[2018] KEHC 3464 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 146 OF 2012

TALHA ABDULHAMID ABDULAHI (Legal administrators of the estate of

ABDULHAMID ABDALLAH ABDULKARIM(Deceased)...............PLAINTIFF

VERSUS

1. PRAISE AIRBUS SERVICES

2. DANIEL MUCHOKI MWANGI.................................................DEFENDANTS

J U D G M E N T

Outline and introductory facts

1. The suit was initially filed against three defendant but on the16/8/2017, the plaintiff withdrew the suit against the 3rddefendant and opted to proceed against the 1st& 2nddefendant only.

2. On the same day the plaintiff and the 1st and 2nd defendant recorded aconsent on liability at 80:20%, in favour of the plaintiff, in that the defendant would bear 80% while the plaintiff would bear 20% being his contribution to the accident.

3. Accordingly, the evidence led was purely on the assessment ofdamages to be assessed by the court.

Evidence by the plaintiff on damages payable

4. For his evidence, the plaintiff relied on his witness statement dated11/8/2012 and filed in court on 15/8/2012 together with two list of documents and copies of such documents also dated and filed with the witness statement. The bundle of documents was produced by consent as PExhibit 1 & 2. Those two exhibits included medical documents and receipts from Kenya and India to show that the accident having occurred on 7/10/2009, the deceased lived till the 31/12/2009 but all the while was immobilized in bed.

5. There were also exhibited a work permit and a letter confirmingemployment of the deceased as a principal and preacher of a Islam school in Tanzania with a monthly salary ofUSD 2000. At the time of his death, the deceased was survived by 12 children and no widow. All the children were aged between 18 and 33 years old. There was also a letter of grant of letters of administrationad litemissued in Mombasa HC Succession Civil No. 93 of 2012.

6. On 18/5/2018, at the time of his death, the plaintiff, who was the 6thchild, was in college in South Africa but held to discontinue. His eldest brothers had completed school but not the younger ones. He said while in South Africa, the deceased paid their rent of about300 USDper month and availed to Mombasa house and family members some600 USDper month.

7. On cross-examination, the witness was never challenged on the criticalaspects of his testimony save for the number of his identity and that the deceased regained consciousness between date of accident and death but did not improved. On dependency, the witness said that as at the date of his death none of the children to the deceased was gainfully employed.

8. When asked question by the court the witness said that of the twelvechildren, the first 3 were married at the date of the deceased’s death. On their education in South Africa, the witness conceded there being nothing to show that him and the other siblings were studying in South African and said that they were there on private tuition.

9. With that evidence the plaintiff case was closed and since there had been a consent judgment on liability, the defendant’s case was equally closed without any evidence being tendered on their behalf. Parties thereafter filed submissions on 7/2/2018 and 7/3/2018 respectively.

9. The submissions as filed agree that the court should assess damagesunder both Law Reform Act as well as Fatal Accidents Act; under the headings pains and suffering, loss of expectation of life and loss of dependency besides special damages.

10. The point of departure, however, is the point taken by the defendant that with the advent of the insurance (motor vehicle third party risks) (Amendment) Act 2013, the damages awardable here must never, in any circumstances, exceed the ceiling of Kshs.3,000,000/=.

11. The other point of departure, albeit minimally, is the values to beadopted as multiplier and dependency ratios because the monthly earnings is conceded to have been2000 USD.

12. Parties filed submissions which I have had a chance to read and appreciate and I will take same into account in this judgment. An aspect of those submission was offered by the defendant to the effect that based on the amendment of the law by The Insurance 9 motor Vehicle third Party Risks) (Ammendment ) Act No 50 of 2013, the court cannot award damages beyond Kshs 3,000,000.

