Mwithimbi v Mbichi (Suing as the Administrator of the late Peter Chege Mbichi) [2022] KEHC 9835 (KLR)

Mwithimbi v Mbichi (Suing as the Administrator of the late Peter Chege Mbichi) (Civil Appeal 549 of 2016) [2022] KEHC 9835 (KLR) (Civ) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9835 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 549 of 2016

JN Mulwa, J

July 7, 2022

Between

Silas Mwongera Mwithimbi

Appellant

and

Mbichi Nderitu(Suing as the Administrator of the late Peter Chege Mbichi

Respondent

Suing as the Administrator of the late Peter Chege Mbichi

(Being an appeal against the Judgement and Decree of the Chief Magistrate's Court at Milimani in CMCC No. 3851 of 2013 delivered by Hon. R. Ngetich (CM) on 22nd July 2016)

Judgment

1. This appeal arises from Milimani CMCC No. 3851 of 2013 in which the Respondent sued the Appellant for general and special damages arising from a road traffic accident that led to the demise of Peter Chege Mbichi (the deceased). According to the Plaint, the accident occurred on 20th May 2012 along Ngong road. It was pleaded that on the said date, the deceased was travelling in motor vehicle registration number KBQ 742C as a lawful passenger. When the deceased wanted to alight, the Appellant carelessly and negligently drove, managed and/or controlled the motor vehicle causing him to fall off then he was run over by the said vehicle. The deceased sustained serious injuries which led to his death.

2. The Appellant filed a defence in which he denied the Respondent’s claim in entirety.

3. After trial, the trial court apportioned liability in the ratio 20:80 in favour of the Respondent and awarded damages as follows: Kshs. 40,000/- for pain and suffering, Kshs. 100,000/- for loss of expectation of life, Kshs. 1,314,567/- for loss of dependency, and Kshs. 26,710/- for special damages.

4. Being dissatisfied with the entire judgment, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 19th August 2016 and raised the following grounds:1. The learned magistrate erred in law and misdirected herself when she failed to consider the Appellant’s submissions.2. The learned trial magistrate erred in law and fact in finding the Appellant 80% liable.3. That the learned trial magistrate’s judgment was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law.4. That the learned trial magistrate misdirected herself when she awarded damages under both the Fatal Accident Act and the Law Reform Act.5. The learned trial magistrate erred in law and fact in awarding a dependency period of fifteen (15) years without considering the dependency period submitted by the Appellant and the evidence adduced before the trial court.6. The Learned trial magistrate erred in law and fact in failing to consider the authorities cited by the Appellant.7. The Learned trial Magistrate erred in awarding the Respondent costs of the suit and interest.

5. The Appellant sought the following orders:a.Thatthis Appeal be allowed.b.Thatthis Honourable Court sets aside the Decree and Judgment of the subordinate Court and substitutes it with an order dismissing the entire suit with costs.c.Thatwithout prejudice to prayer (b) above this Honourable court re-assesses the general damages awarded and reduces the same.d.Thatthe costs of this Appeal and that of the trial court be awarded to the Appellants.

6. The appeal was canvassed by way of written submissions. As regards liability, the Appellant submitted that the police abstract tendered in evidence did not indicate that any party was to blame for the incident. He asserted that even the Occurrence Book extract which was produced in evidence did not indicate that he was to blame for the accident. Further, it was his contention that the Respondent did not summon an expert witness to corroborate his evidence as to liability. In his view therefore, liability ought to have been apportioned equally between the parties as was done in the case ofAli Malik Brothers Motors (K) Ltd & another v Emmanuel Oduor Onyango [2018] eKLR.

7. On quantum, the Appellant was only aggrieved by the award for loss of dependency. He contended that the learned magistrate erred by using a multiplier of 15 years in calculating the loss of dependency without considering his submissions that a global approach as opposed to a multiplier approach would be more appropriate. He submitted that the deceased was only 18 years old at the time of his demise and had not begun earning any income which means that he had no wife or kids and his parents were not substantially dependent on him. Further, it was his submission that the statements by the Respondent’s witnesses only contained projections on the line of work the deceased was interested in pursuing after school. According to the Appellant therefore, since the Respondent did not prove the extent to which the deceased’s parents were dependent on him nor the actual loss suffered, a dependency ratio of 1/3 would have been more appropriate in the circumstances. He argued that this was the basis used to uphold a dependency ratio of 1/3 in Dickson Taabu Ogutu (Suing as the legal representative of the estate of Wilberforce Ouma Wanyama v Festus Akolo & another [2020] eKLR and Petronila Muli v Richard Muindi Savi & Catherine Mwende Mwindu [2021] eKLR.

