Jona Venzi Nguko & Salanta C. Hauliers v John Mwaka Amisi & James Mutuku Mwaka (suing as the father, brother and personal representative of the estate of Joseph Mbatha Mwaka) [2015] KEHC 7691 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HCCA NO.  589 OF 2010

JONA VENZI NGUKO……...………………………………1ST APPELLANT

SALANTA C. HAULIERS…………………………………..2ND APPELLANT

VERSUS

JOHN MWAKA AMISI…………………………………1ST RESPONDENT

JAMES  MUTUKU  MWAKA (suing  as the father, brother and

personal representative  of the estate of

JOSEPH MBATHA MWAKA……………………….....2ND RESPONDENT

(Arising from the judgment and  decree of the Chief Magistrate’s court, Milimani  commercial Courts, Nairobi  delivered  on 10th December 2010  by Honourable S.A. Okato (Mr) Principal  Magistrate  in Milimani CMCC No. 1165 of 2009)

JUDGMENT

This appeal arises from the judgment and decree of the Chief Magistrate’s court, Milimani  commercial Courts, Nairobi  delivered  on 10th December 2010  by Honourable S.A. Okato (Mr) Principal  Magistrate  in Milimani CMCC No. 1165 of 2009. The respondents  herein John Mwaka Amisi and James  Mutuku Mwaka ( suing  as father and brother ) being  the personal representatives  of the  estate  of Joseph Mbatha  Mwaka  (deceased) instituted proceedings against  the appellants herein Jona Venzi Nguko  and Salanta  C. Hauliers  and Bhanchu Industries Ltd.   The respondents claimed for general damages, special damages costs of the suit  and interest arising  from an alleged accident along  Waiyaki  way at  Sodom Area  on 9th July 2006  involving  the deceased Joseph Mbatha  Mwaka  and motor vehicle  registration  No.  KAU 948Z/ZC 3850 Mercedes  Benz S/Trailer  belonging  to the 2nd appellant  herein who was  alleged to be the  beneficial owner  thereof  and  the 3rd defendant  Bachu Industries  Ltd  who was the  alleged  registered owner of said motor vehicle.  The respondents alleged  that the  said motor  vehicle No.  KAU 948Z/ZC 3850 Mercedes  Benz S/Trailer  was then  being driven by  Jona Venzi Nguko, the driver, agent  and or servant  of the  2nd defendant  ( 2nd appellant  herein) Salanta C. Hauliers Ltd.

The plaint dated 2nd March 2009 alleged that the driver Joan Venzi Nguko carelessly and or negligently drove, controlled and or managed motor vehicle registration NO.  KAU 948Z/ZC 3850 M/Benz S/Trailer  such that   he caused the same  to loose control, veer of the road  and knock down  the deceased who was  lawfully walking  by the  road side  as a pedestrian as a consequence  of which he sustained  fatal injuries.

The respondents also pleaded particulars of negligence and or carelessness on the part of the  1st defendant/driver as follows:-

a) Driving at a speed that was excessive and dangerous in the circumstances.

b) Failing to slow down, brake, swerve and or stop so as to avoid the accident.

c) Driving the said motor vehicle carelessly and dangerously without   any regard to the safety of the pedestrians therein and especially the deceased.

d) Failing to take proper look out or at all.

e) Caused the vehicle to have an accident.

The respondents  also relied  on the doctrine of Res Ipsa  Loquitur.  The appellants  herein  were blamed  by the respondents  for the negligence  of the driver of the accident motor vehicle.

The deceased  who was  aged 19  years  old was said to be a  casual labourer/mason  and by  reason of his sudden death, his  estate had suffered  loss and  damage  for which the  respondents  claimed damages both under  the Law Reform Act  and  the Fatal  Accidents  Act.  At the time   of his demise, the deceased  was  unmarried.  He was survived by  the 1st respondent father, his mother and five siblings.

The appellants  herein entered appearance  to the suit and  filed a joint defence dated  5th June 2009 denying  the respondent’s  claim as  alleged save that they admitted  the occurrence of  the accident  on 9th July 2006  but  denying that the said accident  was due to the negligence   of the appellants  as particularized  in paragraph  7 of the plaint.

The appellants  also pleaded  that the deceased  was  the author of  the accident  in question and or that  he substantially  contributed to the occurrence  in the  following manner:

a. He crossed the said road  when he knew  or ought to have  known that  it was not safe to do so.

b. He failed to use the pedestrian flyover.

c. He authorized his misfortune by acting recklessly and/or negligently in the circumstances.

d. He undertook dangerous  maneuvers  on a busy  road when  he know or ought to have  known this to pose danger  to himself and other road  users particularly the first  defendant.

The appellants  also denied  all other  claims by the respondents  as pleaded  by the respondents  and prayed for  dismissal  of the  respondent’s  suit with costs.

The respondents  filed reply to defence dated  17th June 2009 reiterating the contents  of the plaint and  denying  the allegations  that the deceased  contributed  to the occurrence  of the accident  or in any way as  alleged in the defence  and  put the  respondents  to strict  proof thereof.

The 3rd defendant in the court below, Bachu Industries Ltd entered  appearance  and  filed defence  on 25th March 2009.  it denied  the plaintiff/respondents’ claim  that  it was the registered  owner  of the accident motor vehicle at the material time of the accident and  or that  it was vicariously liable  for the  acts of  the 1st defendant/appellant  herein, it also denied ever having any interests  in the accident  motor vehicle and also denied that  the respondents   had served it with  demand  notice  of intention to sue.

