[2008] KEHC 468 (KLR)
The court held that since liability had already been apportioned by consent at 60/40% with the defendants shouldering 60%, the defendants could not later challenge the suit as statute barred or for lack of notice under Section 13A of the Government Proceedings Act. The court found the deceased's monthly income of...
Source-derived case information.
- Citation
- [2008] KEHC 468 (KLR)
- Parties
- Plaintiff: Teresia Wangui Nderitu (Suing as the Legal Representative of the estate of the Late Fredrick Macharia); Defendant: Hessein Dalacha; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 23 of 2002
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff with damages awarded subject to 40% contribution.
- Judges
- DK Maraga
- Legal Topics
- Fatal Accidents, Damages Assessment, Contributory Negligence, Dependency Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Wangui Nderitu (Suing as the Legal Representative of the estate of the Late Fredrick Macharia)
Plaintiff
Hessein Dalacha
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to damages for the death of the deceased arising from a road accident.
- 2 Whether the suit is statute barred under the Public Authorities Limitation of Actions Act and whether requisite notice under Section 13A of the Government Proceedings Act was served.
- 3 How damages should be apportioned given the consent on liability at 60/40%.
Ratio Decidendi
The court held that since liability had already been apportioned by consent at 60/40% with the defendants shouldering 60%, the defendants could not later challenge the suit as statute barred or for lack of notice under Section 13A of the Government Proceedings Act. The court found the deceased's monthly income of Kshs.20,000 reasonable based on evidence and applied a multiplier of 10 years, considering the deceased's age and occupation. The court adopted the agreed sums for pain and suffering and loss of expectation of life, and found special damages proved by receipts. After deducting 40% for contributory negligence, the court awarded the plaintiff Kshs.1,026,480 as the net sum payable.
Court Disposition
Judgment for the plaintiff with damages awarded subject to 40% contribution.
Orders
- Plaintiff awarded Kshs.1,026,480 as damages after deduction for contributory negligence.
- Defendants to pay the awarded sum to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 23 of 2002
TERESIA WANGUI NDERITU
(Suing as the Legal Representative of the estate of the Late
FREDRICK MACHARIA (DECEASED)………………..….PLAINTIFF
VERSUS
HESSEIN DALACHA………………......…….….1ST DEFENDANT
ATTORNEY GENERAL………………...….2ND DEFENDANT
JUDGMENT
This is a claim for damages for the injuries the plaintiff suffered in a road accident on 18th November 2000 at Ngata area in Nakuru District along Nakuru/Eldoret Road. Liability was by consent apportioned at 60/40% with the defendant shouldering 60%.
Liability having been apportioned as stated above the contention by Mr. Bitta, counsel for the defendants, that this suit is bad in law for being statute barred under the Public Authorities Limitation of Actions Act and for failure by the plaintiff to serve the defendant with the requisite notice under Section 13A of the Government Proceedings Act is, with respect, totally misplaced. Mr. Bitta was in court and consented to the apportionment of liability and his argument is therefore self defeating.
Mr. Bitta submitted that is I rule against him on the issue of liability then I should adopt the computations made by Koome J in HCCC No. 382 of 2001 which suit also arose from the accident giving rise to this one. I have perused the judgment in that case and I have no problem with that suggestion.
The deceased in this case appears to have died instantly. I therefore award the plaintiff a sum of Kshs.20,000/- for pain and suffering. The deceased was 44 years old. I find the sum of Kshs.80,000/- suggested by both counsel for loss of expectation of life to be reasonable and I accordingly award it.
On loss of dependency, the deceased’s widow testified that he was involved in the business of selling spare parts from which he used to earn a sum of Kshs.20,000/- per month. She produced some receipt books which show that the deceased was indeed involved in that business. I find that sum a reasonable basis for determining the multiplicand. The deceased as I have said was 44 years old. Being a businessman I find that he could have continued in that business upto the age of about 60 years. However, due to the expedited payment I consider a multiplier of 10 reasonable in this case. I accordingly award the plaintiff Kshs.1,600,000/- for loss of dependency. The deceased’s widow also produced receipts for the special damages of Kshs.10,800/- claimed in the plaint which I find proved.
In the upshot I award the plaintiff a sum of Kshs.1,026,480/- made out as follows:-
1. Pain and suffering - Kshs. 20,000. 00
2. Loss of expectation of life - Kshs. 80,000. 00
3. Loss of dependency (20,000X12X10X2/3)-Kshs.1,600,000. 00
4. Special damages - Kshs. 10,800. 00
TOTAL - Kshs.1,710,800. 00
Loess 40% contribution - Kshs. 684,320. 00
Balance payable to plaintiff - Kshs.1,026,480. 00
DATED and delivered at Nakuru this 3rd day of November, 2008.
D. K. MARAGA
JUDGE.