Musyoka & another (Suing as the administrator and/or legal representative of the Estate on the Late caroline Mutheo) v Njuguna alias George Njuguna Migugua [2023] KEHC 24915 (KLR)

Musyoka & another (Suing as the administrator and/or legal representative of the Estate on the Late caroline Mutheo) v Njuguna alias George Njuguna Migugua (Civil Appeal 92 of 2021) [2023] KEHC 24915 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24915 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 92 of 2021

JM Chigiti, J

October 13, 2023

Between

Kioko Musyoka

1st Appellant

Kamene Musyoka

2nd Appellant

Suing as the administrator and/or legal representative of the Estate on the Late caroline Mutheo

and

George Njuguna Alias George Njuguna Migugua

Respondent

Judgment

1. The Appellants filed suit vide Plaint dated 4th July, 2017 and Amended on 16th July, 2019 for an action to recover damages for fatal injuries arising out of a road accident which occurred on 12th February, 2017 against the Respondent who was the beneficial and/or registered owners of Motor Vehicle Registration Number KBZ 992R under the Fatal Accidents Act, Cap 32 and the Law Reform Act, Cap 26 of the laws of Kenya.

2. It was the Appellants case that the Deceased Caroline Mutheo was travelling as a passenger on board the Respondent's Motor Vehicle Registration Number KBZ992R along Mombasa - Malindi Road when upon reaching Gede Area when the said Motor Vehicle lost control, veered off the Road and rammed into a tree occasioning the Deceased fatal injuries.

3. The Respondent entered appearance on 24th May, 2018 and filed Statement of Defence dated the same date.

4. The matter proceeded for hearing where the Appellants tendered their evidence and called 2 witnesses whereas the Respondent called 1 witness subsequent to which the Trial Court delivered a Judgment on 24th September, 2021.

5. Being dissatisfied with the whole Judgment the appellant lodged an appeal that is raising the following grounds: -a.That the Learned Trial Magistrate erred in both law and fact when he failed to deliver a Judgment in respect of the suit and instead delivered a purported "Ruling".b.That the Learned Trial Magistrate erred in law and fact in failing to consider or appreciate the totality of the pleadings filed and entire evidence on record thereby arriving at a wrong decision.c.That the Learned Trial Magistrate erred in law and fact in failing to consider and or appreciate the doctrine of res ipsa loquitor as applied and relied on by the Appellants in support of their case.d.That the Learned Trial Magistrate erred in law and fact in failing to appreciate the standard of proof in negligence claims thereby applying a wrong evidential burden against the Appellants when the evidence on record was clear that the Respondent has admitted the occurrence of the accident and the burden of proof had shifted to the Respondent.e.That the Learned Trial Magistrate erred in law and fact by failing to find that the Death Certificate produced by the Appellants in their evidence was sufficient proof of the cause of death and as such the Appellants had discharged their burden of proof for negligence and death.

6. It is the Appellant's submission that this Honourable Court should re-evaluate the evidence adduced in the Trial Court and the decision by the Trial Court dismissing the suit be set aside and be substituted with an order allowing the Appellants claim for damages and awarding damages under the Fatal Accident Act and the Law Reform Act together with costs of the appeal and the lower Court suit to the Appellants as prayed.

Ground (a): That the Learned Trial Magistrate erred in both law and fact when he failed to deliver a Judgment in respect of the suit and instead delivered a purported "Ruling". 7. The Appellant submitted that the Learned Trial Magistrate erred in both law and fact when he failed to deliver a Judgment in respect of the suit and instead delivered a purported "Ruling"

Grounds (b), (c), (d) & (e): That the Learned Trial Magistrate erred in law and fact in failing to consider and/or appreciate the doctrine of res ipsa loquitor as v and relied on by the Appellants in support of their case. 8. The Appellant submitted that the Learned Trial Magistrate erred in law and in fact in failing to appreciate or in any way consider the doctrine of res ipsa loquitur as pleaded by the Appellants and further the Learned Trial Magistrate also erred in law and in fact in failing to appreciate that the burden was on the Respondent to prove that the doctrine of res ipsa loquitur was not applicable to the appellants' case.

