Rahab Wanjiru Nderitu v Daniel Muteti, Nation Media Group Ltd / Nation Carriers Ltd, Benard Muendo Kyenze, Ekwe Ethuro & Musyoka Nguku [2016] KEHC 3643 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NUMBER 526 OF 2000

RAHAB WANJIRU NDERITU…............................................................ PLAINTIFF

VERSUS

DANIEL MUTETI ............................................................................1STDEFENDANT

NATION MEDIA GROUP LTD/NATION CARRIERS LTD............2NDDEFENDANT

BENARD MUENDO KYENZE .......................................................3RDDEFENDANT

HON. EKWE ETHURO...................................................................4THDEFENDANT

MUSYOKA NGUKU........................................................................5THDEFENDANT

JUDGMENT

1. The plaintiff being  the personal representative  of the Estate  of the Late Patrick Kamau Kahu, vide a Grant of Letters of Administration ad Colligendaissued in Nakuru HCCC No. 135 of 2000 on the 30th  May  2000 sued for compensation in damages both under the Law Reform act and the Fatal Accidents Act following the death of the deceased in a multiple road traffic  accident on the Nakuru­Eldoret Road.

In her Amended Plaint dated 5th February 2013, she stated that the deceased was her husband, was an employee of Nation Media Group Limited,  the  second Defendant  and a  lawful  passenger in  the  said company's motor vehicle Registration Number KAH 346W Isuzu Pickup which, at the material time was being driven by one Daniel Muteti, the first Defendant, also an employee of the second defendant. The suit against the said Daniel Muteti was withdrawn on the 3rd March 2015 as he was said to have died. He had been sued for negligence as the driver of the vehicle and on vicarious status to the second defendant, his employer.

2. On the fateful night, it  is  the plaintiff's claim  that  while on its  way to Eldoret  at Kerita  bridge,  motor vehicle  Registration  Number KAH 346W was involved in an accident with  other two vehicles Registration Number KYS 677 Land Cruiser  owned by the fourth  Defendant Honourable Ekwe Ethuro then being driven by the third Defendant, Bernard Muendo Kyenze and another Registration No. KAA 057Z Scania Bus the property of the 6th Defendant and being driven by the 5th defendant, Musyoka Nguku.

The plaintiff blamed all the drivers for the three vehicles  as stated were blamed for being negligent in the manner and control of their respective motor vehicles and their respective employers and owners of the said vehicles on vicariously status of their drivers negligence.

3. The claim  was brought  on  behalf of  the  Estate of  the  deceaseds  and dependants  including the plaintiff (widow) 38 years old  and two children then aged 20 and 16 years old.

4. Save for the third  and fourth  defendants who failed  to appear,  upon service,  the first, second, fifth  and sixth defendants filed their respective defences and blamed each other for negligence and causation of the accident.  Interlocutory judgment was entered against the third and fourth Defendants on the 20th  September 2007.

5. During hearing  of the case before me, none of the drivers  testified. As stated above the driver of the Nation Media Limited vehicle Registration No. KAH 346 W was said to  have died  and the case against him  was withdrawn on the 3rd  March 2015.

6. The Plaintiff's case is that her husband, the deceased, then 41 years old was earning a salary of Kshs.12,700/= per month excluding overtime payments and was in good health when he met his  death through the accident  at Kirita bridge, and that she identified the body at Eldoret hospital mortuary on the 17th  January 1998 and buried him.  She pleaded of Kshs.53,000/= as the burial expenses.  The plaintiff produced as exhibits  the following documents, having been filed in a bundle on the 24th  April 2013 and others on the 17th  November 2011.

Death Certificate

Letters of Administration ad litem

Bundle  of receipts for the month for Kshs.54,995/= being burial expenses

Payslips for the month of September 1999

Police abstract

Extract – Nation Newspaper dated 15th  January 1998

Inquest No 9 of 1999 proceedings at Eldoret

Demand letter dated 8th  September 2000

Statutory notice addressed to Pan African Insurance Company Limited dated 8th  September 2000 and to Occidental Insurance Company of even date, and another to Nation Media Group.

