[2020] KEHC 2641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 45 OF 2011

ARTHUR MWAURA KARIUKI (SUING AS THE ADMINISTRATOROF

THE ESTATE OF ANN NJAMBI KARIUKI-DECEASED).............................PLAINTIFF

-VERSUS-

PETER MACHARIA KAMAU...................................................................1ST DEFENDANT

RAY LIGHT TRADERS AND SUPPLIES...............................................2ND DEFENDANT

AND

SUMRY BUS SERVICE...................................................................................THIRD PARTY

JUDGEMENT

1. Arthur Mwaura Kariuki, the plaintiff herein and theadministrator of the estate of Ann Njambi Kariuki (“the deceased”) instituted a compensatory suit against the 1st and 2nd defendants by way of the plaint dated 7th February, 2011 and amended on 4th April, 2011 and sought for general damages under the Law Reform Act, Cap. 26 Laws of Kenya and the Fatal Accidents Act, Cap. 32 Laws of Kenya, costs of the suit and interest thereon.

2. The 1st defendant is sued in his capacity as the employee/agentof the 2nd defendant and as the driver of motor vehicle registration number KAS 857Y (“the subject vehicle”) at all material times while the 2nd defendant is sued in its capacity as the registered owner of the subject vehicle at all material times.

3. The plaintiff pleaded in the amended plaint that sometime on orabout the 8th day of February, 2008 the deceased was a lawful pedestrian waiting for a motor vehicle at the Globe Cinema roundabout and as she crossed the road, the 1st defendant negligently drove the subject vehicle, causing the same to hit and fatally crush the deceased.

4. It was similarly pleaded in the amended plaint that thedeceased who was aged 49 years at the time of her death and enjoying good health has left behind the following dependants:

i. Arthur Mwaura Kariuki Son 27 years

ii. Benjamin Ng’aru Kariuki Son 25 years

iii. Titus Mwangi Kariuki Son 21 years

5. Upon service of summons, the 1st and 2nd defendants enteredappearance and filed a joint statement of defence dated 10th October, 2011 to deny the plaintiff’s claim.

6. The defendants subsequently issued a third party notice againstSumry Bus Service (“the third party”) on the basis that the third party was at all material times the registered owner of motor vehicle registration number KAS 775T (“the second vehicle”) which vehicle was also involved in the material accident and was either caused or was substantially liable for the same. The defendants were later granted leave of the court to serve the third party notice and the pleadings on record upon the third party.

7. Upon failure by the third party to enter appearance and/or fileany pleadings in the instant suit, the court entered an interlocutory judgment against the third party at the request of the defendants.

8. At the hearing, the plaintiff testified and summoned two (2)other witnesses while the defendants called one (1) witness.

9. The plaintiff (PW1) adopted his executed witness statement andtestified that the deceased who was his mother died in the material accident and that he obtained a police abstract in relation to the accident, which shows that the 1st defendant was the driver of the subject vehicle on the date of the accident.

10. The plaintiff further testified that he has medical evidence fromGuru Nanak Hospital where the deceased was rushed to following the accident and where she succumbed to her injuries after being squeezed between the subject vehicle and another motor vehicle.

11. The plaintiff also made reference to a pay slip indicating thatthe deceased worked as a nurse at all material times before her death.

12. It is the evidence of the plaintiff that the deceased left behindthree (3) dependants: himself and his two (2) younger brothers, all of whom were still in school at the time.

13. The plaintiff stated that following the death of the deceased, theeducation of his siblings was greatly affected and produced his bundle of documents and supplementary bundle of documents as P. Exh 1 and 2.

14. In cross-examination, the plaintiff stated that the policeabstract he produced does not indicate who was to blame for the material accident and that he has never been called to testify in any criminal or traffic proceedings in relation to the accident.

15. The plaintiff further stated that he came to learn of the accidentupon receiving a phone call from his aunt and that the police abstract shows that the subject vehicle and the second vehicle were involved in the accident.

