[2019] KEHC 7718 (KLR)
The court upheld the trial court's finding of 100% liability against the appellant, finding no reason to disturb the determination on liability. On quantum, the court found that the trial magistrate erred in adopting a monthly wage of Kshs.25,000 based on a questionable letter of employment. Instead, the court...
Source-derived case information.
- Citation
- [2019] KEHC 7718 (KLR)
- Parties
- Appellant: Swan Carriers Ltd; Respondent: Eunice Wanjiru Kiarie (Suing as the legal representative to the estate of the late Francis Ngugi Gathesha)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal on liability dismissed; appeal on quantum partially allowed.
- Judges
- RB Ngetich
- Legal Topics
- Fatal Accidents Act, Law Reform Act, Assessment of Damages, Dependency Ratio, Multiplier Method, Minimum Wage Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swan Carriers Ltd
Appellant
Eunice Wanjiru Kiarie (Suing as the legal representative to the estate of the late Francis Ngugi Gathesha)
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in finding the appellant 100% liable for the accident resulting in the deceased's death.
- 2 Whether the trial court erred in its assessment of damages, specifically regarding the multiplier, dependency ratio, and monthly wage applied.
Ratio Decidendi
The court upheld the trial court's finding of 100% liability against the appellant, finding no reason to disturb the determination on liability. On quantum, the court found that the trial magistrate erred in adopting a monthly wage of Kshs.25,000 based on a questionable letter of employment. Instead, the court substituted the statutory minimum wage applicable in 2014 (Kshs.14,173.50) as the basis for calculating damages. The court affirmed the use of a multiplier of 13 years, given the deceased's age (37) and occupation as a conductor, and maintained the dependency ratio as previously determined. The damages were recalculated accordingly, resulting in a total award of Kshs.1,594,044. Each...
Court Disposition
Appeal on liability dismissed; appeal on quantum partially allowed.
Orders
- Appeal on liability is dismissed.
- Appeal on quantum succeeds only on the issue of monthly wage; the wage of Kshs.25,000 is set aside and replaced with Kshs.14,173.50.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 3 OF 2017
SWAN CARRIERS LTD................................................................................APPELLANT
=VERSUS=
EUNICE WANJIRU KIARIE (Suing as the legal representative to the estate of the late
FRANCIS NGUGI GATHESHA...................................................................RESPONDENT
(Being an appeal against the Judgment of Hon. M. Omido, Senior Resident Magistrate delivered on the 16th December, 2016 in Nakuru CMCC No.275 of 2015)
JUDGMENT
INTRODUCTION
1. The respondent/plaintiff filed suit against the appellant/defendant seeking general and special damages for the death of FRANCIS NGUGI GATHESHA (deceased) while travelling as a passenger in motor vehicle registration number KBZ 076Q which collided with the respondent’s motor vehicle registration number KAN 140 V on 16th day of August 2014.
2. The trial court found the defendant/respondent 100% liable. Damages were assessed at total sum of kshs.2,720,000.
3. This appeal was consolidated with Nakuru HCCA No.1 of 2017. The proceedings are recorded in NKU HCCA NO.1 of 2017. I adopt the grounds and arguments by counsel and analysis of the said arguments in the lead file. I dismissed appeal on liability and do adopt the determination on liability in this appeal.
4. In assessment of damages, I do adopt my finding that the trial magistrate was right in assessing damages under Fatal Accidents Act and Law Reform Act separately.
5. In respect to multiplier, the deceased was 37 years as per death certificate. It is indicated in the death certificate that he was a motor vehicle conductor. There is no specific retirement age for a conductor. One can continue working as long as he remains healthy and strong. I find a multiplier of 13 years reasonable. On dependency ratio, I do not see reason to disturb reasoned in HCCA NO.1 of 2017
6. On monthly earnings, the letter of employment was challenged for having been issued 2 months prior to the accident. The plaintiff said the deceased earned kshs.25,000 and was relied on by her and their two children. I adopt my determination on monthly wage and replace with minimum wage in 2014 which was kshs.14,173. 50. Assessment under Fatal Accidents Act will therefore be 14,173. 50 x 13 x 12 x 2/3=1,474,044. 00
7. Damages are therefore are as hereunder:-
i. Pain and suffering ………………………………………20,000
ii. Loss of expectation of life …………………………......100,000
iii. Under fatal Accidents Act……………………………1,474,044
GRAND TOTAL…………………………………………….1,594,044
FINAL ORDERS
1. Appeal on liability is hereby dismissed.
2. Appeal on quantum succeed on monthly wage. Monthly wage of kshs.25,000 adopted by trial magistrate is set aside and re[laced by minimum wage of kshs.14,173. 50.
3. I set aside judgment on quantum and enter judgment for kshs.1,594,044.
4. Each party to bear own costs of appeal.
Judgment Dated, signed and delivered at Nakuru this 9th day of May, 2019.
……………………....
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF:-
Schola Court Assistant
Mburu Holding Brief for Mr. Murimi Counsel for Appellant
N/A Counsel for Respondent