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MagistratePartially AllowedCivil Case No 725 of 2020· [2024] KEMC 159 (KLR)

Njihia & another (Suing as the Administrators of the Estate of Njehia Gichu) v Rift-Cars Limited & another (Civil Case 725 of 2020) [2024] KEMC 159 (KLR)

Chief Magistrate's Court at Nakuru
14 November 2023
2,073 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nakuru court awarded a family KShs 345,360 for a fatal road accident, but cut their claim sharply because funeral and medical costs were not properly documented.

What this practically means

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Executive summary

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This is a first-instance fatal accident decision by a Senior Principal Magistrate at Nakuru, delivered on 14 November 2023. The plaintiffs, administrators of the estate of Njehia Gichu (deceased), sued Rift Cars Ltd and Daniel Ndegwa Macharia for general damages under the Fatal Accidents Act and Law Reform Act, plus special damages of Kshs. 663,650/=. The 1st Defendant did not enter appearance and default judgment had been entered against it; the 2nd Defendant contested quantum only, liability having been settled by consent at 80:20 in the plaintiff's favour. The deceased died at 84, leaving seven sons. Finding no evidence of the deceased's alleged farming income of Kshs. 30,000/= monthly, the court held the multiplier and minimum wage methods inapplicable and adopted a global award of Kshs. 400,000/= for loss of dependency, following John Wamae v Jane Kituku Nziva. It awarded Kshs. 10,000/= for pain and suffering (death on the day of the accident, no post-mortem produced) and Kshs. 200,000/= for loss of expectation of life. On the interaction between the two statutes, the court followed the interpretation that Law Reform Act awards are 'taken into account' but not mathematically deducted from Fatal Accidents Act damages, holding the Kshs. 210,000/= Law Reform award adequately factored into the dependency award. Only Kshs. 31,700/= of the special damages was proved (motor vehicle search, filing fees and legal fees on administration); funeral and medical expenses failed for want of particularisation and unclear receipts. Total award of Kshs. 431,700/= was reduced by 20% contribution to Kshs. 345,360/=, with costs and interests at court rates to the plaintiff.

Key legal issues

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01

Method of assessing loss of dependency for an 84-year-old deceased of unproved earnings

Holding

Global award of Kshs. 400,000/= for loss of dependency, adopting the global formula approach

Reasoning

The plaintiff pleaded the deceased was a farmer earning Kshs. 30,000/= monthly, but produced no documentary or other evidence of occupation or earnings. The court held the multiplier and minimum wage approaches apply only where occupation and earnings are not in doubt, and adopted the global award used in John Wamae v Jane Kituku Nziva (Kshs. 400,000/= in 2017), holding the rise in cost of living was taken care of by the deceased's advanced age.

p. 2
02

Damages for pain and suffering where the deceased died on the day of the accident and no post-mortem was produced

Holding

Nominal damages of Kshs. 10,000/= awarded

Reasoning

Both counsel agreed that damages for pain and suffering depend on the length of time pain was endured. No evidence was tendered of how long the deceased took to die or of his injuries; no post-mortem form was produced as an exhibit. The court relied on precedent that where death occurs on the spot or on the date of the accident, courts award nominal damages of about Kshs. 10,000/=.

p. 3
03

Loss of expectation of life for a deceased who died at 84

Holding

Kshs. 200,000/= awarded, enhanced from the conventional Kshs. 100,000/= on account of the rise in cost of living

Reasoning

No evidence was tendered as to the deceased's prior state of health. In Abson Motors v Sinema Kitsao the High Court upheld Kshs. 100,000/= for a deceased who died at 85 (in 2016). Considering the rise in cost of living, the court enhanced the award to the Kshs. 200,000/= proposed by the plaintiff's counsel.

p. 3
04

Whether Law Reform Act awards are deductible from Fatal Accidents Act damages

Holding

Not deductible; the Law Reform Act award is merely 'taken into account', not mathematically deducted

Reasoning

Following Justice Kariuki in John Wamae and Justice Mabeya in Peres Wambui Kinuthia v S.S. Mehta & Sons Ltd, the court held that the words 'taken into account' in Section 4(2) of the Fatal Accidents Act differ from 'deducted'; the trial court need only bear in mind the Law Reform Act award. Accordingly, the Kshs. 210,000/= Law Reform Act award was treated as factored into the Kshs. 400,000/= dependency award, and the plaintiff received the full Kshs. 400,000/= as general damages.

p. 4
05

Proof of special damages

Holding

Only Kshs. 31,700/= of the pleaded Kshs. 663,650/= proved and awarded

Reasoning

The court itemised the proved special damages: motor vehicle search (Kshs. 550/=), filing letters of administration ad litem (Kshs. 1,150/=) and legal fees on letters of administration (Kshs. 30,000/=). Funeral expenses were not particularly pleaded as required, and the medical expense receipts were unclear, so those heads remained unproven.

p. 4

Legal principles established

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  • The multiplier approach is a method, not a principle of law, and must be abandoned where the facts do not facilitate its application
  • Where the deceased's earnings are not proved and the minimum wage cannot apply, a global sum award is appropriate
  • The words 'to be taken into account' in Section 4(2) of the Fatal Accidents Act do not require mathematical deduction of Law Reform Act awards

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants as follows: General Damages Kshs. 400,000/= and Special Damages Kshs. 31,700/=, total Kshs. 431,700/=
  2. 2.Less 20% plaintiff's contribution in liability (Kshs. 86,340/=), net total Kshs. 345,360/=
  3. 3.Plaintiff awarded costs and interests at court rates

Authorities

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Legislation

  • Fatal Accidents ActSection 4(2)
  • Law Reform ActNot specified
  • Law Reform (Miscellaneous Provisions) 1934 ActSection 15(5)

Cases cited (12)

  • Mwanzia Vrs Ngalali Mutua Kenya Bus Ltd
  • Albert Odawa Vrs Gichimu Githenji
    NKR KCCA NO. 15 OF 2003 [2007] e KLR
  • Mary Khayesi Awalo & Anor. Vrs Mwilu Malungu & Anor.
    ELD HCCC NO. 19 OF 1997 [1999] e KLR
  • Beatrice W. Murage Vrs Consumer Transport Ltd & Anor
    [2014] e KLR
  • John Wamae & 2 Others Vrs Jane Kituku Nziva & Another
  • Loise Wairimu Mwangi & Another Vrs Joseph Wambue Kamau
    (2006) e KLR
  • Abson Motors & 2 Others Vrs Sinema Kitsao & Another
    [2016] e KLR
  • Richard Macharia Nderitu Vrs Philemon Rotich Langas
    [2013] e KLR
  • Kemfro Africa Ltd Vrs A. M. Lubia
    [1982-85] 1 KAR 727
  • Makario Makonye Monyancha Vrs Hellen Nyangena
    [2014] e KLR
  • Peres Wambui Kinuthia & Another Vrs S.s. Mehta & Sons Limited
    Nairobi Civil Appeal NO. 568 OF 2010 (UR)
  • Kemfro Africa t/a Meru Express Services (1976) & Anor – vrs – Lubia & Anor (No 2)
    (1987) KLR 30
Jurisdiction invoked
Original civil jurisdiction over fatal accident and law reform claims (Fatal Accidents Act and Law Reform Act)

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, "Njihia & another (Suing as the Administrators of the Estate of Njehia Gichu) v Rift-Cars Limited & another (Civil Case 725 of 2020) [2024] KEMC 159 (KLR)", Case Analysis (2023). Civil Case No 725 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/159/eng@2024-11-14

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