[2017] KEHC 816 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 340 OF 2012

BEN OTIENO OWAGA.............................. 1ST PLAINTIFF

NOEL SHEUNDA NYONGESA.............. 2ND PLAINTIFF

BEN OTIENO OWAGA AND

NOEL SHEUNDA NYONGESA

(Suing as administrators ad litem of the estate of

MICHELLE AITTAH OWAGA Deceased)........ 3RD PLAINTIFF

VERSUS

ELIAKIM OWALLA......................................... 1ST DEFENDANT

KAPKWATA SAW MILLS LTD....................... 2ND DEFENDANT

JUDGMENT

1. This case came up for hearing by way of formal proof, interlocutory judgment against the 1st and 2nd Defendants having been entered against them on the 8th November 2016.

2 By their plaint dated 10th July 2012, the plaintiffs being the administrators of the estate of the deceased Michelle Aittah Owaga sought special and general damages for the death of the deceased following a traffic road accident along the Kericho-Nakuru road on the 25th April 2010. The deceased was travelling as a fare paying passenger in the defendants vehicle, Registration Number UAG 226, together with the 1st plaintiff. They blamed the driver of the vehicle for negligence, which particulars are stated in the plaint.

The plaintiffs obtained Letters of Administration Ad Litem vide Nairobi High Court Succession Cause No. 307 of 2011, issued on the 31st March 2011.

3. The plaintiff's case was urged though two witnesses.

PW1was C.O. Okere, a doctor who examined and prepared a medical report for Ben Otieno Owaga, the 1st plaintiff. He produced the same as PExt 1. It is dated 26th April 2016. His injuries are stated in the medical report. I shall come to the injuries later in this judgment.

4. PW2 is the 1st plaintiff. He testified that the 2nd plaintiff is his wife and his co-administrator of the estate of the deceased, Michelle Aittah Owaga, their child, who died following the accident.

His evidence was that while around Mediheal Hospital Nakuru, the vehicle was being driven at a high speed, that it veered off the road, hit a tree and rolled killing the child and causing himself and his wife, 2nd plaintiff to sustain serious injuries.

5. He produced the following documents in an attempt to prove his case.

Marriage Certificate - PExt. 8

Birth & Death certificate of the deceased - PExt. 9A, & b

Letters of Administration ad Litem - PExt 10

Police abstract - PExt 3

P3 form - PExt 4.

Discharge Summary(Mediheal hospital - PExt.5

Discharge Summary Forces Memorial Hospital

6. PW2 testified that he was an employee of the Kenya Defence Forces at the rank of Corporal and an air traffic controller at the time of the accident. It was his testimony that the accident and injuries seriously affected his professional life as he can no longer sit for long hours as necessitated by his job and was placed on light duties.

He therefore sought compensation for himself, his wife and his deceased's child.

7. PW3 Noel Sheunda Nyongesareiterated PW2's evidence on the occurrence of the accident and the injuries. Her evidence was that prior to the accident she was working as a sales representative and that she underwent a hip replacement at Memorial Forces Hospital. She testified that the accident has adversely affected her work as she can no longer do heavy work due to the tear and wear of the hip joint replacement. She too sought damages for the injuries and loss of her child.

8. I have stated above that there is on record interlocutory judgment against the defendants' in default of appearance and filing of their defence. The effect is that liability against the defendants is final and at 100%. I have perused the court file. It is minuted by the Deputy Registrar. See Moses Ochieng Owili -vs- Benard Githaka Kamau (2001) e KLR.

9. The plaintiffs by their evidence have formal proved their claim on liability against the defendants.

My duty now is to access damages arising from the defendants' negligence that lead to the accident. See also HCCC NO. 158 of 2008 Adan Hussein Ali & Another -vs- Geoffrey Ndiku Mutisya & Another (2015) e KLR. A final judgment is therefore entered against the defendants on liability, at 100%.