9. It is worth note that it is not disputed that an accident occurred on 12th February, 2017 along Mombasa - Malindi Road involving Motor Vehicle Registration Number KBZ 992F which Motor Vehicle belongs to the Respondent. It is also not in dispute that the Deceased one Caroline Mutheo Kioko was a passenger on board the said Motor Vehicle and the she succumbed to the injuries sustained as result of the said evidence. This was admitted to by the Respondent in his testimony and/or witness statement dated 12th July, 2021 and adopted in court on 19th July, 2021 (see page 75 paragraph 16 - 26 and page 145-146 of the Record of Appeal).

10. It is also worth to note that the Appellants in their Amended Plaint dated 8th June, 2018 and filed in Court on 6th September, 2018 pleaded the doctrine of res ipsa loquitor. (see page 71 paragraph 33 of the Record of Appeal).

11. Under the common law of negligence, the res ipsa loquitur doctrine presupposes that a breach of a party's duty of care may be inferred or presumed from the events that occurred. In other words, the negligence is so obvious that you can tell that someone had a negligent hand in what happened.

12. It is trite law that once pleaded, the res ipsa loquitur doctrine presupposes that a plaintiff has discharged his or her burden of proof and in order to escape liability, a Defendant is required to demonstrate that there was either no negligence on his or her part, or that there was contributory negligence.

13. The Police Abstract produced as Exhibit No. 8, shows that motor vehicle registration number KBZ 992R owned by the Respondent was involved in a fatal accident in which the Deceased Caroline Mutheo Kioko died.

14. Further, the Appellants produced a Death Certificate has Exhibit No. 9 which certificate indicates the cause of death as "Cardio-pulmonary arrest due to abdominal trauma due to road traffic accident". (See page 21 of the Record of Appeal)

15. Going by the evidence on record, in all probability, the accident was self-involving after the Respondent's authorized driver, servant agent and/or employee negligently and/or carelessly drove Motor Vehicle Registration Number KBZ 992F causing it to veer off the Road and crush into a Tree thereby occasioning the Deceased fatal injuries. Therefore, was there no suggestion and/or evidence by the Respondent that the accident was caused or contributed to by some other person to whom liability could be attributed to in any degree.

16. In any event, the Appellants having pleaded the doctrine of res ipsa loquitor in their Amended Plaint they did not have to call any eye witness to explain how the accident may have occurred.

17. Instead, it is trite law that once the Appellants invoked this doctrine, the burden was on the Respondent to explain that he and/or his authorized driver, servant agent and/or employee was not negligent and whether they did anything to avoid the accident.

18. Reliance was placed in the case of Emmanuel Wawole Mochawa v Harun Kariuki Kamande [2020] eKLR where the Court on sated as follows: -“On the other hand, other than the Defendant's blanket denials in their defence, the only other evidence to be relied upon is that of the Plaintiff. It does not prove the negligent acts asserted. However, it can be inferred from the Police Abstract and under the doctrine of res ipsa loquitor that the Defendants' vehicle was responsible for the deceased's death. He did not die on account of anything but the accident. The Certificate of Death even contains such an assertion. In the absence of any other explanation, or evidence rebutting the same, the above doctrine does apply.In other words, if one is responsible for or controls something, such as a property or vehicle that person is responsible for providing a reasonable amount of care to make sure that the vehicle or property is safe. When an accident happens, the question is whether the property owner breached his duty of care. However, with res ipsa loquitur, the breach is so apparent that there is a presumption of the breach of duty and the Plaintiff does not need to provide extensive evidence, if any, of the breach. Thus, the negligence speaks for itself.In the case of Nandwa v Kenya Kazi Limited /1988| eKLR, the Court of Appeal (Gachuhi JA as he then was) cited a portion of the Judgment in the English case of Barkway v South Wales Transport Company Limited 119560 1 ALL ER 392 at Page 393 Bon the nature and application of the doctrine of res ipsa loquitur as follows:"The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident."

19. We submit that based on the above submissions and authorities, it is evident that the Learned Trial Magistrate erred in law and fact in failing to appreciate the standard of proof in negligence claims thereby applying a wrong evidential burden against the Appellants when the evidence on record was clear that the Respondent had admitted to the occurrence of the accident and the burden of proof had shifted to the Respondent. At the very least, the Appellants were entitled to some explanation why the learned magistrate thought the doctrine was not applicable to this case.

20. We therefore urge this Honourable Court to set aside the decision of the Trial Court dismissing the claim and substitute the same with an order allowing the Appellants claim for damages and award damages under the Fatal Accident Act and the Law Reform Act together with costs of the appeal and the lower Court suit to the Appellants.