The plaintiff urged the court to order compensation against all the defendants as she could not tell the court who among the three drivers and vehicles was to blame for the accident as she did not witness the accident.

7. PW2  Essau Nderitu Wamweya is  a brother in law of the plaintiff. He testified that on the fateful night, he had met the deceased at Nakuru and one hour after also left for Eldoret in a bus only to find the vehicle the deceased was travelling in at Kerita Bridge having been involved in an accident with the other two vehicles. He confirmed that one Daniel Muteti was the driver of the first  Defendant vehicle  Registration  Number KAH 346W at Nakuru while the deceased was seated at the passenger seat. He then informed the plaintiff who proceeded to the accident scene. He could however not confirm who was driving the vehicle at the time of accident but testified that at Nakuru, it was the said Daniel Muteti who was driving.

8. In his written submissions, the plaintiff's advocate Mr. Muguku urged the court to find that the said accident that caused the death of the plaintiffs husband, was caused and contributed  to  by all the defendants  drivers jointly and severally.

He  computed compensation  under Fatal Accidents Act at Kshs.2,917,716/= adopting a salary of Kshs.12,797/= and a multiplier of 19 years.

He further computed lost dependency at Kshs.2,052,000/=on the basis that the deceased used Kshs.9,000/= from his salary of Kshs.12,797/= on his dependants the widow, and the two children monthly.

He  also   urged  that   the   special   damages   pleaded   and  proved  at Kshs.53,670/= be allowed.

9. Under the Law Reform Act,it was his submission that Kshs.300,000,/= be awarded for pain and suffering and Kshs.100,000/= for loss of expectation of life.

Reliance was had to several authorities, among then CA No. 186 of 2009Tabitha Nduku Kinyua ­vs­ Francis Mutua Mbuvi and Corner Garage Transport Limited.

10. The second defendant, Nation Carriers Limited/Nation Media Group Limited  filed  its  submissions  through  its  Advocate J.G. Kagucia.    The defendant is sued in vicarious status by dint of negligence attributed to its driver, the first Defendant Daniel  Muteti the alleged  driver   of its  motor vehicle  being  Number KAH 346 W.   It is  noted that the suit against the driver  Daniel  Muteti  was withdrawn  on  the  3rd   March  2015  after  his demise.

It is submitted that in the absence of the driver of the motor vehicle, then no liability can attach to the owner of the vehicle,  the second defendant and therefore no case lies against the said second defendant.

It  was its  further  submission that  the second  defendant in its  defence blamed  the third  and fifth  defendants  for  causing the accident  and/or substantially  contributed to its  occurrence and the 4th  and 6th  defendants being vicariously liable.

11. On dependency, it is  submitted  that the plaintiff failed  to prove that she was indeed  the widow  of  the deceased  as no marriage  certificate  was produced, and also failure to produce the Childrens' birth certificates and therefore loss of dependency was not  proved.

On liability, the second defendant submitted that  no liability was established  against it as no eye witness  was called  to  testify  nor  any explanation tendered on how the accident occurred and therefore the burden of proof   was not discharged  but was in an agreement that the accident occurred involving three motor vehicles.

12. On the issue vicarious liability, the second defendant submitted that the plaintiff failed to prove the same against the second defendant particularly when she withdrew  the suit against the first defendant, the driver of the Nation  Media  Van. It  is  further  submitted that  the second defendant exonerated itself  from any liability by challenging  liability in its  defence and that since the third and fourth defendants failed to appear to defend themselves  in court, and pursuant to provisions  of Order 12 Rule 5 of Civil Procedure Rules, 2010, liability should then be apportioned between the two defendant solely.

