[2022] KEHC 10316 (KLR)

Ekirapa & another (Suing as Legal Representatives of the Estate of Jacob Ekirapa Okisegere (Deceased)) v Abdi & another (Civil Suit 10 of 2016) [2022] KEHC 10316 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10316 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Suit 10 of 2016

SN Riechi, J

May 11, 2022

Between

Doreen Koki Ekirapa

1st Plaintiff

Simon Okiya Okisegere

2nd Plaintiff

Suing as Legal Representatives of the Estate of Jacob Ekirapa Okisegere (Deceased)

and

Abdifatah Abdi

1st Defendant

Christopher Mclean

2nd Defendant

Judgment

1By a plaint dated 27/9/2016, the plaintiffs seek the following prayers jointly and severally against the defendants;1. General damages under the law reform act and fatal accidents act.2. Loss of consortium and servitum in respect of the 1st plaintiff.3. Special damages of Kshs 2, 479, 600/=.4. Costs and interest.

2The facts relied upon are that on 14/7/2015 at around 10. 00 p.m at Salmond area along Bungoma-Webuye road, the deceased while driving Motor Vehicle registration number KBB 974X was hit by the defendants’ truck registration number KBR 162T hauling trailer registration number ZC 9059 causing his death. The plaintiffs attribute the cause of the accident and the subsequent death to the defendants’ agent negligence.

3The 1st defendant filed his statement of defence denying any negligence and attributing the occurrence of the accident, if any, to the defendants’ negligence.

4The 1st plaintiff testified as PW-1. She adopted her statement dated 27/9/2016 as her evidence in chief. She stated that she is the widow to the deceased who died due to the accident. That she was not at the scene during the accident but got information from witnesses who informed her husband was hit by the truck after losing control.

5In cross examination, she stated that she did not witness the accident. That her husband earned a gross salary of Kshs 206, 172/= and a net salary of Kshs 77,473/=. That she claims Kshs 2, 479, 600. The expenses were covered by money from her pocket, the County Government and friends. That they have 3 school going children.

6PW-2 was PC Lydia Melly a Police Officer attached to the Bungoma Traffic Base stated that the accident occurred on 14/7/2015 at about 10pm at Salmond area long the Bungoma-Webuye Road involving motor vehicle KBB 974X Toyota Harrier and KBR 162D/ZC 9059, Mercedes Benz truck whereupon the driver of the Toyota Harrier died.

7On cross examination, she stated that she did not visit the accident scene, that the matter was still pending under investigation and she could not therefore tell the result thereof. She further stated that the abstract-Pexh 3 did not show who was to blame for the accident and she could also not tell whether any person was charged.

8The defendants did call any witness and Mr. Kirui learned counsel for the defendants closed the defence case.

9Mr. Kundu, counsel for the plaintiffs filed written submissions.

10On liability, counsel submits that the accident was solely caused by the defendants’ negligence who being registered owners of the vehicle are vicariously liable for theirs agent’s actions. That there is nothing to justify contribution on the deceased’ part. That the defendants ought to be found 100% liable for the accident.

11Loss of expectation of life, he proposed the sum of Kshs 200,000/=.

12On Pain and suffering, it is submitted that the deceased died on the spot due to cervical spine injury and hemorrhagic shock. The sum of Kshs 100,000/= is proposed. The authority in Alexander Okinda Anagwe (suing as the administrator of the estate of Patricia Kezia Anagwe (deceased) Vs Reuben Muriuki Kahuha & another and Michael A. Craig & another (2015) eKLR where the sum of Kshs 100,000/= was awarded where the deceased died on arrival at the Kenyatta National Hospital.

13Under the head of quantum, counsel submitted that the deceased died at the age of 36 years while working as the Chief Officer in Bungoma County Government earning a gross salary of Kshs 206, 172/=, led a healthy and vigorous life and could have provided for his family until he attains 60 years.

14On Multiplier, counsel proposes a multiplier of 23 years since he was 36 years at the time of his death.

15Under Dependency, the deceased left behind; the 1st plaintiff, Asaph Ejakait, Blessed Gift Adaptah and Kingelson Oyiki then aged 37, 6, 5 and 1 year respectively. It is proposed that the ratio of 1/3 be adopted so that the figure is; 206, 172/= X 12X23X1/3= 18, 967, 824/=.

16On loss of consortium, it is submitted that the deceased left a young widow. Reliance has been placed in the case of Salvadore De Luca Vs Abdallah Hemedi Khalili 7 another(1994) eKLR and PBS & another Vs Archdiocese of Nairobi Kenya Registered Trustees & 2 others (2016)eKLR. Kshs 800, 000/= is proposed as adequate.

