[2011] KEHC 3703 (KLR)
The court held that the plaintiff failed to adduce evidence to prove the various heads of damages under the Law Reform Act and Fatal Accidents Act, particularly for loss of expectation of life and lost years. However, due to the 2nd defendant's concession in written submissions, the court awarded damages for pain...
Source-derived case information.
- Citation
- [2011] KEHC 3703 (KLR)
- Parties
- Plaintiff: Peter Meeme Kithure (Suing as a legal representative of the estate of Elijah Ntonja Kirimania) (Deceased); Defendant: Solomon Kiragu Manyeki; Defendant: Anthony Njoroge Wainaina
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2008
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff against the 2nd defendant for damages as specified, less 30% contribution, plus costs and interest.
- Judges
- MM Kasango
- Legal Topics
- Fatal Accidents, Damages Quantification, Loss of Expectation of Life, Lost Years, Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Meeme Kithure (Suing as a legal representative of the estate of Elijah Ntonja Kirimania) (Deceased)
Plaintiff
Solomon Kiragu Manyeki
Defendant
Anthony Njoroge Wainaina
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff proved loss of expectation of life and lost years under the Law Reform Act and Fatal Accidents Act.
- 2 Whether damages can be awarded without oral evidence being adduced by the plaintiff.
- 3 Whether the court can rely on consent and written submissions to determine quantum of damages.
Ratio Decidendi
The court held that the plaintiff failed to adduce evidence to prove the various heads of damages under the Law Reform Act and Fatal Accidents Act, particularly for loss of expectation of life and lost years. However, due to the 2nd defendant's concession in written submissions, the court awarded damages for pain and suffering, loss of expectation of life, lost years, and special damages. The total award was reduced by 30% to reflect the agreed liability apportionment. The court emphasized that, generally, parties must adduce evidence to prove their claims, but a defendant's concession can justify an award even in the absence of such evidence. The court also awarded costs and interest as...
Court Disposition
judgment for the plaintiff against the 2nd defendant for damages as specified, less 30% contribution, plus costs and interest.
Orders
- Plaintiff awarded KES 10,000 for pain and suffering.
- Plaintiff awarded KES 70,000 for loss of expectation of life.
Full Case Text
Judgment text and source record
27 paragraphs
CIVIL
·In a fatal accident claim a party needs to adduce evidence to prove loss of expectation of life and lost years.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT CIVIL CASE NO. 10 OF 2008
PETER MEEME KITHURE (Suing as a legal representative of the
estate of Elijah Ntonja Kirimania) (DECEASED) …… PLAINTIFF
VERSUS
SOLOMON KIRAGU MANYEKI ………………….. 1ST DEFENDANT
ANTHONY NJOROGE WAINAINA ……………… 2ND DEFENDANT
JUDGMENT
The plaintiff by this claim seeks on behalf of the estate of Elijah Ntonja Kirimania, deceased, an award of special and general damages. He seeks that award in respect of the accident caused by the 2nd defendant whilst driving a motor vehicle owned and registered in the name of the 1st defendant. The 1st defendant did not file a defence as required and an interlocutory judgment was entered against him by the deputy registrar on 29th May 2008. The 2nd defendant filed a defence denying the plaintiff’s claim. On 9th June 2009, the plaintiff and the 2nd defendant entered into a consent on liability. That consent was to the effect that judgment be entered on liability wholly for the plaintiff against the defendant at 70%. Although that consent indicated that it was a consent between the plaintiff and the defendant, the consent was only signed on behalf of the 2nd defendant by his counsel. So it is clear that that judgment by consent only relates to the plaintiff and the 2nd defendant. By a subsequent consent dated 6th November 2010, the plaintiff and the 2nd defendant agreed to submit the plaintiff’s exhibit in this case without calling evidence amongst which were death certificate, grant of letters of administration of the deceased estate, copy of the record of the registrar of motor vehicles and receipt of the special damages claim totaling Kshs. 10,500/=. The parties by that consent agreed to submit before court in writing in respect of the quantum of damages. The plaintiff’s claim was both under Fatal Accident Act and the Law Reform Act. The parties in my view erred to have consented to submit on quantum of damages in writing without the plaintiff having first adduced evidence to prove various heads under the Law Reform Act and the Fatal Accident Act. The plaintiff’s failure to adduce evidence means that the court cannot satisfactorily award damages in respect of claims such as loss of expectation of life and lost years. The only information the court has from the pleadings is that the defendant was a matatu conductor. There is no evidence before court of the amount of salary he was receiving and whether or not he was employed on a salary or on commission. It should be recalled that the 2nd defendant did file a defence to the plaintiff’s claim and in that defence denied all the allegations the plaintiff made. It therefore means that the plaintiff needed to prove the statements made in the plaint. The 2nd defendant’s counsel submitted that the court should not make an award under the heads of lost years until the plaintiff adduced evidence. These submissions were made late in the day because the parties had already consented that the hearing should proceed by way of written submissions. The 2nd defendant’s counsel after making that submissions conceded that the plaintiff should only be awarded the following:-
1. Pain and suffering Kshs. 10,000/=
2. Loss of expectation of life Kshs. 70,000/=
3. Lost years (Kshs. 5,000 x 12 x 20 x 1/3) = Kshs. 400,000/=.
It is because of that concession by the 2nd defendant that the plaintiff’s claim which should have dismissed will now not be dismissed. I therefore enter judgment for the plaintiff as against the 2nd defendant as follows:-
1. Pain and suffering Kshs. 10,000/=.
2. Loss of expectation of life Kshs. 70,000/=.
3. Lost years (Kshs. 5,000 x 12 x 20 x 1/3) = Kshs. 400,000/= - Total = Kshs. 480,000/=
Less 30% Kshs. 144,000/=
Kshs. 336,000/=
4. Special damagesKshs. 10,500/=
5. The plaintiff shall have costs of the suit and interest on Kshs. 10,500 from the date of filing suit and interests on Kshs. 336,000 from the date of this judgment.
Dated, signed and delivered at Meru this 17th day of March 2011.
MARY KASANGO
JUDGE