[2023] KEHC 23526 (KLR)

Philip (Suing as legal representative of the Estate of Alfred Kioki Muthoka (Deceased) v Philip & 2 others (Civil Suit 143 of 2017) [2023] KEHC 23526 (KLR) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23526 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Suit 143 of 2017

TM Matheka, J

October 5, 2023

Between

Pauline Ndunge Philip (Suing as legal representative of the Estate of Alfred Kioki Muthoka (Deceased)

Plaintiff

and

Francis Mutinda Philip

1st Defendant

Steve Mutuku Peter

2nd Defendant

Obadiah Nguyo Kamwalo

3rd Defendant

Judgment

1. On 11th June 2015 an road traffic accident happened along the Mombasa/ Nairobi Road involving MV REG No KBW 256 U in which Alfred Kioko Muthoka the deceased was travelling. According to the plaint filed on 13th July 2017 he was a lawful passenger in the m/v which was driven by the 4th defendant

2. The 1st 2nd and 3rd Defendants are described as the registered owners of the said mv while the 4th defendant was described as their authorised driver, servant and or agent or owner and or beneficial owner of the motor vehicle.

3. It was the plaintiff’s case that the accident was caused by the sole negligence of the 4th defendant.

4. The deceased died in the accident leaving a widow and a child RMK aged 4 years old at the time.

5. The plaintiff sought general damages under the Fatal Accidents and Law Reform Acts, Special Damages of Ksh 250,500, costs of the suit and interest.

6. It was pleaded that the deceased was 33 years old at the time of death, was employed and earned Ksh 153, 689 per month.

7. The 3rd defendant entered appearance and filed defence on 2nd August 2017 where it was averred that the 3rd Defendant was merely the financier of the loan facility for the purchase of the said m/v. There is another defence filed on the 22nd August 2017, whereby the 3rd defendant denies the accident and any liability for the same

8. The plaintiff filed an amended defence on the 15th November 2017 which included details of the deceased’s employment as a clinical officer with MSF CH Sudan.

9. On 1st February 2023, the Hon Justice Dulu interlocutory Judgment against the 1st and 2nd Defendants however there is only one defence on record that of the 3rd defendant.

10. The matter proceeded by way of formal proof she relied on the documents she had filed in support of her claim.

11. The defendants did not appear to testify despite service.

12. There are two issues for determination: who was to blame for the accident, and the quantum of damages.

13. Counsel for the plaintiff filed written submissions.

14. The plaintiff produced limited grant for the estate of the deceased allowing her to sue on behalf of the estate of her deceased husband’s estate.

15. She also produced her the deceased’s husband’s payslip for April 2012 showing that he was taking away Ksh 110, 692 as net pay.

16. She produced the post-mortem report, Police abstract from Salama Sub Base dated 16th June 2015 police red No IAR(F) 27 /2015. It shows that there was a collision between two m/v KBW 256U and KBL 110K /ZD 386Z. It indicated that it was intended to charge the driver of m/v registration No KBW 256U Obadiah Nguyo Kamwaro with causing death by dangerous driving. As at the time of issuing the Police Abstract the matter was PUI- pending under Investigation.

17. I have considered the submissions by counsel for the plaintiff.

18. On liability it is submitted that there was a collision of two m/vehicles and that the 4th defendant was solely to blame for the accident.

19. The plaintiff did not institute any suit against the driver/owner of the other m/v despite being aware that there was a collision. However, the defendants were also aware of the fact of the collision and did not seek to join the other m/v as a third party. The 3rd defendant filed defence and documentary evidence and statements which were intended to demonstrate that the 3rd defendant was merely the financier for the purchase of the said m/v. However, the 3rd defendant did not come to court to testify and the defence and documents do not amount to evidence

20. In the circumstances the plaintiff’s testimony that the defendants are 100% liable for the accident is not challenged. See various authorities cited by the plaintiff including Karuru Munyororo v Joseph Ndumia Murage &another Nyeri HCCC No 95 of 1988

21. On quantum it is submitted as followsi.Pain and suffering Kshs 50000 as the conventional award as per Mercy Muriuki & another v Samuel Mwangi Nduati & another (Suing as the Legal Administrator of the Estate of the late Mwangi [2019] eKLRii.Loss of expectation of life Ksh 200,000 citing Patrick Kariuki Muiruri & 3 others v Attorney General [2019] eKLR where the sum was awarded for a 29 year oldiii.Dependency ratio of 2/3 relying on Joseph Gatone Karanja v John Okumu Soita & Esther Chepkorir (Suing a the administrator of the estate of Bernard Soita Nyongesa (DCD)[2022]eKLR because the deceased was married and had a child hence the expectation that he would be supporting his family.iv.For the Multiplicand it is proposed that the net salary be used. It is argued that net salary means the salary less PAYE. This comes to Ksh 112,350. No Multiplier is proposed. The plaintiff relies on Patrick Kariuki Muiruri & 3 others v Attorney General [2019] eKLR where the court expressed the view that;We have considered the material available before the judge and have reached the same conclusion the deceased was not employed at the time of death. The judge employed a multiplicant of Shs.120,000 per month and a multiplier of 25 years at the dependency ratio of one third which gave the sum of Shs.12,000,000. This was reasonable in the circumstances where employment or earnings was not proved, and where the deceased was aged 29 at the time of his unfortunate death.

22. Having considered the submissions and the authorities cited I find that there sum of Ksh 50,000 is reasonable for pain and suffering.

23. The conventional sum for loss of expectation of life is Ksh 100, 000 and I find that reasonable in the circumstances of this case

24. On loss of dependency, the plaintiff did not elaborate on how she was dependant on the husband. He died at the age of 34 years, she was 29 years old and their baby was about three years old. It is my considered view that the dependency ratio of 2/3 was not justified in her testimony. I would assess dependency at this time at 1/3

25. On the multiplier I would use 20 years taking into consideration that the deceased could have worked up to 55 years and the vicissitudes of life see Patrick Kariuki Muiruri. 112,350x20x12x1/3=8,988,000

26. Judgment is therefore entered for the plaintiff against the defendants jointly and severally as follows:Liability – 100%Pain and suffering – Ksh 50000Special Damages - Ksh 250,500Loss of expectation of life – Ksh 100,000Loss of decency – Ksh 8,988,000Total Ksh 9,388,500 plus costs and interest at Court rates

DATED SIGNED AND DELIVERED VIA EMAIL THIS 5TH OCTOBER2023. ...............................................MUMBUA T MATHEKAJUDGECA MwiwaPlaintiff’sInfo@muumbilaw.com;Defendant representativecmmuoki@hotmail.com