8. On the other hand, the Respondent submitted that the mere fact that neither the police abstract nor the OB extract indicated who was to blame for the accident did not absolve the Appellant of blame. The Respondent asserted that in actual sense, the Appellant ought to have been held 100% liable for the accident since he was operating a dangerous machine being the subject motor vehicle and the deceased being the passenger, had zero control of the same. The Respondent blamed the Appellant for failing to stop despite seeing passengers alighting so as to avert the fatal accident. The court was therefore urged to dismiss the appeal on liability.

9. The Respondent relied on the cases ofMichael Njagi Karimi v Gideon Ndungu Nguribu & Anor [2013] eKLR and Agnes Akinyi Okeyo v Marie Stopes - Kenya [2004] eKLR where courts found drivers who had done nothing to avoid the accidents 100% liable for the ensuing accident. Reliance was also placed on the case ofIsabella Wanjiru Karanja v Washington Matele (1982-88) 1 KAR 186 and Pitty Gathigia Baaru & Another v Kenya Bus Services & Another [2005] eKLR where the courts held that drivers had a greater duty of care than the deceased by virtue of their being in control of motor vehicles which are lethal machines.

10. As regards the quantum of damages, The Respondent urged the court to uphold the multiplicand of Kshs. 10,954. 70 used by the trial court as that is the minimum wage for a general worker. He relied on the case of Beatrice W. Murage v Consumer Transport Ltd & Anor [2014] eKLR, in which it was held that where there is no proof of what the deceased earned, the court would base the earnings on the minimum wage. On the multiplier, it was submitted that the 15 years adopted by the court was in fact too low and not in tandem with the known life expectancy. The Respondent asserted that the deceased was only 18 years of age at the time of his demise and he had great hopes of becoming an electrician so a multiplier of 37-42 years would have been more appropriate as it would have taken into account the vicissitudes and challenges ordinarily encountered in the deceased's intended profession.

11. On the dependency ratio, the Respondent urged that the ratio of 2/3 used by the trial court was in tandem with the Law Reform Act. It was submitted that the Respondent produced a letter from the chief which established that the deceased had a family. The Respondent contended that it cannot be dismissed that the deceased was likely to grow into someone who would have assisted his parents and thus the court should uphold the dependency ratio used. Reliance was placed on the case of Violet Jeptum Rahedi v Albert Kubai Mbogori[2013] Civil Suit No. 676 of 2009 where the court adopted a dependency ratio of 2/3 for a deceased who had left behind a wife and two children. In totality, the Respondent urged the court not to interfere with the trial court’s award of damages for life dependency as the Appellant has not established a basis for doing so.

Analysis and Determination 12. The court has examined the Record of Appeal and the Supplementary Record of Appeal, the grounds of appeal. It has also given due consideration to the parties’ respective submissions and authorities cited. The only issues for determination are whether the learned trial magistrate erred in apportioning liability at the ratio of 80:20 in favour of the Respondent and whether the learned magistrate erred in assessing damages for loss of dependency.

Whether the learned trial magistrate erred in apportioning liability at the ratio of 20:80 in favour of the Respondent 13. The general rule is that a trial court’s finding on apportionment of liability should not be interfered with save in exceptional cases as it is an exercise of discretion. In Khambi and Another v Mahithi and Another [1968] EA 70, it was held thus:“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.”

14. There is no dispute that an accident occurred on 20th May 2012 along Ngong road and the deceased died as a result thereof. PW2, Mercy Atieno, the deceased’s classmate at the time of the accident, testified that she witnessed the accident. She boarded the subject motor vehicle, a PSV bus, and found the decease inside. On reaching Ngong Town bus stage, the deceased went and stood near the door to wait for the vehicle to stop. Before the vehicle stopped, the conductor told the deceased to step out and pushed him out of the vehicle. However, the driver did not stop and when people asked him what he had hit, he said that it was a bump. PW1 alighted at the stage and went back to check on the deceased. She found the deceased lying down with blood on his shirt near the chest and legs but he was still alive. He had an injury at the back of his head and his legs had been crushed. She went and called the driver to take the deceased to hospital.

