[2023] KEHC 24594 (KLR)

Mwangi & another (Suing as the personal representatives of the Estates of Patrick Kariuki Mwangi (Deceased)) v Aluiya & another (Civil Case 120 of 2013) [2023] KEHC 24594 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24594 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Case 120 of 2013

AN Ongeri, J

November 3, 2023

Between

Peter Kamau Mwangi

1st Plaintiff

Joyce Njeri Mwangi

2nd Plaintiff

Suing as the personal representatives of the Estates of Patrick Kariuki Mwangi (Deceased)

and

Ahmed Aluiya

1st Defendant

Wanyoike Henry Kamau

2nd Defendant

Ruling

1. Peter Kamau Mwangi and Joyce Njeri Mwangi filed this suit in their capacity as personal representatives of the deceased persons herein Patrick Kariuki Mwangi (Deceased) and Phoebe Wamaitha Muthoga (deceased) who sustained fatal injuries on 3/5/2010 while travelling in motor vehicle KBC 154D which was being driven by the Patrick Kariuki Mwangi (deceased) while Phoebe Wamaitha Muthoga (deceased) who was his wife was a passenger.

2. The accident occurred along Thika Road near Safari Park Hotel when motor vehicle registration no. KBL 607A which was being driven by the 2nd defendant and belonged to the 1st defendant swerved off its lane and slided onto the path of motor vehicle registration no. KBC 154D cutting half of the said motor vehicle occasioning fatal injuries to the two deceased persons.

3. The deceased left behind the following minor children;i.S. W. a daughter aged 16 yearsii.F. K. K. a daughter aged 13 yearsiii.C. M. a son aged 6 years.

4. The two plaintiffs are seeking general damages under both the Fatal Accidents Act and the Law Reform Act and special damages as follows;i.Funeral announcement – Nation Media group Ksh.28,875. 00ii.Funeral announcement – Kameme F. M. ksh. 3,600. 00iii.Funeral announcement – Royal Media Services ksh. 5,100. 00iv.Hire of security ksh.16,800. 00v.Hire St. John Ambulance ksh.20,000. 00vi.Funeral home(mortuary- Patrick Kariuki) ksh. 9,000. 00vii.Funeral home (mortuary – Phoebe Wamaitha) ksh. 9,000. 00viii.Booking Precious Funeral services ksh.67,000. 00ix.Pathologist report ksh. 6,000. 00x.City council of Nairobi mortuary (2 bills) ksh. 6,200. 00xi.Burial expenses (Mineral water) ksh. 2,880. 00xii.Motor vehicle search ksh. 500. 00xiii.Hire of city hopper bus ksh.29,000. 00xiv.Clothes for children ksh.50,000. 00Total ksh.253,955. 00

5. The defendants filed a defence dated 23/5/2013 denying the plaintiff’s claim. The case proceeded by viva voce evidence.

6. The plaintiffs called 4 witnesses as follows;PW 1 P.C John Ouko attached to Kasarani Traffic Base produced a police abstract in respect of the accident. PW 1 said the driver of motor vehicle registration no. KBL 607A was to blame for the accident. He said the driver who escaped from the scene lost control and rammed into motor vehicle registration no. KBL 154D and KAZ 869E.

7. PW1 No.81346 PC John Ouko attached to Kasarani Traffic Base produced the police abstract of the accident which occurred on 4/5/2010. The accident was captured under OB No.2 of 4/5/2010 as a fatal road accident involving three vehicles, namely KBC 154D- whose driver and passenger died on the spot.The other vehicles were KAZ 869E driven by Alfred Kimathi and a bus registration number KBL 607A whose driver escaped.

8. PW 2 Peter Kamau Mwangi (the 1st plaintiff in this case) said Patrick Kamau Mwangi (deceased) was his younger brother and Phoebe Wamaitha was the wife of Patrick.

9. PW 2 adopted his written statement dated 12/4/2013 as his evidence in chief. He stated that on 3/5/2010 at around 11. 45 pm his sister-in-law called and informed him that she was trying to contact her sister but her calls were going unanswered. He later found out that she was in an accident on Thika road and proceeded to the scene of the accident.

10. He inquired where the occupants of Motor Vehicle KBC 154D were and was informed that they had been put in police land rover and taken away from the scene of the accident. when he arrived at the scene, the road surface was still undisturbed, there were brake marks on the road stretching from the outer lane across to the inner lane as you head towards town center and miraa straws were all over the road scattered everywhere.

