[2022] KEHC 1455 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 110 OF 2016

PATRICIA MCCARTHY (Suing as the legal

representative and administratix of the estate

of JAMES MCCARTHY-Deceased).................................................PLAINTIFF

-VERSUS-

RONALD ABERE…............................................................1ST DEFENDANT

PAUL KIILU MUTUA........................................................2ND DEFENDANT

JOHN BOSCO KYAYEKA.................................................3RD DEFENDANT

TRADE WINDS AVIATION SERVICE LIMITED.........4TH DEFENDANT

KAPTUMOISE INVESTMENT LIMITED.....................5TH DEFENDANT

JEMBE STEPHEN LEONARD…………………………6TH DEFENDANT

MAGMA AVIATION LIMITED.....................................7TH DEFENDANT

JUDGMENT

1. Patricia MCcarthy, the plaintiff herein and the legal representative of the estate of James F. McCarthy (“the deceased”) lodged a suit against the defendants by way of the Amended plaint dated 1st March, 2018 in which she sought for general damages under the Fatal Accidents Act and the Law Reform Act, special damages in the sum of Kshs.1,700/= plus funeral expenses to be ascertained at the hearing together with costs of the suit and interest thereon.

2. The 4th, 5th and 6th defendants are sued in their capacity as the owners of motor vehicles Numbers KBK 502U, KBF 458U and KBA 167K respectively while the 1st, 2nd and 3rd defendants were the drivers of the said vehicles.

3. The plaintiff pleaded in her plaint that sometime on or about the 13th day of December, 2010 the deceased and his crew members were heading to Jomo Kenyatta International Airport on board motor vehicle KBK 502C Nissan Van which belonged to Trade Winds Aviation Services Limited when the driver of Motor Vehicle KBA 167K the 1st defendant herein stopped abruptly obstructing Motor Vehicle KBK 502C.

4. The plaintiff further pleaded that the driver of Motor Vehicle Registration Number KBF 458U herein the 2nd defendant was driving at excessively high speed, hit and collided with motor vehicle number KBK 502C and KBA 167K from the rear causing an accident in which Mr. James McCarthy the deceased herein suffered fatal injuries and died while admitted at the Matter Hospital.

5. The plaintiff attributed the accident to negligence jointly and severally on the part of 1st, 2nd and 3rd Defendants, their authorized drivers, servants and/or agents and 4th, 5th and 6th defendants are vicariously liable for the negligence of their authorized drivers, servants and/or agents as set out its particulars under paragraph 15 of the plaint.

6. It was also pleaded in the plaint that at the time of his death he was a 55-year old man, who enjoyed good health and lived a happy and vigorous life, supported his family financially and materially, and has now left behind the following dependants:

i. Patricia McCarthy Widow

ii. Paul McCarthy Son

iii. Jose M.Terrezo Son

iv. Peter McCarthy Son

v. Oscar Rerrezo Son

7. The defendants did not enter appearance nor file a defence to deny the plaintiff’s claim.

8. When the suit came up for hearing, the plaintiff testified and summoned one witness in support of his case. The plaintiff adopted his executed witness statement as evidence and produced her list and bundle of documents dated 2nd April 2019 as PEXH 1-10. She further produced the list of documents dated 7th September 2021 as PEXH-11 and another document dated 19th November 2021 as PEXH-12

9. The Plaintiff stated that her husband's death has impacted her and her four children because he was the primary breadwinner.

10. The plaintiff further stated that due to a lack of funds, her children were forced to drop out of school and college. She added that they had lost their home and had been struggling to keep their present residence. She therefore prays for judgment as prayed in the plaint.

11. PC Joseph Wachira Number 85070 (PW2) gave evidence that he is currently at Industrial area police station performing traffic duties.

12. PW2 produced the police abstract form (PEXH-8) dated 25th February 2013 and the investigation report (PEXH-12) dated 13th December 2010. He stated that from the investigation report the Motor vehicle KBA 167K is solely to blame for the accident.

13. He further stated that he did not prepare the report nor the investigation as they were prepared by one P.C Koross whom he was unable to trace.

14. At the close of evidence learned counsel was invited to file written submissions which she did. The learned counsel identified two issues for determination as follows:

i. Whether the Defendants were jointly liable for the accident that occurred on 13th December 2010 and if so to what extent.

ii. Whether a basis has been laid for awarding the Plaintiff damages and if so, the quantum.

15. On the issue of liability, counsel submitted that all the circumstances preceding the accident and at the time of the accident places responsibility of the accident wholly on the 1st, 2nd and 3rd Defendants who were the drivers as they did not exercise due care and attention in the circumstances.

16. The plaintiff further submits that copies of the motor vehicle searches record produced as exhibits before this court demonstrated that the 4th, 5th and 6th defendants are registered owners of the Motor Vehicles involved in the accident and it is not in question that the said defendants are vicariously liable for the negligence of their authorized drivers, servants and/or agents.

17. On this argument the plaintiff relied on the case of Tabitha Nduhi Kinyua v Francis Mutua Mbuvi & Another,(2014) eKLR it was held as follows:

“In order to fix liability on the owner of a car for negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent . To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his. Instructions and was doing so in performance of the task or duty thereby delegated to him by the owner”

18. The plaintiff further submitted that the 1st ,2nd and 3rd defendants can only have been driving the subject motor vehicles with the implied authority of the 4th,5th and 6th defendants who should be held vicariously liable. On this argument the plaintiff relied on the Court of Appeal case of Nyeri Board of Governors of Kangubiri Girls High School & Another vs Jane Wanjiku Muriithi & Another, [2014] e KLRquoted with authority inHyder Nthenya Musili & Another v China Wu Yi Limited & Another (2017) eKLR where it was held that when a car is proved to have caused damage by negligence, a presumption arises that the owner is responsible for the driver’s liability. The Plaintiffs urged this Court to find and hold the defendants liable for the accident at 100%.

19. The plaintiff contends that the deceased being a passenger cannot be blamed for the accident since he had no control over the vehicle and that the defendants failed to discharge the evidential burden by not adducing evidence that the deceased failed to wear a safety belt and is therefore to blame for the accident.

20. It is the plaintiff’s submissions that the deceased was employed by the 7th defendant and was in the course of employment, while executing his lawful duties within the terms of his employment when he met his untimely death, she therefore urges the court to find the Defendants jointly and severally liable for the accident 100%.

21. On the issue of damages under the Fatal Accident Act, the Plaintiff relied on the case of Beatrice Wangui Thairu v Hon. Ezekiel Barngetuny & Another, Nairobi HCCC No.1638 of 1988 quoted with authority in E M K & Another v E O O (2018) eKLR where it was held as follows:

“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

22. The plaintiff submitted that as per the evidence presented in this court, the deceased's average monthly net income from the two bank statements was kshs.1,425,000/= (US dollars $ 12,500), which included a net salary of kshs.1,006,962/= (USD $ 8,833) plus travel allowances, and that a dependency ratio of two thirds 2/3 is reasonable based on the evidence presented.

23. She further submitted that, according to the death certificate, the deceased was 55 years old when he died, therefore he would have worked until the statutory retirement age of 65 years, and a multiplier of ten years is appropriate given that the deceased was in great health and his income was to gradually grow over time.

24. It is therefore the Plaintiff’s submissions that damages for loss of dependency under the Fatal Accident Act will work at US Dollar $ 12,500x12x 10x 2/3=US Dollar $1,000,000. Ksh.1,425,000x12x10x2/3-ks,114,000,000/=

25. The plaintiff submitted that the deceased died while being treated at the Mater Hospital, and he died several hours after the accident, during which he was conscious and in pain, so he must have been in a lot of suffering before passing away. As a result, she contends that a $5,000 reward is sufficient in the circumstances. She relied on the case of Beatrice Mukulu Kang’uta & Another v Silverstone Quarry Limited & Another (2016) eKLRwhere Hon.P Nyamweya observed as follows:

“As regards the damages for pain and suffering, even though the deceased died on the same day of the accident, the death was not instantaneous and PW2 and PW3 gave evidence as to the pain that the deceased was in after the accident as he awaited treatment. In this regard while the accident occurred at 6am, the deceased passed on at 11. 40 am. I therefore award a sum of Kshs 200,000/= for pain and suffering for this reason.”

26. On the issue of loss of expectation of life, the plaintiff submitted that an award of ksh.114,000/= (US Dollar $1000 )is sufficient under this limb and she relied on the case of E M K & another v E O O (2018)eKLRwhere the court stated as follows:

“The conventional award for loss of expectation of life is Kshs 100,000/- while for pain and suffering the awards range from Kshs 10,000/= to Kshs 100,000/= with higher damages being awarded if the pain and suffering was prolonged before death. In the present appeal PW2 testified that the deceased died after a period of hospitalization of about two months. I therefore award Kshs 150,000/= as damages for pain and suffering and Kshs 100,000/= as damages for loss of expectation of life.”

27. On the issue of special damages, the plaintiff submitted that she has not only pleaded for special damages but has proved the same in her bundle of documents dated 2nd April 2019 and supplementary List of documents and has incurred legal expenses to the tune of Kshs.600,000/= in filing of Succession cause no.1881 of 2013 as well as the suit herein.

28. Upon considering the evidence on record, the submissions and authorities relied upon by the parties, I established that the twin issues for determination are liability and quantum.

29. On the first limb to do with liability, following my examination of the evidence on record, both oral and documentary, there is no doubt that an accident took place on the material date and at the place pleaded in the plaint, the result of which the deceased lost her life. It is also apparent that the accident involved four (4) motor vehicles, namely the subject vehicle and the second vehicle.

30. On the subject of ownership of the subject motor vehicle, the

plaintiff did tender copies of the search to show that the 4th, 5th and 6th defendants was at all material times were the registered owner of the KBF 458U,KBK 502C and KBA 167K respectively.

31. On the particulars of negligence, the police abstract dated 25th February, 2013 indicates that the material accident involved the four subject vehicles and that the case is pending under investigation.

32. In the premises, I hereby enter 100% liability against all the defendants in consideration of the fact that the defendants did not enter appearance.

33. Having settled the first issue, I turn my attention to the second issue on quantum and which I shall address under the following heads.

a) General damages

i. Pain and suffering

34. Here, the plaintiff produced a death certificate to show that the deceased died on the date of the accident. In addition to his evidence and that of PW2, the plaintiff further produced medical evidence to show that the deceased was rushed to hospital following the accident and died several hours later. This shows that he experienced some pain and suffering.

35. Upon considering the sums proposed by the plaintiff of ksh.570,000 (US Dollars $ 5,000), I find that the cases cited were decided a few years ago. I therefore considered the case of West Kenya Sugar Co. Limited v Philip Sumba Julaya (Suing as the administrator and personal representative of the estate of James Julaya Sumba [2019] eKLRwhere the court awarded a sum of Kshs.30,000/= to the estate of a deceased who died instantly. I also considered the case of Alice Ombachi & another v Jerusha Kemunto Mokaya & Joshua Ageta Mokaya [Suing As Legal Representatives And Administrators of The Estate of Risper Nyaboke Mokaya (Deceased) [2019] eKLRin which an award of Kshs.50,000/= was awarded in the instance of a deceased who passed on less than one (1) hour after the accident in question.

36. I will therefore award a reasonable sum of Kshs.50,000/= under this head.

(ii) Loss of expectation of life

37. The evidence on record shows that the deceased died at the age of 55 years. There is nothing to indicate that he was of ill health.

38. A conventional award of Kshs.100,000/= was made in the case ofMumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate of Patrick Kweyu Ashuma (Deceased) & another [2018] eKLR I am convinced that a similar award of Kshs.100,000/= would constitute adequate damages for loss of expectation of life.

(iii) Loss of dependency

39. On the multiplier, the plaintiff tendered copies of the death certificate to show that at the time of his death, he was aged 55 years. In the absence of any comparable multipliers by the parties, I considered the case of Mutuku Mbithi and Muasya Kisili (2010 eKLR.) for this court to exercise its applicable jurisdiction to interfere with the award by substituting it with a multiplier of 4-5 years for calculating loss of dependency and expectation of life. I am persuaded that a multiplier of 5 years is reasonable.

40. On the multiplicand, the death certificate indicates the profession of the deceased as that of a commercial pilot. Moreover, the plaintiff tendered a copy of the deceased’s bank statements which indicated the salary received on 9th December 2010 from Aerospace Consortium FZE, 2008IN two installment of kshs.322,962/= (US Dollars 2,833) and kshs.684,000/= (6,000)respectively. Since the two bank statements produced before this court and were indicated as his salary, I will go by with thekshs.322,962/= (US Dollars 2,833) which is the average amount of money, the market rate of which a pilot in Kenya can be made since he died in Kenya.

41. In respect to the dependency ratio, it is apparent from the record that the plaintiff did not tender birth certificates for herself and her children. However she indicated that the salary of deceased’s fully utilized in payment of mortgages, school fees, insurance, utilities, food and household expenses which he deemed as evidence of dependency.

42. I am persuaded by the authority of Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLRwhere the court appreciated that the issue of dependency is dependent on the facts and circumstances of a case. In the instant case, there is no credible evidence to show that the plaintiff and his siblings depended solely on the deceased so as to necessitate a ratio of 2/3. In my view, a dependency ratio of 1/3 would suit the circumstances.

43. The Financial Markets department under the Central Bank of Kenya, compiles indicative foreign exchange rates daily for use by the general public. These rates reflect the average buying and selling rates of the major participants in the foreign exchange market at the open of trade every day, thus providing a good indicator for any interested party on the value of the shilling on any particular day.

44. At the time of writing this judgment the US Dollars exchange rate to the Kenya Shillings applicable was at Kshs.114. 00/=.

45. Consequently, the damages under this head are to be tabulated as follows:

US Dollars $ 2,833 x 5 x 12 x 1/3 =US Dollar $ 56,660

Ksh,322,962x5x12x1/3=kshs.6,459,240/=

46. In the end, I hereby enter judgment in favour of the plaintiff as against the defendants jointly and severally as follows:

a) General damages

i. Pain and suffering Kshs. 50,000/=

ii. Loss of expectation of life Kshs. 100,000/=

iii.Loss of dependency Kshs.6,459,240/=

Total Kshs.6,609,240/=

b) The award to attract interest at court rates from date of judgment until the date of payment in full.

c) Costs of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

………….…………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the Defendant