[2004] KEHC 655 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 1210 OF 2003

FELISTER NDUTA MUTHONI & ANOTHER ….. PLAINTIFFS

VERSUS

THE HON THE ATTORNEY GENERAL ………….. DEFENDANT

JUDGMENT

A pedestrian was run down by a motor vehicle driven by an agent and or servant of the Attorney General on the fateful early morning of the 29th of March 2001, along the Kenyatta Avenue, Nairobi.

The pedestrian died soon after being rushed to hospital after the accident. His name was, Christopher Muiruri Kamau. His widow filed suit 2 years and 9 months later (2. 11. 03) seeking compensation for he wrongful death of her late husband. She sued the Attorney General.

I have two/three versions of what occurred and I am called upon to decide whether the said pedestrian was negligent or the driver of the vehicle was the cause of the said accident?

I) LIABILITY PW3, a co worker of the deceased stated that their task with the deceased was that of car park attendance with the city council. On the early morning of the 29. 3.01 they had collected their books to go out on the street. He was some distance away from the deceased near the monument next to he ‘GPO” that is along Kenyatta Avenue. He saw a speeding vehicle that came and knocked the deceased and threw him up in the air. The occupants of the vehicle got out and left. He rushed back to the office to call for help only to return to find the deceased had been taken to hospital.

DW2, the said driver of the vehicle in question stated he was employed with the office of the President. He was from state house heading for the globe cinema area when he approached the Kenyatta Avenue he saw a pedestrian on the Island pavement to his right. He was not sure what the pedestrian would do. Suddenly the pedestrian came onto his path and his vehicle swept him and he fell infront of the vehicle. Members of the public came but did not assist. They insisted that he takes the pedestrian to hospital. He did so and was indeed shaken by the incident. A nurse came out of the hospital and took the pedestrian in. Soon after the city council personnel came and went into the hospital only to come out crying.

A third version was as per the inquest file. This inquest was held in the Resident Magistrates court for quite a long period. I was amazed how the trial magistrate concluded with the following brief ruling that I reproduce herein.

RULING “Christopher Muiruri, the deceased herein died as a result of a fatal road accident involving G.K. No A527 KA 1800 which was being driven by PW3 herein. No eye witness was called to testify and there is no evidence to show the manner in which PW3 (the suspect) has . . . . He said motor vehicle and I order that the inquest file be closed.”

Signed

Resident Magistrate

The circumstances of a case is where you find a person lying on the ground having been knocked down and the same having been admitted by the said driver was indeed sufficient evidence to have had the driver tried. Nonetheless, in a civil suit the court is permitted to find there to have been liability duly contributed to by the parties.

From the foregoing circumstances the time was early morning. The traffic was scares. The deceased in this case seem not to have been aware of the vehicle. It is without a doubt that DW2, the driver was over speeding. He failed to take precaution and to slow down to 50 KPH as is required by the traffic rules for all the vehicles that are driven within the city boundary.

At the same time the deceased should have taken precaution and not stop at the road without taking due care for the presence of on coming traffic. I would in the circumstances find that the defendants, driver and or agent is liable for this accident. I say so due to the impact of the vehicle on the deceased. This was so great that it caused him to sustain fatal injuries soon after. I would compute liability against the defendant at 80%. I hold that the deceased bears 20% liability on the grounds that he sought to have taken precaution whilst at the vicinity of the road. I now turn to the issue of quantum.

II) QUANTUM

i) Law Reform Act

a) Pain and suffering

The deceased is said to have been rushed to hospital. He seems to have died soon after. The death certificates reflects the place of death was at Kenyattta Hospital. I would compute an award of Ksh.10,000/- as conventional or a person who dies soon after. b) Loss of expectation of life

The deceased was a security officer at the car park attendance area. He had a bright future ahead of h

The widow Felista Nduta Muiruru and her mother in law Lucy Wambui, are both co-administrators. They claim under the Law Reform Act. As both are also administratix they are entitled to claim on behalf of the estate. Both hold letters of grant limited ad litem.