11. There was a stone block used to separate the traffic to and from Nairobi which had been displaced and was in the middle of the lane of traffic heading from town towards Thika. The stone block was shattered on one side an indication that it had been hit by something and displaced from its original position. The bus, motor vehicle number KBL 607A had been extensively damaged on the right hand side and on the front it had a hole where you could see the chassis inside. The bus was on the service road heading from Nairobi towards Thika.

12. He later headed to Nairobi City Mortuary where he identified the bodies of the deceased among them were his brother and wife (sister in law) who had left behind his children; Sharon Wanjiku, Faith Kabura and Collins Mwangi. His brother Patrick Mwangi was a businessman and his wife was also his partner in the business since they ran them together. The deceased was a proprietor of several hotels and restaurants namely;a.Royal Restaurant at Cianda Market Nairobib.Cheers Inn restaurant in Mfangano Street, Amber House Nairobic.Cheers In pub also at Mfangano Street Amber house Nairobi.

13. All the businesses collapsed and the children are all currently in school. PW2 indicated that he currently lives with all three children. The deceased were both buried on 11/5/2010 where they incurred several expenses as they had to move the bodied from City Mortuary to Kenyatta University Mortuary. They also had to do several announcements in the media to inform friend and relatives of their demise.

14. PW 2 said at the time of his death, the deceased was running 3 businesses namely Royal Restaurant at Cianda market Cheers Restaurant along Mfangano street at Amber House and Cheers Inn Pub also along Mfangano street which was in the same building but different premises. Patrick was 41 years old while Phoebe was 40 years old.

15. PW 2 said the businesses all collapsed in 2015. He produced documents in respect of the businesses as exhibits in this case.

16. PW 3 Joyce Njeri Mwangi (the second plaintiff) said the deceased were her younger brother-in-law and sister-in-law.

17. PW 3 adopted her written witness statement dated 12/4/2013 as her evidence in chief. In the said statement PW 3 reiterated what was contained in the statement of PW2.

18. PW 4 William Fredrick Omondi, an accountant currently working with an audit firm said he was the accountant for the deceased in their businesses.

19. PW 4 prepared reports in respect of the three businesses which the deceased persons were operating which reports were produced in this court as exhibits.

20. PW 4 said Patrick was making ksh.250,000 per month while Phoebe was making 100-150,000 per month and they were remitting taxes to KRA.

21. The defendants did not call any witnesses. the parties filed written submissions which I have duly considered.

22. The plaintiff submittedon liability that PW 1, John Ouko gave evidence that, on the night of 3rd May, 2010 along Thika Road near Safari Park Hotel, Motor vehicle registration number KBL 607A that was a bus being driven towards Nairobi lost control and caused an accident that eventually hit and went over motor vehicle KBC 154D, causing both the driver Patrick Kariuki Mwangi and Phoebe Wamaitha Muthoga the passenger fatal injuries.

23. The Deceaseds’ bodies were transported away by fellow Police Officers from the scene of the accident. He further pointed out that the driver of vehicle registration number KBL 607A escaped from the scene of the accident. It was his evidence that the accident was reported to Kasarani Police Station and placed under investigation as per 0B no. 2 of 4/05/2010 and to that confirmed occurrence of the accident and the authenticity of the police abstract as the same was produced as Exhibit No. 3 on Page 12 of the documents and he also produced 0B extract as Exhibit No. 3A.

24. PW1 confirmed that from the investigation of the accident, the driver of KBL 607A one Wanyoike Henry Kamau was blamed for causing the accident.

25. The defendants have produced no evidence nor witnesses to rebut this position and hence the burden is on the defendants to rebut and in absence of the same the evidence remains uncontroverted. The plaintiff’s case stands unchallenged and in light of the foregoing has proved its case on a balance of probability.

26. On quantum the plaintiffs submitted that an award of Kshs. 100,000 for each of the deceased would suffice and in support cited the case of Sukari Industries Limited v Clyde Machimbo Juma [2016] eKLR where it was held;“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased's estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged before death. According to various decisions of the High Court, the sums have ranged from Kshs. 10,000/= to Kshs. 100,000/= over the last 20 years hence I cannot say that that the sum ofKshs.50,000/= awarded under this head is unreasonable."

27. On loss of life expectancy, the plaintiff submitted that the deceased were 41 and 40 years of age respectfully when they met their unfortunate death. It was PW2, PW3 and PW4’s testimony that the deceased were business persons who were engaged in the running of their businesses. On this head the plaintiffs proposed an award of Kshs 200,000 for each deceased which would be adequate compensation due to the passage of time and inflation.

