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)

Pleadings 4. Vide a Plaint, dated at Nyahururu on 09.04.2009, the plaintifi's claim is mainly that the defendant herein was the registered owner and the driver of the motor vehicle herein as at the time of the accident herein. 5. It is the plaintifi's claim that the deceased was on the material date, travelling as a pedestrian along Kirrima - Ol'kalou Road when the defendant negligently, carelessly and/or recklessly drove, managed and/or controlled the aforesaid defendant's vehicle, and caused the same to ram into, swerve ofi the road or its lane and thereby got involved in the fatal road accident with the deceased whereby he died at Kirima on the spot. 6. The plaintifi pleaded the particulars of Negligence on the part of the defendant, the dependants of the deceased's estate (only herself) and the special damages of Kshs. 38,095/= in paragraphs 8, 9 and 10 of the plaint. 7. The defendants filed his Written Statement of Defence dated 26.08.2009, wherein he denied every single allegation made against them by the Plaintifi and called for strict proof thereof. In the alternative, and without prejudice to the denial, he blamed the deceased for the accident for reason of being negligence including by walking carelessly and recklessly on the path of motor vehicle KAE 843 E, failing to have any or any suficient regard for other trafic that was or might reasonably be expected on the said road, walking on the wrong side of the road, jumping into the path of the motor vehicles when it was not safe to do so, failing to heed to the repeated warning given by the defendant, crossing the road carelessly and/or dangerously and when it was not safe to do so, carelessly attempting to avoid a 3rd party motor vehicle and in the course suddenly emerged into the motor vehicle registration number KAE 843 E, crossing the road haphazardly, ignoring the provisions of the Highway Code and Trafic Act, aimlessly running after the aforesaid motor vehicle and thereby resulting into falling down, failing and/or knocking a hard rock while running after the motor vehicle, running carelessly after the motor vehicle on a dusty road, hitting his head against a stone, causing himself fatal injuries and res ipsa loquitor[1]. Procedural Facts of the Case 8. The plaintifi filed this suit on 08.04.2009[2]. In the plaint, she originally sued the defendant herein alongside 2 others. She however discontinued the suit against the 2 other defendants vide a Notice dated 10.07.2009 which was filed on 13.07.2009. 9. On 28.07.2009, interlocutory judgment in default of appearance and defence was entered against the defendant herein. The judgment was however subsequently set aside, vide a consent entered into between the parties herein which was communicated to this court via a letter from the defendant's counsel, E. M. Juma & Co. Advocates, dated 27.08.2009. The defendant subsequently entered appearance and filed his written statement of defence herein. 10. Hearing in this case did commence before Hon. T. Matheka, Principal Magistrate (PM), as she then was, on 24.06.2010, with the first witness testifying for the plaintifi. The hearing never proceeded before the magistrate who was subsequently transferred. 11. This matter then stayed dormant till 12.02.2016, when the defendant's counsel brought a Notice of Motion application for its dismissal for want of prosecution. The application was to be heard before me on 17.03.2016. That application was however overtaken by the events of 31.03.2016, when neither the defendant, who was the applicant, nor his counsel, failed to attend court and move the motion for https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 2

