Roy Hauliers Limited & another v David & another (Suing as the legal representatives of the estate of the late David Mutata Nzioka) [2022] KEHC 11492 (KLR)

Roy Hauliers Limited & another v David & another (Suing as the legal representatives of the estate of the late David Mutata Nzioka) (Civil Appeal 652 of 2019) [2022] KEHC 11492 (KLR) (Civ) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11492 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 652 of 2019

CW Meoli, J

May 12, 2022

Between

Roy Hauliers Limited

1st Appellant

Julius Wambua Mwinzi

2nd Appellant

and

Silvester Kyalo David

1st Respondent

Josephine Katumbi David

2nd Respondent

Suing as the legal representatives of the estate of the late David Mutata Nzioka

(Being an appeal from the judgment of A.N Makau (Ms.) (PM). Delivered on 11th October 2019 in Nairobi Milimani CMCC No. 9338 of 2017)

Judgment

1. This appeal emanates from the judgment delivered on 11th October 2019 in Nairobi Milimani CMCC No. 9338 of 2017. The suit was commenced by a plaint filed on 22nd December 2017 by Josephine Katumbi & Silvester Kyalo David, the plaintiffs in the lower court (hereafter the Respondents) against Roy Hauliers Limited & Julius Wambua Mwinzi, the defendants in the lower court (hereafter the Appellants). The claim was for damages under the Law Reform Act and Fatal Accidents Act in respect of fatal injuries sustained by David Mutata Nzioka (hereafter deceased) in a road traffic accident on 14th June 2016. It was averred that the 1st Appellant was the registered owner of the motor vehicle registration no. KBL 381F ZD 6164 at the time being driven by the authorized driver, servant and or agent, the 2nd Appellant. It was further alleged that the deceased was a pedestrian lawfully walking “way off” the North Airport Road, Embakasi, Nairobi when the said driver so negligently and or recklessly managed and or controlled subject motor vehicle that it left its lawful path, lost control, and violently knocked down the deceased, occasioning him fatal injuries. Negligence and vicarious liability were pleaded against the Appellants.

2. The Appellants filed a joint statement of defence denying the key averments in the plaint and liability. Alternatively, the Appellants pleaded contributory negligence against the deceased. The suit proceeded to full hearing during which only the Respondents adduced evidence. In its judgment, the trial court found in favour of the Respondents and held Appellants wholly liable for the accident. Judgment was entered against them jointly and severally in the sum of Kshs. 6,298,480/- made up as follows:a.General damages for pain and suffering Kshs. 10,000/-;b.Loss of expectation of life Kshs. 100,000/-;c.Loss of dependency Kshs. 6,000,000/-;d.Special Damages: Kshs. 188,480/-.

3. Aggrieved with the outcome, the Appellants preferred this appeal which is based on the following grounds: -“1. The Learned Magistrate erred in law and fact by finding the Appellants (liable) for the accident contrary to the weight of the evidence.2. The Learned Magistrate erred in law and fact in awarding the Respondents Kshs. 6,000,000/= when the Respondent did not prove the dependency or render any proof to ascertain any relationship.3. The Learned Magistrate erred in law and fact in awarding an excessive amount of Kshs. 6,000,000/= to the Respondents on loss of dependency without any reason or justification.” (sic)

4. The appeal was canvassed by way of written submissions. Counsel for the Appellants anchored his submissions on the decisions in Peters v Sunday Post Limited (1958) EA 424 concerning the duty of the appellate court on a first appeal. Pausing there, it is evident from the pleadings, evidence and submissions in the lower court that the issue of liability was disputed, at the trial and it seems that despite the omission of the word “liable” in ground 1 of the appeal, the ground related to that issue. However, from the rather jumbled up submissions by the Appellants’ counsel on this appeal, the only remotely relevant complaint raised by the Appellants’ counsel in that regard was the denial by the trial court of an adjournment sought on 8th August 2019 by the Appellants, to call their witness, who from the defence witness statement on record was the 2nd Appellant.

5. The rest of the Appellants’ purported submissions on ground 1 are discordant with the ground concerned as they raise matters respecting proof of the deceased’s occupation. Citing the case of Monica Njeri Kamau (Suing as the legal Administrator of the Estate of the late Samuel Kamau Njeri) v Peter Monari Onkoba [2019] eKLR among others, counsel submitted that the Respondents failed to prove the deceased’s occupation and income and asserted that the trial magistrate erred in making a finding that the deceased was a businessman.

