Marion Njeri Kago v Kenya Railways Corporation [2014] KEHC 7669 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO 828 OF 2003

MARION NJERI KAGO.............................…......…...………..PLAINTIFF

VERSUS

KENYA RAILWAYS CORPORATION…....…...….....…..…….DEFENDANT

J U D G E M E N T

1. The Plaintiff’s claim is in negligence on account of the death of one Charles M Kago (the Deceased) in a road accident on 13th August 2002 involving motor vehicle KAP 258 D (in which the Deceased was a passenger), motor vehicle KAG 902 F and motor vehicle KUV 506.

2.     Many claims arose out of the accident.  The present suit was selected as a test suit.  In a judgment dated 5th February 2007 (Ang’awa, J) the issue of liability was settled.  The court found the Defendant 100% liable.

3.     The present judgment therefore concerns only quantum of damages in the present suit.  Damages are sought under the Law Reform Act, Cap 26,and theFatal Accidents Act, Cap 32.  Special damages are also sought.

4.     Only the Plaintiff testified.  She adopted her witness statement dated 14th December 2012as her evidence-in-chief.  She produced in evidence her bundle of documents filed in court on 23rd September 2011 as Exhibit P1.  There was no appearance for the Defendant at the hearing despite service of hearing notice.

5.     It was the Plaintiff’s testimony that the Deceased (who was her husband) was a school teacher and was aged 53 years at the time of his death.  They had three (3) children; all were adults at the time of the Deceased’s death but the last-born was in college and still his dependant.  The two older children were already working.

6.     The Plaintiff filed written submissions which I have considered, including the cases cited.

Under the Law Reform Act

Pain and Suffering

7.     The Deceased succumbed to his injuries while undergoing treatment in hospital the day of the accident.  There is no indication that he was unconscious, so he must have suffered a lot.  I will award KShs 20,000/00 under this head.

Loss of Expectation of Life

8.     As already noted, the Deceased was aged 53 years at death.  The younger a person is at the time of death, the greater the loss of expectation of their life.  But that is not to say that the life of an older person is less valuable than that of a younger person!  At 53 years, all being equal, the Deceased still had many more years on this Mother Earth.   I will award KShs 100,000/00 for loss of expectation of life.

Funeral and Related Expenses

9.     Funeral expenses, though usually claimed as special damages, are a proper claim under the Law Reform Act.  That way the court is able to award a reasonable sum, depending on the Deceased’s station in life and other factors, without the confines of strict proof.  In the present case however, the sum of KShs 155,700/00 was strictly proved, and I will award the same, not as special damages, but as funeral and related expenses under the Law Reform Act.

Under the Fatal Accidents Act

10.   The Deceased’s widow (Plaintiff) and their last child who, though an adult, was in college and still dependent on the Deceased, are entitled under the statute as their dependency has been proved.  See section 4(1) of the Act.

11.   The Plaintiff and the youngest child were fully dependent upon the Deceased.  With that youngest child being in college, I estimate that the Deceased used not less than two-thirds (2/3) of his income on his dependants.  I will award that dependency ratio.

12.   As for the Deceased’s income, his pay-slip for the month of July 2002 disclosed net earnings of KShs 11,070/00 after statutory deductions.  The amounts deducted from his pay towards repayment of loans or towards savings all constitute part of his net income.  I am thus satisfied that the Deceased’s net income was KShs 11,070/00.

13.   Regarding the multiplier, the Deceased had only 2 years to go before reaching the then Public Service mandatory retirement age of 55 years.  I will thus award a multiplier of 2 years.

14.   Damages under the Fatal Accidents Act therefore work out as follows –

KShs 11,070 X 12 X 2 X 2/3 = KShs 177,120/00

15.   I will enter judgment for the Plaintiff against the Defendant as follows –

(i)      Under the Law Reform Act .......KShs 275,700/00

(ii)     Under the Fatal Accidents Act..         177,120/00

Total                                  KShs 452,820/00

16.   These damages will carry interest at court rates from the date of judgment until payment in full.

17.   The damages awarded under the Fatal Accidents Act will be apportioned as follows –

(i)      Plaintiff ...................................KShs 157,120/00

(ii)     Faith Wambui Kago ...........................20,000/00

KShs  177,120/00

18.   The Plaintiff will have costs of the suit and interest thereon at court rates from the date of filing suit.

19.   There will be judgment accordingly.

DATED, SIGNED AND PRONOUNCED IN OPEN COURT THIS

10TH DAY OF MARCH 2014

H. P. G. WAWERU

JUDGE