Mastermind Tobacco (K) Ltd v Jane Miyogo & Jared Moriasi (Suing As The Personal Representatives And Administrators Of The Estate Of Jackson nyakundi Onyancha) [2015] KEHC 535 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  413   OF 2013

(Appeal  from the judgment  and decree  of Honourable Ms. S. Atambo Principal Magistrate  delivered on 19th July 2013 in Milimani  Chief  Magistrate’s Court  Civil suit No.  7914 of 2007)

MASTERMIND TOBACCO (K) LTD ………………………..APPELLANT

VERSUS

JANE  MIYOGO AND JARED MORIASI (suing  as the personal representatives and administrators  of the estate  of

JACKSON NYAKUNDI ONYANCHA)……………………RESPONDENT

JUDGMENT

This appeal  arises from the judgment  and decree  of Honourable Ms. S. Atambo Principal Magistrate  delivered on 19th July 2013 in Milimani  Chief  Magistrates Court  Civil suit No.  7914 of 2007. The appellant herein Mastermind Tobacco (K) Ltd   was  the defendant  in the lower  court whereas the respondents Jane Miyogo and Jared Moriasi Onyancha  suing  as personal  representatives  of the estate of the deceased Jackson Nyakundi Onyancha were the  plaintiffs. Originally, the respondents  sued the appellant  claiming  for general and special damages  arising  from the death of the deceased  Jackson Nyakundi Onyancha who was shot  and fatally wounded on 13th March 2006  while  he was  travelling in the appellant’s  motor vehicle.  The  deceased  was an employee  of the appellant  and it was alleged  that he  was engaged  in his duties  as a court clerk along Kiambu Road  whereupon the employer’s vehicle was  attacked enroute to deliver merchandise to customers and he was shot  dying on  the spot. The respondents blamed the appellant for being negligent.

The appellants  filed a defence  denying   that the deceased  was at  the material  time engaged  upon  his work  and or that  they were  negligent  in any manner and  averred  that he was  on his own  frolic not  acting in  the  course of  his employment  with the appellant when he died.   The appellant  also alleged  that the deceased  was negligent  or  careless  and responsible  for the fate that  befell him because  he  was found  in a place where he had  not been authorized  to be.

The suit was heard and determined in the respondent’s favour.   Being  dissatisfied  with that  judgment, the  appellant  lodged this appeal on 29th  July 2013  challenging  the decision of the  trial magistrate. The Memorandum of Appeal dated 26th July 2013  sets out  8 grounds of appeal namely:

That the  learned magistrate  erred  in law  and fact by failing to have due regard  and to take  into account the oral  and documentary evidence  by the appellant’s  witnesses presented to the court showing  that the deceased  died while engaging  in a duty  not assigned to  him by the appellant.

The trial magistrate erred in law and fact in finding that the appellant was 100% liable for the death of Jackson Nyakundi Onyancha.

That  the trial magistrate  erred in law  and facts   by finding  that the appellant’s  compensation to the estate of  the  deceased Jackson Nyakundi Onyancha  was insufficient  in the circumstances.

The trial  magistrate erred  in law and  fact by awarding   general damages  under the Fatal  Accidents Act to the time  of shs 2,324,920 thus failing to  appreciate the factor of  eventualities  of life while  calculating the said amount.

The trial magistrate  erred  in law  and fact by  awarding damages  for pain and  suffering  under the Law Reform Act  to the tune of  Kshs 50,000 having  noted that  the plaintiff’s  witness had  confirmed  that the deceased  died on the spot.

The trial magistrate erred in law and fact by disregarding the defendant’s evidence that indeed the deceased exposed himself to the unfortunate   incident that led to his death.

That the trial magistrate erred in law and fact by awarding an excessive award for loss of expectation of life in the circumstances.

That in all the circumstances of the case, the learned magistrate failed to serve justice equitably given the evidence before her.

The appellant prayed  that the appeal  be allowed  and judgment of the lower  court be set  aside together  with costs  and also prayed for  any other  order that  this court  may deem fit to  make.

The appeal  herein  was admitted  to  hearing under Section 79B  of the Civil Procedure  Act on  21st July 2014  exactly  one year  ago and on  5th November  2014  directions were given  by Honourable  Onyancha J.  Parties then agreed  to have the appeal  herein  disposed  of  by way of written  submissions.  Which they dutifully filed and exchanged and this court is now called upon to determine the appeal based on those submissions and the record as a whole.

This being  the first appeal, the duty of this court  as espoused  in Section 78  of the Civil  Procedure  Act is to  re evaluate  and re consider   the evidence  and the law  and exercise  as nearly  as may be  the powers  and duties of the court  of original  jurisdiction and come to  my own  independent  conclusion  but in doing  so, I must give an allowance  of the fact that  I neither  saw nor  heard  the witnesses as they testified.  This power was well expressed in the case of SelleV Associated MotorBoat Company Ltd [1968] EA 123.  In addition, as the appellate court, I will only interfere  with the lower court’s decision if the same is  founded on wrong  principles  of fact  and or law  as guided  by  the Court of Appeal  decision  in the  case of Nkube V Nyamuro[1983] KLR 403. However, this court is not bound by the trial courts findings of  fact if  it appears  that either  the lower court failed to take into  account  particular  circumstances  or probabilities, or  if the impression of the demeanor of  a witnesses is inconsistent  with the evidence generally. In Nderitu Vs Ropkoi & Another, EALR, 334 the Court of Appeal was clear that  an appellate court  should be slow  to differ with the trial court  and should only  do so with caution and  only in cases  where the  findings of  fact are  based on no evidence; on a  misapprehension  of evidence; or where  it is shown that the  trial court  acted  on wrong  principles  of law  in arriving  at the  findings  that he did.  The same principle was captured in Mwangi & another V Wambugu [1983] 2 KAR 100.

Applying the above law and principles as set out, I now reexamine and re evaluate the record, evidence and submissions.   The 1st respondent herein testified in the lower court   as PW1 that she was  the widow to the deceased  and produced  an affidavit  of marriage.  She  testified that on 13th March 2006 the deceased  had gone to work at the appellant’s place  of work  and that she  received a report  at about 6. 30 pm that  one of the appellant’s vehicles  had been involved  in a road  traffic accident.  She called  the company(appellant ) and they confirmed  to her that  the accident had occurred  but  that she could not get  details  whether  the deceased  was among  the casualties.  The deceased never returned home and that nobody told her of his whereabouts.  His phone was not going through  so at 6. 00 am the  following day she went to the appellant’s  premises and at 10. 00am when the sad news were broken to her of her husband’s death, that  he  had been shot dead  at 12. 30 pm on 13th May 2006  by robbers  who ambushed  and attacked  their  sales van  and that   he had died  on the spot at Githunguri in Kiambu.  She was informed that his body was at the City Morgue so she went and confirmed.

In cross examination the 1st respondent stated that the deceased was employed as a legal court clerk.  She admitted receiving kshs 675,000 as his death insurance claim, kshs 75,000/- funeral expenses   in total kshs 750,000 from the appellant.

The plaintiff also called PW2 No. 75284 Corporal Susan Mueni stationed at Githunguri police station who confirmed that according to OB NO. 26/22/9/08,  a robbery with violence  incident was reported to their  station involving  the appellant’s  van  which was selling cigarettes  from  Githunguri Division at Kagwi  and were  attacked by four armed  men with AK  47 rifles  after blocking  the appellant’s  motor vehicle/security  backup vehicle, killing the deceased  on the spot and locked the  driver in the boot, abandoning  him elsewhere.  According to the police abstract, the deceased was described as a security officer. The witness produced the OB Abstract as exhibit.

