[2023] KEHC 25696 (KLR)

Orguba (Suing on her Own Behalf and as the Personal Representative of the Estate of Benard Ntepes Nale - Deceased) v Muthama & another (Civil Suit E003 of 2021) [2023] KEHC 25696 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25696 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Suit E003 of 2021

RM Mwongo, J

November 20, 2023

Between

Rose Ngoilelo Orguba (Suing on her Own Behalf and as the Personal Representative of the Estate of Benard Ntepes Nale - Deceased)

Plaintiff

and

Jefferson Mwanzia Muthama

1st Defendant

Mombasa Maize Millers Nairobi Ltd

2nd Defendant

Judgment

Background 1. On 9th December, 2020, the deceased was driving motor vehicle registration number KCW 486D along Sagana - Karatina Road at Kibirigwi area when the 2nd defendant’s motor vehicle registration number KCQ 013L M/FH driven by the 1st Defendant allegedly encroached into the deceased's lane and crashed into motor vehicle KCW 486D. As a result, the deceased suffered fatal injuries Consequently, the plaintiff filed a plaint in this court seeking general and special damages

2. In their defence, the defendants denied all claims of negligence, injuries and loss alleged by the plaintiff. In the alternative the defendants claimed that if indeed any accident occurred, it was wholly and/or substantially as a result of the deceased's negligence.

3. On 24th October, 2022, the parties signed a consent agreement along the lines that: liability be apportioned in the ratio of 90%:10% in favour of plaintiff; documents filed with pleadings be adopted without calling the makers; and that parties do file submissions on quantum for determination by the court.

4. As such the only issue for determination in this court is the question of quantum.

Parties’ Submissions General Damages 5. The plaintiff submitted on general damages as follows:

Loss of Dependency 6. The plaintiff submits that it is evident from the letter dated 21st July 2020 by Kenya Pipeline Company Limited as read together with his Letter of Appointment dated 10th July, the gross pay of Kes.329,125 per a month as at December 2020 was subject to a PAYE of Kes.73,511. 20 leaving the deceased with a net pay of Kes 255,613. 80 which their opinion should be used as the multiplicand.

7. In the case of Hellen Gesare Ayoti (suing as the legal representatives of the Estate of the Late Justus Momanyi Ayot) v P.N.Mashru Ltd [2016] eKLR, Mulwa, J while dealing with the same issue held at paragraph 6 that:“I am persuaded to agree and abide by the principles stated in the Beatrice Wangui Thairu (Supra)and make a finding that the NET salary of a person's earnings is gross salary including allowances less statutory deductions (P.A.Y.E, N.H.I.F and N.S.S.F). It is also my finding that any other deductions towards union dues, contributions Sacco Loans and any other loans are assumed to be so deducted for the benefit of the family, that goes to the improvement of living conditions for the family."

8. The plaintiff submits that the deceased was of good health and, taking into account the vagaries of life, the deceased was expected to live an active life up to the common retirement age of 60. It is evident from the death certificate produced as Plaintiffs exhibit 4 that the deceased died at the age of 49 years. Considering the age of retirement, the deceased still had eleven (11) years of active service as a civil servant.

9. The Plaintiff thus submits on the loss of dependency as follows: Kes.255,613. 8050*12*11*8*2/3=KES.22,419,014. 40

Pain and suffering 10. On the issue of pain and suffering, reiterate the Plaintiff's submissions and rely on the cases cited therein. Further, the case cited by the Defendants, the deceased therein died on the spot whereas the deceased.in this case did not die immediately after the accident but was taken to hospital and died while undergoing treatment. The Plaintiff thus urges the Court to award a sum of Kshs 100,000 for pain and suffering. On loss of expectation of life plaintiff urged the Court to award Kes 200,000.

Defendant’s submissions Damages under the Law Reform Act Pain and suffering 11. The Certificate of death dated 5th February, 2021 shows that the deceased died on the same day the accident occurred.

