[2010] KEHC 2753 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Civil Suit 148 of 2009

LYDIAH KERUBO OTWORI(suing as Administratix

and/or Personal Representative of the Estate of

ANNA NYANCHAMA ONDIMU (DECEASED) …. PLAINTIFF

VERSUS

KIPKEBE LIMITED ………………………………. DEFENDANT

JUDGMENT

This suit was initially filed by one Mayenga Nyachiro Morangi, now deceased, seeking compensation as a result of the death of his wife, Anna Nyanchama Ondimu, hereinafter referred to as “the deceased”, who was bitten by a snake in the course of her employment with the defendant. The deceased’s late husband had obtained limited grant of letters of Administration Ad Litem for the purposes of filing the suit. The deceased’s husband testified on 14th May 2007 but he died before the matter was finalized. Their daughter, Lydia Kerubo Otwori also obtained limited grant of letters of administration Ad Litem that enabled her to take over and prosecute the suit.

Mayenga Nyachiro Morangi, PW1, testified that the deceased was employed by the defendant as a tea plucker. On the 6th day of April 2004 in the course of her employment, the deceased was attacked by a snake that had coiled itself on one of the tea bushes. On the material day the deceased was working with another employee of the defendant known as Evans Ondieki Macha, PW2. The deceased was taken to Kipkebe dispensary and later transferred to Kapkatet Hospital but she died on the following day. Her death certificate that was produced as P. Exhibit 1 stated that the cause of death was cardio pulmonary arrest due to nerotoxucation due to a snake bite.

PW1 said that he spent about Kshs. 50,000/= towards the burial of the deceased. He alleged that her coffin was purchased at Kshs. 15,000/=, post mortem expenses were Kshs. 5,000/=, transport charges and other expenses were also incurred. However, PW1 was unable to produce any documentary evidence to support this claim for special damages.

PW2 said that the defendant had not sprayed snake repellant to the tea bushes for nearly two years. He said that the defendant was supposed to be spraying snake repellant in the plantation from time to time but that practice had ceased.

PW2 further testified that the defendant had not supplied them with hand gloves. If the deceased was wearing hand gloves she would not have bitten by a snake, he stated.

The plaintiff prayed for general damages under both the Law Reform Actand theFatal Accidents Act. She also prayed for special damages as hereunder:

(a) Funeral expenses ……………… Kshs. 50,000. 00

(b) Application for grant of

Representation …………………. Kshs. 10,925. 00

The deceased was 42 years at the time of her death. The

plaint indicated that her monthly income was Kshs. 6,000/=.

PW1 testified that the monthly salary was between Kshs. 6,000/= and Kshs. 2,000/=. He produced her pay slip for December 1999. As at that time her salary was Kshs. 2,605. 52. I believe between 1999 and April 2004 when she died her salary had gone up. PW1 was however unable to produce the deceased’s latest pay slip.

The deceased was survived by three children, Mellen Mayenga (27 years old), Stephen Mayenga (21 years old) and the plaintiff who was 17 years old at the time of her mother’s death. PW1 testified that the deceased was educating the 2nd and 3rd born. He had been sick since 1978 when he was involved in an accident.

The defendant filed a statement of defence and denied that the deceased was in its employment and that she was attacked by a snake on 6th April 2004 as a result of which she lost her life. The defendant denied all the other averments in the plaint save for the description of the parties. In the alternative, the defendant stated that if the alleged accident did occur it was caused by the deceased’s negligence in that she failed to take adequate precautions for her safety. However, during the hearing the defendant did not adduce any evidence.

Counsel for the parties were directed to file written submissions but none were filed for the defendant. The plaintiff’s advocate urged this court to find that the defendant was fully liable for the occurrence of the said accident in that it had not sprayed the tea plantation with snake repellant for nearly two years prior to the fateful day. He further submitted that the deceased had not been provided with hand gloves that would have protected her from snake bite.