In cross examination the witness stated that the driver of the van was carrying cigarettes and that he is the one who reported  the incident to the police station.  She  also stated  that there were two  motor vehicles, the one  carrying the  cigarettes  and the other  was security  back up vehicle.  She  confirmed that the reportee driver stated that the deceased was a security officer and that the police  investigations revealed  that  the deceased was  a security  person in the security  van, which  enabled the police conclude  that he was co-security officer.

PW3 Dr. Joseph Ndungu performed  an  autopsy  on the deceased’s  body on 16th March 2006  at  the City Morgue  and found him  with two gunshot   wounds  on the front neck and in the back.   He concluded that the deceased died as a result of gunshot wounds on the head.  The body was identified by Thomas Onyancha and Ronald Ondieki.  The witness produced an autopsy report as an exhibit.

The appellant called three witnesses.  DW1 Charles  Maranga Maingi  who worked  as the appellant’s  security  officer for  12 years  testified that he  knew the  deceased who worked  as a court clerk.  That on  13th March  2006 while he was providing  security  to sales persons  and van to Githunguri he  was attacked by thungs  on  his way  to Githunguri.  He stated  that he was  accompanied  by the deceased who had  requested for a lift  and told him that he was headed for  Kiambu, so the  witness agreed  and they followed  the sales van  which was ahead  when suddenly  people shot at the  sales van.  He applied brakes, stopped and he was ordered to get into the boot and the motor vehicle was driven away and after 30 minutes he was abandoned and the robbers drove off.  The witness got a lift and went to report the incident to the police and later learnt that Jackson had been shot.

In cross examination the witness maintained that he was a security officer employed  by the appellant  and that he  was an ex police  officer.   His duties  entailed  guarding  company  property( surveillance  of sales  van vehicles  and on the  material date as was usual, he  received  instructions  from the chief security  officer to escort  the van carrying  cigarettes to Githunguri to deliver  to a dealer.  That there were 53 cartons in the delivery van which cartons   were less and did not require special police escort.  He stated that  he did not find  out from the deceased what  he was going to do at Kiambu but that since  the  deceased  was his fellow  employee and the vehicle  was  for their employer, he decided to give him a lift.   He admitted that he made a report to the police to the effect that his security officer was shot, and that he was not armed.  The witness also stated that security did not have to be armed.

In re-examination DW1 stated that the deceased was not there to assist him although he did not know specifically where the deceased ought to have been.

DW2 Jones  Munene Mbuthia  a Deputy Human Resource  Manager  for the appellant  testified and  produced the deceased’s letter of  employment  showing  that the deceased was employed  as a legal court  clerk based in Nairobi.  In cross examination he stated that security did not fall in his docket.  He stated that on the material day there was no security provided   to the van delivering cigarettes as it was not a large consignment to qualify for armed guard.  That he knew  the  deceased’s  duties were confined to  lands office  hence he got into the  security van  which  was not  part  of his duties  and they only got  to know his whereabouts  from DW1 after the shooting.  The witness maintained that the deceased was not supposed to be in that security van.

DW3 Ephantus  Maina a payable accountant employed by the appellant  testified that he is the one who  prepared payments  to the deceased’s  widow(PW1) for kshs 750,000 and  75,000  which was death insurance  claim and funeral expenses.

In cross examination the witness  stated that  the payment was full for loss of life and dependency  since the company had a group  personal accident cover  for all  employees and it covers loss of life in  case of  an accident involving an  employee, covering liability of an  employer.  He admitted not being  conversant in insurance policy issues but that  the sum paid  was adequate  in terms of f their compensation policy and that the suit was settled  after the widow  was paid.

The parties then filed written submissions.The plaintiffs/respondents’ counsel submitted  that the sum paid  to the  widow  which was 750,000/- less 75,000 funeral expenses  which was  due whether  or not negligence  was  proved as it was an insurance claim under the work Injury  Benefits Act where compensation and payment is mandatory  but that  the claim herein  was based on negligence  of the employer leading  to the death of  the employee and which falls  under the employer’s liability  at common law  hence the  estate of the deceased  could not have  been fully compensated  by that payment.  The plaintiff’s counsel submitted that there  was ample evidence that the  deceased, on the  material day had  been deployed  as a security officer according to the OB extract  report  made by DW1 Charles  Marangu  made at Githunguri  police station and that  therefore the  deceased died  while on duty  escorting  the cigarettes  van in the company of DW1. Further, that the appellant was negligent in failing to provide armed escort to the deceased while escorting the merchandise.  Counsel  maintained  that there was no evidence  that the deceased  had  deviated from his employer’s  business or that  he  was on his own frolic  when he  was  shot.   Further,  that the appellant  had a duty  of care  to its employees  which they  breached  by allowing  the deceased  to travel to Kiambu without usual escort   of armed  police officers   hence they  were negligent. He relied  on the case of  Makala  Mailu Mumede  V Nyali Golf and Country Club  CA 16/1998  where Nyarangi JA held that just because an employee accepts  to do a job  which is  inherently  dangerous   is not  an excuse for the employer to neglect   to carry out  his side of the bargain and  ensure  the existence of minimum reasonable  measures of protection.  Counsel also relied on Winfield and Jolowicz on tort 14th Edition London Sweet Maxwell page 213. The plain tiffs/respondents  maintained   that as per  the OB extract, the van with   Merchandise  was always  escorted  by armed  special crime  prevention  officers  of Nairobi  but that  on that material day  the said escort team was committed  elsewhere.  The respondents also  maintained that the appellant  was  under a  duty care  which it breached  for authorizing  the sales van to  proceed to Kiambu without armed  escort. The plaintiff counsel  also relied on the case of Postal Corporation Of Kenya  V Job  Gachange Njagi [2006] e KLR  and  Morgans  vs Lauchbury & Others  [1972] 2 ALL ER page  606.

On whether the deceased was  on his own frolic, it was submitted, relying on Julius Munguti Maweu  v Kenya Horticultural Exporters Ltd Machakos  HCC 75/97 that it  had not been proved  that  the driver  was prohibited  from allowing into the  vehicle any other persons  other  than himself. The respondents also submitted on quantum asking for damages  under the Law Reform Act and the Fatal Accidents  Act and  specials all totaling kshs 3,897,922.

The  defendant/appellant  submitted  that it  was not negligent  and therefore it could  not be  held  liable for  the fatal shooting  of the  deceased while he was in their  van since  he was not on an  authorized  journey.  According  to the  appellants, the deceased’s  work  was confined  to the lands  office Nairobi as a court clerk and not security personnel hence, he was not  expected  to have  hiked a lift  to Kiambu where  he met  his death  when robbers  shot at him.  In addition, it was submitted that the  incident  was clearly out of  control of the appellant. The appellants  reiterated their  witness testimony  in court and  maintained that the deceased  was not authorized  to join  the team   that supplied  the cigarettes to the customers and that in any event the widow had been  fully  compensated .  Further, that  the deceased  must have known that getting  into a security van and  escorting merchandise  was a risky affair  since he  had no instructions to be part of the  security escort  vehicle  hence the  appellant  owed him  no duty of care  outside  his duties  that he was employed to  do, relying  on the cases of  Afro Spin Ltd V Peter  Wagumo Obiero [2005] e KLR; Eastern Produce (K) Ltd V Christopher  Ahado Osiro [2006] e KLR; Makuleiyo V Otis Elevator  Company Ltd HCC  823/1968 EA LR 1969.

