[2010] KEHC 1630 (KLR)
The court found that, in the absence of independent evidence such as a police report, the circumstances and damage to both vehicles indicated a head-on collision. The first defendant's claim that he could not avoid the accident was rejected. Liability was apportioned at 40% to the first defendant and 60% to the...
Source-derived case information.
- Citation
- [2010] KEHC 1630 (KLR)
- Parties
- Plaintiff: John Muhanda Muya; Plaintiff: Faith Wanjiru Muya; Defendant: Stanley K. Kuria; Defendant: Monica Waithera Mugoto
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 223 of 2000
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiffs against the defendants, with liability apportioned at 40% to the first defendant and 60% to the second defendant.
- Legal Topics
- Fatal Accidents, Negligence, Damages Assessment, Dependency Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Muhanda Muya
Plaintiff
Faith Wanjiru Muya
Plaintiff
Stanley K. Kuria
Defendant
Monica Waithera Mugoto
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendants were liable for the fatal road accident that caused the death of Simon Muya Muhanda.
- 2 What proportion of liability should be attributed to each defendant for the accident.
- 3 What is the appropriate quantum of damages payable to the plaintiffs under the Law Reform Act and Fatal Accidents Act.
Ratio Decidendi
The court found that, in the absence of independent evidence such as a police report, the circumstances and damage to both vehicles indicated a head-on collision. The first defendant's claim that he could not avoid the accident was rejected. Liability was apportioned at 40% to the first defendant and 60% to the second defendant. The court accepted the deceased's monthly income as Kshs. 15,000 and, considering the imponderables of life, applied a multiplier of 20 years for loss of dependency. The total award included sums for pain and suffering, loss of expectation of life, loss of dependency, and funeral expenses. The plaintiffs were awarded costs and interest, with the liability shared...
Court Disposition
Judgment for the plaintiffs against the defendants, with liability apportioned at 40% to the first defendant and 60% to the second defendant.
Orders
- Plaintiffs awarded Kshs. 2,546,700 in total damages apportioned between the defendants at 40% and 60%.
- Plaintiffs to have costs of the case and interest on the award and costs, shared by the defendants in the same proportions.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 223 of 2000
JOHN MUHANDA MUYA…………………...1ST PLAINTIFF
FAITH WANJIRU MUYA…………………….2ND PLAINTIFF
VERSUS
STANLEYK. KURIA…………………….….1ST DEFENDANT
MONICA WAITHERA MUGOTO……...….2ND DEFENDANT
JUDGMENT
The plaintiffs are father and widow respectively of the late Simon Muya Muhanda (the deceased).They bring this suit under the Law Reform Act Chapter 26 of the Laws of Kenya and the Fatal Accident Act Chapter 32 of the Laws of Kenya for the benefit of the deceased estate and the dependants of the deceased respectively.
On or about30th September 1999the deceased was a passenger in motor vehicle No. KAB 150A (KAB) which was being driven by its owner, Stanley K. Kuria, the first defendant along Naivasha/Nairobi road. At a spot nearOasisAcademyalong that road, it collided with motor vehicle No. KAK 748X (KAK) which was also being driven by its owner, the late Peter Kihanda Kuria.
Neither of the plaintiffs witnessed the accident.They rely on the doctrine of res ipsa loquitur and the damage to the front of both vehicles and attribute the cause of the accident to the negligence of the drivers of both the vehicles.
The only eye witness to the accident was the first defendant, the driver of KAB.He testified that the driver of KAK left his side of the road and swerved to his (the 1st defendant’s) lane and the two vehicles collided.He said he was climbing a gentle hill at that spot and could therefore not have been driving at high speed as alleged in the plaint. While supporting that contention, his advocates submitted that in the circumstances, with the 40 bags of potatoes he was carrying there is not much he could have done to avoid the accident.They urged me to find the driver of KAK, who was driving downhill in high speed 100% liable.
The police file relating to this accident was not produced.PW3 said it was misplaced.So we do not have any independent evidence to prove the point of impact or to show KAK left its lane and went to that of KAB as the latter’s driver alleged.The accident was, however, investigated at the instance of the insurers of KAB.The Investigation Report Ex. D1 has photographs of both vehicles.The extensive damage is to the cabins of both vehicles suggesting a head on collision.If indeed the driver of KAK left his side of the road and went to the lane of KAB, I do not accept the first defendant’s contention that there was nothing he could do to avoid the accident. In the circumstances I find the first defendant 40% and the second defendant 60% liable.
On quantum, though the 31 years old deceased was self employed, I do not accept counsel for the plaintiffs’ recommendation of a multiplier of 30 years.He could have died of other causes.He could also have been prevented from earning any income by other reasons.Taking into account the imponderables of life I find a multiplier of 20 years reasonable.
It is not in dispute that the deceased was 31 years old at the time of his death and he was married with two very young children.Both his father and widow said he was a farmer and a businessman.At the time of his death he was transporting potatoes from his father’s farm in Nyandarua for sale in
Nairobi.I accept his widow’s testimony that he also kept dairy cows and that he earned a total of Kshs.15,000/- per month from his economic activities.
With a multiplier of 20 years, the loss of dependency works to Kshs.2,400,000/= (15,000 X 12 X 20 X 2/3).
The plaintiffs produced receipts to support the claim of Kshs.26,700/- as funeral expenses.I find that sum proved and I award it.In the upshot I enter judgment for the plaintiffs against the defendants the said proportions in the sum of Kshs2,546,700/= made out as follows:-
1. Pain and suffering=Kshs.20,000. 00
2. Loss of expectation of life=Kshs.100,000. 00
3. Loss of dependency=Kshs.2,400,000. 00
4. Special damages=Kshs.26,700. 00
TOTAL=Kshs.2,546,700. 00
The plaintiffs shall also have the costs of this case and interest on both the said award and costs to be shared by the defendants along with the decretal sum in the above proportions.
DATED and DELIVERED this 17th day of June, 2010.
D. K. MARAGA
JUDGE.