P N M & J K M (the legal personal Representative of estate of L M M v Telkom Kenya Limited, Samuel Ndirangu & Godgrey Gateri Ngure [2015] KEHC 1324 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO.419 OF 2011

P N M

J K M (The legal personal

Representative of estate of

L M M (DECEASED)…………….................................….PLAINTIFF

VERSUS

TELKOM KENYA LIMITED ….……………………1ST DEFENDANT

SAMUEL NDIRANGU………………………………..2ND DEFENDANT

GODGREY GATERI NGURE……………………….3RD DEFENDANT

JUDGMENT

The claim  herein is for both general  and special damages  arising  out of Road  Traffic Accident  which occurred  on 17th March 2011 along Ruiru-Githunguri Road involving  motor vehicle  registration number KXL 621.  The accident resulted in the demise of one L M M who was a passenger in the said motor vehicle.  The claim is brought by P  N M and J K M who  are brother and widow  to the deceased  L M M, as legal  and personal  representatives   of the deceased’s estate under the provisions of  the Fatal Accident Act  and the Law Reform Act.

The plaint dated 29th September 2011 and filed in court the same date  claims that  the 1st defendant Telcom Kenya Ltd  was the registered  owner of the accident  motor vehicle, the 2nd defendant Samuel Ndirangu was the user, beneficial owner and  or insured of motor  vehicle registration number KXL 621 Isuzu Canter  and that the  3rd defendant Godfrey Gateri Ngure was the authorized  driver, agent and or servant then in  control of the accident motor vehicle.

The plaint alleges that  on 17th March 2011 the deceased L M M  was a lawful passenger  in the above  motor vehicle along  Ruiru-Githunguri Road  when  the 3rd defendant then driving, managing  or controlling  the said motor vehicle  carelessly and or negligently  drove the  said motor vehicle  that he caused  an accident after it lost  control  and overturned  as a consequence  of which  the deceased sustained fatal injuries.  The plaintiff particularized the driver’s negligence as:

Driving at an excessive speed in the circumstances.

Failing to keep any or any proper look out.

Failing to steer the said motor vehicle registration No.  KXL 621 Isuzu Canter properly and or have any proper and sufficient control of the motor vehicle.

Causing or permitting the said vehicle to overturn.

Failing to stop, slow down, to swerve or in any way other was so to manage or control the said vehicle so as to avoid the accident.

Failing to apply the brakes sufficiently or in time or at all.

Failing to drive the vehicle with due care and attention towards the safety of other road users namely the plaintiff passenger as may be reasonably expected.

In as far as will be applicable the plaintiffs  will rely on the doctrine of  res Ipsa Loquitor

It was further pleaded that the deceased   left behind his widow J K M aged 26 years and son M M M aged 2 years.  The defendants filed a joint statement of defence  dated 27th November 2011 on 28th November  2011 denying  that they owned  and or drove  the accident motor vehicle  as alleged  and put the  plaintiff’s  to strict proof.  They also denied that the 3rd defendant was the agent or servant of the 1st or 2nd defendant, putting the plaintiffs to strict proof.

The defendants  also denied the  averments that an accident  ever took  place involving  the subject motor  vehicle KXL 621 Isuzu  Canter  or that it occurred in the manner  pleaded  and on a without prejudice  basis  contended that  if at all any such accident occurred as  pleased then it was wholly and or substantially  caused and or contributed to by the deceaded  namely;

Exposing  himself  to a risk of danger which  he knew or ought  to have known;

Failing to ensure his safety while travelling in the said motor vehicle.

Failing   to strap himself with a safety belt as is expected of a prudent passenger.

Riding as a passenger without due care to his own safety when he knew or ought to have known.

Travelling in the said motor vehicle without knowledge and or authority from the defendants.

Being negligent.

The defendants denied  all other  averments  in the plaint including  any loss  and  damages  allegedly suffered  by the plaintiffs and notice of  intention to sue and  prayed for  dismissal of the suit by the  plaintiffs  with costs.

The plaintiffs filed reply to  defence  dated 15th December, 2011 on     23rd December  2011 joining issues with  the defendants’ defence and  reiterating the contents of the plaint  as pleaded.

The suit commenced for hearing as 10th March 2015 after parties complied with pre-trial requirements and the suit certified as ready for trial.

The 2nd plaintiff J K M testified as PW1.  She stated on oath that she worked as a farm hand and was the widow to the deceased L M.  They had been married in 2009 and were blessed with one male issue M M M.  She adopted her witness statement recorded on 29th September 2011 as her evidence in chief wherein she stated that her deceased husband died while on duty.  That he worked  for Brookside  Dairy Limited as a field clerk  earning kshs 14,228. 25 and that  she learnt of his death on 17th March 2011 at 8. 00am when  she received  a phone call from  the deceased that he had been  involved in an accident along  Ruiru- Githunguri  road.  She proceeded  to Kiambu District Hospital  where  he had been admitted but  found him transferred  to Thika  Memorial Hospital and on arrival  found that  he had sustained serious  injuries  to both  legs awaiting  surgery.  His condition worsened and he was taken to Aga Khan for specialized treatment.  He died from the injuries on 21st March 2011.  He was the family sole breadwinner.  The police at Githunguri Police station issued her with a police abstract.  She later arranged for his burial with his employer.  Brookside Ltd catered for all his burial expenses.  She produced his letter of employment and pay slip as P exhibit 2 and 3.  She was issued with burial permit and death certificate which she produced as exhibits 3b and 3b.  A post mortem was carried out on the deceased’s body at Aga Khan Hospital.  She produced copy of the post mortem reports as exhibit 4.  The plaintiff also produced their son’s birth certificate exhibit 5b and child immunization card as exhibit 5a.  She   also produced  the area  chief’s introductory letter to enable her obtain grant of  letters of administration to enable  her sue  on behalf of the deceased’s is estate  as exhibit 6a and grant of letters of administration intestate  as exhibit 6b.  The plaintiff also produced   search certificate of copy of records to show ownership of the accident motor vehicle as exhibit 7b together with receipt as exhibit 7a.

She testified that according to the  copy of records  Telkom Kenya  Ltd  was the registered owner of the accident  motor vehicle  but the police  abstract  showed  the owner thereof  to be Samuel Ndirangu the 2nd defendant.  She then instructed her advocates who notified the insurance Company and the defendants before instituting this suit.  She produced those demand notices as exhibits 8a, 8b and 8c.  The plaintiff also produced a receipt for shs 1,125 court fees for grant from Naivasha Court in succession cause No. 92/11 dated 18th April 2011 as exhibit 9.  She stated that the deceased used to pay their house rent, feed them and pay fees for their son who was now in class one.  That he was then aged 2 years.  She prayed for compensation for his loss plus costs of the suit.

In cross  examination, by Mr Nyaburi advocate for the 1st defendant, PW1 responded that  it was the police  abstract  which  gave  particulars of the accident motor vehicle  and its ownership  by Samuel Ndirangu and driver as Godfrey Gateri Ngure.

PW1 also stated  that her deceased  husband  used to earn ksh 14,997. 47  and used  to pay their  house  rent of shs 5000/-, gave her 3000/- for shopping and kshs  4000/- for  subsistence  use.  She stated that he had a house in Ruiru.  She  maintained  that the deceased was  involved  in an accident  on 17th March 2011  and died on 23rd March  2011 and that  before his death she was not  working but was now a casual  labourer.

