Mwihaki (Suing as the personal representative of the Estate of Brian Ngure Ndung’u (Deceased) v Lengete [2023] KEHC 26603 (KLR)

Mwihaki (Suing as the personal representative of the Estate of Brian Ngure Ndung’u (Deceased) v Lengete (Civil Appeal E071 of 2022) [2023] KEHC 26603 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26603 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal E071 of 2022

PM Mulwa, J

December 8, 2023

Between

Josephat Ndungu Mwihaki (suing as the personal representative of the Estate of Brian Ngure Ndung’u (Deceased)

Appellant

and

Elijah Lengete

Respondent

(Being an appeal from the judgment and decree of Hon. Simatwo-RM delivered on 30th August 2022)

Judgment

1. This judgment determines the appellant’s appeal filed vide the Memorandum of Appeal dated September 9, 2022. The appellant cites 18 grounds of the appeal which when condensed relates to only two issues, that is, of liability and quantum of damages.

2. The appellant who was the plaintiff before the trial court instituted the suit on behalf of his son Brian Ngure Ndungu (deceased) vide a plaint dated December 6, 2021. He averred that the respondent was the registered owner and driver of motor vehicle KAZ 806W Toyota Prado. On or about July 19, 2021, the deceased was lawfully and carefully riding his motorcycle registration No. KMEZ 840B at Bondeni Area along Ngong-Kiserian road near Maasai Road, when the respondent so negligently and recklessly drove, managed and/or controlled motor vehicle KAZ 806W Toyota Prado that he caused the same to lose control and violently collide with the deceased’s motorcycle from the rear causing the deceased fatal injuries which he later succumbed to.

3. In his defence the respondent denied having caused the accident and the particulars of negligence levelled against him. He stated that the accident was caused by the sole negligence of the deceased.

4. At the trial the appellant testified as the only witness while the respondent called 2 witnesses. After considering the evidence before him and the submissions of both parties the trial magistrate apportioned liability into 50: 50 and proceeded to award damages thus: special damages Kshs. 84,689/=, pain and suffering Kshs. 20,000/=, loss of expectations of life Kshs. 100,000/= and loss of dependency Kshs. 960,000/=. The appellant was also awarded costs of the suit and interest.

5. That judgment gave rise to the instant appeal. The appellant contends the issue of liability and quantum of damages. The court directed the appeal be canvased by way of written submissions which parties complied with the appellant filing on September 21, 2023 and the respondent on September 27, 2023.

Appellant’s submissions 6. Counsel faulted the trial magistrate for apportioning liability on 50:50 on account that there was no eye witness. That the evidence adduced by the appellant supported the fact that indeed an accident occurred, and the respondent failed to adduce valuable evidence to exonerate him as the author of the accident. According to counsel the respondent was joining the main road from a junction and failed to give way and observe traffic rules thus causing the accident. It was argued that the deceased did not contribute to the accident and that the respondent ought to be held 100% liable for the accident.

7. It was further submitted by counsel that the trial magistrate erred in failing to consider the abstract filed by the appellant as well as all the evidence adduced. It was argued that a police abstract is not sufficient proof of liability. The case relied was that of Catherine Mbithe Ngina v Silker Agencies Limited (2021) where the learned judge held:“I must point out however, that the contents of the police abstract as extracted from the records held by the police is merely evidence that a report of an accident was made. It is prima facie evidence of the occurrence of the accident and the particulars of those involved. It can however be rebutted. The same therefore cannot be used as proof of liability.”

8. It was contended for the appellant that the trial court erred in awarding an inordinately low amount on the damages. It was proposed that a global award of Kshs. 4,000,000/= for loss of dependency, Kshs. 1,500,000/= for pain and suffering, and Kshs, 1,500,000/= for loss of expectation of life ought to be awarded as adequate compensation as the deceased was 21 years old at the time of his death.

9. The issue of special damages was not disputed as counsel acknowledged that the only proved amount was Kshs. 84,139/=.

10. The court was urged to vary and set aside the lower court judgment.

Respondent’s submissions 11. It was submitted for the respondent that the trial magistrate did not err in the apportionment of liability. That the appellant is only entitled to what is fair, just and reasonable. Counsel submitted that liability must always follow fault and the appellant ought to show that indeed the respondent was liable and negligent in causing the accident. And furthermore, the appellant failed to call witnesses to prove that the deceased was not to blame for the accident. Counsel averred that the evidence by the appellant as to how the accident occurred was hearsay and not direct.

12. Counsel further urged the court to disregard the issue of quantum as the same was not raised in the memorandum of appeal as parties are bound by their pleadings. In the event the court was inclined to find otherwise, then the awards of Kshs. 20,000/= for pain and suffering and Kshs. 100,000/= for loss of expectations of life are sufficient and within the required margins. Counsel argued that the proposed awards of Kshs. 1,500,000/= for pain and suffering and Kshs. 1,500,000/= for loss of expectations of life are outrageous.

13. It was argued that the award for loss of dependency was fair in the circumstances. The appellant had failed to challenge the income, multiplier or the multiplicand used. That the choice of a multiplier is a court’s discretion which is exercised judiciously as cited in the case of Board of Governors Kangubiri Girls High School &anor v Jane Wanjiku &anor (2014) eKLR.

14. Counsel urged the court to dismiss the appeal with costs to the respondent.

Analysis and determination 15. It is now well settled that the first appellate court must re-evaluate the evidence in the trial court and come up with its own findings (Selle & another v Associated Motor Boat Co Ltd &others (1968) EA 123).