10. QUANTUMOFDAMAGES.

1st Plaintiff – Ben Otieno Owaga.

According to the medical Report dated 24th June 2016(PExt 1), the plaintiff sustained the following injuries:

Fracture of the right radius

Fracture of the right ankle

Fracture of the neck of proximal phalanx of the right little finger

Blunt chest injury

Blunt chest injury

Bruises on the forehead

Blunt injury on the right arm.

Recurrent complaints were as:

Pains in the right forearm

Pains on the right little finger

Numbness right ankle

Pains in right arm

Plates in situ on the right arm and forearm

Little finger is stiff at the proximal interphalngeal joint

Surgical scars otherwise leg and plat in situ.

The doctor PW1 observed that the implants were removed in October 2011, and assessed the decree of permanent incapacitation of the radius at 15% and on right ankle at 20%, and permanent incapacitation of little finger at 1%.

11. I have confirmed from the Hospitals Discharge summaries that the injuries are the same as appears in the medical Report.

The plaintiff has proposed a sum of Kshs.3 Million general damages for pain and suffering, and loss of amenities. Three authorities were cited thus

HCCC No. 3133 of 1987 Francis Mwangi Thuo -Vs Moses Gitungo & Epco, HCC NO 126 OF 1987 Peter Kamau Gaithongo -vs- Wilson Mujeru Gachuru & Another and HCCC No. 111 of 2006 Daniel Kosgey Nelechei -vs- Catholic Trustees Registered Diocese of Eldoret.

12. The above cases are very old(over 25 years) and the awards range between Kshs.150,000 to Kshs.160,000/=. It is not explained why more current authorities could not have been cited. The proposed sum of Kshs.3 Million is not supported by any decision or any rationale, as none were offered.

13. I have considered more recent decisions with comparable injuries.

In HCCC No.658 of 2009 (Judgment on 13th February 2015) James Gathirwa Ngugi -vs- Multiple Hauliers (EA) Ltd and Another (2015) e KLR,for comparable but slightly more serious injuries Kshs. 2 Million was awarded.

In Geoffrey Mwaniki Mwinzi -vs- Ibero (K) Ltd & Another (2014) e KLRthe plaintiff sustained extensive fractures of the left tibia and fibula with damages to the soft tissues of the left leg, fracture collar bone, internal fixations of the fracture and subsequent amputation, a sum of Kshs.2,000,000/= was granted in 2014 (Hon. Waweru J).

In Mwaura Muiru -vs- Suera flowers Ltd (2014) e KLR.

The plaintiff with multiple lacerations on face, chest injury, comminuted fractures of the right humerous and upper lower thirds of the tibia, a sum of Kshs.1,750,000/= was awarded, also in 2014 (Emukule J).

In James Gathirwa Ngugi -vs- Multiple Haulier (2015) e KLR the plaintiff who suffered compound comminuted fracture of right fibula left proximal radius, left ulna head injury and bruises, the court awarded Kshs.1,500,000/=.

14. Taking guidance from the above decisions. I am persuaded that a sum of Kshs.1,700,000/= is fair and reasonable compensation to the 1st plaintiff.

15. 2nd Plaintiff Noel Sheunda Nyongesa sustained the following injuries -

(See medical report) dated 26th April 2016 PExt1.

Multiple abrasions of the face

Fracture dislocation of right hip

Fracture of the Right scapula

Total Hip replacement,

fixation of implant on the right femur.

16. The authorities I have stated above will be a guide to the assessment of damages to the 2nd plaintiff too. It is proposed a sum of Kshs.3 Million, and three authorities are cited, among them Kisumu HCA No. 11 of 2014 Edwin Otieno Japaso -vs- Easy Coach Bus Co. Ltd (2014) e KLR.

In this case, the injuries to the chest, dislocation of the pelvis cut wound on the anterior left leg and other soft tissue injuries. The court enhanced general damages from Kshs.500,000/= to Kshs.1,500,000/=.