28. On loss of dependency the plaintiff submitted that PW4 testified that the Deceased used to earn an amount of Kshs.250,000/= and Kshs. 150,000/ = each monthly between them being Patrick Kariuki Mwangi and Phoebe Wamaitha Muthoga respectively as a partner behind the scenes from the business and evidence of the same was tendered as the financial statements and Reports for the financial years ended 2007, 2008 and 2009. The plaintiffs urged the Court to apply and/or adopt a multiplicand of Kshs.400,000 being the total monthly earning of the Deceased household.

29. On special damages the plaintiff submitted that they have sufficiently proved the particulars of special damages pleaded as all the receipts from the various service providers were produced and totaled to Kshs. 235,955.

30. The Defendant submitted that there was no eye witness to the accident and therefore, the court should therefore dismiss the case or apportion liability at 50:50.

31. The Defendant relied on the case of Domitila Wangui Karugu 7 Another Vs Dagu Haide [2020]eKLR where the court held that when it is not clear how the accident occurred, liability should be apportioned at 50:50.

32. On the issue of damages, the Defendant proposed the same as follows: general damages for pain and suffering @10,000/= each; loss of expectation of life @50,000/= each and loss of dependency a global figure of @1,000,000/=

33. The Defendant further submitted that if the court is inclined to use the multiplier approach, the court should apply a multiplier of 13 years but did not propose a multiplicand.

34. I have considered the evidence adduced in this case together with the submissions by both parties.

35. It is the duty of the plaintiffs to prove their case and the standard required in civil suits is on a balance of probabilities.

36. The issues for determination in this case are as follows;i.Whether the plaintiffs proved their case to the required standard on liability.ii.Whether the plaintiffs are entitled to the remedies they are seeking against the defendants.

37. On the issue of liability, I find that the evidence of PW 1 was that it was the driver of motor vehicle registration no. KBL 607A that was to blame for the accident. This evidence was not rebutted by the defendants.

38. There is no dispute that the accident occurred along Thika Road near Safari Park Hotel when motor vehicle registration no. KBL 607A, a bus was being driven by the 2nd defendant towards Nairobi. There is also no dispute that it belonged to the 1st defendant .

39. The deceased were on the side going the opposite direction when the 2nd Defendant swerved off its lane and slided onto the path of motor vehicle registration no. KBC 154D cutting half of the said motor vehicle occasioning fatal injuries to the two deceased persons.

40. Although there was no eye witness, PW1 relied on the police abstract form in his testimony on how the accident occurred.PW1 said the 2nd Defendant was to blame for the accident.

41. The Defendants did not adduce evidence in this case and I find that the plaintiffs’ evidence has not been challenged. The deceased persons died at the scene but the 2nd Defendant survived the accident but he was not called to testify.

42. The Defendants had the opportunity to call a witness to rebut the plaintiffs’ evidence but they choose not to do so. The inference is that their evidence would have been prejudicial to the Defence case.

43. Section 112 of the Evidence Act Chapter 80 of the laws of Kenya states as follows;“Proof of special knowledge in civil proceedings.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

44. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR the court stated as follows;“Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

45. I find that the Defendants have filed witness statements which are on record which they did not produce.

46. The doctrine of les ipsa loquitor can be safely invoked in this case.

47. In the case of Susan Kanini Mwangangi & another v Patrick Mbithi Kavita (2019) eKLR where there were no eye witnesses to the accident that resulted to the deceased therein sustaining fatal injuries, the court on the issue of lack of eye witnesses held as follows;“That is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the Plaintiff was a passenger in the vehicle that got involved in an accident in which event res ipsa loquitor may be successfully involved.”

48. In the current case, it is not in dispute that the 2nd Defendant left his lane and collided with the deceased’s motor vehicle which was going the opposite direction and I hold the defendants 100% liable in negligence for the fatal injuries sustained by the two deceased persons in this case.

49. On the issue as to whether the plaintiffs are entitled to the general damages they are seeking, I find that the two plaintiffs were issued with letters of administration of the deceased’s Estate.

50. The deceased were husband and wife who left behind the following children;i.S. W. a daughter aged 16 yearsii.F. K. K. a daughter aged 13 yearsiii.C. M. a son aged 6 years.

51. I find that the plaintiffs are entitled to be paid the damages they are seeking in respect of the deceased’s Estates on behalf of the beneficiaries listed above.

52. On general damages for pain and suffering, I find that Phoebe died at the scene. I award ksh.10,000 in respect of Phoebe and kshs.50,000 in respect of Patrick.

