Nzioka & another (Suing as the administratrixes to the Estate of Mule Muthendu Mwoloi - Deceased) v Makau & another [2022] KEHC 14053 (KLR)

Nzioka & another (Suing as the administratrixes to the Estate of Mule Muthendu Mwoloi - Deceased) v Makau & another (Civil Suit 428 of 2010) [2022] KEHC 14053 (KLR) (Civ) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14053 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 428 of 2010

JK Sergon, J

October 19, 2022

Between

Christina Maiya Nzioka

1st Plaintiff

Florence Nthenya Mule

2nd Plaintiff

Suing as the administratrixes to the Estate of Mule Muthendu Mwoloi - Deceased

and

Justus Nzioka Makau

1st Defendant

Ndungu Denis

2nd Defendant

Judgment

1. The 1st and 2nd plaintiffs herein and the administratrixes to the estate of Mule Muthendu Mwoloi (“the deceased”) instituted a suit against the 1st and 2nd defendants by way of the plaint dated September 14, 2010 and amended on July 11, 2013 and sought for general and special damages, costs of the suit and interest thereon.

2. The 1st defendant is sued in his capacity as the driver of the motor vehicle registration number KAM 090B (“the subject motor vehicle”) at all material times while the 2nd defendant is sued in his capacity as the registered owner of the subject motor vehicle at all material times.

3. The plaintiffs pleaded in the amended plaint that sometime on or about the September, 2007 the deceased was lawfully walking along the pedestrian track along Jogoo road in Nairobi when the 1st defendant or the employee/agent of the 2nd defendant negligently drove the subject motor vehicle, causing it to hit and fatally injure the deceased. The particulars of negligence are set out under paragraph 8 of the amended plaint.

4. The plaintiffs further pleaded in the amended plaint that at the time of his death, the deceased was aged 45 years and worked as a businessman earning an average monthly income of Kshs 60,000/= and has left behind the following dependants/beneficiaries:a)Christina Maiya Nzioka 51 years Widowb)Florence Nthenya Mule 23 years Daughterc)Agnes Mbithe Mule 26 years Daughterd)Janet Muthoki Mule 20 years Daughtere)Felix Mulei Mule 17 years Sonf)Kennedy Makau Mule 12 years Son

5. Upon service of summons, the 1st defendant entered appearance and filed his statement of defence on May 25, 2011 to deny the averments set out in the plaintiffs’ claim.

6. Upon the request of the plaintiffs, interlocutory judgment was entered against the 2nd defendant on December 4, 2019.

7. At the hearing, the 1st defendant was absent from court and hence the matter proceeded ex parte, with the 1st plaintiff testifying and calling a police officer. Consequently, the 1st defendant’s case was closed.

8. In her evidence, the 1st plaintiff adopted her signed witness statement as her evidence-in-chief and further produced the plaintiffs’ bundle of documents as exhibits.

9. PC Naomi Nyamweya who was PW2 testified that at the time, she was attached to Makongeni police station and performing traffic duties.

10. The police officer produced the police abstract alongside the Occurrence Book Report (OB) and testified that the accident occurred on the material date on Landhis road and involving the subject motor vehicle being driven by the 1st defendant and the deceased.

11. The police officer further testified that the subject motor vehicle veered off the road and landed on the opposite direction thereby hitting the deceased, who was then rushed to hospital and admitted before he died thereafter.

12. Upon close of the hearing, this court issued directions for the parties to put in written submissions. At the time of writing this judgment, only the submissions by the plaintiffs had been availed.

13. By way of their submissions dated July 5, 2022 the plaintiffs contend that in the absence of any contrary evidence, the defendants ought to be found 100% liable for the accident, jointly and severally.

14. On quantum, it is the contention of the plaintiffs that an award in the sum of Kshs 400,000/= would suffice on general damages for pain and suffering since the deceased died 14 days after the accident. The plaintiffs cite the cases of Joseph Kamau Njoroge &another[2011] eKLR and Julian Njeri Muriithi v Veronica Njeri Karanja &another[2015] eKLR where the respective courts awarded the sums of Kshs 150,000/= and Kshs 200,000/= for deceased persons who died 13 days after the accident.

15. On damages for loss of expectation of life, the plaintiffs propose the sum of Kshs 600,000/= with reference to the case of Vincent Kipkorir Tanui (Suing as the administrator and/or Personal representative of the Estate of Samwel Kiprotich Tanui (Deceased) v Mogogosiek Tea Factory Co. Ltd & another [2018] eKLR in which the court awarded the sum of Kshs 200,000/= under this head.

16. In respect to damages for loss of dependency, the plaintiffs suggest application of a multiplier of 15 years, a multiplicand of Kshs 60,000/= and a dependency ratio of 2/3 to be tabulated as follows:15 x 12 x 6,000 x 2/3 = Kshs 7,200,000/=

17. The plaintiffs also sought for an award on special damages in the sum of Kshs 90,720/=.

18. Upon considering the evidence on record, the submissions and authorities relied upon by the plaintiffs, I established that the twin issues for determination are liability and quantum.