page 2 of 7

the dismissal. Learned counsel for the plaintifi who was present seized the opportunity to fix the main suit for further hearing. 12. The defendant and his counsel failed to attend the further hearing on 09.06.2016, which proceeded ex parte. The defendant also failed to attend the mention on 25.08.2016 when the matter was fixed for submissions and confirmation of the date for the judgment. The defendant was duly informed of the dates. Submissions were therefore closed on that day, and the judgment date fixed without the submissions from the defence. Substantive Facts of the Case 13. The deceased herein was at the time of the accident herein, and his death, a 19-year-old school going young adult. He was then in his final year of the secondary education. He was a classmate of PW1, Wilson Wachira Kingori, who witnessed the accident herein. He informed the court that he boarded the motor vehicle herein before the deceased. That the deceased herein also attempted to board the vehicle. That in the process, the defendant herein, who was the driver of the vehicle, sped ofi without realizing that the deceased had not held onto the car properly. That they deceased fell ofi the motor vehicle and was run over. That the injured deceased was put into the vehicle after it was signalled to stop, approximately 15 meters from the accident spot. The deceased was then rushed to Ol Kalou district hospital while unconscious and injured. He later passed on when he was left unattended at the hospital because the doctor was then out for lunch. He confirmed that the defendant herein was the owner and driver of the motor vehicle at the time. That the defendant was in a hurry, and negligent by failing to give the passengers, including the deceased, adequate opportunity to board the vehicle. 14. In cross-examination, he confirmed that he was seated in the opposite row and could not therefore know what was happening outside the motor vehicle. He however denied that the deceased was running to board the vehicle when he tripped on a stone and fell down. He insisted that the deceased fell because of the high-speed take-ofi of the vehicle. 15. The plaintifi herein testified as PW3. She received the report of the death of her son herein. She confirmed that the deceased was then aged 19 and was in form 4 at Lake Ol'bossat Secondary School. That he used to average C+ in exams. That in primary school exams (KCPE) he attained 275 marks out of 500. That he had hopes of joining university and intended to be a doctor. She produced the result slip for class 8 as PEXH. No. 2, and a letter from the principal of Ol'bossat Secondary School dated 22.07.2010 as PEXH. No. 3. She also produced his certificate of death as PEXH. No.4. Before filing the suit herein, she was granted limited letters of administration which she produced as PEXH. No.5. She also issued a demand notice to the defendant herein through her advocates. She produced the notice as PEXH. No. 6. She incurred some expenses in the process, including Kshs. 5000/= vide PEXH. No. 7 being the legal costs for the succession cause where she obtained the limited grant herein, and various other funeral expenses vide receipts that were produced as Pexh. nos. 8, 9A, 9B, 10A, 10B, 10C, 10D, 10E, 10F and 10G. 16. A police oficer from the trafic department at Ol Kalou police station, PW2, NO. 73683 PC Thomas Mosoh, produced the police abstract relevant herein as PEXH. NO.1. It confirms the accident herein, the deceased's death and that the defendant's involvement. Issues 17. It is not disputed herein that the deceased died as a result of the accident herein. PEXH. No. 1 when considered alongside PEXH No. 4 and PW1's oral evidence prove the same. There was no other evidence tendered to challenge the same. The remaining relevant issues to the dispute herein are therefore as follows: - https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 3

