[2019] KEHC 5839 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 194 OF 2012

MILKAH WAMBUI NJOGU...................................................................1ST PLAINTIFF

HEZEKIAH NJUGUNA MWAURA.......................................................2ND PLAINTIFF

(Both suing as Administrators of the Estate of

JOSEPH KAMAU MWAURA-Deceased)

VERSUS

PAMELA AJEGA................................................................................1ST DEFENDANT

HENRY RONDI MATOYA...............................................................2ND DEFENDANT

JUDGMENT

1. The plaintiffs herein instituted this suit by way of a plaint dated 25th April, 2012 in their capacity as administrators of the estate of the late Joseph Kamau Mwaura (“the deceased”). The said suit has been brought under the Fatal Accidents Act, Cap. 32 and the Law Reform Act, Cap. 26.

2. The 1st defendant has been sued as the registered and/or beneficial owner of the motor vehicle registration number KAU 419F (“the subject motor vehicle”) whereas the 2nd defendant is sued in his capacity as the driver of the subject motor vehicle at all material times.

3. The plaintiffs have pleaded that on or about the 7th of February, 2010 at about 8. 30pm, the deceased was lawfully walking along Magadi Road near Fatima when the 2nd defendant negligently and/or recklessly drove the subject motor vehicle, causing the same to knock down the deceased, resulting in fatal injuries. The particulars of negligence have been set out in the plaint. In addition, the plaintiffs invoked the res ipsa loquitur doctrine.

4. It is also pleaded that soon thereafter, charges were preferred against the 2nd defendant in Kibera Criminal Case Number 1267 of 2010 (Republic v Henry Ronji Matoya) wherein the said defendant was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Penal Code. The 2nd defendant was ultimately convicted and sentenced to 3-years’ probation.

5. The plaintiffs state that at the time of his death, the deceased was aged 52 years and a businessman/partner under the business name Rainbow Primary School earning a monthly salary of Kshs.80,000/=. The plaintiffs further stated that the deceased left behind the four (4) dependants hereunder:

i) Milkah Wambui Njogu (wife) - 45 years

ii) Benson Mwaura Kamau (son) - 23 years

iii) Lilian Njeri Kamau (daughter) - 21 years

iv) Andrew Njogu Kamau (son) - 13 years

6. Consequently, the plaintiffs are praying for special damages in the sum of Kshs.131,050/=; general damages; costs of the suit and interest thereon.

7. Upon being served with summons and copies of the pleadings, the defendants entered appearance and filed their joint statement of defence on 27th June, 2012 and 4th July, 2012 respectively. Therein, they essentially denied the particulars of negligence set out in the plaint and in place pleaded that it is the deceased’s negligence that resulted in the fatal accident.

8. At the hearing, it was noted that both the defendants and their advocate were absent despite having taken the hearing date by consent at the registry. As such, the hearing proceeded ex parte, with the 1st plaintiff testifying as the sole witness for the plaintiffs’ case.

9. Milkah Wambui Njoroge who was PW1 opted to adopt her statement as filed. Further to this, she gave evidence that on the material date, she recalls receiving news that her husband, the deceased in this instance, had been hit by the subject motor vehicle belonging to the 1st defendant and being driven by the 2nd defendant at all material times.

10. The said witness also testified that following the accident, the deceased’s body was taken to City Mortuary. Various documents constituting the plaintiffs’ list and bundle of documents were produced by PW1 prior to the close of their case.

11. Thereafter, this court directed the plaintiffs to put in written submissions. Vide their submissions filed on 19th February, 2019 the plaintiffs’ contention on liability is that they had tendered sufficient evidence as proof of sole negligence on the part of the defendants, with the 1st defendant being vicariously liable. The plaintiffs were careful to argue that the evidence tendered remains uncontroverted.

