[2004] KEHC 574 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

civ suit 880 of 02

ELIUD SINDANI MAJIMBO MATUMBAI (suing as the legal and personal representative of the estate of OSCAR BOYI SIMIYU (Deceased) ……. PLAINTIFF

VERSUS

CLEOPHAS WANYONYI SIMIYU ……………...1ST DEFENDANT

GILBERT OJEMA OLALE ……………………… 2ND DEFENDANT

JUDGMENT

The background of this suit is as follows:- Eric Majembo – a minor youth aged 15 years old in the year 2000 was walking to school with his younger brother, then aged 9 years old. There were matatu – public services vehicles which were competing for customers on the road. Two of these vehicles were on the road. A third vehicle in its effort to get ahead climbed the near side pavement where his brother, who had gone ahead of him, while he had stopped to buy ink and crushed his brother, the deceased. The deceased died at once on sustaining fatal injuries. The cause of death due to this road accident was:-

“Head injury due to bronchoheamorhagen entrodival subdival" The father to the deceased filed this suit against the two defendants as driver and owner of the vehicle. A joint defence was filed by the two defendants whereby they claimed that it was the deceased who was negligent. That he rushed onto the road without taking due care. Who then is to blame for this accident? A) LIABILITY I find that the evidence before me which included the lower court proceeding of the lower court that was put in evidence under section 34 of the Evidence Act, that the deceased was in fact not on the road but was walking on the pavement. It is clear that the defendants vehicle was driven off the road and climbed onto the pavement in its attempt to over take other motor vehicle in the aim of competing for passengers. The consequences of this was that the deceased was run down. Was the deceased deemed to have contributed in anyway to this accident?

The advocate for the plaintiff referred to me the case law of:- Bashir Ahmed Butt V Uwais Ahmed Khan by M. Akmal Khan (1982-88) I KAR I Whereby two minors were crossing the road. One was struck down by a vehicle whilst the other crossed safely to the other side. The Hon. Judge held there was no contributory negligence by the minor. The court of appeal upheld this finding and stated per Madan JA:-

“The practice of the civil courts ought to be that normally a person under the age of 10 years cannot be guilty of contributory negligence and thereafter in so far as a young person is concerned only upon clear proof that the . . . making the omission he had capacity to know that he ought not to do the act or make the omission.” The advocate for the defendant came up with the authority of:- Rahima Tayab and another v Anna Mary Kinanu (an infant suing by her next of friend)

Where the infant plaintiff aged 9 or 10 years old ran into the main road from school. She was hit by a vehicle and sustained a cracked skull. The trial judge declined to find her contributory negligent. He made an award of Ksh.600,000/- for pain and suffering which the court of appeal found to be manifestively excessive and reduced this. The court of appeal held that:- “There is no rule or otherwise that a child of tender years cannot be guilty of contributory negligence . . . “ They assessed the degree at 10%. This appears contradictory to the former case. This is more so when Law JA (as he then was) sat on both benches. I believe what they were saying is that because a minor of tender age may not be found to be contributory negligent in their acts there is no fast rule to it. I am inclined to be persuaded by the former authority in the circumstances of this case. I say so because the minor was not in any way negligent. He was on the pavement and not on the road. The vehicle left the road and its action of climbing on the curb thereby knocking the deceased in itself constituted negligence on the part of the 1st defendant as the driver and the 2nd defendant as the owner of the vehicle being vicariously liable.

I would compute liability at 100% against the two defendants jointly and severally. B) QUNATUM 1) Fatal Accidents Act The plaintiff withdrew the claim under the Fatal accidents Act. The parties rightly had this claim withdrawn 2) Law Reform Act The plaintiff has locus to bring the claim under the Law Reform Act. He proved to this court that he had letters of grant ad colligenda bona.

The parties agreed on quantum under this head, subject to liability. I hereby confirm the same as follows:- i) Pain and suffering Nil ii) Loss of expectation of life Ksh.60,000/- iii) Lost years Ksh.3,000/- x 12 x 21 years Ksh.756,000/- iv) Special damages Ksh.108,890/- Final Total Ksh.924,890/- I award the costs of this suit to the plaitnfif. I award interest on General Damages from the date of this judgment. Interest on Special Damages from the date of filing suit.

Dated this 22nd day of April 2004 at Nairobi.

M.A. ANG’AWA

JUDGE

Wamawla & Co . Advocates for the plaintiff

Kamotho & Maiyo Advocates for the defendant