Limo (Suing as the Legal Administrator of the Estate of Martin Kiplagat Limo - Deceased) & 2 others v Ngoyai & 2 others (Civil Appeal E045 & E046 of 2021 (Consolidated)) [2022] KEHC 17127 (KLR) (10 November 2022) (Judgment)
Neutral citation:
[2022] KEHC 17127 (KLR)
Republic of Kenya
Civil Appeal E045 & E046 of 2021 (Consolidated)
AC Mrima, J
November 10, 2022
Between
John Rotich Limo (Suing as the Legal Administrator of the Estate of Martin Kiplagat Limo - Deceased)
Appellant
and
Rose Ngoyai
1st Respondent
Job Mabonga
2nd Respondent
As consolidated with
Civil Appeal E046 of 2021
Between
Rose Ngoyai
1st Appellant
Job Mabonga
2nd Appellant
and
John Rotich Limo (Suing as the Legal Administrator of the Estate of Martin Kiplagat Limo - Deceased)
Respondent
(Being appeals arising out of the judgment and decree of Hon. S. N. Makila (Principal Magistrate) in Kitale Chief Magistrate’s Court Civil Case No. 316 of 2018 delivered on 1st September, 2021)
Judgment
Introduction
1.The judgment in this matter relates to Civil Appeal No. E045 of 2021 and Civil Appeal No. E046 of 2021.
2.By an order of this Court made on 7th July, 2022, Civil Appeal No. E045 of 2021 was deemed as the main appeal and Civil Appeal No. E046 of 2021 as the Cross-Appeal.
3.Both appeals arose from the judgment rendered on 1st September, 2021 in Kitale CMCC No. 316 of 2018; John Rotich Limo (suing as the legal administrator of the estate of the late Martin Kiplagat Limo v Rose Ngoyai & Job Mabonga (hereinafter referred to as ‘the civil suit’).
4.The suit arose from a fatal road traffic accident involving a pedestrian one Martin Kiplagat Limo and a motor vehicle registration number KAH xxxW make Toyota Corolla Saloon on 31st March, 2017 along the Kitale – Kapenguria road within Makunga area.
5.All parties in the civil suit were dissatisfied with the judgment of the trial Court and filed separate appeals. Civil Appeal No. E045 of 2021 was filed by the Plaintiff whereas Civil Appeal No. E045 of 2021 was preferred by the Defendants.
The Civil Suit:
6.John Rotich Limo instituted the civil suit as the Administrator of and on behalf of the estate of the Late Martin Kiplagat Limo who was his son. I will hereinafter refer to the said John Rotich Limo as ‘the Appellant’ and to the Late Martin Kiplagat Limo as ‘the deceased’.
7.In his Amended Plaint filed on 9th August, 2018, the Appellant averred that one Rose Ngoyai whom he sued as the 1st Defendant in the civil suit and who was the 1st Respondent in the main appeal (hereinafter referred to as ‘the 1st Respondent’) was the registered owner of the subject motor vehicle registration No. KAH xxxW.
8.The Appellant further averred that one Job Mabonga whom he sued as the 2nd Defendant in the civil suit and who was the 2nd Respondent in the main appeal (hereinafter referred to as ‘the 2nd Respondent’) was the driver of the subject motor vehicle at the time of the fatal accident.
9.It was deposed by the Appellant that on 31st March, 2017, the deceased was a walking pedestrian along Kitale - Kapenguria road in Makunga area where the 2nd Respondent drove the said motor vehicle so negligently and carelessly that he caused an accident occasioning the death of the deceased.
10.The Appellant wholly attributed the Respondents’ negligence as the cause of the accident that led to the deceased’s death as particularized in paragraph 5 of his Plaint. He thus sought damages under the Law Reform Act and the Fatal Accidents Act.
11.The 1st and 2nd Respondents opposed the civil suit. They averred that the accident was wholly and/or substantially caused by the deceased who did not exercise due care and caution while using the road as the deceased suddenly emerged unto the road in circumstances which made the 2nd Respondent not able to avoid the accident even after exercising all due care and control of the vehicle.
12.The civil suit was duly heard. The Appellant testified as PW2. He also called 4 witnesses. There was Charles Macharia Kariuki who testified as PW1. He stated that he had just parted ways with the deceased moments before he heard a loud bang and on rushing to the scene he found the deceased lying on the right hand of the road as one faced Kapenguria. The deceased was off the road, bleeding from his head and unconscious. Charles, PW1, rushed the deceased to Mt. Elgon Hospital and later to Cherang’any Nursing Home. The deceased succumbed on the following day.
