[2022] KEHC 2552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 186 OF 2000

MARY WANGUI GICHUKI.............................................................PLAINTIFF

VERSUS

BERNARD MURIGI MWANGI...........................................1ST DEFENDANT

JOHN MWANIKI.................................................................2ND DEFENDANT

TELKOM KENYA LIMITED.............................................3RD DEFENDANT

ONSANO NYANGWESO....................................................4TH DEFENDANT

SIMON WANGANGA.........................................................5TH DEFENDANT

JOHN MUTUKU NDAMBUKI.........................................6TH DEFENDANT

JUDGEMENT

1. The plaintiff’s late husband Peter Gichuki Muhunyo was travelling on 21st June 1998 as a fare paying passenger abode motor vehicle registration number KAA 107M, Nissan matatu along Nakuru - Nairobi highway when the same was involved in a road traffic accident with motor vehicles registration numbers KXL 616 and KAH 599L whereby he sustained serious fatal injuries.

2. The plaintiff therefore brought this suit on behalf of herself and the deceased estate. She attributed negligence jointly and separately against the drivers and owners of motor vehicles mentioned above.

3. The 3rd and 4th defendants filed their joined defence denying the accident but without prejudice attributing negligence on the rest of the motorists. Similarly, the 1st, 2nd, 5th and 6th defendants filed their defences and blamed the owner of motor vehicle registration number KXL 616.

4. When the matter came up for hearing after a long time, the plaintiff testified that the deceased was her husband who was working for Kenol Kobil and was travelling on the material day back to his place of work. She testified that she did not witness the accident but was informed of the same the following day.

5. She however found the deceased body at the mortuary. She did not know how the accident occurred. She said that the deceased was their bread winner and she produced the birth certificates of their children namely, Charles Muhunyo Giceru, born in 1983, Samuel Ndirangu Gichuki born in 1984, Andrew Mugo Gichuki born in 1989, Joseph Maina Gichuki born in 1991 and David Waihenya Gichuki born in 1993.

6. She also produced the deceased payslip indicating his gross salary to have been Kshs. 58,235. The police abstract was as well produced by consent. She thereafter closed her case.

7. The 3rd and 4th defendants called Dw1 Elijah Onsiga who claimed that he was travelling in motor vehicle registration number KXL 616 which was carrying players heading to Kisii. He said that the oncoming matatu was trying to overtake and their vehicle stopped as they were not on a high speed. There was also a steep embankment and the matatu could not swerve and it therefore hit them. He said that their driver was able to see for about 100metres.

8. When further cross examined he said that their driver who was lame was also mad and he was not aware whether he had been compensated.

9. When the parties closed their cases the court directed that they file written submissions which they have complied. There was no evidence tendered by the 1st, 2nd and 5th defendants.

PLAINTIFFS SUBMISSIONS

10. The plaintiff relied on the evidence she presented and blamed all the drivers of the said vehicles and their owners vicariously. She said that the deceased was a mere passenger and could not in any way be blamed for the accident. The production of the police abstracts clearly demonstrated that an accident occurred.

11. The plaintiff relied on the case of RAHAB WANJIRU NDERITU V. DANIEL MUTETI & 4 OTHERS (2016) eKLR where the court found all the motor vehicles liable for the accident and thus rationed their blameworthiness.

12. On quantum the plaintiff submitted that under pain and suffering the court should award a sum of Kshs. 50,000, loss of expectation of life Kshs. 150,000 and under fatal accident act (loss of dependency) Kshs. 6,600,000 considering that the deceased was aged 45 years and earning Kshs. 55,000 per month and thus had about 15 years to retire.

13. On special damages she prayed for Kshs. 35,000 being funeral expenses. Under this heading she relied on the case of PREMIER DAIRY LTD. V. AMRJIT SIGHN SAGO & ANOTHER C .A. NO. 312 OF 2009.

3RD AND 4TH DEFENDANT’S SUBMISSIONS

14. The above defendants submitted that there was no prove of liability by the plaintiff as she did not witness the accident. She said that she did not know whether anybody was charged because of the said accident.

15. Their witness Dw1 however was a board the Isuzu minibus belonging to the 3rd defendant and he witnessed how the accident occurred. He said that the matatu was travelling from the opposite direction and was being driven dangerously and tried overtaking another vehicle thus causing the head on collision. That their driver could not swerve as there was a steep cliff and had slowed down.

16. Based on the above uncontroverted evidence their client could not be blamed for the accident. They also relied on the provisions of Section 107 of the Evidence Act namely that he who alleges must be able to prove. That the plaintiff ought to have called the investigating officer to shed light on how the accident occurred. Mere production of police abstract the defendants submitted is not sufficient especially where the eye witness evidence is not challenged and more so when many motor vehicles were involved.

17. On the issue of quantum, the defendant submitted that under the heading of pain and suffering the court should award the plaintiff the sum of Kshs. 10,000. Under loss of expectation of life Kshs. 100,000 and under loss of dependency a sum of Kshs. 3,573, 920.

18. They prayed nonetheless for the case against the 3rd and 4th defendants to be dismissed.

ANALYSIS AND DETERMINATION.

19. The two issues for determination are the question of negligence and quantum.

20. Under negligence there is no doubt that the accident involved three motor vehicles. The deceased was a fare paying passenger in the matatu KAA 107M. Negligence essentially cannot be imputed on him.

