[2003] KEHC 25 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI(MILIMANI LAW COURTS)

CIVIL CASE 1202 OF 1992

KINYOSI KITUNGI.......................................................................... PLAINTIFF

VERSUS

SIMON OKOTH OBOK & ANOTHER...................................DEFENDANTS

JUDGMENT

This suit was filed in this High Court of Kenya Nairobi on the4th of March 1992 by M/s J.K. Kinyanjui and Co. advocate. It is a suitagainst Simon Okoth Obok an agent and or servant of M/s Nyao BusService Corporation, the 1st and 2nd defendants respectively.

On the 2. 1.91 Nthenya Kinyesi, a 16th year old daughter ofKinyosi Kitungu (the plaintiff herein) was involved in a traffic accidentwhereby the 1st defendant had lost control of a bus when it lostcontrol and rolled along the Nunguni/salama road. As a result of thesaid accident Nthenya Kinyosi sustained fatal injuries.

A) DELAY OF CASE AND JURISDICTION

The defendants entered appearance and filed defence throughM/s Onyancha Bwo'mote Congo & Co. Advocates. Between 1993 (when summons for direction were taken up) and the year 2000 noaction on this file was taken. In the year 2000 M/s Agina andAssociates Advocates came on record by a notice of change of advocates (21. 11. 00). The 2nd defendant went into liquidation. The official receiver did not officially come on record until November 2003. It is imperative that there be filed a notice of change of advocate when this occurs. Order III CPR requires to be complied with when they take over the cases to ensure that the correct representation is reflected.

On the 15. 10. 03 the suit came up for hearing before Ouna J.who had been assigned temporary duties as the judge handling therunning down cause. He heard the evidence of the plaintiff anddirected that the parties file written submission.

Justice Ouna was not available to further proceed with thismatter. The then duty judge (Nyamu, J) placed this matter before meon submission on quantum. I am permitted to hear this case underorder 17 r 10 CPR.

B) LIABILITY

When the matter was placed before me I realised that the issueof liability had infact not been noted by the parties in the file. The parties nonetheless had agreed on liability at 100% against thedefendants — jointly and severally. Judgment was accordinglyentered.

B) QUANTUM

The issue left for determination is that of quantum. The partieshad entered into agreed issues on 14. 7.03 and filed the same on28. 7.03. The earlier issues of 21. 11. 00 were not agreed to.

The issues left for determination concerning quantum are:-

No.4. What was the age of the deceased prior to her demise?

No.5. How much money was the deceased earning per month?

No.6. Who are the dependants of the deceased?

No.8 Has the estate and dependants of the deceased sufferedloss, injuries and damages?

No. 10. Which party is to bear the costs of this suit?

I: Fatal Accidents Act ClaimIssue No.4. What was the age of the deceased prior to her demise?

The evidence before the court was that at the time of demisethe deceased was aged 16 years old. I would indeed accept this as the correct age as per the death certificate. The plaintiff put her ageat 17 years old.

Issue No. 5

The plaintiff stated that the deceased was looking for a job.There is therefore no evidence that the deceased was employed.She had attained a level of education up to Std. 8.

Issues No.6

This issue deals with the dependants of the deceased.

It is therefore a claim under the Fatal Accidents Act. Under thisclaim no letters of grant is required in order to file suit. The lawrequires that a dependant (described under section 4 of the FatalAccidents Act) as a child, spouse, or parents may sue forcompensation.

In this case the plaintiff sued under this act Section 8 thoughrequires that the dependents must be particularized in the plaint. Noparticulars are disclosed save the words "to be furnished later". Noamendments was done to reflect who the dependents are. I woulddismiss this claim as not having been pleaded and particularised inthe plaint.

I am required to give a possible award by law.