13. The answer to that submission has been provided by a judgment of thecourt,Onguto j,inLaw Society of Kenya v Attorney General & 3 others [2016] eKLR,where the judge said:-

“70. As stated earlier, courts are enjoined to administer justice in accordance with the principles laid down under Article 159 of the Constitution. When Parliament enacts legislation, it is supposed that such legislation serves the interests of the public and for general order. There is evidence on record that there was elaborate communication between the Insurance regulators and government officials seeking to facilitate efficient regulation of the insurance industry through amendments to the Insurance Act…

72. I am of the considered view that, where a dispute has been lodged in court, and the facts of the case have been presented before the court, nothing stops the court from coming up with an adequate remedy. In any event, the courts are in the business of dispute resolution. Where the court, awards damages to a party, it is with regards to the facts of a case and what the justice of the case demands. Therefore, I am of the view that, the judgments being rendered by the court are not in any way being legislated by Section 5(b)(iv) of the Principal Act.

73. What the Principal Act has done is cap the amount of money that the insurer pays to the injured person. Nothing in the Principal Act stops a litigant or the injured person from pursuing a claim against the insured individual where an award in excess of the amount recoverable from the insurer is made.

74. I hasten to add that the provision as to the mandatory insurance cover of the amount of Kshs. 3,000,000/= does not in any way prohibit any insured who may be minded to source and seek a higher cover from agreeing with the insurer on such cover, subject of course to a higher premium and other agreement on the terms of the policy.

76. With regard to the constitutionality of the Schedule to the Amendment Act, the argument must certainly be different. The Schedule does not appear to be for general guidance even for the insurer and courts. It is not about strict liability. It is a case of the court being left to determine liability and then the insurer determining what amount to pay for each injury suffered and payable under the Kshs. 3,000,000/= limit through the Schedule. The amount payable is actually capped and this may lead to a defeat of the intention of the statute altogether.

77. The purpose of the statute, being the Principal Act in general must not be ignored. The purpose as can be gleaned from history was to ensure that the security of a person as to his physical and bodily integrity is not compromised. The State sought to ameliorate the quandary of victims rendered helpless by motor vehicle accidents and who ordinarily ended up not being compensated by careless or negligent drivers who were impecunious. It ought to be appreciated that under the Constitution, the State ensures that the dignity and security of a person as guaranteed under Articles 28 and 29 are protected both through criminal sanctions as well as through other measures. Such measures may be taken to include the compulsory third party insurance schemes and covers. Where again the State through statute seeks to limit the level of compensation, then it would be right to conclude that the right to bodily integrity is under threat of being taken away. The Schedule actually seeks to limit the amount payable under the insurance cover by the insurer.”

80. There appears no clear justification for this limitation on the amount the victim is to recover from the insurer as far as the percentages are being invited. The court ought to be able to award an amount even in the excess of Kshs. 3,000,000/= for a lost limb or sight and that should be recoverable from the capped amount of Kshs. 3,000,000/= without any additional apportionment. There exists a common law remedy to an award of damages as assessed by the court and in trying to apportion the same without imposing strict liability, the legislature is not only violating the right to bodily integrity but also the right to security of person as well as the courts authority to decide what a person is to be awarded in compensation. I must add that there was indeed no reasonable justification advanced by the Respondent as to why the Insurer should be allowed to apportion any judgment amount awarded to a claimant and only pay a portion thereof where the amount is not in excess of Kshs. 3,000,000/= without taking the recourse of appeal. (emphasis provided)

14. I understand the judge to have held that the statute does not curtail the court’s jurisdiction to assess damages based on the facts before it. Consequently I do find that that submission lacks substance and wholly erroneous. I would that proceed with my duty and discretion in this matter to assess damages is unfettered by the statute.

Analysis and determination

a) Loss of dependency

15. It is uncontroverted that the deceased died at the age of 61 years whilegainfully employed as a preacher with a monthly income of USD 2000. There was uncontroverted evidence that he would avail USD 600 to his Mombasa home and sent some 300 USD to the children in South Africa for rent. That to me gives 9/20 which is approximately ½ and not 2/3 proposed by the plaintiff nor the 1/3 proposed by the defendant. Dependency is a question of fact to be discerned from the evidence adduced[1]. Based on the evidence of PW 1, I do determine the dependency ration at ½.

