’s case  stood unchallenged  and further that  the claims  made by the defendant  in his defence  and counterclaims were unsubstantiated.  The court  in the D.T. Dobie (supra) case  referred  to many other  decisions  including Trust Bank V Paramount Universal Bank Ltd &  2 Others Nairobi Milimani HCC 1243/2001; and found that  where  a party fails to call  evidence in support  of its case, that  party’s pleadings remain  mere  statements  of fact since  in  so doing  the party fails  to  substantiate its pleadings.  Further   that the  failure  to adduce  any evidence   means that  the  evidence  adduced by the  plaintiff  against  them is uncontroverted  and therefore  unchallenged.

47. I have no reason to depart from the above persuasive holdings of the learned Judges.  However, that acceptance  does not mean that the burden of proving  a case  on a balance  of probabilities  is automatically shifted  from the plaintiff to the defendant  where the defendant  adduces  no evidence to controvert  the evidence  adduced   by the plaintiff.  The burden of proof always lies within the person who alleges save in exceptional cases discussed below and supported by law.

48. In Kirugi & Another  V Kabiya  & 3 Others  [1987] KLR 347  the Court of Appeal  stated the obvious  that the burden  was always   on the plaintiff to  prove  his case on the balance of  probabilities  and that such burden   was not lessened  even if  the case was  heard by way of formal proof.

49. In this case, as I have stated above, the plaintiff pleaded particulars of negligence against the defendant.  It  was  therefore  expected  that in her  oral  evidence, she  testifies  to prove  any  of the alleged acts of  negligence attributed  to the defendant to prove that the  accident did  occur  the way she described  it in her plaint.  In her testimony  in court, the plaintiff’s closest evidence  to how the accident  occurred  was  that she  had called  the deceased  but received no response  so the  following  morning  she sent Milkah her sister  who did not  find him there as  he had not reported.  She (Milkah) went to Buruburu police station and made a report there but Benson was not there.  The police however had Benson’s identity card and the police reported that Benson had been knocked and killed on the night of 19th August 2007.  She went to City mortuary where the body was taken.  She identified   the body of Benson.  She then stated that:-

“…….My son was one who took intoxicating drinks.  He was a careful person who cared about his life.  He was not a careless person who could jump into the road where he could be knocked by a motor vehicle.  The driver of the said motor vehicle   must have been negligent or reckless to knock and kill Benson.”

50. From the above extract  evidence  given by  the plaintiff, it is  my view that she did not strictly speaking prove  any of the acts of  negligence  as pleaded  and or attributed  to the defendant.  Coupled with the failure  to call the  police who are said to have reported  that  the deceased  was knocked  and killed on the night  of  19th August 2007, it is  not clear  under what circumstances  the deceased, whom the police abstract  described  as “intending  passenger,” met his death.  Was it  sufficient  to  state that  the deceased  was  a careful person and that he cared  about life  such  that  he could not  have jumped  into the road  to be knocked by  a vehicle, and that  therefore  the defendant  must have  been reckless  or careless or negligence, I think not.

51. This court  is  therefore not told of how  the material accident occurred at  the time and  place stated  in the  plaint and  police abstract issued  by  the police and  in the manner alleged.  That being  the case, I agree  with  the defendant  that the plaintiff did not  discharge  the burden of  proving  the liability  of the defendant  on a balance  of probabilities that indeed  the accident  occurred  in the  manner pleaded thereby fatally injuring the deceased, since the plaintiff  was  not at  the scene of  the accident.  The police abstract  did not  state  how the  accident  occurred and  or who  was to blame  for its  occurrence  as the results  of the  investigations  were never  disclosed  to the court.