In cross examination by Mr Macharia advocate for the 2nd defendant, PW1stated that the deceased used  to give her  extra money, shs 4000/-  which she used to pay fees and make uniform  for her son.  She stated that she had no receipt for rent albeit she lived in Magumo in a rental house which is in Kanangop far from home.  She stated that their son was  2 years  at the time of  his father’s demise  and was attending  school albeit  she had no  documents  to prove the fact  of schooling.

PW1 also stated that the deceased’s earnings used to be deducted and maintained that at the time of accident, he was a lawful passenger on duty.  She stated that she did not sue his employer because it was not the owner of the accident motor vehicle, according to the police abstract and that she learnt that he was with a Mr Maina in the accident motor vehicle.  She also stated that she did not know whether the deceased’s employer had hired the accident motor vehicle for use and or whether he was an illegal passenger in the accident motor vehicle.

In re-examination by Mr Masese, the plaintiff  (PW1) stated that  the copy of records showed Telkom (K) Ltd  was the owner of  the accident  motor vehicle  but according  to police  abstract records, the 2nd  defendant  was its owner.  She  stated that  a Mr Maina used to work  with her  husband at Brookside  and that she  had sued both  the legal and  beneficial  owner  of the accident  motor vehicle.  She maintained that her husband was a responsible spouse.  The plaintiff also called PW2 NO.  37912 PC Boaz Cheriwa who testified   and produced a police inquiry file for the material accident.  He stated that  according to the  police records  the owner of the  motor vehicle KXL 621 Isuzu Canter was  Samuel Ndirangu  while the  driver at  the material time  was  Godfrey Ngure Gateri who had a driving licence.  The witness stated that he did not investigate the accident.  It was investigated by PC Moffat who had since been transferred to another station.

PW2 further testified that according to the police  report and records, the driver lost control of the motor vehicle, hit an electric post and it turned and faced Ruiru direction.  The passenger in the motor vehicle was Lucas Mugo who was injured.  He was rushed to Kiambu District Hospital   and later transferred to Aga Khan University Hospital but died after some days.  PW2 testified  that the investigating officer recommended that  there was no sufficient  evidence  to charge the driver  with  a traffic offence so the file was  forwarded  to the State Counsel for directions and the State Counsel  directed  that the driver  be charged  with causing death  by dangerous driving  and the driver was arraigned  before Githunguri Court, was tried, convicted  and fined  kshs 15,000/- in default  to serve 6 months jail term.

PW2 testified that the deceased was reportedly an employee of Brookside Company and had gone to collect milk from Githunguri as shown by the employer’s letter dated 20th March 2015.  He produced police abstract and duplicate police file as exhibits 10 and 11 respectively.  He admitted being paid witness expenses of kshs 10,000/- for that day.

In cross examination by Mr Nyaburi advocate, PW2 stated that the record  showed  the  owner of the motor vehicle  was  the  2nd defendant  and that ordinarily, the driver is the one  who  furnishes  the name of  the owner.

In cross examination by Mr Macharia  advocate  for 2nd and  3rd defendants  PW2 stated  that from the evidence  in the police file, the driver of the motor vehicle stated that  the vehicle  hit a pot hole and lost control and hit an electric pole.  Further, that the directive to charge the driver of the accident motor vehicle came from the State Counsel who stated that charges must be preferred because death had occurred.  The witness further stated that the driver pleaded guilty to the charge   and that in his 28 years service as a police officer he had not come across drivers who would plead guilty out of ignorance, rather than go through a full trial.  He also stated that the State Counsel did not give reasons why he thought Moffat was wrong.

In re- examination  by  Mr Masese,  PW2 stated  that according  to the  file, three  other people  plus the driver  recorded  statements  and he did not know whether the investigating officer carried out further  investigations  and that the particulars of ownership of the motor vehicle  must have been  given by the driver  and were  therefore correct.

At the close of the plaintiff’s case, the 1st defendant did not call any witness to testify neither did the 2nd and 3rd defendants.  All the parties agreed to have the1st defendants witness statements filed adopted as evidence in chief and its documents as filed produced by consent.

The defence closed  their  cases  and parties  filed  written  submissions  to guide the court  determine  the issues  of liability  and quantum.

The plaintiff filed a list of 8 issues for determination dated 19th April 2012.  These are:

Did the accident occur?

Was the deceased a lawful passenger in motor vehicle KXL 621.

Did the deceased die as a result of the subject accident?

Had the deceased any beneficiary at the time of the accident.

Did the  deceased die immediately  after the accident, if not, when

Was the deceased liable for the accident?

Had the deceased’s estate suffered any loss and damage?

Are the defendants jointly and severally liable for the accident herein?

The defendants did not file any list of issues for determination.  In their submissions, the plaintiffs’ counsels narrowed the issues to only 2, liability and quantum.

On liability, the plaintiffs  submitted  that they  had  proved their case  against  the defendants  jointly  and severally  on a balance of probabilities  and urged the court  to find  in their favour.

First  was the question  of ownership of the deceased  motor vehicle KXL 621 which they  submitted  was owned  by the 1st  defendant  by registration and  by the 2nd defendant  beneficially owing to the  sale by  the 1st defendant  to the 2nd  defendant albeit  no  transfer  had been effected.  In their new, failure  to transfer  motor vehicle to the  2nd defendant within 7 days  from date of sale  made the 1st defendant a proper  party to the suit  as the legal owner thereof.

On whether the 3rd defendant was liable for the accident in negligence it was submitted that the 3rd defendant’s conviction for the offence of causing death by dangerous driving was sufficient proof of his negligence.  Further that  the driver was  under a common law duty and obligation to exercise a high degree of care towards  other road  users and passenger and that  had he exercised  such care  and caution, the  accident would have  been avoided.

It was also submitted that the defendants  failure to testify to challenge  the plaintiffs’  evidence  left  the plaintiffs’  evidence  unchallenged  and  the court  must accept  it as  the gospel  truth.  It was further submitted that  there were no surrounding  circumstances  leading to the  accident to show  that the  deceased who was  a passenger  contributed  to the  accident’s  occurrence  as alleged  in the defence.  The plaintiffs urged the court to find the 1st and 2nd defendants vicariously liable for the negligence   of their agent, servant/driver  at 100 % for the accident.

On quantum, the plaintiffs submitted that their claim was based on the Law Reform Act and Fatal Accident Act.  Under the Law Reform Act, it was submitted that the plaintiffs had letters of administration ad litem hence they had legal capacity to sue on behalf of the deceased’s estate.  Further, that the plaintiff was the widow who survived the deceased and they had one male issue who depended on him.  That the deceased was aged 26 years hence she was entitled to:

Under pain and suffering, kshs 200,000/- as the deceased died 5 days after the accident hence he must have suffered great pain before succumbing to the fatal injuries.

Loss of expectation of life the plaintiff prayed for kshs 250,000/-.

Loss of dependency: The plaintiff sought ksh 3,870,080 using a multiplier of 34 years.  He was 26 years earning kshs 14,228. 25 and using the dependency ratio of 2/3.

The plaintiffs also prayed for special damages “as pleaded and proved.”

They relied on the case of MauriceOduour Ogeda v John Juma Abungu & Another HCC 375/99 Kisumu.