13.PW3 was one Marasi Isaac who was the Records Management Officer at Kitale Law Courts. He produced the Court file in Traffic Case No. 332 of 2017 Republic v Job Mabonga Wagungu wherein the 2nd Respondent was charged with and convicted of the offence of causing death by dangerous driving. The 2nd Respondent was fined Kshs. 100,000/= in default to serve 1 year in jail.
14.PW4 was No. xxxx PC Philip Mitios who was based at Kitale Police Station. He produced a Police Abstract, a copy of the vehicle’s Inspection Report, a copy of the 2nd Respondent’s statement and his driving licence as well as the vehicle insurance certificate.
15.PW5 was one John Shirandukho Ibarua who was a caterer at the burial of the deceased.
16.The 2nd Respondent testified on behalf of the Respondents. He did not call any witness.
17.After full hearing, the trial Court found the Respondents 100% jointly and severally liable for the accident. On quantum, the Court rendered as follows: -
- Pain and suffering - Kshs. 20,000/=
- Loss of expectation of life - Kshs. 150,000/=
- Lost Years - Kshs. 2,633,600/=
- Special damages - Kshs. 250,000/=
18.It is that finding of the trial Court that was disapproved of by the parties hence the two appeals.
The Appeals:
19.In his Memorandum of Appeal filed on 16th September, 2021, the Appellant (In Civil Appeal No. E045 of 2021) raised four (4) grounds of appeal. The grounds were as follows: -
20.In Civil Appeal No. E046 of 2021, the Respondents (as Cross-Appellants) filed a Memorandum of Appeal dated 30th September, 2021 in which they raised 7 grounds of appeal.
21.The grounds were as follows: -
22.Both appeals sought that they be respectively allowed as prayed.
23.The appeals were heard by way of written submissions and all parties filed joint submissions on both appeals.
Analysis:
24.The Court has carefully and keenly read and understood the proceedings and the judgment in the civil suit as well as the Record of Appeal, the grounds thereof, the parties' submissions and the decisions referred thereto.
25.The appeals are on both liability and quantum.
26.In dealing with the appeals, this Court is called upon to reconsider the evidence on record, evaluate it and reach its own conclusion. (See Selle & Ano. v Associated Motor Boat Co. Ltd (1968) EA 123). This Court, nevertheless, appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd (1982-88) 1 KAR 278, Abdul Hammed Saif v Ali Mohamed Sholan (1955) 22 EACA 270 and Kiruga v Kiruga& Another (1988) KLR 348) among others.
27.On appeals against quantum of damages, the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services, Gathogo Kanini v A.M.M. Lubia & Another (1982-88) 1 KAR 777 enumerated the principles for consideration as follows: -
28.As said, since the appeals are on both liability and quantum, this Court will, therefore, consider all the limbs sequentially and as follows: -
a.On Liability:
29.There is no doubt that an accident occurred on 31st March, 2017 at Makunga area along Kitale - Kapenguria road involving the deceased and the subject motor vehicle. The accident took place at around 7:30pm.
30.The trial Court found the Respondents wholly liable for the accident on the basis that the 2nd Respondent had been charged, tried, found guilty, convicted and sentenced in Kitale Chief Magistrates Court Traffic Case No. 332 of 2017 Republic v Job Mabonga Wagungu (hereinafter referred to as ‘the traffic case”. The position was fully supported by the Appellant and it was diametrically opposed by the Respondents.
31.Perhaps it is of essence to, in the first instance, settle the legal position on the issue.
32.The Court of Appeal, has on many occasions, expressed itself on the matter. For instance, in Chemwolo & Another v Kubende [1986] KLR 492 at page 498, the Court stated as follows: -
33.The High Court has, over time, followed the above legal position not only on the basis of the doctrine of stare decisis, but also on the basis of the fact that the position is plainly reasonable, realistic, just, sound and fair. Whereas a person may be involved in a fatal accident and another found culpable of causing the said accident, the truth may be that the accident may have been, to a certain extent, caused or contributed to by the one who was fatally wounded. A criminal or a traffic case may not ordinarily ascertain and decide on issues of contribution with precision. That is why such fall under the realm of torts and is subject to civil cases.
