1.In a judgment delivered on September 20, 2018, the magistrate’s court found in favour of the respondent who was the plaintiff in the trial court, and awarded him damages in the sum of Kshs 2,315,132 with costs and interest.
2.The appellant who was the 2nd defendant in the trial court, being aggrieved by the judgment, has come to this court through counsel on appeal on the following grounds –1.The learned magistrate erred in law and facts in finding that the deceased Joseph Nzau Kituli was travelling in motor vehicle registration No KAR 918Y whereas there was no evidence to that effect.2.The learned magistrate erred in law and fact in finding the appellant liable for causing the death of the deceased whereas there was no evidence on how the appellant was negligent and or how the appellant caused the deceased’s death.3.The learned magistrate erred in law and fact in placing the evidentiary burden on the appellant thereby expecting the appellant to prove that it was not negligent in causing the deceased’s death.4.The learned magistrate erred in law and fact in awarding Kshs 100,000/= as damages for pain and suffering whereas there was no evidence that the deceased was conscious for the period after the accident and before his death neither was there evidence that the deceased suffered any pain or suffering for that period.5.The learned magistrate erred in law and fact in awarding Kshs 100,000/= damages for pain and suffering and Kshs 100,000/= as damages for loss of expectation of life under the Law Reform Act without taking into account damages awarded under the Fatal Accidents Act following the binding decision in the case of Asal –vs Muge (2001) KLR 202.6.The learned magistrate erred in law and fact in finding that the deceased was survived by four children despite the evidence on this issue being inconsistent hence not credible.7.The learned magistrate applied a multiplier of 2/3 in assessing damages for loss of expectation of life, which multiplier was too high in the circumstances of this case.
3.The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Thomas Geoffrey Onyancha advocate for the appellant and those filed by JA Makau & Company for the respondent.
4.This being a first appeal, I have to be guided by the legal principle consistently applied by the court and restated in the case of Selle –vs- Associated Boat Co Ltd (1968) EA 123 that a first appellate court is expected to re-examine and review the evidence on record and arrive at its own conclusions.
5.I also have to bear in mind the principle that an appellate court should be slow in interfering with the award of damages made by a trial court, unless the trial court took into account an irrelevant factor or failed to take into account a relevant factor, or short of this the award is either so inordinately low or so inordinately high that it must have resulted in an injustice – See Kenfro Africa Ltd –vs- AM Lubia (1982 – 88) KAR 727.
6.In the present case, the respondent called two witnesses, PW1 was PC Milton Omondi of Makindu Police Station, who produced a police abstract report showing that on July 15, 2012 at night an accident occurred on Mombasa – Nairobi road between KAT 479S a Nissan UD vehicle and KBA 950N/ZC 7778 a trailer, and KAR 918Y, and the driver of the appellant was charged in court for causing death by dangerous driving. He stated in cross-examination that deceased Joseph was a passenger in KAT 749S.
7.PW2 was Eunice Mwongela Nzau the wife of Joseph Nzau Kituli the deceased, who was called on phone by police at night, proceeded to Makindu District Hospital and saw the deceased in a bad state, who later died. She stated that she incurred funeral expenses for burial, and that the deceased was the sole breadwinner of the family and that they had 5 children, all below 18 years and some in school.
8.Though the appellant’s counsel indicated at the trial that they would call witnesses they later closed their case without calling any witnesses.
9.Having considered the pleadings, evidence on record, and submissions of counsel both in the trial court and in this appeal, I find that the appeal has no merits and is for dismissal.
10.With regard to whether the deceased was a passenger in KAR 918Y – PW1 said so in his oral evidence. The information was also in the police abstract, which was not challenged. I so find like the trial magistrate.
11.With regard to the trial court finding on negligence, the driver of the appellant was charged in court for causing death by dangerous driving. Thus applying the principle of proof of balance of probabilities, the appellant should have rebutted this allegation of negligence evidentially. They did not. Thus in my view, the magistrate was correct in finding that negligence was proved vicariously against the appellant. I also find no shifting of the burden of proof to the appellant as alleged by counsel.
12.With regard to the amounts of awards of damages, in my view, the magistrate exercised his judicial discretion within the law and cannot be faulted. The evidence on record was that the deceased was alive up to Makindu Hospital, thus on the balance of probabilities he must have suffered pain, and the award for pain and suffering was thus correct.
13.With regard to proof of the deceased having children, again the chief’s letter was relied upon and was not controverted. Copies of children birth certificates were also filed. I thus find that it was proved that deceased had four children. I also find that the assessment of loss of dependency was properly done by the trial court, at a ratio of 2/3. The multiplier used for the age of the deceased, was also reasonable as it did not go beyond 60 years of age.
14.Lastly, in my view, there is no legal rule established in the case of Asal –vs- Muge (2001) KLR 202, that awards made under Law Reform Act must be deducted from awards made under the Fatal Accidents Act. In my view, it is only in exceptional cases of clear undue enrichment conferred on the beneficiaries of the judgment that the court should carry out a deduction. There being no evidence or even indication of such unjust enrichment, on the winning party herein, I find that the trial court committed no error by not carrying out such deduction.
15.For the above reasons, I find no merits in the appeal. I dismiss the appeal, with costs to the respondent against the appellant.