page 3 of 7

a. Who is liable for the accident and the resultant death of the deceased? b. What is the quantum of damages awardable under the claims herein? Evidence Analysis on the Issues 18. The defendant denied liability in his plea. He alternatively pleaded substantial contribution from the deceased. Under section 107 of the Evidence Act whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. The burden of proving these counter allegations of negligence was on each of the parties herein to prove that the other was negiglent. 19. There was the evidence of PW1. Though he confirmed that from his sitting position in the vehicle herein, he was unable to know what exactly happened outside the vehicle when the deceased was attempting to board, I do not find any other eviedence to challenge his version that the defendant herein suddenly drove ofi the vehicle at an unusually high take ofi speed which caused the deceased to fall down and be ran over. This evdence was not challenged in any material way. There is thus no way the deceased could have caused his own injury yet he was not in cointrol of the vehocle which he was attempting to board. Perharps an account of the events from the defendant himself could have shed more light on how the accident happened, if at all it is true that he saw the deceased herein. 20. The defendant however failed to prove his allegation of negligence on the part of the deceased in any way. The defendant did not call any witness or adduce any evidence to prove the particulars of negligence he attributed to the deceased as pleaded and summarised hereinabove. The defence case, however, starts with the cross-examination of the plaintifi's witnesses. During cross-examination of PW1, it did come out that the deceased was left unattended at the hospital for some time. This could have also contributed to the death of the deceased. The defendant did not however plead that fact, or take-out third-party proceedings against the hospital, the doctor or any other authority concerned. This matter must therefore be decided as between the parties in litigation herein, i.e. the defendant and the deceased. I do therefore have no other option but to find the defendant herein 100% liable. Awards 21. The first award should come under the Fatal Accidents Act. The claim therein should mainly be that for loss of dependency. On this claim, I have submissions and authorities cited by the learned defence counsel on the same. There are no rival submissions ofiered herein. In Daniel Mwangi Kimemi & 2 Others VRS JGM & anor. [2016] eKLR, that was cited, it was held that African and Asian parents in Kenya have a reasonable expectation that such a child as the deceased herein would finish school, enter the job market and assist himself and his parents in old age. 22. The plaintifi tendered exhibits herein, including the death certificate (PEXH. No 4) to prove the deceased age at the time f his death. He was in Form 4 at the time. His academic reports produced herein as PEXH. Nos. 2 and 3, however proves that he was not that excellent in school. In KCPE, his marks totalled 261 out of 500, while his principal at secondary school in PEXH. No. 3 stated that the deceased could have at the very least been a secondary school teacher. Though the deceased had a dream to be a doctor which he could have shared with the plaintifi, I do believe that the principal's opinion based on his performance at school overrides all these dreams. With that average performance, he could have at the very least joined the secondary school teaching scheme of service at the grade of an ordinary diploma teacher at job group J[3]. The entry gross pay for the job group can be ascertained. It is Kshs. 34,662.00. Factoring taxation and other statutory deduction which takes about a third of the income, leaves an average net income of Kshs. 23,108/= per month. I do therefore believe that I can use this https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 4

page 4 of 7

figure to compute the award for loss of dependency using the multiplier/ multiplicand methodology. That was also the method adopted by Justice A.G.A Etyang in Betty Ngatia (administrator Of The Estate Of Gladys Waithira Ngatia) Vrs Samuel Kinuthia Thuita [1999] eKLR, that was also cited by the learned counsel herein. The deceased therein was approximately the same age as the deceased herein. She was however in a secretarial college and thus the judge used the approximate pay for secretaries in public service to arrive at the awards for loss of dependency. The retirement age for public servants, including teachers, has however since been raised to 60 years. 23. I am therefore guided by the decision in Beatrice Wangui Theuri = Vrs = Ezekiel Barngetuny & Anor. NRB HCCC No. 1638/ 1985 as cited by Justice Ruth Nekoye Sitati in Jonnes Eshapaya Olumasay & anor. Vrs Minial H Lalji Koyedia & anor. [ 2008] e KLR, and Justice D.S. Majanja in Alliance One Tobacco(k) Ltd Vrs Isaack Jandi Mbane [2015] eKLR, that: The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Each value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. 24. I have already adopted a multiplicand of Kshs. 23,108/=. Next is now the Multiplier. The decisions of Justices Ruth Sitati and David Majanja cited hereinabove continued as follows: The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum arrived at must then be discounted to allow the legitimate consideration such as the fact that the award being received is a lump sum and would if wisely invested yield returns of an income in future. 25. In the instant suit, the deceased was aged 19-20 years as at the time of his death, similar to the deceased in the Betty Ngatia, supra, case. In Betty Ngatia, the learned judge used a multiplier of 25 when the retirement age for public servants was 55 years. Now that the retirement age has since been raised, and with the mushrooming private schools and academies where there is no fixed retirement age, I would enhance the multiplier herein to 28. I will give his estate 1/3 of his estimated income because of his mother, the plaintifi herein, who is his sole dependant. I do therefore calculate the damages awardable for loss of dependency as follows under the Fatal Accidents Act as follows: 23108 x 12 x 28 x 1/3 = 2,588,096.00 26. Going by the decision in Mungai Kamau Vrs James Kariuki Gatimu (nairobi HCCA NO. 953/2003 - UR) which cited the decision in KEmfro Africa Limited T/a Meru Express Service Vrs LubiA & Anor. [1987] KLR 30, I find it superfiuous to consider awards under the Law Reforms Act, which prohibits this court from overcompensating the plaintifi by making a double award. The plaintifi herein, however pleaded at paragraph 7 of the plaint that the deceased did on the spot. She is bound by her pleadings. A conventional sum of Kshs. 10,000/= would therefore sufice for pain and sufiering. Going by the award in Betty Ngatia's case, and factoring infiation, an award of Kshs. 250,000/= sufices as general damages for loss of expectation of life. Both awards herein shall therefore be adequately catered for in the awards under the Fatal Accidents Act. 27. Next are the special damages. It is trite law that claims for such special damages must not only be particularly pleaded, but must be specifically proved. There are several and countless judicial authorities on the same including the Court of Appeal decisions in Savannah Development Co. Ltd https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 5

