[2022] KEHC 1624 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 310 OF 2010

ROSE WANJIRU WACHIRA (Suing as the administrator ad litem to the estate of

JAMESKARIUKI KAROGO-Deceased)......................................................PLAINTIFF

-VERSUS-

JOSEPH NGIGE MIRINGU................................................................1ST DEFENDANT

SUPERSTONE (2006) LIMITED.........................................................2ND DEFENDANT

JUDGMENT

1. Rose Wanjiru Wachira, the plaintiff herein and the administrator ad litem to the estate of James Kariuki Karogo (“the deceased”) instituted a suit against the 1st and 2nd defendants by way of the plaint dated 15th June, 2010 and sought for general damages, costs of the suit and interest thereon.

2. The 1st defendant is sued in his capacity as the driver and/or beneficial owner of the motor vehicle registration number KZL 720 Mitsubishi Lorry (“the subject motor vehicle”) at all material times while the 2nd defendant is sued in its capacity as the registered owner of the subject motor vehicle at all material times.

3. The plaintiff pleaded in the plaint that sometime on or about the 21st day of December, 2005 the deceased was riding his motor bike registration number KAS 770U along Thika Road when the 1st defendant negligently drove the subject motor vehicle, causing it to hit and fatally crush the deceased. The particulars of negligence were set out under paragraph 6 of the plaint.

4. The plaintiff further pleaded in the plaint that at the time of his death, the deceased was aged 35 years and worked as a police constable earning a monthly salary of Kshs.35,000/=.

5. Upon service of summons, the 1st and 2nd defendants entered appearance and filed the joint statement of defence dated 16th May, 2011 to deny the plaintiff’s claim, specifically the particulars of negligence pleaded in the plaint. While the defendants admit the occurrence of the accident, they plead that the same was solely caused by negligence on the part of the deceased, the particulars of which were set out in the statement of defence.

6. At the hearing, the plaintiff testified whereas the defendants closed their case without calling any witnesses.

7. The plaintiff adopted her signed witness statement as her evidence-in-chief and also produced her original and supplementary list and bundle of documents as exhibits 1 to 8.

8. In cross-examination, the plaintiff testified that she was not present at the scene of the accident but that she later visited the scene in the company of the police officers.

9. The plaintiff further testified that though she had pleaded the deceased’s earnings as being in the sum of Kshs.35,000/= the pay slip which was tendered in evidence did not reflect the said amount.

10. It was the evidence of the plaintiff that she and the deceased married under customary laws but that she does not have any documentation to that effect.

11. In re-examination, the plaintiff gave evidence that the deceased received an income of Kshs.35,000/= per month prior to his death and reiterated that she was married to the deceased.

12. Upon close of the hearing, this court issued directions for the parties to put in written submissions.

13. The plaintiff by way of the submissions dated 23rd November, 2021 began by contending that the instant suit was filed in good time and upon obtaining leave of the court. However, the plaintiff adds that she has been unable to obtain the grant of letters of administration owing to the fact that at the time of his death, the deceased did not have any known properties and hence she could not institute any succession proceedings.

14. The plaintiff further contends that being the spouse of the deceased, she has the locus to institute the instant suit and to obtain any monies that will be awarded herein.

15. It is the submission of the plaintiff that the particulars of negligence have been proved against the defendants herein and hence they ought to be held fully liable for causing the accident which resulted in the death of the deceased, and refers to the following rendition arrived at by the Court of Appeal in the case of Nandwa v Kenya Nazi Ltd[1988] eKLR:

“In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial the judge had to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift.”

16. On quantum, the plaintiff urges that this court awards the sum of Kshs.20,000/= under the head of pain and suffering and cites inter alia, the case of Regina Wangeci v Eldoret Express Co. Limited [2008] eKLRwhere the court awarded a similar amount.

17. On damages for loss of expectation of life, it is the submission of the plaintiff that having sought for and obtained letters of administration, she is entitled to pray for the same and suggests the sum of Kshs.100,000/= with reliance on the case of Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] eKLRin which the court awarded the sum of Kshs.120,000/ under a similar head.