Pleadings  closed  and the respondent’s  case  commenced   for  hearing before  S.A. Okato (Mr) Principal Magistrate who, upon hearing the parties and  considering their written submissions, found the 1st defendant/appellant  driver of the accident  motor vehicle  liable at 100% in negligence  and the 2nd and 3rd  defendants  vicariously liable for  the acts of  the 1st appellant.  The trial magistrate awarded  the respondents general damages  of kshs 744,000/-and special damages of kshs  46,870/- costs of the suit and interest.

It is that judgment and decree of the subordinate court delivered on 10th December 2010 that provoked this  appeal by two of the defendants in the lower court, who are the  appellants herein.

The appellants’ memorandum of appeal dated 20th December 2010  and filed on       21st December 2010  sets out  7 grounds  of appeal  challenging  the decision  of the trial magistrate.  These grounds   are:

1. That the learned magistrate  erred  in his judgment  in holding that  the  1st appellant  was 100% liable for the accident and the 2nd and 3rd  defendants  vicariously  liable  jointly and severally .

2. That the learned magistrate  erred  in law and fact  in finding that the  1st appellant  did not produce any statements  he recorded  with the  police in which he  blamed the  deceased for the accident.

3. That the learned magistrate  erred  in law and in fact in his finding  and misapprehended  the evidence  before him  hence arrived at a wrong finding  on liability  and thereby  held the 1st appellant  100% liable for the accident.

4. That the learned magistrate erred in law and fact in disregarding and failing to appreciate the whole evidence tabled by the 12st and 2nd appellants.

5. That the learned magistrate erred in law and fact by awarding damages to the 1st and 2nd respondents which were excessive in the circumstances of this case.

6. That the learned magistrate misdirected himself  by awarding  the 1st  and  2nd respondents  highly  excessive  damages  for loss  of dependency under the Fatal  Accidents  Act  based on a high multiplicand  of kshs 6,000 and a  multiplier  if 31 years  while  disregarding  the evidence before  the court  together with the 1st  and 2nd appellant’s submissions.

7. That the learned magistrate consequently erred in not exercising his discretion judicially and family.

The appellants  prayed to this court  to set aside  the lower courts  judgment  on liability and hold that  the  deceased   was the author of  the  accident  and dismiss  the suit.

Alternatively, the appellants  prayed  that liability  be apportioned  at 50% against the deceased  and  50% to the 1st and 2nd appellant ; that the  quantum of damages  under  the Fatal Accidents Act  be reduced  drastically; that  costs of the lower court and in this appeal be  awarded  to the appellants  and  that  this court do grant such other  relief  that it  may deem fit and just.

The parties advocates agreed to have the appeal disposed  of by way of  written submissions, which they both  dutifully filed  and exchanged.  In  the appellant’s submissions  dated 3rd  October 2014, it  was submitted  that the allegations  of negligence  against  the appellants were not proved and they combined  grounds No. 1,2,3 and 4 to argue that the learned  trial magistrate  erred  in failing to consider   the fact  that the evidence  tendered  by DW1, was  tendered  by an  eye witness  whose evidence  was crucial  in determining  the issue  of liability wherein  the    1st appellant  testified thus, inter alia:

“ That I saw him intending  to cross  and I slowed.  Passed  him  by the cabin and checked  through the side mirror  and saw that  person  throw himself  into the  rear  wheels .  I braked  and members of  the public  came and told that I was  the third  time  the deceased was jumping  into a vehicle”

In the appellant’s view, it was not possible for the 1st appellant to take any evasive action to void the accident by reason that he had already a moving vehicle.

The appellants also submitted  that PW3 could not be relied on as a witness  for the  respondents  because albeit  she claimed to  have been  with the deceased  at the zebra crossing  waiting to cross  the road, her name was not in the police abstract  as one of the  witnesses  to the accident  and that the  statement  she alleged  to have recorded  at the police  station was never  produced  in evidence and that  she was not a  truthful witness  because the  investigating  officer could  have taken down her name  and other details.  In the appellants’ view,  the evidence  of PW3 should have  been disregarded.

The appellants  also attacked the evidence of   PW1 contending  that he was not  the investigating officer and  further, that  his evidence  corroborated DW1’s evidence  as  recorded  in the occurrence  Book report  that the  deceased threw himself  at the appellant’s motor vehicle. In their view, the evidence  of DW1 was lucid on how the accident occurred  and therefore  the trial magistrate erred  in not considering  he appellant’s  evidence  in arriving at his judgment  on liability; and that  he ought to have found that  the deceased was  100% liable.

On quantum, the appellants  contend that the award  of kshs  744,000 under loss of dependency  was highly  excessive.  They relied  on the case of  Butt vs Khan (1982-88) KAR 1 that  an appellate court  will not disturb   an award of damages  unless it  is so inordinately high or  low as  to represent  an entirely erroneous  estimate. Further, that it must be shown that the judge proceeded on wrong principles  or that he  misapprehended  the evidence  in some material respect  an arrived at  a figure which was either  inordinately  high or low.