6. Earlier counsel had cited the decision in Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30 as to the principles to be observed by an appellate court in deciding whether to interfere with the discretion of the trial court on the award of damages. I take it that the said submission was intended as a preface to the challenge on quantum as found in grounds 2 and 3.

7. Concerning ground 2, counsel submitted that the Respondents failed to prove their relationship with the deceased and hence dependency. He pointed out that the letter from the chief produced in evidence by the Respondents was in reference to a person whose name differed from that of the deceased. This reference must be to document no. 3 in the Plaintiff’s List of Documents accompanying the plaint and dated 19th December 2017. The document is a copy of a letter dated 8th September 2016 purporting to emanate from the office of the Chief Kathekakai Location, Machakos in respect of a deceased person known as Harrison Mwangangi Nzioka. The Plaintiff apparently substituted this document at the trial in the lower court with a copy of a letter dated 11th August 2016 in respect of the deceased herein. The said letter, apparently emanating from the Deputy County Commissioner Machakos was produced as PExh.6. Elsewhere in their submissions the Appellants complain that documents “deemed” as produced were never really produced at the trial.

8. On ground 3 of the appeal, the Appellants’ counsel resumed submissions on the question whether the deceased’s occupation and income were proved. Counsel therefore took issue with the lower court’s application of the case of Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR in the circumstances and urged this court to substitute the award on lost dependency with a global award as was done in Jecinta Ruguru v Beatrice Muthoni Muthike [2021] eKLR. Counsel submitted that this court ought to set aside the trial court’s award on dependency and substitute it with an award of Kshs. 1,300,000/-. Before leaving the Appellants’ submissions, the Court feels obligated to express its dissatisfaction with the tangled and almost incoherent fashion in which they were presented.

9. The Respondents naturally defended the trial court’s findings. Counsel cited the case of Abok James Odera t/a A.J Odera and Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR regarding the duty of an appellate court on a first appeal. The Respondents’ counsel correctly understood ground 1 of the appeal to challenge liability, and reiterating evidence at the trial, especially by PC. Hussein Mohamed (PW1) that the vehicle was speeding at the time of the accident, asserted that liability was established against the Appellants. Moreover that, the Appellants did not adduce any evidence to controvert the Respondents’ evidence. He also incorrectly asserted that the Appellants did not file any witness statement; the 2nd Appellant’s statement is on the lower court record and indicates a filing date of 5th February 2019. Referring to the provisions of Section 107(1), 109 & 112 of the Evidence Act, counsel contended that the Appellants having failed to tender evidence at the trial cannot be heard to fault the finding of the trial court on liability.

10. Submitting on the award on lost dependency, counsel referred to the provisions of Section 4(1) of the Fatal Accidents Act to assert that the suit in the lower court was brought by the wife and son to the deceased for the benefit of other beneficiaries in his estate as indicated in the letter from the administrative offices tendered in evidence. Further, citing the cases of Wachira v Ndanjeru (1987) KLR 252 and Margaret Wanjiru Ndungu v Sammy Wagura Karanja [2015] eKLR, counsel contended that issue of dependency was not contested at the trial and it was unacceptable for the Appellants to raise it at this stage. In concluding, he submitted that the award on lost dependency was proper and ought not to be disturbed. On this, he relied on the case of Moses Mairua Muchiri v Cyrus Maina Macharia [2016] eKLR and urged the court to dismiss the appeal with costs.

11. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

12. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

13. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view the appeal turns on two issues, namely, whether the finding of the trial court on liability was well founded, and secondly, whether the award on loss of dependency was justified. Pertinent to the determination of issues are the pleadings, which form the basis of the parties’ respective cases before the trial court. Hence a review thereof is apposite before dealing with evidentiary matters. In Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of theCivil Procedure Rules.And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