The 1st defendant filed its submissions on 10th June 2015.  It was contended that:

The 1st defendant was not vicariously liable for the accident involving motor vehicle KXL 621 and resultant loss.  On this issue, the  1st defendant  maintained  that under Section 8  of the Traffic Act, registration  of motor vehicle is only prima facie evidence  of ownership thereof  and not  conclusive  evidence of  ownership.  It was contended  that the evidence  tendered  by PW1 and PW2 was clear  that the  beneficial  owner  of the accident motor vehicle  was the 2nd defendant  who had bought it  from the  1st defendant  at an auction  on 19th May 2004  hence  ownership had passed to him  and it was therefore immaterial  that the  transfer  thereof  had not been  effected.  They relied on the case of Lukungu v Lubia Uganda Supreme Court case No. 4/2001 LLR No. 162(SCU) where it was held in part:

“…………in order for the appellant to fix liability on the respondent  for the negligence of Kawuma  it was necessary to show that  the driver  was using the vehicle  at the  owner’s  request, either  express or implied  or on his  instructions and was doing so  in the performance of the task or  duty thereby delegated to him by the owner”.

It was contended that neither was the 1st defendant the beneficial owner of the accident motor vehicle nor was the vehicle in its custody nor possession at the material time of accident.

Further, that the police abstract  showed  the 2nd  defendant  as the  owner of the accident  motor  vehicle and the 3rd  defendant  as its  driver  hence the 3rd  defendant was not  an agent  or employee  of   the  1st defendant.  The  1st defendant  also relied  on Securicor Kenya Ltd v  Kyumba Holdings Ltd (2005) e KLR  in which  the Court of  Appeal considered  similar circumstances  as the ones in this case  and held  that the doctrine  of vicarious  liability  could not  apply  in such situation-citing with approval Launchbury & others  vs  Morgans & Others.  It was therefore submitted that the plaintiffs’ suit against the 1st defendant should be dismissed with costs.

On what appropriate reliefs the court should grant:Under the Law Reform Act, it was submitted by the 1st defendant that kshs  30,000/- was  sufficient  damages  for pain and suffering relying  on Loice Wangui Macharia  v Hussein Dalacha  & Another  Nakuru HCC 382/2001 (2007) e KLR.  Under  loss of expectation of life, the first defendant  proposed  shs 70,000/- relying  on Kisii HCCA  113/2012  Makano Makonye Monyancha  v Hellen Nyangena(2014)  and Lucy Wambui Kihoro v Elizabeth  Njeu Obuong (2015) e KLR .

Under fatal Accidents  Act  the 1st defendant proposed  a multiplier of  20 years, a  dependency  ratio of ½ and earnings  of shs 7,000/- per month  all totaling  840,000 relying on the cases of  Lucy Wambui  Kiroro v Elizabeth Njeu Obuong (supra) ; Mary Kerubo Mabuka  v Newton  Mucheke  Mburu & 3 Others (2006) e KLR ; and Joseph  Wachira Maina & Another v Mohamed  Hassan (2006) e KLR.

In total, the 1st defendant proposed a sum of kshs 970,000/- but nonetheless sought dismissal of the suit against it on the ground   that liability had not been established against it.

The 2nd and 3rd defendants filed their written submissions dated  20th June 2015 on 25th June 2015. It was submitted on their behalf that the plaintiffs had not proved liability against the 2nd and 3rd defendants.  Further, that the investigation file showed  the cause of accident was  a pot hole  on the road  and that there  was no eye witness who saw how the vehicle was  being driven prior to the accident  occurring  and that no evidence  was led to prove why the driver of the accident motor vehicle  was charged 5 months  after the accident  was reported.

Further, it was submitted that  the court  is left guessing what caused the accident  and mere  charging  of the driver  thereof  with  a traffic  offence was not  proof  enough  that he was  wholly   to blame  for the accident.  They relied on Halsbury’s Laws of England 9 Edition at page 620.  Further, that the deceased could have been negligent for failure to belt up and that was the reason he did not survive while the driver survived.  The 2nd and 3rd defendants also submitted that no evidence was led to prove ownership of the accident motor vehicle and that PW1 was not sure who its drivers was.  On quantum, the 2nd and 3rd defendants proposed kshs 100,000/- for pain and suffering, replying on Alice Mboga vs  Samuel Mbuti Njoroge  HCC  351/99 NakuruandNancy Wanyonyi Maina vs Stephen Ndungu  & Another HCC 487/99. They proposed shs 75,000/- for loss of expectation  of life and on loss of dependency, it was proposed  that the court  adopts multiplier  of 12 years, dependency ratio of  ½ and 14,228 earnings = 1,024,416 all totaling  1,199,416.

I have carefully considered the plaintiffs’ claim, the pleadings, oral testimonies in court, documents  produced in support  and the defences  as filed, defence witness statements  as adopted  in evidence and bundle  of  documents  produced by consent  of the parties’  advocates and their respective rival written submissions  as filed and exchanged.

In my view, the following are the main issues for determination, with several ancillary questions that will be considered therein.

Who was the owner of the accident motor vehicle KXL 621 at the material time of the accident.

Whether  the 3rd defendant was the  driver of the accident motor vehicle.

Who is   liable for the accident.

What  damages would be  payable  in the circumstances  and how much.

What orders  should the court make.

Who should bear the costs

On the first issue  of who was  the owner  of the accident motor vehicle, the plaintiff testified  and produced a copy  of records from the Registrar  of motor vehicles showing that Telkom Kenya Ltd  the 1st defendant  herein   was the registered  owner   of motor vehicle registration KXL 621.  The plaintiff also called PW2 a  police officer  from Githunguri police station  who testified   and produced  police abstract and the duplicate police file  for the material accident.  The above  documents  and records show that the  owner of the accident motor  vehicle  was  Samuel Ndirangu who was also  the insured  of the  accident  motor vehicle KXL 621 with Kenindia Assurance  Company Limited  under Policy No.  P/112/081/0880/2004/930/07  from 30th July  2010 to 29th July 2011.  The police records also showed that  the driver of  the accident  motor vehicle was Godfrey Gakuru Gateri and a copy of his valid  driving  licence No. 0885837 is filed  in the police records. The said police  file also  show that  on 22nd March 2011 the said Godfrey Gakuru Gateri  was served  with notice of intended  prosecution  pursuant to Section 46  of the Traffic Act for  allegedly driving motor vehicle KXL 621 dangerously.  The police  file also  reveals that the accident  was self  involved and the said driver  Mr Godfrey  Gakure  recorded  his statement  to the effect  that he  was at the material  time of  the accident driving motor  vehicle KXL 621 Isuzu canter  belonging  to Samuel Ndirangu, which   motor vehicle  does the work of carrying goods  and that on the material day of accident he was driving  the said  vehicle along  Ruiru –Githunguri road  going to  Githunguri  to collect milk  accompanied  by David Kiarie and Lucas  Mugo,  his co-workers  at 5. 00am when he was involved   in the material accident which occurred  as a result of him swerving to avoid a  head on collision with an oncoming  vehicle which  had full lights, in the middle of the road,  as a result  of which  he hit  an electric  post and it fell on the driver’s side. David Kiarie Ngeche  a passenger  in the fateful accident  motor vehicle  also recorded  his statement  with the  police  confirming  what the  driver stated.   He stated that he  was  asleep when the accident occurred  and was only awakened by a loud bang.  He stated that the deceased was  his co-worker  at Brookside  Dairies  Ltd  and they were  on duty collecting  milk from famers and  collection centers for onward transportation to the factory.

