[2023] KEHC 26434 (KLR)

Chepkorir & another (Suing as the Legal Representatives and Administratrix of the Estate of Edwin Kipngeno Chepkwony) v Hari Oum Autospares Limited (Civil Suit E004 of 2021) [2023] KEHC 26434 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26434 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Suit E004 of 2021

RN Nyakundi, J

December 14, 2023

Between

Zeddy Chepkorir

1st Plaintiff

Kirui Wilson Kipyegon

2nd Plaintiff

Suing as the Legal Representatives and Administratrix of the Estate of Edwin Kipngeno Chepkwony

and

Hari Oum Autospares Limited

Defendant

Judgment

1. The Plaintiffs instituted this suit vide a plaint dated 22nd January 2021. The cause of action arises from the Plaintiffs’ claim that on 11th December 2020 the defendant, its agent or driver caused the motor vehicle registration KCB 599V to be driven so carelessly and negligently along the Eldoret Nakuru road that it caused an accident the consequence of which the deceased lost his life. The Plaintiffs sought special damages as follows;i.Funeral Expenses Kshs. 150,000ii.Hospital and Mortuary expenses Kshs. 24,000iii.Legal Fees for obtaining letters of administration Kshs. 35,000/-iv.Search for motor vehicle search Kshs. 550Total Kshs. 209,550/-

2. The defendants opposed the suit and denied all the allegations in the plaint vide a statement of defence dated 12th April 2021. The parties prosecuted the suit vide written submissions.

Plaintiffs’ submissions 3. The Plaintiffs submitted that the fact that the defendant was the owner of M/Vehicle reg. no, KCE 599V was not disputed. Further that the testimony of the traffic officer P.C Kennedy Ooko set down the circumstances of the accident. An eye witness corroborated the evidence on record as well as completing the narrative of the Plaintiffs’ case against the defendant. It is clear that in no way did the decease contributed to the occurrence of the fatal accident. The deceased, who was attending to his own personal matters when the defendant’s driver recklessly, carelessly and negligently drove off the highway on to several motor vehicles on the roadside ramming them and eventually knocking down the deceased. The police officer further confirmed that the driver to the defendant was charged with the traffic offence of causing death by dangerous driving whence he pleaded guilty and was sentenced to serve two years imprisonment. DW1,who was not at scene of accident only asserted to blaming a third motor vehicle that is not a party to the suit herein.

4. The Plaintiffs urged the court to find that based on the testimony of its witnesses, they have proved their case on a balance of probabilities against the defendant and proceed to hold it 100% vicariously liable for the actions and omissions of its driver.

5. On quantum, the Plaintiffs submitted that a clear scrutiny of the post mortem report indicates the numerous body fractures that the deceased sustained and therefore, he must have therefore undergone through a great deal of unbearable pain before his untimely death. Counsel urged that a sum of Kshs. 100,000/ = will suffice under this limb, relying on the case of Kisumu HCC NO. 375 of 1999 Maurice Odiwuor Ogada Vs Juma Obungu& Anor.

6. The Plaintiffs urged that on loss of expectation of life, a conventional figure of Kshs. 150,000/= will suffice since the deceased was the pillar of his home and the main bread winner as per the testimony of the Plaintiffs, the widow. The Plaintiffs opted not to claim for loss of life under the law reform act to prevent the duplication of awards.

7. On loss of dependency, the Plaintiffs submitted that the deceased met his untimely death at the tender age of 38 years. Cutting short his family of 27 years. He was a senior personnel at Kenya Commercial Bank with high chances of rising in rank and so the pay. The Plaintiffs produced his last pay slip to confirm earnings of Kshs. 309,930. They urged the court award the estate of the deceased Kshs.52, 334,758:8 = 78, 505, 138:2 X 2/3). The

8. deceased’s deductions on the payslip clearly indicate that he had taken bank loans to help him sustain his large family as well as expand his source of earning. Further, that the deceased used 2/3 of the income on the dependants and 1/ 3 on himself. He had a large family of 3 children and was the sole provider as is evident from his pay slip which was overstretched by loans. Birth certificates were pleaded to that effect as exhibits. Therefore, a dependency ration of 2/3 should suffice. The deceased was aged 38 years and would have retired at the age of 65, which is the retirement age for a private sector. Therefore, a multiplier of 27 years would suffice putting into consideration vagaries of life.