18. In respect to damages for loss of dependency, the plaintiff proposes a multiplicand of Kshs.35,000/=, a multiplier of 25 years and a dependency ratio of ½ tabulated as follows:

35,000 x 25 x 12 x ½ = Kshs.5,250,000/=

19. In retort, the defendants by way of their joint submissions dated 10th November, 2021 argue that the plaintiff’s suit is time barred by virtue of being filed outside the stipulated timelines provided by Section 4 of the Limitation of Actions Act Cap 22 Laws of Kenya (“the Act”) that a tortious claim ought to be filed within three (3) years of the cause of action, as read with Section 27 of the Act in sum stipulating that a party would be required to show that the material facts which hindered the filing of the suit in good time were outside of his or her knowledge at all material times.

20. According to the defendants, since the accident occurred on 21st December, 2005 the suit ought to have been filed on or before 21st December, 2008 and that any leave granted to the plaintiff was done so erroneously.

21. On the merits of the claim, the defendants contend that the plaintiff has not satisfied the evidentiary requirements under Sections 107-109 of the Evidence Act which collectively provide that any person who desires entry of judgment in line with the facts pleaded shall prove the existence of those facts. The defendants further cite the case of Michael Kariuki Muhu v Charles Wachira Kariuki & another [2015] eKLRin which the court held that:

“…it is clear that the burden of proving liability for the occurrence of the accident in question, which accident, from the evidence adduced in the lower court is not denied save for the manner in which it occurred, lay with the appellant throughout the trial and it never shifted to the respondents who had no counter claim in the suit against the appellant.”

22. On damages, it is the contention of the defendants that the plaintiff is not entitled to any award since she did not properly plead or prove that she was a wife to the deceased and therefore did not meet the requirements stipulated under Sections 4(1) and 8 of the Fatal Accidents Act, Cap. 32 Laws of Kenya which provide that the every action brought under that Act shall be for the benefit of the spouse, parent and child of the deceased; and that the particulars of the dependants/beneficiaries ought to be set out in full, respectively.

23. Upon considering the evidence on record, the submissions and authorities relied upon by the parties, I established that the issues for determination are on competency of the suit; liability and quantum.

24. The first issue was notably raised by the defendants at the submission stage, wherein they claim that the suit ought to be struck out for being time barred in the manner set out hereinabove.

25. Upon my examination of the pleadings and evidence, I note that

it is not in dispute that the cause of action; being in the nature of a tort; arose on 21st December, 2005 and hence the suit ought to have been brought within a period of three (3) years going by Section 4(2) of the Act.

26. Upon my further examination of the pleadings and evidence, I note that the plaintiff adduced a copy of the limited grant of letters of administration ad litem issued by the Succession Court on 6th November, 2009 in Probate and Administration Cause No. 2916 of 2008 granting her authority to file a suit on behalf of the estate of the deceased.

27. The plaintiff also adduced a copy of the ruling delivered by the court in Misc. Civil Suit No. 137 of 2010 on 4th June, 2010 granting her leave to file the suit within 14 days from the above date.

28. The record shows that the suit was filed on 16th June, 2010 within the timelines ordered by the court and this therefore dispels the argument by the defendants that the suit is time barred. Consequently, I find that the suit is properly before this court and I will proceed to consider its merits.

29. On the secondissue for determination touching on 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 his life. It is also apparent that the accident involved the subject vehicle and the motorcycle registration number KAS 770U being ridden by the deceased.

30. On the subject of ownership of the subject motor vehicle, the plaintiff tendered a copy of records to show that the 2nd defendant was at all material times the registered owner of the subject motor vehicle. Section 8 of the Traffic Act, Cap. 403 Laws of Kenya stipulates that in the absence of any other evidence, the person whose name appears on the registration document in respect to a motor vehicle will be considered its owner.

31. Turning to the police abstract which was tendered by the plaintiff without the objection of the defendants, upon considering the same, I note that the 1st defendant is listed as being the driver of the subject motor vehicle on the material date. It is therefore apparent that in the absence of any contrary evidence, the plaintiff has brought sufficient evidence linking the defendants to the subject motor vehicle.

