Margaret Nyambura & Paul Munya Mbura v Peter Murigi Gitau [2020] KEHC 496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CIVIL APPEAL NO. 29 OF 2018

1. MARGARET NYAMBURA......APPELLANT

2. PAUL MUNYA MBURA............. APPELANT

VERSUS

PETER MURIGI GITAU..........RESPONDENT

(Being   an Appeal   from the judgment of Hon. M. Kurubu, R.M. in   the   Senior Resident Magistrate’s Court at Kandara Civil Case No. 135 of 2017 delivered on 21st June, 2018).

JUDGMENT

1. This   Appeal arises   from a judgment delivered on   21st   June, 2018 in   the   Senior   Resident   Magistrate’s Court at Kandara Civil Case   no.  135 of   2017. The Plaintiffs who are the   Appellants   herein had   sued the   Respondents, the Defendants therein for the following reliefs:

a. General   damages   under   the   Law   Reform   Act.

b. Damages under   the Fatal   Accidents   Act.

c. Costs.

d. Interests on   a &   b above.

2. The   Appellants had brought the suit as the Administrators of the estate of   the late Jeniffer Wairimu Mburu and as Dependants of the Estate of the   Deceased.  It was alleged in a plaint filed on 3rd August, 2017 that the deceased was on or about 3rd October, 2016 travelling as a passenger in motor vehicle registration No. KBM 567A   owned   by the Respondent when the   Respondent and/or his   servants, agents or driver negligently drove the said motor   vehicle causing it to overturn as a result of   which the deceased sustained fatal injuries.

3. The general damages were   sought on   behalf of the Appellants   who   were   a daughter and son of the   deceased respectively and their five other siblings. In addition to general damages, the Appellants   also sought special damages in the sum of   Kshs. 16,160/= .

4. The   Respondent failed to enter appeared or file defence consequent   which   the   Appellants through their Counsel requested for entry of Interlocutory Judgement under Order10 Rule 4 of the Civil Procedure Rules   2010.  The   Request for Judgment was dated 16th October, 2017 and filed on19th October, 2017.

5. On   14th   December   2017, the Court   duly   entered judgement against   the   Respondent   in   default of   appearance and filing of defence. Consequently, the hearing   against   the   Respondent   proceeded   by way of   formal proof.

6. The   Respondent called only one witness, namely the   1st   Appellant. In the   judgement   of   the learned trial magistrate the suit was dismissed on   account that   the Appellants did not proof their case on a balance of probabilities, specifically that liability was not established. That   gave rise to the instant Appeal.

7. In a Memorandum of   Appeal   dated 27th   June, 2018 and filed on 29th   June, 2018 two grounds of Appeal were raised namely:

a.  That   the learned   trial   magistrate erred in law   in dismissing the suit   when  there  was already interlocutory  judgement in place.

b. The  learned   magistrate   erred   in law by failing to assess  general   damages   and   dismissing suit for lack of proof.

8. From the onset, it is important to state that   the   Respondent needed not be   served with the Appeal because the   proceedings   in the Court   below   proceeded   ex-parte.  The   onus   of   this court in the appeal is simple, as   stated in the grounds of Appeal which is to determine whether the   learned trial   magistrate erred in dismissing   the   suit when   there   was already an   interlocutory judgement in place and whether she erred in failing to award   the general   damages she had assessed.

9. Learned counsel, Miss   Njiru for   the   Appellants   premised   her submission on the two   grounds of   Appeal.  She   emphasized   that   the trial Court’s   duty   once interlocutory   judgement   had   been entered was   to   proceed   and   assess   damages.  By failing   to   do so, she contended, the   Court   had   entertained   extraneous   matters thereby arriving at   a decision   to  dismiss   the   suit. She sought reliance in Nairobi   High   Court   Civil   Case No.205 of   2015 - Kenya   Broadcasting   Corporation   vs  National   Authority   for   Campaign   Against   Alcohol  and   Drug   Abusein   which   the  case  of  Patel   versus  East   African   Cargo   Handling   Services EACA (1974)was   cited.  The   Court in the   latter   case   stated “ The  main   concern  of  the   Court is   to do  justice   to   the parties and   the  Court   will  not   impose  conditions   on its self to   fetter the   wide   discretion   given   it   by  the   rules.”