16. It was the evidence of the plaintiff that at the time of the deathof the deceased, he was not depending on her for financial support since he had just landed a job.

17. In re-examination, the plaintiff testified that he sued the 1stdefendant since he is the one who crushed the deceased.

18. Paul Mwangi (PW2) adopted his witness statement in hisexamination-in-chief.

19. In cross-examination, the witness testified that on the materialdate he was working at Globe Cinema when the accident took place. According to him, it is the second vehicle that caused the accident but that the subject vehicle was also involved in the accident.

20. In re-examination, PW2 stated that it is the minibus thatcrushed the deceased and that the subject vehicle was the one that was behind.

21. Titus Mwangi Kariuki (PW3) and upon adopting his signedwitness statement, stated that he visited Guru Nanak Hospital at 9. 30pm only to find the deceased; his mother; already dead.

22. The witness further stated that it is the subject vehicle thatbrought the deceased to the hospital and that together with other family members, he went to Central Police Station to report the matter.

23. In cross-examination, PW3 testified that the subject vehicle wassaid to have been involved in the accident and that at the time of the accident, he was living with the deceased in Mathare, who was a nurse by profession. This marked the close of the plaintiff’s case.

24. For the defence, PC Julius Kimethi testified that he was at allmaterial times stationed at Central Police Station performing traffic duties and that the accident took place at 4. 00pm on the material date involving the subject vehicle being driven by the 1st defendant and the second vehicle which was not traced, resulting in the death of the deceased.

25. The witness stated that the subject vehicle was detained at thepolice station pending inspection and that the accident was recorded in the Occurrence Book (OB) No. 223 of 8/2/2008. The witness produced the excerpt of the OB as D. Exh 1.

26. In cross-examination, DW1 testified that the investigatingofficer of the material accident was PC Maweu, who also booked the report.

27. According to the testimony of the witness, the deceased wastravelling as a pedestrian on the material date and that the police abstract does not give any details of the driver of the second vehicle since he escaped from the scene of the accident.

28. It was also the testimony of the witness that the police abstractdated 27th February, 2009 produced by the plaintiff is the correct abstract as relates to the accident, with the witness stating that the matter is still pending under investigation. This marked the close of the defence case.

29. Upon close of the hearing, this court issued directions for theparties to put in written submissions. The plaintiff vide his submissions dated 30th March, 2020 argues that all the documents supporting his case were produced as evidence at the trial and the evidence shows that the deceased was crushed to death by the subject vehicle belonging to the 2nd defendant and being driven by the 1st defendant.

30. The plaintiff further argues that it is noteworthy that the 1stdefendant who was present at the scene of the accident did not testify at the trial and hence the plaintiff’s case remains largely unchallenged.

31. It is the submission of the plaintiff that the evidence producedby the sole defence witness, namely the police abstract, did not indicate the names of the owner of the subject vehicle or the insurance company, but that it described the deceased as being a passenger in the subject vehicle when in truth she was not.

32. It is also the submission of the plaintiff that a copy of theOccurrence Book (OB) which was tendered in evidence indicated that the second motor vehicle could not be traced.

33. The plaintiff contends that the defendants did not produce acertificate of examination and test of vehicle in respect to the subject vehicle and further contends that the pleadings and evidence tendered on his behalf are consistent and hence he has proved liability against the defendants.

34. On quantum, the plaintiff submits that the estate of thedeceased is entitled to an award of Kshs.80,000/ on damages for pain and suffering. The plaintiff cited the case of Richard Macharia Nderitu v Phillemon Rotich Langas [2013] eKLRwhere the court awarded the sum of Kshs.50,000/ under this head and the case ofSukari Industries Limited v Clyde Machimbo Juma [2016] eKLRwhere the High Court sitting on appeal upheld a similar award made.

35. The plaintiff suggests an award of damages in the sumKshs.200,000/ under the head of loss of expectation of life and relies on the case of Cornelia Elaine Wamba v Shreeji Enterprises Ltd & Others [2012] eKLRin which the court awarded general damages of Kshs.150,000/ under a similar head, together with the case of Violet Jeptum Rahedi v Albert Kubai Mbogori [2013] eKLRwhereby the court awarded a similar sum in the instance of a deceased person aged 44 years.

