[2013] KEHC 1103 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NO. 373 OF 2008

BENEDETA WANJIKU KIMANI (suing as the administrator

of the estate ofSAMWEL NJENGA NGUNJIRI (DECEASED).........PLAINTIFF

VERSUS

CHANGWON CHEBOI...............................................................1ST DEFENDANT

ANWARALI & BROTHERS LTD..............................................2ND DEFENDANT

JUDGMENT

1. Benedeta Wanjiku Kimani sued as Administrators of the Estate of the late Samuel Nganga Ngunjiri (deceased) following a road traffic accident along the Mai-Mahiu-Naivasha road in which the deceased sustained fatal injuries. The accident occurred on the morning of 30th June 2007, in which the deceased was knocked down by a motor vehicle registration Number KAS 567Q pulling tractor registration number ZB7954.

2. By a Plaint dated 4. 12. 2008 and filed on 8. 12. 2008 the Plaintiff sought damages against the First and Second Defendants both under the Fatal Accidents (Cap. 32, Laws of Kenya) and the Law Reform Act, (Cap. 26, Laws of Kenya). Though the Plaintiff testified and called 2 other witnesses the issue of liabililty was settled on 13. 03. 2013 when the parties through their counsel agreed that the Plaintiff should bear liability at 30% and the Defendant at 70%. Thus, the only outstanding issue is the quantum of damages payable to the Plaintiff.

3. The following documents were produced and admitted by consent of counsel for the plaintiff and the defendant -

(a) Exhibit 1(a)-(c)

– Baptism Card for Margaret Njoki,

Baptism Card to Rosemary Njeri,

Baptism Card for Peter Ngunjiri,

Baptism Card for James Kimani.

(b) Exhibit 2 – Death Certificate (of the deceased),

(c) Exhibit 3 – Receipts of payments made to Kenyatta National Hospital,

(d) Exhibit 4 – Voucher for Kshs 9,500. 00 from Nairobi Hospital.

(e) Exhibit 5 – Nairobi City Council for Kshs 3,650. 00

(f) Exhibit 6 - Police Abstract Report

(g) Exhibit 7 – Grant of Letters of Administration

(h) Exhibit 8 – Copy of Records from Kenya Revenue Authority

(I) Exhibit 9 – Deceased's Employment Contract

(j) Exhibit 10 – Deceased's payslip for Ksh 15,000/= per month

(k) Exhibit 11 – Letter of Confirmation of employment from Makindi Mahoti & Jumapili Cooperative Society Ltd.

4. The Defendants tendered no evidence. However in addition to the evidence tendered by the Plaintiff and her two witnesses, (PW1 – an eyewitness), and PW3, (a Police Officer), Counsel also filed written submissions (dated 9th July 2013, but filed on 12th July 2013 for the Plaintiff) and (dated 29th July 2013 and filed on the same day for the Defendants). I have considered both the evidence and the submissions. I will therefore straightaway go to the prime issue in this judgment, the question of quantum.

QUANTUM

5. There was no dispute that the deceased was a middle aged man of 44 years. PW2 his wife testified that they had been married for 22 years, and he had not to her knowledge experienced any ill-health, or been hospitalised in any hospital, until his death. He would consequently have worked as a manager to the common retirement age of 60 years of age. The Plaintiff's counsel therefore proposed a multiplier of 16 years in determining loss of dependency.

6. Counsel for the Defendants submitted otherwise. He suggested a multiplier of 6 years on the grounds that one was never sure of the imponderables of life, opportunistic diseases like HIV and accidents, and the court could not therefore say that the deceased would live to the retirement age of 60 years.

7. I have considered the Defendant Counsel's submissions together with cited authorities in support of the theory of imponderables of life. There are indeed many imponderables of life, and life itself is a mystery of existence. It is not however the province of the court to determine or explore those imponderables. The duty and province of the court is to apply the generally known period during or about which an employee in the deceased's occupation of farm manager would remain in active work and retire. That period was acknowledged to be 60 years of age.