According  to the appellants, the respondents  (PW2) witness  evidence on the earnings of the deceased  who was alleged to be  a casual  labourer   was hearsay and  therefore the learned magistrate  erred in  believing  that the deceased  used to  earn kshs 6,000/- per month  as there  was no proof  of earnings by the  deceased therefore  he should have applied  a minimum wage of kshs 2,536/- and  a multiplier  of 28 years.

On the award under the Fatal Accidents  Act, it was submitted that the trial magistrate  did not consider the  appellant’s submissions  in arriving at the  award.  They relied on the case of  Kemfro Africa Ltd & Another vs Lubia  & Another (NO. 2) (1987) KLR  30 where the  Court of Appeal  reiterated  principles  to be observed  by an appellate  court  in deciding  whether  it is justified  in  disturbing  the quantum of damages  awarded  by the trial court  ie that  if the trial magistrate(court in assessing  damages  took into account an  irrelevant  factor or left out of account  a relevant  one or that , short of  this, the amount is so inordinately  low or so inordinately high that  it  must be a wholly erroneous estimate of damage.

The appellants therefore  urged the court to allow  the appeal and dismiss  the  respondent’s case with  costs.

In the alternative, the appellants  urged this court to find  and apportion liability  at 50% against  the deceased  and 50% against  the appellants and  drastically  reduce damages  awarded  under the Fatal Accidents  Act, or  make any other relief  as the  court may deem fit and just.

In opposing this appeal, the  respondents filed their  submissions  dated 22nd October 2014  contending that the trial magistrate properly analyzed  the evidence before arriving at the decision  that he made that the appellants were 100% liable for the  accident.

According  to the respondents, their  case was  well supported by the  evidence of PW3 Salome Wambui Mweu an eye witness  who was  standing  with the deceased  as  they waited   to cross the road and  that the  lorry emerged  and veered  off the road   hitting the deceased  at a pedestrian  crossing.

The respondents  also contended that the  appellants witness DW1 corroborated the  evidence  of PW3 that the  accident  occurred at a stage  and that the  driver of the accident motor vehicle saw the  deceased intending to cross the road  and he  slowed  down.  According to the respondents  it is  impossible for a person to throw  himself  under the rear  wheels and that  in any event  the appellants did  not plead that as part of the particulars  of negligence on the part of  the deceased.  Further,  that if the  deceased  had attempted  suicide  then the doctrine  volents non fit  injuria  should have  been pleaded as well.  In  their view, the 1st appellant  having seen  the deceased intend  to cross the  road at a stage, he should  have stopped  to allow the deceased cross before  proceeding with his journey, as a  prudent driver would have been expected to  do.

The respondents relied on the decision  in Jackson Mutuku Ndetai v A.O Bayusuf  & Sons  HCCA  231/2002 Nairobiquoting Grant  v Sun Shipping C. Ltd  (1948) 2 ALL E R 238 that a prudent  man will guard against  the possible negligence  of others when experience  shows  such negligence to be common and  that a driver ought  to do all that  he can in the circumstances  to prevent the accident  occurring.

On quantum, the  respondents supported  the award made by the trial court urging  this court not to  disturb  awards  made by  the trial court as quoted  above  by the applicants in the case of  Kemfro Africa Ltd v Lubia, maintaining that the award was not inordinately high.  The respondents also relied  on 2 cases  of Tarmal  Wire Products  v Ramadhan  Fondo Ndegwa HCCA  243/2010 and Spin Knit Limited v Johnstone Orara HCCA 9/2004,urging the court  to dismiss  the appeal  as it lacks merit.

I have carefully considered the appeal herein. This being  a first appeal, this court is obliged to abide  by the provisions  of  Section 78 of the Civil Procedure Act  and as espoused  in several decisions  of the Court of Appeal among them, Kenya Ports Authority  vs Kiston (K)  Limited (2009) 2 EA 212 wherein the Court of Appeal held inter alia,

“ On a first appeal  from the  High Court, the Court of Appeal should 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 that  regard  secondly that  the responsibility of  the court  is to rule  on the evidence  on record  and not  to introduce  extraneous   matters  not dealt  with the parties in the  evidence”  See also Selle v Associated  Motor  Boat Co. Ltd.  This court  is also bound by the  principles  that would enable  it interfere  with the  decision of the subordinate  court as  set out in the renowned  case of Mbogo  vs Shah  & Another (1968) EA 93  and Mwangi v Wambugu (1984) KLR  453 wherein the Court of Appeal  held:

“ A Court of Appeal  will not normally  interfere  with a finding of fact by  the trial court unless such finding is based on no evidence or on a misapprehension of the evidence  or the judge  is shown  demonstrably to have acted on wrong  principles  in reaching  the finding; an  appellate  court is not bound  to accept  the trial judge’s finding  of fact  if it  appears  either  that  he has clearly  failed on some material point to take  account of  particular  circumstances  or probabilities  material to an  estimate  of the evidence, or if  the impression  based  on the demeanor of a witness  is  inconsistent  with evidence  in the case  generally.”

My duty  in determining  this appeal therefore  is to  re-evaluate  re-assess and re-analyse  the extracts  on the record  and then determine  whether  the conclusions reached by the leaned  trial magistrate  are to stand  or not  and give reasons  either way while  at the  same time  cautioning  myself  of the need to avoid interfering  with the decision arrived at by the  lower court  as was held  in the  Mwangi v Wambugu (supra)  case and  Mbogo v. Shah (supra) cases.

