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MagistratePartially AllowedNot stated in the judgment

Weru also Known as Ceceilia Njoki Weru (Suing as the Adminitratix and Personal Representative of the Estate of Haron Weru Njoki alias Haroun Weru Njoki - Deceased) v Kanyito (Civil Suit 109 of 2009) [2016] KEMC 6 (KLR)

Senior Resident Magistrate's Court
29 September 2016
3,414 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a mother KSh 2.6 million for her son's road death, but slashed her expense claims because they weren't properly listed and proved.

What this practically means

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Executive summary

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This was a first-instance fatal accident claim arising from a road traffic accident of 1 May 2007 in which Haron Weru Njoki, a 19-year-old Form 4 student travelling as a pedestrian along the Kirima-Ol'kalou road, died after an incident involving van KAE 843 E driven by the defendant. The plaintiff, the deceased's mother holding limited letters of administration, sued for special damages of Kshs 38,095/=, general damages under the Fatal Accidents Act and Law Reform Act, costs and interest. The defendant denied negligence and alternatively blamed the deceased, but gave no evidence. The court found liability at 100%, holding that the defendant drove off at unusually high take-off speed causing the deceased, who was boarding, to fall and be run over, and that the defendant failed to prove his pleaded allegations of the deceased's negligence. Using the multiplier/multiplicand method, the court assessed the deceased as a potential diploma teacher at job group J with a net monthly income of Kshs 23,108/=, applied a multiplier of 28 years and a one-third dependency, awarding Kshs 2,588,096/= for loss of dependency. It fixed conventional sums of Kshs 10,000/= for pain and suffering and Kshs 250,000/= for loss of expectation of life but subsumed both within the Fatal Accidents Act award to avoid double compensation. Of the pleaded special damages, only Kshs 13,000/= (coffin charges and costs of the limited grant) was both particularly pleaded and specifically proved. Judgment was entered for the plaintiff at Kshs 2,601,096/= with costs and interest at court rates.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Who is liable for the accident and the resultant death of the deceased?
  2. 2.What is the quantum of damages awardable under the claims herein?

Key legal issues

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01

Liability for the fatal road accident

Holding

Defendant 100% liable; no contributory negligence established

Reasoning

PW1's unchallenged evidence was that the defendant drove off at unusually high speed causing the deceased, who was boarding, to fall and be run over. The defendant called no evidence to prove his pleaded particulars of the deceased's negligence. The possible contribution of the hospital's failure to attend to the deceased was not pleaded or pursued by third-party proceedings.

p. 4
02

Quantum for loss of dependency under the Fatal Accidents Act

Holding

Kshs 2,588,096.00 awarded using multiplicand of Kshs 23,108/= net monthly income, multiplier of 28 years, dependency of 1/3

Reasoning

The deceased, 19 and in Form 4, was projected to be at least an ordinary diploma teacher at job group J, with entry gross pay of Kshs 34,662 and net of about Kshs 23,108. Retirement age having risen to 60, the multiplier was enhanced from Betty Ngatia's 25 to 28. One-third was allocated to the sole dependant mother.

p. 5
03

Special damages

Holding

Only Kshs 13,000/= proved and awarded (coffin Kshs 8,000/= and limited grant costs Kshs 5,000/=)

Reasoning

Special damages must be particularly pleaded and specifically proved. Funeral expenses, though supported by receipts, were not particularised in the plaint; the police abstract and mortuary fees, though pleaded, were not specifically proved. Only the coffin charges and succession costs satisfied both requirements.

p. 6
04

Awards under the Law Reform Act

Holding

Conventional Kshs 10,000/= for pain and suffering and Kshs 250,000/= for loss of expectation of life, both subsumed in the Fatal Accidents Act award

Reasoning

Following Kemfro Africa via Mungai Kamau, separate Law Reform Act awards would overcompensate the estate; the court nonetheless indicated the conventional figures and directed that both be catered for within the Fatal Accidents Act award to prevent double compensation.

p. 5

Legal principles established

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  • Special damages must be both particularly pleaded and specifically proved; the requirement is mandatory and goes to jurisdiction on the specific issue
  • Under the multiplier/multiplicand method, the multiplicand is the net earnings of the deceased and the multiplier reflects expectation of life, dependency and lump-sum discount
  • A party is bound by its pleadings

Court orders

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  1. 1.Judgment entered against the defendant for Ksh. 2,601,096.00 being general and special damages
  2. 2.Costs of the suit to the plaintiff
  3. 3.Interest on all sums at court rates
  4. 4.Liability found at 100% against the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original tortious claim for fatal accident compensation under the Fatal Accidents Act and Law Reform Act

Relief refused

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Special damages claimed at Kshs 38,095/= only partially awarded (reduced to Kshs 13,000/=)

Funeral expenses and other receipts were not particularly pleaded; the police abstract and mortuary fees pleaded were not specifically proved

p. 6

Separate substantive awards under the Law Reform Act (pain and suffering; loss of expectation of life)

To avoid double compensation, these conventional sums were subsumed in the Fatal Accidents Act award

p. 5

Costs

Judgment for Ksh. 2,601,096.00 being general and special damages; costs of the suit and interests on all the sums at court rates.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I do therefore have no other option but to find the defendant herein 100% liable.
p. 4Liability
In light of the above findings, and in order to prevent overcompensating the estate of the deceased herein, I do hereby order that judgment be and is hereby entered against the defendants herein for the sum of Ksh. 2,601,096.00 being general and special damages; costs of the suit and interests on all the sums at court rates.
p. 6Final orders/disposition
Only Kshs. 13,000/= is therefore awardable as special damages herein.
p. 6Special damages
The plaintifi shall only claim the awards under the Fatal Accidents Act, to avoid double compensation.
p. 6Fatal Accidents Act v Law Reform Act
The requirement that special damages must be explicitly pleaded and proved is not merely a procedural necessity but is a mandatory legal requirement going to the jurisdiction on the specific issue
p. 6Special damages must be pleaded and proved

Issues in the judgment

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minor

Internal inconsistency on the deceased's KCPE marks: earlier stated as 275 out of 500, later computed as 261 out of 500

minor

The court notes an unresolved technicality about the plaint having possibly been filed before it was dated and signed

minor

The judgment states both that the plaintiff pleaded that the deceased died on the spot and that she 'is however entitled' to Law Reform Act general damages, while the final order consolidates all sums into a single Fatal Accidents Act-based judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Weru also Known as Ceceilia Njoki Weru (Suing as the Adminitratix and Personal Representative of the Estate of Haron Weru Njoki alias Haroun Weru Njoki - Deceased) v Kanyito (Civil Suit 109 of 2009) [2016] KEMC 6 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.