36. In respect to damages for loss of dependency, it is the proposalof the plaintiff that this court applies a multiplier of 11 years taking into account the fact that the deceased was 49 years old at her time of her death and further taking into account the stipulated retirement age of 60 years for staff in the public service. The plaintiff suggested a multiplicand of Kshs.24,107/ and a dependency ratio of 2/3 to be tabulated as follows:

(Kshs.24,107 x 12) x 2/3 x 11 = Kshs. 2,132,023. 08

37. On their part, the defendants through their submissions dated3th July, 2020 have argued that not only did the plaintiff and PW3 fail to prove dependency by way of birth certificates, but that they were not at the scene of the accident and hence could not explain the events leading up to the accident. On this basis, the defendants argue that their testimony cannot be relied upon in making a determination on liability.

38. The defendants also submit that the police abstract which wasproduced by the plaintiff at the trial indicated the matter as pending under investigation and that since the plaintiff did not call the maker of the abstract as a witness, then the same should be expunged from the court record.

39. It is the submission of the defendants that in contrast, theysummoned a police officer who produced a police abstract and the OB, both of which cast blame on the driver of the second motor vehicle. In this regard, the defendants urge this court to dismiss the plaintiff’s case against the defendants for failing to establish liability on a balance of probabilities.

40. On quantum, it is the proposal of the defendants that the estateof the deceased be awarded a sum of Kshs.10,000/ on damages for pain and suffering, on the reasoning that the deceased died not long after the accident. The defendants cited the case of Samuel Njoroge Kamunya v Lucy Wambui Kibe-Civil Case No. 749 OF 2001in which an award of Kshs.10,000/ was made under this head in the instance of a deceased person who died three (3) days after the accident in question.

41. The defendants further proposed damages in the sum ofKshs.100,000/ for loss of expectation of life and cited inter alia, the case of Ann Njoki Njenga v Umoja Flour Mills & another [2006] eKLRwhere the court awarded a sum of Kshs.80,000/ under this head to the estate of a deceased person aged 36 years.

42. When it comes to general damages under the head of loss ofdependency, it is the suggestion of the defendants that this court applies a multiplier of 11 years, a multiplicand of Kshs.24,107 and a dependency ratio of 1/3 as opposed to the 2/3 proposed by the plaintiff, to be tabulated in the manner hereunder: Kshs.24,107 x 11 x 12 x 1/3 = Kshs.1,050,100/

43. In conclusion, the defendants contend that the awards madeunder the Law Reform Act ought to be taken into account when awarding damages under the Fatal Accidents Act where the dependants/beneficiaries are the same in both instances.

44. Upon considering the evidence on record, the submissions andauthorities relied upon by the parties, I established that the twin issues for determination are liability and quantum.

45. On the first limb to do with liability, following my examination ofthe evidence on record, both oral and documentary, there is no doubt that an accident took place on the material date and at the place pleaded in the plaint, the result of which the deceased lost her life. It is also apparent that the accident involved two (2) motor vehicles, namely the subject vehicle and the second vehicle.

46. On the subject of ownership of the subject motor vehicle, theplaintiff did not tender any documentation such as a copy of records to show that the 2nd defendant was at all material times the registered owner of the subject vehicle.

47. Turning to the police abstract which was tendered by theplaintiff without the objection of the defendants, upon considering the same, I note that the 2nd defendant was not indicated as being the owner of the subject vehicle or at all.

48. From the foregoing, I am not satisfied that the plaintiff hasproved on a balance of probabilities that the 2nd defendant was at all material times the registered owner of the subject vehicle or brought any credible evidence to link the 2nd defendant to the subject vehicle, considering this fact was denied in the defendants’ statement of defence. I therefore find that the plaintiff has not proved his case for negligence as against the 1st defendant.