12. In Kioko Peter v Beatrice Keli Mbuvi (Suing as the legal representative of the Estate of Amos Mutunga (deceased) Civil Appeal 136 of 2019 [2022] ekLR the appellate court reduced the trial court's award of Kshs.20,000/= to Kshs.10,000/=for general damages for pain and suffering where the deceased died on the same day.

13. While relying on the above case, it is the defendant's submission.that.an award of Kshs.10. 000/= would be sufficient for general damages for pain and suffering.

Loss of expectation of life 14. The defendants submit that an award of Kes.100,000/= for loss of expectation of life is sufficient.

15. They cite the case of Antony Njoroge Ng'ang'a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng'ang'a Njoroge) v James Kinyanjui Mwangi & 2 others [2022] eKLR where the Court awarded Kes 100. 000/= under this head and went ahead to quote the case of Hyder Nthenya Musili & Another v China Wu Yi Limited &Another [2017] eKLR, that stated that the conventional award for loss of expectation of life is Kshs.100,000/=.

Damages under the Fatal Accidents Act a Multiplicand 16. The Plaintiff in her documents had attached a pay slip dated 24th May 2019 a letter from the Deceased Employer dated 21st July 2020 and the deceased’s letter offer dated 10th July, 2020.

17. According to the pay slip (page 15) dated 24th May, 2019, the deceased earned a net pay of Kes.75,937. 35 upon all the deductions. Further, according to the letter from the deceased Employer dated 21st July, 2020, the Deceased has been promoted and the basic salary was increased by Kshs.21,250/= thus totalling to Kes.196,250/=as gross salary.

18. With regard to Plaintiff's submissions proposing a multiplicand of Kshs.329. 125/=. The defendant submitted that the said amount is erroneous as the same has not taken into account all the deductions that were due as per the payslip provided as evidence before the Court. Failure to take into consideration the loan deductions would amount to double compensation as the proceeds of the loans have already been utilized.

19. In the circumstances, the defendant invited the Court to find that the net pay of Kshs.97. 178. 35 (Kshs.75,937. 35+Kshs.21,250) is a suitable amount for the Multiplicand.

b Multiplier 20. The deceased died at the age of forty -nine (49) hence, being that he was a civil servant he would have retired at 60 years. It was submitted that ten (10) years are sufficient factoring in uncertainties and vicissitudes of life and productivity.

21. The defendants relied on the case of Nyamai Petronila & another v Monica Usyoki & another [2020] eKLR where Odunga J upheld a multiplier of 10 years for a deceased who was 49 yrs old.

c Dependency Ratio 22. The defendants agree with the Plaintiffs submissions under this head, that the ratio of two thirds is applicable as the deceased was married and had children.

Special Damages 23. On special damages the defendants argue that having perused all the copies of records with regards to expenses provided by the plaintiff, they amount to Kes. 51,500/=. They urged the court to only award special damages that have specifically been proved.

Issue for Determination 24. The only issue for determination as earlier pointed out is what quantum of damages should be awarded.

Analysis and Determination Damages under the Law Reform Act Pain and suffering 25. The Plaintiff urged the Court to award a sum of Kes 100,000 for pain and suffering as the deceased died while being rushed to the hospital.

26. The defendants submitted that the Certificate of death dated 15th February, 2021 shows that the deceased died on the spot after the accident occurred. Hence, should be awarded Kes 10,000.

27. In Kioko Peter v Beatrice Keli Mbuvi (Suing as the legal representative of the Estate of Amos Mutunga (deceased) Civil Appeal 136 of 2019 [2022] ekLR the appellate court reduced the trial court's award of Kshs.20,000/= to Kshs.10,000/=for general damages for pain and suffering where the deceased died on the same day.

PARA 28. The death certificate indicates that the deceased died at Kangocho where the accident occurred. Hence the amount of pain and suffering shall be Kes 10,000.

Loss of expectation of life 29. The plaintiff urged the Court to award Kshs 200,000.

30. The defendants submit that an award of Kshs.100,000/= for loss of expectation of life is sufficient.

31. In the case of Antony Njoroge Ng'ang'a (Legal representative of the Estate of the late Fred Nganga Njoroge aka Fred Ng'ang'a Njoroge) v James Kinyanjui Mwangi & 2 others [2022] eKLR where the Court awarded Kshs. 100. 000/=under this head and went ahead to quote the case of Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR, that stated that the conventional award for loss of expectation of life is Kshs.100,000/=.

32. Accordingly, I think that an award of Kshs. 100,000 is reasonable in this case.

Damages under the Fatal Accidents Act Loss of Dependency 33. According to the plaintiff, it is evident from the letter dated 21st July 2020 by Kenya Pipeline Company Limited as read together with the plaintiff’s letter of Appointment dated 10th July, 2020, that the gross pay of Kes.329,125 per a month as at December 2020 was subject to a PAYE of Kes.73,511. 2. This leaves the deceased with a net pay of Kes,255,613. 80 which in our considered opinion should be used as the multiplicand.

34. The defendant submits that the net pay of Kes.97. 178. 35 (Kes.75,937. 35+Kes.21,250) is a suitable amount for the Multiplicand.

35. In the case of Hellen Gesare Ayoti (suing as the legal representatives of the Estate of the Late Justus Momanyi Ayoti) v P.N.Mashru Ltd [2016]eKLR, Mulwa, J, while dealing with the same issue held at paragraph 6 that:“I am persuaded to agree and abide by the principles stated in the Beatrice Wangui Thairu (Supra)and make a finding that the NET salary of a person's earnings is gross salary including allowances less statutory deductions (P.A.Y.E, N.H.I.F and N.S.S.F). It is also my finding that any other deductions towards union dues, contributions Sacco Loans and any other loans are assumed to be so deducted for the benefit of the family, that goes to the improvement of living conditions for the family."

Multiplicand 36. In this case the multiplicand is Kes,255,613. 80

Multiplier 37. The deceased died at the age of forty -nine (49) hence, being that he was a civil servant he was would have retired at 60 years. In my view ten (10) years are sufficient when you factor in uncertainties and vicissitudes of life; and productivity, and both parties were agreed that ten (10) years were appropriate as the multiplier.

38. I am fortified in my conclusion by the case of Nyamai Petronila & another v Monica Usyoki & another [2020] eKLR where Odunga J upheld a muliplier of 10 years for a deceased who was 49 yrs old.

Dependency Ratio 39. Both parties were agreed that the ratio of two thirds is applicable as the deceased was married and had children. Thus, the loss of dependency as follows:Kes.255,613. 8050*12*10*2/3=Kes.20,529,104. 40

Special Damages 40. Both parties submitted that special damages proved amounted to Kshs. 51,500/=.

Conclusion 41. In summary, given the consent on liability in favour of the plaintiff at 90%, the plaintiff is entitled to the following amounts:a.Loss of Dependency……………………………..Kes 20,529,104. 40b.Loss of expectation of life……………………….Kes 200,000. 00c.Pain and suffering ……….………………….…..Kes 100,000. 00d.Special Damages ……………………………….Kes 51,500. 00Summation……….Kes 20,880,604. 40Less 10% contribution…………………………..Kes (2,088,060. 44)Total due…………………………Kes 18,792,543. 95

42. The plaintiff is entitled to interest at court rates from the date of filing suit.

43. The plaintiff is also entitled to costs of the suit.

44. Orders accordingly.

DATED AND DELIVERED AT KERUGOYA THIS 20TH DAY OF NOVEMBER, 2023R. MWONGOJUDGEIn the presence of:1. Mr. Kariuki for the Plaintiff2 Ms. Amanya for the Defendant3. Mr. Murage, Court Assistant