14. The Respondents by their plaint averred at paragraphs 5 and 6 that:“5. On or about the 14/6/2016 the deceased was lawfully and carefully walking way off the road along the North Airport Road near Nakumatt Supermarket – Embakasi in Nairobi when the Appellants either by themselves, their authorized driver, servant and or agent so negligently and or recklessly managed and or controlled motor vehicle registration number KBL 381F ZD 6164 that the same was permitted to leave its lawful path, lose control and violently hit the Deceased occasioning fatal injuries to the Deceased pedestrian.Particulars of Negligence on the Part of the Defendants and/or Authorized Driver, Agent and or Servant of the Motor Vehicle Registration Number KBL 381F ZD 6164i.Driving at a speed that was excessive in the circumstance.ii.Driving dangerously and carelessly along the said road.iii.Failing to break, slow down and/or in any other manner possible to control the said motor vehicle so as to avoid the said accident.iv.Failing to maintain any and/or proper and effective control of the said motor vehiclev.Causing the said accident.And at the hearing hereof the Plaintiff shall rely on the doctrine of Res Ipsa Loquitor Act (Cap 403) law of Kenya and the Highway Code.6. As a result of the said accident the deceased lost his expectation of life, his dependents have suffered and have lost the dependency and consequently suffered loss, expenses and damages.” (sic)

15. The Appellants filed a joint statement of defence denying the occurrence of the accident and negligence on their part, and in the alternative pleaded contributory negligence on the part of the deceased by stating at paragraphs 3, 4 and 6 that:“3. The Defendants denies the contents of paragraph 5 of the Plaint in total and particularly the occurrence of the alleged accident at the alleged place and date or any other date and/or that the matters complained of were caused by the Defendants as alleged in the said paragraph and puts the Plaintiffs to strict proof thereof. The Defendants further specifically denies the allegation of negligence attributed to them either as particularized in paragraph 5 (i)-(v) of the Plaint and puts the Plaintiffs to strict proof thereof.4. The Defendant denies the contents of paragraph 6 of the Plaint and puts the Plaintiff to strict proof thereof.……6. Further, in the alternative and without prejudice to the foregoing, the Defendant avers that an accident, if any, and which is denied, was wholly caused by or substantially contributed to by the negligence of the Plaintiff.Particulars of Negligence of the Plaintiffa.Failing to keep any or proper lookout on the said road.b.Failing to exercise ant due care or caution so as to avoid the accident.c.Causing the said accident.The Defendants will further on rely on the provisions of the Traffic Act, the rules and regulations made there under and the Highway Code.” (sic)

16. By their 1st ground of appeal, though barely elaborated in submissions, the Appellants challenge the finding on liability as going against the weight of evidence. Undisputedly, neither the Respondents nor their witness PW1 witnessed the accident in question. That notwithstanding, the trial court after restating the said evidence in its judgment stated concerning liability that:“Upon a careful analysis of the pleadings, the evidence on record, the testimonies and the written submissions by parties, it is in no doubt that a road traffic accident that killed the deceased occurred. It is also not in doubt that the deceased herein passed on. The plaintiff’s evidence is unchallenged by the defendant who did not avail any evidence to contradict or shake the plaintiff’s case. I am well guided by the decision of the court in the case of:Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu2012 eklr …Where the court held; although the defendant denied liability ..no witness was called to give evidence on his behalf. That means that…his defence and counterclaim are unsubstantiated..... Where a party fails to call evidence in support of its case that party’s pleadings remain mere statements of fact…”As such, I find the 2nd defendant is to blame for the occurrence of the accident and bears 100% liability.Evidence on record confirms 1st defendant was the registered owner of the vehicle that hit and killed the deceased and it is therefore vicariously liable for the actions and/or omissions of its driver” (sic).

17. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The duty of proving the averments contained in the plaint lay squarely on the Respondents. In Karugi & Another V. Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

18. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd V. Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku V. Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

19. As earlier observed, neither PC. Hussein Mohammed (PW1) nor the Respondents who testified as PW2 and PW3 respectively, witnessed the material accident, and the Appellants did not adduce evidence thereon, having been denied an adjournment. Beyond confirming occurrence of the accident, the account by PW 1 did not contain admissible and credible evidence as to how the accident occurred. He blamed the vehicle driver for the accident, by claiming without elaborating that the Appellants’ vehicle was doing over 50KPH at the time of the accident, while the speed limit at the accident spot was 50KPH and the trial court appeared to accept that evidence. What was the basis for PW1’s bold claim? None, in my view.

20. The purported point of impact relative to the resting positions of the vehicle and the deceased as indicated on the sketch plan could only be proved by the maker of the sketch plan. It was not open to PW1 to surmise from these distances that the vehicle was speeding. Clearly, PW1’s evidence was hearsay derived from reading of the Occurrence Book (O.B) extract (PExh.1a), and an alleged sketch plan (PExh.2) whose author is neither indicated, nor was the sketch plan accompanied by a legend, as is the practice. According to PExh. 1a, the investigations relating to the accident were still pending.

