Felistas Gathoni v Ibrahim Ali & Attorney-General [2013] KEHC 6745 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO. 6647 OF 1992

FELISTAS GATHONI..............................…......….……….. PLAINTIFF

VERSUS

IBRAHIM ALI

ATTORNEY-GENERAL………………....…….……….DEFENDANTS

J U D G E M E N T

1. In this suit the Plaintiff claimed damages in negligence on account of the death of her husband WILFRED JAMES WAIREGI (hereinafter called the Deceased).  The Deceased died from injuries he sustained in a road accident on 11th January 1992 along the Nakuru/Gilgil road.  The accident occurred when the motor vehicle he was driving, Registration No. KUN 008, collided with motor vehicle Registration No. GK L 646 driven by the 1st Defendant in the course of his duties and owned by the Government of Kenya.

2.     It was the Plaintiff’s case that the accident was caused by the sole negligence of the 1st Defendant.

3.     General damages were claimed under the Law Reform Act, Cap 26and the Fatal Accidents Act, Cap 32 on behalf of the Deceased’s estate and on behalf of his dependants.  Special damages were also claimed.

4.     The Defendants entered appearance but did not file defence. Interlocutory judgment was entered (with leave of the Court in respect to the 2nd Defendant) on 10th June 1996.  It is not readily apparent from the Court record why the case did not proceed any further until 27th June 2013!  On that date evidence on quantum of damages was taken.  There was no appearance for the Defendants despite service.  Only the Plaintiff testified.  She adopted as her evidence her witness statement filed in June 2013.  She also produced in evidence her list and bundle of documents dated 26th June 2013 (Exhibit P1).

5.     I have considered the Plaintiff’s testimony and the documents produced in evidence.  I have also considered the Plaintiff’s written submissions filed on 8th July 2013, including the two cases cited.

LIABILITY

6.     The particulars of negligence alleged against the 1st Defendant are pleaded at paragraph 5 of the amended plaint dated 10th April 2012.  Those particulars were that the 1st Defendant drove his motor vehicle at an excessive speed without due regard to the safety of other road users; that he drove on the wrong side of the road and in the path of the Deceased’s motor vehicle; and that he failed to take any measure at all in order to avoid colliding with the Deceased’s motor vehicle.

7.     As already noted, the Defendants did not file any defence and interlocutory judgment on liability was duly entered against them.  The particulars of negligence pleaded against the 1st Defendant have thus not been denied or challenged.

8.     There is no evidence before the Court that the Deceased contributed in any way at all to the cause of the accident.  On the contrary, evidence available in an insurance investigation report in Exhibit P1 shows that the 1st Defendant was driving a “lead” or “clearing” car a few minutes ahead of a Presidential motorcade at a very high speed, and on the wrong side of the road.  The Deceased was driving from the opposite direction; apparently when he saw the 1st Defendant’s vehicle he tried to get off the road, but the 1st Defendant was upon him before he managed to get completely off the road.

9.     The impact was such that the Deceased’s little Datsun 1200 pick-up truck was cut into two by the heavier and robust Mercedes Benz 300 saloon.  It carried the front part of the Datsun some 110 meters before coming to a stop.  There was no evidence at the scene of the accident that the 1st Defendant tried to brake, or swerve, or do anything at all to try and avoid the Deceased’s car.

10.   On liability therefore I find for the Plaintiff at 100 per centum.

DAMAGES

Under the Law Reform Act

11.   The estate of the Deceased is entitled to damages for pain and sufferingand loss of expectation of life.  The Deceased appears to have died “instantly”, which usually means at the scene of the accident.  Considering the date of death (1992) I will award KShs 20,000/00 for pain and suffering.

12.   As for loss of expectation of life, the Deceased was aged 49 years when he died.  All being equal he still had many years more to live and work.  But in life nothing is ever equal.  Again given the year of his death, I will award KShs 70,000/00 for loss of expectation of life.

Under the Fatal Accidents Act

13.   Damages under this statue must be for the benefit only of the wife, husband, parent or child of the Deceased.  See section 4(1) of the Act.  The Deceased was survived by the Plaintiff and their four children named at paragraph 6 of the amended plaint.  The children were all minors then but have since attained majority.

14.   In order to properly assess damages under the Fatal Accidents Act the Deceased’s income, the extent of his dependants’ dependency and the multiplierto be used must be determined.