Ground (D) : That the Learned Trial Magistrate erred in law and fact in arriving at a decision that did not contain all the ingredients of a fair and just judgment thereby occasioning a gross miscarriage of justice against the Appellants 21. The Appellants submit that the Learned Trial Magistrate erred in law and fact in arriving at a decision that did not contain all the ingredients of a fair and just judgment thereby occasioning a gross miscarriage of justice against the Appellants.

22. We submit that the Learned Trial Magistrate erred in law and fact by failing to appreciate that the Appellants as Dependants were entitled to an award of damages for, pain and suffering, loss of expectation of life and loss of dependency and urge this Honourable Court to set aside the decision of the Trial Court dismissing the suit for damages and substitute the same with an award of Kshs. 5,200,000/- under the Fatal Accident Act and the Law Reforms Act together with costs of the appeal and costs of the Lower Court to the Appellants.

23. We urge this Honourable Court in awarding General Damages to consider the Appellants Written Submissions and the authorities thereto filed in the Lower Court which appears at page 77-105 of the Record of Appeal.

Special Damages 24. The Appellants submit that the Learned Trial Magistrate erred in law and fact by failing to award Special Damages of Kshs.44, 500/- despite the Appellants having proved the same. We therefore pray that this Honourable Court Award Special Damages for Kshs. 44,500/- as proved by the Appellants.

Analysis and determination: 25. In the Court of Appeal Case of Selle & Another Associated Motor Boat Co. Ltd &another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.

26. The court shall proceed to evaluate, reassess the evidence in the circumstances. It is clear that he who alleges must prove their case. If she is to succeed, the Plaintiff is under a duty to tender evidence on a balance of probabilities.

27. Section 107 & 109 of the Evidence Act dictates as follows:“107. 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 that those facts exist.

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

28. The court shall proceed to evaluate, reassess the evidence in the circumstances. It is clear that he who alleges must prove their case. If she is to succeed, the Plaintiff is under a duty to tender evidence on a balance of probabilities.

29. This court has the discretion to reassess/reevaluate the trial court evidence. See the Court of Appeal decision in Bashir Ahmed Butt V Uwais Ahmed Khan [1982-88] KAR 5 where the court held that;“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

30. Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Court of Appeal stated; This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.

Liability: 31. I have gleaned through the proceedings and identified the following:“The Plaintiff Kioko Musyoka of Taita. My child Kioko is deceased now. This is the death certificate. I do produce as exhibit. (Copy produced).Exhibit 1. There was an accident which happened. It was on the 12th February, 2017. This is the grant ad litem.Exhibit 2. I was at Taita. She was at Malindi. She was coming to Malindi from Watamu. She called us on the 13th and told me she has been involved in an accident. She was with others. She was rushed to hospital. The daughter to George was there. She said it was at Gede. That there were at high speed. There were held and taken to hospital. She went home. George was the employer. She said stomach was painful. She was at home at George's house. The brother came. I did come on the 16th. She died before l reached. She was taken to Star mortuary. She was 26 years. She had an Identity card. She did Form 4. This is her copy of results. I do produce as exhibit.Exhibit 10. She worked at George's home. I depended on her. I be compensated and costs. I recorded statements.On cross-examination she told the court that, “the deceased did call me. She told me she had an accident on 12th February. She called me on the 13th. I did not see What happened. There is traffic officer. There is no witness I will bring. Will rely on the documents. Postmortem report it shows accident happened on - 2011 February. She did not go to hospital. She was discharged on the 15th February. Chief's letter shows she died on the 16. I was called on 15. Death Certificate shows she died on the 16th. she was employed. I have nothing to Show that she earned salary. There is nothing to show here. Paragraph 8 of Plaint. I did not know how it was driven. I was told who the driver was.”

32. PW 2 No.231406 CIP George Naibei Confirmed that there was an accident on 12th February, 2017 involving motor vehicle KBZ 992R, Toyota Rav 4 driven by Murgera Wamara. He confirmed that among the passengers was Caroline Kioko who died as was being treated.

33. Dw 1 George Njuguna Kihara told the court, “I was called that my vehicle was involved in an accident. It is a Toyota Rav 4. My son was driving the motor vehicle. The child was over 25 years old. I do confirm Carol passed on after the accident. I do not know the cause of death. It was my vehicle.”