Applying  the above  established principles  and reanalyzing  or re-evaluating  the evidence  on record, James Mutuku Mwaka testified as PW2 to the effect that the deceased  James  Mbatha  Mwaka  was his brother.  That  on 10th July 2006 PW2 received  a report of  the death  in a road  accident on 9th July 2006.  He then  left Mombasa for Parklands  Police Station where the  accident was  reported  and was shown the motor  vehicle that knocked  him as well as  its driver.  He went and indentified  the deceased’s  body in the morgue  and saw  a flattered  body.  The family  then arranged to have  the body interred.  They did  a search and found that  the motor vehicle  that fatally knocked the deceased belonged  to Bachn Industries Ltd.  He  produced  a copy of  records to that effect.  He also took out  letters of administration.  He produced a letter by the chief identifying the deceased’s  dependants, death certificate, demand  notice  to the owners of the motor vehicle  and receipts for funeral expenses  incurred.

In  cross examination  PW3 stated that  he did not witness the accident  and that  the deceased was aged  19 years, a casual labourer.  Further, that the  deceased had told them  that he  earned  kshs  6,000/- per month  and used to  assist  his siblings  and he used to  go home.

In reexamination, the witness stated that  the  deceased was a mason who used to  earn kshs  200/- per day.

PW3 Salome Wambui Mweu testified  that she  was a business lady and that  on 9th July 2006 she was  at Sodom  estate at Kangemi standing on the left  hand facing  Nakuru, at about  3. 00p.m.  that there were many people  waiting to  cross the road and she saw a lorry  emerge  from the city centre heading  for Western  Kenya.  The lorry veered off the road  and hit the  deceased.  PW3 and other pedestrians  ran away, to escape being  crushed by the said lorry.  She identified the lorry as being motor vehicle Registration No. KAU 948Z. she stated that onlookers rushed  to where the  vehicle  had stopped  and found that  the deceased  had died.  She testified  that  they were at a zebra  crossing  and that she had not known the deceased before but she  gave the  police her  mobile phone  number and later received a call from Mutuku-PW1 informing her that the matter was in court.

In cross  examination by Ms Ochieng , the witness  responded that she  worked  as a cereals  seller at  Kangemi  along Thiongo Road.  She was called  by the deceased’s brother, Mutuku and  recorded  her statement at the  police station, although she conceded  that  her name  was not on the police  abstract.  She confirmed that they were at a zebra crossing  on the left  side of  the road and that there were other vehicles; but that  the vehicle that hit  the deceased veered off  the road, hitting  he deceased by its  from tyres  and that after the accident, the deceased  was trapped  in the tyres.  PW3 also stated that the  lorry was  speeding  but stopped  off the road  after the  accident.  That there were about 15 people  at the scene  of accident.  She also stated that  she  did not know the part of the vehicle  which hit  the deceased and stated  that the flyover was far.

In re-examination, the witness stated  that part of the lorry was  off the road on the left  and that they started  running away that is  why she  never saw  the part  of the vehicle  that hit  the  deceased.  She maintained  that  the accident occurred  at a zebra  crossing.

PC Justus  Shembewa  No. 45751  attached  to D.T.O Gigiru testified  as PW1 and stated  that  on 9th July 2006  the station received  a report of  a fatal  road accident which occurred  at 6. 30 p.m. along  Waiyaki Way  involving motor vehicle KAU 948 Z and  a pedestrian  Joseph Mbatha  Mwaka  (deceased).  The accident  was booked  as report No.13.  He produced a police abstract form showing  the name  of the driver  as Jona Venzi Nguko of Salantac Hauliers.

In cross  examination the witness  conceded  that he did not  investigate  the matter  which was  still under investigations; that the investigating officer was PC Langat and that the scene was visited as per the occurrence book.

At the  close of the plaintiff’s case the defendant called DW1 Jona  Venzi Nguko  who was the driver of the  accident motor vehicle and  who told the court that he  worked for Salantac Hauliers.  He  had been a driver since 1992 for all  vehicles.  On 9th July 2006 at about midday he was from  Mombasa  driving motor vehicle KAU 948 Z semi trailer ZC 3850 carrying raw material  for making of cement  weighing  32 tonnes.  Reaching Kangemi  area on a climb ahead, and  driving at 45 kilometer per hour, there was  a stage ahead.  He saw  one person standing alone, a man intending to cross and DW1 slowed down.  When DW1  passed the pedestrian by the cabin and checked  through the side mirror  he saw the said person throw himself  into the rear  wheels.  He applied  breaks  and members of the public rushed  to the scene and told him that it  was  the third time the deceased  was  jumping into  a vehicle and that he had  survived  two previous  attempts.  DW1  checked  and found the deceased  trapped in the wheels, removed the body  to the mortuary and he drove the  vehicle to Kabete  police station and  later to Parklands police station.

The  vehicle was inspected  and he was  left to drive on to Uganda after leaving his details  with the police.  He testified that he was never  charged  with any offence.  He denied  that he was speeding or careless  and  stated that  there was no zebra crossing  and neither  was there any crowd  of people.  That he was in his lane  on the left  and that had  he been  driving carelessly and speeding  he would  have killed  many people.  He maintained  that the deceased caused the accident.

