Automated Summary
Key Facts
A 23-year-old student (Fredrick Kyalo Muindi) died in a 2013 road accident as a pillion passenger on a motorcycle struck by a vehicle driven by the 2nd appellant. The trial court found the appellants 100% liable based on the driver's criminal conviction for dangerous driving, awarding Kshs 4,480,000 in loss of dependency. The appellate court overturned this, apportioning liability 50:50 due to the deceased's failure to wear a helmet and unchallenged rider, and recalculating loss of dependency at Kshs 1,703,724 using 2012 wage regulations. Total adjusted damages were Kshs 1,022,862.
Issues
- Determining if the accident was caused by the appellants' negligence.
- Assessing the appellants' liability for damages and determining the percentage of responsibility.
- Reviewing the trial court's damage calculations to see if adjustments are necessary based on legal principles.
- Evaluating if the deceased's actions, such as not wearing a helmet, contributed to the accident.
Holdings
- The court found merit in the appeal against liability and allowed it, substituting the trial court's 100% liability finding with a 50:50 apportionment between the appellants and the deceased. This decision was based on the lack of clear evidence establishing fault and the deceased's failure to wear protective gear, which the court considered as contributing factors.
- The court ordered that the appellants bear the costs of the appeal, while the respondents retain the costs from the lower court.
- The court substituted the trial court's award for loss of dependency from Kshs 4,480,000/- to Kshs 1,703,724/- (reduced by 50% contribution). This calculation used a multiplicand of Kshs 19,360.50/- (minimum wage in 2013), a dependency ratio of 1/3, and a working life expectancy of 22 years (retirement at 55). The remaining damages for pain/suffering and special damages were upheld.
Remedies
- The court apportioned liability at 50% to each party, overturning the trial court's 100% liability finding against the appellants.
- General damages of Kshs 30,000 awarded for pain and suffering sustained by the deceased prior to death.
- The court ordered that appellants recover costs of this appeal while respondents retain costs in the lower court.
- Special damages of Kshs 81,000 awarded for documented expenses including medical treatment and burial costs.
- Awarded Kshs 1,703,724 for loss of dependency calculated using a 22-year working life expectancy, 1/3 dependency ratio, and 2012 minimum wage of Kshs 19,360.50/month.
- Total damages of Kshs 1,022,862 awarded after applying the 50% contribution apportionment and including special damages.
- Kshs 150,000 awarded for loss of expectation of life, representing compensation for the deceased's future potential.
Monetary Damages
1022862.00
Legal Principles
- The court found that the 2nd appellant breached the duty of care by failing to take reasonable steps to avoid the collision, as outlined in the elements of negligence from Winfield and Jolowicz on Torts. The breach was determined based on the evidence of dangerous driving and the point of impact.
- The court distinguished between criminal and civil standards of proof, noting that a criminal conviction (causing death by dangerous driving) does not automatically equate to civil liability. This principle influenced the re-evaluation of liability apportionment.
- The court established that all road users owe a duty of care to others on the road, as seen in the case of Teresia Sebastian Massawe (Suing as the Legal Administratix of the estate of the late Silvia Sebastian Massawe v Solidarity Islamic (Kenya Office & another [2018] eKLR. This principle was central to determining liability in the accident.
- The court emphasized that the burden of proof lies with the party wishing the court to believe a fact, referencing Sections 107, 108, and 109 of the Evidence Act. This principle guided the evaluation of evidence for liability and contribution.
- The court analyzed causation by examining the point of impact (right front of the motor vehicle) and the deceased's head injury (left side of skull). It concluded that the collision likely resulted from the negligence of both parties, necessitating a 50:50 apportionment of liability.
Precedent Name
- Selle v Associated Motor Boat Co.
- Teresia Sebastian Massawe v Solidarity Islamic (Kenya Office & another
- Elizabeth Bosibori & Another v Damaris Moraa Nyiamache
- Kenya Ports Authority v Kuston (Kenya) Limited
- Isaac Muriungi Mbataru v Silas Kalumani
- Dominic Kiongerah v Zacharia Wachira Gatiga & Another
Cited Statute
- Regulation of Wages (Agricultural Industry) (Amendment) Order, 2015
- Regulation of Wages (General) (Amendment) Order, 2012
- Evidence Act, Chapter 80 of the Laws of Kenya
- Law Reform Act
- Fatal Accidents Act
Judge Name
D. K. Kemei
Passage Text
- 23. The law is now well settled that an appellate court will not interfere with an award of damages by a trial court unless the trial court has acted upon a wrong principle of law or that the amount is so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.
- 20. Where both parties are found to be on the wrong as indicated in paragraph 22 above, case law is to the effect that liability is to be apportioned equally. See Teresia Sebastian Massawe (Suing as the Legal Administratix of the estate of the late Silvia Sebastian Massawe v Solidarity Islamic (Kenya Office & another [2018] eKLR. I will apportion liability at 50:50. Suffice to add that the deceased was at the time not wearing a helmet as well as a reflector jacket. The helmet might have come in handy to obviate the head injuries that were sustained.
- 25. The deceased was aged 23 when he met his death and the life expectancy as per statistics given by the World Bank is 66.7 years. The multiplicand would be the expected monthly earnings of a skilled worker/graded artisan... The calculation for loss of dependency is thus; 22 x 1/3 x 19,360.50/-x12= Kshs 1,703,724/-.