[2014] KEHC 546 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 584 OF 2001

JANE KANAGA KADUYU AND GLADYS KADUYU AGOI

SUING ONBEHALF OF JANE KANAGA KADUYU AND ONBEHALF OF THE ESTATEOF

CHRISTINE JEHEND AKADUYU (DECEASED………….……...….PLAINTIFFS

VERSUS

WYCLIFFE YIDA………………………………………………..…1ST DEFENDANT

GEORGE ODONGO………….…….………………………….…..2ND DEFENDANT

GEORGE KAGWE GACHINGU…..………………………....……...3RD DEFENDANT

UNITED INSURANCE CO.LTD(UNDER RECEIVERSHIP…………4TH DEFENDANT

JUDGMENT

Claim under Law Reform Act & Fatal Accident Act…. Deceased 46 years old earning Kshs. 22,480/-

On the 30th of July 2013 interlocutory Judgment was entered against the 1st , 2nd and 3rd defendants. The case was set down for formal proof thereafter. On the 10/7/14 Mr. Nabutete informed this court that the plaintiffs’ claim was based on the Further Re-Amended Plaint dated the 30th April 2008 filed on the 7th Of November 2008. In the said plaint the plaintiffs’ aver that on the 9th April 1998 along Nakuru- Kericho road the deceased was travelling as a passenger in a Nissan vehicle registration number KAG 387Y when the said was carelessly driven and it caused an accident and the deceased was fatally injured. The 1st and 3rd defendants are the registered owners , whilst the 2nd defendant was the driver. The 4th defendant was the insurer of the said vehicle.

EVIDENCE

This is the evidence of the plaintiff Gladys Kaduyu Agoi as stated in court and her written statement filed adopted as her evidence in chief is as follows; That her core administrator Jane Kananga Kaduyu is her mum, but due to old age she cannot come to court. That on the 9th of April to 1998 at 6pm she received a call from the police that the deceased Christine Jahenda Kaduyu who is her sister had been involved in a road accident and that she had been rushed to hospital. She proceeded to Nakuru hospital where she was informed that her sister died while undergoing treatment at the hospital. The deceased was employed as a secretary at Marshals (E.A) Ltd. She was 46 years old, and in good health and her pay was Kshs, 28,688. 95 per month. She was single and had one child aged 13 years old and was the sole supporter of that child, she also supported her mother. The family incurred funeral expenses amounting to about Kshs. 103,000/-; that her child and her mother were deprived of her support and that she lost years of enjoying life and earnings income which has caused her estate to suffer damages

PW2 Clive Moosa Kaduyutestified that the deceased was his biological mother and she died from injuries received from road accident; that at the time of her death he was 13 years old; that her death affected him adversely, he even quit school. He could not cope with not having her there with him. Even though her aunts and grandmother looked after me well, he still suffered a lot mentally ; that he is now trying to accept her death and struggling to catch up with his education.

The plaintiff filed submissions. I have read the said submissions. On quantum it was submitted that the plaintiff died 21 hours after the accident, she was 46 years old in good health and was earning Kshs. 28,688. 90/-. Counsel submitted that bearing in mind the vicissitudes of life, she could have lived an active and productive life for another 30 years. Under Law Reform Act it was submitted that an award of Kshs. 700,000/- would be fair and reasonable, for the pain and suffering which was for at least 21 hours that is from 1. 30pm on the 9th day of April 1998, the accident time to 10th April 1998 at about 10. 30 am when PW 1 was informed that deceased died that morning when undergoing treatment. For loss of expectation of life it was submitted that , in the absence of a standard conventional figure, Kshs,400,000/- would be a reasonable award.

For damages under Fatal Accident Act, it was submitted that the deceased was a single mother and the breadwinner for her 13 years old son and her widowed old mother that adopting a multiplier of 30 years; and a multiplicand of Kshs. 28,688. 90 and subjecting this multiplicand to some deductions in form of taxes and other uses, a reasonable assessment for loss of future earning and income should be calculated as follows:- (28,688x12x30x2/3) =Kshs 6,885,336/-. The plaintiff quantified and summarized their claim for damages as follows:-