On quantum of damages  the appellant’s counsel  maintained  that the sums of shs 750,000 paid  and acknowledged by the deceased’s widow were sufficient  hence  the suit ought not to have been filed urging  the court to dismiss the respondent’s suit with costs.

In her judgment  delivered  on 19th July 2015  S. Atambo Ms  Principal Magistrate  found  that it was an undisputed  fact  that  the  deceased was  an employee  of the appellant  and that  he was in the course of his  duties  when he  was shot dead  hence his estate  though compensated, the compensation was not  adequate. The trial magistrate found that in as much as the deceased was employed as a legal court clerk, but that all evidence pointed to the fact that the deceased   was in the course of this duties as a security officer at the material time.  Further  that the defence  witnesses  could not  explain  what  the deceased  was going  to do in Kiambu or that he was on his  own frolic  since  even the  report  made to the police station  by DW1 was clear  that the deceased  was a security  officer and  that  DW1  was hard  pressed  to explain  whether  the deceased had  travelled  with the  security team as  security back up.  Further that DW1 contradicted  himself  in evidence given in court and the report  he made to the  police station after the robbery  incident  in that  whereas   he described  the deceased as security  officer  at the police station he  nonetheless changed   in court and  did  not want  to admit that the deceased  accompanied  him as security  yet he had no skills, training or  protective gear. Further, that the OB extract  confirmed that  normally the  vans are escorted  by officers  from the special crime prevention  unit SPCIU  who were not  available  on that day since they  were busy  elsewhere leading to the inference that there  was always  a potential  risk of  attack hence they were  to be escorted by armed  officers.

The trial  magistrate  also concluded  that in the  absence of the defendant/ appellant’s  policy  document  to support DW1 attempt to differentiate  what was escorted  by security officers and what was not, the appellant  was negligent  for allowing  the sales van to go out  without police escort  and leaving only  the deceased  and DW1 in escort. In her view, the appellant had not established the claim that the deceased had deviated from the employer’s business for personal reasons.

On quantum, the trial magistrate was of the view that the 750,000/- was not sufficient   to compensate the deceased’s estate and it did not indemnify the employer for negligence or breach of duty. Applying the multiplier  of 17  years  since the deceased  was 43  years and expected to retire at 60 years, she awarded  kshs  2,234,920  under the Fatal Accidents  Act made up of 17,095 x  17 x 12 x 2/3. Under the Law Reform Act, the trial magistrate awarded the plaintiff kshs 50,000/- for pain and suffering and shs 100,000/- for loss of expectation of life, costs and interest. She found that special damages of kshs 75,000/- pleaded was not proved.

In support  of this appeal and  the  grounds set  out in the Memorandum  of Appeal  dated 26th July 2013, the appellant  submits, on grounds 1,2,3 and 4  that the trial magistrate disregarded issues of law and  fact and  as a result  found the appellant 100% liable for  the death of Jackson Nyakundi Onyancha despite evidence from DW1 that  the deceased  had requested for a lift  and that  being a legal court  clerk  he was required to be  at lands  office Ministry of lands  Nairobi but opted  to go for a  frolic  of his own.  As a consequence, it was submitted that  the appellant  cannot compensate  the deceased  for acting  outside his scope  of  his duties  which  he had been assigned  by the appellants.  They relied  on Halsbury’s Laws of  England  4th Edition VOL 16 paragraph 562 to demonstrate that where  an employee  abandons the business of his master and while  on a mission of his own, his employer is not responsible  for the negligent  act of the employee.   The appellant  also pleaded   that the trial court  also erred in awarding  shs  2,324,924 under the  Fatal Accidents  Act  without proof  and disregarding  the rules  of evidence in  arriving at  the  judgment.  They relied  on CA 212/98 CA Abdul Ali Mahadhi V Ramadhan Said  & Freight  Forwarders Ltd.The appellant  maintained  that with the payment  of shs  750,000/- from the  Insurance Company, the respondents were not  entitled to  any other  form of compensation.

On grounds  5,6,7 and 8 of appeal, the  appellant contended that the trial  court did not take  into account the appellant’s submissions  but only considered the respondent’s submissions   which she  upheld  yet PW1 was not an eyewitness and gave  hearsay evidence  which ought to have  been treated  with caution.  They relied  on Elijah Ole Kool V George  Ikonya Thuo Nairobi HCC 1299/98 that  the respondent failed to  prove  their case  on a balance of  probabilities  that the appellant    failed  either  in their statutory  common  law duty, and that they instituted suit  that was misconceived  and unsubstantiated in law.  Further that the respondents did not come to court with clean hands and did not therefore deserve  to be aided by the court.  The appellant urged the court   to set aside the judgment of the lower court with costs.

The respondents supported the judgment and decree of the lower court and urged this court to uphold the same and dismiss this appeal with costs.  They  maintained  that they had proved  breach of  duty of care  on the part of the  appellant  and that the  evidence  on record  showed that on a balance  of probabilities, the  appellants were liable for  the  fatal shooting  of  the deceased  who was assigned  security duties  without  being  given any basic training  and or protection.  The respondents also urged the court  not to  interfere with  quantum of damages  save that  they sought for  enhancement from 2,474,920 to 3,824,920.   They  also prayed  for shs 75,000/- being  funeral expenses  relying  on HCC 61/2001 and CA 312/2009 Premier Dairy Ltd & Another [2013] e KLRwhere the  Court of Appeal allowed funeral  expenses  without  production of receipts as proof of expenditure. They also relied on  Makano Makonye  Monyancha V Hellen Nyangena  CA 113/2012 [2014] e KLR and Avtar  Singh  Bhabra  and Another  V Geoffrey  Ndambuki  [2014] e KLR in urging the court to uphold the entire  decision  of the trial court  on quantum.

I have carefully considered  the pleadings  on record  in the lower court, the evidence  both oral and documentary, the  able submissions by both parties  advocates in the lower court  and  before this  court together  with the authorities  cited in support of the parties  respective positions. There are three issues for determination in this appeal, coupled with several ancillary questions which shall be answered in the course of analyzing the three issues. The issues are:

Whether the appellant   was liable   to the respondents for the  death of the  deceased Jackson Nyakundi  Onyancha in the circumstances of this case.

If the answer to the above issue is yes, what is the quantum of damages payable?

What orders should this court make?

Section 107 of the Evidence Act provides that whoever desires   any court to give judgment as to any legal right or liability dependent  on the existence of facts which he asserts  must prove  those facts  exist.  In this  very unfortunate  case where a life was lost in the hands of reckless robbers who reap where they never sow, it is  not disputed that the deceased  was an employee of the appellant  and that  he was  employed as a legal court  clerk as evidenced  from DW1’s  evidence, and the defence witnesses who also produced his letter of appointment.  It is also not disputed that on the material date when the deceased met his uncalled for death, he was found to be in the appellant’s motor vehicle registration No. KAT 190L  in the company of DW1 who was its driver  and employee of the appellant as  a security officer, accompanying another van KAR  741 E  which was carrying cartons of  cigarettes  enroute  to supply to a customer  in Kiambu.

It is further  not  disputed that DW1 was providing security surveillance back up  to the van that was  carrying cigarette merchandise  for sale when, enroute, they were attacked by armed thugs  who shot at his car  thereby fatally wounding  the deceased. The question that arises from the above brief uncontested facts if what duty if any did the appellant as an employer have towards the deceased as an employee.  And if there was a duty, was the appellant in breach of such duty?  And if there was breach, were the fatal injuries as a consequences of that breach?

