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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is liable for the accident and the resultant death of the deceased?
- 2.What is the quantum of damages awardable under the claims herein?
Key legal issues
#Liability for the fatal road accident
Defendant 100% liable; no contributory negligence established
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.
Quantum for loss of dependency under the Fatal Accidents Act
Kshs 2,588,096.00 awarded using multiplicand of Kshs 23,108/= net monthly income, multiplier of 28 years, dependency of 1/3
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.
Special damages
Only Kshs 13,000/= proved and awarded (coffin Kshs 8,000/= and limited grant costs Kshs 5,000/=)
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.
Awards under the Law Reform Act
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
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.
Legal principles established
#- 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
#- 1.Judgment entered against the defendant for Ksh. 2,601,096.00 being general and special damages
- 2.Costs of the suit to the plaintiff
- 3.Interest on all sums at court rates
- 4.Liability found at 100% against the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original tortious claim for fatal accident compensation under the Fatal Accidents Act and Law Reform Act
Relief refused
#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
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
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
#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.
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.
Only Kshs. 13,000/= is therefore awardable as special damages herein.
The plaintifi shall only claim the awards under the Fatal Accidents Act, to avoid double compensation.
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
Issues in the judgment
#Internal inconsistency on the deceased's KCPE marks: earlier stated as 275 out of 500, later computed as 261 out of 500
The court notes an unresolved technicality about the plaint having possibly been filed before it was dated and signed
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.