15. PW3, Sergeant Hezekiel Wasike from Ngong Police Station came to court to produce the police abstract. He testified that according to the abstract, it was reported that when the subject vehicle reached Ngong bus stage, it slowed down and passenger started alighting before it stopped. In the process, the deceased fell down and the rear tires of the bus crushed him causing him to sustain injuries that led to his death. PW3 stated that the matter was still pending investigation at the time he appeared in court to testify. In his cross examination, he stated that the deceased was to blame because he alighted before the vehicle stopped.

16. DW1, Chief Inspector Philip Mwangi of Ngong Traffic Base also opined that the deceased was to blame as he alighted from a moving vehicle. He however admitted that he was not the investigating officer and was not based at the station at the time of the accident. He also confirmed that it was not indicated in the Occurrence Book extract which he produced in evidence that the deceased was to blame for the accident and, that the matter was still pending investigation.

17. In the judgment, the trial magistrate took note of the fact that OB entry did not indicate who was to blame for the accident. In apportioning liability, the magistrate reasoned that the deceased would not have alighted from the vehicle had the conductor not opened the door for him to alight. She also stated that the conductor should have alerted the driver of the passenger’s intention to alight and the driver ought to have used his side mirror and stopped the vehicle to avert injuries as he was the one in full control of the vehicle. However, she stated that the passenger should have resisted stepping out of the vehicle and that is why he had to carry part of the blame.

18. From the foregoing, it is my considered view that the trial magistrate’s discretion in apportionment of liability was based on sound reasoning and I thus I see no reason to interfere with it.

Whether the learned magistrate erred in assessing damages for loss of dependency. 19. As a general principal, the assessment of damages is a matter of the exercise of court discretion and as such, an appellate court will normally be slow to interfere with such discretion unless it is very necessary. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:“An appellate court will not disturb an award for general 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...”

20. Damages for loss of dependency are anchored on the Fatal Accidents Act and there are two methods of calculating the same namely a multiplier approach or a global lump-sum approach. In the instant case, the Appellant is aggrieved by the multiplier approach used by the trial court in calculating the award. I have noted that in his submissions before the trial court, he had proposed a global sum of Kshs. 300,000/- under this head on the basis that the deceased was still a child and not engaged in any financial enterprise. In his submissions herein, he alleged that the learned magistrate failed to take his aforesaid submissions into consideration and contested the dependency ratio that was adopted by the trial magistrate in the multiplier approach.

21. The decision of whether to adopt a multiplier or a global award approach is entirely an issue of discretion of the trial court which depends on the circumstances of each case. See Seremo Korir & Another v SS (Suing as The Legal Representative of the Estate of MS, Deceased) [2019] eKLR and Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR.

22. PW1, the Respondent herein testified that his son, the deceased herein was eighteen years old and was a student in Form 3 at the time of the alleged accident. He also testified that the deceased wanted to do electrical work after school and he would have earned a monthly salary of Kshs. 15,000/-. However, no evidence was led as to his future prospects and ambitions. In her judgment, the learned magistrate indeed appreciated that in the circumstances, it was impossible to tell what profession the deceased would have pursued, how long he would have lived to work and help his family and at what age he would have married. The trial magistrate cannot therefore be faulted for having chosen the multiplier approach.

23. I say so because even if the trial magistrate had adopted the global lump-sum approach, chances are that she would have arrived at a comparable award. In the recent past, courts have made global awards of between Kshs. 1 million and 5 million in similar cases. In Charles Makanzie Wambua v Nthoki Munyao & Prudence Munyao (suing as personal representatives of the Estate of Lilian Katumbi Nthoki (Deceased)[2020] eKLR, the court uphelda global award of Kshs 1,320,000/- for loss of dependency involving a minor aged 17 years. In Twokay Chemicals Limited vs. Patrick Makau Mutisya & another [2019] eKLR, the appellate court upheld a global sum of Kshs. 1,500,000/- for loss of dependency for a minor aged sixteen (16) years. Similarly, in Zachary Abusa Magoma v Julius Asiago Ogetonto & Jane Kerubo Asiago [2020] eKLR, the court awarded a global sum of Kshs. 1,500,000/- for loss of dependency.

24. In the premises, I find that the sum of Kshs. 1,314,567/- awarded by the trial magistrate for loss of dependency was not manifestly excessive in the circumstances of the case to warrant interference by this court.

Conclusion 25. For the foregoing, I find that the appeal lacks merit and is hereby dismissed with costs to the Respondent.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JULY 2022. J.N. MULWAJUDGE