The appellant contended  that the  deceased  was employed  as  a legal clerk  and that  therefore  since he  was not authorized  to use the security van to Kiambu as his job  was  confined  to going to the lands office in Nairobi Ardhi House, then he was  on his own frolic  and endangered  his own life by risking to  enter into the  van to accompany  the security  officer, which  was not his ordinary cause of duty. It is further contended that the appellant  could not  have been  expected  to offer the deceased any protection  as the incident  was not  foreseen.

The relationship  between employee  and employer  is described  in  Halsbury’s Laws of  England  4th Edition VOL 16 paragraph 562as follows:-

“It is an implied term of the  contract of employment at common  law, that an employee takes upon  himself risks  necessary incidental to his employment.  A part  from the  employer’s duty to take reasonable care, an employee cannot call upon  his  employer, merely  upon the ground  of their relation of employer  employee  to compensate  him  for  any injury  which he  may sustain in the  course of the dangerous character  of the work upon which he is engaged.  The employer is not liable to the employee for  damage  suffered  outside  the course of   his employment.  The employer  does  not warrant  the safety of the  employee’s working condition  nor  is he an insurer  of his employee’s  safety, the  exercise of due care  and skill suffices.”

The above  passage  which reflects the common law position  was adopted  by  the Court of Appeal  in the case of  Mwanyule V Said t/a Jomvu Total Service  Station [2004] 1 KLR 47 as the law  applicable in Kenya.  In that case,  the Court of Appeal concluded that the employer  owes no absolute  duty to the employee  and that  the only duty owed is that  of reasonable  care against  risk of  injury caused by events reasonably  foreseeable, or which would be  prevented  by taking reasonable  precaution.

Thus, in order for the respondents to succeed in a claim of  this nature, they had to prove  or establish that the  appellant  failed to exercise reasonable  care for the safety  of the deceased  against  risks  which were  reasonably foreseeable.

As I have stated above, it is an undisputed fact that the deceased was employed as a legal court clerk and not as a  security guard.  However, on the material fateful  day of 13th March 2006, he was to be  found travelling  in the appellant’s  van enroute  to Kiambu and  moreso, accompanying  a sole  security  officer  who was carrying out  escort  duties  to the sales  van ahead, carrying cartons of cigarettes  merchandise  for delivery  to the appellant’s customers in Githunguri.  According to DW1’s  evidence, the deceased  called him and hiked a lift   to go to Kiambu.  DW1 did not ask the deceased what  he was  going  to do in  Kiambu, and that  he knew  that the  deceased  worked as a court clerk.  DW1 also stated that the vehicle  was a company vehicle and the  deceased  was an employee of the company  so he gave him a lift.  It is  also DW1  who reported  the robbery attack to the police  and made a very detailed description  of the incident  vide OB No. 36 of  13/3/2006  which  OB report  was received by No. 31665 Senior Seargent Benard Munwayi.  DW1  in cross  examination stated that the deceased  had no authority to be  where he  was  and that DW1 could not  indicate that  he was with the  deceased  because the company  knew  DW1 he was  alone. However, the detailed statement of DW1 to the police as per  his report  on 13th March  2006  was very clear that:

“ Mr Charles  Marangu Maingi C/O  Mastermind  Tobacco P.O. BOX 64144  Tel 020-350037,0722690624 Nairobi  has made  the following report.  He says  that on the 13th day of March 2006  at around  12. 30 pm while escorting  a Mastermind  Tobacco Company motor vehicle registration No. KAR  741 E Nissan hardbody being driven  by Joseph Waweru  Ngau and his salesman Martin Mwangi Muriithi  were blocked by motor vehicle  registration No. KAK 725  a saloon  white car  with  four occupants  each armed  with an AK  rifle.  This  was along Moi Road near  Pen Elite in Kagwe  six kilometers  North of Station.  The driver of the pickup banged the  robbers  vehicle and sped off.  The reportee was driving  a Suzuki Escudo  registration No, KAT  190L that was   trailing the pickup as a back up  motor vehicle  providing security.  His security officer  Jackson Nyakundi Onyancha  was shot  five times  on the head, neck, abdomen and two shots on the chest dying instantly.  The reportee was bundled  into the back  of the motor vehicle, then driven a few kilometers where he was abandoned   and he was put  in the boot of the robbers  vehicle which they abandoned  and took off with motor vehicle  registration No. KAT  190 L Suzuki Escudo which belonged to  the reportee.  The scene  has been visited  photographed  and the body  taken to the  city mortuary.  It was learnt that  the sales  van is  always  escorted  by Special  Crimes  Prevention  Unit (SCPU)  officers of  Nairobi area, but never got any today  since it  was alleged they were  committed elsewhere.Investigations in progress.”

The above  comprehensive  report to the police by DW1  was  clear that  the deceased’s capacity  in the van was that of a security  officer and  not as a court clerk at that particular  moment.  The trial magistrate  who had the advantage  of seeing and hearing  witnesses as they testified  and observing  their demeanor  was clear  in her  mind and  stated that  DW1 was  hard pressed  in cross examination to explain why he  was accompanied by the deceased, after he tended  to exculpate  the appellant that it  was not the company policy to carry personnel  who were not security personnel in that vehicle.  It is  the  same DW1, who  reported without  any coercion  or intimidation, that  his security officer had been shot  dead.  That was a report  made  to the police, a public law enforcement and security agency.

Then there  was the evidence of DW2 Jones Munene Deputy  Human Resource Manager  who stated that the deceased’s  employment  was as a legal  court clerk whose duties  were confined  to the Lands office.  He admitted that  the sales van  was only to provide  surveillance  security not armed personnel  as per company policy  since  the van did not have a large consignment.  The witness admitted that he was involved in security arrangements  but not directly.  He also  admitted  that on the material date there  was no security provided  to the van delivering the cigarettes  since  it  was not a large enough consignment to be provided with armed guard  so there  was only a surveillance  security van for the sales van.  He also admitted  that the reason for  armed escort  is that the  value they carry is  high but  he did not  know  the value  of the merchandize  that was being  transported   on that day.  He again stated  (contradicting himself) that sales vans are never  escorted.  DW1 did  not regret  the  incident  because it was a normal occurrence  and that  he was not  aware  where  the deceased  was  on that  day until  after the shooting  since it  was not part  of his duties  to be in the security  van and  that the  witness  was not  even sure  the deceased  was with DW1.

with utmost  respect, the above  evidence as adduced by the defence witnesses  was self contradictory in material  particulars  and could not  have  assisted  build the defence  case or at all.  A Human Resource  Manager who  at the time  he was testifying  as at 13th May 2013 was 7 years  after the incident must  have had  occasion   to read the  police report  concerning the  incident yet he testified that he was  not sure if  the deceased  was with DW1 during the incident when DW1 was very  categorical  in his  testimony in court  and statement    to the police that  he was  with the deceased  in the van when  the incident occurred.  DW1 also materially contradicted  himself that at one moment   he knew that sales vans  were  escorted  by armed personnel when  they carried  high value  consignments  and yet  he did not  even  know the value of the consignment  which was  carried on that day.  He then  contradicted  himself  further and  stated that  sales vans  were never  escorted  by armed  guards.  He also  stated  that on the material day  no security  was provided to the van  delivering the  cigarettes  whose value  he did  not know, although he confirmed that  cigarettes  are high value goods  and are targets for robberies.