10. In   this   regard, Miss   Njiru   submitted   that    the learned trial   magistrate misdirected   herself   by proceeding to assess a certain   amount of money   and   subsequently   dismissing   the   suit   stating   that liability had not   been   proved.

11. Counsel   also   took issue    with   the learned trial   magistrate’s decision   to subtract   the   sum   assessed   under   the   Law Reform   Act. In   her   view   an   award   under   the   Law   Reform   Act   should   be in   addition   to, and not   in   derogation of, a sum   awarded under   the   Fatal   Accidents   Act.  Her   prayers   were therefore, that the Court   finds   for   the   Appellants   for   the   sum   assessed   both   under the   Law   Reform   Act and   the   Fatal Accident Act.

DETERMINATION

12.  Order 10   Rule 6 of   the   Civil   Procedure   Rules, 2010   provides   as   under:

“ Where  the  plaint is  drawn   with   a  claim for   pecuniary   damages only or   for   detention of   goods with or   without   a  claim for   pecuniary   damages,  any   dependant   fails   to   appear  the  Court   shall,  on   request   in Form   Number 13 of   Appendix A,   enter   interlocutory   judgement  against   such   dependant,    and   the Plaintiff   shall   set  down   the   suit  for   assessment by  the Court   of   the   damages   or   the  value  of   the   goods   and damages  as the  case  may   be”.

13.  My   interpretation of the above rule is that once an interlocutory   judgement   has   been   entered the   Court’s   duty   is   simply   to    proceed   to   assess   damages   awardable   to   the Plaintiff, bearing in mind though that he/she bore the burden of demonstrating the Defendant’s link to the causation of the accident.

14. Thus, at this point, the onus of this Court is to determine whether the learned trial magistrate erred in dismissing the suit upon holding that the Appellant did not establish the nexus between the Respondent and the accident.

15. The Court must emphasize one undeniable fact; that in as much as the Appellants’ obligation at formal proof hearing was to adduce evidence for assessment of general damages, this did not lessen their(Appellants) burden   to   demonstrate   how   the   damages would be arrived at and the justification for that. More so, bearing in mind the cardinal principle that he who alleges must proof in cases where negligence is alleged. This was aptly set out by the Court of Appeal in the case of East Produce (K)Limited v Christopher Astiado Osiro, Civil Appeal No.43 of 2001 which held that:

“It is trite that the onus of proof is on he who alleges and in matters where negligence is alleged, the position was laid in the case of Kiema Mutuku Vs Kenya Cargo Hauling Services Ltd (1991) ….. in which the Court held that:

‘There is as yet no liability without fault in the legal system in Kenya, and a Plaintiff must prove some negligence against the Defendant where the claim is based on negligence.”

16. A look   at the proceedings   attest   that it is the 1st Appellant who testified for the Plaintiffs’ case. Her brief testimony was as follows:

“My name is Margret Nyambura Mburu. I am   the   Plaintiff.  I obtained letters of administration for Jennifer Wairimu my mother. Me and my brother are co-administrators. I adopt this statement.

Mrs.   Njiru:  The statement filed on 3/8/17 adopted. On 3/8/17 I filed a list of documents. I wish to produce the originals.

Demand letter -   Exh.   1

Original ad litem grant -   Exh.  2

Death certificate – Exh. 3

Police abstract -   Exh.5

Burial Permit – Exh. 6

Post mortem report – Exh. 4

Letter from the chief – Exh. 7

We spent money 6160. The receipt for the grant – Exh.8

I don’t have funeral receipts. I can’t get them.

My mother had 7 children. We are all grown-ups we seek compensation for losing our mother.”