General damages

Pain and suffering Kshs.700,000/-

Loss of expectation life Kshs. 400,000/-

Loss of future earnings Kshs. 6,885,336

Kshs. 7,985,336. 00

Special damages

Funeral and burial expenses Kshs.103,000/-

Police abstract Kshs. 100/-

Official search at the registry

of motor vehicle Kshs. 200/-

Kshs. 103,300/-

Total General & Specials Damages

General Kshs. 7,985,336/-

Special Kshs.103,300/-

Total Claim Kshs. 8,088,636/-

The plaintiffs relied on the following authorities the case of; Butler Versus Butler Nairobi Civil Appeal Number 49 of 1983, Martha Seyle Omondi Versus Webuye E. Sort Co. Ltd. Bungoma HCCC No 84 of 1999, The Law Reform ActandThe fatal Accident Act.

DETERMINATION.

Damages under the Law Reform Act

It was submitted that the plaintiff suffered 21 hours after the accident. There was no proof that this is what happened this is evidence from the bar. PW1’s evidence was that the deceased died whilst undergoing treatment. She must have undergone some pain before her demise, thus I find that a sum of Kshs. 100,000/- is reasonable.

Loss of expectation of life

Counsel has asked for a sum of Kshs. 400,000/- and argues that there is no standard conventional figure. The sum suggested is high and has no basis. In the case of Martha Seyle Omondi vs. Webuye E.Sort. Co. Ltd (supra) Justice Ringera in awarding a sum of Kshs. 60,000/ said that the said award is a conventional figure, considering the time that has passed it is my view that a sum of Kshs. 100,000/- is adequate.

Special damages

It is trite law that they must not only be pleaded but proved.

The Court of Appeal in the case of Coast Bus Service Ltd versus Murunga Danyi & 2 Others Civil Appeal No. 192 of 1992 (unreported) stated that :-

“We would restate the position. Special damages must be pleaded with as much particularity as circumstances permit and in this connection, it is not enough to simply aver in the plaint as was done in this case, that the particulars of special damages were to be supplied at the time of trial. If at the time of filing suit, the particulars of special damages were not known, then those particulars can only be supplied at the time of trial by amending the plaint to include the particulars which were previously missing. It is only when the particulars of the special damages are pleaded in the plaint that a claimant will be allowed to proceed to strict proof of those particulars…”

The sum claimed of Kshs. 103,000/- was neither pleaded nor proved. There is a receipt of Kshs. 200/ which I award as special damages.

Damages under the Fatal accident Act

The deceased cared for a son and mother too. Her son testified how he suffered mentally , they must have spent time together. She was 46 years old at the time of her death. Counsel suggested a multiplier of 30 years. She worked as a secretary at Marshals (E. A) Ltd. Retirement age is now 60 years in the Civil Service, though I note that she was employed in the private sector. Considering the vicissitudes of life, I think that a multiplier of 18 would be reasonable in the circumstances of this case. A pay slip was produced it shows that she was earning a net salary of Kshs. 22. 480/-, though a lesser sum is pleaded in the re-amended plaint of Kshs. 18,500/-. The pay slip produced was for January 1998, I know that a party is bound by its pleading but in this case there is evidence that the amount quoted in the plaint is lower than what is exhibited in the pays lip which was produced in evidence and it shows the deceased’s actual salary 3 months before she died. I therefore assess the plaintiffs’ loss of dependency at Kshs 3,237,120/- (22,480 x 12x18x2/3). Considering the principle of deducting the award under the Law Reform Act when assessing damages under the Fatal Accident’s Act I award the plaintiffs’ Kshs.. 3,137,320/-.

The Fatal Accident’s Act requires that the award be apportioned among the dependents’ .The deceased’s dependents are Clive Moosa Kaduyu son now about 26 years old and Jane Kanaga Kaduyu mother, I apportion the award as follows;-

Jane Kanaga Kaduyu Kshs. 1,137,320/-

Clive Moosa Kaduyu Kshs. 2,000,000/-

Judgment is entered for the plaintiff against the defendants jointly and severally in the sum of Kshs. 3,137,320/- together with interest and court rates from the date of judgment until payment in full plus costs of the suit.

Orders accordingly

Dated, signed and delivered this 14th day of November 2014.

R. E. OUGO

JUDGE

In the presence of:

…………………………………………………………….....……….….Plaintiffs

……………………………………………….……………1st, 2nd, 3rd defendants

……………………………………………………………….………Court Clerk