Analysis and Determination
23.I have considered the pleadings before the trial court, the evidence adduced and the submissions as well as the judgment of the trial court, grounds of appeal herein as well as the parties’ written submissions. The issue for determination in this appeal is whether the respondents proved their case against the appellant in the lower court on liability and whether the quantum of damages as assessed was inordinately high in the circumstances of the case.
24.This being the first appeal, it is this court’s duty under Section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd  EA 123 cited by the appellants where Sir Clement De Lestang (V.P) stated that:
25.Revisiting the evidence adduced before the lower court, PW1 testified that he was the deceased’s father. He adopted his witness statement dated 17/9/2019 in which he had stated that on the 26/9/2017, he received a phone call that his son had been involved in a Road Traffic Accident and had died on the same day. He testified that prior to his death, the deceased was a bodaboda operator earning an average of Kshs 1,000 per day enjoying good health. In cross-examination, PW1 stated that he did not have any document showing how much the deceased earned. He further stated that the deceased’s wife ran away before he died.
26.PW2 Rose Awino Akuku also adopted her witness statement dated 17/9/2018 in which she stated that she witnessed the accident. She testified that she used to reside at Yala Centre so she could walk to and from work daily. It was her testimony that on the 26/9/2017 at about 8.30pm, she was walking from a teacher’s house near Nyamninia Secondary School to Yala Centre towards Kisumu direction when a motor vehicle registration number KBP 780V christened Transline passed her being driven from Busia towards Kisumu.
27.She testified that at Mukhokho area, the aforesaid motor vehicle tried to overtake a vehicle ahead of it when it swerved off its correct lane and collided with an on-coming motor cycle registration number KMDY 985P and the rider fell on the left side of the road.PW2 testified that she knew the deceased who used to carry her to and from work at times. In cross-examination, PW2 stated that the bus did not hoot. She further stated that she was not on the list of witnesses in the police abstract.
28.DW1, the appellant’s driver adopted his witness statement dated November 22, 2018 in which he stated that the accident occurred because the deceased came onto his lawful left side of the road and hit him on the frontal left side. It was his testimony that he was not charged with a traffic offence and that he had been driving for 20 years.
29.In cross-examination, DW1 stated that the deceased was riding at a very high speed and that he veered onto his lane and hit DW1’s left side bumper and windscreen. He denied causing the deceased’s death.
30.From the evidence adduced, there is no doubt that an accident occurred involving the deceased and the appellant’s motor vehicle at the place and along the road as pleaded. The police abstract report produced by the respondents in support of their case indicated that the accident was pending under investigations. The two parties involved in the accident blame each other for causing the said accident. In her judgement, the trial magistrate found that the respondents had proved on a balance of probabilities that the appellant was wholly to blame for the accident.
32.In this case, PW2’s uncontroverted testimony was that she saw the accident first hand as she was facing the accident scene ahead of her and that the appellant’s driver was overtaking another motor vehicle ahead of him when he knocked the deceased who was riding a motorcycle on his-the deceased’s side of the road as per the rule of the road of keeping left unless overtaking. In his testimony, DW1 testified that the deceased veered onto the lane of DW1 and hit the motor vehicle on the left side.
33.PW2’s testimony remained uncontroverted. In my view DW1’s testimony is not consistent at all. This is so because if at all the deceased was the one who hit him, then the first point of contact would have been the motor vehicle’s right side as this was the side that was closer to impact on the deceased and not the left side that he testified was the point of impact especially considering that DW1 and the deceased were going the opposite directions.
36.The evidence adduced before the trial court pointed to the appellant’s driver being the one who strayed from his lane and ended up colliding with the deceased when DW1 was overtaking another motor vehicle ahead of him. I find that evidence was not controverted even in cross examination. The driver was the instigator of the accident. Even if the deceased lacked all the safety gear (helmet) as claimed by the appellant before this court and not before the trial court, he would not collided with the motor vehicle had the appellant’s driver not overtaken without regard to the safety of other road users.
38.The above position was upheld in the case of Rentco East Africa Limited v Dominic Mutua Ngonzi  eKLR where the court stated that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.
39.The respondents’ witness PW2 adduced uncontroverted evidence that she saw the accident take place and that the driver of the motor vehicle as overtaking another vehicle ahead of him when he knocked the deceased who was riding his motor cycle from the opposite direction. The evidence by the driver of the accident motor vehicle on behalf of the appellant was inconsistent as stated above. I find no evidence to show that the deceased ought to shoulder some blame for the accident. Additionally, this court has not been shown that the trial magistrate wrongly exercised her discretion when apportioning liability or based her finding on liability on no evidence or the wrong principle.
40.In the circumstances, I find that there was sufficient evidence that the appellant failed in his expectation as a reasonable driver and therefore he cannot be absolved from liability in the causation of the accident and fatal injury to the deceased. I thus decline to interfere with the trial court’s decision regarding liability. I dismiss the appellant’s grounds of appeal on liability and uphold the trial court’s finding of liability against the appellant at 100%.
