James Gakinya Karienye & Nancy Muguru Gakinya (suing as the legal Representative of the estate of David Kelvin Gakinya (deceased) v Perminus Kariuki Githinji [2015] KEHC 7688 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.  91 OF 2014

JAMES GAKINYA KARIENYE

NANCY MUGURU GAKINYA (suing as the legal Representative of the

estate ofDAVID KELVIN GAKINYA (deceased)……...........….PLAINTIFF

VERSUS

PERMINUS KARIUKI GITHINJI…………………………......….DEFENDANT

JUDGMENT

This suit was initially  instituted before the  Chief Magistrate’s Court  at Milimani vide CM CC No. 4766 of 2010 and vide  an order  of Honourable  Justice Ogolla made  on 12th March 2012, the said suit  was  transferred  to the High Court  at Milimani  for  hearing  and final determination.  The said order was issued on 12th April 2012.

The matter was however  registered  before  the Commercial and  Admiralty Division and on 7th April 2014 Honourable Ogolla J transferred  it to  the Civil Division for directions on  quantum after recording a consent on  liability  between the parties as dictated  by the parties’ advocates.

It therefore follows that this suit is before me solely for purposes of assessing damages as the issue of liability has been settled in the ratio of 80% to 20% in favour of the plaintiff against the defendant.

The facts  of this case are that  the plaintiffs  James Gakinya Karienye  and Nancy  Muguru Gakinya are  the parents   of the deceased David  Kelvin Gakinya who died  on 4th April  2009 following  a road traffic  accident  which occurred  along Langata Road  opposite  Uhuru Gardens  when the  deceased, while travelling as a passenger  in motor vehicle  registration No.  KAT 182C was involved in an accident as a result of which the deceased sustained fatal injuries.

The plaintiffs blame the defendant   Perminus Kariuki Githinji the owner of the accident motor vehicle for the occurrence of the said fatal accident.

As  the issue of liability  has already been agreed  upon by consent, I shall not delve  into the specific  acts of  negligence  attributed  to the defendant, his agent, servant  and or driver of the accident  motor vehicle.

The hearing  commenced on 22nd September 2014  with the plaintiff  James Gakinya  Karienye  testifying  on  oath  that he is  a retired  clinical  officer  and father to the deceased David Maina Gakinya, besides  being the  administrator  of the deceased’s  estate vide a grant issued to him jointly  with the second plaintiff on 14th September  2009 vide HCC Succession Cause No. 1803  of 2009 at Nairobi.  He produced the grant of letters of administration intestate as P Exhibit 1 a and receipt for filing of the succession cause as P Exhibit 1b for kshs 1320/-.

The 1st plaintiff also produced   copy of birth and death certificates of the deceased as P Exhibit 2 and P Exhibit 3 respectively.

He testified that the deceased who was his son died at the age of 28 years and a bachelor working with media interactive and earning kshs 28,000/- as his basic pay.  He also produced the deceased’s pay slips for the months of December 2005, January 2007 and April 2006 as P Exhibit 4a, b, c.

The1st plaintiff recalled  that the  deceased  died  as a result  of a road accident  as 4th April 2009 as per  the witness statement recorded and filed in court in accordance  with  the provisions  of Order 11  of the Civil Procedure Rules.

The 1st plaintiff further testified that the deceased used to support his father by paying fees for 2 of his grant children, his daughter’s children, as his daughter is very sick and cannot cater for her children.

Further, that the deceased used to purchase or him medicine for his hypertensive situation, food, clothing for him and his wife (the deceased’s mother and second plaintiff) and their grandchildren.

The plaintiff also produced exhibits 5a-j to show the expenditure he incurred being mortuary expenses receipts totaling to kshs 109,500.  He also incurred funeral announcement expenses.

He prayed  for compensation for loss of  dependency  and loss of their  son. In cross  examination by Mrs Wangare  Muchemi  advocate  for the defendant, the plaintiff  responded that the deceased  used to  give him about  kshs 10,000/- per month  and that  he expected  his son to  marry in future  and take care of  his own family.  He also conceded that upon marriage, the deceased would commit part of his earnings to his family life and children.

The plaintiff also called PW2 Mr Peter Kangangi Njeru who testified on oath that he was a businessman residing in Embu, operating a bookshop, stationeries and catering services.  That he also handled Nation Media Group Advertisement Agency.  He produced  his letter of appointment by the Nation Media Group  as  their agent  a P Exhibit 6  and that he was  paid by the  plaintiff herein to  ran an obituary  for the deceased  as per Exhibit 7,together  with notice of appreciation  which all  cost  kshs 49,680/-.

