[2004] KEHC 2087 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 621 OF 1994

KHAMIS RAJAB:::::::::::::::::::::::::::::::::::::::: PLAINTIFF

V e r s u s

KENYA PORTS AUTHORITY ::::::::::::::::::: DEFENDANT

J U D G M E N T

This case arises out of Industrial Accident. The Plaintiff was an employee of the defendant at the port of Mombasa. On 25. 2.99 the parties entered consent as to liability. The defendant admitted liability on the basis of 100%. The matter is now before the court for formal proof and assessment of damages. The evidence for plaintiff who died on 30. 3.95 after suit was filed was given by his widow, PW1, who said that the plaintiff was admitted at Pandya Hospital for one month. Was unconscious and was never able to walk properly or do anything for himself. The medical report shows that he could walk with a drop . He was discharged after one month and the widow took him home. He later developed epilepsy and was confined to bed all the time. He became bedridden and was dependant on his family for assistance with personal matters. He was retired and put on pension. Before he took employment he used to work as a cook. He would have taken up such a job after retiring. She said he used to earn 3000/- evidence of widow as not disputed. There is also evidence that while sick at home the deceased used to visit clinic once a month and the family used to hire a taxi for transport.

In his submissions counsel for the plaintiff proposed for loss of expectation of life Shs. 100. 000/- pain and suffering for a period of 2 years before death. On the authority of Civil Suit no. 66 of 1997 Shah Commissioner of Assize in this case the plaintiff died after 8 months of pain and suffering Shs.300. 000/- was awarded. In this case Mr. Anjawalla asks for 1 million.

Loss of dependency for period of 10 years X 2/3 X 3000 X 2 = 240,000/-.

Counsel for defendant suggests for dependancy multiplier at the age of 57 should be 5 years instead of 10 years but for cooks work l am of the view that everything being equal a cook can continue working to very advanced age. Therefore the 10 year multiplier will bring the age to 67. This is quite reasonable age for a cook. Special damages claimed are not objected to and the same are awarded in the sum of Shs.3500/- on the whole the damages under Law Reform Act for the benefit of the estate fall under the following heads :

a) Loss of expectation for life.

b) Pain and suffering and loss of amenities before death.

c) Special damages

Under the Fatal Accident Act there is claim by dependants for loss of dependency namely loss of income they received from deceased in his lifetime. The evidence available is that as a cook he would have earned Shs. 3000/- per month. This is not disputed. During the time the deceased was ill the widow said that they were receiving money from the defendant by way of compensation and after retirement pension was paid. However payment ceased after death. From the evidence available and guided by authorities submitted l find that the claim of loss of expectation of life a sum of 100. 000/- is sufficient. For pain and suffering and loss of amenities for 2 years an award of 600,000 adequate to compensate for pain and inconvenience suffered for the period of 2 years, considering that no amount of money can really compensate for pain and suffering in any case. Special damages not disputed amount o Shs.3500/-. For dependency l have already said that the multiplier of 10 years is not too long for a cook and therefore the dependency is Shs.240,000/- being 2/3 of income for 10 years. The total therefore amounts to:

Pain and Suffering 600. 000

Loss of expectation of life 100. 000

Dependancy 240. 000

Special Damages 3. 500

943,500/-

Judgment is therefore entered for the sum of Shs. 943,500/- plus interest and costs.

Dated this 31. 5.2000.

Read in the presence of Mr. Anjarwalla.

J. KHAMINWA

COMMISSIONER OF ASSIZE