17. From that brief evidence it is clear that the Appellant adopted her statement filed on 6/7/2017 as evidence. Looking at the statement it only bears four paragraphs recorded as follows;

“We Margaret Nyambura Mburu and Paul Munyu Mburu of Saba Saba, Murangá state as follows; -

We are the legal representatives of the late Jeniffer Wairimu Mburu. At the time of death, she was 63 years old.

On 30th October, 2016 while the late Jeniffer Wairimu Mburu was travelling with other relatives as passengers in motor vehicle registration KBM 567A, a Toyota Town Ace, the said vehicle was involved in a tragic accident along Saba-Saba – Githembe Road and as a consequence Jeniffer Wairimu Mburu died on the spot, she was taken to Murang’a County mortuary.

We came to know about the accident through a phone call from our cousin.

At the time of the accident, the deceased was a passenger in a private car.

We blame the Defendant for causing the accident.”

18. From the above excerpt it is clear that the Appellants did not allude to how the accident occurred and more so to what extent the Respondent could be apportioned the blame for causing the accident. Interestingly at Paragraph 6 of the plaint dated 6/7/2017 it is alluded that the accident in which the minor was injured was caused by the negligent driving of motor vehicle registration No KBM 567A by the Defendant and/or his servant, or driver or agent as a result of which the minor was knocked down and sustained injuries.

19. The Particulars of the negligent driving of the aforestated motor vehicle were spelled out at paragraph 6 of the plaint namely;

a. Driving at an excessive speed in all the circumstances.

b. Failing to swerve, brake, stop or in such a way so as to control the motor vehicle to avoid the accident.

c. Failing to exercise due care and attention.

d. Failing to adhere on the Highway traffic rule.

20.  From the oral evidence and the statement of the Plaintiff nothing close to how the accident occurred was asserted. Further, it was never evidenced who was driving the subject motor vehicle; either the Defendant or his servants, agents or driver as pleaded in the plaint. As earlier observed by this Court, there can never be liability without fault. It begs therefore, how the Plaintiffs sued the Respondent yet they could not demonstrate how he was linked to the vehicle said to have caused the accident or how he participated in the accident. Simply, the Appellants failed to unpack the alleged acts of negligence attributed to the Respondent as pleaded.

21. It is again said that the burden also lay with the Appellants to demonstrate the acts of negligence on the part of the Respondent. Clearly, from the statement of the witness it was only stated that the vehicle was being driven along a particular road. Nothing about the negligent manner in which the vehicle was been driven was alluded to. The law is well settled at Section 107 of the Evidence Act that; the burden of proof lies with;

“(1) Whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must proof that those facts exist.

(2) When a person is bound to proof to the existence of any fact it is said that the burden lies on that person.”

22. It is further clear from Section 108 of the Evidence Act that: “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given by either side”.

23. Therefore, I need not to belabour to emphasize that the Appellants failed to discharge their burden in demonstrating how the Respondent was linked to the causation of the accident. No doubt that an interlocutory judgement was entered against the Respondent. But on introspecting the meaning of the word “Interlocutory” it merely means on the interim. What this implies is that the Court had prima facie entered an interim judgment against the Respondent for his failure to enter appearance and file a defence. But at the formal proof hearing it was incumbent upon the Appellants to demonstrate how the accident occurred, who caused the accident and to what extent liability for the accident could be apportioned to the Respondent. To this extent the Appellant totally failed.

24. In fact, a look at both the oral evidence in Court and the Appellants’ witness statement are a clear testament of the casual manner in which the Plaintiffs’ case was conducted. A glimpse of it attest that the Plaintiff, more so her Counsel assumed that merely rescued an interlocutory judgment had been entered, there was no need to demonstrate how the Respondent was liable. Hence, the casual manner in which the evidence was recorded and adduced. Far from this assumption because the law is spelt out in clear black and white that the Plaintiffs still bore the onus of discharging their burden of proof of their liability against the Respondent. They failed to unpack this obligation. In this regard therefore, I find no fault in the learned trial magistrate’s finding that the Court “cannot proceed to hold liable a party whose capacity and involvement in the alleged accident is not proved”.