9. The Plaintiffs submitted that receipts were produced as proof of the following special damages.i.Funeral Expenses Kshs. 150,000ii.Hospital and Mortuary expenses Kshs. 24,000iii.Legal Fees for obtaining letters of administration Kshs. 35,000/-iv.Search for motor vehicle search Kshs. 550Total Kshs. 209,550/-They urged the court to allow the claim as prayed.

Defendant’s case 10. The Defendant filed submissions on 9th October 2023. It is the Defendant’s case that other than the pleadings which set out the particulars of negligence on the part of the Defendant little was presented before the trial court to show how the accident occurred and most importantly establish negligence on the part of the Defendant. Counsel submitted that both PW1 and PW2 in their testimony in court conceded to the fact that they never witnessed the occurrence of the accident. Further, PW1, PC Kennedy Ooko went on to produce a police abstract which only confirmed the occurrence of the accident but was silent as to the issue of liability. He also did not produce the sketch plans, measurements or produce anything to guide the trial court in reaching its determination on the issue of liability in line with the pleadings before the trial court. In short, what PW1 relayed was nothing short of hearsay evidence which had no probative value . PW3 conceded that there was a lorry that drove onto the path of motor vehicle registration number KCE 599V while trying to join a junction hence the accident. No evidence was led by the Plaintiffs to prove any of the particulars of negligence enumerated therein in particular: evidence to show that the defendant's driver was over speeding.

evidence to show that motor vehicle registration number KCE 599V was defective.

11. The Defendant maintained that the Plaintiffs have not proved their claim and cited the case of Jeneby Mawira v Annwhiller Mwende Rugendo & Another (2017) eKLR.

12. On quantum, counsel urged that the burden to prove loss and damages lies with the Plaintiffs which position is amplified by the provisions of Section 107 Evidence Act Cap 80 Laws of Kenya. On the claim under the Fatal Accidents Act, the defendant submitted that for one to sustain a claim for damages for loss of dependency under the Fatal Accident Act, a party must not only prove dependants by giving full particulars of the person or persons for whom, and on whose behalf, the action is brought but also the nature of the claim in respect of which damages are sought to be recovered as per section 8 of the Fatal Accidents Act ( cap 32) but also adduce evidence to prove dependency. He cited the case of Beatrice Wangui Thairu -vs- Hon. Ezekiel Barngetuny & Another - Nairobi HCCC. No.1638 of 1988 (unreported) in support of this submission.

13. It is the defendant’s case that from the pleadings filed, the Plaintiffs was alleged to have been 38 years of age earning an average income of Kshs. 242,290. 55 per month at the time of his demise. Further, that he enlisted 3 persons as dependants: Zeddy Chepkorir-Widow

Kirui Wilson Kipyegon - Brother

Shannie Chepkirui Edwin- Daughter

Shannel Chelangat Edwin-Daughter

Sheryl Chepkemoi Edwin-Daughter

14. Counsel submitted that Section 4(1) of the Fatal Accidents Act provides that a claim for damages under the Fatal Accidents Act can only be made for the benefit of the wife, husband, parent or child of the deceased. As such, one Kirui Wilson Kipyego who is enlisted as a brother to the deceased cannot benefit under the Fatal Accidents Act. Further, that the only persons qualified to benefit from the deceased's estate is the deceased's widow and children and that is only upon proof of dependency. This position has not changed and in fact it has been held by two Court of Appeal benches in the case of James Mukolo Elisha versus Thomas Martin Kibisu (Nairobi civil appeal No. 31 of 2006 and Gerald Mbale Mwea versus Kariko Kihara and Another (Civil Appeal No.112 of 1995) that in the absence of proof of dependency then no award for loss of dependency can be made.