16. The deceased was by evidence, in the birth and death certificates as well as identification papers, aged 61 on his death. While the plaintiff has proposed a multiplier of 20 years on the basis that a preacher would preach till the age of 80 years, the defendant has proposed a multiplier of 9 years. Taking note that choice of a multiplier is a matter in the discretion of the court[2] and that the purpose of damages is to compensate and not to enrich, and with the caution that damages must be kept within limits capable of being sustainable by the economy,[3] I do adopt a multiplier of 10 years.

17. With determination of such fundamentals, the damages for loss ofdependency therefore calculates as follows:-

USD 2000 X 10 X 12 ½ = 120,000 USD

b) Loss of expectation of Life

18. For loss of expectation of life, I have read the decided cases cited by theplaintiff and noted that the defendant offered no submission in this regard. Based on the principles guiding award of damages and while I do not subscribe to any motion that damages under this heading are conventionally pegged at a sum, I award to the plaintiff the sum of Kshs.150,000/=.

c) Pains and suffering

19. On pains and suffering, the evidence on record and which remainuncontroverted is that the deceased remained bed ridden due to the injuries for a period of about 3 months while conscious. I take that duration to be relevant and determinant on the duration the deceased endured pains and suffering. I do not consider the period a very short time for one to endure pain, suffer and lose amenities of life. Based on that appreciation, I do award to the plaintiff the sum of Kshs.100,000/=.

20. For special damages, the plaintiff pleaded a sum of Kshs.1,157,318. 00and produced several receipts from Kenyan and Indian hospitals as well as from chemists. Besides the medical costs, the plaintiff also pleaded and prayed for recovery of doctors’ fees to prepare a medical report, 2,000/=, police abstract 200/=, completing P3 for Kshs.500/=, death certificate 50/= obtaining grant of letters of administration at Kshs.10,000/= and funeral expenses of Kshs.10,000/=. I consider all expenses to be modest and find that the plaintiff is entitled to same as special damages.

21. For medical expenses, the same are shown to have been incurred invarious currencies. I have taken time to calculate same and I have come to the following sums:-

Kshs.414,644. 00

Indian Rupees 48,830

22. Accordingly the proved special damages are in the aggregate of:

Kenya shillings Kshs.527,390. 00

Indian pupees Kshs. 48,830. 00

23. In total, the sum awarded to the plaintiff in the various currencies isas below:-

Loss of dependency USD 120,000. 00

Pains and suffering Kshs.100,000. 00

Loss of expectation of life Kshs.150,000. 00

Special damages

Kenya shillings Kshs.527,390. 00

Indian Rupees Kshs. 48,830. 00

Rendition

24. When the said sum is subjected to the agreed contributionthe same work out as follows:-

i) Loss of dependency (USD 120,000 x 80% )= 96,000USD

ii) Pains and suffering (Kshs.100,000 x 80%) = Kshs.80,000/=

iii) Loss of expectation of life (Kshs.150,000 x 80% = )

Kshs.120,000/=

Special damages

(a) Kshs.527,390 x 80% = 421,912/=

b) Indian Rupees 48830 x 80% = 39,084/=

25. In summary, the plaintiff gets judgment against the 1st & 2ndDefendants jointly and severally as follows:-

a) USD 96,000/=

b) Indian Rupees 39,046

c) Kshs.621,912/=

26. I also award to the plaintiff the costs of this suit as well as interests ondamages and costs.

27. Interests on special damages shall be calculated from the date of filingsuit while those on general damages and costs shall attract interest from the date of this judgment.

Dated and delivered at Mombasa this 5th day of October 2018.

P.J.O. OTIENO

JUDGE

[1] Ugenya Bus Service Vs Gachihi [1976-1985] EA 575 at 579

[2] Board Of governors kangubiri Girls high school Vs jane wanjiku [2014] eKLR

[3] R R Siree and anor Vs lake turkana elmolo Lodges CACA 229 of 1998