Greenleaf Services Limited & another v Ngugi (Suing as the Administrator of the Estate of the Late Moses Kamuri Karanja) (Civil Appeal E144 of 2023) [2024] KEHC 5839 (KLR) (Civ) (23 May 2024) (Judgment)

Key Facts

Issues

• The second issue concerned the trial court's use of a 15-year multiplier to calculate loss of dependency for a 39-year-old deceased. The appellants contended this was unreasonable, suggesting a 10-year multiplier was more appropriate, while the respondent defended it by citing precedents (e.g., Agnes Mutinda Ndolo vs. Mboya Wambua) where multipliers of 21 and 22 were upheld for similarly aged deceased. The court reviewed multiple cases and concluded the 15-year multiplier was justified given the deceased's age and employment status.
• The third issue involved the trial court's award of Kshs. 150,000 for loss of expectation of life, which the appellants argued exceeded the conventional Kshs. 100,000. However, the court noted that the appeal grounds did not explicitly challenge this award and emphasized that conventional figures are not binding, citing Commercial Transporters Limited vs. Dorcas Adoyo Owiti. The court dismissed this as not properly raised in the pleadings.
• The primary issue centered on whether the trial court appropriately apportioned 50% liability to the deceased for crossing the road instead of using a nearby footbridge, and 50% to the 2nd appellant for failing to maintain a proper lookout and adequately control the vehicle. The appellants argued the deceased was wholly at fault, citing cases like Patrick Mutie Kimau vs. Judy Wambui Ndurumo, while the respondent supported the shared liability finding, referencing precedents such as Isabella Wanjiru Karangu vs. Washington Malala.

Holdings

• The appeal regarding the Kshs. 150,000.00 award for loss of expectation of life was dismissed as the appellants did not raise it in their pleadings, and the court noted conventional figures (e.g., Kshs. 100,000.00) are not binding, citing Commercial Transporters Limited vs. Dorcas Adoyo Owiti [2017] eKLR.
• The multiplier of 15 for loss of dependency (awarding Kshs. 5,180,805.00) was affirmed for a 39-year-old deceased, with references to similar cases like Agnes Mutinda Ndolo vs. Mboya Wambua [2017] eKLR and others, where multipliers ranged from 15 to 24 for individuals of comparable age.
• The court upheld the trial court's 50%:50% liability split, finding the 2nd appellant at fault for failing to avoid the collision despite the deceased's reckless crossing, citing precedents like Lakhamshi vs. Attorney General [1971] EA 118 and others.

Remedies

Monetary Damages

Legal Principles

• Both parties were found to have breached their duties: the deceased by crossing the road instead of using a footbridge, and the driver by failing to prevent the collision despite claiming to have applied brakes. The court upheld the 50%:50% liability split based on these breaches.
• The court emphasized the driver's duty to maintain a proper lookout and avoid collisions, even when pedestrians act recklessly. The deceased's failure to use a nearby footbridge was noted, but the driver's inability to stop or evade the collision at the stated speed indicated a breach of duty.
• The court determined that the respondent discharged the burden of proof under section 107 of the Evidence Act by presenting sufficient evidence of the accident and liability, despite the appellant's conflicting testimony. The trial court's liability assessment was upheld as the only eyewitness (the 2nd appellant) provided inconsistent accounts, and the police records supported the respondent's case.

Precedent Name

• Elizabeth Chelagat Tanui & another vs. Arthur Mwangi Kanyua
• Purity Karimi Njoroge & 2 others vs. Alice Wangui Ndungu & 3 others
• Amani Kazungu Karema vs. Jackmash Auto Ltd & another
• Kiemu Mutuku vs. Kenya Cargo Hauling Services Limited
• Valley Bakery Limited & another vs. Musyoki
• Joseph Njuguna Njoroge Mwaura vs. Builders Den Limited & another
• Paul Ouma vs. Rosemary Atieno Onyango & Peter Juma Amolo
• Agnes Mutinda Ndolo & another vs. Mboya Wambua & 2 others
• Eastern Produce (K) Limited vs. Christopher Atiado Osiro
• Yusuf Abdallah vs. Mombasa Liners Limited
• Nancy Marigu Gabriel vs. David Kimani
• Lakhamshi vs. Attorney General
• Hussein Omar Farah vs. Lento Agencies
• Patrick Mutie Kimau & another vs. Judy Wambui Ndurumo
• Melbrimo Investment Company Limited vs. Dinah Kemunto & Francis Sese
• Commercial Transporters Limited vs. Dorcas Adoyo Owiti & another
• Sidi Kazungu Gohu & another vs. Fatuma Abdi Mohamed & another
• Kenya Power & Lighting Company Limited vs. James Muli Kyalo & another
• Domitila Wangui Karugu & another vs. Dagu Hidris Haide
• Ndatho vs. Chebet
• Isabella Wanjiru Karangu vs. Washington Malala

Cited Statute

Judge Name

Passage Text

• Parties are bound by their pleadings... I would have no basis for addressing my mind to it, and making any findings and conclusions on it.
• liability was properly shared, and the trial court was right in holding that liability be assessed at 50%:50%, based on the principle that where there is evidence of a clash or collision, but it is unclear on who was entirely to blame, both sides should take equal blame.
• In this case... I believe that the multiplier adopted by the trial court was appropriate... a multiplier of 15, the appellants argue that that was high, and proposes 10.