[2016] KEHC 549 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 76 OF 2013

HENRY OMWERI OROO...........................................................1ST PLAINTIFF

WINFRED MBETI KATUA.........................................................2NDPLAINTIFF

(Suing as the administrator and administratrix of the estate of the deceased HORACE IGNATIOUS OROO OMWERI)

VERSUS

SAMUEL MUNGIA KAHIGA.......................................................1ST DEFENDANT

PETER MAINA WAMBUGU......................................................2ND DEFENDANT

JUDGMENT

1. The plaintiffs are the AdministratorZ and Administratrix of the Estate of the late HORACE IGNATIOUS OROO OMWERI who died following a fatal road accident on the 9th April 2012 at Arash area along the Nakuru-Subukia road involving motor vehicle registration No.KBL 173Z the property of the second defendant and being driven by the first defendant at the material time.

2. On the 8th April 2016 and after closure of the plaintiffs case, parties recorded a consent judgment on liability that the defendants were to shoulder 80% blame on negligence, and asked the court to assess quantum of damages.

3. The deceased was a young energetic practicing advocate aged 33 years and may have secured a Magisterial post as he had been shortlisted for interview and if successful would have started working as a Resident Magistrate. He was married to the second plaintiff, Winfred Mbeti Katua. Evidence was tendered that he was working as an advocate in the law firm of G.K. Kibira and Company Advocates at Nyeri where he used to live with his wife.

Parties agreed and recorded that the statement of Winfred Mbeti Katua, the wife and others be admitted as evidence without the makers.

There is no dispute therefore that the deceased was married and had Dependants being his father and wife.

4. Various documents were produced by the deceased's father and plaintiff. The relevant ones for purposes of aiding the court in the assessment of damages are:

Letters of Administration Ad Litem

Death certificate

Practicing certificate for the deceased for the year 2012

Invitation for interview for the post of Resident Magistrate dated 26th March 2009

Degree certificate Bachelor of Laws dated 2nd May 2005.

Mortuary fees receipt

Funeral announcements, transport, food and drinks payment receipts.

5. The plaintiffs claim for damages based on the Law Reform Act as well as the Fatal Accidents Act.

6. Plaintiffs submissionson quantum of damages The plaintiffs submit that the deceased was earning a salary of Kshs.70,000/= per month as an advocate and was in good health and would have worked upto the age of 75 years. The court was urged to take judicial notice that judicial officers work even to the age of 75 especially those in private practice. A multiplier of 35 years was proposed in determining loss of dependency against a salary of Kshs.75,000/= and multiplicand of 2/3 under the Fatal Accidents Act.

On damages under the Law Reform Act, the plaintiffs proposed a sum of Kshs.3,000,000/= for pain and suffering and Kshs.100,000/= for loss of expectation of life. It was cited the case Joyce Mumbi Ngugi -vs- Co-operative Bank of Kenya – Nyeri Civil Appeal No. 214 of 2004where the court awarded Kshs.300,0000/= damages for pain and suffering and Kshs.100,000/= in 2008 for a deceased who ran an engineering firm.

7. Defence submission on quantum of damages.

The defendants have no dispute on the fact that the deceased was an Advocate of the High Court of Kenya but as no evidence was tendered on his earnings, a sum of Kshs.50,000/= is proposed as reasonable salary. It is further submitted that the deceased would have been interviewed for a post of Resident Magistrate in April 2012 and his starting salary would have been Kshs. 154,000/= Net had he lived to secure the job. Citing the case Joseph Njuguna Mwaura -vs- Builders Dan Ltd and Another (2014) e KLR,it was submitted that proof of income is basic to a claim on loss of dependency, and that if no income is proved then no award of dependency can issue.

On multiplier, the defence relying on the case of Benedetta Wanjiku Kimani -vs- Changwon Cheboi & Another (2013) e KLR,that the correct approach to determine multiplier is to consider the age of the deceased, balance of earning of life, age of dependants and expected and length of dependency and vicissitudes of life and factor accelerated by lumpsum payments.

A multiplier of 10 years and a multiplicand of 2/3 were suggested.

For loss of expectation of life under the Law Reform Act, Kshs.100,000/= was proposed while pain and suffering a NIL damage was urged as the deceased died on the spot, on the basis that the deceased had no awareness of pain as he died on the spot. See Joo (suing as the personal representative of the Estate of Poo -vs- Vincent Ouma Omondi & Another (2014) e KLR,Nevertheless, he urged that a sum of Kshs.10,000/= would suffice.

8. I have considered counsel submissions and documents produced as exhibits.

There is no dispute, and it is agreed by both parties that the deceased was 33 years practicing advocate, and that he had been invited for an interview for the post of Resident Magistrate. It is also not disputed that he had dependents, his father and wife.

Under Section 4(1) of the Fatal Accidents Act, these are among the dependants that the court ought to consider while assessing damages under the Act. It has not been disclosed why the firm of G.K. Kiriba & Co Advocates did not state the salary the said Advocate was earning prior to his death. Nevertheless, the defendant has proposed a monthly salary of Kshs.50,000/=. The plaintiff proposed Kshs.70,000/= but no evidence was tendered to support such earnings.