Under this head of damage – the deceased aged 27 years at time of death was to have worked to the age of 55 years. This being the age of retirement for civil servants. To allow for eventualities I would agree to take 20 years as a multiplier. His pay slip reflects that he had been on the pay roll of the Nairobi City Council. His basic pay was Ksh.3,700/- with house allowance of Ksh.1,600/-. I would deduct statutory deduction at 457/- giving a net total of Ksh.3,243/-. For employees in Kenya who earn below Ksh.10,000/- they are exempted from income tax which is as seen in this case. I would therefore take ksh.3,000/- x 20 x 12 = ksh.720,000/- as being a reasonable sum under this head to be paid to the estate.

ii) Fat al Accidents Act

Cap 32 Laws of Kenya

a) Loss of dependency

Both the widow and mother to the deceased are dependents. This means that being dependants and administratix they are not necessarily entitled at both claims. The law requires that the sums taken into account the summon both claims.

(See Lubia v Kemfro Africa Ltd 1982-88 IKAR) as per Kneller JA (as he then was)

The plaintiff amended the plaint to include a minor child said to be the deceased child aged 6 months old at time of filing suit. No proof had been given that this child indeed existed and I make no award.

The claim under the Fatal Act is always discounted to cater for early remarriage and lump sum payment. It would mean a lesser figure to the lost years. I accordingly note and find that it be taken into account.

ii) Special Damages

a) Funeral and burial expenses

The plaintiffs claim funeral and burial expenses. This sum was not specifically particularized and pleaded These was just a lump sum claim generalizing funeral and burial expenses. The same is rejected b) Police abstract

This should read police abstract fee. A receipt of Ksh.100/- for the Kenya police had been tendered in evidence of the police abstract report No. A 446203. I accept this claim and accordingly award the claim.

c) Fees for letters of administration

This should not be more than Ksh.1000/- being fees paid to the Kenya government. I am not quite certain as to how the figures of Ksh.10,000/- arose. No explanation was given by the administratix nor was there any receipts tendered for this. I reject the claim as being not proved.

I accordingly enter judgment for the plaintiff on the proved amount claimed. In Summary

a) Pedestrian motor vehicle accident

b) Male adult aged 27 years in 2001

c) Injuries

Fatal

d) Liability

80% against defendant

20% against plaintiff

e) Quantum:

1) Law Reform Act

i) Pain and suffering Ksh.10,000/-

ii) Loss of expectation of life Ksh.70,000/-

iii) Lost years

3,000/- x 20 x 12 = Ksh.720,000/-

Total Ksh.800,000/-

Less 20% Ksh.160,000/-

80% Ksh.640,000/-

II) Fatal Accidents Act Nil

III) Special Damages

i) Funeral and burial expenses Nil

ii) Police abstract fee 100/-

iii) Letters of administration Nil Total Ksh.100/-

Less 20% Ksh. 20/-

80% Ksh.80/-

Final total Ksh.640,080/-

I award the costs of this suit to the plaintiff. I award interest on general damages from the date of this judgment. Interest on Special Damages from the date of filing suit. Dated this 2nd day of December 2004 at Nairobi.

M.A. ANG’AWA

JUDGE

C.N. Kihara & Co. advocates for the plaintiff

State Counsel for the Attorney-General

1) Male adult aged 27 years in 2001

2) Pedestrian/motor vehicle accident

3) Injuries:

Fatal

4) Liability

Ratio 80% against the defendant 20% against the plaintiff

5) Quantum:

I) Law Reform Act Cap.26 Laws of Kenya

i) Pain and suffering Ksh.10,000/-

ii) Loss of expectation of life

iii) Lost years Ksh.3000/- x 20 x 12 Ksh.720,000/-

II) Fatal Accidents Act – cap. 32 laws of Kenya

i) Loss of dependancy Nil

III) Special Damages

i) Funeral and burial expenses Ksh.30,460/- Nil

ii) Police abstract fee Ksh. 100/-

iii) Fees for letters of administration Ksh.10,500/- Nil

Total Ksh. 100/-

Final total Ksh.730,100/-

Subject to apportionment

6) Case law

i) Musa Alulwa v Attorney General

Hccc 1597/2000

ii) Silvanus Williams Okwengu & Another v National Hospital Insurance

Fund Hccc782/2003 7) Advocates C.N. Kihara advocate for the plaintiff

D.O. Rabala for Attorney-General