8. And in BEATRICE WANGUI THAIRU VS. HON. EZEKIEL BARNG'ETUNY & ANOTHER (Nairobi HCCC No. 1438 of 1998 (unreported), and referred to in Rev. Fr. Leonard O. Ekisa & Another vs. MAJOR BIRGEN [2005] eKLR, Ringera J said inter alia -

“... there is no rule of law that two thirds of the income of a person is taken as available for family expenses. The extent of dependency is a question of fact to be established in each case ..”

“In determining the right multiplier, the right approach is to consider the age of the deceased, the balance of earning life, the age of dependants, the life expected, length of dependency, the vicissitudes of life and factor accelerated by payment in lump sum (HANNAH WANGATURI MOCHE & ANOTHER VS. NELSON MUYA (Nairobi HCCC No. 4533/1993).”

9. The deceased was at the time of his death 44 years of age. The Defendant adduced no evidence of the vicissitudes of life or other imponderables which would have shortened his working life to 6 years, or to 50 years and retire from work. The deceased was in the employment of Makindi Mahoti and Jumapili Farmers Cooperative Society as a Farm Manager. His salary was Ksh 15,000/= per month.

10. PW2 his wife testified that he was the sole bread winner. She was a house-wife and peasant farmer. Though there may be no rule of law that two thirds of the income of a person is taken as available for his family expenses, and neither is there a rule of law that one third of the income of a person is taken as available for his family expenses, the extent of dependency is a question of fact to be determined from the circumstances of each particular case. Firstly,the circumstances in this case point to the fact that the two-thirds of the deceased's income went to the expenses of his family, such as shelter, education, clothing and food for his wife and four children, who were all in school at the time of his death.

11. Secondly, in the absence of any vicissitudes of life which would have curtailed his working to 50 instead of the expected 60 years retirement age, I reject the multiplier of 6 years suggested by the Defendant's Counsel. As the deceased was 44 years of age at the time of the accident, he would, but for the accident, have worked for another 16 years. I would therefore give a multiplier of 16 years, on the basis of 2/3 expenditure to his family over his salary of Ksh 15,000/= per month.

12. I would therefore award the plaintiff loss of dependency at the rate of the deceased's monthly salary, multiplied by the number of years he would have worked and divided by 2/3 expenses to his family - i.e. Ksh 15,000 x 12 x 16 x 2/3 = Shs 1,920,000/=

13. 0 LOSS OF EXPECTATION OF LIFE AND DAMAGE FOR PAIN & SUFFERING

13. 01 Counsel for the Defendants in his submissions, urged the court to exercise great caution and ensure that awards under the Law Reform Act (Cap. 26, Laws of Kenya) and the Fatal Accidents Act (Cap. 32, Laws of Kenya) are not duplicated. To do so, counsel argued would mean that the estate, for whose benefit the action for damages is brought would benefit twice. Counsel relied on a passage from P. S. ATIYAH on ACCIDENTS COMPENSATION AND THE LAW, 2ND EDN. at p. 88:

“... hard reality enters this extraordinary legal stage, the law will not allow double recovery. In practice, this means the amount inherited by a person as a beneficiary of the deceased's estate may be deducted from an award under the Fatal Accidents Act on the legal justification on pretext that the inheritance is a “gain” from the death which must be set off against the loss.”

13. 02 Counsel also cited the Court of Appeal decision in KEMFRO VS. (A. M. LUBIA) and OLIVE LUBIA (1982-1988) KAR 727 where that court inter alia said -

“.. the net benefit will be inherited by the same Dependants under the Law Reform Act and that must be taken into account in the damages awarded under the Fatal Accidents Act because the loss suffered under the latter Act must be offset by the gain from the estate under the former Act.”

That court also proceeded to add -

“This is so despite the provisions of Section 15(5) of the Law Reform (Miscellaneous Provisions) 1934 Act which declares that -

“the right conferred by this Act for the benefit of the estate of deceased persons shall be in addition to and not in delegation of any rights conferred on dependants of the deceased by the Fatal Accidents Act … anyway, the principle that if a pecuniary gain which accrues to him or her from the same death of a person is logical and appropriate anywhere and in my judgment should be applied in Kenya.”