52. The defendant  on the other hand in his defence  denied  the manner  in which  the accident  was alleged to have occurred  and went further  to  provide  particulars of contributory  negligence  but did not call any  evidence to prove  those particulars. In Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi & Another  [2014] e KLR.  The Court of Appeal  was categorical that submissions cannot  take the  place of evidence and  faulted  the learned trial Judge’s  lifting of  some figures from a respondent’s  submissions and awarded  it  against  the 1st  appellant.  The court stated:

“Submissionscannot take the place of evidence.  The 1st defendant had failed to prove his claim by evidence.  What appeared in submissions could not come to his aid.  Such a course only militates against   the law and we are unable to countenance it.  Submissions are generally parties   marketing language” each side endeavoring to convince   the court that its case is the better one.  Submissions, we reiterate, do not constitute evidence at all.”

53. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. To that extend, it is trite that those allegations by the defendant against the deceased Benson Irungu on how he was responsible for the accident remained allegations until proved by evidence.  However, a witness cannot just come to court and state that this is the way an accident which occurred happened.  She is bound to prove her case on a   balance and probabilities.  In this case, I find that the plaintiff’s evidence alone is not sufficient to prove negligence against the defendant.  Since the  material  accident  was  fatal and it  occurred at night as  per the  police abstract  produced in court, the plaintiff  should have called  the  police who were investigating  the circumstances  under which the accident  occurred, or even one of the  witnesses  named in the police abstract  one Mr David Maina  whose address  was given  as Box 658 Nanyuki  to enable  the  court understand  the circumstances  under  which an intending  passenger  met his  untimely  death  in such a way as  to determine  the liability of the parties. The production of a police abstract alone proved the fact that there was an accident involving the deceased and the defendant’s motor vehicle KAT 940L.  To prove liability on negligence against a party, there must be more proof than a statement of the claimant who was not at the scene or police abstract. It  was not sufficient  or the plaintiff  to state that  her son  was  a careful person and that the  defendant must  have been careless that is why  he knocked  the deceased.

54. The bare evidence given by the plaintiff in my view did not require any evidence of rebuttal by the defendant.  Since the said evidence did not attribute any particular act of negligence on the part of the defendant.  Other than the pleadings which pleadings is not evidence.  It is  on that basis  that I would  with utmost  respect  distinguish  the cases  cited by the plaintiff who  sought  to rely on the holdings  that failure  by the defendant  to adduce evidence  to rebut the claim  prima facie  rendered him liable  in negligence  and that the  court should  find her  evidence  credible  and the  whole truth.

55. In this case, I have  no doubt in my mind that the plaintiff honestly gave evidence  to the  best of  her knowledge to the fact  of her  deceased son meeting  his  untimely  death following  a road accident.  But  the disturbing  question is whether the plaintiff, in the circumstances  of this case, gave  any evidence   that pointed  to the negligence  of the defendant in the manner  that he drove, steered, controlled or managed  the accident motor  vehicle  thereby negligently  knocking  down the  deceased Benson. In other words, there is no clear/direct or  circumstantial  evidence of  who was  really at fault  and to what extent, in this  very unfortunate  fatal accident, since  the defendant, having  realized  that the plaintiff  did not  intend   to call any eye witness or investigating  officer, opted  not to call any evidence  as there  was  nothing to  rebut  or controvert  since the  plaintiff had not discharged  her burden of proving  the negligence  of  the defendant, on a balance of  probabilities.

56. Notwithstanding my above factual findings, the big question is, is the defendant completely free from the hook of being found liable in view of the above circumstances?  The ultimate answer  lies  in the recent decision by the Court  of Appeal in Bosire, Karanja  and  Maraga JJ.A  in CA 179/2003  Rahab Micere  Murage ( suing  as  a representative  of the estate of   Esther Wakiini Murage  V Attorney General and 2 Others [2015] e KLR  delivered on 20th April 2012. In that  appeal which arose  from the judgment  and decree of the High Court Nairobi ( Angawa J) delivered on 3rd July 2001  in HCC  2775/1991 the circumstances  were exactly the  same in all material particulars  as are in this present  case.  The plaintiff was not present when the accident which fatally injured her daughter occurred.  She produced a police abstract showing that the accident which was a collision between two motor vehicles in which both drivers died was “pending investigations.”  The trial judge   dismissed the appellant’s case for lack of sufficient evidence which provoked the appeal to the Court of Appeal.  The learned trial judge had found that there was no proof as to how the accident occurred and that no negligence was proved against any of the three respondents.  On the ground of appeal that  the learned  trial judge  erred in  finding that  there was no  negligence  proved against  the respondents  whose defences  blamed  each other  for the cause of that accident, the Court of Appeal held; inter alia:

“As stated earlier, the respondents blamed each other for the accident.  They  tactfully  avoided  calling any  evidence  regarding the cause of  the accident  presumably  relying on  the provisions of Section 109 of the Evidence Act which provides that:

“The burden of proof as to any particular fact lies  on the person  who wishes  the court to believe  in its  existence, unless it is  provided  by any law that the proof  of that fact  shall lie  on any particular  person.”

That an accident  did occur  is not in dispute; that the  three cars  involved  in the accident  were respectively  owned by the three respondents;  How the accident  happened   was a matter within the  knowledge  of the respective  drivers of  those three vehicles.  Well driven motor vehicles do not just get involved in accidents.  The driver of the 1st respondent’s vehicle died in the accident.  The remaining ones, we suppose, were alive at the time of the appellant’s case was heard.  The failure on their part to testify must have been a deliberate act on the part of the 2nd and 3rd respondents.  The police appear not to have been in a hurry to conclude investigations as to the cause of the accident.  The appellant went to them to get a police abstract report of the accident.  They gave one but the accident was said to be still under investigations.  The conduct of the respondents appears to us to suggest that they deliberately withheld evidence as to the cause of the accident to frustrate the appellant’s suit.  Section 112 of the Evidence Act Cap 80 of the Laws of Kenya, we think was meant to deal with situations as those in the present case.  The Section provides thus:

“In Civil proceedings when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

The appellant alleged negligence against all the respondents as the cause of the accident in which her daughter died.  She was not there at the scene and could not have known how the accident happened.  As stated  earlier  vehicles  driven on public roads  in a proper  manner  do not  without  cause become  involved  in accidents.  It must be for that reason that the appellant accused the respondents of negligence.  Since  each of the  three respondents  had knowledge  as to how  the accident happened, they were duty bound under  the law  to call  evidence  to show either, which one  of them  was responsible  for the accident  or which one  of them  was innocent  in the matter.  All of them having failed to  adduce  evidence in that regard, the rebuttable presumption  of fact  is that all  of them were  in one way or another  negligent  and through such  negligence  caused  the accident  in which the  deceased  died.  It is  not a  presumption  arising  out of  the doctrine  of res Ipsa Loquitur, but  from the evidential burden  as imposed  under Section 112 of the  Evidence Act.

Having come to the foregoing conclusion, it is our judgment that Angawa J erred in ruling that no negligence was proved.  The burden   was on the respondents to disprove  on  their part  as the cause of  the  accident  was a matter  especially within  their knowledge but each of  them failed to offer evidence  in that regard  as required  by law.  It follows that each of the three respondents is liable to the appellant in damages in equal shares……..”

57. The Court of Appeal  in the above judgment  set aside  the order dismissing  the appellant’s  suit with  costs and substituted  therefore an order entering  judgment  in favour  of the appellant  against  the three respondents jointly and severally.