34.Distinguished Judges of the High Court have expressed themselves as much. In Charles Munyeki Kimiti v Joel Mwenda & 3 Others [2010] eKLR Lenaola, J (as he then was) rendered himself as follows: -
35.Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that: -
36.Kamau, J in Joshua Muriungi Ng’anatha v Benson Kataka Lemureiyani [2016] eKLR further nailed it as follows: -
37.Arising from the above, it is apparent that the trial Court acted on wrong principles in reaching the finding that since the 2nd Respondent was convicted in a traffic case then he was wholly liable in the civil case. Nevertheless, it is imperative to clarify that there was a possibility that the trial Court would have still found the Respondents wholly liable, but that ought not to be solely on the basis of the conviction in the traffic case. Such a finding ought to be a product of the evidence tendered in the civil case.
38.Having so said, this Court will now re-look at the aspect of liability with a view to ascertain whether the contention by the Respondents that the deceased was wholly or substantially to blame for the accident stands.
39.The 2nd Respondent was the only one who witnessed the way the accident happened. All the other witnesses did not. PW1 rushed to the scene only to find the deceased lying down. The subject motor vehicle was not at the scene. PW4 also went to the scene and found the deceased still lying down. He produced several documents on the accident. He had confirmed that a sketch map of the scene was drawn and produced in the traffic case.
40.PW1 found the deceased lying down and on the right hand as one faced Kapenguria. He was off the road. He testified that as he was escorting the deceased from PW1’s home and they approached the main road on the right side facing Kapenguria. He further stated that he parted ways with the deceased at the main road. The deceased walked on the main road towards Kitale. That was still on the right-hand side facing Kapenguria. Although the deceased was to cross the road, he had not done so at the time the accident occurred.
41.Therefore, at the time the deceased and PW1 parted ways, the deceased was walking on the main road towards Kitale as he intended to cross the road to the other side.
42.PW1 heard a bang on the main road as he had walked for about 20 minutes. He rushed to the scene and saw a vehicle with no headlights, but with hazard lights on. The vehicle did not stop and was driven towards Kitale. PW1 stated that he found the deceased off the main road and on the left-hand side as one faced Kitale. That was the same side of the main road PW1 had left the deceased walking on as they parted ways.
43.PW1 did not state how far the deceased lay off the main road. He, however, stated that when he eventually saw the subject motor vehicle, it was damaged on the left side of the front windscreen.
44.PW4 was the investigating officer who preferred charges against the 2nd Respondent. He produced a copy of the Inspection Report of the subject motor vehicle. According to the Report, the front windscreen, the front bumper and the front grill were all damaged. The front roof top was heavily dented. The braking system was effective and front head lamps were damaged. The Report also indicated that the vehicle had no pre-accident defects.
45.PW4 testified that the police (him included) arrived at the scene about 30 minutes after the accident had occurred. Whereas the vehicle was not there, they found the deceased at the scene unconscious. The deceased was on the extreme left side of the road. PW4 stated that the police interrogated onlookers and ascertained that the deceased was about to, but had not began crossing the road. According to PW4 the deceased was off the road when he was hit.
46.Both PW1 and PW4 variously attributed the accident to the 2nd Respondent.
47.The 2nd Respondent testified. He testified that as he was driving towards Kitale from Kapenguria direction, the deceased suddenly attempted to cross the road at a very short distance. He applied emergency brakes, but due to the proximity he hit him. He reported the matter to the police. He further stated that there was no zebra crossing at the scene. He admitted that the vehicle was damaged.
48.On the basis of the Inspection Report, it is, therefore, a fact that the front windscreen, the front bumper, the front grill and the front roof top were all damaged at the accident scene. As the damage on the vehicle was substantial, it meant that the impact must have been quite heavy. For such an impact to occur bearing in mind that the deceased was walking on foot and without evidence of screech marks on the road, the only reasonable conclusion can be that the vehicle was driven at a very high speed at the time of the impact with the deceased.
49.It is also not controverted that the deceased was walking on the left-hand side of the road towards Kitale. That means he was on the same lane and faced the same direction as the motor vehicle. However, Traffic Rules require that whenever one walks on a main road, he/she must walk on the side facing the oncoming vehicles.
50.There was also no evidence that the Kapenguria-Kitale road was appropriately marked for the 2nd Respondent to find refuge in the allegation that the deceased crossed the road at a place where there was no zebra-crossing. Further, there is no doubt that one must exercise care and caution while crossing a main road or a highway by at least double checking on the left-hand side that it is safe to do so.