page 5 of 7

Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd { Civil Appeal No. 160 Of 91 (ur)}, Jivanji Vrs Sanyo Electrical Company Limited (2003) 1 EA 98 and Kenya Shell Ltd Vrs Benjamin K. Kibiru (Civil application no. NAI 97 of 1986) and the oftenly cited/ quoted famous Lord Goddard CJ's in Bohham-carter Vrs Hyde Park Hotel Ltd (1948) 64 times Law Report, 117. 28. This requirement is not merely a procedural necessity but is a mandatory requirement as held in a recent appeal decision by Korir-Lagat, J, sitting at the High Court at Kisii in KPLC LTD VRS Diana Achieng Ogunyo ( supra); where she quoted Savannah Development Co. LTD VRS Posts And Relecommunicatons Employees Housing Co-op Society LTD, supra, where the learned judges of appeal held as follows on this requirement: Having considered judicial pronouncements on the subject of special damages including the decision of this court, we can confidently state that 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 and an objection by the defendant that a plaintifi haw violated this rule may be taken at any time and even on appeal. 29. Several receipts were produced herein. The plaintifi however only particularly pleaded and proved Cofin charges of Kshs. 8,000/=, vide PExh. No. 8 and Kshs. 5,000/= being the costs to obtain limited grant ad litem herein, vide PEXH. No. 7. All the other receipts sought to prove special damages that were not particularly pleaded. The funeral expenses were not particularly pleaded and are therefore not awardable. The plaintifi was required to particularise the expenses in the plaint, before specifically proving the same during the hearing. The Kshs. 200/= police abstract and Kshs. 3000/= mortuary fees that were particularly pleaded were on the other hand not specifically proved as required. Only Kshs. 13,000/= is therefore awardable as special damages herein. Findings 30. After analysing the evidence herein, and upon applying the facts to the applicable laws; I do find the defendant herein to be 100% liable for the death of the deceased herein. 31. Plaintifi's claim of Kshs. 38,095/= special damages are reduced to Ksh. 13,000/=. 32. The plaintifi shall only claim the awards under the Fatal Accidents Act, to avoid double compensation. 33. The plaintifi is however entitled to general damages claimed as hereunder a. Liability = 100% b. Fatal Accident Act Loss of Dependency - Ksh. 2,588,096.00; all to the plaintifi herein her being the sole dependant herein. c. Law Reform Act Pain and sufiering - Kshs. 10,000/= Loss of life expectancy - Kshs. 250,000/= Order 34. 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 6

page 6 of 7

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. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 29TH DAY OF SEPTEMBER, 2016 ALOYCE-PETER-NDEGE SENIOR RESIDENT MAGISTRATE In the presence of; Counsel for the plaintifi: Ndegwa Counsel for the defendant: Mureithi h/b E. M. Juma Plaintifi: n/a Defendant: n/a [1] Refer to paragraph 8 of the Written Statement of Defence [2] There is an issue of technicality arising herein on whether the plaint herein was filed before it was dated and signed. [3] Refer to the Teachers Service Commission (2007). Revised Scheme of Service for Non-graduate Teachers. Available on www.tsc.go.ke. Accessed 28.09.2016 at 7.47pm https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/6/eng@2016-09-29 7

page 7 of 7