14. The relevant and corresponding provision in our law is Section 2(5) of the Law Reform Act (Cap. 26, Laws of Kenya) which reiterates the provision and says -

“(5) the right conferred by this part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on dependants by the Fatal Accidents Act or the Carriage by Air Act 1932 of the United Kingdom.”

15. In common law jurisprudence of which Kenya is part, the courts have evolved two principles, loss of expectation of life and pain and suffering by the deceased, for award of damages under the Fatal Accidents Act for pain and suffering …..... determined what is commonly referred to as a conventional sum which has increased over the years from Kshs 10,000/= to Sh 100,000/= currently. The basis of the increase has basically been based upon the increase of life expectancy from 45 years to run 60 years currently, that life itself was, until cut short by the accident worth something to the estate. The generally accepted principle is that very nominal damages will be awarded on this head claim if of death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death. In this case, the conventional figure for loss of expectation of life is shs 100,000/= and I award the said.

16. Similarly, the deceased died after four months following the accident. His pain and suffering was prolonged. I would award her shs 200,000/=.

17. It is of course correct both awards for loss of expectation of life and for pain and suffering go to the benefit of the deceased's estate. These awards are therefore capped to a minimum, so that the estate does not benefit twice from the same death – under the Fatal Accidents Act and the Law Reform Act. Hence the greatest benefit is under the loss of dependency under the Fatal Accidents Act as already calculated above.

18. 00 SPECIAL DAMAGES

The principle is that special damages must be both pleaded and proved. That is why Lord Goddard C.J. in Bonham Carter vs Hyde Park Ltd [1948]64 TLR 177 said -

“... Plaintiffs must understand that, if they bring actions for damages it is not enough to write particulars and so to speak, throw them at the court, saying “this is what I have lost, I ask you to give these damages, they have to be proved.”

18. 02 The Plaintiff pleaded for a sum of Ksh 75,650/= by way of special damages. In proof thereof counsel admitted by consent various invoices and receipts in payment thereof all totalling shs 75,650/=. Counsel for the Respondents sought to resile from this position by citing Section 19(1) of the Stamp Duty Act (Cap. 480, Laws of Kenya), that the receipts were inadmissible because they bore no revenue stamps affixed to them.

18. 03 I have indeed looked at the invoices, and receipts, and they indeed do not appear to bear any copy of a revenue stamp affixed to them. That does not however conclusively determine that the Plaintiff did not pay for the various services rendered in the course of the deceased's hospitalisation, or for his funeral expenses.

18. 04 In my view it is the duty of the receiver of the revenue and not the payer to affix the revenue to receipt of all the prescribed amounts. It is the receiver of such payments who should be interrogated and not the poor widow who would be mourning her husband and cannot be penalised for failing to ascertain whether the receipt she was receiving in acknowledgment of the payments she was making had a revenue stamp affixed them. Lastly having admitted the receipts by consent, the Defendant's counsel is estopped from challenging their admission by way of submission.

18. 05 In the result therefore, I allow Plaintiff's claim in the sum of Ksh 75,650/= as special damages.

19. 00 CONCLUSION

19. 01 In conclusion therefore there shall be judgment for the Plaintiff in the sum of Ksh 1,606,265/= made as follows -

A: General Damages

(1) Fatal Accidents Act, (Loss of Dependency) Ksh 1,920,000/=

B: Law Reform Act

(a) Pain and Suffering Ksh 200,000/=

(b) Loss of Expectation of Life Ksh 100,000/=

(c) Special Damages Ksh 75,650/=

Total Ksh 2,295,650/=

Less 30% contributory negligence Ksh688,695/=

Net Ksh 1,606,965/=

19. 02 In the result therefore I award the said sum of Ksh 1,606,965/=.

20. As costs follow the event the Plaintiff shall also have the costs herein.

21. There shall be orders accordingly.

Dated, signed and delivered at Nakuru this 7th day of November, 2013

M. J. ANYARA EMUKULE

JUDGE