21. The plaintiff did not call the eye witness except Dw1 who testified on behalf of the 3rd and 4th defendant. The production of the police abstract was sufficient that the accident occurred. The question however is who caused the accident.

22. It was DW1 case that the driver of the matatu was overtaking and at a higher speed. Their driver was forced to stop and he could not swerve as there was a steep cliff on the side of the road. This testimony was not controverted.

23. The only issue however is that DW1 was not in control of the vehicle and he may not have known what the driver was thinking. Other than what he observed he was not in control of the vehicle and so the judgement on how he would have avoided the accident was left to the driver.

24. Nonetheless in the absence of any other eye witness and in the absence of the 4th defendant’s testimony it is therefore the word of DW1 alone against none. This court however finds that the said 4th defendant should carry some blame for the accident.

25. An accident as was explained in RAHAB WANJIRU NDERITU V. DANIEL MUTETI & 4 OTHERS (2016) eKLR involving several vehicles simply does not happen. Collisions must have happened and each driver somewhat has to carry the blame.

26. In FRANCIS NJOROGE NJONJO & ANOTHER V. IRENE MUROKI & OTHERS (2007)the court quoted Lord Denning in BAKER V. MARKET HARBOROUGH INDUSTRIAL COOPERATIVE SOCIETY LIMITED (1958)1WRL, thus,

“The approach the courts take in cases such as this i.e. a multiple car collision is that proof of a collision in and of itself is proof that one or all the drivers the vehicles was/were negligent – see Baker v Marektharborough Industrial Co-operative Society Ltd. (1958)1 WLR 1472, C.A. and the authorities following it summarized in Bingham and Berryman’s Motor Claims Case, 10th edition, at pages 31-33. This applicable legal principle is stated with characteristic clarity by Denning L J (as he then was) in Baker v Marketharborough Industrial Co-operative Society Ltd (1958)1 WLR 1472 at page 1476:

---- Every day, proof of collision is held to be sufficient to call on the two defendants for an answer. Never do they both escape liability. One or the other is held to blame. Sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesistatingly hold that both were to blame.

They would not escape liability because the Court had nothing by which to draw any distinction between them. So, also if they are dead and cannot give evidence, the result must be the same. In the absence of any evidence enabling the Court to draw a distinction between them, they must be held both to blame and equally to blame.”

27. In this case I find that by virtue of DW1 explanation, the 4th defendant must carry some blame. There was an explanation that he was unable to testify because he was unwell. No evidence was tendered to that effect.

28. In the premises I apportion liability of 20% against the 3rd and 4th defendant and the 1st and 2nd defendants 40% and 5th and 6th defendants 40%. In other words, the owners of motor vehicles KXL 616, 20%, motor vehicles KAA 107 M ,4O% and KAH 599L, 40%.

29. On the issue of quantum, the deceased was aged 45 years at the time of the accident earning a gross salary of kshs.58000 per month. He died on the spot as there is no evidence that he passed on elsewhere.

30. Under the provisions of the Law Reform Act, the plaintiff submitted that the estate ought to be paid the sum of Kshs. 50,000 whereas the defendant opined that the sum of Kshs. 10,000 would suffice under pain and suffering. I find the proposal by the defence reasonable considering the above observation that the deceased died instantly.

31. Under the loss of expectation of life, as stated above the deceased was aged 45 years and working with Kenol Kobil and full of years. There was no evidence of any disability and barring all the vagaries of life he would have retired at age 60 which is the standard retirement age.

32. In the premises and under this heading a sum of Kshs. 100,000 would be a sufficient compensation.

33. Under loss of dependency and or lost years in line with the Fatal Accident Act, the payslip produced indicated that he earned a gross salary of Kshs.58,315 per month and left behind five children earlier indicated above. Clearly he supported his family specifically from his salary. There was no evidence that the eldest child was diabetic and needed constant medication as submitted by the plaintiff.

34. The defence has proposed a multiplier of 10 years meaning that he would have retired at 55 years. Respectfully its common knowledge that the retirement age under our statutes for anybody salaried unless proved to the contrary is 60 years up from the earlier 55 years.

35. For the above reason this court holds that the remaining period for the deceased to have retired would have been 15 years. The sum of Kshs. 58,315 would attract PAYE of Kshs 13,561 thus making a net sum of Kshs. 44,754.

36. Thus under this heading the same would be calculated at 44,754 x12 x2/3x15= Kshs. 5,370,480/=

37. There was no prove of special damages but the plaintiff prayed for a global sum of Kshs. 35,000 being funeral expenses. This in my view is reasonable and the court takes judicial notice of the costs incurred by families to send off their loved one. Sometimes it impoverishes them and thus under this heading I find the amount asked reasonable in the circumstances.

38. In the premises judgment is hereby entered against the defendants jointly and severally as follows:

a. Liability is entered against them at 100% as enumerated under paragraph 28 above.

b. On quantum as hereunder.

(i) General damages for pain and suffering Kshs. 10,000

(ii). General damages for loss of expectation of life Kshs. 100,000

(iii) Loss of dependency Kshs. 5,370,580

(iv) Special damages Kshs.35000

Grand total Kshs. 5,515,480

39. The above sum shall attract interest at courts rates from the date of filing of the suit till payment in full.

40. The plaintiff shall have the costs of this suit.

DATED SIGNED DELIVERED VIA VIDEO LINK AT NAKURU THIS 10TH DAY OF FEBRUARY, 2022

H K CHEMITEI

JUDGE.