The police file also show that  the initial  report  of the accident was  made  at 7. 10 am on 17th March 2011 to Githunguri  police station by Godfrey  Gakuru Gateri the driver of the  accident  motor vehicle  who stated  that he was with  his  passenger  loader  L M the deceased  herein who  sustained  fracture  of left leg and  taken  to Kiambu District Hospital where  he was admitted.

The above  evidence clearly answers  the following  issues  in the affirmative:

That the  driver of the accident motor vehicle KXL 621 was Godfrey Gakuru  Gateri, the third  defendant herein.

That the deceased  was a lawful  passenger in the accident  motor vehicle  as he  was lawfully on duty employed  by Brookside  Dairies  Ltd  and was  at the material time in the  course  of his duties  going to  collect milk  from  the field  for and loading it  for delivery to his employer.

That the accident motor vehicle was registered in the name of the 1st defendant Telkom Kenya Ltd

That the 2nd defendant was the beneficial owner of the accident motor vehicle at the material time odf accident.

The deceased’s employment  with  Brookside Dairies  Ltd was  also  confirmed by exhibit 2(a) a letter to NSSF  by the company  indicating  that he was their  employee until  his demise on 21st March 2011 urging them to pay the  funeral grant to his beneficiary.  Exhibit 2 (b) the deceased’s pay slip  for March 2011  too confirmed  his employment  with Brookside  Dairies  Ltd.  The third  defendant driver   also confirmed   in his statements  to police that the  vehicle  was being  used to  collect milk  for Brook side  Dairies and  that the deceased  was his  co-employee.

On ownership  of the accident  motor vehicle, the analysis  of evidence  reveals  that the 2nd  defendant  was  the insured  of the accident  motor vehicle  and that  he was  the 3rd defendant’s  employer.  The 1st defendant’s bundle of documents  dated  1st February 2013 filed on 15th February 2013  and produced  in evidence  by consent  of all the  parties advocates on record show that the accident  motor vehicle KXL 621 was sold by the Dikemwa enterprises Ltd at a public  auction  to the 2nd defendant, on behalf of  the 1st  defendant Telkom (K) Ltd.

The question therefore  that arises  is who  was the actual  owner of the  accident  motor vehicle  and whose  agent  was the 3rd  defendant  in view  of  the two positions-  1st defendant  being  registered  owner whereas  the 2nd defendant being  the beneficial owner thereof.   This court finds that albeit  the search certificate/copy  of records  produced by the plaintiff showed  that the 1st defendant Telkom Kenya Ltd was the registered owner of the  accident motor vehicle at the  material time, it is clear from the evidence  gathered  by the police  investigating the accident, and the driver’s own statement  and the vehicle’s insurance  policy cover with Kenninduia Assurance Co. Ltd, that the  owner thereof   was the 2nd defendant  who was  the beneficial   owner  as the vehicle was then being  used for  his benefit not the  1st defendant’s benefit.  The latter  had sold the accident motor vehicle  and its possession and use thereof  passed  to the 2nd defendant.  Section 8 of the Traffic Act  Cap  403  of the Laws of Kenya provides that:

“ the person  in whose  name  a vehicle is registered  shall, unless the  contrary is proved, be deemed  to be the owner  of the vehicle.”

In this case, prima facie, the 1st  defendant was the registered  owner of  the accident motor  vehicle.  Nonetheless, the contrary was proved, that the said vehicle had at  the material time of  the accident  been  sold  and possession  and use delivered to  the 2nd defendant.

In Nancy Ayemba Ngana v Abdi Ali HCCA  107/2008(2010)  e KLR  Ojwang J ((as he then was ) observed that :

“ There  is no doubt that the registration  certificate obtained  from the Registrar  of Motor vehicles  will show  the name of the registered  owner  of a motor vehicle.  But the indication thus shown on the certificate  is not final proof that  the sole owner  is the person whose  name is  shown.  Section 8  of the Traffic Act  is cognizant  of the fact that  a different person, or different  other persons, may be  the defacto  owners  of the motor vehicle, and  so the Act  had an opening  for any evidence  in proof  of such differing  ownership to be given.

And  in judicial practice, concepts have  arisen to describe  such alternative  forms of  ownership; actual  ownership, beneficial  ownership; and possessory  ownership.  A person  who enjoys any of such other categories of ownership may for practical  purposes, be much more  relevant  than the person whose name  appears in the certificate  of registration; and in the instant  case at the trial level, it  had been pleaded  that there  was  such alternative  kind  of ownership.

Indeed, the evidence adduced in the  form of  a police abstract  showed on  a balance of  probabilities, that the 1st defendant was one of the owners  of  the matatu in question..

The Court of Appeal, very recently in the case  of Joel Mugo Apila v East African Sea Food Limited, CA 309/2010 (2013) e KLR also observed  that :

“ In any case in our view, an  exhibit  in evidence and in this case, the appellant’s evidence that  the police  recorded the respondent as the owner of the vehicle and  Ouma’s  evidence that he saw  the vehicle  with words  to the effect that  the owner  was East African Sea Food were  not seriously rebutted by the respondent  who in the end never  offered  any evidence  to challenge  or even  to counter that evidence.  We think, with respect , that the learned Judge  in failing  to consider in depth the  legal position in respect of what is  required to prove ownership, erred on a point  of  law  on that aspect.  We  agree that the best way to prove  ownership  would be to produce to the  court a document  from the Registrar  of Motor  vehicles showing who the registered  owner is, but when the  abstract  is not challenged and is produced  in court without any objection, its  contents  cannot be  later denied.”

The same Court of Appeal in the case of Securicor Kenya Ltd v Kyumba  Holdings Ltd  (supra) stated earlier  that :

“ We think that  the appellant, had  by the evidence it led, proved on a  balance of  probabilities  that, it was  not the owner  of KWJ 816 at the  time the accident occurred since  it had sold it.  Our holding finds  support  in the decision on Osapil v Kaddy (2000) 1 EALA 187 in which  it was held by the Court of Appeal of Uganda that  a registration card  or log book  was only prima facie  evidence  of title  to a motor vehicle  and the person whose  name the vehicle  was  registered  was presumed to be owner thereof unless proved otherwise.”

Applying the principles  set out in  the above decisions  to the present  case, the plaintiff’s testimony  and the 1st  defendant’s documents  produced in court  without  any objection  showed that the 1st defendant  was the registered  owner of M/v  KXL 621 as shown by copy  of records.  Nonetheless, there was  evidence  in the police  records which included  the driver-3rd defendant’s own statement  and  1st defendant’s documents showing  that the accident motor vehicle  was sold to the 2nd defendant by the 1st  defendant at a public auction  conducted by Dikemwa  Enterprises  Ltd  on 19th March 2004  being Item No. 141 on the list of motor vehicles  auctioned.  The 2nd  defendant was also proved to be the one who  was beneficially entitled  to the proceeds  of the business of carrying goods, for which, his driver,  the 3rd defendant  did on his  behalf for hire and the motor vehicle  was also insured  in the 2nd defendant’s  name by Kenindia Insurance Company Limited.  The accident  undeniably  happened on 17th March 2011 seven years after the 1st defendant  parted with possession of the motor vehicle by way of sale to the 2nd defendant , albeit  its log book  had not been changed  to reflect  the new owner.  It cannot, therefore  be true as  contended  by the 2nd  defendant  in his submissions that  he was not the owner of the accident motor vehicle.  The uncontroverted evidence  overwhelmingly and on a  balance  of probabilities  showed that  the 2nd  defendant  was the beneficial owner of the accident motor vehicle at the material  time of the accident  on 17th March  2011, and not  the 1st  defendant, Telkom Kenya Limited. If that were not the case, why did the 2nd defendant insure  the subject motor vehicle?