At the age of 16 — 17 years old a minor is not a person to havedependents. I nonetheless recognize a parent’s expectation of theirchildren as expressed by Nyarangi JA in the case of -Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters &others (supra)

The plaintiff was to prove the issue of dependency. Thedeceased was unemployed. I therefore have no multiplicand. I couldhave used the minimum wage of Ksh.3, 000/- per month. She being16 years say 17 years would have later gotten married and workedperhaps to the age of 55 years old. The multiplier (55 - 17 years =38 say 35 years) Thus 12 x 35 x 3,000/- x 2/3rd Ksh.840. 000/-

I would have discounted Ksh.40, 000/- being accelerated lumpsum payment. The total being Ksh.800,000/- that i would havepossibly awarded under the Fatal Accidents Act. The claim standsdismissed.

||: The Law Reform Act

Issue No. 8

Before a claim under the Law Reform Act is entertained theremust be locus to sue on the part of a plaintiff. In the case law of:-

Trousitik Union international & another v Jane Mbeyu & another CAApaloo C.J, Kwach, Cockar the court of appeal Omolo, Tunoi, and JJA.

Set out the law that a suit by an estate of a deceased personmust ensure before filing suit that the plaintiff holds letters of grant orletters of administration intestate.

In this case, the plaintiff filed suit in 1992. He produced duringthe trial the Limited Grant of Letters of Adminsitration an litem datedthe 26. 4.01.

This is indeed fatal to the suit. Namely: the letters were to betaken out before the suit was filed and not after. It thus means thatthis court had no jurisdiction to entertain the suit and as such theclaim be and is hereby struck out. What the plaintiff should havedone is to have withdrawn the claim and filed a fresh claim afterobtaining leave of the court to file the suit out of time and afterobtaining the said Limited Letters of Grant.

The law requires that I state what would have been my possibleaward.

I Law Reform Act.

i) Pain and sufferingI would not have awarded any award under this head. The reasons being is that the deceased died "instantaneously" see the evidence of PW1.

ii) Loss of expectation of life.I would have awarded a conventional sum of Ksh.70, 000/-.

ii) Lost yearsThis is the correct claim to be made for a minor. The case of: -Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & Others (supra) Deals with this indepth.

The Plaintiff required to bring evidence of a career Person who is able to describe what the deceased would have embarked infuture. Did she want to be a teacher'? A. doctor'? A pilot? Then the respective career persons would come to give evidence to be able toknow how much she required to earn in future.

As it stands the deceased was unemployed. The lost yearswould have been based on the minimum wage (which is not really anideal situation to deal with due to the lack of evidence) Thus 3,000 x12 x 35 x 2/3 = Ksh.840, 000/-

If the two claims under the Law Reform and Fatal Accidents areawarded the sum is taken into account. The higher sum only isawarded and not both. I struck out this claim.

Ill: Special Damages

The parties agreed to Special Damages of Ksh.5,120/- which isaccordingly awarded as prayed.

Obiter Dictum

The documents produced in this trial were not the original. It isnoted that as far as possible the original documents ought to beproduced. Where the original is not available an explanation by awitness must be given. The copies are to be certified as a truedocument of the original.

In this case the advocate of plaintiff stated his former advocatehad closed his office and is out of the country. This is not evidencebut a statement from the bar.

I enter judgment on the proved claims.

In Summary:

i) Female minor aged 16-17 years old in 1991.

ii) Bus passenger - road traffic accident

iii) Injuries- Fatal

iv) Liability (agreed) 100% against the two defendants jointly and severally. The 2nd defendant being vicariously liable,v) Quantum

A) Law Reform Act: - NilPossible award:-

i) Pain and suffering - Nil

ii) Lost years

Ksh.3, 000/- x 12 x 35 x 2/3rd Ksh.840, 000/-iii) Loss of expectation of life Ksh.70, 000/-

B) Fatal Accidents Act NilPossible Award

Loss of dependency

Ksh.3, 000/- x 12 x 35 x 2/3rd Ksh.340, 000/-

Less discounted Ksh. 40. 000/-

Ksh.800,000/-

Subject to apportionment

B) Special Damages

(agreed) Ksh. 5. 120/-

Total Ksh. 5 1?0/-

I award the costs of this suit to the plaintiff; I award interest onSpecial Damages from the date of filing suit at court rates.Dated this 19th day of November, 2003 at Nairobi.

M.A. ANG'AWA

JUDGE

Agina & Associates advocates for the plaintiff

Tabitha Mwaniki Official Receiver & Provisional Liquidator for the defendant