51.In this case, PW1 stated that he left the deceased walking on the road as they parted. He only heard the bang after 20 minutes. The 2nd Respondent stated that the deceased attempted to abruptly cross the road, hence he was hit. PW1 and PW4 gave contradicting evidence on where the body of the deceased lay at the scene. According to PW1 who arrived long before PW4, the body was off the road whereas according to PW4 the body was on the extreme far left side of the road. If both PW1 and PW4 were present and saw the deceased before he was rushed to hospital, there would be no such a contradiction. It, therefore, means that one of them opted to be either untruthful to the Court or was not keen enough to ascertain where the body of the deceased exactly lay.
52.PW4 also testified of onlookers telling him that the deceased had not begun crossing when he was hit. That was at variance with the 2nd Respondent. However, PW4 did not to record the statement of any of such onlookers. The upshot is that such evidence is hearsay and inadmissible in evidence.
53.Be that as it may, there is no doubt the deceased was on the road at the time of impact. The point of impact must also have been on the left side of the lane to Kitale going by the damage on the vehicle. There is also no evidence that the vehicle veered off the road at any time before hitting the deceased. That adds credence to the 2nd Respondent’s averment that the deceased was hit as he attempted to cross the road. Such a heavy impact would reasonably throw the deceased off the road.
54.By considering the totality of the foregoing on how the accident occurred, this Court finds that this was a case where liability between the deceased and the Respondents ought to have been apportioned.
55.On a balance of scales and noting the position relative to the 2nd Respondent, the 2nd Respondent would shoulder a higher contribution. The Court apportions contribution at 30/70% in favour of the deceased and as against the Respondents.
Quantum of damages:
56.The parameters within which an appellate Court may interfere with an award of damages have already been captured above.
57.The Court will now re-look at different limbs of the awards made.
Damages under the Law Reform Act:
58.Such are damages on pain and suffering and loss of expectation of life.
Pain and suffering:
59.The trial Court assessed damages for pain and suffering at Kshs. 20,000/=. The Court took note of the fact that the deceased died a day later after the accident occurred.
60.This Court is of the considered position that the longer it takes a person who is in pain to die, the higher the award.
61.Echoing my brother, Odunga J (as he then was) in Civil Appeal No. 42 of 2018 Joseph Kivati Wambua v SMM & Another (suing as the Legal Representatives of the Estate of EMM-Deceased (2021) eKLR the Learned Judge held as follows: -
62.The deceased definitely underwent some pain before he died. There was evidence by PW1 that the deceased lay unconscious at the scene. There was no any further evidence that the deceased regained consciousness at the hospital so as to be able to experience the pain. With such a lacuna, the trial Court was correct in making the award of Kshs. 20,000/=.
63.The appeal against the award is, hence, disallowed.
Loss of expectation of life:
64.The trial Court awarded Kshs. 150,000/=. In the circumstances of this case, this Court finds the award appropriate and shall not thus disturb the finding.
Damages under the Fatal Accidents Act:
65.The Appellant was dissatisfied with the trial Court’s assessment of damages for loss of lost years. He faulted the trial Court for failing to consider that the deceased would have been subjected to a salary increment and lamented that the Court ought to have placed reliance on the authority that he submitted at trial. Finally, he propositioned that the trial Court ought to have applied a multiplicand of 31 years instead of 20 years.
66.In computing the award on the lost years, the trial Court relied on a copy of the Revised Scheme of Service for Administration officers 2007 and an Implementation of Job Evaluation Results Phase 1 Salary Review for Civil Servants in adopting a minimum monthly salary of Kshs. 32,920/=. These documents were, however, incorrectly adduced through the written submissions. The Court then applied a multiplier of 20 years and a 1/3 dependency ratio holding that the deceased’s father depended on him. The Court then worked out the damages at the sum of Kshs. 2,633,600/=.
67.In his testimony, the Appellant placed no evidence, whether oral or documentary, to establish the earnings of the deceased. He mainly relied on the deceased’s Degree Certificate earned in 2015.
68.The manner in which damages for lost years ought to be arrived at has, by now, been a well-trodden path. Briefly put, where there is evidence of income on the part of the deceased or such income can be appropriately ascertained say for instance through the duly gazetted minimum wages or any other manner as to enable the Court appropriately determine the multiplicand, then a Court is enjoined to undertake the mathematical process of calculating the lost years by inter alia using the multiplicand, the earnings among other parameters.