58. From the above  authoritative  and binding  decision, which  was delivered in 2012- quite  recently, this court  has no option  but to adopt the whole  decision which  was based  on a case  that was  in parimateria with the  instant  case and d facts, that the burden of proof lies  on he who alleges  is not  in  dispute.  However, where  it is  trite  clear like in the instant  case that  the plaintiff was  not present when the fatal  accident  occurred and the defendant who was the driver of the material motor vehicle involved in the accident is possessed  of the evidence  of how  the accident occurred  but deliberately fails to adduce that  evidence  with the sole intention of  frustrating the plaintiff’s suit, Section  112 of the Evidence Act  would be invoked  by the court  to deal  with such a situation.  The  defendant in this case having pleaded  particulars  of negligence or contributory  negligence  against the  deceased, it was incumbent upon  him to adduce  evidence  to prove  those facts  of the deceased’s negligence  that contributed to or caused  the  fatal accident.  The rebuttable  presumption  of fact therefore, is that  the defendant  was negligent, which negligence  caused the accident in  which the deceased died, and it is not a presumption which arises   out of the doctrine   of Res Ipsa Loquitur, but  from the evidential burden as imposed  under Section 112  of the Evidence  Act.  The cause of   the accident  being a matter  especially  within the defendant’s knowledge  but he failed to tender any  evidence in that regard  as required  by law, it follows that the  defendant  was to blame and therefore liable in damages to the  plaintiff. It also follows, therefore, that all the decisions relied on by the defendant in his very persuasive submissions are inapplicable in the circumstances of this case as the burden of proof is concerned. In addition, it follows that even the doctrine of Res Ipsa Loquitur relied on by the plaintiff is inapplicable in the circumstances of this case. The doctrine  of Res Ipsa Loquitur  would only  be applicable  where  the  subject  matter is  entirely is under  the control of one party and something  happens  while under  the control of that  party, which would not  in the ordinary  course of things  happen without  negligence ( see Bikwatirizo V Railway Corporation [1971] EA 82.  Thus, to successfully apply this doctrine of Res Ipsa Loquitur, there must be proof of fact that is consistent with negligence   on the part of the defendant as against any other cause.

59. This is a case of a motor vehicle knocking down a pedestrian only described    in the police abstract as an intending passenger.  There are indeed no facts that have been proved by the plaintiff to presume negligence on the part of the defendant as against any other cause.  In  addition, the defendant  would only  be enjoined  to rebut the presumption  of Res Ipsa Loquitur  after the  plaintiff had  established  a prima facie  case by relying on the facts of  the accident, which facts  as I have  stated earlier, were not  available  as  the plaintiff was not an eye witness and neither  did the defendant  testify to state those  facts. I would therefore  without hesitation  hold, like in the decision  of Esther  Wakiini Murage(supra) case that  Section 112 of the Evidence Act  was meant  to deal with situations  where the plaintiff is deprived of evidence  as to the occurrence  of the accident  and the defendant  deliberately  withholds   evidence as to  what  the cause  of accident  was   in order to frustrate  the plaintiff’s suit.

60. Accordingly, I find that the defendant in this case is liable for the accident that resulted in the death of the deceased Benson Irungu Wanjohi.  I find nothing  to suggest that  the deceased  could have  contributed  to the occurrence  of the said accident  and I therefore   reject  the proposal  by the defendant    that I should  apportion liability in the ratio of 50:50.

61. On the question of whether the plaintiff is entitled d to any quantum of damages and if so, how much; the plaintiff testified and produced a limited grant of letters of administration intestate.  She also produced a death certificate to prove death of the deceased.  She testified that the deceased was her son.  He was a mechanic and he was 26 years old, unmarried at the time.  He earned kshs 15,000/- per month and that he always gave her shs 5,000/- per month.  The death certificate too disclosed the occupation of the deceased as a mechanic.  In  her submissions, she  prayed for  a dependancy  ratio of 2/3 using a  minimum  wage of  shs 12,654 per month  but  when challenged  by the defendant  on why she submitted  using a  figure  which her son was not earning, she reverted  in the reply submissions to the original figure  of shs  15,000/- since  she was bound by her testimony. The plaintiff relied on the case  of Joachim Ndaire  Macharia  V Mary Wangare Ndaire (supra)  to espouse  that under  Cap 149, her evidence  as to the  deceased’s occupation and as recorded in the death certificate  which is  a public document/record  is conclusive  evidence  of such entry  which was not challenged.  Further, she urged the court to  accept  her evidence  on the deceased’s earnings  as being  unchallenged  based on Esther Nyambura  V Carnos  Rashid  Chepaurence  & Another (supra) and David Kimathi Kaburu V Gerald Mwobobia Murungi (supra)  that in Kenya most of  the individuals  earning need not  be proved by production of documents such as  banking  statements  or payment  vouchers  or pay slips……”  She also relied  on the Court of Appeal decision  in Jacob Ayiga Maruja  V Simeon Obayo (supra) adding that if the  only way of proving   earnings is  equally  the production of documents,  would do a lot  of  injustice  to very many Kenyans who are  even illiterate, keep no records and  yet earn  their livelihoods  in various  ways  and that it is  not just documentary evidence that  can prove earnings.