53. On the issue of loss of expectation of life, I award each deceased a global figure of kshs.100,000 in respect of both deceased persons.

54. I rely on the case of Mercy Muriuki & Another vs. Samuel Mwangi Nduati & Another (Suing as the legal Administrator of the Estate of the late Robert Mwangi) [2019] eKLR, the court observed:“The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Ksh. 100,000/- while for pain and suffering the awards range from Ksh. 10,000/= to Ksh. 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death.”

55. On the issue of loss of expectation of life, I award a multiplicand of 150,000 for Patrick and 100,000 for phoebe.

56. Although the accountant’s evidence was that Patrick’s average income was Kshs.250,000 per month and Phoebe Kshs.150,000, I have considered the vagaries of life and I award a multiplicand of Kshs. 150,000 and 100,000 accordingly.

57. I find that the defendants did not rebut the evidence of the plaintiffs on the loss of future income in respect of the two deceased persons. The two deceased persons were operating several bars and restaurants at the time of their demise.

58. In the case of Rev. Father Leonard O. Ekisa & another V Major Birgen [2005] e KLR where Ringera J held as follws on the issue of determining the multiplier in cases of loss of future income;“In determining the right multiplier, the right approach is to consider the age of the deceased, the balance of earning life, the age of dependants, the life expected, length of dependancy, the vicissitudes of life and factor accelerated by payment in lump sum ( Hannah Wangaturi Moche & Another V Nelson Muya HCC 4533/93).”

59. Patrick was 41 years he would have worked to the age of 60 while Phoebe was 40 years at the time of death.

60. I adopt a multiplier of 19 years for Patrick and 20 years for Phoebe and a dependency ratio of 2/3 for both.

61. In respect of Patrick I award19 x 150,000x12 x 2/3 = 22,800,000/=

62. In respect of Phoebe I award20 x 100,000x12 x 2/3 = 16,000,000/=

63. Special damages were pleaded as follows;i.Funeral announcement – Nation Media group Ksh.28,875. 00ii.Funeral announcement – Kameme F. M. ksh. 3,600. 00iii.Funeral announcement – Royal Media Services ksh. 5,100. 00iv.Hire of security ksh.16,800. 00v.Hire St. John Ambulance ksh.20,000. 00vi.Funeral home(mortuary- Patrick Kariuki) ksh. 9,000. 00vii.Funeral home (mortuary – Phoebe Wamaitha) ksh. 9,000. 00viii.Booking Precious Funeral services ksh.67,000. 00ix.Pathologist report ksh. 6,000. 00x.City council of Nairobi mortuary (2 bills) ksh. 6,200. 00xi.Burial expenses (Mineral water) ksh. 2,880. 00xii.Motor vehicle search ksh. 500. 00xiii.Hire of city hopper bus ksh.29,000. 00xiv.Clothes for children ksh.50,000. 00Total ksh.253,955. 00

64. I find that the specials were not disputed and I award them as prayed.

65. The total award is as follows;Liability 100%i.General pain & suffering Patrick 50,000 Phoebe 10,000ii.Loss of expectation of life Patrick 100,000 Phoebe 100,000iii.Loss of dependency Patrick 22,800,000 Phoebe 16,000,000iv.Special damages 253,955Total 39,313,955

66. Judgment be and is hereby entered in favour of the plaintiffs against the defendants jointly and severally in the sum of kshs.39,313,955 together with costs of the suit and interest at court rates from the date of this judgment until payment in full.

67. Section 4(1) of the Fatal Accident Act provides as follows;“(1)Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused, and shall, subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those persons in such shares as the court, by its judgment, shall find and direct:”( Emphasis added)

68. I rely on the case of Sukari Industries Ltd Vs Clyde Machimbo Juma (suing as personal representatives of the Estate of John Juma Machimbo) where the court said as follows;“The second issue is that when the court makes an award under the Fatal Accidents Act, it must, in accordance with section 4(1) apportion the amount awarded to each dependant and where children are involved approve a scheme of investment for the sums due to the children. ………………………………..As a matter of law where the amount is for the benefit of a child or children there must be a continuing trust under section 58 of the Law of Succession Act (Chapter 160 of the Laws of Kenya) this the amount must be held by more than one trustee.”

69. The said sum is apportioned as follows;a.S. W. -20%b.F. K.K. - 20%c.C.M. - 30%d.The administrators - 30%For the upkeep of the children.Orders to issue accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. ………….…………….A. N. ONGERIJUDGEIn the presence of:……………………………. for the Plaintiffs……………………………. for the 1st Defendant………………………….… for the 2nd Defendant