21. As regards the probative value to be attached to a sketch plan, the Court of Appeal in Equator Distributors v Joel Muriu & 3 others [2018] eKLR observed that:“A police sketch of a scene of accident depicts the overall layout of the location and the relationship of evidentiary items to the surroundings. A police sketch of the scene of accident is evidence tending to show the relative position of vehicles immediately after the accident and this tend to throw light on the issue of speed and direction of the vehicle movement prior to and at the time of, the accident. (See People v. Benson, 321 Ill. 605, 152 N.E. 514, 46 A.L.R. 1056 (1926); West v. Jaloff, 113 Or. 184, 232 P. 642, 36 A.L.R. 1391 (1925).In the persuasive case of Francis Mburu Njoroge vs. Republic Nairobi High Court Criminal Appeal No. 1131 of 1986, the High Court expressed itself as follows:“The authorities would appear to indicate that it is the responsibility of the court to make a finding of point of impact as a fact. Secondly to do that the court has to treat the police officers as experts by establishing their experience in dealing with accidents for a considerable period. Such police officers would only state what they see on arrival at the scene stating where every debris on the road including the position of the vehicles after the impact. The court would then make up its mind as to the point of impact after taking into account all the circumstances of the case including evidence of other witnesses.In the case of Charles Ng’ang’a Muhia -v- Republic, the Court of Appeal said:“Opinion evidence given by police officer relating to the point of impact should never be accepted unless he can show that he has many years’ experience in inspecting the scenes of traffic accidents. He should give evidence only of what he saw at the scene on his arrival including every mark on or near the road and every piece of debris leaving it to the court to determine the point of impact.”

22. It concluded by stating that:“On the probative value to be given to a police sketch map, we are aware that a police sketch map for a road traffic accident is prepared after the event, it is not an eyewitness account. However, it carries some probative value. The sketch map is not binding on the trial court and it is upon the court to establish facts from all the evidence on record. A police sketch map is just but an item of evidence to be considered. In this appeal, the appellant has not demonstrated to us that the trial court acted on wrong material in giving credence and weight to the police sketch map. In our view, the map has a probative value as it shows the relative positions of the two motor vehicles immediately after the accident. We find no reason to fault the judge for giving weight to the police sketch map.”

23. PW1 was neither the Investigating Officer of the accident nor the scene visiting officer who observed the scene or drew the sketch plan. The author of the sketch plan is anonymous and was not called to testify. In any event, contrary to the averments in the plaint that the deceased was walking “way off” the road and was knocked down by the Appellants’ vehicle which veered out of its lawful path, PExh.2 if bona fide, appears to suggest otherwise. Namely, that the accident occurred within the road, as the location of the alleged point of impact, and resting position of the deceased’s body and the accident vehicle after the accident is indicated to be not only inside the road, but also on the same lane, though apart. In the Court’s assessment, the evidence by PW1 whether uncontroverted or not did not at all establish negligence against the driver of the accident vehicle and the claims by PW1 to the effect that the accident vehicle was speeding at the time of the accident should have been rejected as inadmissible; it was no more than conjecture. The mere occurrence of an accident is not proof of negligence.

24. The Court of Appeal in Keziah & another (Personal Representatives of the late Isaac Macharia Mutunga) v Lochab Transport Limited [2022] KECA 477 (KLR) stated: -“The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident?. The mere fact that an accident involving the two vehicles occurred does not per se translate into the respondent's driver being culpable. It was the duty of the appellants to call evidence to prove the particulars of negligence or any one of them that they attributed to the respondent's driver. We do not think just like the High Court that they discharged this burden.

25. It proceeded to conclude that:-“As already stated, there was no eyewitness to the accident as would have shed light as to how it occurred. The police abstract on record showed that the accident was under investigation. The accident involved two motor vehicles and from the evidence adduced, there is nothing to show that the respondent was culpable.”

26. In this instance, the burden of proof lay with the Respondents and there was no duty cast upon the Appellants to controvert the Respondents’ incredible and inadmissible evidence as to negligence. The evidence failed to rise to the standard of balance of probabilities. Or stated another way, under section 107 of the Evidence Act, the burden of proof lay with the Respondents and if their evidence did not support the facts pleaded, they failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). By ignoring the fact that PW1’s evidence was inadmissible and purporting to shift the burden upon the Appellants in this instance, the trial court misdirected itself. There was no evidential material to support the lower court’s conclusion that the accident vehicle driver was negligent and that the Appellants were wholly liable for the accident. The finding was erroneous in the circumstances and cannot stand.