34. In the Judgment the trial magistrate made the following finding:“I have considered the evidence on record. None of the witnesses was at the scene of the accident. Pw 2 admitted that he did not investigate the case and that investigations are still pending. The mere fact that the motor vehicle hit a tree does not prove negligence. There is no evidence on record that the motor vehicle driver was negligent causing the accident. The plaintiff his failed to disclose his burden of proving negligence. This is a sad case and unfortunate whereby two lives were lost. However, the plaintiff has not proved his case on a balance of probability and I shall proceed to dismiss the suit with costs.”

35. In the Amended plaint the Appellant pleaded Particulars of Negligence of and/or Carelessness and/or Breach of Contract and/or Breach of Statutory Duty of Care on the Part of the Defendant, His Authorized, Driver, Agent, Servant and/or Employee:a.Failing to take any or any adequate precaution for the safety of the Deceased while engaged upon her duties.b.Exposing the Deceased to a risk of damage or injury which he knew or ought to have - 90 known.c.Driving at a speed which was excessive in the circumstances.d.Failing to slow down while approaching a speed Bump on the said Road.e.Failing to exercise any or sufficient caution in the driving of the said Motor Vehicle Registration Number KBZ 992F.f.Losing control of Motor Vehicle Registration KBZ 992 F.g.Failing to have any or any sufficient regard or care for the safety of the Deceased and other passengers while driving the Motor Vehicle Registration KBZ 992F along the said Road.h.Driving without due care and attention.i.Failing to apply brakes, slow down, swerve, stop or in any other way so to manage or control the said motor vehicle so as to avoid the accident.

36. The Plaintiffs shall rely on the doctrine res ipsa loquitor in so far as it is applicable to the circumstances of this case. The case of Uchumi Supermarket Limited & another v Boniface Ouma Were 120211 eKLR where the Court in determining a similar case stated as follows; -“Be that as it may, I note from the pleadings that the respondent pleaded the doctrine of res ipsa loquitur which would prove relevant in determining whether there was negligence on the part of the appellants. The above doctrine was aptly discussed in the authority of Susan Kanini Mwangangi & another v Patrick Mbithi Kavita /2019| eKLR with reference to the East African Court of Appeal's decision in Embu Public Road Services Ltd. v Rumi [1968] EA 22 thus: "The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant... The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstancesFrom the foregoing, I observed that once pleaded, the res ipsa loquitur doctrine presupposes that a plaintiff has discharged his or her burden of proof and in order to escape liability, a defendant is required to demonstrate that there was either no negligence on his or her part, or that there was contributory negligence.The respondent having pleaded the doctrine, the burden of proof shifted to the appellants to either disprove the same or to show that the respondent contributed to the accident, but they did not."

37. It is my finding and I so hold that the Learned Trial Magistrate erred in law and fact in failing to consider and or appreciate the doctrine of res ipsa loquitor as applied and relied on by the Appellants in support of their case.

38. The evidence by the appellant is uncontested that the deceased was a passenger in the motor vehicle at the time of the accident. It is also not in dispute but from the part from the debtor to vacate the deceased died as a result of the accident. There is no evidence to show that their deceased was negligent and poor caused the accident. The doctrine of the res ipsa loquitur doctrine as pleaded by the appellant is applicable in this case. I am satisfied that the accident occurred as a result of the negligence on the part of the respondent. And further satisfied that the deceased sustained the injuries as a result of the accident.

39. It is my finding that the deceased was a passenger in the said motor vehicle and that the Appellant has proven that the accident was caused by the Respondents son. The Doctrine of Res ipsa Loquitor applies to this case. I find the Respondent to be 100 % liable for the accident.

General damages: 40. In her evidence, the Appellant, testified that the deceased was 26 years at the time of the accident. She had an Identity card. She worked at George's home and she depended on her. During cross-examination she told the court that, “the deceased did call me. She told me she had an accident on 12th February. She called me on the 13".

41. The court is of the view that Kshs…….. would suffice as general damages. This is guided by the case of

42. The Appellants claim for damages and award damages under the FatalAccident Act and the Law Reform Act. From the birth certificate this court has established her age.

43. Mary Khayesi Awalo& anotherv Mwilu Malungu &another ELD HCCC No. 19 of 1997 [1999) eKLR where Nambuye J., stated:“As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjuncture. It is better to opt for the principle of a lumpsum award instead of estimating his income in the absence of proper accounting books."

