Mwiti & another v FNK (Suing as the legal representative of the Estate of JMM (Deceased) (Civil Appeal E128 of 2021)  KEHC 456 (KLR) (30 January 2023) (Judgment)
Neutral citation:  KEHC 456 (KLR)
Republic of Kenya
Civil Appeal E128 of 2021
EM Muriithi, J
January 30, 2023
Evans Karani Mwiti
FNK (Suing as the legal representative of the Estate of JMM (Deceased)
(n appeal from the Judgment and Decree of Hon. E.W Ndegwa (R.M) in Githongo SPMCC No.E3 of 2020 delivered on 1/9/2021)
1.Before the trial court was a claim commenced by a Plaint dated 26/8/2020, in which the Respondent sued the Appellants seeking special damages, general damages under the Fatal Accident Act and Law Reform Act, costs of the suit and interest at court rates.
2.She pleaded that on 7/9/2019, the deceased was lawfully riding his motor cycle Registration No. KMEN 916 U along Githongo-Meru Road when the 2nd Appellant’s motor vehicle registration number KBN 488 F was so negligently driven, managed and/or controlled by the 1st Appellant that it hit the deceased motor cycle, fatally injuring him and extensively damaging his motor cycle. It was pleaded that the deceased, who was endowed with good health, was an adventurous businessman engaged in the matatu business, operating a motor cycle for carrying fare paying passengers among other various business activities. The average daily earnings of the deceased were Ksh.2,500 which he utilized in providing for himself and his family. As a result of the accident, the vigorous life of the deceased was drastically cut short at the age of 39 years thereby occasioning his estate and dependants loss and damage.
3.The Appellants denied the claim by their statement of defence dated 5/3/2021 and prayed for the respondent’s suit to be dismissed.
4.After conclusion of the trial, the trial court found that the Respondent had proved his case on a balance of probabilities, apportioned liability at 50:50 and awarded general damages of Ksh.20,000 for pain and suffering, Ksh.100,000 for loss of expectation of life, Ksh. 3,948,000 for loss of dependency totaling to Ksh. 4,068,000 less 50% contribution = Ksh. 2,034,000 plus costs and interest.
5.On appeal, the Appellants filed their Memorandum of Appeal on 22/9/2021 listing 4 grounds as follows:1.The learned trial court erred in misapplying the law and principles to the facts and evidence so as to reach a decision on liability that was erroneous in the circumstances.2.The learned trial court erred by failing to consider with a fair measure the submissions of the Appellants in writing the judgment.3.The learned trial court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on damages that is so inordinately high in the circumstances.4.The learned trial court erred when it wrongly considered irrelevant elements in the evidence before it and or applied wrong principles to the evidence as to reach an award of damages that is inordinately high and unjust in the circumstances.
Duty of the court
6.This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others  E.A. 123).
7.PW1 FNK, the Respondent herein, testified that”
8.On cross examination, she stated that:
9.On re-examination, she stated that:
10.PW2 Joseph Kimathi Manyara, testified that:
11.On cross examination, he stated that:
12.On re-examination, he said:
13.PW3 Corporal Salim Hassan of Kariene police station attached to the traffic department produced the police abstract and testified that:
14.On cross examination, he stated that:
15.On re-examination, he stated that:
16.DW1 Evans Karani Mwiti, the 1st Appellant herein adopted his statement as his evidence in chief. He went on to state that:
17.On cross examination, he stated that:
18.On re-examination, he stated that-
19.The Appellants fault the trial court for wrongfully adopting a multiplicand of Ksh.23,500, yet no documentation was produced to prove the earnings of the deceased, and rely on Dennis Maosa Kibegwa v Ochieng’i Mosero Joyce & another (2019) eKLR, Albert Odawa v Githimu Gichenji (2007) eKLR and Bon Ton Limited v Beatrice Kanaga Kereda suing as Administrator of estate of Richard Alembi Ochenga (Deceased) (2018) eKLR. They submit that an award of Ksh.1,000,000 for loss of dependency would suffice, and urge the court to deduct the award made under the Law Reform Act from that made under the Fatal Accidents Act, to avoid double compensation. They cite Transpares Kenya Limited & Another v SMM (Suing as Legal Representative for and on behalf of the Estate of EMM (Deceased) (2015) eKLR, Kemfro v A.M. Lubia & Another (1982-1988) KAR 727 and Sukari Industries Limited v Ismael Ombaka Omar & Another (2017) eKLR to buttress their submissions.
20.The Respondent persuades the court to find that in view of the conflict of primary facts between the witnesses who testified, the apportionment of liability at 50:50 was apt, and cites the Court of Appeal case of Michael Hubert Kloss & Anor v David Seroney & 5 Others (2019) eKLR. He urges that the awards under the Fatal Accidents Act and the Law Reform Act were validly made within the trial court’s discretion, as evidence was led that the deceased was an industrious businessman running matatu and motor cycle businesses, thus the trial court was justified in making the assessment it did. He urges the court to uphold the findings of the trial court and dismiss the appeal with costs. He relies on Kennedy Macharia Njeru v Jackson Githongo Njau (2019) eKLR and Richard Matheka Musyoka & Another v Susan Aoka & Another (2019) eKLR in support of his submissions.
