[2000] KEHC 500 (KLR)
The court found that both parties bore equal responsibility for the accident resulting in the death of Bernard Mukuria Kabui, apportioning liability at 50% each due to the lack of conclusive evidence of sole negligence by either party. The plaintiff failed to prove the deceased's employment status and dependency,...
Source-derived case information.
- Citation
- [2000] KEHC 500 (KLR)
- Parties
- Plaintiff: Mary Wanjiru Mukuria; Defendant: Kenya Bus Services Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1080 of 1995
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff on liability at 50%:50%. General damages awarded, reduced for contributory negligence. Costs and interest granted to the plaintiff.
- Legal Topics
- Negligence, Fatal Accidents, Contributory Negligence, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Wanjiru Mukuria
Plaintiff
Kenya Bus Services Ltd.
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant was liable for the death of Bernard Mukuria Kabui as a result of the bus accident.
- 2 Whether the plaintiff proved her entitlement to damages under the Fatal Accidents Act and for loss of expectation of life.
- 3 How liability should be apportioned between the parties.
Ratio Decidendi
The court found that both parties bore equal responsibility for the accident resulting in the death of Bernard Mukuria Kabui, apportioning liability at 50% each due to the lack of conclusive evidence of sole negligence by either party. The plaintiff failed to prove the deceased's employment status and dependency, resulting in no award under the Fatal Accidents Act. However, the court awarded general damages for pain and suffering and loss of expectation of life, totaling Ksh.110,000, subject to a 50% reduction for contributory negligence. The court declined to apply the doctrine of res ipsa loquitur as it was not pleaded. Costs and interest on general damages were awarded to the plaintiff.
Court Disposition
Judgment for the plaintiff on liability at 50%:50%. General damages awarded, reduced for contributory negligence. Costs and interest granted to the plaintiff.
Orders
- Judgment entered on liability at 50%:50% between plaintiff and defendant.
- General damages of Ksh.110,000 awarded, less 50% contributory negligence (net Ksh.55,000) to the plaintiff.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1080 OF 1995
MARY WANJIRU MUKURIA ............................... PLAINTIFF
VERSUS
KENYA BUS SERVICES LTD. ............................. DEFENDANT
JUDGMENT
Only two witnesses gave evidence in this trial. The widow of the deceased, also the legal representative of the estate. The driver of the motor vehicle bus Reg. KTM 946 Leyland bus.
DW1, the bus driver informed this court that as he was driving along the Juja road, he noticed the vehicle infront of him with people shouting at him and looking at arrangement.
He looked through his rear mirror. He saw nothing. He continued to drive his bus and felt as if he had gone over something. He went out to check and found that his back wheels had gone over Benard Mukuria Kabui.
He rushed Bernard to hospital. It was about 8. 00 a.m. in the morning. The doctors at the Kenyatta National hospital attended to Bernard. Within 30 minutes he died.
It was the death certificate produced by P.W1, the widow that reflected that the deceased had infact been run over. The injury was over his pelvis. The bladder and bowels having been effected.
DW1 reported the Matter to the police. He denied that he caused he said accident to the deceased. Mr. Kamiro for the plaintiff stated that the doctrine of res Ispa loquitor should apply. It seems that he did not plead this and as such cannot rely on it.
PW1 was not present during the accident.
I would compute liability in this case at 50%:50% between the parties. I believe both parties ought to have taken due care.
As to the quantum I would under General damages find that the plaintiff did not immediately die. He was in pain and suffered during the time before his death. I would compute the damage award of pain and suffering at Ksh.50,000/-.
As to loss of expectation of life - I award Ksh.60,000/- as being conventional.
The plaintiff claimed her husband worked with the municipality council. No proof of this was given, not even a witness from his last place of employment came to give evidence.
I decline to make award under his heading.
As to damages under the Fatal Accidents Act this fails due to lack of proof.
In the event that I am required to make an award. I would have taken he multiplicand at Ksh.2000/- being the minimum average. I would thereafter had taken a multiplier of 7 years. The plaintiffs husband being aged 48 years at the time of death. The retiring age in Kenya being 55 years. This would have come to Ksh.168,000/-. I would have discounted this amount to allow for a lump sum payment. Only 4-3 dependants are named including the plaintiff. I would have divided this amount equally among them.
In summary
1. Liability
I hereby enter judgment on liability at 50%:50%.
2. Injuries
Fatal
3. Quantum
a) General Damages
i) Pain and suffering Ksh.50,000
ii) Loss of expectation of life Ksh.60,000/-
b) Special Damages Nil
Funeral expenses Nil
(not proved)
Ksh.110,000/-
Less 50% Contributory
negligence Ksh. 55,000/-
Ksh.55,000
I award cost of this suit to the plaintiff.
I award interest on general damages from the date of this judgement
Dated this 28th day of February 2000 at Nairobi.
M. ANG’AWA
JUDGE