69.In instances where it is not possible to ascertain the deceased’s income, say for instance where the deceased was not in any formal employment, business or such-like engagements, a Court is called upon to adopt a globe sum.
70.In Franklin Kimathi Maariu & another v Philip Akungu Mitu Mborothi (suing as administrator and personal representative of Antony Mwiti Gakungu (Deceased) [2020] eKLR the Court held as follows: -
71.In Mwanzia v Ngalali Mutua Kenya Bus Ltd cited in Albert Odawa v Gichumu Githenji Nakuru High Court HCCA No. 15 of 2003 [2007] eKLR, the Court made the following observation: -
72.Similarly, in Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (Deceased) [2016] eKLR, the Court held as follows: -
73.In the present case, the absence of the Appellant’s demonstration that the deceased had an income or made some earnings in a defined way, left the trial Court with no choice other than to adopt the global-sum approach. To presume that the deceased would have been in gainful employment in the public sector in terms of the Scheme attached was a finding not properly anchored on sound and factual basis. Such was an ambitious presumption not properly backed by facts.
74.The trial Court, therefore, erred in principle in applying the multiplier approach in assessment of damages under the Fatal Accidents Act instead of adopting a global sum. This, thus, entitles the Court to, with utmost respect, interfere with the finding of the trial Court. The said award is hereby set-aside.
75.This Court will now apply the global-sum approach in ascertaining the award on lost years.
76.In Gilbert Kimatare Nairi & another (Suing as personal representative of the Estate of Jackline Sein Lemayian (Deceased) v Civiscope Limited [2021] eKLR, the Court awarded Kshs. 600,000/= as a global sum for loss of dependency where the deceased was 31 years old. The deceased herein was, however, not a university graduate.
77.In Mashua Hassan Msuka (Suing as the administrator of the estate of the late Juma Mohamed Majepo) v John Migwi & another [2018] eKLR, the Court awarded a global sum of Kshs. 900,000/= to a deceased aged 22 years old. Likewise, the deceased herein was not a university graduate.
78.The deceased in the instant case was a university graduate aged 29 years old having graduated in December 2015. Although he was yet to secure any formal unemployment or be engaged in any business or enterprise, he was, nevertheless, a promising youth. After all, it was barely one year post his university graduation.
79.Guided by the foregoing and in the unique circumstances of this case and by further considering the award made on the limb of loss of expectation of life, this Court hereby makes an award on the loss of dependency in the sum of Kshs. 2,000,000/=.
Special Damages:
80.The trial Court rejected P. Exh.13, P. Exh.14, P. Eexh.15 and P. Exh.16 for the reason that they had not complied with Sections 19 and 20 of the Stamp Duty Act. The trial Court thus declined to award special damages for all those exhibits except P. Exh.16 which was produced by the maker. There was also no consideration of P. Exh.17.
81.The failure to comply with the Stamp Duty Act requiring payment of stamp duty and affixing of such stamps in receipts was once dealt with by the Court of Appeal in Diamond Trust Bank Kenya Limited v Jaswinder Singh Enterprises CA No. 285/98 (UR). The Court held as follows: -
82.Exh.13 was an invoice for inter alia the costs of conducting post-mortem. Since an invoice is not evidence of payment, the claim is rejected. P. Exh.14 was a receipt on sums paid to Delights Funeral Services. It is allowed. P. Exh.15 was a receipt for supply of tents and chairs during the funeral. It is allowed. P. Exh. 17 was an invoice. It is rejected.
83.In the end, the sum of Kshs. 348,000/= is allowed as special damages since the amount was pleaded and specifically proved.
Disposition:
84.Deriving from the foregoing, the following final orders are hereby issued: -a.The Appeal and the Cross-Appeal are partially allowed.b.Liability is apportioned as follows: -
- As against the deceased - 30%
- As against the Respondents - 70%
- Pain and Suffering - Kshs. 20,000/=
- Loss of expectation of life - Kshs. 150,000/=
- Lost years - Kshs. 2,000,000/=
DELIVERED, DATED AND SIGNED AT KITALE THIS 10TH DAY OF NOVEMBER, 2022.A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Mr. Barongo, Counsel for the Appellant and Cross-Respondent.Mr. Songole, Counsel for the Respondents and Cross-Respondents.Kirong/Regina – Court Assistants.