[2008] KEHC 136 (KLR)
The court considered whether the 1st defendant's negligent driving caused the death of Anthony Kirima and whether the 2nd defendant could be held vicariously liable. The plaintiff established that the deceased was a dependent and that his death resulted from the 1st defendant's actions while in the course of...
Source-derived case information.
- Citation
- [2008] KEHC 136 (KLR)
- Parties
- Plaintiff: Agapio Nyaga; Defendant: Johana Shatsama Liposhe; Defendant: 2nd Interested Committee
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 46 of 2005
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff against the 1st defendant; claim against the 2nd defendant dismissed due to statutory immunity.
- Legal Topics
- Fatal Accidents, Negligence, Vicarious Liability, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agapio Nyaga
Plaintiff
Johana Shatsama Liposhe
Defendant
2nd Interested Committee
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the death of Anthony Kirima was caused by the negligence of the 1st defendant.
- 2 Whether the 2nd defendant is vicariously liable for the acts of the 1st defendant.
- 3 Whether the plaintiff is entitled to special and general damages under the Fatal Accidents Act and Law Reform Act.
Ratio Decidendi
The court considered whether the 1st defendant's negligent driving caused the death of Anthony Kirima and whether the 2nd defendant could be held vicariously liable. The plaintiff established that the deceased was a dependent and that his death resulted from the 1st defendant's actions while in the course of employment. However, the 2nd defendant raised statutory immunity under the Privileges and Immunities Act, which, if applicable, would shield it from liability. The court evaluated the evidence on negligence, dependency, and the deceased's projected earnings, as well as the legal effect of statutory immunity. The court found that the 1st defendant was liable for negligence, but the 2nd...
Court Disposition
Judgment for the plaintiff against the 1st defendant; claim against the 2nd defendant dismissed due to statutory immunity.
Orders
- The 1st defendant is liable to pay special and general damages to the plaintiff as legal representative of the deceased's estate.
- The claim against the 2nd defendant is dismissed on grounds of statutory immunity.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 46 of 2005
AGAPIO NYAGA……….…………………………………….. PLAINTIFF
V E R S U S
JOHANA SHATSAMA LIPOSHE
2ND INTERESTED COMMITTEE OF THE ……….……...DEFENDANT
JUDGEMENT
The pleadings
Agapio Nyaga the plaintiff herein is the father of one Anthony Kirima who was knocked down by a motor vehicle driven by the 1st Defendant while in the cause of duty for the second defendant. The accident occurred on 13th June 2003, along Ngong Road and said to have been knocked down near Dagoretti Corner,
A shopping Centre along the said Ngong Road AGAPIO NYAGA sues in his capacity as legal representative of the Estate of his son, the said Anthony Kirimi Nyaga deceased. He pleads that his son’s death was caused by the negligence of the first defendant. He sets the particulars of negligence in paragraph 6 of the Plaint dated 8th June 2005. he also sets out the particulars of persons who were dependent on the deceased son, his parents, brothers and sisters all younger than him, and above all his little daughter Kendi Kirimi aged 5 years.
AGAPIO NYAGA the plaintiff also pleads that the deceased was aged 27 years and was a student at the prestigious Kenya Science Teachers College where he was to graduate and gain employment as a secondary School Teacher with a salary of Ksh.17,500/- excluding house allowance and other benefits. The Plaintiff also sought special damages which he particulariesed in paragraph 8(b) of the Rent totaling shs.169,380/- the end of his plaint the Plaintiff summarized his claim for judgment against the 1st and 2nd Defendant jointly and severally for:-
(a) Special damages,
(b) General Damages under the Fatal Accident Act, the Law Reform Act and damages for pain and suffering
(c) Costs of the suit and incidentals thereto,
(d) Interest on (a) (b) and (c) at Court Rates.
(e) Any other remedy this court may find fit and just to grant.
(b) THE DEFENCE.
Separate defences were filed on behalf of the 1st and 2nd defendant. The 1st Defendant denied all the particulars of negligence or that the doctrine of ipsa Loquitor to the particular circumstances of the case. The 1st Defendant also denied that the deceased enjoyed good health at the time of his death, and further denied all particulars of dependence by the persons enumerated. The 1st Defendant however admitted theage of the deceased at 27 years and that he was a student at Kenya Science Teachers College he denies that he would have have become a Secondary Teacher earning a starting salary of Ksh.17,500/- The Defendant also denied liability in the sum of Ksh.25,000 being cost of obtaining ……of the letters of administration to Agapio Nyaga. This Defendant admitted the jurisdiction of this court but re…..the right to apply to have the matter transferred from Meru to Nairobi.
In contrast to the 1st Defendants Defence, the 2nd Defendant claimed …..from by virtue of its incorporation in Kenya under the provisions of the privileges and ……International Committee of the Red Cross) Order 1996 made on 14. 5.1996 pursuant to the provisions of the privileges and Immunities Act, (Cap 179 Laws of Kenya). The 2nd Defendant also pleaded that the plaintiff’s plea of the vicarious liability under paragraph 6 of the Plaint was ……maintainable nor enforceable in light of the 2nd Defendant’s statutory immunity from suit and legal process given the nature of the Plaintiffs cause of action.
Like the 1st Defendant, the 2nd Defendant also admitted the deceased’s age at 27 years and that he was a student at Kenya Science Teachers College but agains like the 1st Defendant denies that the deceased would have graduated and become a secondary school teacher or would have earned a salary of Ksh.17,500/- and put the plaintiff to strict proof thereof.
Again like the 1st Defendant the 2nd Defendant pleaded that it was based in Nairobi filed the Defence to this suit in Meru under protest and reserved to apply to name the case transferred to Nairobi for hearing and final determination. In the …neither the defendant applied to have the case transferred to Nairobi.
The Evidence
Dated, delivered and signed this 23rd ….day of May 2008
M. J. Anyara Emukule
JUDGE.