15. In light of the above the defendant urged that there was no proof of dependency because PW2, other than stating that the deceased earned Kshs. 242, 290. 55, did not prove how much out of the deceased earning went towards providing for them in proof of dependency. Had the Plaintiffs proved their claim then a multiplicand based on the net income, a multiplier of 17 years (as there is no telling whether the deceased would have lived until his retirement age retirement age given the vicissitudes of life) and 1/3 ratio would have been applicable.

16. On the claim under the Law reform Act, the defendant submitted that no amount is payable for pain and suffering the deceased having died on the spot. He relied on the case of James Mukolo Elisha & another v Thomas Martin Kibisu (2014) eKLR in support of the submission. On loss of expectation of life, the defendant urged that a figure of Kshs. 80,000/= would suffice being the conventional award by the Court under this head. In so submitting the defendant relied on the case of James Gakinya and Another versus Terminus Kariuki Githinji (Nairobi Hcc No. 91 of 2014.

17. On the claim for special damages counsel urged that for the Plaintiffs to be awarded any amount as special damages , the same ought to not only be pleaded but specifically proved. In addition, only documents bearing stamp duty can be admitted by the Court. As such, in the absence of payment of stamp duty as provided under section 19 of the Stamp Duty Act, then the receipts which do not bear any revenue stamp should not be admitted. Counsel relied on the case of Easy Coach Limited v Emily Nyangasi (2017) eKLR in support of this submission. Counsel urged the court to dismiss the suit with costs.

Analysis & Determination 18. Upon considering the pleadings, documentary evidence, testimonies by the witnesses and the submissions on record. The following issues arise for determination;i.Whether the Plaintiffs established their case on a balance of probabilitiesii.Quantum/Damages

Whether the Plaintiffs established their case on a balance of probabilities 19. The plaintiffs filed this suit on behalf of the deceased who was a victim of an accident. According to the plaintiffs, they were informed of the accident by one Samuel Koech Kipkemei who witnessed the accident. It was his evidence that on 11th November 2020 he witnessed the accident while at Mti Moja junction. He witnessed the lorry registration no. KCE 599V veer off the road and hit the deceased, throwing him against the wall, killing him on the spot. The motor vehicle search revealed that the vehicle belonged to the defendant and further, the police abstract confirmed that the accident occurred on the material date. Whereas the officer who testified was not the investigating officer, it is my considered view that there is sufficient evidence that there was an accident involving the defendants’ motor vehicle and the deceased. I take note that there was no sketch plan of the scene produced but the evidence of the witness corroborated the sequence of events as set out by PC Kennedy Ooko The defendants failed to produce any evidence in rebuttal to the evidence of Samuel Koech Kipkemei who witnessed the evidence. In the premises, I find that the defendant was 100% liable for the accident.

Quantum/Damages 20. This claim was brought under the Law reforms act and therefore the court must award damages for pain and suffering, loss of expectation of life and lost years. Further, under the Fatal Accidents Act, provisions must be made for loss of dependency. The plaintiff is claiming damages under the law reform act to wit; damages for loss of expectation of life, special damages and lost years.

Damages for Loss of expectation of life 21. From the evidence on record, the deceased died on the spot and therefore, he did not undergo a long period of suffering before his death. In the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, the Court stated as follows-“As regards damages awarded under the Law Reform Act, the principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death…. The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs. 100,000/= while for pain and suffering the awards range from Kshs. 10,000/= to Kshs. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.” (emphasis added).