49. Concerning the 2nd defendant, the police abstract produced bythe plaintiff lists him as the driver of the subject vehicle, the contents of which were not countered by any credible evidence by the defendants. This fact was further reinforced by the evidence of DW1.

50. On the particulars of negligence, the police abstract dated 27thFebruary, 2008 indicates that the material accident involved the subject vehicle and the second vehicle and that the case is pending under investigation.

51. I considered the evidence of PW2 who is said to have witnessedthe accident. Though I note that the oral testimony of this witness was incoherent, upon studying the contents of his witness statement I observed that the subject vehicle, which was behind what appears to have been the second vehicle which was stationary, moved forward and crushed the deceased in between itself and the second vehicle.

52. Further to the foregoing, upon examining the evidence of DW1, Iobserved that since the driver of the second vehicle had escaped, the subject vehicle was detained and that the matter was pending under investigation. It remains unclear whether the investigations were concluded and if so, the outcome of the same. Suffice it to say that the standard of proof in civil cases is a balance of probabilities and hence negligence can be established even where no party has been charged or convicted in relation to an accident.

53. I note that none of the parties called the investigating officer toshed light on the circumstances surrounding the accident. In the absence of his evidence, I am left to examine the evidence placed before me. Having done so and in the absence of contrary evidence by the defendants, I find that the plaintiff has established on a balance of probabilities the particulars of negligence as against the 1st defendant. I am guided by the following decision by the Court of Appeal in the case of Embu Public Road Services Ltd v Riimi [1968] EA 22:

“where the circumstances of the accident give rise to the inference of negligence then the defendants, in order to escape liability has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for the accident was consistent only with an absence of negligence.”

54. On contributory negligence, it is my observation that the 1stdefendant did not bring any evidence to establish that the deceased in any way contributed to the accident. As concerns the second vehicle, it remains unclear the extent to which, if any, it contributed to the accident.

55. Taking into account the circumstances of the case; the evidencetendered that the second vehicle had disappeared after the accident and could not be traced and the inability to make a distinction between the drivers of the two (2) vehicles; the copy of records annexed to the defendants’ application for joinder of the third party which shows the third party as being the registered owner of the second vehicle at all material times and the non-participation of the third party in the proceedings despite being served with the pleadings, I am of the view that the third party ought to be equally held liable. However, since it is the 1st defendant that sought to have the third party brought into the suit, I find it fair to hold the 1st defendant liable and he can thereafter seek indemnity of 50% from the third party.

56. My reasoning above is supported by various authorities. I willcite the case of Shadrack Kilonzo Kavoi v Gacheru Peter & 3 others [2020] eKLRwhere the court cited inter alia, the case of Lakhamshi vs. Attorney-General [1971 EA 118 in which the court rendered itself thus:

“A judge is under a duty when confronted with conflicting evidence to reach a decision on it and in most traffic accidents it is possible on a balance of probability to conclude that one or other party was guilty, or that both parties were guilty, of negligence…It is usually possible, although often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence but where it is not possible, it is proper to divide the blame equally between them.”

57. In the premises, I hereby enter 100% liability against 1stdefendant and dismiss the suit against the 2nd defendant with costs.

58. Having settled the first issue, I turn my attention to the secondissue on quantum and which I shall address under the following heads.

a. General damages

i. Pain and suffering

59. Here, the plaintiff produced a death certificate and autopsyreport to show that the deceased died on the date of the accident. In addition to his evidence and that of PW2 and PW3, the plaintiff further produced medical evidence to show that the deceased was rushed to hospital following the accident and died shortly thereafter. This shows that she experienced some pain and suffering.

60. Upon considering the sums proposed by the parties, I find thatthe cases cited were decided a few years ago. I therefore considered the case of West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the administrator and personal representative of the estate of James Julaya Sumba [2019] eKLRwhere the court awarded a sum of Kshs.30,000/ to the estate of a deceased who died instantly. I also considered the case of Alice Ombachi & another v Jerusha Kemunto Mokaya & Joshua Ageta Mokaya [Suing As Legal Representatives And Administrators of The Estate of Risper Nyaboke Mokaya (Deceased) [2019] eKLRin which an award of Kshs.50,000/ was awarded in the instance of a deceased who passed on less than one (1) hour after the accident in question.