In cross examination by Mr Nduthu counsel for the plaintiff DW1 stated that  he was driving on the left  lane and that  the deceased  was standing  off the road on the left.  That the  deceased  threw  himself  onto the vehicle and that he saw  that when he  looked  through the side mirror.  He  stated that when  members of the public  came to where he was  they consoled  him not to worry  albeit  he did not know if those  people  recorded their statements  with the police.  He stated that his  vehicle  was inspected and it was  not defective otherwise  he would have  been charged.

The 3rd defendant Bhachu Industries  did  not participate  in the hearing. Parties  then filed  their submissions.

In their written submissions, the plaintiff/respondents counsel submitted that PW3  who was an witness was clear  that the deceased  was standing  off the road  when  he was knocked  by the accident  motor vehicle  and denied  the assertion that  the deceased  threw  himself  into the  lorry.  They contended that DW1’s evidence  that the  deceased threw himself  into  the parth  of the lorry   was a pure  untruth  as he was  being on the  defensive  to mislead  the court that  he was not  to blame  for the accident.  theyurged the court to find the  defendants  liable  and apportion  liability   at 70:30 in favour of  the plaintiffs.

On quantum, the respondent’s counsel submitted that the deceased was 19 years  and his  death had deprived  him of normal expectation  of life due to the defendants wrongful acts. They prayed for kshs 10,000/- for pain and suffering.45,020 funeral expenses, kshs  100,000/- for loss of expectation  of life  and on loss  of dependency they prayed  for a multiplier of 35  years  and a multiplicand  of shs 6,000 with a  dependency ratio  of 1/3 thus 6,000 x 1/3 x 35 x 12= 840,000 but urged  for kshs 950,000/- in view of  inflation.  He also  prayed  for specials  of kshs 46,870 together  with costs  and interest.

In their  opposing  submissions, the 1 and 2 defendants  counsels  submitted that  PW3 Salome  Wambui Mweu was not a truthful witness  since her name was not in the police abstract  secondly, that the DW1 was never charged with any offence; that there had been since the accident no further  investigations  and maintained that the version as given by DW1 as to how  the accident occurred  should  be taken to be the truth; and that  the deceased  was the author of his  own death  for jumping  into the  rear  wheels  of the  truck.

On quantum  the defendants/appellants  submitted  that  kshs  10,000/- would be  sufficient  damages  for pain and suffering  since the deceased died on the  spot, kshs 80,000/- for loss of  expectation of life and that under the Fatal Accident  Act, although  pleaded  that the deceased  was a casual employee, no evidence  was led to prove his employment or earnings  hence urged the court to take  2,536 applicable to unskilled workers  in 2006  as per the attached   Kenya Gazette Supplement  No. 37.  It  was conceded  that the dependency  ratio of 1/3  was acceptable since  the deceased  was unmarried giving  a multiplier  of 28 years  hence  kshs 284,032.  The defence  relied on HCC 2409/99 Nairobi  David Ngunje Mwangi  vs Board of Governors  Njiris  High School and HCC 815/2000 Nairobi Mary Wahu v Warsame Omar Faral.

On special damages, the defendants  submitted  that the plaintiff.  The defendants  nonetheless urged the court to  dismiss the  plaintiff’s  suit  with costs  as liability  had not been proved against  the defendants.

In his judgment  delivered on 10th December 2010, the learned trial magistrate  Mr S.A. Okato found the defendants liable  and awarded  the plaintiffs  a sum of kshs  900,870 general  and special damages.

In his view, the evidence of DW1 that  the deceased  threw himself into the   rear wheels of the vehicle  was not true  because  he never produced any statement he recorded  with the  police  in which  he  blamed  the deceased for the accident.

Further, that PW3 Salome  Wambui Mweu was an eye witness  whose  evidence  was direct  and reliable  and independent.

From  the above re-evaluation  and re-examination  of the record, and having  considered  the grounds  of appeal and submissions  on the same, there are only  two issues  for my determination:

1. Who  was to blame  for the  accident; and

2. Whether  this court should  interfere with  the quantum as arrived at  by the trial court.

On the first issue  of who was to blame  for the accident, the plaintiffs  witness No. 3  Salome Wambui Mweu  was clear  as to what transpired  on the material  day when she and  other people, about 15 in number  were  standing  off the road  in readiness to cross the road  at a pedestrian  (zebra) crossing along Waiyaki way.  That the defendant’s  lorry came from Nairobi in high  speed, veered  off the road  and hit  the deceased.  The people  on the road  ran away to avoid being hit and returned  later only to find the  deceased  dead.  That she  recorded  her statement  and gave her number  to the police  who in turn gave  it to the deceased’s  brother who  called her and informed  her that the  matter  was in court  hence she came to testify on the same.

On the  other hand, the defenceDW1 who was also the  driver of the  accident motor vehicle  denied that  he was responsible  for the accident.  He blamed  the deceased  for jumping  into the rear  wheels  of the lorry after it had by passed him  and that  he learnt from the  people who came to view the  accident that the deceased  had on  two previous occasions attempted to  jump into vehicles, implying that  he  was on  a suicide mission.

The trial magistrate believed the testimony  of PW3 Salome  Wambui Mweu and rejected DW1’s  evidence because he  did not produce his  statement  that he recorded  with  the police  in which he blamed  the deceased for  the accident, and  proceeded  to find the defendants  liable   for the fatal accident.