On the question of vicarious liability, in Morgan V Lauchbuy (supra) the court held:

“ In order  to fix liability  on the owner of a car  for the negligence   of a driver, it is necessary  to show either  that  the driver  was the owner’s servant  or  at the material  time the  driver was  acting  on the owner’s  behalf as his  agent.  To establish  agency relationship  it is  necessary to show that  the  driver  was using the car  at the  owner’s request  express or implied  or on its instructions  and was doing  so in the performance  of the task  or duty thereby delegated  to him by  the owner”.

From the police  investigation file  produced by PW2, the relationship between the 2nd and 3rd defendant  fitted the description provided  for  in the above case of  Morgan V Lauchbuy.  The 3rd defendant’s  own statement of D-4 made to the police and contained in the police file produced herein states how the  accident  occurred  while he was in  lawful employment of the 2nd defendant and in the cause  of his duties, working  for the benefit  of the 2nd defendant. His driving  licence is photocopied  and also filed together with his  statements.

The above evidence clearly show that  there  was a  master/servant relationship between  the 2nd and 3rd defendants and the 3rd defendant was in the couse of his employment when the material accident occurred. It therefore follows that the acts or omissions of negligence of the 3rd defendant makes the 2nd defendant vicariously liable.  I am also fortified  on this point  by the decision of the Court of Appeal in the cases of Pritoo v West Nile District Administration (1968) EA 428 at page 435 paragraph E-F and Karisa  V. Solanki (1969) EA 318 page 322 paragraph 9 G that:

“ where  it is proved  that a car  has caused  damage by negligence, then in the absence of evidence to  the contrary, a presumption arises that it  was driven  by a person  for  whose negligence  the owner is responsible (see Bernard V sully (1931) 47 TLR  557).  This presumption is made stronger  or weaker  by the surrounding  circumstances  and it is not necessarily  disturbed  by the evidence that  the car  was lend  to the driver by the owner  as the  mere fact  of lending does not  of itself dispel  the possibility that it  was still being  driven for the  joint benefit of the owner and the driver.”

Another decision  setting out parameters  for vicarious liability  is Tabitha Nduhi  Kinyua V Francis  Mutua  Mburi  & Another CA 186 of 2009 (2014) e KLR where  the court stated:

“ The principle  of vicarious  liability  is an  anomaly in our law because  it imposes  strict liability  on an  employer  for the delict  of its employee  in circumstances in which the employer  is not itself  at fault.  An employer  will be held  to be vicariously  liable if its  employer  was acting  within  the course  and scope of employment at the time  the delict was committed. Tthe test  for establishing  whether  an employer  is vicariously liable for his/her  servant’s negligence  was set  out in  this court’s decision on Joseph Cosmas Khayigila V Gigi & Company Ltd & another  - CA 119/86 as  follows:-

“ In order  to fix liability  on the  owner of a car for  the negligence  of the driver, it was  necessary to  show either that the driver  was  the owner’s  servant  or that at the  material  time the  driver was  acting  on the owner’s behalf  as his  agent.  To establish the existence of  the agency relationship, it was necessary to show that  the driver was using the car at  the owner’s request, express or implied, or on his instructions and was doing so in the  performance  of the task of duty  thereby delegated to him by the  owner.”

Therefore, there being no relationship  of master and  servant or between the 3rd defendant  and the  1st defendant and the fact that  the motor vehicle  did not  belong to  or was being used on the  instructions or for the benefit  of   the 1st  defendant, I find that the  1st defendant is not vicariously liable  for the acts of the 3rd defendant regarding the material accident.

On the issue of who was to  blame for the accident, the plaintiff clearly, was not at the  scene of the accident  and therefore  was not expected to testify as to the  occurrence of the accident.  She however called PW2 a police officer who produced  a police file which  contained  investigations report  into the occurrence  of the accident.  The  said filed revealed that the driver  of the  accident  motor vehicle-the  3rd defendant  Godfrey Gateri Ngure  was charged  in court, convicted  and fined kshs 15,000/- in default  to serve 6  months  imprisonment  for the offence  of causing  death  by dangerous  driving  before a Githunguri court.  The 1st  and 2nd defendants denied liability  and in their joint defence  blamed the deceased for failing  to belt up; being  an unauthorized  passenger; being  negligent; exposing  himself to a risk of danger  which he knew  or ought  to have known;  and riding  as a passenger  without due care.

However, the defendants did not  offer  any evidence  to show how negligent  the deceased was and  therefore how  he contributed  to the accident’s occurrence.  In  their submissions, the 2nd and 3rd  defendants  alleged that  the accident  was solely caused  by a pot  holed  road.

Indeed the law  is clear that  he who alleges  must prove  hence  it  was incumbent  upon the plaintiff to prove negligence  or negligent  acts  on the part  of the driver of the  accident  motor vehicle .

The 3rd  defendant’s  statement  with the police did not blame  the deceased for the accident  or at all.  He attributed  the accident to the fact  that the swerved to avoid a head on  collusion    with an oncoming  motor vehicle  which had full lights  on and  in the middle of the road. As a result, he hit  an electric  pole and the vehicle fell on his left  side of the road.  David Kiarie Ngeche  who was the deceased’s  co-worker  and fellow passenger who sat between the driver  and the deceased  stated  to the police that  he was asleep  at the time  of accident  and that only  awoke  following aloud  bang  only to find  himself  trapped   in a motor vehicle  which had  an accident.  He could not tell the speed  at which the motor vehicle  was being  driven so he could not have  assisted any party  to this case on the issue of liability.  The 3rd defendant  driver of the fatal accident stated that  he was driving  at 20 kilometer per hour and when  he saw the oncoming  vehicle in the  middle of the road, he swerved, hitting  the pot hole and the vehicle fell.  The  impact  was at the deceased  Lucas Mugo’s side.  He also stated in his statement  dated 19th March  2011 to the police that he lost control  of the vehicle  after being blind folded by full lights  from the opposite  direction.

The police  investigated the accident  and drew  sketch plan on 17th March 2011.  The sketch plan  shows that the road  was 10. 7 meters  wide, and that  there were  pot holes  on the left side   of the road  facing Githunguri.  Further,  they found that  the accident motor vehicle  hit an  electric  pole which  was 4 meters from the edge  of the road facing  Githunguri  and landed there.  The investigating officer  CPL Richard Eupa recorded  his statement  on 24th March   2011 after  inquiring from the  3rd defendant driver and found that  there was  no evidence   sufficient enough to  support a charge  and  recommended   that the file be disposed  of by way of an inquest and  sought advice from the Principal State Counsel Nyeri  vide letter  of 15th June 2011.  Nonetheless, the Provincial  CID officer  in forwarding   the police file  to the  State Counsel  recommended  to the Principal State  Counsel that the 3rd defendant be charged for  causing death  by dangerous driving  even after DCIO Kiambu agreed  with the investigating officer’s  recommendation that there was no sufficient  evidence to support  a charge.  The state counsel  vide letter  dated  22nd June  2011 agreed  with PCIO’s  recommendations  that the 3rd  defendant  be charged  with causing death by dangerous  driving, which  directive was acted upon culminating  in the conviction of the 3rd defendant by a court of competent jurisdiction.  The 2nd and 3rd defendants  contend that   the belated  charges  against the  3rd defendant were an afterthought and that there  was no evidence  to warrant  that charge.

