Odhiambo & another (Suing as the administrators of the Estate of Denis Obiero Odhiambo) v Akello & another (Civil Appeal E016 of 2022) [2022] KEHC 16954 (KLR) (28 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16954 (KLR)
Republic of Kenya
Civil Appeal E016 of 2022
RE Aburili, J
December 28, 2022
Between
Everline Achieng Odhiambo
1st Appellant
Julius Odhiambo Obiero
2nd Appellant
Suing as the administrators of the Estate of Denis Obiero Odhiambo
and
Nickson Omondi Akello
1st Respondent
Lameck Oyucho Amollo
2nd Respondent
(An appeal from the judgement and decree of the Honourable S.W. Mathenge in the Principal Magistrate’s Court at Bondo delivered on the 6th April 2022 in Bondo PMCC No. 4 of 2022)
Judgment
Introduction
1.This appeal arises from the Judgment and decree of the Learned Resident Magistrate Hon SW Mathenge in Civil Suit No 4 of 2022 delivered on April 6, 2022 in the Principal Magistrates Court in Bondo. The appeal is against the whole judgement of the trial magistrate.
2.A brief background of the case is that the appellants sued the respondents for general damages under the Law Reform Act and the Fatal Accidents Act, special damages, costs of the suit and interest at court rates, for the fatal injury sustained by the deceased as a result of an accident that happened on the 7/7/2019 when the deceased who was a pedestrian was allegedly knocked down by a vehicle belonging to the respondents that was allegedly driven negligently, carelessly and recklessly. The appellants subsequently withdrew their case against the 3rd respondent.
3.The respondents who were defendants in the lower court filed their defence denying the plaintiff/ Appellants’ claim. They denied the occurrence of the accident and put the appellants to strict proof claiming that the accident was due to the negligence of the deceased.
4.The trial magistrate after hearing the case, found that the appellants had failed to prove the details of negligence as against the respondents as claimed and proceeded to dismiss the case.
5.The appellants being dissatisfied with the decision of the Trial Court filed a Memorandum of Appeal dated April 26, 2022, which memorandum raises the following grounds of appeal:
6.The Appellants seek orders that “this appeal be allowed as prayed and the judgement of the trial magistrate be set aside and the same replaced by a suitable judgement by the appellate court”.
7.The appeal herein was canvassed by way of written submissions.
The Appellants’ Submissions
8.The appellants submitted that they adduced evidence before the trial court which included a death certificate and a post mortem report that clearly indicated the cause of death. They further submitted that a police officer testified in court that indeed an accident occurred, that the accident was reported at Bondo Police Station and a police abstract issued, that the 2nd respondent was charged with causing death by dangerous driving.
9.The appellants submitted that although the police officer who testified on their behalf did not carry the Traffic Court files to court and although the said files did not form part of the documents they produced in support of their case, the police abstract presented by the police officer indicated the details and outcome of the traffic offence case.
10.It was submitted that it was not in dispute that the deceased was a pedestrian and that the driver of the motor vehicle owed a duty of care to the deceased as a pedestrian. The appellants submitted that they proved their case on a balance of probabilities as the respondents did not present any evidence before court to dispute liability.
The 1st& 2nd Respondents’ Submissions
11.It was submitted that the decision arrived at by the learned magistrate was proper, fair and just as weighed against the weight of the evidence on record. The 1st and 2nd respondents submitted that both the appellant’s witnesses were not at the scene of the accident and could not speak as to how it occurred and further that the abstract produced by PW2 was evidence of an accident report and not evidence of negligence and could not be the basis of finding liability on the part of the respondents as was held in the case of ZOS & CAO (Suing as the Legal Representatives in the Estate of SAO (Deceased)) v Amollo Stephen [2019] eKLR.
12.The respondents submitted that the appellants had the duty of proving negligence on the respondents’ part which burden they failed to discharge and further that they failed to plead the doctrine of Res Ipsa Loqitor as was held in the cases of Tread Setter Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR and that of Nickson Muthoka Mutari v Kenya Agricultural Research Institute [2016] eKLR.
13.The respondents submitted that their failure to adduce any evidence in defence did not tilt the balance and burden of proof to them. Reliance was placed on the case of Mary Wambui Kabugu v Kenya Bus Services Ltd [1997] eKLR.
Analysis and Determination
14.This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but bear in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court stated as follows-
15.In this appeal, it is clear that the determination of this appeal revolves around the following two issues namely:
16.That the burden of proof was on the appellants to prove their case is not in doubt. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
17.The question then is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 stated that:
18.Therefore, the Appellant had the duty of proving the facts constituting negligence on the part of the Respondent even if the appellant chose to remain silent. The exception to this rule however is where the doctrine of res ipsa loquitor applies. In Embu Public Road Services Ltd. v Riimi [1968] EA 22, the East African Court of Appeal held that:
19.The Court of Appeal stated as follows in the case of Joyce Mumbi Mugi v The Co-Operative Bank of Kenya Limited & 2 Others Civil Appeal No 214 of 2004:
20.However, in Mary Ayo Wanyama & 2 Others vs Nairobi City Council Civil Appeal No 252 of 1998, the same Court held that:
21.In this case, it is true that there was no eye witness to the accident. That however is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the plaintiff was a passenger in the vehicle that got involved in an accident in which event res ipsa loquitor may be successfully invoked. (See Esther Mukulu Matheka v Merania Nduta Nairobi HCCC No 3039 of 1995). In fact, Lenaola, J (as he then was) in Esther Nduta Mwangi & Another v Hussein Dairy Transporters Limited Machakos HCCC No 46 of 2007, held that:
22.In Public Trustee vs City Council of Nairobi [1965] EA 758, it was held that:
23.In this case while regrettably the doctrine of res ipsa loquitor was not pleaded by the plaintiffs, the doctrine being a rule of evidence may be inferred by the court from the circumstances of the case. (See the case of Susan Kanini Mwangangi & another v Patrick Mbithi Kavita [2019] eKLR).