32. On the particulars of negligence, the police abstract dated 9th January, 2006 indicates that the case is pending under investigation. It remains unclear whether the investigations were concluded and if so, the outcome of the same.

33. Suffice it to say that the standard of proof in civil cases is that of a balance of probabilities.

34. From my study of the record, I note that the plaintiff did not call the investigating officer to shed light on the circumstances surrounding the accident or summon any person who witnessed the actual accident for that matter.

35. The only oral testimony I had to go by was that of the plaintiff, who herself stated that she was not present at the scene of the accident when it took place.

36. The provisions of Section 107 of the Evidence Act cited in the submissions by the defendants stipulate that a person who desires judgment on liability must prove that the facts pleaded exist.

37. In the present instance, I observed that the plaintiff was required to bring credible evidence to prove that the accident was the direct result of negligence on the part of the defendants but did not.

38. Unfortunate as the circumstances may be, I am not satisfied that the plaintiff herein has proved liability against the defendants and the only step left is to dismiss the suit with

costs.

39. That notwithstanding, I am enjoined by law to assess the damages I would have awarded had I found that the plaintiff had proved her case against the defendants.

40. Upon my examination of the evidence, particularly the ruling delivered on 4th June, 2010 the plaintiff was required to obtain a full and confirmed grant of letters of administration/probate in order to prosecute the claim under the provisions of the Law Reform Act, Cap. 26 Laws of Kenya.

41. It was the evidence of the plaintiff that she had not obtained letters of administration or probate. Consequently, I would have had no basis on which to assess damages under the Law Reform Act, namely the general damages under the heads of pain and suffering, and loss of expectation of life.

42. I would therefore have restricted myself to general damages for loss of dependency under the Fatal Accidents Act, Cap. 32 Laws of Kenya.

43. On the multiplier, the plaintiff tendered a copy of the death certificate of the deceased to show that at the time of his death, she was aged 35 years. Upon my perusal of the submissions by the plaintiff and in the absence of any suggestions by the defendants, I observed that the authorities cited by the plaintiff were decided many years back.

44. In the circumstances, I would have considered the recent case of Nixon Asava Mukisa & another v Michael Chomba Mburu [2021] eKLRwhere the court applied a multiplier of 24 years at the instance of a deceased aged 36 years, and the case of Joseph Gatone Karanja v John Okumu Soita & Esther Chepkorir (Suing as admin of the estate of Benard Soita Nyongesa (DCD) [2022] eKLRin which the court upheld a multiplier of 26 for a deceased aged 34 years.

45. Taking into account the comparable multipliers above and the vagaries of life, I am persuaded that the multiplier of 25 years suggested by the plaintiff would have been reasonable.

46. On the multiplicand, I note that the plaintiff did not tender any credible evidence to support her assertion that the deceased earned a salary in the sum of Kshs.35,000/=.

47. Be that as it may, whereas the death certificate tendered does not indicate any profession for the deceased, the plaintiff tendered a copy of the deceased’s pay slip for the month of December, 2005. The same indicates that the deceased worked as a Corporal Police and earning a consolidated salary of Kshs.16,880/=. Less statutory deductions (PAYE and NHIF), the net salary came to Kshs.15,399=/. This would have constituted the multiplicand.

48. On the dependency ratio, I established from the record that though the plaintiff did not have any documentary proof of marriage to the deceased, she stated in her evidence that the two were married under customary law and which explanation I find to be reasonable in the circumstances. Moreover, the plaintiff made no mention of children but stated that she was dependent on the deceased prior to his death.

49. In my view and in the absence of any contrary proposition by the defendants, I would have applied a dependency ratio of ½ as suggested by the plaintiff.

50. Consequently, I would have tabulated the damages under this head in the manner hereunder:

Kshs.15,399 x 25 x 12 x ½ = Kshs.2,309,850/=

51. I note from the pleadings that the plaintiff also sought for special damages. However, the amount sought was neither specifically pleaded nor strictly proved. Consequently, I would have declined to make any award under this head.

52. In the end and going by my earlier finding on liability, I hereby dismiss the plaintiff’s suit with costs to the 1st and 2nd defendants.

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 1st and 2nd Defendants