41.On quantum, an award on damages is a discretionary matter to be applied judiciously by a trial court. Being a discretionary matter, it is now well settled that an appellate court will not ordinarily interfere with the findings of a trial court on an award of damages unless it can be shown that the court proceeded on wrong principles, or misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low (see Butt v Khan  KLR 349.
43.The above decision was premised on the fact that damages must be commensurate with injuries and should not appear like it is greater or conferring a benefit to a party over the injuries suffered. Similarly, in Amos Wenyere & another v Ashford Muriithi Muregi & 2 others  eKLR it was stated that:
44.There is no dispute that the Deceased suffered fatal injuries and died on the spot. In the case of Sukari Industries Limited v Clyde Machimbo Juma  eKLR where the deceased had died immediately after the accident and the trial court had awarded Kshs 50,000/= for pain and suffering, Majanja J. stated as follows;
45.In this case, the deceased died on the spot following the material accident and this is as per the postmortem report dated October 30, 2017. In view of the foregoing, albeit the deceased must have suffered pain before death, as the decisions give a range of awards between 10,000 to kshs 100,000, I find the award of kshs 20,000 to be sufficient in the circumstances, I set aside the award of kshs 30,000 and substitute it with an award of kshs 20,000.
46.On the claim for loss of expectation of life, the appellant submitted in support of the grounds of appeal that the sum of Kshs 100,000 awarded by the trial court was manifestly high. They proposed an amount of Kshs 50,000. In the case of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) e KLR the Court observed that: -I find that the award of kshs 100,000 was not inordinately high since the same is within the range stipulated in many decisions.
47.On the issue of the multiplicand, the appellant’s counsel submitted that there was no prove of the deceased’s occupation. However, the use of documentary evidence is not the only way to prove the profession of a person. PW1 testified that the deceased was a motorcycle rider earning a salary of Kshs 1,000 per day whereas the appellant testified that the deceased was not in any gainful employment nor was he a skilled professional and that the same ought to be based on the minimum consolidated wage for unskilled employee of Kshs 5,436.90
48.The trial court recognized the fact that there was no documentary evidence to prove the actual earnings that the deceased was receiving and adopted the minimum monthly wage of a sum of Kshs 5,844.20 pursuant to legal notice No 117 of 2015.
49.This situation was similar to the decision of the Court of Appeal in Jacob Ayiga Maruja & Another v Simeon Obayo  eKLR where the Court stated that:
51.In this case, the trial court assumed that the deceased would have worked until 60 years which is the current retirement age in Kenya. Taking into consideration the nature of work that the deceased was engaged in and also considering the vagaries of life, I disagree with the trial court’s findings. This is because the trial court gave maximum of the remainder of the formal working life of the deceased who was engaged in very risky endeavours of being on the road daily and therefore the probability that he would work until 60 years without any harm cannot be 100%. She did not from the court record, take into account the vicissitudes of life. In my view, a multiplier of 14 years would be sufficient and reasonable in the circumstances. I set aside the multiplier of 22 years and substitute the same with 14 years. My finding is fortified by the decision in the case of Nicholas Nyagwenchi Miyogo Joseph v James Nyakundi Nyamari & 2 others  eKLR, where Ougo J persuasively, upheld the multiplier of 30 years in the case where the deceased a motorcycle rider died aged 22 years, taking into account the vagaries and uncertainties of life. The learned Judge stated as follows and I agree:
52.On the multiplicand, I find that 2/3 of the dependency ratio was reasonable as there was evidence adduced of dependants of the deceased. Therefore, the total loss of dependency is kshs 5,436.90x 12x14x2/3=608,932.80.
54.In view of the above holding, I find that there is no legal requirement for the court to deduct the amount awarded under the Law Reform Act from the award made under the Fatal Accidents Act. The argument by the advocate for the appellant on the issue does not, therefore, hold. It is dismissed.
55.On special damages, the respondent pleaded for Kshs 33,130 but produced receipts for legal fees for filing of a limited grant in the sum of Kshs 25,000, another receipt from Yala Level 4 Hospital for kshs 1,000 and another receipt from the same hospital for kshs 6100. the total special damages proved is kshs 32,100. which is hereby awarded and the award of Kshs 33130 is therefore set aside.
56.For the above reasons this court finds that the appeal is successful only to the extent stated.
57.As the appeal is only partially successful, I order that each party bear their own costs of the appeal.Final orders:(a)Liability 100% against the appellant is upheld(b)pain and suffering kshs 20,000(c)Loss of expectation of life kshs 100, 000(d)Loss of dependancy kshs 608,932.80(e)Special damages kshs 32,100Total damages kshs 761,032.80
58.The above damages shall earn interest as decreed in the lower court from date of filing suit in the case of special damages and from the date of judgment in the lower court in the case of general damages until payment in full.
59.I so order and this file is accordingly closed.