17Under special damages, the plaintiff sought Kshs 1,000/= for copy of records and funeral expenses in the sum of Kshs 2, 379,600/=

18On their part, the defendants submitted as follows;

19On liability, counsel submitted that the plaintiffs’ witness was not at the scene of the accident and could not therefore tell how the accident occurred. That the plaintiffs failed to call any eye witness and therefore the evidence fell short of the threshold. The cases of Statpack Industries Vs James Mbithi Munyao (2005) eKLR, Mary Wamboi Kabugu Vs Kenya Bus Services(1997)eKLR, Grace Kanini Vs Kenya Bus Services Nairobi HCC 4708 of 1989, Eunice Wayua Munyao Vs Mutilu Beatrice & 3 others(2017) eKLR, Sally Kibii & another Vs Francis Ogaro(2012)eKLR, susan kanini mwangangi & another Vs Patrick Mbithi Kavita(2019)eKLR and kenya power and lighting company Limited Vs Nathan Karanja Gachoka & another (2016)eKLR have been cited in support of the proposition inter alia that failure to call eye witnesses is fatal to the plaintiffs’ case.

20On the award of damages for pain and suffering under the Law Reform Act, it is submitted that the deceased died on the spot and does not therefore qualify to be awarded, however, if the court is inclined to award, the sum of Kshs 10,000/= is proposed. Reliance has been placed in the cases of Moses Koome Mithika & another Vs Doreen Gatwiri & another (suing as the legal representative and administrator of the estate of Phineas Murithi (deceased) (2020) eKLR and Harjeet Singh Pandal Vs Hellen Aketch Okudho(2018) eKLR where in both cases, Kshs 10,000/= was awarded where death was instant.

21On the loss of expectation of life, relying in the case of Mercy Muriuki & another Vs Samuel Mwangu Nduati & another (suing as the legal administrator of the estate of the late Robert Mwangi) (2019)eKLR, the conventional sum of Kshs 100,000/= is proposed.

22Under the Fatal Accidents Act, it is submitted that the deceased’ pay slip showed that he worked as a Chief Officer with Bungoma County Government earning a basic salary of Kshs 126, 172/= on contract which was due to expire in 2 years. A multiplier of 2 years is therefore proposed. That the deceased earned a net salary of Kshs 70, 000/= and this should therefore be adopted as the multiplicand. The case of Nyamira Tea Farmers SACCO Vs Wilfred Nyambati Keraita and another(2011) eKLR has been cited for the proposition that in the absence of proof of income, the court ought to resort to Regulation of Wages (General Amendment) Order.

23It is further submitted that due to uncertainty of how long the deceased could have lived due to vagaries of life, a multiplier of 10 years be adopted. Reliance has been placed in the case of Board of Governors of Kangubiri Girls High School & another Vs Jane Wanjiku & another (2014)eKLR and Mombasa Maize Millers Limited Vs WIM (suing as the legal representative of JAM (deceased) (2016)eKLR.

24On dependency ratio, it is submitted that since no marriage certificate or the chief’s letter was produced to proof dependency, a ratio of 1/3 be adopted. The case of Caleb Juma Nyabuto Vs Evince Otieno Magaka & another (2021) eKLR has been cited in support.

25The defendants’ computation as proposed would therefore be;70,000 X2 X12X1/3=Kshs 560,000/= add, 8,500X10x12X1/3= Kshs 340,000/= giving a sum of Kshs 900,000/=

26On special damages, it is submitted that since the plaintiff did not spend any money on funeral expenses, she ought not be awarded under this head.

27After carefully reviewing the evidence, the following issues emerge for determination is on both liability and quantum.

28On liability, it is trite law that he who alleges bears the burden of proving the existence of such facts and circumstances that would entitle the court to conclusively determine that such party is at fault. This cardinal principle is to be found in Sections 107 and 108 of the Evidence Act.

29The plaintiffs attribute the occurrence of the accident to the defendants and their agents’ negligence. They have enumerated the particulars of negligence attributable to the defendants or their agents. The defendants on the other hand contend that by failing to call and or avail an eye witness, the plaintiffs fell short of the statutory threshold set out above.

30In support of their case, the plaintiffs called 2 witnesses who testified as above. The defendants never called any witness. Of importance is the testimony of PW-2. She stated that she did not visit the scene and could not therefore tell hoe the accident occurred. She did not witness the accident.

31In the absence of an eye witness, the plaintiffs therefore rely on the doctrine of res ipsa liquitor. The Black’s Law Dictionary (8thEd.) defines res ipsa loquitor as, “the thing speaks for itself”. It goes on to explain that, “The doctrine providing that, in some circumstances, the mere fact of an accident occurrence raises an inference of negligence that establishes a prima facie case”.

32In Nandwa v Kenya Kazi Limited [1988] eKLR, the Court of Appeal on the applicability of the doctrine held:The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the Respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.

33As explained above, once the plaintiff establishes a prima facie case, the defendants must discharge the burden by showing that it was not negligent or that the accident occurred without any negligence on their part. In fact the defence did not call any witness to testify as to how the deceased caused and or contributed to the occurrence of the accident.