15.   The Deceased was a consultant geologist in private practice.   It is pleaded at paragraph 6 of the amended plaint that his monthly income was KShs 25,000/00.   But the Plaintiff testified that his income averaged at about KShs 35,000/00 per month.

16.   The Plaintiff also testified that for six (6) months prior to his death the Deceased earned about KShs 600,000/00.  The documents produced to support this income are in Exhibit P1.  They are –

(i)A fee note for KShs 350,000/00 issued by the Deceased dated 04/11/1991.

(ii)     A banking slip for the same amount dated 07/01/1992.

(iii)    A banking slip for KShs 64,700/50 dated 25/11/1991.

(iv)    A payment voucher for the same amount dated 21/11/1991.

(v)     A banking slip for KShs 111,779/00 dated 29/07/1991.

(vi)    A banking slip for KShs 54,510/00 dated 03/10/1989.

17.   These documents show that between 3rd October 1989 and 7th January 1992, a period of 27 months, the Deceased had a total income of KShs 580,989/50, an average of KShs 21,518/50 per month. This was of course gross income.  If you factor in tax and other statutory out-goings, the Deceased’s monthly net income was about KShs 15,000/00 per month (about two-thirds of the gross).  That is the figure I will accept as the Deceased’s monthly income from the available evidence.

18.   As for dependency, the available evidence is that the Plaintiff and the four children depended wholly upon the Deceased.  He could not have spent less than two-thirds (2/3) of his income on them.  I will award a dependency ratio of two-thirds (2/3).

19.   I will now consider the multiplier. As already noted the Deceased was 49 years old at the time of his death.  He had just taken early retirement from the Public Service.  He could have worked for many more years in his private consultancy in the (then) rare field of geology. But the vagaries, vicissitudes and uncertainties of life must be taken into account.  I will award a multiplier of 15 years.

20.   Damages under the Fatal Accidents Act will thus work out as follows –

KShs 15,000/00 X 12 X 15 X 2/3 = KShs 1,8000,000/00

Special Damages

21.   Special damages of KShs 175,000/00 for funeral expenses (KShs 25,000/00) and the value of the Deceased’s car (KShs 150,000/00) were claimed.  Special damages must not only be particularized but must also be strictly proved.  I can find no proof in Exhibit P1 for the claim of funeral expenses.  However, funeral expenses ought ideally to be a claim under the Law Reform Act without the necessity of strict proof.  Every funeral must involve some expense.  The quantum thereof will depend on the deceased’s religion (for instance, I understand that Muslim funerals incur very little expense), his status (recently funds were raised for the funeral of a politician to the tune of over KShs 100 million!) and the family and friends’ means.  In 1992, and given the status of the Deceased, KShs 25,000/00 would have been a reasonable sum to spend on his funeral.  I will award that sum under the Law Reform Act, not as special damages.

22.   There is also no valuation of the Deceased’s motor vehicle among the documents produced.  But the motor vehicle was there, being driven on the road; surely it was worth something! I will award KShs 120,000/00 as the value of the motor vehicle.

23.   In summary, I will enter judgment for the Plaintiff against the Defendants jointly and severally as follows –

(i)    Law Reform Act

(Pain & Suffering, Loss ofExpectation of Life and

Funeral Expenses)…….................KShs 115,000/00

(ii)   Fatal Accidents Act...........................1,800,000/00

(iii)  Special Damages

(value of the Deceased’s car)...............120,000/00

24.   The general damages will carry interest at court rates from the date of judgment until payment in full.  The specials will carry similar interest but from the date of suit until payment in full.

25.   The Plaintiff will also have costs of the suit and interest thereon at court rates.

26.   Finally, I will apportion the damages awarded under the Fatal Accidents Act as follows –

(i)    Plaintiff...............................KShs 1,000,000/00

(ii)   Angela Wanjiru............................200,000/00

(iii)  Esther Wanjiku ...........................200,000/00

(iv)  Michael Muchemi ........................200,000/00

(v)   John Gachiri ...............................200,000/00

KShs. 1,800,000/00

Any legal costs shall be paid from the Plaintiff’s share.

27.   There will be judgment accordingly.

DATED, SIGNED AND PRONOUNCED IN OPEN COURT THIS25TH DAY OF OCTOBER 2013

H. P. G. WAWERU

JUDGE