I have also examined the  judgment of  the trial magistrate  and in my  view, she considered  all that evidence  on record  and analyzed  it in a  succinct manner before arriving  at  her conclusion  as to whether  the  evidence  of DW1 and DW2 were  capable of dislodging  the evidence  adduced and produced by  the respondents  regarding  the circumstances  of the death  of the deceased.   It is therefore  my view  that the very strongly worded  submissions, by the appellant’s  counsel  regrettably, cannot persuade  this court  to find that  the trial  magistrate  failed to have due  regard  to all the evidence  of the  appellant’s witnesses.

In the detailed witness statement of DW2, who also produced the deceased’s letters of employment, the defence witness detailed  the duties of the deceased which all related to duties  of a paralegal clerk.  He  also stated that the  deceased’s  duties  did not require  him to  provide any escort  services to the defendant’s sales vehicles and that  he was strictly required to be at  the Lands  offices in Nairobi.  What  this witness did not tell the  court is  whether  on the material  day and date, he was aware that the deceased  had been assigned  duties that would command  him to be at lands office, Nairobi but that  because the  deceased was a  person  who could not take instructions, he failed to  go to Lands  office  and chose  to hike a  lift  in the company  van  enroute  to Kiambu to  do or perform  undisclosed  business.  The witness  also stated  that the  act of  hiking a lift  in a sales vehicle  was  contrary to company regulations. However, DW1 was categorical  that the  deceased was in  the escort  vehicle and not in the  sales vehicle.  The DW2 then concluded that the deceased was on his own  frolic and therefore  he did not  heed  his supervisor’s instructions .  The  above evidence  was rebutted by the PW3 evidence  as per the  DW1’s  report  to police that  the deceased  was at that time of  the shooting  offering  security services.  Furthermore, there was no evidence  from the deceased’s supervisor  since DW2 did not say that he  was the deceased’s supervisor, to show that the deceased had on the material date been assigned any work at the Lands office and or that the  deceased  had disregarded his supervisor’s  instructions by undertaking  duties  that he was not required  to undertake when  he was shot.

I reiterate that the deceased’s supervisor  did not testify to indicate  that the deceased  had on that  particular  day been specifically instructed  and assigned  specific  duties of being  at  the Lands  offices in Ardhi House within Nairobi  but that  instead, the deceased  abandoned  his duties  to go for  his own  issues, which  issues  were also unknown  to the  DW1 who allegedly gave  the deceased  a lift.  The evidence  of DW1  giving the deceased a lift  was contradicted  by DW 1 evidence  as per  his report  to the police  following  the shooting  incident  that:   “ His security officer Jackson Nyakundi was  shot five times on the head…..” as per  OB extract No. 36  of  13/3/2006.  The question  that must beg an answer is, if the  DW1 knew that the  deceased  was a court clerk who was not an authorized passenger  in that surveillance vehicle at that  time, why  did he report  to the police, which  is a public  record, that the deceased  was his security officer? What  was so  difficult  for the DW1 to simply  state  in his  police  report that he had given  a lift to the deceased  who was his  fellow employee, enroute to Kiambu? The inference that this court  makes  from such conduct  of DW1 is that  he was  an unreliable  witness and  the contradictory evidence  of DW1 and DW2 are a pointer  that they knew that  the deceased, whose  job description  was that of a court clerk, could nonetheless be assigned  different  duties  and those  duties in the instant case were security duties  wherein he  was to be found  on the fateful day  as reported by the DW1.  Indeed, as  correctly observed by the  learned  trial  magistrate,  there  was absolutely no  contrary evidence to show that  the deceased  was not killed  while  in the course of his employment.

Although the appellant  wanted the court  to believe  that the deceased disregarded  the regulations  that did not  permit  him to do any  other job other than  the court  clerk duties, there was no  such regulations  or policies  produced  in  court to  prove that the deceased  was  a difficult  employee who did not follow instructions of his supervisor.  The deceased’s contract of service  had just been renewed  in December on 22nd December 2005  four months before his demise  upon review of his performance  and  finding that  his performance  was good   indeed, if the deceased had  violated  any terms of his employment, the  appellant would have marshaled  all the evidence and adduced  it in  court, including calling the  deceased’s  supervisor and the chief security  officer to  confirm that the deceased  had on that  material  day been  instructed to do or  perform  a different  task from that of  being security officer  or that there was no way a legal  court clerk could have  been assigned  security duties  since he was not trained to undertake  those duties.

This case is in pari materia with the case  of Oluoch Eric Gogo v Universal  Corporation Ltd HCCA 263 of 2006 Nairobi  where the  appellant casual worker  was  injured when the machine which was being repaired by a technician  injured him.  The respondent contended  that since the appellant was never  assigned any duty to operate  the machine at all and that if the  machine  broke down then the appellant  was instructed  to call for  help which he did, the respondent maintained  that by handling the machine the  appellant  was voluntarily assuming  risk by being close to the machine and  purporting to assist the  technician to repair the machine without authority since he was not trained  to repair the machine.  The respondents  in that case  relied on STAT PACK Industries Vs James  Mbithi  Munyao Nairobi HCC 152 of 2005  where  the court  stated that :

“An employer’s duty at common law is to take  all reasonable  steps  to ensure  the employee’s safety but  he cannot baby sit  an employee.   He  is not expected to watch over the  employee constantly”.

The trial  magistrate in the above case  had dismissed  the appellant’s  suit on  the ground that the appellant  was  not trained  to repair  the machine otherwise  there was no need for him  to call the technician  to  repair it hence he was injured  through  his own carelessness.  The appellate court, in reversing the decision of the trial magistrate found that  the  appellant  sustained  the injury in the course  of his employment.   The court  also found  that the  it had not  been shown that the appellant  was that neither  had it  been shown that the appellant  had  failed  or refused  to heed the technician’s warning  not to assist  in any way while  the technician  was repairing the machine. The  only difference  between this case  and the  one of Oluoch Eric  Gogo is that  in that case the machine  that injured the appellant is  the one he  normally operated as a casual  worker and that  when it  broke down he called a  technician to repair it.   The technician then asked   the appellant to  assist while  he repaired it and in  the process, the technician switched   on the machine   without  alerting the  appellant  thereby crushing his finger.

In the instant case, it is  not denied  that DW1  who was a security officer  was in the company  of the  deceased and   was acting within  the scope of  his work when the  team  was attacked  by thugs and therefore even if  DW1 had not been authorized  to carry the deceased in that vehicle, the contradictory evidence  of DW1 and DW2 are material and  only renders the  defence case  unbelievable  and cannot be rebut the the reliable  evidence  of PW3.  Since the  deceased  was not an authorized  or trained   security officer, the DW1 would  no doubt  be responsible   for allowing the  deceased into the van as a security officer knowing that it  was against  the company policy to allow  non-security personnel into the  surveillance  van and the appellant herein  would  no doubt be vicariously responsible for the  acts of its employee, DW1.  But  that  is not the case here since DW1 himself  confirmed  that on that  day the  deceased was working  as a security officer  and albeit  it is  strongly submitted by the appellant  that the  deceased was not authorized  to do  that security  work, and that nobody instructed him to so accompany DW1,there  is no evidence on record  to show that  when DW1 left for the  surveillance  duties, he had  oral and written instructions  not to be accompanied  by  any other person as his co-security, unless  such person was authorized  in  writing  to perform such duties.  There  is ample evidence that on that day there ought  to have been (Special  Crimes  Prevention  Unit) accompanying  the sales van but that it was  engaged elsewhere.  In my view, the  deceased was instructed by the appellant to accompany  the DW1 on surveillance  duties and  therefore  he was  in the course of his  employment  when  he met his  untimely death.