On the submission that there was no evidence  to warrant  the 3rd defendant  being charged  with the offence of  causing death  by dangerous driving, Section 47 A of the Evidence Act  enacts  that:

“ A final judgment  of a competent  court in any criminal proceedings which  declares  any person   guilty of a criminal  offence shall after the expiry of  the time  limited for an appeal against  such  judgment  or after the date of  the decision  of any appeal therein, whichever is the  latest  shall be taken as  conclusive  evidence  that the person so convicted  was guilty  of that offence s charged.”

It is not disputed that the 3rd  defendant  was convicted on his own plea of guilty of the offence of  causing death by dangerous  driving.  The question  is whether  that conviction  is conclusive  evidence  that he was to blame  for the  accident, particularly where no evidence  was tendered  by  him to the  contrary.

The issue of whether  or not the convict was guilty  of the offence  cannot be subject of a subsequent  inquiry.  However, it does not  necessarily mean that  the convict  is 100% liable in negligence.  As shown by the correspondence  between  the investigating  officers  and the State  Counsel, the decision to charge  one for an offence is usually in the discretion of the police and the prosecution and the mere fact that  one is charged with a criminal offence  and convicted  does not  necessarily  mean that  the person cannot  plead  contribution  - See Robinson  v Oluoch (1971) EA 376.

in Francis  Mwangi vs  Omar Al-kurby CA 87/1992, the Court of Appeal was clear that a conviction  is conclusive  evidence  of negligence  but  does not  rule out  the element of  contributory negligence.  In this  case, albeit the defendants pleaded contributory negligence, no evidence was led to  prove contributory  negligence.  Consequently, the conviction  of the 3rd defendant driver  became  conclusive  evidence  of negligence.

Furthermore, the defendants  never pleaded  in this case that  the accident  was inevitable  or caused by  an act of  God.  Secondly, the standard of  proof in criminal (traffic) cases is higher than that required in civil cases. Third, is that  there is no evidence  that the 3rd defendant  was in any way under duress or compulsion  to plead guilty to the serious charges  of causing death by dangerous driving. Fourth  is that  accident do not  just happen.  There must be a cause.  In this  case, the available  police records  show that the accident occurred  at or about  2. 00am.  The 3rd defendant’s statement  under inquiry  was that he drove at 20 kilometers per hour  and that he lost control of the motor vehicle  after hitting  a pot hole   on swerving to avoid  a head on collision  with an oncoming  motor vehicle  which blinded him  with full lights on.

Even assuming that, as  submitted  by the 2nd and 3rd defendants, the  accident was  caused by  the pot hole, if the  driver was driving with due care and attention, he would have avoided  hitting  a pot hole  or upon hitting  the pot hole, the motor  vehicle would  not have lost control.  Every driver on a public road  owes  the road users  a duty of care  to ensure  he does not  expose any such user, whether  passenger, pedestrian  or  other motorists, to any danger.  In HCC 22/2009- Robert Gitau Kanyiri  vs Charles   Kahiga  & 2 Others, where the driver’s defence  was that he hit a  pot hole, swerved to the right  and the accident  happened  because  of numerous  pot holes  which he was  avoiding to hit and   hitting others.  The court found the  driver negligent  and observed:

“……noting  the conditions of the road and bearing in mind the  presence of other  road users, it was  negligent of the 1st defendant  to swerve  to the right  in order to avoid  pot holes  when the  oncoming vehicle was close.”

In the instant  case, I find that from the  accident  sketch plan, the pot holes were  on the road  extending to the left side  and a driver driving  on the said  road did not  have to swerve  to the left to avoid  them.  To avoid  those pot holes, one needed  to swerve  to the right.  The motor vehicle  landed on the left side of  the road  after hitting  an electric post.  It is for  that reason that  I find the  3rd defendant’s report at 7. 10 am vide OB No.2/17/3/2011 of self involved  serious  traffic accident  that:

“ he  was driving motor vehicle  registration  No.  KXL 621 Isuzu Canter, along Githunguri Ruiru Road  and on reaching  Miguta area, he lost control of the vehicle  and veered off the road  to the left  side, where he hit an electric  post.  The vehicle  overturned and landed  on the right  side, its front part was extensively damaged, while its loader Lucas Mugo  who was  on board sustained a fracture on the leg.  He was rushed to Kiambu District Hospital for  treatment  and Motor vehicle towered to Githunguri  Police station to await inspection” accurate.

The above was  an initial report  made by the 3rd defendant to the police station. Later on 19th March 2011 at 2. 30 p.m. the same driver 3rd defendant recorded his own statement as D-4 to the effect that  a  vehicle which  was coming from the opposite direction flashed its full lights  thereby blind folding him completely.  He  therefore lost control  of  his vehicle  and hit an electric pole  on the  rear side.

The 3rd defendant never mentioned  that the accident  was caused by pot  holes.  The inference  that this court draws from all the three versions of how the accident occurred, all given by the 3rd defendant to the police is that  whereas in an  action for negligence, the  burden is always  on the plaintiff  to prove that  the accident was  caused by the negligence of the  defendant, nonetheless, if in the course  of trial  there  is  proved a set of facts which  raise a  prima facie  inference  that the accident  was caused by negligence  on the part  of the defendant, the issue will be decided  in the plaintiff’s  favour  unless  the defendant  provides some answer  adequate  to displace that inference.  See Nandwa V Kenya Kazi Ltd (1988) KLR 468.

In my view, therefore, the plaintiff through the doctrine  of Res Ipsa  Loquitur  has proved   that the material accident  occurred  in circumstances  in which it should  not have occurred  thereby discharging  in the absence of any other explanation  by the defendant, the original  burden  of showing  negligence  on the part of the 3rd defendant  driver  who caused  the accident, and  leading this court  to infer that  the only reason for the accident  must therefore  be the negligence of the  part of the  3rd defendant   driver.

The plaintiff relied  on the doctrine of  res ipsa loguitur ( the thing speaks for itself, which doctrine  provides that  in some  circumstances, the mere fact of an accident’s occurrence  raises an inference  of negligence  so as to establish a prima facie  case.  In Blacks Law Dictionary  8th Edition at page 1336, it states:

“ The phrase  ‘res ipsa loguitur’  is a symbol for the rule that  the fact  of the occurrence  of an injury, taken  with the surrounding circumstances may permit  an inference  or raise  a presumption  of negligence, or make  out a  plaintiff’s  prima  facie case, and present a question of fact, for a defendant  to meet with  an explanation.  It is merely  a short  way of saying that  the circumstances  attendant  on the accident are of such  a nature  as to justify  a  jury or court in  light of  common sense  and experience, inferring  that the  accident  was probably the result of  the defendant’s negligence,  in the absence of an explanation or other evidence which  the jury or court believes.”

On the other hand, negligence  is the failure  to exercise  the standard of  care that  a reasonably  prudent person  would have exercised  in a similar  situation, and includes any conduct that  falls below  the legal standard established to protect  others against  unreasonable risk of  harm, except conduct  that is  intentionally, or want only  disregardful of others’  rights.  The term  denotes  culpable carelessness.

In the view  of this court, it does  not take the science of relativity to observe  that  if one is driving at  a speed  of 20 kilometers per hour  and suddenly comes across a pot hole, whose  depth is not even indicated, the likely chances of  a motor vehicle loosing control and  rolling over  are almost  nil.  Further, it is the view of this court  that only high speed  would cause a vehicle that  hits a pot hole  to loose control  especially if the driver was  not anticipating  such a hole on the road.  He will be  taken by surprise and therefore  the chances of loosing control and rolling  off are very real and high.