62. I am in total agreement with the above position as espoused in the Court of Appeal decision of Jab Ayiga Marija V Simeon Obayo and have nothing useful to add.  The evidence by the plaintiff on the deceased’s occupation and earnings were not rebutted.  It was not even tested in cross examination.  I see   no reason to reject it and therefore accept it as credible and truthful. Therefore, under the Fatal Accidents  Act, I would award  the plaintiff  damages  as follows: Loss  of dependancy, taking into account the following  factors:-

That  the deceased  was  expected  to pay his  taxes to the Government, from his monthly earnings pegged at 30%; That there  is no rule of  the thump that  dependancy ratio must  be 2/3 especially  in a case  like the  instant  one where the deceased, though single, was no doubt  expected  to marry and  spend most of   his earnings on his wife  and children.  I am fortified by the decision in Rev. Father Leonard O. Ekisa & another V Major Birgen [2005] e KLR where Ringera J held inter alia:

“……..there is no rule of law that two thirds of the income of a person is taken as available for family expenses.  The extend of dependancy is a question of fact to be established in each case.”

“ In determining the right  multiplier, the right approach  is to consider  the age of  the deceased, the balance  of earning life, the  age of dependants, the life  expected, length  of dependancy, the vicissitudes  of  life  and factor  accelerated  by payment in lump sum   ( Hannah Wangaturi Moche & Another V Nelson Muya  HCC 4533/93).”

63. In this case the deceased was aged 26 years.  There was no evidence as to the age of the plaintiff.  There  was also  no evidence  as to the vicissitudes  of life  or other imponderables  which would have  shortened  his working  life to only 10 years proposed by the defendant in his submissions.  There is also no reason given why the court should take the deceased’s earnings to be 3000/- per month, in the absence of any contrary evidence that he earned shs 15,000/- per month as a mechanic.  I would  accept  this figure  of kshs 15,000/- being what  the plaintiff testified  as the deceased’s monthly pay and reject the proposed  figures in the plaintiff’s submissions as submissions are not  evidence.

64. On the dependancy ratio, the plaintiff herself testified that she used to receive 5,000/- which is 1/3 of the deceased’s stated income.  I would therefore apply that dependancy ratio of 1/3.

The official retirement age in Kenya is 60 years   save for voluntary retirement and that of Judges which is 70 years or 65 years on voluntary basis.  I do not therefore  see the basis   upon which the  defendant  instead  averred  that the general retirement  age at  the time of  the deceased’s  death stood at 50 years.  That must have been out of guess work since the employment laws of this country are clear.  In my view, the proposals by the defendant are inordinately and or excessively low and without any justification. I would therefore  award the  plaintiff loss of dependancy  calculated  as follows:

15,000 less 30% tax = 4,500=10,500

Thus 10,500 x 12 x 34 x 1/3  = 1,428,000.

65. Under the Law Reform Act: Pain and suffering, the death certificate shows that the deceased died on the dame date of the accident.  No one knows how long it took him to die.  Whether on the spot or after some time.  The plaintiff proposed  shs  100,000/-  whereas  the defendant proposed shs  5000/- relying on Nairobi HCC 1484/1993 Lucy M. Njeri  V Fredrick Mbuthia  & Another  and Ngigi  Kimani V George  Ikonya Thuo HCC 1300/98 as well as Nyeri HCCA 76/2013  James Mugo Manyara V James  Gitu  Wambugu.