Being guided by the case Joseph Njuguna Mwaura (supra) that proof of income is basic to a claim of loss of dependency, the best I can do is trike a balance and adopt Kshs.60,000/= as the salary and or earning of the deceased. In doing so, I am guided by the fact that the starting gross salary of a Resident Magistrate is much higher, well over Kshs.100,000/= per month.

The plaintiff proposed the balance of earning life of the deceased of 35 years. He was 33 years at date of death. That would bring him to the age of 68 years. That could be so save for the mystery and vicissitudes of life. Indeed if the deceased had lived, and probably secured the post of a Resident Magistrate, he would have had an earning life of 27 years to reach 60 years save for the vicissitudes of life.

9. I have also considered the risk in the deceased work. Being an advocate and may be a Magistrate has no apparent health risks. He would have lived to reach 70 years and above taking life's vicissitudes into consideration. He left behind his elderly father and young wife. As stated in the case Benedeta Wanjiku Kimani, (Supra)these are factors that a court ought to consider while assessing loss of dependency. I have considered the said factors.

I am persuaded that a multiplier of 22 years, against a multipicand of 2/3 would be reasonable in all the circumstances of this case.

Thus Loss of dependency would be calculated as follows:

Kshs.60,000 X 22 x 12 X 2/3

= Kshs.10,560,000/=

10. Under the Law Reform Act, I have considered the proposed awards by both counsel, and authorities in support. The deceased died on the spot. He had no awareness of pain and suffering before he succumbed to the injuries I shall award a NIL damages on this sub-head.

For loss of Expectation of life, damages awarded are for the benefit of the estate of the deceased.

Section 5 Law Reform Acts states:

“(5) the right conferred by this part for the benefit of the estates of deceased's persons shall be in addition to and not in derogation of any right conferred on the Dependants by the Fatal Accidents Act or the ---”

Awards under this sub head are normally conventional which has been increasing over the years going by current decisions, and that is informed by an increased life expectancy to current 60 years. The plaintiffs and the dependants proposed Kshs100,000/= damages on this sub head. I shall award the sum of Kshs.100,000/=.

However, both awards under the Law Reform Act and the Fatal Accidents shall go to the same beneficiaries, the plaintiffs In line with holding Beatrice Wangui Thairu -vs- Hon. Ezekiel Bargetuny and Another Nbi HCCC No. 438 of 1998. The same beneficiaries will not be allowed to benefit twice. This sum will therefore be discounted from the award under the Fatal Accidents Act, leaving a sum of Kshs.10,460,000/=

11. Special Damagesmust not only be pleaded but also proved. The plaintiff pleaded a sum of Kshs.523,989. This sum includes items that I think ought not be allowed in the matter of assessment of damages. These are food, drinks, radio funeral announcements and hire of various vehicles for mourners to the burial Venue, Kisii.

There is no doubt that the family of the deceased incurred expenses towards those expenses but in my considered opinion, they must be omitted, and only allow those that ordinarily are necessary towards a decent burial for the deceased.

The plaintiffs are therefore entitled to recover basic and necessary expenses that form the burial.

Hire of vehicles carrying the body of the deceased and his immediate family is a necessary expense. Mourners should in my respectful view fund their own transport. As for food and drinks and as is the tradition, assistance comes from friends, colleagues and neighbours. I have seen numerous receipts produced as exhibits for purchases of food stuff over the mourning period. I shall not allow such expenses.

A deceased's status in society also informs the expenses that the family and community would spend on the burial. This in my view should not be visited upon the defendant to pay.

It has been held in our courts that a mourning family is not expected to keep receipts for all expenses and that a reasonable sum ought to be granted.

Taking into account the above factors and the defendants proposal of Kshs.126,000/= vis a vis the plaintiffs proposal of Kshs.523,989/= as special damages, I am persuaded that a sum of Kshs.300,000/= is reasonable expense towards burial of the deceased.

12. In summary, these are the awards I have made.

Liability – 80% against the Defendants jointly and severally.

Damages for pain and suffering - NIL

Loss of expectation of life - Kshs.100,000/=

13. Consequently, there shall be Judgment entered against the defendants jointly and severally for the plaintiffs in the sum of Kshs.8,608,000/= made up as follows:

A. Damages under the Law Reform Act

Pain and Suffering - NIL

loss of expectation of life - Kshs. 100,000/=

B. Damages under the Fatal Accident Act

(Loss of dependency) - Kshs.10,560,000/=

Less damages under Law Reform - Kshs. 100,000/=

Kshs.10,460,000/=

Add Special damages 300,000/=

Kshs.10,760,000/=

80% thereof Kshs. 8,608,000/=

NET Award Kshs. 8,608,000/=

14. The plaintiffs shall have costs of the suit.

Dated, signed and delivered this 27th Day of October 2016

JANET MULWA

JUDGE