PW2  also testified that  the plaintiff  hired  his 4 tents each  at a cost  of shs 3,000, 400 chairs  at 10/- each totaling shs 4,000 and feeding of  400 mourners  at shs 150 per plate totaling  shs 60,000/-.  He also charged transportation for the chairs tents and food at 4000/- all totaling shs 80,000 and produced the receipt as P exhibit 8.

On cross examination by  Miss Wangare Muchemi the plaintiff’s witness  stated that  the receipts  he  produced  were genuine  as he issued  them personally  after receiving  the payments  indicated.

PW3 Rose Kaguri, the Media  Manager of Media Edge Interactive  testified  that she knew the deceased  David Gakinya who used to work  with her as the accounts manager  at Media Edge  Interactive from  the year  2005 earning initially kshs  20,000/- per  month but because of his aggressiveness and willingness  to work  he was promoted in 2007 to accounts  manager  on the Senior Management  earning  shs 70,000/0 gross salary  per month as at the time of his  demise.  She confirmed  that the  pay slips  produced By PW1  were from  her company  and also produced P Exhibit 9a and b pay slips  for the months of  February 2008 and March 2008 showing  the deceased’s basic pay  as shs 70,000/- per month.  She also  produced  P Exhibit  10a and b letters  issued  to the deceased on  27th September 2007 and 12th December 2008 appreciating the deceased’s dedicated service  and rewarding him with a 60% of his average  year’s pay bonus and  letter  of promotion.

In cross examination, the witness stated that besides his basic salary of shs 70,000/- the deceased also earned commissions less deductions, and that  his net pay was kshs 55,132/-.

At the close of the plaintiffs’ case, the defence counsel closed the defence case as the defendant did not wish to call any witness.

The parties then agreed to file written submissions to assist the court assess damages payable to the plaintiffs.

The plaintiffs filed written  submissions  on 5th December 2014 urging the court to award them kshs  140,000/- under the law Reform  Act  for loss of expectation  of life and  shs 20,000/- for pain and  suffering, citing  the case if Simeon  Kiplimo Murey and 3 Others vs  Kenya Bus Service management  Ltd & 4 Others  (2014) e KLR .

Under  the Fatal Accidents  Act, the plaintiff  prayed   for  shs 14,000,000/- using  a multiplier  of shs  25 years  at 70,000/- per month relying  on the case of  Board of Governors  Kangubiri Girls High School & Another vs Jane Wanjiku Muriithi & Another (2014) e KLR.

On special damages, the plaintiff prayed for shs 239,180 as per the exhibits produced.  In total the plaintiff  prayed  for judgment  for kshs  14,349,180 less 20% contribution all  totaling  shs 11,479,344, interest  and costs of  the suit and  any other relief  the court may deem fit to grant.

In a  rejoinder, the defendant  submitted that although the plaintiff  had listed  the deceased’s parents, sisters and brothers  as dependants, at the  hearing,  in his  oral testimony, he testified  that the deceased  used  to support   his nephews  and nieces  who cannot  be considered  as dependants  as they are not named   in the plaint.  He urged the court to disregard them.

On income, it was submitted that paragraph 6 of the plaint pleaded the deceased’s earnings as shs 56,544 per month at the time of his demise which had to be specifically proved in evidence.  However, that the  plaintiff had only produced  pay slips  P Exhibit  4a and 4b, 4c showing  kshs 15,278. 00 and 33,170 and kshs  29,028 and that the  deceased  used to  support  the family with shs 10,000/- per month.  He also  referred   to the evidence  of PW3  who produced   pay slips  for February  2008 showing shs 50,094 and March  2008  for shs 55,132. 00  arguing that the plaintiff failed to prove the pleaded  income of kshs 54,544 as per the plaint, as there  was no pay slip or document  showing what the deceased  earned  immediately before  his death.  He urged the court to adopt a minimum wage applicable on the deceased’s career (accountant) of shs 19,360. 50 under the Labour Relations Act No. 12 of 2007 revised in 2012.

On the multiplicant, the defendant  submitted that the  court should  use  the ratio  of 1/3 as all dependants  named  were adults  and that  as it was expected  that his  support  to them  would be minimal upon  marriage  as  he would be expected to use the rest of his income to care for his family and personal upkeep.

On the multiplier, the defendant  submitted that the retirement  age  in Kenya was 55 years and that the fact that the deceased  worked for a  private company  guaranteed him no employment and therefore those uncertainties  and contingencies of life, reduces  the number of  active years and proposed  a multiplier  of 15 years  as fair and  reasonable.  He relied on HCC 49/11Nakuru Charles Masoso Barasa & Another  vs Chepkoech Rotichwhere Wendoh  J on 30th May 2014  awarded  shs 15,000 for pain and suffering shs 80,000/- loss of  expectation of life and adopted  a multiplier of 15 years  for a 28 years  old deceased  who left a child.  HCC 1484/1993 Nairobi Lucy M.Njeri vs Fredrick  Mbuthia & Anotherwhere Angawa J on  23rd May 2006  awarded shs 5,000/- for pain and suffering, shs 70,000/- for loss of  expectation of life and  a multiplier  of 20 years  for a 28 years old  deceased  and HCC 4598/92 Nairobi Bonface Ndega  vs Honouarable Attorney General  where DKS Aganya J on 23rd March 2006  adopted a multiplier of 12 years  for a deceased aged 27 years. On special damages the defendant proposed kshs 240,800/-.