25. At this juncture I find no reason to delve into what award of general damages was suitable to grant. I only underscore that PW1 adduced no evidence on how and why general damages under the   Fatal Accidents Act was claimed.  This    was   left   to   the Counsel in her submissions   to   shed   light   to   the   Court   the grounds   on which   the Court   would   award   such   a sum.  In   her submissions, she   stated that   the deceased   was   63 years old   and   was   expected   to work up   to 75 years of   age.  She pegged   her   earning   at   a sum   of Ksh. 7,000/=   whilst applying   a   multiplier of   7.  What   is clear in the evidence of   the   witness   is   that   she did   not inform   the Court    how   the   deceased   earned   her   living   and   therefore   the basis on which   Kshs. 7,000/=   was   arrived   at.

26.  Furthermore, it   is    also trite   that     evidence   cannot   be   adduced   by   way of   submissions.  Submissions   serve   the   purpose of   emphasizing    the   evidence already on   record.  To   this   extent, I also entirely   agree   with   the learned    trial   magistrate   that   the   Appellants did   not discharge their   burden in establishing the   damages   awardable   to   the    Plaintiffs   and other dependants under the   Fatal   Accidents   Act.

27. My   view   is   that   PW1’s   evidence   was   adduced in extremely   causal manner merely on   assumption that since   an interlocutory judgement   had   been   entered, it   followed   that   the Court   would   automatically    enter   a judgement on   damages submitted on.  What   the Plaintiffs   forgot is   that   they had   a   duty of adducing   evidence   specifically    on   their   relationship   with the deceased, how much   they   depended on   the   deceased and   how   much   the deceased   earned for   her   living. I need not therefore, delve   into how   much was   awardable under this   head.

28. Although I   have found that no sum   was awardable   under the   Fatal Accidents Act it is important   that   I comment   on whether   damages   under   the   Law   Reform   Act   should   be   awarded   in   addition   to,  and  not   in   derogation   of,  a  sum   under   the   Fatal   Accidents  Act.  This   was in   view   of   the    fact that although the learned trial magistrate   assessed   the amount   that would have   been   awardable under   the   Law   Reform   Act   she   proceeded   to   deduct    the amount    from   the total   sum   assessed. Although she did not give reasons for doing, this Court can assume that the court was resisting to award double compensation.

29. In the case of Kemfro Africa Limited (Supra) the Court of Appeal delivered itself as follows;

“6.  An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.

7. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased   persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death.

8. The words ‘to be taken account’ and ‘to deducted’ are two different things. The words in Section 4 (2) of the Fatal Accidents Act are ‘taken into account’. The Section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act, the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage   in a mathematical deduction.”

30. The law is that the awards under the two Acts are made for the benefit of the estate. The Courts have an obligation, though discretionary to discount or consider the awards given under the Law Reform Act where parties also claim under the Fatal Accidents Act.

31.  Section 2(5) of the Act provides that:

“(5) the right conferred by this part of the benefit of the estates of deceased persons shall, in addition to and not on derogation of any rights conferred on dependants under the Fatal Accidents Act or the Carriage by Air Act 1932 of the United Kingdom.”

32. InMary Njeri Murigi –Vs- Peter Macharia & another [2016] e KLR Aburili Jnoted that:

“In the United Kingdom, the applicable law and principles are common law jurisprudence as adopted and applied by Kenyan Courts. Thus, under the Law Reform Act, the Courts are entitled to award damages for pain and suffering by the deceased and loss of expectation of life. The correct mode of assessing damages under the Law Reform Act is that the net benefit inherited by the dependants under the Law Reform Act  must be  taken into account  in respect of  damages awarded  under the Fatal Accidents Act because the loss suffered  under the Fatal Accidents Act  must be  offset  by the  gain from the estate of  the  deceased under the Law Reform Act” (emphasis mine).

