[2003] KEHC 28 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 2068 of 1998

KELLEN WANJERI KIMANI............................................. PLAINTIFF

VERSUS

WAWERU MACHARIA................................................... DEFENDANT

JUDGMENT

This indeed is a most tragic case. It is a running down causewhereby Kimani Chege (now deceased) was involved in an accidentas pedestrian.

From the evidence before the court the facts of the case is asfollows. On the 11th day of July 1997 at 3. 00 p.m.Dominic Masaku Nyamai, (PW2) an eye witness in this case statedthat he was waiting along Jogoo road when he spotted Kimani Chegewhom he knew before as his landlord. He greeted him and theyexchanged pleasantries. Then Kimani Chege told him that he wasfrom the Makadara law courts and was heading to the industrial areaprisons. Kimani Chege then crossed the Jogoo road and stood at anisland. There were buses and public service vehicles on the otherside of the road as you would head towards town.

A white Peugeot pick up came at a high speed from theOutering side and knocked Kimani Chege. He fell onto the road. Thepick up vehicle stopped. Kimani Chege had sustained injuries to hisleg, armand head. He was carried and placed onto the back of thepick up. Dominic accompanied him to Kenyatta National Hospital. At the time Dominic was unemployed and was thus looking for a job. Hetherefore gave no reasons why on arrival at the hospital he did notstay with Kimani Chege. He instead left him at the casualty and wentaway.

Kimani Chege was admitted to the Kenyatta National Hospitalcasualty number 41303/97. He indeed had no money for histreatment. He was admitted for a period of almost one month.

What occurred at the casualty department of the KenyattaNational Hospital was indeed interesting. The driver who knockeddown Kimani Chege had no driving licence. He recorded his detailsas Harrison Irungu ID Card 7183524, P.O. Box 8342, Nairobi. Hethen recorded that he was a good Samaritan who brought KimaniChege to hospital. The Registration of his vehicle being KTR 240.

The police had received a call of the accident. When theyvisited the scene they found no one. When they visited the hospitalthey found Kimani Chege still alive. They had received informationthat the vehicle that knocked down the victim was Registration KTR997. The police began to investigate and trace the driver of thevehicle. They discovered that all the information given was false.Namely the ID card holder was non-existence, the box number was non existence. All they had was the vehicle registration number KTR997. This did not match with the Registration KTR 240 later alteredto read figure 997. That is, KTR 240 - 997.

The police traced the motor vehicle KTR 997 to one WaweruMacharia as the registered owner. Waweru Macharia was thencharged with the offence of Causing Death by Dangerous Drivingcontrary to section 46 of the Traffic Act Cap. 403, Failing to Report anAccident, contrary to section 73 (b) of the Traffic Act. Cap.403 Lawsof Kenya

as tried and acquitted on the grounds that the prosecutionwere unable to establish that Waweru Macharia was indeed the verydriver who actually caused the accidents.

The identity of the motor vehicle was also doubtful.

Before the finalisation of the lower court case, the plaintiff hadfiled a suit against Waweru Macharia. This is normal as in manyinstances, due to the Limitation of actions expiring, it would always becautious to file suit as not to be caught up with the time limited

The parties had agreed on issues to be determined by thecourt, namely,

"1 Whether the said accident was caused by-thenegligence of the defendant?

2) Whether the deceased contributed to the cause ofthe accident?

3) Whether damages are payable and if so how much?3) Whether the plaintiffs has locus standi to instruct

these proceeding?5) Who would be condemned to pay cost of suit?"To my mind these issues appear in order but after the lowercourt trial the issues should have added the question fordetermination:-

a) "Was Waweru Macharia the driver who caused theaccident?

b) Was the vehicle that caused the accident vehicleregistration No. KTR 997?

c) Was the vehicle registration No. KTR 997 registeredin the name of Waweru Macharia?"

I believe that these additional issues are and would have beenimportant to the court for determination. (See Order 14 r 5 CPR).I would now look at the issues for determination.

1) JURISDICTION

Issue No.4 deals with the issue of jurisdiction. Namely, doesKellen Wanjeri Kimani the plaintiff herein have locus standi to institutethese proceeding. In evidence, she indeed produced limited grant ofletters of administration ad colligeda bona under section 67 (1) of theLaw of Succession Act dated the 19. 3.98. This suit was filed on3. 6.98. She is therefore the legal representative of the estate ofKimani Chege and has locus to bring this suit.

2) LIABILITY

The question of liability is dealt with in issues 1 and 2.

From the evidence before court I found that the deceasedKimani Chege was on the material day, standing to cross the Jogooroad. That a vehicle coming at a high speed indeed did knock himdown causing him bodily harm. Thereafter Kimani Chege succumbedto his injuries and died almost a month later.

This accident was caused by the negligent of the driver whodrove the vehicle in question. The defendant has maintained allalong that it is not him. That his vehicle at all times was indeedparked outside and his alibi was that he was not at the scene of the accident.

The eye witness, Dominic, told the lower court that the vehicleregistration No. was KTR 937. In this court, he said it was actuallyKTR 997. If this was so, the search of the copy of records of motorvehicle should have been produced to court. I find that this was notdone both in the lower court and in this court. It further means thatthe registered owner had not been established. This fact though wasnot an issue between the parties. The defendant indeed said and orimplied had the motor vehicle KTR 997 belonged to him but wasinfact never involved in an accident as stated by the parties.

