[2017] KEHC 1882 (KLR)
The court determined the quantum of damages by first establishing the deceased's net monthly income from payslips, deducting only statutory deductions (NSSF, NHIF, PAYE) and not pension or loan repayments. The court applied a two-thirds dependency ratio, reflecting the proportion of income reasonably expected to...
Source-derived case information.
- Citation
- [2017] KEHC 1882 (KLR)
- Parties
- Plaintiff: Annah Mbinya Mbuvi; Plaintiff: Atanus Nthenge Mutiso; Defendant: Elias Nyaga (alias Elias Mugendi Nyanga)
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Case 36 of 2014
- Procedural Posture
- Civil Case / Judgment on Quantum of Damages After Consent Judgment on Liability
- Outcome
- Judgment for the plaintiffs against the defendant for damages under the Law Reform Act and Fatal Accidents Act, apportioned and reduced by 20% contributory negligence.
- Judges
- DW Mbuteti
- Legal Topics
- Fatal Accidents Act, Law Reform Act, Damages Quantification, Dependency Ratio, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annah Mbinya Mbuvi
Plaintiff
Atanus Nthenge Mutiso
Plaintiff
Elias Nyaga (alias Elias Mugendi Nyanga)
Defendant
Procedural Posture
Civil Case / Judgment on Quantum of Damages After Consent Judgment on Liability
Legal Issues
- 1 What is the appropriate quantum of damages payable under the Law Reform Act and the Fatal Accidents Act for the deceased's estate and dependants.
- 2 How should the deceased's income and dependency ratio be calculated for the purpose of damages.
- 3 What is the proper multiplier to apply in assessing loss of dependency.
Ratio Decidendi
The court determined the quantum of damages by first establishing the deceased's net monthly income from payslips, deducting only statutory deductions (NSSF, NHIF, PAYE) and not pension or loan repayments. The court applied a two-thirds dependency ratio, reflecting the proportion of income reasonably expected to support the dependants. Given the deceased's age of 43 and the absence of evidence on retirement age, a multiplier of 11 years was adopted, factoring in life uncertainties. The court calculated general damages for loss of dependency under the Fatal Accidents Act and awarded additional sums for loss of expectation of life and pain and suffering under the Law Reform Act. Special...
Court Disposition
Judgment for the plaintiffs against the defendant for damages under the Law Reform Act and Fatal Accidents Act, apportioned and reduced by 20% contributory negligence.
Orders
- Plaintiffs awarded KShs 139,040 under the Law Reform Act (loss of expectation of life, pain and suffering, special damages, less 20% contributory negligence).
- Plaintiffs awarded KShs 3,838,334.70 under the Fatal Accidents Act (general damages for loss of dependency, less 20% contributory negligence).
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL CASE NO 36 OF 2014
1. ANNAH MBINYA MBUVI
2. ATANUS NTHENGE MUTISO………….......….……………PLAINTIFFS
VERSUS
ELIAS NYAGA (alias
ELIAS MUGENDI NYANGA)……………….………………RESPONDENT
J U D G M E N T
1. This case is a claim for damages under the Law Reform Act, Cap 28 and the Fatal Accidents Act, Cap. 32. The Deceased J W M died in a road accident on 22/06/2014 along the Kenol-Sagana road when the motor vehicle he was driving collided with two other motor vehicles.
2. The Plaintiffs are the administrators of the Deceased’s estate. The suit is brought for the benefit of the Deceased’s widow (1st Plaintiff) and their three children (apparently all minors – O M W, E N W and S N W.
3. On 22/05/2017 a consent judgment on liability was entered. Liability was apportioned at 80% to 20% in favour of the Plaintiffs. This judgment therefore is only on quantum of damages.
4. Again by consent on 22/05/2017, the Plaintiff’s list of documents dated 24/11/2014 and copies of documents listed therein (except documents 1 and 2) were admitted in evidence as Exhibit P1.
5. Only the 1st Plaintiff testified. The Defendant did not lead or call any evidence. I have considered all the evidence placed before the court. I have also considered the written submissions filed on behalf of the parties.
6. The Deceased was aged 43 years at the time of his death. He was a driver employed by [Particulars withheld] Limited. I have looked at his payslips for April, May and June 2014 exhibited in Exhibit P1. His only constant and regular income was his basic pay of KShs 103,978/16 per month. It appears that he occasionally earned other incomes like overtime, bonus, etc., but these were not regular. I will therefore take his monthly basic pay as his only income.
7. From the basic pay must be removed the following statutory deductions –
NSSF Contribution - KShs. 1,080/00
NHIF - KShs. 320/00
PAYE - KShs 48,056/30
KShs.49,456/30
His other deductions were pension contributions and loan repayments which were part of his income and will therefore not be removed from his monthly basic pay.
8. I therefore hold that the Deceased’s monthly income was KShs 103,978/16 less KShs/ 49,456/30, which is KShs 54,521/80.
9. As for the dependency ratio of his monthly income for the Deceased’s family, I will take the usual two-thirdsof his monthly income. 10. Let me now consider the multiplier. As already noted, the Deceased was aged 43 years at the time of his death. There is no evidence of the retirement age for drivers at his last place of work, but sixty (60) years is probably a good number to take. However, the vagaries, uncertainties and vicissitudes of life must be factored in. I will in the circumstances award a multiplier of eleven (11) years.
11. General damages under the Fatal Accidents Act therefore work out as follows – KShs 54,521/80 X 12 11 X 2 ÷ 3 = KShs 4,797,918/40
12. Under the Law Reform Act I will award KShs 100,000/00 for loss of expectation of life and KShs 25,000/00 for pain and suffering.
13. Special damages of KShs 48,800/00 were claimed and proved by way of receipts. I will award the same.
14. In summary therefore there will be judgment for the Plaintiff against the Defendant as follows –
Under the Law Reform Act
(a) Loss of expectation of life - KShs 100,000/00
(b) Pain and suffering - KShs 25,000/00
(c) Special damages - KShs 48,800/00
Total - KShs 173,800/00
Less 20% contributory negligence - KShs. 34,760/00
- KShs 139,040/00
Under the Fatal Accidents Act
General damages - KShs 4,797,918/40
Less 20% Contributory Negligence - KShs 959,583/68
KShs 3,838,334/70
13. There will be judgment accordingly for the Plaintiffs. The general damages will carry interest at court rates from the date of judgment, while the special damages will carry similar interest, but from the date of filing suit. The Plaintiffs shall have costs of the suit less 20% contributory negligence.
14. I must now apportion the general damages under the Fatal Accidents Act among the 1st Plaintiff and her three children as required by law. I have taken into account the fact that the children are minors and will be wholly dependent upon the 1st Plaintiff for some time. I will therefore apportion the sum of KShs 3,838,334. 70 as follows –
1st Plaintiff (A M M) - KShs 2,938,334/70
O M W - KShs 300,000/00
C N W - KShs 300,000/00
S N W - KShs 300,000/00
KShs 3,838,334/70
15. The shares of the children shall be invested in separate accounts in the joint names of the 1st Plaintiff and the Deputy Registrar of the court during their respective minorities. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MURANG’A THIS 24TH DAY OF NOVEMBER 2017
H P G WAWERU
JUDGE