In the appellants view, the trial  magistrate  erred  in law and  fact  in failing to consider  the fact  that the  evidence tendered  by DW1, was  very crucial  in determining  the issue of  liability as per  his  testimony  on page 96  of the record  of appeal and therefore erred  in relying on PW’s evidence at page 95 of the record  yet she  had conceded  that her name was not in the police  abstract  and the fact  that she never  produced the statement she recorded at the police station as evidence  hence  she was not a truthful witness.

The defendants/appellants also submit that  since DW1 was  not charged  with any offence, then he was not  to blame  for the accident  since the  deceased threw himself into the path of  the  appellant’s motor vehicle.

In my own assessment, DW1 was solely to blame for  the accident  for the following reasons:

DW1 was clear  in his evidence  that he  saw the deceased off the road, intending  to cross the road.  He  therefore  knew  the intention of the  deceased before hand.  He did not  testify that he ever  warned  the  deceased of his approach.  He does  not state   at what distance  he  saw the deceased intend to cross  the road.  Albeit  DW1 stated that  he  slowed  down, and that he only  saw the deceased jump into the  rear wheels  of the lorry, and that the deceased  was alone  on the road, and  that there  was no zebra crossing  that evidence is  rebutted by PW3 who was  an  independent  witness to the accident.  PW3 was clear that  she  and many other people   about 15  were standing  on the left  side  of the road  intending  to cross at  a zebra crossing  when the  lorry came   in high speed, veered  off the road  and hit the  deceased  as a result  the rest of  the pedestrians  scampered for safety  and returned later  after the  lorry  had stopped  ahead to find the deceased dead.  PW3  admitted  that the driver  stopped off the  road and not on the road.  If indeed  the deceased  had jumped  into the  rear wheels  of the vehicle, and  if indeed  the driver saw  that happen, he could have stopped  there and then without swerving  off the road, so that the police  could come and find  him at the scene  of  accident  and assess  whether  the theory of  the deceased  jumping  into the rear  wheels  of the lorry was true.  In this case, there was  no sketch plan of the accident  of the accident produced  in  evidence.  However, I find  the  evidence  of PW3 consistent as to how  the accident  occurred.  Furthermore, the  driver DW1 in his evidence  in chief  contradicted  himself  when he  testified  as follows: “ one person  was standing  alone………….I was not speeding ……….there was no crowd  of people” and later stated that  “had I been  driving carelessly and speeding I would have killed  many people……….”

This court wonders, why the  driver would kill many people who were  not on the road  since  the deceased  was alone  on the road, where there was no zebra crossing  and that  there  was no crowd  of people intending to cross the  road as  testified by PW3 Salome  Wambui Mweu.  I find that  indeed as testified by Salome Mweu, there were many people  on the road intending  to cross  the road, and that  the driver  veered off the road  that is when  he knocked  the deceased as  others  scampered  to safety.

In this case, and in my view, it  was not necessary, however, that  the driver of the accident motor vehicle or even the witness PW3 produces  their statements  recorded  with the  police on how the accident occurred and neither  was  production of the statement  of PW3 a mandatory requirement  to prove  that she  witnesses  the accident.  There was no evidence on record  to suggest  that PW3 had been  ‘bought’ to give evidence  in the  case in favour of the plaintiffs  as to  how the  accident occurred.  The trial magistrate  had the  best opportunity  to observe, see and  hear the witnesses  as they  testified  and believed or disbelieved the evidence   as presented.  In my view, nothing  prevented the defendants/appellants  from finding  out from the police  file whether  indeed PW3’s contacts  and or  statement  was there  or not.  It cannot be that since  her  name did not  feature  in the  police abstract  then she did not  witness  the accident.  There is  nothing  on record  in the evidence to suggest  that PW3 was couched  to give the kind of evidence  that  she gave regarding the material  accident.

In addition, since PW1  a  police officer   was the first one  to testify  in the matter  on behalf of the plaintiff, nothing prevented the defendants/appellants herein from recalling  the police officer and questioning him on  whether PW3  was one of the eye witness  to the accident and or whether the police file contained her statement or contacts.  In  addition, nothing prevented  the defendants/appellants  from questioning PW2  the plaintiff  on how he got  the contacts of PW3 to come and  testify  on their (plaintiffs /respondents)behalf

Since  the defendants/appellants  had  an  opportunity  to hear all those alleged “lies”that the plaintiff’s  witness  had  told the court, they could have even produced a police file showing  the scene  of accident to disprove PW3’s evidence that the deceased was knocked  off the road. What the respondent needed to prove was liability of the appellants on a balance of probability and not beyond reasonable doubt and in my view, evaluating the evidence o record, they discharged that burden.

Albeit  the appellants contend that  the driver  was not charged with  a traffic offence, it should be  known that the standard of  proof required in criminal cases  is higher than that  in civil  cases.  If for example investigations  are shoddy, then  no charge of  any kind  can stand against  the offender, as the  evidence must prove  a criminal  charge beyond  any shadow  or cloud  of doubt, unlike  in civil cases  where a party is  only required to prove liability  on a balance of  probabilities.

In this case, and  on the evidence  tendered  which I have re-evaluated,  my own independent  conclusion  is that the driver of the  lorry was wholly responsible  for the occurrence  of the accident.  It was incumbent upon him to explain why, according  to PW3, he veered  off the road  thereby hitting  the deceased whom  he saw ahead   of him, intending  to cross the road.