19. On liability, following my examination of the pleadings and evidence on record, both oral and documentary, there is no doubt that an accident took place on the material date and at the place pleaded in the amended plaint, the result of which the deceased lost his life. It is also apparent that the accident involved the subject vehicle.

20. On the subject of ownership of the subject motor vehicle, the plaintiffs tendered a copy of records to show that the 2nd defendant was at all material times the registered owner of the subject vehicle.

21. The aforesaid evidence was not at all challenged by the defendants. In the absence of any evidence to the contrary, I am of the view that the contents of the copy of records are deemed to be prima facie evidence of ownership pursuant to the provisions of section 8 of the Traffic Act, Cap. 403 Laws of Kenya which stipulates that the person whose name appears on the registration document in respect to a motor vehicle will be considered its owner.

22. Furthermore, PW2 tendered the police abstract relating to the accident, the contents of which I have also considered. According to the police abstract, the 1st defendant was the driver of the subject motor vehicle at all material times.

23. The defendants on their part did not call any evidence to challenge the contents of the police abstract.

24. In view of the foregoing circumstances, I am satisfied that the plaintiffs have proved on a balance of probabilities that the 1st and 2nd defendants were at all material times the driver and registered owner of the subject motor vehicle.

25. On the subject of negligence, upon my examination of the pleadings and evidence, I observed that PW2 provided a fairly detailed account of the events leading up to the accident and her evidence is supported by the contents of the police abstract, none of which were controverted by the defendants at the trial.

26. In the premises, I am satisfied that the plaintiffs have made their case against the 1st and 2nd defendants to the required standard and I hereby enter a finding of 100% liability against both defendants jointly and severally.

27. Having settled the first issue, I turn my attention to the second issue on quantum and which I shall address under the following heads.

a) General damages (i) Pain and suffering 28. Here, the plaintiffs produced a copy of the death certificate relating to the deceased to show that the deceased died 14 days following the accident.

29. In addition to the foregoing, the plaintiffs produced medical evidence to show that the deceased was admitted in hospital following the accident and died days after. This indicates that he experienced some pain and suffering.

30. Upon considering the sum proposed by the plaintiffs under this head, I find the same to fall on the higher side.

31. I therefore considered the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another[2021] eKLR where the High Court sitting on appeal upheld an award in the sum of Kshs 100,000/= made to the estate of a deceased who died within 2 weeks of the accident.

32. I will therefore award a reasonable sum of Kshs 100,000/= under this head.

(ii) Loss of expectation of life 33. The evidence on record shows that the deceased died at the age of 45 years. There is nothing to indicate that he was of ill health.

34. The courts have been known to grant the conventional sums of Kshs 100,000/= under this head. Upon considering the conventional award of Kshs 100,000/= made in the case of Mumias Sugar Company Limited v Henry Olukokolo Ashuma (suing as the legal representative in the estate of Patrick Kweyu Ashuma (Deceased) & another [2018] eKLR and the case of Caleb Juma Nyabuto v Evance Otieno Magaka & another (supra) I am convinced that a similar award of Kshs 100,000/= would constitute adequate damages for loss of expectation of life.

(iii) Loss of dependency 35. Upon my study of the pleadings and evidence, it is apparent from the death certificate adduced that the deceased who was aged 45 years was a businessman. Suffice it to say that the plaintiffs did not tender any credible evidence to support the averments made as to the earnings/income of the deceased or of the nature of his business.

36. In the circumstances, I am of the view that a global mode of assessment would be more suitable than a multiplier approach.

37. Upon considering the case of Ainu Shamsi Hauliers Limited v Moses Sakwa & another (suing as the Administrators of the Estate of the Ben Siguda Okach (Deceased) [2021] eKLR where the court upheld the decision by the trial magistrate to apply a global award in respect to a deceased person aged 40 years and therefore awarded the sum of Kshs 2,000,000/=, I am satisfied that a similar award would suffice in the present circumstances.

b) Special damages 38. Upon my examination of the pleadings and evidence tendered, I established that the plaintiffs produced receipts totaling the sum of Kshs 47,980/=. I will therefore award this sum.

39. Consequently, I hereby enter judgment in favour of the plaintiffs and against the 1st and 2nd defendants jointly and severally in the manner hereunder:Liability 100%a)General damagesi)Pain and suffering Kshs 100,000/=ii)Loss of expectation of life Kshs 100,000/=iii)Loss of dependency Kshs 2,000,000/=b)Special damages Kshs 47,980/=Total Kshs 2,247,980/=c)Costs of the suit are awarded to the plaintiffs. The plaintiffs shall also have interest at court rates on general damages from the date of judgment until payment in full and interest on special damages at court rates from the date of filing suit until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. .......................................J. K. SERGONJUDGEIn the presence of:……………………………. for the 1st and 2nd Plaintiffs……………………………. for the 1st and 2nd Defendants