[2011] KEHC 3594 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL CASE NO.30 OF 2005

LUCY KAMBE MLAGHE……………………...1ST PLAINTIFF

ALPHONSINA BOKE………………………...2ND PLAINTIFF

VERSUS

KANYOTA TRANSPORTERS…………..……..DEFENDANT

JUDGMENT

The plaintiffs, both widows of the deceased in this claim, Jossy Chacha Sarina, have instituted this cause against the defendant, Kanyotta Holdings Limited seeking special and general damages as well as costs of the suit and interest, arising from a fatal traffic road accident which occurred along Malindi-Mombasa road on 3rd April, 2002 involving motor vehicles Registration Nos. KAL 278M – Jeep and a lorry KAN 045S. The deceased was a passenger in the Jeep which was being driven towards Malindi from Mombasa by Polcino Nicola, a British citizen who also died in the accident. The deceased was survived by ten dependants including the plaintiffs.

The plaintiffs maintain that the accident was solely caused by the negligent driving of the defendant’s driver. Their claim against the defendant as pleaded and submitted by their counsel is for:

a)Pain and suffering -Kshs.50,000. 00

b)Loss of expectation of life -Kshs. 100,000. 00

c)Loss of dependency -Kshs.5,040,000. 00

d)Special damages - Kshs.57,150. 00

Total- Kshs.5,247,150. 00

I will revert to this claim later suffice to state that the circumstances leading to the accident are fairly straight forward and largely uncontroverted. The only surviving passenger in the Jeep, Anne Wausi Mutiso (Anne) in her testimony recalled that as they traveled and upon reaching Matsangoni area on the Mombasa-Malindi road she noticed an on-coming lorry moving towards the lane on which the Jeep was being driven. The driver of the Jeep who was her husband tried to avoid colliding with the lorry by veering to the far left but the lorry still followed the Jeep to the left as one faces Malindi thereby colliding head-on with the Jeep. The evidence was not challenged as the defendant did not call any evidence in rebuttal or at all.

According to Anne, the road was full of potholes. She further stated that after she came to her senses following the impact, she found nobody else at the scene except the bodies of her husband and the deceased which were lying on the ground outside the Jeep. Her testimony was fortified by the sketch plan which depicted both vehicles on the left side of the road as one faces Malindi from Mombasa direction.

Counsel for the respondent submitted that the accident was either solely or substantially caused by the negligence of the driver of the Jeep. He attributed this to the fact that the said driver had drunk alcohol. With respect, no such evidence was produced. Anne was categorical that before they embarked on the journey, they had lunch and soft drinks.

From the unrebutted evidence that the lorry was being driven on the wrong side of the road, I find that that was an act of negligence which was the direct cause of the collision resulting in the death of the deceased. Having so found, I turn to consider the quantum of damages, the plaintiffs and the other dependants are entitled to.

I have noted earlier that the deceased was survived by ten dependants. The word dependants is a term used in the Law of Succession section 29, to me the wife, wives or former wives and children of the deceased whether or not maintained by the deceased immediately, prior to his death. It was submitted for the defendant that three married daughters of the deceased do not qualify to be dependants. Again that position is not correct in view of the above definition of the term dependant.

At the time of his death, the deceased was:

i)47 years of age

ii)employed at Oasis Polcino Limited as a Manager

iii)earning a monthly salary of Kshs.45,000/=

Based on these factors, counsel for the plaintiffs has submitted for a multiplier of 14 years and a 2/3 dependency ratio. Counsel cited Joyce Mumbi Mugi Vs. The Co-operative Bank of Kenya & 2 others – Civil Appeal No.214 of 2004, Alice Mboga Vs. Samuel Njoroge, HCCC No.357/1999 andSusan Mwangi Vs. Kinyanjui Ngethe & 2 others, Nkr. HCCC No.175 of 1997. It was submitted, on the other hand, for the defendant that the plaintiffs would be entitled to the following award:

i)under the Law Reform Act - Kshs. 60,000. 00

ii)under the Fatal Accident Act-Kshs. 480,000. 00

iii)Special damages- Kshs. 60,000. 00

Total- Kshs. 600,000. 00

Less 60% contribution- Kshs. 360,000. 00

Kshs.240,000. 00

Counsel relied on the case of Reuben Musau Kithuka & Another Vs. Rahab Muthoni & Another, HCCC No.NAI. 55 of 1999.

On pain and suffering, the evidence presented suggest that the deceased died instantaneously. In situations like that, courts have traditionally awarded Kshs.10,000/= explaining that where death occurs on the spot, the deceased suffers some form of pain albeit briefly. I will award Kshs.10,000/= for pain and suffering. For loss of expectation of life, the authorities relied on awards vary between Kshs.70,000/= and Kshs.150,000/=. Again courts have made in such cases a nominal award of Kshs.100,000/= which I hereby adopt. On loss of dependency, it was submitted without being rebutted that the deceased was 47 years old and earned Kshs.45,000/=. What was not stated, however, was what portion out of this he paid as tax. I will take away Kshs.5, 000/= as tax.

Taking that into consideration, I will settle for a monthly salary of Kshs.40,000/=. Given the large number of dependants, I will adopt dependency ratio of 2/3 and a multiplier of 10 years translating to: 40,000. 00x12x10x2/3= Kshs.3,200,000/=. The total award would be as follows

i)Pain suffering - Kshs. 10,000. 00

ii)Special damages - Kshs. 57,150. 00

iii)Loss of expectation of life- Kshs. 100,000. 00

iv)Loss of dependency- Kshs. 3,200,000. 00

- Kshs. 3,367,150. 00

Less award under the

Law Reform Act- Kshs. 110,00. 00

Total- Kshs. 3,257,150. 00

(See Maina Kaniaru & Another Vs. Josephat Mwaniki Wangondu C.A.No.14 of 1989).

Judgment is entered against the defendant in the sum of Khs.3,257,050/= with costs and interest.

Dated, Delivered and Signed at Nakuru this 25th day of February, 2011.

W. OUKO

JUDGE