44. In the case of Benson Musvoki Munyao & another y Omacha Enterprises Limited & another /2017| eKLR a case with almost similar facts, Justice J.N. Mulwa echoed the sentiments expressed by the Court of Appeal in Jacob Ajiga Muraga & Francis Karani -v- Simeon Obayo C.. No. 167 of 2002 (Kisumu) and in David Kajogi M'ugaa -v Francis Muthomi (2012) eKLR and stated as follows; "We do not subscribe to the view that the only way to prove the profession of a person must be the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who keep no record and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things". Lump sum award.

45. This court is the view that a lump sum award would do as was held in the case of Mary Khayesi Avalo & Another v Mwilu Malungu&another |1999| eKLR where the Court was of the view that; "As regards the income of the deceased there are no bank statements showing his earnings. Both counsels have made an estimate of the same using no figures. In the courts opinion that will be mere conjecture. It is better to opt for the principle of a lump sum award instead of estimation of his income in the absence of proper accounting books.

46. While avoiding the use of the multiplier formula we refer the Court to the case of Albert Odawa v Gichimu Gichenit Nakuru |2007| eKLR, Ringera J, as he then was stated as follows: "The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. I is plain that it a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency and the expected length of the dependency are knowable with undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a court of justice never do.

47. I will award of Kshs. 3,000,000/= under this head considering the Deceased was aged 25 years at the time of her death.

48. In the case of Ishmael Nyasimi & another v David Onchangu Orioki suing as personal representative of of Antony Nvabando Onchango (Deceased) |2018| eKLR a case with almost similar facts the learned judge awarded Ksh. 5,000,000/= without using the multiplier approach, the defendant appealed claiming the award was extremely higher. The Plaintiff filed a cross appeal and the high court enhanced the figure to Kshs. 11,900,000/- Special Damages. The court will award the Appellant the following:

Pain and suffering: 49. There was evidence that the deceased died the following day. She must have suffered a lot of pain and trauma and I will award Kshs 100,000.

Loss of life expectation: 50. In the case of David Kahuruka Gitau & another v Nancy Ann Wathithi Gitau & another [2016] eKLR, arrived at the same conclusion when he stated:“As for loss of life expectation, my review of authorities shows that the first time an award of Ksh. 100,000/= was made by Kenyan courts was by Justice Apaloo, then a Judge of the Court of Appeal in1986. Many years later our courts are still awarding the same amount which for a long time has been taken as a conventional sum. In my view, time has come for our courts to consider inflation and adjust damages under the said head upwards. The learned magistrate awarded Ksh. 100,000/= under the said head. I find no reason to fault the said award.” I would award the amount of Kshs 100,000/= under this head.

On loss of expectation of life: 51. The plaintiffs claimed Kshs 100,000/=.

Special damages: 52. The Appellant pleaded and prayed for Special damages for Kshs.44, 500/- The Trial court did not grant the same. The Appellant proved the special damages and produced receipts as can be seen from the proceedings.

53. The Plaintiff gave evidence on oath that, “I paid cost Kshs. 77001- of the mortuary and produce as exhibit. Exhibit 3. Post mortem was done. This is the report. I do produce as exhibit 4. Burial arrangement done. This is the receipt. I do produce as exhibit. Exhibit 5 (Kshs.27. 000/-). I reported to Malindi Police Station. This is the letter. I do produce it. Police Abstract MFl 6 of 7 March, 2017. I engaged our advocate who took action and service was done to defendant. This is the search. I do produce it. This is also certificate of search exhibit 7 and receipts for Kshs.530/-“

54. It is my finding that she proved the special damages and I award the following:a)Pain & Suffering 100,000b)Loss of expectation of life 4,000,000c)Loss of Dependency 100,000d)Special Damages 44,500Total 4,244,500/=

Costs: 55. The general rule flowing from Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya is that costs should follow the event. That is to say, the successful party should be awarded its costs. This general rule is elaborated by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to subsection (1) of this section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus the expression "the costs shall follow the event" means that the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided).

56. It is this court’s finding that the Appeal is successful and I grant him costs.

Disposition 57. The appeal has succeeded.

OrderJudgment is entered as follows:a.Pain & Suffering 100,000/=b.Loss of expectation of life 4,000,000/=c.Loss of Dependency 100,000/=d.Special Damages 44,500/=Total – 4,244,500/=e.Costsf.Interest

DATED, SIGNED AND DELIVERED AT MALINDI THIS 13TH DAY OF OCTOBER 2023J. CHIGITI (SC)……………………………………JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR