[2022] KEHC 15087 (KLR)

Makoko (Suing as the wife and personal representative of the Estate of Emmanuel Robert Mbinda - Deceased) v Fuga Feeds Kenya Limited & another (Civil Suit 46 of 2018) [2022] KEHC 15087 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15087 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Suit 46 of 2018

SN Mutuku, J

July 5, 2022

Between

Elizabeth Mwasi Makoko

Plaintiff

Suing as the wife and personal representative of the Estate of Emmanuel Robert Mbinda - Deceased

and

Fuga Feeds Kenya Limited

1st Defendant

Neltar Kipkurui Maiyo

2nd Defendant

Judgment

Introduction 1. Elizabeth Mwasi Makoko, the Plaintiff, brought this suit in her legal capacity as the Personal Representative of the Estate of her late husband, Emmanuel Robert Mbinda under the Law Reform (Miscellaneous Provisions) Act, Cap 26 and the Fatal Accidents Act, Cap 32 of the Laws of Kenya.

2. The accident giving rise to these proceedings occurred on July 21, 2017 along Namanga-Kajiado Road at Dolegeshi River Bridge. It involved Motor Vehicle Registration No xxxx Toyota Spacio, driven by Emmanuel Robert Mbinda, deceased, and Motor Vehicle Registration No KCF xxxx Mitsubishi Canter, belonging to the 1st Defendant and driven by the 2nd Defendant.

3. The Plaintiff blames the 2nd Defendant for the fatal accident and has particularized the acts of negligence attributable to the 2nd Defendant on Paragraph 9 of the Amended Plaint dated October 1, 2019.

The Plaint 4. In the Plaint dated October 1, 2019 and filed on October 8, 2019, the Plaintiff prays for judgement in favour of the estate of her late husband in the following terms:i.Special damages amounting to Kshs 766,370. ii.General damages under the Law Reform (Miscellaneous Provisions) Act and the Fatal Accidents Act.iii.Costs of the suit.iv.Interest on (a), (b) and (c) above.v.Any other/further relief this court may deem fit and just to grant.

The Defence 5. The defendants denied the claim by the Plaintiff and holds the deceased (driver of Motor Vehicle Registration No xxxxx Toyota Spacio) to blame for the accident. They particularized the acts of negligence attributable to the deceased on Paragraph 8 of their Amended Statement of Defence dated November 26, 2019 and filed on the same date.

6. The Defendants pray for dismissal of the suit against them with costs.

The Evidence 7. The case for the Plaintiff was supported by the evidence of two witnesses. Elizabeth Mwasi Makoko was the first witness. She was wife to the deceased Emmanuel Robert Mbinda who was aged 43 years at the time of his death. She informed the court that she was informed of the death of her husband through his colleagues. She testified that her husband was involved in a fatal road traffic accident along Namanga/Kajiado Road. It was her Evidence that her late husband worked with the United Nations. She was however not able to confirm whether he was on fixed contract or renewal contract. She told the court that her late husband was earning equivalent of Kshs 249,500 per month. She testified that the deceased was survived by the following:i.Elizabeth Mwasi Makoko – wife – aged 36 yearsii.LM – Daughter- aged 11 yearsiii.FM- Son – aged 10 yearsiv.RM – Son- aged 6 years

8. The plaintiff produced the following documents in support of her claim for special damages:i.Letters of administration ad Litem – Kshs 25,000ii.Mortuary bill - Kshs 185,000iii.Funeral expenses - Kshs 514, 220iv.Motor Vehicle search - Kshs 550v.Police Abstract - Kshs 200vi.Investigations - Kshs 41,600Total Kshs 766,370/-

9. The second witness was No xxxx IP Paul Njune. He confirmed that the deceased was driving motor vehicle xxxxx Toyota Spacio along Namanga/Kajiado Road on July 21, 2017 when it collided with motor vehicle number KCF xxxxx Mitsubishi driven by the 2nd Defendant. He testified that the driver of the Mitsubishi was driving towards Kajiado when he overtook carelessly, causing a collision with the deceased who was driving towards Namanga. IP Njune attributed the accident to careless driving of the 2nd Defendant who overtook on a continuous yellow line causing the collision with the oncoming vehicle driven by the deceased. The deceased died on the spot.

10. IP Mgune further testified that the 2nd Defendant was tried for the traffic offence, was found guilty and fined Kshs 200,000 in default to serve 2 years imprisonment. His license suspended for 3 years.

11. The defendants did not testify with their legal counsel informing the court that the defence did not wish to call any evidence to support but would instead close the defence case.

Submissions 12. At the conclusion of the evidence, parties filed written submissions. The Plaintiff’s submissions are dated April 8, 2022. They submitted on liability, quantum of damages and costs of the suit. On the issue of liability, it was submitted that the evidence on record shows clearly that the 2nd defendant was to blame for the fatal traffic accident that cost the life of the deceased. It was submitted that the evidence of the Plaintiff was not controverted. It is submitted that the defendants should be bear 100% liability jointly and severally.

13. On the issue of quantum, it is submitted that under theLaw Reform Act, quantum is made up of pain and suffering, loss of expectation of life and loss of consortium.

14. On pain and suffering, it is submitted that the deceased died on the spot and sought Kshs 100,000/. The Plaintiff relied on the case of Alice O Alukwa –vs- Akamba Public Road Services Limited & 3 others [2013] eKLR where court awarded 50,000 as damages for pain and suffering for a deceased who died on the spot.

15. Under the issue of loss of expectation of life, it is argued that the deceased died aged 43 years; that before his untimely death he was full of life, energetic and of good health and that had it not been for the accident he would have lived up to 80 years. It is the Plaintiff’s submission that an Kshs 200,000/- would be adequate compensation. In support of this argument, the Plaintiff relied on the case of Moses Akumbwa & Another –vs- Hellen Karisa Thoya(2017) eKLR.

16. On the issue of loss of consortium, it was submitted that the Plaintiff is now a single mother of three, she is aged 35 years and has now been deprived of the companionship of her husband. She prays for an award Kshs 200,000/ for loss of consortium and relied on the case of Viscard Kipngetich (Suing as personal representative of the estate of Ronoh Priscah Chepkemoi –vs- Matunda Fruits Bus Services Ltd and 4 others [2019] eKLR.

17. Under the Fatal Accidents Act, it was submitted that damages are made up of loss of dependency and are calculated under the following heads: multiplier, multiplicand and dependency ratio.

18. On multiplier, it is submitted that factors such as age of the deceased and estimated number of lost working years are taken into account; that the deceased was 43 years of age at the time of his death; that the retirement age of the United Nations staff is 65 years; that a multiplier of 22 years is applicable. The case ofBoard of Governors of Kangubiri Girls High School & Another –vs- Jane Wanjiku & Another NYR CA Civil Appeal No 35 of 2014 [2014] eKLR was cited in support of this argument.

19. On multiplicand, it is submitted that at the time of his death the deceased was employed by United Nations and was earning a monthly salary of Kshs 249,500/- as evidenced by the deceased’s pay slip attached to the Plaintiffs documents and marked as exhibit No 5. The case of Beatrice Wangui Thairu –vs- Hon Ezekiel Bargetuny & another Nairobi HCCC 1638 of 198 was cited to support this argument. It is further submitted that from the deceased’s pay slip it is clear that there are no statutory deductions as he used to work for an international body, thus the statutory deductions of PAYE, NHIF and NSSF do not apply in this case.

20. Dependency ratio, it is submitted that the deceased was survived by four dependants, his wife and three minor children. A marriage certificate and copies of birth certificates have been produced in evidence and marked as exhibits 8 and 9. A dependency ratio of ¾ was proposed as adequate as the degree of dependency is high taking into account the fact that the deceased was the sole bread winner and the children are minors. It is proposed that an award under the Fatal Accidents Act should be Kshs 49,401,000/- calculated as follows:249,500 (monthly salary) x 12 (months) x 22 (years) x 3/4 = 49,401,000/-

21. On special damages it is submitted that it is trite law that special damages must be specifically pleaded and strictly proved. That the Plaintiff pleaded the same under paragraph 13 of the Amended Plaint. That they have produced receipts in court to prove the same.

22. It is the Plaintiff’s case that she has proved her case on a balance of probabilities and should be awarded liability at 100% and general damages under both the Fatal Accidents Act and Law Reforms Act and special damages as follows:a.Under Fatal Accidents Act 249,500 x 12 x 22 x ¾ = 49,401,000. b.Under the Law Reforms Act:i.Pain and suffering …………………….Kshs 200,000. ii.Loss of expectation ……..……………Kshs 200,000. iii.Loss of consortium…………………….Kshs 100,000. (c)Special damages………………………………..Kshs 766,570Grand Total……………………………………………..Kshs 50,667,570.