22. Guided by the above decision, I award Kshs. 100,000/- for loss of expectation of life.

Pain and Suffering 23. The rule of law that Pain and Suffering damages may be awarded in a fatal injury claim generates an extremely difficult practical problem for the courts and for lawyers practising in our courts. Three elements contribute to the problem. The first involves the relative ease or proof of the existence of Pain and Suffering for a victim who suffered serious injuries and soon thereafter passed on as a consequence of that wrongful act. The second involves the absence of any standard for measurement of the damages to be awarded. Thirdly, the restriction for reason of death of not able to admit evidence as to the Pain and Suffering of the victim. Of course where the claimant has suffered tangible physical injuries affecting various parts of his or her body the court is not likely to error in determining that before his or her last breath that in fact there was pain and suffering. From the various decisions made by the superior courts the answer to award damages for pain and suffering in a fatal accident claim it is in the affirmative. Where damages has been suffered by reason of any act or omission in respect of which a cause of action would have subsistent against any person if that person had not died before or at the same time as the damages were suffered the court should be at liberty to assess damages for pain and suffering. These are damages proportioned to the pain and suffering prior to the death of the claimant. In the case of Sukari Industries Limited v Clyde Machimbo (2016) ekLR. The deceased in this case had died immediately after the accident and the court awarded 50,000 for Pain and Suffering. Also in the case of Beatrice Mukulu Kang’uta & Another vs Silverstone Quarry Limited (2016) eKLR the court awarded Kshs 200,000 for the Pain and Suffering. Consequently focusing on this claim I assess damages for pain and suffering at Kshs 50,000.

Dependency 24. It is trite law that dependency is a question of fact to be established in each case – see James Mukolo Elisha & Another V Thomas Martin Kibisu, Court of Appeal at Nairobi Civil Appeal No. 31 of 2006. From the documentary evidence, the deceased earned a net pay of Kshs. 163,684. 85. The Plaintiff’s case is that the deceased had three children and a widow who were his dependants Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed v Kayuma Mvurya & Another [2017] eKLR as follows:-“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

25. The dependency was proved by way of a chief’s letter dated 22nd December 2020 which, in my view, was sufficient on a balance of probabilities. The deceased was 38 years of age at the time of his death and therefore, taking into account the vicissitudes of life, he had at least 27 years before retirement. From his payslip, it is evident that he had taken out a number of loans as well and it is clear his family heavily depended on him. In the premises, I shall adopt a dependency ratio of 2/3. The formula for dependency, is the multiplicand, that is the annual net income multiplied by a suitable multiplier of expected working life lost by the deceased by the premature death, and further by a factor of the dependency ratio, that is the ratio of the deceased’s income utilized on her dependants.Dependency = 163,684. 85 x 27 x 2/3 = 2,946,327. 30/-

Special Damages 26. It is trite law that special damages must be specifically pleaded and proved. The plaintiffs have pleaded a sum of Kshs. 209,550/-. They produced a receipt for mortuary services for Kshs. 10,000/- Kshs. 14,000 for storage fees of the body. There is also a receipt evidencing payment of Kshs. 500 for the motor vehicle search.

27. As for funeral expenses, courts have held that time and again that they are inevitable and a conventional sum is usually awarded in the circumstances. In the case of Jacob Ayiga Maruja & Another v Simeon Obayo (2005) eKLR the Court of Appeal awarded the plaintiff Kshs.60,000/= for funeral expenses and held thus;“We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We however must not be understood to be laying down any law that in subsequent cases Kshs.60,000 must be given as reasonable funeral expenses. Those items are and must remain subject to proof in each and every case and the Shs.60,000/= we have awarded herein apply strictly to the circumstances of this case.”

28. Taking into account that the Court of Appeal pronounced itself on this issue in 2005, and that there has been inflation since said decision, I find that an award of Kshs. 100,000/- for funeral expenses would suffice in the circumstances.

29. In the premises, the plaintiff’s claim succeeds as follows;1. Liability 100% in favour of the Plaintiff2. General damages for loss of dependency – Kshs. 2,946,327. 30/-3. Loss of expectation of life – Kshs. 100,000/-4. Pain and Suffering – Kshs. 50,0005. Funeral expenses – Kshs. 100,0006. Special damages – Kshs. 24,550Total: Kshs. 3, 230, 877. 30

30. The costs of this suit awarded to the Plaintiff. Interim stay of 30 days.

31. Right of Appeal 14 days.

DELIVERED DATED AND SIGNED AT ELDORET ON THIS 14TH DAY OF DECEMBER 2023In the Presence ofM/s Cherotich for the DefendantMr. Omusundi for the Plaintiff…………………………..…………….R. NYAKUNDIJUDGEmorganomusundilawfirm@yahoo.com , infor@morganomusundi.go.keCIVIL SUIT NO E004 OF 2021 0