[2017] KEHC 2136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO.50 OF 2014

BENSON WANJALA WANYONYI…………………………………………APPELLANT

VERSUS

HAGGAI KANGU ANYANGU………………………………………………RESPONDENT

JUDGEMENT

1. This is an appeal arising from the decision of Hon. C. Menya Resident Magistrate Kimilili Law Court in SRMCC No.48 of 2012 which was delivered on the 14th of May, 2015.

2. In the said suit the Appellant Benson Wanjala Wanyonyi sued as the administrator, a dependant and on behalf of the dependants of the deceased Peter Simiyu both under the Law Reform Act and the Fatal Accident Act. The suit was brought against one Haggai Kangu Anyangu, arising from an accident that allegedly occurred on or about the 13th of April, 2012 within Kimilili Township when the deceased who was cycling was hit by motor vehicle Registration number KAS 664R which was being driven by the Respondent. The Appellant attributed negligence on the part of the Respondent.

3. The suit was dismissed by the trial Court firstly, as the Court found that the appellant lacked locus standi to institute the suit, special damages were not proved and the appellant was not a dependant within the meaning attributed to such dependants under Section 4 of the Fatal Accident’s Act.

4. Being dissatisfied with the judgement the appellant appealed to this Court on the following grounds;

i) The learned Magistrate erred in Law and in fact by finding that the Appellant did not have the legal capacity or locus standi to institute the suit.

ii) The learned Magistrate erred in Law and in fact in finding that the Respondent had not proved ownership of the suit vehicle despite documentary evidence on record and the oral admission of ownership by the Respondent in evidence.

iii) The leaned Magistrate erred in Law and in fact by failing to appreciate and that the Appellant had properly pleaded and proved dependency under the Fatal Accidents Act.

iv) The learned Magistrate erred in Law an in fact by failing to appreciate and apply the applicable principles of Law while determining the issues of liability and quantum.

v) The learned Magistrate erred in Law and in fact by failing to take into account the Appellants’ eye witnesses evidence and/or the entirety of the Appellant’s evidence.

vi) The learned Magistrate erred by taking into account irrelevant factors.

vii) The learned Magistrate erred in failing to hold that the defendant was liable.

viii) The learned Magistrate erred in law and fact by failing to find that the appellant had proved his case on a balance of probabilities.

5. At the hearing of the Appeal the appellant submitted that; he had the capacity to institute the suit under the Fatal Accident Act. He cited Sections 4 & 7 of the Fatal Accident Act and argued that a suit may be brought on behalf of a dependant and that proof of dependancy was sufficiently provided.

6. Further that the Law of Succession relied upon by the learned Magistrate was irrelevant for purposes of this claim.

7. The appellant further argued that the Police abstract was adequate proof of ownership of the vehicle in question. In this regard he relied on the Case of Jonathan Mugalo Vs Telkom (K) Ltd, Kisumu HCCC No.166 of 2001.

8. On the issue of negligence Counsel urged the Court to consider the evidence of PW2 who was an eye witness and whose evidence was not rebutted.

9. On quantum, Counsel submitted that a multiplicand of Kshs.10,000/-, a multiplier of 35 years and a dependency ratio of 2/3 would be reasonable which gives an award of 2,800,000/-. The appellant did not pursue the claim under the Law Reform Act.

10. On his part the Respondent’s Counsel urged the Court to affirm the lower Court’s decision in that the Appellant did not have grant of letters of administration and he cannot therefore lay a claim under the Law Reform Act and therefore lacks locus standi.

11. As to liability Counsel for the respondent submitted that the appellant gave the motor vehicle Registration number involved as KAS 644B whereas the police abstract referred to vehicle registration number KAS 644R whose ownership the respondent confirmed. Furthermore, there was no official Search of the motor vehicle in question to prove ownership.

12. As regards quantum, Counsel submitted that no specials were proved, no claim lies under Law Reform Act and therefore pain and suffering and loss of expectations of life are not payable; as to lose of dependency; no proof of income was adduced; neither proof of dependency.

13. Having considered the pleadings, evidence on record and submissions on record the issues for determination are:-

1. Whether the appellant had any locus standi.

2. Whether ownership of the vehicle had been proved.

3. Quantum of damages payable if any and

4. Costs.

14. I agree with the respondents’ assertion that parties are bound by their pleadings. Secondly I wish to note that this was a good case where the dependants of the deceased would have been compensated were it not for the bad pleadings and mismanagement of the case.

15. To begin with no grant of letters of administration were obtained thus rendering the appellant as one lacking locus standi to file suit under the Law Reform Act which was admitted on appeal.

16. Next is whether the appellant who admits that he is not a dependant and alleges that their mother was a dependant can bring the suit on behalf of their mother.

17. Section 4 & 7 of the Fatal Accident Act permits a claim to be made for and by those entitled. Those who may benefit are wife, husband, parents and children.

The appellant admitted that he is a brother to the deceased and therefore he cannot benefit under the Fatal Accident Act. Secondly the appellant asserted that there was a mother who was a dependant yet no proof was placed before the Court to support the assertion in my view therefore this claim cannot succeed. Why did the dependant not give evidence?

18. As for ownership had the above claim been proved I would have admitted the abstract as prove of ownership of the motor vehicle and also against the admission by the respondent. There was ample evidence of what motor vehicle collided with the deceased clearly the motor vehicle registration in the pleadings was an error which ought not to have gone to deny the dependants damages.

19. As regards quantum I would align myself with the decision of the learned Magistrate. Having stated as above I am in concurrence with the trial Court.

20. For the reasons above this Appeal is dismissed with costs.

DATED and DELIVERED at BUNGOMA this 5th day of October, 2017

ALI-ARONI

JUDGE