33. InKemfro Africacase (supra) the Court held that if the net benefit from both the Law Reform Act and the Fatal Accidents Act is for the benefit by the same dependants, it ought to be discounted to avoid double benefit that the law does not allow.  However, Section 1(5) of the Law Reform (Miscellaneous provisions)1934 confers all rights under the Act for the benefit of the estate of deceased's persons in addition to, and not in derogation of any rights conferred on the dependants of the deceased by the Fatal Accidents Act.

34. In Pleasant View School Limited vs. Rose Mutheu Kithoi & another [2017] eKLRKamau. J held as follows:

i. “Any damages under the Law Reform Act in respect of loss of expectation of life and pain and suffering are benefits to the deceased’s estate. Section 2(5) of the Law Reform Act Cap 26 (Laws of Kenya) is clear that the rights conferred for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act. This Court could not see any other interpretation of that provision as the same was not ambiguous.

ii. “….. that the Court was fully aware that there seems to be two (2) schools of thought on this issue. However, this Court therefore associated itself fully with the holdings of Emukule J, Karanja J and Mativo J in the cases of Benedeta Wanjiku Kimani vs Changwon Cheboi & Another[2013] eKLR, Richard Omeyo Omino vs. Christine A. Onyango [2009] eKLR and David Kahuruka Gitau & another vs. Nancy Ann Wathithi Gitau & another [2016] eKLR respectively where the said learned judges were emphatic that damages awarded under the Law Reform Act are not to be deducted from the damages that are awarded under the Fatal Accidents Act but merely need to be taken into account.”

35. Emukule, J (as he then was) in the case of Benedeta Wanjiku Kimani vs. Changwon Cheboi & Another (Supra) rendered himself as follows: -

“…These awards are therefore capped to a minimum, so that the estate does not benefit twice from the same death – under the Fatal Accidents Act and the Law Reform Act. Hence the greatest benefit is under the loss of dependency under the Fatal Accidents Act as already calculated above…”

36. My understanding of the above decisions, more so, theKemfro one, is that the Court was categorical that a party can sue for damages both under the Law Reform Act and the Fatal Accidents Act. What it was quick to clarify is that the words “to be deducted” must be distinguished from the words “taken into account” referred to under Section 4(2) of the Fatal Accidents Act. It also clarified that what should be taken into account should not necessarily be deducted. Further, that it is sufficient and prudent that a judgment of the lower Court should indicate that in reaching the figure awarded under the Fatal Accidents Act, the trial Court bore in mind what was awarded under the Law Reform Act.

37. I also understand the Court of Appeal in the Kemfro case to be stating that in awarding damages under the Law Reform Act, the Court should not award such high damages as may be construed to amount to a double compensation in that the Plaintiff would still be benefitting from an award under the Fatal Accidents Act. In that regard therefore, the learned trial magistrate erred in deducting the amount awarded under the Law Reform Act from the award under the Fatal Accidents Act, more so without justifying the same. I am also of the view that the amount assessed as damages under the Law Reform Act would have been a reasonable award had it been proved and cannot be considered to be tantamount to a double compensation merely because an award under the Fatal Accidents Act was given.

38.  I emphasize that the principle set out is that the awards must be capped to the minimum or the awards made under the Law Reform Act must be considered. The trial magistrate failed to note that in making the deduction she had considered the amount under loss of expectation of life that was entered.

39. Be that as it may, the argument advanced by Miss Njiru that the learned trial magistrate erroneously deducted the sum assessed under the Law Reform does not much assist this court since the sum assessed under the Fatal Accidents Act could not stand in the absence of proof of dependency.

40. In sum, I come to the unfortunate conclusion that, notwithstanding once again that this Appeal was uncontested the Appellant failed to establish the link of the Respondent to the causation of the accident.

Accordingly, I find the Appeal without merit and the same is dismissed with no orders of costs.

DATED, DELIVERED AND SIGNED AT MURANG’A THIS 4TH DAY OF SEPTEMBER, 2020.

G.W. NGENYE – MACHARIA

JUDGE

In the presence of:

1. Miss Njiru for the Appellants.

2. No appearance for the Respondent.