34The defence contends that the plaintiff failed to call eye witness to testify on the circumstances preceding the accident. That if the accident indeed occurred, the same was caused by the deceased negligence. The defence has cited a number of authorities which have been carefully evaluated.

35In Esther Nduta Mwangi & Another Vs. Hussein Dairy Transporters LimitedMachakos HCCC No. 46 of 2007, the court held:Although the defendant denied the accident but pleaded in the alternative that the accident was as a result of negligence on the part of the deceased, the defendant chose to call no evidence whatsoever, and that being the case the particulars of negligence on the part of the deceased were not proved and are mere allegations...The plaintiff, on the other hand pleaded the doctrine of res ipsa loquitor and produced documents including police abstract showing the date and place of the accident although no eye witness to the accident was called. However, since the doctrine of res ipsa loquitor was pleaded, the burden of proof was shifted to the defendant to disprove the particulars of negligence attributed to him.

36In the circumstances of this case, the court saw and heard PW-2 testify. She produced into evidence the police abstract-Pexh 3 without any objection from the defence. Even if the abstract was not conclusive on which party was to blame for the accident, it established that an accident occurred involving Motor Vehicle registration number KBB 974X, Toyota Harrier driven by the deceased and KBR 162T hauling trailer ZC 9059 in which the deceased died. This court thus finds and holds that the defendants failed to dispel the fact that they were to blame for the accident. The court therefore finds the defendants 100% liable for the accident.

38Under the head of loss of dependency, the court concurs with the defendants’ cited authority of Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989 where it was held;The court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind that the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction that must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact that the award will be received in a lump sum and if otherwise invested, good returns can be expected.

39Similarly, in Beatrice Wangui Thairu Vs Hon. Ezekiel Barngetuny & Another Nai HCCC. No.1638 of 1988 (unreported), it was, held:The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.

40Having set out the principles, this court having considered the rival submissions and the peculiar circumstances of this case, both parties have adopted the fraction of 1/3 as the dependency ratio. Nonetheless, the court will adopt a fraction of 2/3.

41Though the appointment was in contractual, clause 5 of the employment contract does not specify the period. The presumption that the same would expire in 2 years is speculative and not supported by evidence. The deceased earned a net salary of Kshs 77, 473/=. The deceased was 36 years. Considering the vagaries of life and the working life of the deceased, the court adopts a multiplier of 20 years. Under this head therefore, the award shall be; 77, 473X20X 12 X 2/3= 12,395, 680/=

42Under the head of pain and suffering, the plaintiffs proposes a sum of Kshs 100,000/= while the defendants propose Kshs 10,000/=. It is pleaded that the deceased died instantly. Having reviewed the case law cited by the parties and having considered similar award by the courts, I am guided Susan Kanini Mwangangi & another Vs Patrick Mbithi Kavita[2019] eKLR where Kshs 20,000/= was awarded in case of instant death. In the circumstances I award Kshs 20,000/=.

43Under loss of life expectancy, the plaintiffs propose Kshs 200,000/= while the defendants propose Kshs 100,000/=. There is no evidence that the deceased was of ill health. It is evident that he lived a healthy life with a young family. In the circumstances I award Kshs 200,000/=.

44The plaintiff also sought damages under the head of loss of consortium and servitum. As already stated, the deceased is survived by a young widow and 3 young children. There is no evidence that she has re married. The widow has lost companionship and the children lost fatherly love. The plaintiffs pray for a sum of Kshs 800,000/=.

45Having carefully analyzed the evidence on record and the case law together with the Fatal Accidents Act and the Law Reform Act, the principal statutes governing such claims, I am unable to find any legal underpinning supporting such an award. This finding is in tandem with the holding of Githua J. who, in Innocent Ketie Makaya Denge v Peter Kipkore Cheserek & another[2015] eKLR held;In my view, loss of consortium can only be subsumed in a claim for loss of amenities in an action instituted by a survivor of an accident in which it is claimed that owing to the injuries sustained in the accident in question, the plaintiff was incapable of enjoying consortium with his/her spouse and that his or her quality of life had as a result been diminished. Loss of consortium cannot thus be maintained as a claim on its own.

46In the circumstances, the court will not award under this head.

47On special damages, the plaintiffs sought Kshs 1,000/= for copy of records and Kshs 2, 379, 600/= in funeral expenses. It is trite law that special damages must not only be specifically pleaded but must also be proved. Having reviewed the evidence on record, the court notes that no receipt was produced in support of this claim. As such, the prayer for specials fails for want of proof.

48Having said much, in summary the award is as follows;1. Liability- 100% jointly and severally against the defendants.2. Loss of dependency- Kshs 12, 395, 680/=3. Pain and suffering- Kshs 20,000/=4. Loss of life expectancy- Kshs 200,000/=TOTAL Kshs 12, 615, 680/=

49The plaintiffs shall have the costs and interest at court rates until payment in full.

DATED at BUNGOMA this 11thday of May, 2022S. N. RIECHIJUDGE