61. I will therefore award a reasonable sum of Kshs.50,000/ underthis head.

ii. Loss of expectation of life

62. The evidence on record shows that the deceased died at the ageof 49 years. There is nothing to indicate that she was of ill health.

63. A conventional award of Kshs.100,000/ was made in the case ofMumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate of Patrick Kweyu Ashuma (Deceased) & another [2018] eKLR I am convinced that a similar award of Kshs.100,000/ would constitute adequate damages for loss of expectation of life.

iii. Loss of dependency

64. On the multiplier, the plaintiff tendered copies of the deathcertificate and national ID of the deceased to show that at the time of her death, she was aged 49 years. In the absence of any comparable multipliers by the parties, I considered the case of HBAO & 2 others v Marisoni Traders & Freight Co. Ltd & another [2019] eKLRwhere the court applied a multiplier of 11 years similar to the multiplier proposed by the plaintiff. In the premises and taking into account the vagaries of life, I am persuaded that a multiplier of 11 years is reasonable.

65. On the multiplicand, the death certificate indicates theprofession of the deceased as that of a nurse. Moreover, the plaintiff tendered a copy of the deceased’s pay slip for the month of January, 2008. The same indicates that the deceased was at the time of her death earning a consolidated salary of Kshs.38,530/. Upon statutory deductions, the net salary comes to Kshs.24,107/. This is what would constitute the multiplicand.

66. In respect to the dependency ratio, it is apparent from the recordthat the plaintiff did not tender birth certificates for him and his siblings. I however note that the plaintiff adduced school documents belonging to him and his siblings, which he deemed as evidence of dependency.

67. I am persuaded by the authority of Benedeta Wanjiku Kimani vChangwon Cheboi & another [2013] eKLRwhere the court appreciated that the issue of dependency is dependent on the facts and circumstances of a case. In the instant case, there is no credible evidence to show that the plaintiff and his siblings depended solely on the deceased so as to necessitate a ratio of 2/3. In my view, a dependency ratio of 1/3 would suit the circumstances.

68. Consequently, the damages under this head are to be tabulatedas follows:

Kshs.24,107 x 11 x 12 x 1/3 = Kshs.1,060,708/

69. On the subject of deductions which was raised in thedefendants’ submissions, the legal position is that the plaintiff is lawfully entitled to seek general damages under the heads of pain and suffering and loss of expectation of life under the Law Reform Act, and general damages for loss of dependency under the Fatal Accidents Act. There is no requirement for damages awarded under the Fatal Accidents Act to be deducted from the total award. In the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] Eklr, the Court of Appeal expressed itself in part as follows:

“In my view what section 2(5) of the Law Reform Act means is that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death. To be taken into account and to be deducted are two different things. The words used in s. 4(2) of the Fatal Accidents Act are “taken into account”. The section says what should not be taken into account and not necessarily deducted…There is no requirement in law or otherwise for him to engage in a mathematical deduction…”

70. In the end, I hereby enter judgment in favour of the plaintiff asagainst the 1st defendant as follows:

a. General damages

i. Pain and suffering Kshs. 50,000/

ii. Loss of expectation of life Kshs. 100,000/

iii. Loss of dependency Kshs.1,490,324/

Total Kshs.1,640,324/

iv. The award to attract interest at court rates from dateof judgment until the date of payment in full.

b. Costs of the suit.

c. The case against the 2nd defendant is dismissed with no order as to costs.

Dated, signed and delivered online via Microsoft Teams at Nairobi this 9th day of October, 2020.

...........................

J. K. SERGON

JUDGE

In the presence of:

...................................................for the Plaintiffs

..............................for the 1st and 2nd Defendants