[2000] KEHC 166 (KLR)
The court found that the defendant's driver was primarily responsible for the accident, as the evidence showed the deceased was struck while on the pavement and the vehicle was being driven at high speed. However, the court also found that the plaintiff contributed to the accident by failing to ensure the road was...
Source-derived case information.
- Citation
- [2000] KEHC 166 (KLR)
- Parties
- Plaintiff: Victoria Walubwa; Defendant: John Kiarie & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3186 of 1991
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff, subject to 10% contributory negligence
- Legal Topics
- Fatal Accidents, Dependency Claims, Contributory Negligence, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victoria Walubwa
Plaintiff
John Kiarie & Another
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendants were liable for the accident resulting in the deceased's death.
- 2 Whether the plaintiff contributed to the accident (contributory negligence).
- 3 Assessment of damages payable to the plaintiff, including special and general damages.
Ratio Decidendi
The court found that the defendant's driver was primarily responsible for the accident, as the evidence showed the deceased was struck while on the pavement and the vehicle was being driven at high speed. However, the court also found that the plaintiff contributed to the accident by failing to ensure the road was clear or by miscalculating the speed of the oncoming vehicle, and thus apportioned 10% contributory negligence to the plaintiff. The court assessed damages for pain and suffering, loss of expectation of life, loss of dependency, and special damages, deducting 10% for contributory negligence, and awarded the net sum to the plaintiff with costs and interest.
Court Disposition
judgment for the plaintiff, subject to 10% contributory negligence
Orders
- Plaintiff awarded KES 222,435 as damages after deduction for contributory negligence.
- Plaintiff to have costs and interest of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE NO. 3186 OF 1991
VICTORIA WALUBWA…………………………………PLAINTIFF
-VERSUS
JOHNKIARIE & ANOTHER………………………….DEFENDANT
JUDGMENT
The Plaintiff claims general damages and special damages against the 1st and 2nd defendants. She also claims special damages and cost of the suit. The Plaintiff is the widow of the deceased. She gave evidence as the administrator of her husband’s estate.
PW2 Omolo Okello gave evidence that he and the deceased were crossing the road and the deceased was behind him when the deceased was knocked.
According to him they had managed to cross and the deceased was knocked while on the pavement. They had looked at either side and saw that there were no vehicles were coming from both sides before they crossed. The road was straight at the place they were crossing. They had been working the whole night as watchmen and the accident occurred at about 6 a.m. along the Ngong road.
The deceased salary was Shs.1,280 per month according to the salary slip produced. The witness attributed the accident to the high speed the vehicle was driven. The defendant did not call evidence to contradict the evidence by the Plaintiff. The Plaintiff asks the court to find that the defendants driver was 100% to blame for the accident but under the circumstances in which the Plaintiff crossed the road, I find that the Plaintiff did contribute to the accident. The witness says that they had seen no vehicle and that the road was straight and yet there was a vehicle. This indicates that they did not ensure that there was no vehicle or they miscalculated the speed of the vehicle.
To that extend, I would find 10% contributory negligence on the part of the Plaintiff. Quantum
Loss of expectation of life. For this claim I award Shs.100,000/- Loss of Dependancy
The deceased left a widow and 13 children who he sued to support from the salary. The widow said that out of his salary he used to give them Shs.600 per month for food and school fees. I will take that the deceased could have worked for another 10 years so that the dependancy would be 600 x 12 x10 = Kshs.72,000/- Special Damages:
I accept the figures of Shs.25,150/- given by the Plaintiff. For Pain and Suffering I will award the sum of Shs.50,000/- In arriving at these figures I gave consideration to the cases cited in support by the Plaintiff.
There will be Judgment for the Plaintiff as follows:
(1) For Pain and Suffering Shs. 50,000/-
(2) Dependancy Shs. 72,000/-
(3) For Loss of Dependence Shs. 100,000/-
(4) For Special Damages Shs. 25,150/-
Sub total Shs.247,150
Less 10% Shs. 24,715
Grand Total Shs.222,435
The Plaintiff shall have the costs and interest of the suit.
Delivered and dated this 28th day of July, 2000.
KASANGA MULWA
JUDGE