Regarding general damages, the plaintiff’s counsel urged the court to award Kshs. 200,000/= for loss of expectation of life and Kshs. 30,000/= for pain and suffering. The court was also urged to award Kshs. 50,000/= as funeral expenses. The aforesaid sums were claimed under theLaw Report Act. Under the Fatal Accidents Act, counsel urged the court to apply a sum of Kshs. 4,000/= as the deceased’s monthly salary and adopt a dependency ratio of 2/3, saying that the deceased was educating two of her children before she died. He further urged the court to apply a multiplier of 13. He thus computed general damages for loss dependency as hereunder:

4,000 x 12 x 2/3 x 13= 416,000/=

Taking into account the uncontroverted evidence of PW1 and PW2, I do not doubt that the deceased was attacked by a snake inside the defendant’s tea plantation. The deceased was an employee of the defendant and that was proved by production of her pay slip for December 1999, P. Exhibit 3. PW2 said that the defendant had not sprayed snake repellant for nearly two years. It was therefore easy for snakes to find their habitation in the plantation. If the defendant had done so the chances of snakes hiding themselves in the tea bushes would have been minimized. At common law an employer is under a duty to take reasonable care for the safety of his employees in all circumstances so as not to expose them to unnecessary risk, seeHALSBURY’S LAW OF ENGLAND, 4TH EDITION, VOLUME 16 AT PARAGRAPH 560. The defendant also failed to provide the deceased with hand gloves. If she was wearing gloves it would have been difficult for the snake venom to penetrate into the deceased’s blood stream since the snake bite was on her left arm. Consequently, I find the defendant fully liable for the aforesaid accident.

Regarding the claim of Kshs. 50,000/= for special damages, it is trite law that special damages must be strictly proved. PW1 did not produce any receipt in proof of any of the items that comprised funeral expenses. I am therefore unable to award any sum under that heading.

Turning to the other claims under the Law Reform Act, I will award the conventional sum of Kshs. 100,000 as general damages for loss of expectation of life. For pain and suffering, the deceased must have endured some considerable pain from the time when she was bitten by the snake upto the following day when she died. The sum of Kshs. 30,000/= that I was urged to grant is reasonable and I allow the same.

As regards general damages for loss of dependency, I agree with the plaintiff’s advocate’s submissions that a sum of Kshs. 4,000/= is reasonable as the deceased’s monthly earnings. I also agree that a multiplier of 13 is reasonable given that the deceased was 42 years old at the time of her death. She could reasonably have worked until she attained the age of 55 years. The dependency ratio of 2/3is reasonable. I therefore award the sum of Kshs. 416,000/=that was urged by the plaintiff’s advocate as general damages for loss of dependency.

InKEMFRO AFRICA LIMITED t/a “MERU EXPRESS SERVICES [1976]” & ANOTHER –VS- LUBIA & ANOTHER(No.2) [1987] KLR 30, it was held that any pecuniary loss suffered by a dependant must be offset by any pecuniary gain which accrues to him or her. This is to avoid a situation where the same dependants benefit twice on account of the same accident. The award under the Law Reform Act that represents the non pecuniary loss, that is, the award for loss of expectation of life is therefore deductable. I will thus deduct the sum of Kshs. 100,000/= leaving a net sum of Kshs. 446,000/=. I now enter judgment for the plaintiff against the defendant in the sum of Kshs. 446,000/= plus interests and costs at court rates.

DATED, SIGNED AND DELIVERED AT KISII THIS 2ND DAY OF MARCH, 2010.

D. MUSINGA

JUDGE.

2/3/2010

Before D. Musinga, J.

Mobisa – cc

N/A for the Plaintiff

Mr. Odhiambo for L.G. Menezes for the Defendant

Court: Judgment delivered on 2nd March 2010 in open court.

D. MUSINGA

JUDGE.

Mr. Odhiambo:I pray for 30 days stay of execution.

D. MUSINGA

JUDGE.

COURT: There shall be stay of execution for a period of 30 days from today.

D. MUSINGA

JUDGE.