[2017] KEHC 4022 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 507 OF 2009

LILIAN OSUNDWA AND TOM NICHOLAS MULAMA

(Suing as the administrators of the estate of

James Obinda Itindi (DECEASED).......................................PLAINTIFF

-V E R S U S –

FLEX AIR CARGO LIMITED.................................................DEFENDANT

JUDGEMENT

1) The plaintiffs filed this suit as administrators of the estate of James Obiunda Itindi (deceased) by way of plaint filed on 25th September 2009 and amended on 11th October 2012. They bring this actionfor the benefit of the dependants of the deceased under the Fatal Accidents Act (Chapter 32, Laws of Kenya) and for the benefit of the estate of the deceased under the Law Reform Act. They were granted letters of administration by the Family Division of the High Court at Nairobi on 8/6/2009.

2) On 2/05/2008 the deceased was lawfully engaged in the employment of the defendant as an air pilot flying aircraft no. 5Y, Fly model B1900C from Wau to Juba, Southern Sudan when the aircraft crashed en-route to Rumbek and as a result he sustained fatal injuries that caused his death. The plaintiff sought for judgment against the defendant for;

a. Damages under both the Fatal Accident Act and the Law Reform Act.

b. Special damages in the sum of kshs.22,275/=

c. Interest at court rates from the date of filing this suit until judgement and thereafter.

d. Interest on the decretal amount from the date of judgement until payment in full.

e. Costs of this suit and interest thereon.

f. Such further and/or other relief as this honourable court may deem fit.

3) The defendant filed a defence dated 29/10/09 and amended on 4/11/09 to deny the plaintiffs; claim.

4) The defendant’s advocates withdrew from acting and the defendants directors were duly served with the hearing notice. The Court then went ahead to grant the plaintiffs leave to proceed with to the hearing exparte on the 29/8/16 when the defendant failed to turn up for the hearing.

5) Lilian Osundea, PW1 the deceased ‘s widow testified in court and said that on 18/5/12 she signed a witness statement file on 9/10/12. PW1 told this court that deceased was the sole bread winner earning a monthly gross income of USD5,500/= and USD40 per diem per day untaxed. The deceased was aged 44 at the time of his death and was a pilot for over 10 years. At the time of death he was an employee of Flex Air Cargo Ltd and used to fly to and from Southern Sudan. That her prayer was for judgment as prayed in the plaint.

6) There are written submissions by the plaintiff and bundle of documents in support of the plaintiff’s (PW1) statement which I shall consider as well as the applicable law. The issues for determination before this court are:

i. Who was liable for the accident?

ii. What is the quantum of damages payable.

7) The plaintiff in her testimony in court testified that she was married to the deceased and blessed with three children. The deceased was a trained and qualified pilot by profession and by the time of death he had been flying for over ten years. The deceased was an employee of the defendant and indeed the passenger manifest states he was aboard the aircraft which crashed as a pilot.

8) According to the reports into the plane crash, it is recorded that there was a double engine failure as a result of which the aircraft would not be controlled even by the best of pilots, hence the crash which claimed the life of the late James Obinda Itindi.

9) The plaintiff tendered evidence of reports on the plane crash which indicated that the aircraft had double engine failure as a result it could not be controlled even by the best pilots.

It’s the plaintiff submission that it was the defendant’s duty to ensure a safe work system to its employee. By failing to maintain its aircraft, the defendant was therefore negligent and should therefore be held 100% liable.

The plaintiff relied on the case of Sabina Adhiambo Odong -vs- Ruth Wangui & Another unreported where the court held as follows:

“Where the circumstances of an accident give rise to the inference of negligence, then the defendant in order to escape liability has to show that there was a probable cause of the accident which does not connote negligence.”

It therefore means that in the absence of such an explanation from the defendant to show the probable cause for the accident, which defendant failed to appear or call witnesses to prove to the contrary, the plaintiffs are entitled to judgment on liability against the defendant.

10) On the issue of quantum, the plaintiff submitted that she sought for damages under the Law Reform Act and the Fatal Accidents Act. The plaintiff submitted that damages will be restricted to the financial loss occasioned to the deceased dependants on account of his death, that is to say loss of the net contribution of the deceased towards the support of his dependants which would have been derived from his future income. The deceased would have worked upto the age of 60 years or more, he died at the age of 45 years. 15 years short of 60 years, thus he lost 15 years of his working life. The plaintiff relied on the case of Sarah Awinja Babu –vs- Attorney General High Court Civil Case no. 915 of 1998 where it was held that:

“Damages under the Fatal Accidents Act will be part of the future income lost to the deceased and must therefore be taken into account if awarded. What will remain to be awarded for lost years will thus be the one third of his net income that the deceased would have expended on himself. This is so because I have determined elsewhere that the dependant’s dependency was two thirds of the deceased’s net income. As will be seen below, I have determined the multiplier to be ksh.110,000/= and the multiplier to be 18 years thus damages for lost years will thus bekshs.110,000x12x18x1/3=7,920,000/=”

11) It’s the plaintiffs’ submission that the rate of dependency of the deceased family was two thirds of his net income and urged this court to hold as such. The plaintiff asked this court to make an award of ksh.39,814,440/= tabulated as follows:

331,787x12x15x2/3=39,814,440/= for loss of dependency.

12) The plaintiff submitted that the sum of 100,000 will suffice for general damages for pain and suffering to the deceased before succumbing to the injuries of the accident. For loss of expectation of life, the plaintiffs asked for a conventional figure that that court has been awarding of 100,000/=.

13) Special damages of 22,600 were specifically pleaded and strictly proved.

14) In the end, I enter judgement in favour of the plaintiff and against the defendant as follows:

1. General damages for pain andsuffering ksh. 100,000/=

2. General damages for loss ofexpectation of life ksh. 100,000/=

3. Damages for loss of dependency ksh.39,814,440/=

4. Special damages ksh. 22,600/=

5. Total ksh.39,837,040/=

6. Costs of the suit.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

............................................ for the Applicant

............................................. for the Respondent