The total figures proposed by the defendant are

a) Pain and  suffering  shs              10,000

b) Loss of expectation of life  shs  80,000

c) Specials      shs                             240,000

d) Lost  years 19,360 x 15 x 12 x 1/3= 563,160. 00

Subject to 20% contribution on liability as conceded   by consent.

Determination

I have considered  the pleadings  by the plaintiff, the evidence as adduced  in court  both oral  and documentary, the submissions  by both counsels  for the parties  and the authorities  relied on  in support  of the quantum for general damages.

It is  trite  law that  when  a person is  bound  to prove  the existence  of any  fact it is said  that the burden of proof  lay on that person.  Furthermore, whoever  desires any court to give  any judgment  as to any legal  right or  liability dependent  on the existence of facts  which he  asserts  must prove that those facts exist .  See Section 107 of the Evidence Act Cap 81 Laws of Kenya.

In this case, the burden of proving loss and damage therefore lies with the plaintiffs. In Timsales Ltd vs Stephen Gacie Nakuru CA No. 74 of 2000,the court held that:

“ A court of law will not  just  award damages  to a litigant  because  it is  sympathetic to him due to an injury which he  may have received  in his place of work and   in the  cause of  duty………….”

In New Leather Manufacturing  Factory  Ltd  vs John Mburi Mbiti (2013) e KLR  Okwengu J as  she  then was, relying  on the case  of Butler vs Butler  (1984) KLR  228 where  it was stated:

“The assessment of damages is more like an exercise of discretion by the trial judge.”

In Patel M. Kariuki vs Attorney  General (2014) e KLR  the count acknowledged  that  the assessment  of damages  is a matter  of judicial discretion  for the trial court, which  must  be exercised  judicially and with  regard  to the general  conditions  prevailing  in the country  and to  prior relevant decisions.

In this case, it is not disputed that the deceased died following the fatal accident.  However, the plaintiff did not state whether the deceased died instantly or after sometime.  In the absence of any evidence that the deceased died long after the accident, I award the plaintiff a sum of kshs 10,000/- for pain and suffering, being a convectional figure for the death that occurred immediately after the accident, under the Law Reform Act.

On loss  of  expectation of life,  I award  the plaintiff kshs 80,000 being a conventional figure  based on the authority  of Charles  Masoso  Barasa  & Another vs Chepkoech  Rotich  & Another (2014) e KLR.

The above awards are capped to a minimum so that the estate of the deceased does not benefit twice from the same death –under the Fatal Accidents Act and the Law Reform Act.

On the claim under the Fatal Accidents Act, I note that the plaintiffs had letter of administration ad litem to represent the estate of the deceased person. They sued in their capacities as father and mother of the deceased. They are therefore dejure dependants under section 4(1) of the Fatal Accidents Act which provide that:

“every action brought by notice of the provision of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused..”

The deceased was unmarried and had no known issue. On the claim for lost years (loss of dependency), the manner  of assessment of damages  under the Fatal Accident’s Act  was  set out in Chunibhai J Patel and  Another vs PF Hayes  and Others  (1957) EA 748, 749 where  the Court of Appeal stated that:-

“  The court should find the age  and expectation of the working life of  the deceased  and consider the  ages  and expectations of life of his dependant, the net earnings  power of  the deceased  ie his income and  tax  and the proportion of his net  income  which he would have  made  available  for his dependants.  From this it should be possible to arrive at the annual value of the dependency, which must then be capitalized by multiplying a figure representing so many years purchase.  The multiplier will bear a relation to the expectation of the earning life of the deceased and the expectation of life and dependency of the widow and children.  The capital sum so  reached  should  be discounted  to allow for  possibility  or proportionality  of the remarriage  of  the widow of  what her husband  left her, as a result of his premature  death.  A deduction must be made for the value of the estate of the deceased because the defendants will get the benefit of that.  The resulting sum (which must depend upon a number of estimates and imponderables) will be the lump sum that the court should apportion among the various dependants.”

In this case, the plaintiffs pleaded that the deceased was aged 28 years, enjoyed a good health and lived a happy and vigorous life.  He was an accountant in the firm of Media Edge Interactive and his income after payment of taxes   was kshs 56,544 per month.