16. According to Pw1 the deceased was his son. He adopted his list of documents filed on December 6, 2021 and testified that he got information that the deceased was involved in an accident and that he was hit by motor vehicle KAZ 806W Toyota Prado. He rushed to the scene and found that his son had been rushed to King David Hospital where he received first aid before he was transferred to Kenyatta National Hospital for an operation but succumbed to the injuries.

17. Pw1 testified that his son was aged 20 years old and a shoe vendor in Ngong town where he owned a shop called Drip Store. He did not witness the accident.

18. Dw1 CPL Betty testified she was not the investigating officer as she took over from CPL Kimathi who was the investigating officer. She adduced the abstract issued on September 28, 2021 in respect of the accident involving Motorcycle KMEZ 840B and Motor Vehicle KAZ 806W Toyota Prado. She stated that after the investigations were concluded, the deceased was to blame for the accident. She also stated the respondent was charged with the offence of driving under the influence of alcohol and causing death by dangerous driving and was convicted and fined for the former.

19. Dw2 Elijah Lengete testified that he blamed the deceased for the accident. That he had given way to other vehicles when an incoming vehicle gave him the way and was entering the junction when the deceased, while riding a motorbike overtook the vehicle. In an attempt to avoid the accident, he swerved a bit but the deceased hit the bumper of KAZ 806W, the motorcycle fell and the deceased sustained injuries. In cross-examination he testified that motor vehicle KAV 777V had given him a right away.

20. I have carefully considered the record of appeal, grounds of appeal and the submissions by the parties. The issues for determination arei.Whether the trial court erred in the apportionment of liabilityii.Whether the trial court erred in the award of damages

21. On the first issue, this court is being called upon to interfere with the trial court’s finding of liability. In Khambi & another v Mahithi & another [1968] EA 70, it was held that:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”

22. The trial court in its finding found that both the appellant and the respondent owed each other a duty of care and thus having found that both were negligent proceeded to award liability in the ratio of 50: 50. I am not persuaded that the trial magistrate erred in apportioning liability in the manner she did and I uphold the same.

23. On the second issue, this court can only interfere with the assessment of damages by the trial court where it is satisfied that the trial magistrate took into account wrong principles and irrelevant facts which led to an inordinately high or low assessment of damages. This was the position of the Court of Appeal in Municipal Council of Nakuru & another v David Mburu Gathiaya [1993] eKLR which cited with approval the case of Butt v Khan [1982-88] KAR 1: -“An appellate court will not disturb an award for damages unless it is 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”.

24. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

25. The trial court awarded the appellant Kshs. 20,000/= for pain and suffering and opined that the accident occurred at 5. 00 pm and the deceased succumbed to the injuries at 2. 00 am. Reliance was placed in the case of Kimunya Abednego v Zipporah Musyoka & anor, Makueni HCCA 173 of 2017 (2019) where the court awarded Kshs 20,000/= for a deceased who died on the same day of the accident.

26. Based on the above authority very minimal damages are awarded if the death followed immediately after the incident. In the instant case the trial court took into consideration that fact. Considering that I have been invited to exercise my discretion, in the circumstances I am not persuaded that the trial court erred in awarding Kshs. 20,000/= for pain and suffering as the deceased died 9 hours after the accident. The proposal by the appellant to award Kshs 1,500,000/= under this head is without basis and the same is declined.

27. Secondly, on the head of loss of expectation of life the above case gives a conventional figure of Kshs. 100,000/=. The trial court awarded a sum of Kshs. 100,000/= which I uphold.

28. In awarding Kshs. 960,000/= under the head loss of dependency, the trial court adopted a multiplier of Kshs 8,000/= per month as the salary or income of the deceased was unknown, a multiplier of 30 years taking into account the vagaries of life and considering the deceased died while aged 21 years and was self-employed. The learned magistrate also considered the deceased was not married and was survived only by the parents and adopted a multiplicand of 1/3.

29. The appellant faulted the trial court for using the multiplier approach and submitted that the court ought to have used the global approach and award a sum of Kshs. 4,000,000/=. It is the discretion of the trial court to either adopt a global approach or the multiplier approach. I find that in the absence of proof of the deceased earnings, the multiplicand of Kshs. 8,000/= was without basis. In the circumstances I will consider using the global sum approach. In Albert Odawa vs Gichimu Gichenji [2007] eKLR) which was cited with approval in Mwanzia v Ngalali Mutua & Kenya Bus Service (Msa) Ltd &another, Hon. Ringera, J took the view that:“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. It is plain that it is 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 known or are knowable without 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 should never do.”

30. In view of the above this court finds the award of Kshs. 960,000/= as manifestly low, while the amount of Kshs. 4,000,000/= as proposed by the appellant to be excessively high. I, therefore, set aside the trial court’s award of Kshs 960,000/= and award a global sum of Kshs. 2,000,000/=.

31. In the premises, I find the appeal partially succeeds only under the loss of dependency, I uphold the trial court awards on the other heads.

32. Final Ordersi.Liability is apportioned at 50:50ii.General damages – pain and suffering Kshs. 20,000/= Loss of expectations of life Kshs. 100,000/=

Loss of dependency Kshs. 2,000,000/=

Special damages Kshs. 84, 689/=iii.Costs of the appeal to the appellantOrders accordingly.

JUDGMENT DELIVERED VIRTUALLY, SIGNED ANT DATED AT KAJIADO THIS 8TH DAY OF DECEMBER 2023. ..........................P. MULWAJUDGEIn the presence of:Kiarie – court assistantMs. Okumu h/b for Mr. Nyagito - for the AppellantMs. Nyaruri h/b for Ms. Ntabo - for the Respondent