In HCCA 65 of 2002  SIMBA POSHO MILLS LTD VS FRED MACHIRA ONGUTI [2005]  e KLR, the plaintiff general worker  was injured by a machine roller  when his supervisor asked him to  push maize into  a new machine  which  had just  been installed.  His right  fingers were caught  by the machine.  The respondent blamed the appellant  for  his own negligence as the machines  installation  had not been completed  and a certificate  of competence of  the new machine   had also not been  issued.  It was contended by the  respondent  that the appellant was  not allowed to fiddle  the machines.  The trial  magistrate apportioned  liability  and on appeal, Kimaru J allowed the appeal holding the employer  wholly liable for the accident  and  for breach of the statutory duty of  care.

In Habbury’s  Laws of England 3rd Edition VOL 28 paragraph  88, it is stated that:

“Where  the relationship of master  and servant  exists, the defence  of  volenti  non fit Injuria is theoretically  available  but is unlikely to succeed.  If  the servant  was acting  under the  compulsion of his duty to his employer, acceptance of the risk will rarely  be inferred.  Owing to his contract of  service,  a servant is not generally in a  position to choose  freely between  acceptance and rejection of the risk and so the defence does not  apply in an action against  the employer.”

The Court of Appeal echoing the  above words  from the Halsbury’s  Laws of England  in  Makala Mailu Mumende  v Nyali Golf Country Club [1981] KLR 13 stated; per Nyarangi J.A:

“Noemployer  in the position of the defendant would warrant  the total  continuous  security of an employee engaged in the kind of work the  plaintiff was engaged  in, but  inherently, dangerous.  An employer  is  expected to reasonably  take steps  in respect of the employment, to lessen  danger or injury to the employee.”

In other words, It is the employer’s responsibility  to ensure  a safe working place for its employees. The appellant’s incessant contentions that the deceased was responsible for the fate  that befell him and particularly  the care free attitude demonstrated in the evidence  of DW2 was  unfortunate.  DW 2 did not  mince his words  when he stated in his  evidence  in cross examination  that he  did not  regret the incident  and that  those were normal occurrences.  That  cavalier attitude  is a reflection of a do not  care  attitude  of a Human  Resource  Manager who cared  less of the duty of care bestowed upon the employer to  ensure  safety measures were  put  in place to ensure that employees are  not exposed  to the risk of injury  that could have been prevented.  I say “ cavalier  and “carefree’ attitude  because the evidence of PW3 and even  DW1 and DW2 themselves  considered as a whole was clear  that whenever  a sales  van was  out with merchandise, it had  to be accompanied  by armed  security  and that on that day, according  to the report made  to the police  by DW1, the Special  Crimes  Prevention Unit which was  to escort  the sales van  was committed  elsewhere.

From the above  evidence, it is clear that  it is the  appellant  who took  the risk of letting  the sales van go  without armed  escort  and in  its place, they asked DW1who  though  a trained  security officer ( ex police  officer) he was unarmed accompanied  by an untrained  security officer- the deceased  to provide  surveillance  escort.  It  was  not shown by the appellant that  because  DW1 was  a trained  security officer, he could not  have been shot dead  the same way the deceased  was riddled  with bullets; since both were seated in the driver’s cabin.

In my view, the plaintiffs/respondents  did prove, on a balance  of probabilities that the  appellant was negligent  and or  breached the common law duty of care in  permitting  the deceased  to serve as a security  officer without  according him adequate security  measures to ensure his safety, knowing very well  that the  deceased was not a trained  security personnel.

The appellant  in this case  owed  the deceased a duty of care  and did breach that duty  as a consequence  of  which the deceased was fatally wounded.  That  breach  of duty, in my view, had  a casual nexus  with the injury that  the deceased  sustained, as  was correctly  pointed out in  HCCA 152/2003  Nairobi Statpack Industries V James  Mbithi Munyao  [2005] e KLR as well as  HCC 1299/98 Nairobi Elijah  Ole Kooi V George Ikonya Thuo.In this case I find that causation as a matter of fact was proved by the respondents on a balance  of probabilities.

In Securex Agencies (K) Ltd v Bernand  Ochieng Olute [2009] e KLR where  the respondent  was a security officer  while at work and  in response  to an  alarm, he was directed to the scene  of a robbery at a shop along  Hakati  road and on arrival, three people came out  of the shop  and  shot  him on his waist.  He claimed that he did not have  any formal training  as a security officer  except  the drilling for  4 days and that  he understood his work and was provided  with uniform  and equipment, which was not enough.  The respondent also claimed that he  was not provided with  protective  gear  such as a bullet  proof  jacket  despite the appellant  being aware of the hazards  of  the duties  assigned  to him.  The appellant  on the other hand  pleaded volenti-non-fit-injuria but the  respondent countered  that  the appellant  used the respondent’s desperate position  of being  unemployed  to expose him to  great danger.   The appellant maintained, like the  present appellant, that  the respondent knew that the job  he was engaged  in was a dangerous  one and   accepted it knowing  its hazards  and that the respondent  was injured  by criminals  who were not within the control of the appellant and that  the appellant  employer  was only under a duty to take  reasonable  care and not strict care of employees and that since there  is nothing  the appellant  could have  done  to avert  the incident, the appellant was not  negligent in any way.  Relying on  David Ngotho Mugunga v Mugumoini Estate HCC 2336/89, the appellant  maintained that  it could not  be held vicariously liable for criminal acts of trespassers  and that the respondent having accepted  knowingly to do a dangerous  job, he was estopped  under the doctrine of volenti non-fit  injuria  from bringing  that kind of claim.

On  appeal, the court  held that  on the evidence  availed, the respondent  had no opportunity to run away or  take cover as he was apparently  taken by surprise  and that there  was  no evidence  adduced of any specific instructions  that the respondent was given  as to how to  take care of himself  whilst  attending  to such an emergency.  The court  also found  that there was  no evidence  that the  respondent  was provided  with protective gear  to protect  him from the gunshots  hence he  could  not have been negligent. In this case, just like  in the above case though  persuasive, I accept  the findings  of the learned judge  that the appellant  herein  did not  demonstrate  that the  deceased could have evaded  the fatal shots by doing anything.  DW1  too did not  tell the  court what  tactics  he used to or applied  from his  training  as a security personnel to evade the gunshots.  The DW2 who  was not a security officer testified  that  such occurrences were  normal.  He did not  tell the court that  security  officers  who were not armed  were trained  in  some special  skills of evading  gunshots.  The  fact that the sales van was expected to be  escorted by Special Crime  Prevention Unit is in my view a  clear manifestation that the danger  that the deceased, DW1 and even the  sales  van personnel who escaped  unhurt  were exposed  to- of being   shot by  armed  robbers, was a danger  which was reasonably foreseeable.  That   being the case, it was expected that the appellant would take reasonable  precaution of care against  the risk of injury to the deceased.  It did not.  An implied  contractual obligation placed on the employer  to an employee is  to protect its  employees  from acts  of trespassers.  This is  so because the  employees  undertaking  security services are expected  to, and  were indeed  in the  cause  of  protecting  the property  of the  appellant  enroute  delivery to its customers and the  possibility of armed  thugs who are  in essence  trespassers  striking was not a  remote  possibility as that precisely  is what security personnel are engaged  to do- guard against  invasion  by trespassers  who are armed with dangerous  weapons including guns, and  whose  target is to  disarm or disable the  security team and snatch away the merchandize.

Thus, the robbers’ action must be examined  in the context  of the deceased’s duty  to protect the employer’s  property and personnel ferrying  the merchandize  safely to its destination  and the deceased’s  role  as a “security officer” in fulfilling that  duty as an employee  of the appellant. In providing  security surveillance  to the sales  van on the  day when Special Crimes Prevention Unit (SCPU) were unavailable  is an  indication that the danger of the sales  van being attacked  as stated  by DW2 was not only imminent  bur foreseeable  as a normal  occurrence and real.  The deceased  was therefore, in my view, assigned  a dangerous  job.  It  was not his usual job of  offering security  escort to  sales  people. The appellant  knew attacks  on their  sales  vans  was a normal occurrence which  is a sign  of dangerous  engagement  out there.   In my  humble  view, the  nature of the danger to which  the  deceased  was exposed  required  the appellant  to provide  more care  to minimize  or eliminate  than that ordinarily provided to other  employees. See Mumias Sugar Company v Charles Namatiti CA 151/87 Gachuhi, Masime and Gicheru JJA. Held:

“ An employee  is required by law to provide safe working conditions  of  work in the factory and if an  accident  occurs while the employee is handling  machinery the employer  is responsible  and will be required  to compensate  the injured employee.”

The above decision of the Court of Appeal reminds the appellant that it has  a duty of care to provide  a safe working  environment  for its workers.   The incident  having  taken place  in the course  of the deceased’s employment, under common law, the  employer  and not the employee  DW1  who purportedly gave the deceased a lift  is liable for the conduct  of DW1 in allowing  the deceased  to be part of the  security team.  Assuming  DW1 did  so without  authority  of the employer by saying “ I did not  want  them to know I was with him.”  This is true even if the  employer  had no intention to cause  harm and or played  no physical  role in the harm.  The basic under lying  principle  and rationale  for this  is that  employers  direct the behavior  of the employees  and accordingly, must share  in the good as well as  the bad  results of that behavior.  By  the same  token  that an  employer  is legally  entitled to the reward of  an employee’s labour and profit, an employer also has  the legal liability if that same behavior results in harm.   The second  rationale  is that  when a worker  is injured  while on duty, he needs  to be compensated  and the most likely to pay is the employer  and not a fellow employee.  The legal system is thus interested  in making the victim  whole, and assigning  liability to the employer  rather than employee who has  the best  chance  of meeting that  goal.  The key factor is that employees must have  sustained  the injury  in the course  of his employment  and for an act  to be considered to be within the cause of  employment, it  must either be authorized by  the employer  or be so closely  related to an authorized  act that  an employer  should be  held responsible.  In Appeal  Cause  No. 2 of 2015 Qamin Quarries (Ltd) V Anthony Ngaita  Karoi [2015} e KLR the respondent  was employed  by the appellant  as a welder.  He was instructed by his senior supervisor  to repair  a leaking roof  of the workshop  by patching the iron sheets and hesitated but later  agreed  and after   repairing  one side of the roof successfully and on turning to the  other side of the roof, he fell after  stepping on the timber that  broke  and suffered serious injuries.  The  appellant denied  liability  and maintained  that the respondent  was not acting  within the scope of his employment  but was  on his own frolic  when the accident occurred  and that  he was responsible  for his  injuries for being negligent.  The trial court  made a  finding of fact that the appellant was  liable  75%  and the  respondent  contributed  25% and proceeded  to award  damages. On appeal it was contended  by the appellant  that the  respondent  was employed  as a welder  and  instead went to do the work  of  repairing the workshop  roof  without instructions from his employer.  It was urged  in the alternative  that even if  the  respondent had been  authorized  to carry out  the roof repairs, the employer  could not  have been  liable  because the injury was not foreseeable  since it  was not known  that the  wood supporting  the roof was  weak and that the  trial court  had shifted the burden of proof contrary to Section 107, 108 and 109  of the Evidence Act  and  that  the  respondent did not  prove that  he was instructed  to repair  the roof. The  appellate court found for the respondent and  dismissed the appeal  for reasons that the act  of complying  with instructions from DW2 could not  be dismissed as being an engagement  by the respondent in  a frolic  of his own citing  Halsbbury’s Laws  of England 4th Edition  VOL 16 page 358-662 that:

“an  employer  is under duty to take reasonable  care for the safety of his employees  in all the  circumstances  of the case so as  not to  expose  them to an  unnecessary  risk.   This  duty includes  an obligation to provide  competent staff, adequate materials, proper system of work and effective  supervision.  The duty further  includes  the obligation  to provide a  reasonable safe  place of work and access to it.  This duty vicariously remains with the employer  even after he delegates  to another person.”

Therefore, base on the authorities that I have cited above, and which are relevant to this case,  I find  that albeit the deceased  undertook  a risky  engagement, that engagement was  subject  to  the employer’s duty to take  reasonable  care  and the employer  failed  to take that reasonable  precaution to  protect  the deceased against  the risk of injury.  First, the deceased was not a trained security officer with necessary skills to handle such a dangerous situation.  Secondly, he  was not  on that day provided  with any protective  gears  such  as bullet  proof  vest/jacket  and thirdly, he was made to provide security back up to a security officer  who was not armed.  Lastly, the job that he was engaged to do was normally undertaken by (Special Crime Prevention Unit) who are highly trained  and heavily armed police officers.

For the above  reasons, I find that  the submissions  by the appellant and  the various  decisions relied on both  in the lower  court and in this appeal are not persuasive  enough to enable  this court upset  the  findings  and decision of the trial  magistrate  on liability against  the appellant  at 100%. Accordingly, I disallow the appeal on liability and sustain  the findings  and decision  of the trial  magistrate, and add  that the fact  that the  trial court  did  not replicate  the appellant’s  arguments  word for word  in the decision does not  mean that  those arguments  were not considered and that  the  decision  therefore  is a nullity.

On the question of quantum, the appellant complains  in their grounds of appeal that the  trial magistrate  erred in law  and law  in awarding  damages that  were excessive in  the circumstances; in finding  that the insurance  payment (compensation) made  was  insufficient;  and in failing to consider the  factor of eventualities  of life while calculating  the award under the Fatal Accidents  Act.

In my view, considering the submissions made by both parties on those issues  regarding  quantum, the issue  for determination is:

Whether the life insurance compensation was adequate compensation and whether the deceased’s estate was therefore  not entitled   to any other damages  whether under  the Fatal Accidents Act or under the Law Reform Act.

From the record, the appellant did not make any submissions  in support of  the grounds of appeal  touching on quantum of damages  under the Law Reform Act  and Fatal  Accidents Act despite raising it in the grounds of appeal.  This court nonetheless is entitled to determine whether  the deceased’s  estate was, besides the insurance  (group life) compensation paid to his  widow, entitled  to any other damages  and whether  the respondents  were entitled  to loss of dependency. For this court to interfere  with an award  of damages  made by the  trial court, it must be  demonstrated  that the court below  in the exercise   of its  discretion in assessing the damages  either acted  on wrong  principles  or awarded  so excessively or so inordinately  low  damages  or has taken into consideration  irrelevant  matters or  failed to take  into account or consideration  relevant  matters and as a result arrived at the wrong decision.  These principles were espoused in the cases of ButterV Butter [1984] KLR 225 and Kemfro Africa Ltd t/a Meru Express & another V a.m. Lubia & Another [1982-88] I KAR 727.