That is what  most probably happened  in this case  and is clearly implied  in the doctrine  of Res Ipsa Loguitur  and indeed  by the  defendant’s  statement to the police and the results of  investigations into the accident.  That being  the case, the 3rd defendant together  with his principal, the 2nd  defendant cannot, by any stretch  of imagination contend in their defence  and submissions filed that the accident  did not occur, or that  the deceased  was to blame  for the accident, or  that negligence  was not proved.  The  evidence of  PW2 was clear that  from  the police inquiry file, an accident  occurred.  In addition, the doctrine of res ipsa loquitur  raises  a prima facie case, which  the 2nd  and 3rd defendants  did not  rebut that  the accident  occurred because  of the reckless  speed whether  or not  the  driver knew the condition of the road  at that time of the night.

In Embu Public Road  Services Ltd vs Riimi(1968) EA 22 the Court of Appeal stated that:

“where  the circumstances of the accident  give rise to the inference of negligence then the defendants, in  order to escape  liability, has to show  that there was  a probable  cause of the accident  which  does not  connote negligence or that  the  explanation for  accident  was  consistent  only with an absence of  negligence.”

In this case albeit  the 3rd defendant  driver of the accident motor vehicle  chose not to testify  on the occurrence  of  the accident, there is every indication in the police  investigations file  and especially  the sketch plan that the driver was in high speed  when he hit  a pot hole and lost control thereby loosing control of the motor vehicle  and hitting an electric post  and hence the fatal impact.

No evidence  was led to prove that  the deceased, in any way or manner, contributed  to the accident, for which  the driver thereof voluntarily  pleaded  guilty to charges of causing death  by dangerous driving and was convicted  and fined by a Githunguri  court.

In my view, it matters not that  the driver  was charged  with a  traffic  offence 5 months  after its  occurrence.  The incident  and its  cause had to be investigated by traffic police and appropriate  advise  or directions sought  from the relevant  authorities, and  at senior levels including the prosecution department.  When the authority/directive to charge  the driver was  received, the police  acted as  appropriate  and they  obtained  a conviction.

In view of that, the plaintiff in this civil case whose  duty is  to prove her case on a balance  of probabilities  and not on a  beyond  reasonable  doubt, in my  view, proved  on a balance of  probabilities  that under the circumstances, the 3rd defendant driver of the  accident motor vehicle  was to blame  for the accident wherein the deceased  sustained  fatal injuries.  I therefore  find that  the 3rd defendant  was to blame for the  material accident and  hold him liable  at 100%.  I also  find that  there  was sufficient  evidence to  prove that  the 3rd defendant  was at the material time of the  accident an employee, servant  or agent  of the 2nd defendant  and in the  course of  his employment  with the 2nd  defendant.  He drove the  accident motor vehicle  for the benefit  of the 2nd defendant. Consequently, the  2nd defendant is vicariously liable  for the  negligent  acts of the 3rd  defendant and I hold them  jointly and severally liable at 100%.

On what quantum of damages are payable to the plaintiffs, the  1st plaintiff  produced  a death certificate  to show that the deceased  died on  21st March 2011 at Aga Khan University  Hospital, Nairobi.  He was  aged 26 years .  The post mortem  form contained  in the police file  too confirm his date  of death as 21st March  2011 at 10. 00 am  due to  cardio respiratory  failure due  to pulmonary oedema  due to   motor vehicle  accident.  His occupation  is recorded  as Animal Health Technician.  Both plaintiffs herein Juster Kanini  Manene  and Peter Njau Merita  obtained a  grant of letters of  administration  intestate  from Naivasha  Chief Magistrate’s Court vide Succession cause No. 9 of 2012 on 30th March 2012 after obtaining a limited grant ad litem  from Nakuru HC Probate and Administration  Cause No. 89/2011 on 16th June 2011 for  purposes of filing suit  herein on 29th September  2011.

There is also proof that the deceased was survived by the 2nd  plaintiff, his widow, as confirmed by  the Assistant Chief Bamboo Sub Location  letter of  30th march 2011.  The plaintiff  has  one male issue, Maxwell Merita  Mugo aged  2 years at the time of the deceased’s demise.  A birth certificate No. 717560 was produced  showing  that the deceased  was  his father  and the 1st plaintiff his mother.  He was born on 13th January 2009 according to the birth certificate  issued on  17th may 2012.  The plaintiff  also produced  child immunization  card for the minor confirming  his date of birth   at Kijabe Hospital. the 1st plaintiff  Peter Njau Merita  is pleaded as brother to the deceased.  There is no  reason why  a brother of  the  deceased  was enjoined to these proceedings. He was not named as a dependant. This court  does not  find him a necessary party in as much as he may  be a co-administrator  of the deceased’s estate particularly  where it is not disputed  that the 2nd defendant is a  widow of the deceased.  There was  no evidence led to  show that  he was the deceased’s dependant  whether directly or indirectly.  Neither  did he  testify  to establish  his level  of dependency  on the deceased.  Nonetheless, under  the;law of succession Act, as the  estate of the deceased  involves  a minor, it would  be necessary to have a second  administrator  of the estate of  purposes  of protecting  the interests  of the minor.

The suit  was brought  under the Fatal Accidents  Act (cap 32) and  the Law Reform Act ( Cap 26).  It  was brought  on behalf  of the  dependants  of the deceased under  the Fatal Accidents  Act  and on behalf  of the estate  of the  deceased under  the Law Reform Act.

In the plaint, the dependants are clearly listed as:

J K M-widow 26 years.

M M  M – son 2 years

The deceased  was earning  a salary  of 14,997. 47 according  to the pay slip  for March 2011 produced  as exhibit  2(b).

For loss of dependency, the plaintiff  submitted  that the court should use the  multiplier  of  34 years and a dependency  ratio of 2/3  all totaling  3,870,080 and cited several  authorities  which are  considered.

On pain and suffering  and loss of  expectation of life, the plaintiff  proposed 200,000 and 250,000 respectively.

The defendant proposed  damages as follows :under loss of dependency a multiplier  of 20 years  and a dependency ration of ½  at the income  rate  7,000/- of kshs  840,000 after deducting the deceased’s living expenses  as set out in the case of Lucy Wambui Kihoro V Elizabeth  Njeri Obuong (2015) e KLR.  They also  relied on Mary Kerubo Mabuka v  Newton Mucheke  Mburu & 3 others (2006) e KLR and Joseph  Wachira Maina & Another  v Mohamed  Hasan Nakuru HCCA 43/2003.

Under  the Law Reform Act, the 1st  defendant proposed  kshs 30,000/- and 100,000/- for pain and suffering and loss of expectation of life respectively.

The 2nd  and 3rd defendants  jointly proposed kshs 100,000 for  pain and  suffering; kshs 75,000/- for  loss of expectation of  life under  the Fatal Accidents  Act and  a multiplier  of  12 years using  a dependency ratio of ½  and earnings  of kshs 14,228 thus  kshs 1,199,416  for loss of dependency.