The other witnesses said that the deceased Kimani Chege hadinformed them of the vehicle registration KTR 997 as that which ranhim down.

I believe the police should have made further investigationtogether with Dominic (PW2) the eye witness herein. That Dominicprior to the lower court trial should have been made to undergo anidentification parade to identify the defendant as the same personwho took him to hospital.

To my mind all the plaintiff in this civil suit required to do was toproduce the proof of ownership of the vehicle. The evidence thoughboth in the lower court and here is overwhelming that the records keeping at the hospital was doubtful. The minute a driver had nolicence then it required that he be detained. This was not so donewith the driver who took the deceased to hospital.

In this case I would find an accident did indeed occur. Thedriver who caused the accident was negligent and had been overspeeding therefore knocking down Kimani Chege.

The question arises as to whether that person was thedefendant. I would find this doubtful and would find that thedefendant may not have caused the accident.

I would dismiss this suit on the question of liability. Ifperchance the plaintiff had been successful on the issue of identity ofthe defendant and the vehicle being registration KTR 997, I wouldhave awarded liability at 100% against the driver and the ownerjointly and severally. The driver would have been to blame for thisaccident with the deceased making no contribution to the accident.

The issue on liability stands dismissed.

3) QUANTUM

Issue 3 - deals with the aspect of quantum. As the issue ofliability is dismissed the law requires that I compute what my award would have been, if per chance, the plaintiff was indeed successful inher case.

The claim before this court under the Law Reform Act and theFatal Accidents Act.

1) Law Reform Act

a) Pain and suffering

When the deceased Kimani Chege was admitted to hospital onthe 11. 7.97 he was found with the following injuries.

1) Fracture of the left fibula and tibia

2) Fracture of the right leg bones

3) Associated wounds on the right ankle

4) Right lung consolidated from hand

5) Congested blood in the brain — right bone- Injury to the head.

Kimani Chege talked with his relatives whilst in hospital and atthe time was mentally active. He then succumbed to these injurieson the 8. 8.97 when he died. It is uncertain whether the cause ofdeath was partially to be blamed on the hospital for not draining theblood from the brain area, in time.

I would find that the injuries indeed were sustained.

The advocate for the plaintiff and defendant relied on no caselaw. I would rely on my decision of the case on brain injury of:-

Omondi Nyerere Ambaka v Nyakwegata Bus Service

Hccc 415/92 unreported, Nairobi

Where an award of Ksh.500, 000/- was made for brain injury.

In this case the deceased suffered multiple injuries also. Iwould have awarded a fair sum of Ksh.500, 000/- for the head ofdamage of pain and suffering.

i) Loss of expectation of life.

The deceased is said to be a farmer and a civil servant. He hasgood prospects before him. I would have awarded Ksh.70, 000/- forthe head of loss of expectation of life.

ii) Lost years

The deceased was a farmer. I have no proof that he was a civilservant.

If he was, he would have 5 years to retirement. As a farmer hemay have worked longer. I would take 5 years as a multiplier. Iwould agree that he earned Ksh. 10,468/- say Ksh. 10,000/- perannum from his farming and not Ksh.21, 000/- as pleaded. I would also agree that a sum of Ksh.600,000/-, that is Ksh. 10,000/- x 5 x 12= Ksh.600,000/- would be adequate under this head.

iii) Fatal Accidents Act

The plaintiff produced the deceased's income as a farmer. Shealso produced a bank statement of the year 2000 showing the incomethe deceased had. This income though was being earned 3 yearsafter the death of the deceased. I cannot see what she has indeedlost as she is collecting the income, the accounts are in both hername and that of the deceased. I hereby reject this claim.

The dependency if proved would have been restricted to theplaintiff. The ages of the children had not been disclosed but in herevidence she only mentioned 3 to 4 children. 3 were minors at thetime of the deceased death but no birth certificate had beenproduced.

I would not have made any awarded under this claim.

II) Special Damages

The claim for Ksh.54,000/- has not been supported by anydocumentary evidence to prove the same. I find that this had notbeen proved and accordingly would not have made any award.

In Summary

1) Pedestrian male adult aged 50 years old in 1997

2) Injuries:

11. 7.97 a) Fracture left fibula and tibia

b) Fracture of right leg bone

c) Associated injuries on the rightankle

d) Injury to the lung

e) Injury to the head8. 8.97 f) Demise - Fatal

3) Liability - Nil

4) Possible Quantum

a) Law Reform Act

i) Pain and sufferingKsh.500, 000/-

ii) Loss of expectation of life Ksh.70, 000/-

iii) Lost years

Ksh.10, 000/- x 5 x 12 Ksh.600, 000/-

b) Fatal Accidents Act

Loss of dependency

c) Special Damages

Total Nil

Nil Kshs.1, 170,000/-

This suit stands dismissed.

I award the cost of this suit to the defendant.Dated this 3rd day of December, 2003 at Nairobi.

MA ANG'AWA

JUDGE

Muraguri & Muraguri Advocates for the plaintiffKaai Mugambi & Co. Advocates for the defendant