The theory  that the deceased jumped  into the rear wheels of the lorry  in a bid to probably commit suicide  does not hold:  Nothing  prevented the driver from getting the  contacts of any of those individuals  on the road  who consoled  him not to worry for reasons that  the  deceased had on two previous  occasions attempted to take his  own life  by jumping  into vehicles.

In my view, that evidence  by  DW1 was  farfetched  and as to what other pedestrians told him concerning the deceased’s previous  intention is pure hearsay and fabrications incapable of belief  in the present circumstances, besides that piece of evidence being  inadmissible.

I therefore  find that the trial  magistrate  did not err in fact in finding  that the  driver of the motor vehicle  KAU 948Z was responsible  for the occurrence  of the accident.  In my view, the driver failed to prove that the deceased  must have contributed  to the occurrence of the accident  for  reasons  that there is no evidence that the deceased was crossing the  road  when he  was hit.  PW3 was clear that pedestrians were  at a zebra crossing waiting  for vehicles  to pass before  they could  cross.  DW1 also  confirmed that  he saw  the deceased  standing off the road intending to cross hence he should have exercised  due care and attention so as to  avoid  the accident.  He also  failed to  slow down or swerve  to avoid  the accident  and  failed to  take proper  look out  thereby killing  the deceased  who was off the road.  The respondents  in my view proved their case  against the  appellants on a balance  of probabilities.

I must add that a driver of a motor  vehicle must  be on the lookout  and a driver approaching   a pedestrians  crossing or bus stop must be  cautious.  There would, in my view, be no basis for  this court to find  that DW1 and the deceased  were to  blame for the accident  in equal measure of  the ratio of 50%: 50%.  By merely  being found on the road with the intention to cross does not connote negligence for which contributory negligence should be attributed.  This court  also notes that  among the  particulars  of the deceased’s negligence  pleaded in paragraph  5 of the defence  dated 5th June 2009, none of them  refer to the act of  the deceased  jumping into the rear  wheels of  the vehicle  or being suicidal.  The said  particulars were as follows:

a) He crossed the said road  when he  knew  or ought to have known that it was not safe  to do so.

b) He failed to use the  pedestrian  fly over.

c) He authorized  his misfortune  by acting recklessly and /or negligently in the circumstances.

d) He undertook  dangerous  maneuvers  on a busy road  when he  knew of ought  to have known this  to pose  danger  to himself  and other rod  users particularly  the 1st defendant.

In my view, If as at that time the driver of the accident motor vehicle was for sure, confident  of his  defence that   the deceased  jumped into the rear  wheels  of the vehicle, then  that act  should have been specifically  and not generally pleaded and his  evidence on that aspect  would on be  proving  what was  pleaded.  Parties  are bound  by their pleadings.  The  defendants did not seek to amend their defence  to include that particular of negligence.  That leaves  this  court with  no option but to  conclude  that the  defendant’s  witness DW1  evidence  of the deceased jumping  into the rear  wheels and that  he did so, as informed  by the by standers  in a bid to accomplish the previously attempted  suicide  is an afterthought.

Furthermore, if the DW1’s  version of how the accident occurred were true, then he would have  pleaded inevitable  accident  since it  would not have   been possible  for him to have control over  or avoid  such accident even  if he  applied the greatest  skill  and care.  In inevitable  accidents  one  does not  even attempt to shift the  blame to the victim, but pleads that there  was nothing that a prudent  driver could  have done to avoid the occurrence  of  the accident.  This  was not the case  here.  The  two defendants/appellants   hereto pleaded  that the deceased contributed  to the occurrence of the accident  and specifically  set out  those  particulars  of negligence  which in my view  they should have attempted  to prove.  They did not.  In the premise, I find that the 1st defendant  was negligent and  wholly to blame  for the accident  at 100% and that  the 2nd appellant  is vicariously  liable for  the acts  of negligence  of the 1st appellant who admitted  being its driver/agent  at  the material time of the accident. I also find no basis for the submission by the respondent’s counsel that the court should have found the appellants 70%liable and disregard it.

The plaintiff produced  a search  of the accident  motor vehicle  to show that it was registered in the  names of  the 3rd defendant who is not  a party to this appeal.

However, the 1st  and 2nd defendants  who are appellants  herein demonstrated  that the  3rd defendant had no interest  in the motor vehicle and  by virtue of Section 8  of the Traffic Act, I find  that the motor vehicle  was in control and use of the  1st appellant   on behalf of the 2nd appellant its beneficial owner and who is vicariously liable  for acts  of the 1st appellant  driver.  That  issue is  also uncontroverted.

On quantum, the appellants contend that the awards  on loss of  dependency of kshs  744,000 was excessive as there was no evidence that the deceased  was earning  kshs 6,000/- and that the trial magistrate erred in law in failing  to consider the submissions  by the  appellants.