In his  sworn evidence  the plaintiff produced  pay slips  but none  of them  had the exact figure of shs  56,544 as a monthly  pay after  deductions.  The deceased’s pay slip for March 2008  showed  earning o 70,000/- gross pay and  shs  50,094 net pay for that  month.  The deceased died on 4th April 2009.  None   of the pay slips  produced   were proximate  to the time of  his death although  the employer  PW3 testified  that as at December  2008  as per P exhibit 10(b) the deceased  was performing  very well and even earned  appreciation  and  a bonus  of 6% of his average  years salary in December  2008  for exemplary  performance.

However, it is my view that in this case, it was the deceased’s employer who was best placed to provide information of the deceased, employment and income.  It was not disputed  that the deceased worked  as an accountant   Manager  in Creative  Business  for Media  Edge  Interactive  as shown  by the letter  of appraisal  and promotion dated 27th September  2007 and the letter of  appreciation  dated December 2008.  The death certificate also indicated his profession as an accountant   and there was no other evidence to counter that fact.

Although  the defendant submitted  that there was no prove of the deceased’s actual earnings, I do not  agree, an  accountant  in actual  employment , and  whose  employer  has testified  to that effect and fact of employment and earnings cannot  be a freelance  worker  for this  court to  take  the minimum  wage provided  by Government  circulars  or Gazette Notices  for a cashier, and in the face of  previous  pay slips showing how much  he earned.

On the evidence  before me, I  would take  the  deceased’s  monthly pay to be kshs  70,000 less  12,936  tax = 57064 based on his March 2008  pay slip which was produced in evidence as an exhibit.

It has also been  submitted by  the defendant that  the deceased would retire  at  age 55  and that there was no guarantee that  he would  remain  in active employment  in the private sector. It is true that there are indeed many imponderables of life and life itself is a mystery of existence.  However, it is not in the province of this court to determine or explore those imponderables.  The duty of this court is to apply the generally known period during or about which an employee in the deceased’s occupation of an accountant would be in active work and retire.

In the government employment, the deceased would have retired at age 60 years.  In accordance with employment laws and there was no other evidence to challenge this legal retirement age and the plaintiff   did not state otherwise.  I would therefore take 60 years to be the common retirement age.  There  was no evidence  of the vicissitudes of  life of other imponderables  or illness which would  have shortened  the deceased’s working life to only 15 years  and retire  from work.  The deceased was described as having lived a healthy and happy life.

According  to the plaintiff, the  deceased gave  kshs 10,000 per   month towards his medicine  and general support  to his mother and siblings  who included  the sick sister’s  children as he is sickly and depended  on the deceased.

Nonetheless, I agree with the defendant’s submission and contention that the deceased sister’s children were not named as his dependants and so this court indeed shall not take into account that fact.  The plaintiff only made a general pleading that the deceased used to pay fees for his sister’s children and intended, in due course, to pay for their further education up to University.  That cannot be proof of dependency.  Paying fees for your sister’s children’s education was a gratuitous assistance to his sister’s children who were not even named in the pleadings as his direct dependants.  The plaintiff conceded that the deceased was expected to marry and reduce the support to his dependants.

I would therefore give 1/3 of his earnings to the support of the deceased’s direct dependants named and listed in the plaint.

In Benedita Wanjiku Kimani (supra) Emukule J awarded a multiplier of 16 years to a deceased aged 44 years at the time of his death.  In Simon Kiplimo Murey & 3 Others  v Kenya  Bus Service  Management  Services  Ltd  & 4 Others  (2014) e KLR  where the deceased died  aged 28 years working for  Kenya Power  and Lighting  Co. Ltd  and earning  kshs  40,000/- per month  the court  awarded a multiplier  of 25 years.

Based on the above authorities, submissions  and principles, I would  award a multiplier of 25 years  urged  by the  plaintiff though far  much below  the expected  retirement  age of  the deceased, as that is what he sought from this court.  Loss of dependency is therefore calculated as follows 57,064 x 25 x 1/3 x 12 =         5,706,400

Pain and suffering                                       10,000

Loss of expectation of life                            80,000

Less 20% contribution                        (1,159, 280)

Total                                                            4,637,120

Add Specials                                                239,180

TOTAL                                                          4,876,300

The plaintiff shall also have interest at court rates on general damages from date of judgment until payment in full and interest on special   damages from date of filing suit until payment in full.

The plaintiff shall also have costs of the suit.

Dated, signed and delivered in open court this 20th day of July, 2015.

R.E. ABURILI

JUDGE

20. 7.2015

Coram R.E. Aburili J

C.A Samuel

Monyangi hold brief for Miss Amani for plaintiff

No appearance   for defendant.

Court- Judgment read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

20/7/2015