23. The Plaintiff prays that costs of the suit be awarded to her.

24. The Defendants’ submissions are dated April 20, 2022. They have submitted on two issues, namely:i.Was the accident in which the Plaintiff was injured as a result of negligence on the Defendants’ part?ii.If the Plaintiff has proved negligence against the Defendant, what is the correct quantum?

25. On Liability, they have submitted that the onus in this matter is on the Plaintiffs to prove that the Defendant’s driver was guilty of some action or omission that led to the occurrence of the said accident resulting in the deceased’s death. They submitted that the Plaintiff called 2 witnesses the deceased’s wife (PW1) and IP Mgune (PW2) who produced the police abstract; that the PW2 confirmed that he was neither the officer first at the scene after the accident occurred, nor was he the investigating officer; that he did not provide the investigation file with the investigation report and sketch maps and witness statements to allow court to ascertain the circumstances of the accident and therefore determine liability.

26. It was further submitted that from the totality of the evidence adduced before the court, it was their contention that the Plaintiff has not been able to prove that the accident was solely caused due to the Defendant’s negligence; that the Plaintiff has placed a lot of reliance on the conviction of the 2nd Defendant to attribute sole negligence to the Defendants; that the matter was not tried substantively and there is no basis to attribute all the liability to the 2nd Defendant. They relied on the Court of Appeal decision inn Chemwolo and Another –vs- Kubende [1986] KLR 492: [1986-1989] EA74.

27. The defendants argued, further, that it is trite law that the party alleging a fact before the Court must prove the same; that the Plaintiff is relying on the facts in the abstract as the conviction to prove negligence; that it is not enough even with the doctrine of Res Ipsa Loquitor. They cited Benter Atieno Obonyo –vs- Anne Nganga & another [2021] eKLR to support their arguments. They urged that liability be apportioned at 50-50 since the Plaintiff has not proved that the 2nd Defendant was solely liable for the accident.

28. They have proposed that quantum be calculated as hereunder and relied on Hyder Nthenya Musili & another v China Wu Yi Limited & another [2017] eKLR:i.Loss of Life………………………………..Kshs 100,000. ii.Pain and suffering ………………………..Kshs 30,000.

29. On loss of consortium, the defendants submitted that this should not be awarded as the claim has no statutory basis and that the actual claim was neither specifically pleaded in the Plaint nor was it led by way of testimony by PW1. On that point the defendants relied on Francis Nzivo Munguti & another –vs- Agnes Nechesa Preston [2016] eKLR.

30. On loss of dependency, the defendants propose a ratio of 2/3 in relation to the deceased person married with children.

31. The defendants argued that the deceased was on a fixed contract and not on permanent employment may range from one to five years; that as a private employer, there is no guarantee that he would have worked for the projected further 22 years; that the multiplier ought that into account as well as the other vagaries of life and that in the marriage certificate the deceased is listed as a security officer a job that carries significant risk. They proposed that a multiplier of 15 years is adequate. They relied on Samuel Kuria Kuhunya-vs- Laura Wangui Kahuho & Another [2020] eKLR.

32. On the multiplicand, the defendants argued that although the deceased was earning an amount of Kshs 249,260. 97 and although the same was not subject to the statutory deductions, a look into the United Nations Website shows that there was staff assessment which is a form of internal tax based on the tax rates of the host countries. Therefore, the deceased would not have benefited from that amount. His estate and his beneficiaries would also not have benefited from that amount. They contend that the multiplicand ought to be Kshs 249,260 less Kshs 33573 = Kshs 215,687 all giving a total of Kshs 25,882,440 calculated thus:215,687 x 12 x 15 x 2/3 = 25, 882,440.

33. On special damages, the defendants submitted that mortuary fees, amounting to Kshs 185,000, were borne by the employer as shown in the payment receipt produced in court and confirmed by PW1 hence the amount didn’t come from the estate.

34. The defendants in their submissions objected to a bundle of receipts produced as Exhibit 13 claiming that the receipts in the amounts of Kshs 118,700, Kshs 25,000 and Kshs 10, 000 are merely exchange of currency receipts and not payment of the actual funeral expenses. They also objected to the receipt relating to the valuation of the vehicle stating that it ought not to be included in the calculation.