The principles  laid down  in Butt vs Khan (1982-88) KAR  speak to the court  in deciding whether  or not  to interfere  with an award of damages.  The same  principles  were applied  in Kemfro Africa Ltd &  Another  v Lubia  & Another  No.2 (supra)that:

“ the principles  to be observed  by an  appellate  court  in deciding  whether  it is  justifiable  ion disturbing  the quantum  o f damages  awarded  by  a trial judge were held  by the former  court  of appeal for Eastern Africa to be that it must be satisfied that  either  the judge, in assessing  damages, took into account an irrelevant  factor, or left  out of  account a  relevant one, or that, short of this, the  amount  is so inordinately low  or so inordinately  high that it must be a wholly erroneous  estimate of the  damage. See Ilanger v Manyoka (1961) EA 705: Lukenya Ranching &  Farming Co.Op Society  Ltd v Karoloto (1979) EA 414.  This court  follows the  same principles.”

Applying the above principles  to this appeal, the respondents  pleaded  that:

“  At the  time of  his death, the  deceased  was aged 19 years and single.  He was full of life, energetic  and very healthy.  He would have  lived upto age of 80 years  were it  not for the accident.  The deceased upto and  until the time of his  death  was working as a causal  labourer/mason and  earning a minimum  of kshs 6,000/-.”

There is no dispute as to the dependants and the fact that  he used to  support  his 53 year  old mother  and siblings.

In his testimony, the 1st respondent in his evidence   in chief  did  not testify as to what  the deceased  did for  a living  and or  how much he was earning.  However in cross examination, he did  state  that “ the deceased  told  us he used  to be  paid kshs  6,000/- …….I have  nothing  to show  what the deceased  used to earn.  He used to  assist  our family.  The deceased  was staying  at Kangemi.  The deceased used to come home.”

In cross examination, the 1st respondent stated:

“ The deceased  was a mason who used to earn about kshs 200/- per day.”

The trial magistrate accepted  the wage of kshs 6,000/- per month. He also  stated that  the deceased  would have  worked  upto age 55 years and adopted  a multiplier  of 31 years.

There is no indication that the trial magistrate considered submissions by the appellant’s counsel. I agree with the appellants that the trial magistrate erred in law and fact in failing to consider the submissions by the appellants’ counsel.

In my view, had the trial magistrate considered those submissions  vis avis the pleadings  and sworn testimony  by the  plaintiff/respondent, he would have found  that it  was not  certain as to what  exactly  the deceased  used to do and or earn per month  or per day.  That  in itself, however, does not  mean that  the deceased  was not  doing anything to eke a living, as there was no contrary evidence that the  deceased  worked as  a casual labourer  and lived  in Kangemi  and that  he used to  support  his family whom he  used to visit.

The appellants  supplied  the court  below  with gazette notice of what an unskilled employee would  be earning per month and per day where  it is not  clear as to the specific job  that the deceased  was engaged  in at  any one particular time since he  was  not in a formal employment.

Gazette Notice No. 37 of 9th May 2006 by the Minister of Labour  in my view,   was the applicable  guide  as it provided  for basic minimum wage for unskilled  employees.  Since there was no  evidence of what  the deceased  was paid  on a monthly basis, I would  adopt  the daily wage  of kshs  106. 45 payable to casual  workers  at that time as per the legal  Notice No. 37  of 9th July 2006.

The deceased was not married.  He was only 19 years of age, a young adult.  There was no evidence that he was sickly or would not live up to age 55 as a working person then.  However, his level of education was not disclosed.  The dependency ratio of 1/3 is not disputed.  The trial magistrate used a multiplier of 31 years.  I see no ground upon which I can interfere with that multiplier.

In the premise, I would award the plaintiffs loss of dependency calculated as follows:-

106. 45 x 30 x 12 x 31= 1,187,982 x 1/3= 395,994

In the end, I set aside the award  by the trial  magistrate  and substitute  it with kshs 395,932 for loss of  dependency.

Awards  for pain and suffering  as well as for loss of expectation  of life remain  undisturbed  as no  issue   was raised  by the appellant  concerning  the same.  The same  applies  to special damages  as pleaded  and awarded by the trial  magistrate  which  the appellant  has not  challenged in this appeal.

Consequently, this appeal on liability is dismissed.  I uphold the trial magistrate’s decision and find the appellants liable in negligence for the death of the deceased at 100%.

The appeal on quantum succeeds to the extent that the deceased’s earnings are reduced from  kshs 6000/- per month   to kshs 3193 per month  thereby substantially reducing  loss of  dependency  to kshs  395,994.

Pain and suffering ……........kshs      10,000

Loss Expectation of life ....... kshs ..100,000

Special damages ………......kshs     46,870

Totals                                        kshs   552,864

The respondents  shall have  costs  of the  suit in  the lower court  and  interest  on general damages calculated  at court rates from date of judgment in the lower court until payment in full on the  sum  awarded  herein together  with interest on special damages from date of filing suit until payment in full. As the appellants have only succeeded half way they shall have half of costs of this appeal.

Dated, signed and delivered in open court at Nairobi this 6th day of July 2015.

ROSELYNE EKIRAPA ABURILI

JUDGE

6/7/2015

Coram R.E. Aburili J

C.A. Samuel

No appearance for respondents

No appearance for appellants ( Mr Julius Katumo  clerk from the firm Guram for  the appellant  in court states:

I have been waiting to get an advocate to hold  our brief but they  are all busy).  I am ready to take the judgment and pass the message to the office.

R.E. ABURILI

JUDGE

Court-  Judgment  read and pronounced  in open court as scheduled .

R.E. ABURILI

JUDGE

6/7/2015