66. The generally accepted  principle is that  very nominal damages  will be  awarded  on the head  of  pain and suffering  if death followed  immediately after the  accident.  However, higher damages will be awarded if the pain and suffering was prolonged before death.  The conventional sum that courts have over time awarded has ranged between 10,000 to 100,000 where the deceased dies on the same date of accident.

67. In this case, I would award the plaintiff shs 50,000 for pain and suffering based on the decision on Rev Father Leonard O. Ekisa case (supra).  On the loss of expectation of life, the law  is such that  this award  and that  of pain and suffering  be capped   to a minimum  so that  the estate  does not  benefit  twice  from the same  death under the Fatal  Accidents Act and Law Reform Act.  The plaintiff proposed kshs 100,000 as appropriate considering that the deceased lived a healthy and prosperous life and by his death he was deprived   of his normal expectation of life.  She relied on Mushtaq Hassan case (supra) and Kakiki V Abdo & 2 others [1990] KLR 327. The defendant proposed shs 70,000 based on the case of Nairobi HCC 1484of 1993 Lucy M. Njeri V Fredrick Mbuthia & Another.  I would in the circumstances   of this case award the plaintiff kshs 80,000/-.

68. The plaintiff also submitted  on what she  called general  damages ( reasonable  funeral  expenses) and  relying on Leonard  O. Ekisa  & Another case  prayed  for shs 200,000 for  funeral expenses.  She also prayed for special damages of shs 23,600. The general principle of law is that special damages must not only be specifically pleaded but they must be strictly proved. In my humble view, funeral expenses have never been a general damage.  It is a special damage incurred in the process of sending off the deceased.  It must therefore be specifically pleaded and strictly proved.  Lord  Goudand  CJ in Bonham Carter V Hyde Park Ltd [1948] 64 TLR 177 stated

“…….plaintiffs  must understand  that, if  they bring  actions for  damages  it is not enough to write  particulars  and so to speak, throw them at the court, saying  “ this is what  I have lost.  I ask you to give these damages, they have to be proved.”

69. The plaintiff’s plaint at paragraph  8 pleaded as follows:-

The plaintiff incurred the following costs for funeral of the deceased.

Particulars of special damages:

Mortuary changes – shs 4,150/-

Accident abstract shs 200/-

70. In her testimony in court, she only produced a receipt for shs 4150/- for mortuary charges.  She also produced many other documents as listed in her submissions and stated that she paid kshs 500/- to Kenya Revenue Authority for search certificate which special damage of kshs 500/-was never pleaded. In her summary she claimed for special damages kshs 4150/- and general damages to take into account the 5000/- he used to give her. Yet  in her submissions she now turned  funeral expenses into general damages  and claimed  for  so  many other items  which she  neither  pleaded , testified  on their  expenditure  nor proved  their expenditure.  In the result, I would reject all the special damages proposed  for  want of pleadings  and or proof  and award the  plaintiff shs 4,150/- only being  mortuary charges  expenses  pleaded  and strictly proved.

71. In the end, I find that the plaintiff proved her case against the defendant on a balance of probabilities.  I enter judgment for the plaintiff against the defendant on liability at 100%.

72. I also award the plaintiff  damages as follows:

1. General damages

a. Under the Fatal Accidents  Act (loss  of dependancy)

Kshs            1,428,000.

b. Under  the Law Reform Act

i. Pain  and suffering                       kshs                50,000.

ii.Loss of expectation of life           kshs                80,000.

2. Special damages                                     kshs                  4,150.

73. I further   award the plaintiff costs of this suit and interest at court rates.  Interest on general damages will run from date of this judgment until payment in full. Interest  on special damages will accrue from the date  of filing suit until payment  in full.  Those are the orders of this court.

Dated, signed and delivered in open court at Nairobi this 16th day of February 2016.

R.E. ABURILI

JUDGE