[2022] KEHC 12042 (KLR)

Karanja & another (Suing as the legal representatives of the Estate of Alex Karanja Ndung'u - Deceased) v Ndung'u & 4 others (Civil Case 2 of 2020) [2022] KEHC 12042 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12042 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case 2 of 2020

MM Kasango, J

June 16, 2022

Between

Mary Nungari Karanja

1st Plaintiff

Denis Ndinu Ndurungi

2nd Plaintiff

Suing as the legal representatives of the Estate of Alex Karanja Ndung'u - Deceased

and

Paul Ndung'u

1st Defendant

Simon Wamwaki Ithuthu

2nd Defendant

Paul Ng'ang'a Ngugi

3rd Defendant

Joseph Kinyanjui Kuria

4th Defendant

Lilian Njoki Muhoro

5th Defendant

Judgment

1. The plaintiff, Mary Nungari Karanja, with her co-plaintiff has filed this case against the five defendants seeking judgment for general and special damages due as a result of the accident which led to the injury and death of Alex Karanja Ndungu, deceased. The deceased was the husband of the plaintiff.

2. Default judgment was entered on March 5, 2021 against all defendants who failed to file a memorandum of appearance within the prescribed period. This case proceeded by way of formal proof on September 2, 2021.

3. The accident occurred on April 16, 2017. On that day, the deceased was driving vehicle registration No KCF 624P. Present in that vehicle was the plaintiff, his wife and their three children. They were travelling from Nairobi to Gilgil in Nakuru. The plaintiff in her written evidence stated:-“At Kiboko, in Limuru area, while my husband was still driving towards Gilgil, I saw a yellow truck Mitsubishi Canter registration number KBX 924R suddenly veer to our side of the road and hit us on the right side of the vehicle by the driver’s door.”

4. The plaintiff stated that the impact of the collision was more on the driver’s side where the deceased was seated. She further stated that the deceased was severely injured. She stated:-“My husband sustained more severe injuries and I remember seeing him slumped on the steering wheel before I opened the door on my side of the vehicle got out and removed the children who were on the back seat of the car.”

5. The deceased was admitted at the Aga Khan Hospital in Nairobi. The deceased was at the intensive care unit of that hospital. He was treated at that hospital until August 31, 2017 when he succumbed to his injuries.

6. The deceased was an advocate of the High Court of Kenya running his law firm, Ndungu Karanja & Company Advocates. The plaintiff in evidence stated:-“The deceased worked hard to ensure that his family was well taken care of. As a result of his death, we have suffered loss and damage.”

7. The medical expenses for the treatment of the deceased amounted to Kshs 22,500,000.

8. The plaintiff’s claim in special damages is Kshs 22,500,000 for medical expenses; Kshs 2,000000 funeral expenses and Kshs 950 for obtaining a grant of probate.

9. The deceased dependants are; plaintiff, the wife and three children; ANK a son who at the time of filing suit was 14 years old, MNK a daughter 10 years old and EMNK 7 years old son.

10. The deceased at the time of his death was 44 years old.

Analysis 11. The interlocutory judgment having been entered against all the defendants, this court is not called upon to determine liability for the accident. The defendants bore 100% liability on entry of interlocutory judgment. What is before court for determination is quantum. I will be guided by the finding in the case; H Young & Co EA Limited v Lawrence Ayako Orero Legal Representative of The Estate of cornel moemi (Deceased) & another [2019] eKLR.“The court in Beatrice Wangui Thairu v Hon Ezekiel Barngetuny & another Nairobi HCCC No 1638 of 1988 (UR) set out the guidelines applicable in assessment of damages under the Fatal Accidents Act as follows:-“The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase (sic). In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

12. This claim is brought as provided in section 4(1) of the Fatal Accidents Act which provides:-“Every action brought by nature of the provisions of this act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused [and shall ….. be brought by and in the name of the execution or administrator of the person deceased] …”

13. The plaintiff other than stating that the deceased’s dependents were herself the wife and three children, she failed to state the earning of the deceased. There is evidence that the deceased who was 44 years as at the date of death had on June 26, 2014 registered a business name of Ndungu Karanja & Co Advocates.

14. The plaintiff in evidence stated that the deceased would have worked upto the age of 65 years. For a practising advocate, that estimation of working life is in my view reasonable. The multiplier of 21 years is hereby allowed.

15. The plaintiff having not proved the deceased’s earnings, I will be guided by the Court of Appeal decision in the case Jacob Ayiga Maruja & another v Simeon Onayo [2005] eKLR, along these lines:-“In our view, there was more than sufficient material on record from which the learned judge was entitled to, and did draw the conclusion that the deceased was a carpenter and that his monthly earnings were about Shs 4,000/= per month. We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.”

16. In that regard, I will take the deceased’s earning to be Kshs 50,000 per month.

17. The plaintiff is an accountant. Accordingly, she would have made a substantial contribution to the household needs. I therefore find 1/3rd dependency ration to be reasonable.

18. Taking the above in mind, I find the plaintiff is entitled to Kshs 4,20,000 for loss of dependency made up as follows:-Kshs 50,000 x 21 years x 12 x 1/3 = Kshs 4,200,000.

19. Under Fatal Accident Act the plaintiff is entitled for damages for pain and suffering. The deceased died after 4 months of hospitalization. Undoubtedly the deceased’s suffering was prolonged and accordingly, I am of the view an award of Kshs 1 million is reasonable. See the case of Francis Odhiambo Nyunja & 2othersv Josephine Malala Owinyi (suing as the Legal Administrator of the Estate of Kevin Osore Rapando (Deceased) [2020] eKLR as follows:-“12. On damages for pain and suffering, the court, in Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] eKLR, observed:‘It is settled law that the personal representative of a deceased person can recover damages that the deceased could have recovered had he survived and which were a liability on the wrong doer at the date of death. This was enunciated in the celebrated decision of Lord Green in Rose v Ford.’”

20. The plaintiff claim in special damages, proved with receipts but I will reduce it because I am of the view the claim of Kshs 2 million for funeral expenses is excessive.

Disposition 21. Judgment is hereby entered for the plaintiff against the defendants jointly and severally for:-a.Special damages - Kshs 23,500,000. b.General damages for loss of dependency - Kshs 4,200,000. c.Pain and suffering - Kshs 1,000,000. Total = Kshs 28,700,000

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court assistant : MouriceFor the plaintiffs: Ms WanjalaFor the 1st defendants : N/ACOURTJUDGMENT DELIVERED VIRTUALLY.MARY KASANGOJUDGE