27. Turning now to the issue of quantum, the applicable principles are well known. The appellate court will only disturb an award of damages where such award is so inordinately high or low as to represent an entirely erroneous estimate. The appellate court is guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.” see also Butt v Khan (1981)KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001; (2004)eKLR; Mbogo V. Shah (1968) EA 93.

28. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 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”.

29. The Appellants’ submissions in the lower court were confined to the issue of liability; they did not submit on quantum. The lower court did not have the benefit of their authorities as submitted on this appeal. This is unacceptable as an appeal is essentially intended as a review of the proceedings of the court appealed from. See Ochieng J’s judgment in Silas Tiren & Another V. Simon Ombati Omiambo [2014] eKLR.

30. That said, the 1st Respondent testified that the deceased was her husband and produced a letter P.Exh 6 listing the deceased’s dependents pursuant to Section 4 of the Fatal Accidents Act and Section 2(5) of the Law Reform Act. This evidence was unchallenged, and the Respondents were entitled to seek damages for lost dependency. While this court has difficulty accepting the certificate of registration in respect of Damta General Supplies (P.Exh 10a) and the bare Barclay’s Bank statement in respect of the period following the deceased’s death (P.Exh 10b) as evidence that the deceased earned Shs. 80,000/- monthly, the trial court was entitled, despite the dearth of material in respect of the deceased’s income, to do its best in arriving at an award.

31. The Court of Appeal in Kimatu Mbuvi v Augustine Munyao Kioko [2001] eKLR stated inter alia that:“But there is dicta in decided cases that a victim does not lose his remedy in damages because its quantification is difficult ... we do not subscribe to the view that the only way to prove the profession of a person must be by way of 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 are even illiterate, keep no records 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.”See also Jacob Ayuga Maruja’s case (supra).

32. In Wambua v Patel [1986] KLR 336 cited in Kimatu’s case, the Court grappled with the quantification of loss of earnings of a cattle trader who had sustained injuries in a road traffic accident. Even though the Court found the Plaintiff’s earnings as rather low, and that he kept no records the Court (Apaloo J (as he then was) stated:“Nevertheless. I am satisfied that he was in the cattle trade and earned his livelihood from that business, a wrong doer must take his victim as he finds him. The Defendants ought not to be heard to say the Plaintiff should be denied his earnings because he did not develop a more sophisticated business method ... But a victim does not lose his remedy in damages because the quantification is difficult.”

33. The Respondents’ evidence that the deceased was a businessman was not discredited merely because the Respondents did not adduce evidence in the form of audited accounts, financial statements and or tax returns with respect to Damta General Supplies to substantiate the earnings. The deceased must have been engaged in some form of occupation and the trial court correctly treated him “as a businessman with no particular skills”. Thus, this was a proper case for a reasonable global award, or for applying the minimum wage applicable, the latter approach being the more appropriate, in my view.

34. Nevertheless, the global figure of Kshs. 6,000,000/- awarded by the trial court as damages for lost dependency was literally plucked from the air and is so inordinately high as to represent an erroneous estimate in the circumstances of this case. The deceased was 57 years old at death and found to be as a businessman with no skills. He probably had another 4-8 years of gainful employment. The trial Court ought to have applied the minimum wage in force in June 2016 for an unskilled laborer and adopted a multiplier of 4-8 years, and a dependency ratio of 2/3 to arrive at a reasonable award to the Respondents, had they succeeded in establishing liability.

35. This court has found that liability was not established and suffice to say that the erroneous award of Kshs.6000,000/- cannot stand, either. Equally, the awards made in respect of loss of expectation of life and special damages though unchallenged on this appeal cannot stand.

36. In the result, the appeal must be allowed, and the court hereby sets aside the judgment of the lower court in its entirety and substitutes therefor an order dismissing the Respondents’ suit in the lower court. In the circumstances of the case, parties will bear their own costs therein and on this appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 12TH DAY OF MAY 2022C.MEOLIJUDGEIn the presence of:For the Appellants: Miss KiprutoFor the Respondents: Miss OoroC/A: Carol