12. On quantum, the plaintiffs reiterated that the deceased was a partner in the business co-owned with his wife and that he has left behind a widow and three (3) children, including a minor aged 13 years. The plaintiffs urged this court to apply a multiplier of 18 years and to take into consideration the deceased’s average monthly earnings of Kshs.80,000/=. In the end, the plaintiffs while citing Stephen Kiarie Muruguru v Seleman Hamadi Koi and Subira & another [2018] eKLRand Avtar Singh Bhabra & another v Geofrey Ndambuki [2014] eKLR came up with the following proposal on quantum:

i) General damages:

(a) Loss of expectation of life-Kshs.100,000/=

(b) Pain and suffering-Kshs.100,000/=

(c) Loss of dependency-80,000/= x 2/3 x 12 x 18 =Kshs.11,520,000/=

(d) Special damages-Kshs.131,050/=

Total Kshs.11, 851,050/=

13. I have considered the evidence tendered before me, noting that the defendants did not participate in the hearing. I have equally considered the plaintiffs’ written submissions since the defendants did not put in submissions. Before me for determination are two (2) limbs: liability and quantum.

14. That being the case, I will first address the limb on liability. While I did note from PW1’s testimony that she did not witness the accident first hand but only came to learn of it subsequently, she adduced evidence to show that the 1st defendant was at all material times the registered owner of the subject motor vehicle whereas the 2nd defendant was charged and eventually convicted for causing the deceased’s death.

15. Section 8 of the Traffic Act, Cap 403 stipulates that:

“The person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle”

16. I have studied the two (2) police abstracts and motor vehicle search records produced as P. Exhibits 2 and 12 (i) respectively. The search records dated 23rd April, 2010 show the subject motor vehicle as having been registered in the name of the 1st defendant. It has already been established that neither of the defendants countered this fact by way of evidence. Going by the above provision therefore, it is reasonable to conclude that the 1st defendant was at all material times the registered owner.

17. In addition, the police abstracts tendered in evidence also cite the 1st defendant as being the registered owner at all material times. In this respect, the courts have acknowledged a police abstract as prima facie evidence of ownership in the absence of contrary evidence. In the case of Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another CA NO. 260 OF 2004(Kisumu) (2010) eKLR for instance, the Court of Appeal found thus:

“Where police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases.

18. Concerning the 2nd defendant, the criminal proceedings and judgment were produced as P. Exhibit 18 confirming that the said defendant was charged, found guilty and convicted in relation to the accident. I am well aware that the burden of proof in criminal cases is much higher than that in civil cases such as this one.

19. From the foregoing and having taken into account the fact that the evidence produced by the plaintiffs remains unchallenged, I am satisfied that the said plaintiffs have on a balance of probabilities established that the 2nd defendant was negligent and therefore directly liable for the accident that resulted in the deceased’s death, while the 1st defendant is vicariously liable. I do not hesitate to find the 2nd defendant 100% liability.

20. This brings me to the second limb on quantum, which I shall address as follows:

a) Pain and suffering

21. The plaintiffs have urged this court to award Kshs.100,000/= under this head. In her testimony, PW1 did not mention whether or not the deceased’s death was instantaneous, though the plaintiffs have argued in their submissions that the deceased must have experienced pain prior to his death. That notwithstanding, there is no indication that the deceased was taken to hospital since PW1 mentioned that his body was taken to the mortuary by the police officers who visited the scene of the accident. The duration of time between the accident and the deceased’s death is therefore not clear. In the circumstances, I find the sum of Kshs.100,000/= proposed by the plaintiffs to be on the higher side and I will instead award Kshs.10,000/= under this head.

b) Loss of expectation of life

22. Under this head, the courts have been known to award Kshs.100,000/= which I find reasonable in the circumstances and having considered that similar awards were made in the authorities cited by the plaintiffs. I will therefore award Kshs.100,000/=

c) Loss of dependency

23. Damages under this head are awarded under the Fatal Accidents Act. That being the case, there are certain factors to be taken into account in determining the appropriate sum to award. These factors were discussed in Avtar Singh Bhabra(supra)and I shall mention them below for ease of reference:

