[2022] KEHC 12226 (KLR)

JNM (Suing as the legal administrator and the father of the Estate of AM (Minor) - Deceased) v Mtaki & another (Civil Case 178 of 2017) [2022] KEHC 12226 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12226 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case 178 of 2017

MM Kasango, J

June 16, 2022

Between

JNM

Appellant

Suing as the legal administrator and the father of the Estate of AM (Minor) - Deceased

and

Anthony Mtaki

1st Respondent

Michael King’e Wanjohi

2nd Respondent

(Being an appeal from the judgment of the Chief Magistrate’s Court at Kiambu, (J. Kituku, PM) dated 8th November, 2017)

Judgment

1. This appeal arises from a suit filed before the Kiambu Chief Magistrate’s court by JNM (J). He sued as administrator and father of the estate of AM (minor) (deceased).

2. The trial court after receiving evidence, Joseph in formal proof dismissed the claim under Law Reform Act on the ground that Joseph had not obtained letters of administration prior to filing the case. The trial court granted judgment only for special damages of Kshs 107. 480 plus costs and interest. Joseph filed this appeal against that judgment. Joseph’s grounds of appeal fault that judgment on the basis that the trial court dismissed the claim on a technicality; and that the trial court erred in failing to pay regard to letters of administration obtained subsequently after the suit was filed before the trial court.

3. J cited the case MN (suing on behalf of a minor LK (deceased) vs Paul Kiptoo (2016) eKLR in support of the above grounds where the court entertained a claim under Law Reform by invoking article 159 of the Constitution.

4. I am not persuaded by the holding of the above case. The court holding in that case is not in tandem with the Court of Appeal decision in the case Gerald Mbale Mwea Vs. Kariko Kihara & Another (1997) eKLR where the learned judges held as follows:-“It is now settled law that a plaintiff has no locus standi to claim under The Law Reform Act until after he has obtained letters of administration to administer the estate of the deceased concerned. This was decided by a five judge bench of this court in the case of Trouistik Union International & Another Vs Mrs Jane Mbeyu & Another, Civil Appeal No 145 of 1990, unreported. In the case of a deceased who died intestate, the obtaining of letters of administration after filing of suit does not validate the claim under The Law Reform Act as there is no doctrine of retrospective effect applicable to such a case.”

5. That decision of the Court of Appeal makes it decisive that the claim of J under the heading of law reform rightly failed.

6. J’s claim under Fatal Accident Act ought to have been entertained by the trial court. This is because under section 7 of that act, J could sustain an action under the Fatal Accident Act even without obtaining letters of administration of the deceased’s estate. It can be entertained because J was a father of the deceased and paragraph in the plaint under the hearing of Fatal Accident Act shows the claim was by J, father of the deceased and RWM as mother of the deceased. Section 7 of the Fatal Accidents Act provides:-“If at any time, in any case intended and provided for by this act, there is no executor or administrator of the person deceased, or if no action is brought by the executor or administrator within six months after the death of the deceased person, then and in every such case an action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been brought, if it had been brought by and in the name of the executor or administrator, and every action so brought shall be for the benefit of the same person or persons as if it were brought by and in the name of the executor or administrator.”

7. The deceased was 6 years old on the day of the accident. There is all likelihood deceased, but the accident, had he lived to adulthood, he would offer assistance to his parent. In that regard, I intend to take a global figure of Kshs 200,000 as an award under fatal accident claim.

DISPOSITION 8. The judgment of this court is that the appellant partially succeeds as follows:-

a. Award under Fatal Accident Act of Kshs 200,000. b. The award of the trial court in special damage and costs is upheld.

JUDGMENT DATED and DELIVERED at KIAMBU this 16th day of JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Appellant: Mr. MuneneFor the Respondent :- N/ACOURTJudgment delivered virtually.MARY KASANGOJUDGE