I think a sum of Kshs.1,500,000/= would be adequate compensation to the 2nd plaintiff towards pain and suffering. I award the said sum of Kshs.1,500,000/=.

17. The deceased, Michelle Aittah Owaga was three (3) years old when she died in the subject accident.

Though a minor, her estate is entitled to damages under both the Law Reform Act and the Fatal Accident Act. She died instantly. I have been urged to award Kshs.50,000/= for pain and suffering and Kshs.150,000/= for loss of expectation of life under the Law Reform Act.

I have considered the cases of Mwita Nyamohanga & Another -vs- Mary Robi Moherai (2015) e KLR (HCA No. 3 and 4 of 2014).

18. I have also considered principles applicable in the assessment of damages under the two acts as stated in Beatrice Wangui Thairu -vs- Hon. Ezekiel Bargetuny and Another – Nbi HCCC No. 638 of 1988(UR) and Court of Appeal decision in Board of Governors of Kangubiri High School and Another -vs- Jane Wanjiku & another (2014) e KLR.

19. It is my view which I hold dearly that life is sacred and dear, whether for a one hour old child or a 120 year old person. That life would have been nurtured to a great citizen, all things being equal. It is treasured, and parents hold high expectations from their children, partly for financial support in their old age. In the case, the court adopted the global approach of assessment of damages, and for the 4 year old deceased awarded a sum of Kshs.1. 9 Million on 1st February 2015 (Majanja J).

20. I have decided to adopt the global approach as opposed to the multiplier approach, which is within my discretion, and more applicable to a minor.

SeeMwanzia -vs- Ngalali Mutua and KBS (Msa) Ltd, quoted in Albert Odawa -vs- Gichimu Githenji NKU HCCA No. 15 of 2003 (2007) e KLR.It is a practical method more so where the issue of earnings does not arise especially in respect of young children.

21. The future prospects of the deceased minor is unknown and therefore the multiplier approach would be inappropriate. In exercise of my discretion I shall award damages, under both Law Reform Act and the Fatal Accidents Act (both inclusive) a global sum of Kshs.750,000/= to the estate of the deceased represented by the 1st and 2nd plaintiffs.

22. SPECIAL DAMAGES

The 1st plaintiff pleaded a sum of Kshs.162,792/= as special damages including Kshs.160,000/= being cost of future medical procedures. Special damages must not only be pleaded but also specifically proved. The only amount proved by the 1st plaintiff are Kshs.1,500/= medical report fees. No proof was tendered for the claim of Kshs.160,000/=.

The doctors court attendance fees of Kshs.15,000/= in my view is a cost to to be borne by the plaintiff as the doctor is a witness called by the plaintiff.

I allow a sum of Kshs.1,500/= only for this plaintiff.

23. The 2nd plaintiff's fees on the medical report of Kshs.1,500/= is also allowed.

24. Funeral expenses for the deceased child pleaded at Kshs.171,000/= was not specifically proved. However it is now trite that reasonable funeral expenses need not be specifically proved on the rationale that a mourning family is not capable of putting together all receipts of expenses in the preparation of a burial in anticipation of a court case.

25. To that end, I shall allow a modest and reasonable funeral expenses of Kshs.160,000/=.

Thus in total, special damages in the sum of Kshs.163,000/= is allowed to the plaintiffs.

26. In conclusion, there shall be judgment entered for the plaintiffs against the defendants jointly and severally as hereunder:

1. Liability - 100%

2. 1st Plaintiff - Kshs.1,701,500/=

3. 2nd Plaintiff - Kshs.1,501,500/=

4. Estate of Michelle Aittah Owaga - Kshs. 750,000/=

5. Special Damages - Kshs. 163,000/=

Total Kshs.4,116,000/=

Dated and Signed this 6th Day of October 2017.

J.N.MULWA

JUDGE

Delivered on the 12th Day of October. 2017.

R. LAGAT KORIR

JUDGE