Analysis and Determination
21.Before delving into the merits of this appeal, this court wishes to address the issue of double compensation raised in the Appellants’ submissions. This court respectfully agrees with the explanation given by the Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited (2015) eKLR that;
22.In addition, the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (No. 2)  KLR 30 guided that what the court is required to do is to take into account the award under Law Reform Act and not necessarily to deduct the same from the award under the Fatal Accidents Act, as follows:See also this court’s decision KBT HCCA No. 1 of 2018, (Formerly Nakuru HCCA No. 147 of 2015) David Kenei Julius Cheretei v. Zipporah Chepkonga (suing as the Legal Representative of the estate of Wesley Chepkonga Chebii - Deceased).
23.The issues for determination are whether the apportionment of liability at 50:50 was proper; and whether the general damages awarded by the trial court under the various heads excessive.
24.PW2, an eye witness recorded in his statement dated 26/8/2020 that he saw a tractor, a motor cycle and a lorry heading towards the same direction. Suddenly, the lorry emerged from behind the motor cycle and tried to overtake the tractor thus knocking down the motor cyclist. The motor cyclist fell down and the lorry stopped about three metres from the point of impact.
25.When he was cross examined, he stated that -
26.PW3 told the court that as per the investigations and the findings in the police file, it was established that the motor cycle and the motor vehicle were both overtaking at the same time, when the motor cycle was hit by the motor vehicle on the rear side and the rider died. He stated that although the driver of the accident motor vehicle was charged with a traffic case, he was subsequently acquitted of the said charges.
27.In his sworn defence, the 1st Appellant acknowledged that he was the driver of the accident motor vehicle at the time of the accident. He narrated that, “I was charged in a traffic case and I was acquitted on 14/6/2021…My vehicle was hit from behind by a motor cycle. There was a tractor on the left. All of us were heading the same direction. When I heard a bang after the motorcycle hit my vehicle, I had to stop. I blame the motor cycle rider who was not keeping distance. I was not speeding. There were bumps in front of the tractor.” When cross-examined, he stated that, “..The accident took place on the left lane heading to Githongo. There was a tractor in front of me. I had to step on brakes to avoid hitting the tractor. My vehicle had mirrors. I did not see the motor cycle. I saw it after it hit me. I stopped immediately after the accident.”
28.It is clear from the evidence of record that there were 3 different versions of how the accident occurred. While the Appellants maintained that the deceased was wholly to blame for the accident for failing to keep distance thus hitting the accident motor vehicle from behind, the Respondent took the position that the 1st Appellant overtook negligently, suddenly and dangerously thus knocking down the deceased and the police officer, who was not the investigating officer, stated that both the motor cyclist and the driver of the accident motor vehicle were trying to overtake a tractor when the subject accident occurred. The evidence of the police officer can only be taken with a pinch of salt as he was not the investigating officer, he did not visit or witness the accident take place and he did not produce the sketch plan to show the exact point of impact.
29.Faced with the contracting versions of how the accident had occurred as narrated by the eye witness and the 1st Appellant, the trial court opined that it would be just to have the motor cyclist and the driver of the accident motor vehicle equally share the blame, and this court affirms that finding. The 1st Appellant was negligent because he admitted on cross examination that he only saw the motor cycle after it had hit him. If he had been careful enough, he would have seen the motor cyclist in good time to avoid the accident. The deceased was equally at fault as it was not established that he did anything to try and avoid the accident.
Excessive general damages under the various heads
30.The principles on when an appellate court would interfere with the findings of fact by the trial court on quantum are now trite as stated by the Court of Appeal in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete  eKLR in the following terms:
Pain and Suffering
31.It is not in dispute that the deceased died on the spot. That by itself does not mean that he did not suffer any pain prior to his death, and the trial court was justified in awarding the sum of Ksh. 20,000 under this head.
Loss of expectation of life
32.The trial court, in exercise of its discretion awarded the sum of Ksh.100,000 under this head, after taking into account the fact that the deceased was at his prime age of life, and doing marvelously well business wise. This court finds that the award of Ksh.100,000 under this head was based on precedent and due consideration of the circumstances of the case.
Loss of dependency
33.There must be evidence to support a finding of dependency in the circumstances of the case. I would respectfully agree that Dependency is a matter of fact and must be proved by evidence as was rendered by the court in Abdalla Rubeya Hemed v Kayuma Mvurya & Another  eKLR (P.J.O. Otieno J) as follows:-
34.In the present case, PW1 testified that they were blessed with one issue and the deceased catered for her needs. On cross examination, she stated that:
35.It is this court’s finding that the Respondent proved, on a balance of probabilities that the deceased was, besides being a boda boda rider, engaged in the matatu business and also running a boutique. This court is mindful of the fact that the deceased was only 39 years old, at the prime of his life, full of good health which was brutally cut short by the negligence of the Appellants. The court has noted the bank statements on record showing that the deceased made daily deposits in Smart Champions Sacco Ltd between 7/1/2019 to 6/9/2019. There is also a Registration Certificate showing that Motor Cycle Registration No. KMEN 916 U belonged to the deceased. There is no doubt that the deceased was the father of Christine Makena as per the certificate of birth on record. PW1 told the court that the said child was 12 years old in Wesley Boarding.
36.This court finds that the trial court’s adoption of a multiplicand of Ksh. 23,500, a multiplier of 21 years and a dependency ratio of 2/3 for a deceased who was engaged in various income generating ventures with a wife and a school-going child was justified in the circumstances.
37.Accordingly, for the reasons set out above, the Court finds that the appeal is without merit and it is dismissed.
38.The Respondent shall have the costs of the appeal to be paid by the Appellants.Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF JANUARY, 2023.EDWARD M. MURIITHIJUDGEAppearancesMr. Mwangangi Nzisa Advocate for Appellant.Mr. Gitari Ringera Advocate for Respondent.