The respondent’s claim was founded on the Law Reform Act and the Fatal Accidents Act. The manner of assessment of damages  under the Fatal Accidents Act  was succinctly  put by Ringera J ( as he then was in Beatrice Wangui Thairu V Honourable Ezekiel Barngetuny  & Another Nairobi HCC 1638 of 1988 where the  learned Judge stated;

“The principles applicable to assessment of damages under the Fatal Accidents Act are all too clear.  The court must in the first instance find the value of the annual dependency.  Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase.  In choosing the said  figure, usually called the multiplier, the court must bear in mind the  expectation  of earning life of the deceased, the expectation of earning life of  the  deceased, the expectation of life and  dependency of the dependants  and the chances  of  life of the deceased and dependants. The sum this arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if likely invested yield returns of an income nature.”

As stated earlier, the appellant in the submissions, contested the award of damages generally, that the same was misconceived and an abuse of the court process.  To determine whether the award was justified or based on sound legal principles, DW3 in his evidence in the court  below confirmed  that the kshs  750,000 paid out  to the deceased’s widow PW1 was for Group Personal Accident Insurance Cover and in his view, that was adequate compensation.  I disagree,  the  Group Personal Insurance  cover  was not and has never been  the same as a claim or compensation  for damages  arising  from a claim  based on negligence  or breach of duty of care.  Once an employee is insured  and dies while  he is  on duty, that claim is payable by the insurance  company, whether  the death or injury  thereof is as  a result of negligence or not  and such payment  from a group insurance scheme does not act as  estoppel for the estate of the  deceased  or his dependants  to claim for damages under the Law Reform Act or the Fatal  Accidents Act.

The appellant avoided submitting on that crucial issue and neither is there any law in support of the contention in the ground of appeal.  In Nairobi HCC 248/2005 James Wambura Nyikal & Another v Mumias  Sugar Company Ltd  & Another, Honourable Mwera J (as he then was) held that the insurance claim paid  under Group Insurance Scheme  where the deceased was a contributor was not on account of or  as compensation/damages  following the accident  and the learned Judge proceeded  to award damages  under the law Reform Act  and Fatal  Accidents  Act.

From the evidence  on record  adduced  by the  appellant, the cheque  payment  in December 2006 produced  as Defence exhibit wherein  the 1st defendant  received shs 750,000 less  shs  75,000/- recoverable  funeral expenses, it is clear  that the payment was for  death insurance  claim. The said payment was released from Security Department which fact further goes to prove that the deceased worked in the security department.  The Group Personal  Accident  dues  were  also settled by the Insurance  Company of East Africa as per the Defence exhibit  3 -an  acknowledgement  of funeral expenses  advance of shs 75,000/- recoverable  from GPA dues. I therefore  concur with the above  decision of Mwera J and dismiss ground No. 3  of the  appellant’s  Memorandum Of Appeal.  I then proceed to determine whether  the award  under the  Fatal Accidents Act to the  tune of Kshs 2,324,920 was  erroneous  or failed  to take into  account eventualities  of life  while  calculating  the same and  whether  the award  under the Law Reform  Act  to the tune of kshs  50,000/- was justified; and or  whether  the awards  under  both statutes  was manifestly  excessive  in the circumstances  of  the case.

As regards the estate of the deceased Jackson Nyakundi Onyancha, the trial  magistrate used a  multiplicand  of 17 years, salary of 17,095 p.m.   Thus  17,092 x  17 x 12 x 2/3 dependancy ratio = 2,234, 920. Under the Law Reform Act, she awarded  kshs 50,000/- stating that  the deceased  died  on the spot  as a result  of gunshot  wounds. Under loss of expectations of life, she  awarded  shs 100,000.  The  appellant  has not submitted   on now erroneous  those  awards  were and which  wrong  principles  were  applied by the trial court in  making  the said awards.  It   has  not justified  interference  with  those awards. The deceased  was aged  43 years  at the time  of  his death.  He was  in a contractual employment with the appellant and  of good  standing  and performance .  There  was no evidence  that he  was  sickly.  He would, as per  the employment Laws of this country, have been  expected  to work until age 60 years. Albeit the appellant  complained of  imponderables  by way of statement in the Memorandum  of Appeal, there  was no submission to justify  that ground.  In Benedetta Wanjiku  Kimani V Changwon Chekoi & Another [2013] e KLR.  Anyara  Emukule held  thus:

“……there are  indeed many imponderables  of life, and life  itself  is a mystery of existence.  It is not  however in the premise  of the court  to determine or explore  those  imponderables.  The duty and promise of  the court  is to apply  the  generally known period during or about  which an employee of  the deceased’s occupation would remain  inactive  work   and  retire”.

I therefore  find the application  of 17 years  by the trial  court  appropriate  in the circumstances.  On  the dependency ratio, the  court in Leonard Ekisa &  Another V Major Birgen [2005] e KLR  Ringera  J stated:

“ There is no line of law  that 2/3  of the income  of a person  is taken  as available  for family  expenses.  The extent  of dependency  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 the  dependant, the life expected, length of dependency, the visitudes of life and factor  accelerated by payment in lump sum.”

In this case, the age of the deceased and his dependants were all known and adduced in evidence.  The widow’s national identity card   was produced showing that she was born in 1968.  The three children’s birth certificates were produced in evidence.  They were in 2008 aged 21, 12 and 4 years (born 1986, 1995 and 2003.  It was also pleaded that the deceased was the sole breadwinner.  The deceased’s parents were also pleaded as being his dependants and by his death they all lost sustenance.  It was not shown that the dependency ratio of 2/3 was not appropriate in the circumstances.  The appellant’s submissions    in the lower court  only concentrated  on the  shs  675,000/- Group Life Insurance   cover  compensation paid as  being adequate and the discharge voucher  which  as I have  stated, was not, in any  way related to the claim for  compensation under the  Law Reform  Act and Fatal Accident Act. I therefore uphold the dependency ratio applied by the trial court.   There was no challenge  to the  deceased’s monthly pay per month  as per his letter of renewal of  contract  dated 22nd December 2005 which was Kshs 17,095. 000 based on his good performance.

For all the above reasons, I uphold the award for loss of dependency as awarded by the trial court.

On loss of expectation of life the trial court awarded a conventional figure of shs 100,000/-.  There is no reason why this court should interfere with that award.  I uphold the same. The same with pain and suffering.   The deceased died on the same day of the attack.  He sustained five bullet wounds following gun shots in the head, neck and many other parts of the body.  He must have suffered great pain before dying and the3erefore an award of kshs 50,000/- was not excessive.  I rely  on the case of James Wambura Nyikal  & Another v Mumias Sugar  Company Ltd & Another (supra) where  Mwera J  (as he then was) awarded  Kshs 90,000/- for pain and suffering and shs 100,000/- for loss  of expectation of the life for  a deceased who died on the same day  of accident  while being taken  to hospital  following an accident.  He was aged 42 years.

In the end, I dismiss this appeal with costs to the respondent. I uphold the trial magistrate’s judgment on liability and quantum in favour of the respondents against the appellant as well as the award of costs and interest.

Dated, signed and delivered in open court at Nairobi this 21st day of October 2015.

R.E. ABURILI

JUDGE

21/1/2015

Coram R.E. Aburili J

C.A. Adline

Miss  Abok holding brief  Mbaluka  for appellant.

No appearance for respondent

(Later Mr Swanya appears) and says I am for the respondents.  I am sorry I am late.

COURT-   Judgment read and delivered in open court as scheduled. Judgment to be typed.

R.E. ABURILI

JUDGE

21/10/2015