24.In Mary Wambui Kabugu v Kenya Bus Services Ltd Civil Appeal No 195 of 1995 Bosire, JA expressed himself as hereunder:
25.This position is in fact mirrored by the decisions relied upon by the respondents in this appeal. In Treadsetters Tyres Ltd (supra), wherein Ibrahim, J (as he then was) cited Charlesworth & Percy on Negligence, 9th Edition at pg. 387 wherein it was stated that:
26.Similarly, in Nickson Muthoka Mutavi v Kenya Agricultural Research Institute [2016] eKLR, Nyamweya, J (as she then was) quoted Halsbury’s Laws of England, 4th Edition at paragraph 662 at page 476 where it is stated that:
27.In Nandwa v Kenya Kazi Ltd [1988] KLR, 488 as cited by Koome, J (as she then was) in Regina Wangechi v Eldoret Express Company Ltd [2008] eKLR it was held that:
28.The question that this Court must therefore resolve is whether there were proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the Respondents herein.
29.That there was an accident involving the deceased and the Respondent’s vehicle is not in doubt. It matters not that the Appellants did not call evidence to prove who was driving the vehicle at the material time.
30.PW2, the Base Commander Bondo Police Station testified and produced in evidence a police abstract showing that charges of causing death by dangerous driving were intended to be preferred against the 2nd respondent.
31.The evidence of PW1 was that when she arrived at the scene, she found the police placing the deceased’s body in a police land cruiser. She stated that she did not know where the deceased was heading but stated that he hawked sweets and simsim.
32.In Hallwell v Venables [1930] 99 LJKB 353, it was held that:
33.In Isabella Wanjiru Karangu v Washington Malele Civil Appeal No 50 of 1981 [1983] KLR 142, it was held that there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. There is no reason for a pedestrian’s complete failure to see a motorist and vice versa.
34.In my view, the evidence of the driver of the vehicle might have thrown more light with respect to the circumstances under which the accident occurred but, in this case, the respondents did not adduce any evidence to back up the allegations contained in their defence.
35.Having considered this appeal and taking into consideration the authorities cited above, and as there was no eye witness to the accident, although lack of an eye witness cannot invalidate a suit, I find that it is appropriate to apportion liability between the deceased and the respondents in the ratio of 50:50. I am fortified by the following holding in the case of Baker vs Harburough Industrial Co-operative Society Limited [1953] 1 WLR 1472 where Lord Denning observed that:
36.In this case, there was no eye witness and the driver of the offending vehicle did not die but opted not to testify, I find no difficulty in finding that both the driver and the deceased contributed to the occurrence of the accident in equal measure.
37.Accordingly, the appeal on liability succeeds. I therefore set aside that decision of the trial court on liability and in its place, I substitute the judgment dismissing the appellants’ suit with an order apportioning liability between the respondents and the deceased equally. Each side bears 50%. The respondents are liable jointly and severally.
38.On what quantum of damages the appellants were entitled to, having found and apportioned liability, the trial magistrate in her judgement stated that had she found the appellants to have proved their case, she would have awarded them a global sum grand total of Kshs 1,010,000 as general damages for pain and suffering, loss of expectation of life and loss of dependency.
39.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:
40.In this case the court merely gave a proposal as to what it might have granted had the appellants proved their case against the respondents. I will thus proceed to quantify the damages payable as there was no evidence set out before the trial court of the abilities and future prospects of the deceased. This is because the court must apply certain principles in arriving at the respective awards under each head.
41.In Chen Wembo & 2 Others Vs IKK & Another (suing as the legal representatives and administrators of the estate of CRK (deceased) [2017] eKLR, the judge made a global award of Kshs 600,000/- for loss of dependency for a deceased aged 12 years.
42.In Francis Odhiambo Nyunja & 2 others v Josephine Malala Owinyi (Suing as the legal administrator of the estate of Kevin Osore Rapando (Deceased) [2020] eKLR, the deceased was aged 17 years old and the court made an award of Kshs 1,500,000 for loss of dependency.
43.The deceased according to the death certificate produced in evidence, was aged 18 years. Based on the aforementioned case of Francis Odhiambo Nynja, it is my view that an award of Kshs 1,500,000 would be sufficient under the heading loss of dependency under the Fatal Accidents Act.
44.As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death.
45.The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. In the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Mwangi) 2019 eKLR it was observed that:
46.The evidence laid out before this court is that the deceased died on the spot. I thus award Kshs 10,000 for pain and suffering and Kshs 100,000 for loss of expectation of life appropriate.
47.The special damages that were proven via receipts before the trial court is Kshs 2,400.
48.In the end, I find that the appeal successful. I hereby set aside the decision of the trial Court dismissing the appellants’ suit and substitute it with an order entering judgment for the plaintiff/appellant against the defendant/ Respondent herein as follows:Liability: 50:50Pain and Suffering Kshs 10,000Loss of expectation of life Kshs 100,000Loss of Dependency Kshs 1,500,000.TOTAL Kshs 1,610,000Less contribution of 50% Kshs 805,000Add Special Damages Kshs 2,400Total Damages payable: Kshs 807,400
49.The general damages will earn interest at court rates from date of judgment in the lower court until payment in full. Special damages earn interest at court rates from date of filing suit until payment in full. Costs of the suit in the lower court shall be to the appellants at 50%
50.I order that each party bear their own costs of the appeal.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 28TH DAY OF DECEMBER, 2022R.E. ABURILIJUDGE