35. They submitted that the correct amount in special damages that is supported by receipts is Kshs 132,478/, and therefore the quantum should be as follows:a.Loss of dependency ……………………..Kshs 25,882,440. b.Special damages ……………………………..Kshs 132,478. c.Pain and suffering before death…………….Kshs 30, 000. d.Loss of life……………………………………….Kshs 100,000. Total Kshs 26,277,396/-

Determination 36. I have read the pleadings in this case. I have read and considered the evidence adduced in court and the rival submissions. I have considered the authorities cited by the parties. I determine this matter in the following manner that the evidence of the Plaintiff on liability is not controverted. On a balance of probabilities, I find that the Plaintiff has proved her case. Consequently, I find the defendants 100%, jointly and severally, for the accident that claimed the life of the deceased herein. With no evidence from the defendants attributing any negligence on the part of the deceased and given the evidence before the court, I have no reason to doubt that the 2nd defendant is wholly to blame for the accident.

37. On pain and suffering, it is my considered view that the deceased died on the spot and therefore he did not suffer much before he died. I agree with the defendants and the authority they have relied, Hyder Nthenya Musili & another that an award of Kshs 100,000 is on the higher side. For this I will and do hereby award Kshs 40,000 for pain and suffering.

38. On loss of life expectation, I do award Kshs 100,000.

39. On loss of consortium, as submitted by the defendants, while citing Francis Nzivo Munguti & another v Agnes Nechesa Preston [2016] eKLR, the Law Reform Act and the Fatal Accidents Act do not provide for a claim of loss of consortium. In the above cited case, the court reasoned that:“……………a claim for loss of consortium can only be incorporated within a claim for loss of amenities in an action instituted b a survivor of an accident in which it is claimed that due to the injuries sustained, the claimant was incapable of enjoying consortium with his or her spouse and that therefore, his or her quality of life had as a result been diminished.”

40. I agree with that reasoning and decline to award damages for loss of consortium in this matter.

41. On the issue of damages under the Fatal Accidents Act, it is my view that the deceased was on a fixed contract. Evidence shows that the deceased was 43 years at the time of his death. His job with the United Nations was on a fixed contract. The Plaintiff did not provide evidence to show that the deceased would have retired at age 65. To my mind, a multiplier of 22 years may be on the higher side given that it is not backed by evidence.

42. Guided by the Court of Appeal decision in Board of Governors of Kangubiri Girls High School & another v Jane Wanjiku & another[2014] eKLR, the “the choice of a multiplier is a matter of the courts discretion which discretion should be exercised judiciously with reason” it is my considered view that taking into account all the circumstances of this case including the nature of the job the deceased was performing, a multiplier of 18 years is reasonable.

43. The deceased was in gainful employment. The payslip shows that he was earning a gross salary of Kshs 249,260. I have considered the submissions of the defendants on tax applicable to the deceased. The source of that information is said to be United Nations Website. There is no evidence adduced to back up this information. The record shows that there was no cross-examination on that issue. I will therefore take the amount of Kshs 249,260 as the applicable figure for purposes of calculating damages.

44. As argued by the defendants, the conventional dependency ratio in relation to deceased persons who were married with children is 2/3 and this is the ratio I adopt in this judgment. This leads me to a figure calculated as follows:249,260 x 12 x 18 x 2/3 = Kshs 35,893,440.

45. On special damages, it is trite that special damages must be specifically pleaded and strictly proved. I have noted that the defendants have, in their submissions, objected to the production of some receipts supporting a claim for special damages. It is my considered view that the defendants had the opportunity to object to the production of the receipts whose reliance they now object to. I have read the court record and I do not see any objections being raised on any of the documents the Plaintiff produced to back up her case. I therefore find that the objection to the reliance of the receipts unreasonable. However, it is clear to me that the mortuary bill amounting to Kshs 185,000 was paid by the employer and not by the estate. I will therefore deduct this figure from the amount claimed in special damages leaving a balance of Kshs 581,570 as the figure payable in special damages.

46. I need to point out that I did not find the receipts in the amounts of Kshs. 118,700, Kshs 25,000 and Kshs 10,000 objected to by the defendants for the reasons, as claimed, that they merely showed the exchange of currency rather than payment of the actual funeral expenses. I therefore find this claim without basis.

47. In conclusion, I find for the Plaintiff in this matter. I hold the defendants, jointly and severally, 100% liable. I award damages as follows:a.Damages under the Fatal Accidents Act Kshs 35,893,440 worked out 249,260 x 12 x 18 x 2/3 = 35,893,440. b.Damages under the Law Reform Act:i.Pain and suffering = Kshs 40,000. ii.Loss of life expectation = 100,000. c.Special damages = Kshs 581,570. Total award Kshs 36,615,010.

48. Consequently, I enter judgment for the Plaintiff in the sum of Kshs 36,615,010, costs of this suit and interest at court rates on total amount in damages and costs.

49. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 5THJULY 2022. S. N. MUTUKUJUDGE