Having carefully considered  the  respective  parties submissions  on quantum and damages in line  with the cited  authorities, I make  the following determination:-

That there  is no  doubt  from the evidence  adduced  both oral  and documentary that  the deceased  was involved  in an accident  on 17th March 2011  and died on   23rd March 2011 6 days later.  In my view, the  deceased must have  endured  a lot of  pain before  his death he sustained multiple fractures as per the post mortem report produced in evidence.  Based on  the authorities  cited by  the  2nd and 3rd defendants  which I find  relevant to this case , HCC 351/99 Nakuru .  Alice Mboga v Samuel Mbuti  Njorogo and HCC 487/99- Nancy  Wanyonyi Maina v Stephen Thungu & AnotherI would award kshs 100,000/- compensation under th e head of pain and suffering.  The decision of Maurice Adiwour Ogada  relied on by the  plaintiff  did not state how long it took  after the accident  for the deceased  to die.  The court in that  case simply stated that  the deceased did not die instantly.

Under  loss of expectation of life, I would award a conventional sum of kshs  100,000 based on the decision of Makano Makonye Monyanche v Hellen Nyangena (2014) e KLR  and Lucy Wambui Kohoro  v Elizabeth Njeri Obuong (2015) e KLR.

Under  the Fatal Accidents  Act, it is  an undisputed fact that the  deceased was  26 years  old at  the time of  his demise.  Counsel for  the plaintiff urged  the court to  adopt  a multiplier  of 34 years  whereas the 1st defendant urged  20 years  and the 2nd and 3rd defendants  proposed a multiplier of 12 years.  There was no evidence that the deceased lived  a sickly life.  Nonetheless, it cannot  be denied that  in life there  are preponderables  and vissitudes that can  shorten one’s life, besides an accident.it is however, a matter of discretion for the court to make that decision.

I adopt  the multiplier   of 30 years.  The deceased’s pay slip  for March  20011 showed that he earned  a gross pay of 14,997. 47 and a net pay of kshs 14,228. 25.  In determining  the deceased’s earnings, the Court of Appeal in Peggy  Frances  Hayes  & Others  v Chunibhai J  Patel and Another  CA 173/1956 held:

“ The court should find the age  and expectation of working life of  the deceased, and consider  the wages and expectations of the deceased  i.e his income  less tax) and the proportion of his net income  which  he would have made available  for his dependants.”

In Constance Kanyorota Ngugi v Coast  Bus Company  Ltd & Another  Nairobi HCC 3344/94  Mulwa J stated:

“  This  income  was based  on the invoice  he has compiled.  He said  this  figure  did not  take into  account   the tax element.  The figures  given  represented  the gross income of the deceased  per month.  I  note that  it  is difficult  to get the  correct  figure  of income from the  records  as they were and doing  the best  one can do, in the  circumstances  I would take the  deceased’s income  to be kshs  20,000/- per month.  The  tax would  be kshs 6,000/”

From  the above two decisions, courts  have defined   net income  to mean gross income less tax element.  In this case, the  gross pay was kshs 14,997. 47  and P.A.Y.E. was kshs 269. 21.  The  rest of  the deductions are NSSF  and NHIF which are  statutory  deductions.  Thus 14,997. 47 less 269. 21 leaving kshs  14,723. 26 per month.

In this regard, the deceased’s net income  was kshs 14,728. 26 per month.

Turning  to the actual  issue of  dependency, the widow, PW1 testified  that she wholly depended  on the deceased  and that  he provided for her and her 2  year old  son who  was at the time  of the hearing in class one. The deceased used to cater for all her needs  including  rent, shopping  and subsistence.  She  was not  working  at the time  of his death  but she  had since secured  some casual job to fend for  herself  and her child albeit she did not indicate how much she earned  from casual employment.

In Boru v Ondu v (1988-1992) KAR 299 the court  was asked to follow the pattern of court decisions  showing  that in claims  for loss of  dependency under the  Fatal Accidents  Act, the court had, as a rule, taken one third of the deceased’s net income  as his living  expenses  and two thirds  of his net income  as a dependency rule.  The court rejected  the  rule and re-assessed that  dependency is a question of fact.  Hancox CJ stated in part at page 291:

“ The extent  to which the  family is being supported must depend  on the circumstances  of each case.  To ascertain   the judge will analyse  the available  evidence  as to how much he spent  on his wife and family.  There  can be  no rule or principle of law in such a situation.”

Thus, to ascertain the reasonable  multiplier in  each case, the court  would  have to consider  such relevant  factors  as the income  of the deceased, the kind  of work the deceased  was  doing, the prospects  of promotion and his expectation of working  life- See Roger Dainty v Mwinyi Omar Hogi  & Another (2004) e KLR (CA).

In this case  the deceased  was employed  on contract basis  for 4 years, according to his pay slip P exhibit 2(b)  which shows  he was appointed  on 16th April 2007  for 4 years.  He had barely  one month to complete  his contractual  period.  There was  no evidence that his contract  would be  automatically renewed  or that  he would be  entitled  to promotion  or other higher  earnings. This however does not mean that hecould not get employment elsewhere or his contract be extended for another term.  Although  he was an Animal Health Worker, he worked  as a milk delivery clerk  in the field.  His academic  and professional qualifications  were not stated  and or proved   with documentary evidence.

In the Roger Dainty v Mwinyi Omar Haji & Another (supra) case, the court  was referred to the case of Musa  Alulwa v  The Attorney General  & Another HCC 1597/2000 where a multiplier  of 20 was applied to  a 26 years  old man.  The Court of Appeal  rejected  submissions  that courts have established   as a matter of practice  the appropriate  multiplier  to be applied to  different  age groups of victims of accidents  and that what is a  reasonable  multiplier to be applied in our jurisdiction is a question  of fact  to be determined from the peculiar  circumstance of each case, referring  to Boru V Ondu (supra).

In this case, doing the best I can, I would award the plaintiff  loss of dependency  using a dependancy ratio of ½ worked out as follows:

14,728. 26 x 30 x 12 x ½=            2,651,086. 80

Pain and suffering              shs      100,000. 00

Loss of expectation of life shs      100,000. 00

Loss of  dependency          shs   2,651,086. 80

Total general damage            = 2,851,086. 80

Special damages proven              500. 00

TOTAL kshs                                 2,851,586. 80

Special  damages  as pleaded = shs 1,625. However, only shs 500/- fee  for search certificate    was proven and which  I hereby award as above.

I also  award costs  of this suit  and interest  at court rates.  Interest  on general damages  shall be from  the date of  this judgment  until payment in full and  on special damages  from date  of filing of this suit  until payment  in full.

I further order that before the  award under loss of  dependency is paid out, it  must be  apportioned  between dependants and the minor’s  share invested  until  he attains age of 18 years  or upon an order of this court on an appropriate  application.

The plaintiff’s  claim against  the 1st defendant  is dismissed with costs.

Dated, signed and delivered  in open court this  6th day of October 2015.

R.E. ABURILI

JUDGE

6/10/2015

Coram Aburili J

C.A. Henry

Mr Mutahi for 2nd and 3rd  defendants ; holds brief for  Mr Nyaberi for  1st defendant

No appearance for  plaintiffs  ( dated given  in court on 26th June 2015).

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

R.E. ABURILI

JUDGE

6. 10. 2015

Mr Mutahi;  We pray for 30 days  stay of execution.

R.E. ABURILI

JUDGE

COURT- There  shall be  30 days  stay of execution of this judgment  as prayed  by the 2nd and  3rd  defendant’s  counsel.

The judgment shall also be expeditiously typed and copies availed to parties upon payment of the requisite fees.

R.E. ABURILI

JUDGE

6/10/2015