[2007] KEHC 2188 (KLR)
The court found that the plaintiff had formally proved her case on liability, as the defendant failed to enter appearance or file a defence, and the evidence established that the accident was caused by the defendant's negligent driving. The court adopted the deceased's net monthly income as the multiplicand and a...
Source-derived case information.
- Citation
- [2007] KEHC 2188 (KLR)
- Parties
- Plaintiff: Leah Wanjiru Ashiali (As Administratix of the Estate of Nelson Ashiali Omashebela); Defendant: Robert Nyakamba Ondiek
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 684 of 2004
- Procedural Posture
- Civil Case / Formal Proof Judgment After Interlocutory Judgment
- Outcome
- Judgment for the plaintiff against the defendant for KES 3,160,430 with costs and interest.
- Judges
- JL Osiemo
- Legal Topics
- Fatal Accidents, Negligence, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wanjiru Ashiali (As Administratix of the Estate of Nelson Ashiali Omashebela)
Plaintiff
Robert Nyakamba Ondiek
Defendant
Procedural Posture
Civil Case / Formal Proof Judgment After Interlocutory Judgment
Legal Issues
- 1 Whether the defendant was liable for the accident resulting in the death of the deceased.
- 2 What is the appropriate quantum of damages payable to the estate of the deceased.
Ratio Decidendi
The court found that the plaintiff had formally proved her case on liability, as the defendant failed to enter appearance or file a defence, and the evidence established that the accident was caused by the defendant's negligent driving. The court adopted the deceased's net monthly income as the multiplicand and a multiplier of 20 years, consistent with precedent for a deceased aged 36. The court awarded damages for loss of dependency, loss of expectation of life, and special damages, finding the amounts claimed reasonable and supported by evidence. The total judgment sum was KES 3,160,430, with costs and interest to the plaintiff.
Court Disposition
Judgment for the plaintiff against the defendant for KES 3,160,430 with costs and interest.
Orders
- Plaintiff awarded KES 3,040,280 for loss of dependency.
- Plaintiff awarded KES 100,000 for loss of expectation of life.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 684 of 2004
LEAH WANJIRU ASHIALI (As Administratix of the Estate of NELSON ASHIALI
OMASHEBELA)………………………………….....….……….………..…..PLAINTIFF
VERSUS
ROBERT NYAKAMBA ONDIEK…………………...……………….........DEFENDANT
JUDGMENT
This claim arises out of a traffic road accident which occurred on 2nd April 2003 along the Nairobi-Thika Road involving a motor vehicle registration Number KAG 959J in which the deceased NELSON ASHIALI OMASHEBELA was travelling lawfully as a fare paying passenger. As a result of the said accident the deceased sustained severe injuries and died on the spot. The Plaintiff brought this suit against the Defendant in her capacity as the Administrator of the Estate of the deceased. The Defendant was served but he did not enter appearance nor did he file a defence. The Plaintiff applied and obtained interlocutory judgment on 2nd June 2005 and the matter was set down for formal proof.
The Plaintiff in her evidence told the court that she was married to the deceased on 5th August 1995 and they were blessed with 2 issues of the marriage namely Exra Kumbeki Ashiali born on 8th October 1996 and Timothy Ambutsi Njoroge Ashiali born on 12th March 1999.
The deceased was traveling in the motor vehicle registration Number KAG 959J when it was involved in an accident as a result of which he died. She blamed the accident wholly on the Defendant who drove the said motor vehicle at an excessive speed and without due care and attention and as a result of which he lost control and the motor vehicle rolled several times. The deceased was aged 36 years when he died and was earning Shs.19,001. 75 net pay per month.
From the evidence adduced I am satisfied that the Plaintiff has formerly proved her case on liability. The next issue is the assessment of damages. Special damages were proved at Shs.20,150/=.
The deceased’s net income per month was Sh.19,001. 75. this is the figure to be employed as a multiplicand and not Shs.26,000/= which was the gross salary as suggested by the Plaintiff’s advocate. It is also not in dispute that the deceased was 36 years at the time he met his death. The Plaintiff’s advocate suggested that a multiplier of 20 was reasonable and cited the case of ELIJAH OLE KOOL VS. GEORGE IKONYA THUO – NAIROBI HCCC NO. 1299 OF 1998where the Plaintiff was aged 36 years at the time of his death and a multiplier of 20 was adopted. I agree with the Plaintiff’s advocate that a multiplier of 20 years is reasonable in the circumstances of this case. I will also adopt the usual dependency rate of ?. The sum to be awarded under the head loss of dependency will therefore work out as follows:- Sh.19,001. 75x20x12x?= Shs.3,040,280/=.
The Deceased died on the spot and therefore no damages awardable under the heading pain and suffering. Under the heading loss of expectation of life the advocate for the Plaintiff suggested a figure of Shs.120,000/=. But in my considered opinion an award of Shs.100,000/= would be reasonable for loss of expectation of life.
I therefore enter judgment for the Plaintiff as follows:-
(a) Loss of dependency - Sh.3,040,280/=
(b) Loss of expectation of life - Sh. 100,000/=
(c) Special damages - Sh. 20,150/=
Accordingly there shall be judgment for the Plaintiff and against the Defendant for Shs.3,160,430. 00 with costs and interest.
Dated and delivered at Nairobi this 11th day of July, 2007.
J.L.A. OSIEMO
JUDGE