“In assessing loss of dependency under the fatal Accidents Act the principles on which damages should be assessed is set out in the case of Radhakrishen M Khemaney –vs- Mrs Lachaba Murlindar [1958] EA 268 where the Court of Appeal held that, “in considering the award of damages under the fatal accidents Act the court should ascertain the age, expectation of working life, wages and expectations of the deceased and what proportion of his net income the deceased would have made available for his dependants from which the annual value of the dependency would be calculated ,the annual sum should then be capitalised by multiplying it by a sum representing so many years ,purchase, having regard to the expectation of earning life of the deceased and the expectation of life and dependency of the widow and children ……” ”

24. It has been established that at the time of his death, the deceased was 52 years old. Though the plaintiffs proposed a multiplier of 18 years, the respective cases cited in their submissions applied a multiplier of 13 years each in instances involving deceased persons of a similar age as the deceased in this case. In the circumstances, I find a multiplier of 13 years to be reasonable, without overlooking the fact that there is no particular age of retirement for business persons.

25. On the dependency ratio, PW1 gave evidence that she and the deceased ran a school business together prior to his death. From the foregoing, whereas the said witness, being the deceased’s wife, may continue to sustain an income from the said business, it is evident that she too has lost some degree of dependency, maintenance and support as a consequence of the death of her husband. To add on, the deceased’s youngest of three (3) children was said to have been 13 years of age at the time while the deceased’s two (2) older children aged 23 years and 21 years respectively depended on him one way or another. In the circumstances, I find the dependency ratio of 2/3 to be reasonable.

26. As relates to the multiplicand, it is the plaintiffs’ submission that the deceased earned a monthly income of Kshs.80,000/=. Also, PW1 produced as P. Exhibit 20 certified copies of bank statements for the period between 1st September, 2010 and 31st December, 2010.

27. I have had the opportunity of perusing the said bank statements and determined that the same in no way disclose the deceased’s monthly income or profits for that matter. On a similar note, since it has been stated that the deceased was a businessman at all material times, the regulations on minimum wages cannot apply.

28. However, I did note that the plaintiffs also availed financial statements for the year 2010, which I have equally evaluated. The same set out the net income for Rainbow Primary School at the end of the year 2010 in comparison to the income received at the end of 2009. A copy of the Certificate of Registration for the said school was produced as P. Exhibit 4,thereby confirming that the deceased and the 1st Plaintiff owned the school as co-partners. That being the case, I was able to rely on the two (2) net incomes quoted in determining the average income for the school and consequently, the co-partners. I then divided the total sum between the said partners in a bid to ascertain the average income each of them would have received and in so doing, arrived at the sum of Kshs. 60,000/-. Guided by the said figures, I applied a multiplicand of Kshs. 60,000/-.

29. In view of the foregoing, the damages under this head were tabulated as follow:

60,000 x 13 x 12 x 2/3 = 6,240,000

d) Special damages

30. The plaintiffs claimed a total sum of Kshs.131,050/= as special damages. I have tabulated the same in view of the documentation availed and make an award of Kshs.120,550/= for the damages both pleaded and proved under this head.

31. In conclusion therefore, I enter judgment in favour of the plaintiffs in the following manner:

(i) Liability 100%

(ii) General damages

a) Pain and suffering Kshs.10,000/=

b) Loss of expectation of life Kshs.100,000/=

c) Loss of dependency Kshs.6,240,000/=

(iii) Special damages Kshs.120,550/=

TOTAL Kshs.6,470,550/=

32. The plaintiffs shall also have the costs of the suit plus interest at the applicable court rates. Special damages to earn interest from the date of filing of the suit while the general damages will attract interest from the date of this judgment.

Dated, signed and delivered at NAIROBI this 27th day of June, 2019.

.......................

L. NJUGUNA

JUDGE

In the presence of:

……………………………. for the Plaintiffs

……………………………. for the Defendants