[2007] KEHC 3437 (KLR)
The court found that the plaintiff failed to discharge the burden of proof required to establish negligence on the part of the defendant or to prove that the death of the deceased was caused by injuries sustained in the alleged accident. The only evidence presented was from the plaintiff, who was not present at the...
Source-derived case information.
- Citation
- [2007] KEHC 3437 (KLR)
- Parties
- Plaintiff: Kariuki John Ng'ang'a (substituted by widow); Defendant: Stephen Munene Kigundu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 48 of 1998
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Interlocutory Judgment Entered for Non Appearance
- Outcome
- claim dismissed
- Legal Topics
- Fatal Accidents, Negligence, Damages Assessment, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki John Ng'ang'a (substituted by widow)
Plaintiff
Stephen Munene Kigundu
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Interlocutory Judgment Entered for Non Appearance
Legal Issues
- 1 Whether the defendant was negligent and liable for the accident resulting in the deceased's death.
- 2 Whether the plaintiff proved causation between the accident and the death of the deceased.
- 3 Whether the plaintiff is entitled to special and general damages under the Fatal Accidents Act and Law Reform Act.
Ratio Decidendi
The court found that the plaintiff failed to discharge the burden of proof required to establish negligence on the part of the defendant or to prove that the death of the deceased was caused by injuries sustained in the alleged accident. The only evidence presented was from the plaintiff, who was not present at the scene, and no independent witnesses, such as the investigating police officers or medical experts, were called to testify. The medical evidence did not conclusively link the death to the accident. In the absence of sufficient evidence of negligence and causation, the court was compelled to dismiss the plaintiff's claim for both special and general damages.
Court Disposition
claim dismissed
Orders
- The plaintiff's suit is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 48 of 1998
KARIUKI JOHN NG’ANG’A…………………………………PLAINTIFF
VERSUS
STEPHEN MUNENE KIGUNDU……………..…………DEFENDANT
JUDGMENT
The Plaintiff amended the plaint on 12/6/99 substituting herself in place of her deceased husband who died after being hit by a motor vehicle on Makutano/Sagana Road on 15/1/1998. He was a police officer on duty at Makutano. The plaintiff was not present when the accident occurred but the deceased was hospitalized at Jamii Hospital at Karatina. According to information obtained at police station she came to know that the driver of the motor vehicle KAE 882 V was the Defendant Stephen Munene Kigundu who was listed as owner in the police Abstract Exhibit 1. The deceased was treated by Dr. M.M. Kibuku who made a letter/report of how he treated the deceased from 15. 1.98 until he died on 28/10/98 (Exhibit 3). He certified that the deceased sustained severe head and chest injuries. The deceased was also treated at Karatina Government Hospital. Death Certificate was exhibited (Exh.2) showing that the death occurred on 30/10/98 as a result of Cardiorespiratory Arrest and L. Pneumonia. Thereafter the plaintiff obtained a grant of representation which is also exhibited. The plaintiff claims special damages.
Police Abstract - Sh.100/-
Medical Report - Shs.900/-
Medical treatment - Shs.93,072/-
Funeral expenses - Shs.20,000/-
Death Certificate - Sh.50/-
She also sought General damages pursuant to the Fatal Accidents Act and Law Reform Act.
On 21/2/2005 on application interlocutory Judgment was entered against Defendant who never entered appearance or filed a defence. The hearing proceeded to formal proof. The plaintiff stated that deceased had 3 children as listed on the plaint and that her husband who earned net sum of Shs.7,186/= used to support his family. At his death he was aged 47 years. I find in this case there is no evidence to support the allegation of negligence. There is no other evidence produced other than that of the plaintiff who was not at the scene at the material time. The traffic police who availed the Police Abstract were not called to give evidence. The deceased having been a policeman his employer may have carried out some investigations. Also there is no medical evidence to show what injuries were incurred by the accused and how later several months after the accident it is said the death occurred. There is no evidence to prove that the death was occasioned by injuries suffered in the accident.
I have come to the conclusion that the plaintiff did not make serious effort to prove her case.
I am therefore bound to dismiss the same.
Dated this 30th October, 2007.
J. N. KHAMINWA
JUDGE
30/10/2007
Khaminwa – Judge
Njue – Clerk
Ms Ndorongo HB for Plaintiff
Read in open court.
J. N. KHAMINWA
JUDGE