13. On quantumof damages, the second Defendant submits  that  no award ought to be made under the Law Reform Act as no evidence was lead on how  long  the  deceased lived  after  the  accident  before the  death, but proposes a sum of Kshs.70,000/= damages for loss of expectation of life.

14. Under the Fatal Accidents  Act, it is  submitted that dependency was not proved and that as the deceased died at 41 years, a multiplier of  not more then 14 years against a Net salary of Kshs.6,162/= may be applied. In its totality, the second defendant urged dismissal of the plaintiff's case against it for failure to prove negligence against it.  Several authorities were relied on among them, the following:

Abbay Abubakar Haji  Fatuma ­vs­ Masair  Freight Agencies  (1984) e KLR, Francis Njoroge Njonjo ­vs­ Irene Muroki Kariuki & Others (2007) e KLR and Wesley Kipyegon Mutai ­vs­ Kipkelion Town Cout Y Another (2009) e KLR.

15. The fifth,  and sixth Defendants filed their submissions by their Advocates Murimi, Ndumia, Mbago and Muchela Advocates. It is submitted on their behalf that no negligence was proved against the two defendants as no eye witness  was called  to state what the defendants did or did not do that caused the accident. Relying  on the case Lucy Muthoni Munene ­vs­ Kenneth Muchange & KBS Ltd – Nairobi HCCC No. 853 of 1988, it was urged that as no evidence was adduced from which the court can find the defendants liable, the suit against the said defendants should be dismissed. It was also submitted that should the court find negligence on the fifth and sixth defendants, then a proposal on damages for pain and suffering under the Law Reform Act of Kshs.120,000/=would  be adequate while loss  of dependency of  Kshs.864,000/=  upon an income  of  Kshs.12,000/=  per month and multiplier of 9 years and a 2/3 multiplicand were proposed.

16. I have analysed the evidence by the plaintiff ans submissions by all counsel.

There is no dispute that an accident occurred involving the three vehicles registration Numbers KAH 346W, a Nation Media  Van, KYS 677 a Land Cruiser  owned by the Hon. Ekwe Ethuro and motor vehicle  Registration Number  KAA 057Z  a  Scania  Bus  owned  by  the  Akamba Bus  Service Limited.  It is also not in dispute that the driver of the Nation Media Van Daniel Muteti is dead while the driver and owner of the Land Cruiser, the third and fourth defendants  failed to appear or file their defences.

It is confirmed that there is already interlocutory judgment against the said third and fourth defendants. It is also not in dispute that the driver of the Akamba Bus failed  to attend court to testify and shed some light on the occurrence of the accident.

The court notes that an inquest  was opened, in Inquest No. 99 of 1999at the Senior Principal Magistrate's Court at Eldpret to find out possible cause of the accident but the same was closed due to lack of witnesses.

17. As matters stand, the possible cause of the accident remain unknown.

What came out during the proceedings and submissions by counsel is that each of the parties blamed each other for the occurrence of the accident. The deceased who  was a  lawful  passenger in  the  second defendants vehicle,  and lost  his  life due to the negligence  of all or either of the six defendants in the suit. No eye witness was called to testify on the possible cause of the accident.  No body attended the Inquest to shade light on the occurrence of the accident.

18. It is trite that where there is a collision of two or more vehicles, proof of a collision is held to be sufficient to call on the two drivers for an answer or explanation.

In the case Francis Njoroge Njonjo and Another ­vs­ Irene  Muroki & Others (2007) e KLR,the court in following Lord DenningsRemarks in Baker ­vs­ Market  Harborough Industrial  Co­operative Society Ltd (1958) I WLRobserved:

“Everyday, proof of  collision  is  held to  be sufficient to call on the two defendants for an answer. Never do they escape liability.  One or the other is held to blame.  Sometimes both.  If each of the drivers were alive and neither chose to give evidence  the  court   would  unhesitantingly   hold that both were to blame.”

19. In the present case, all the defendants filed their defences blaming each other save for the third and fourth defendants. Interlocutory judgment is in place against the two defendants.

The deceased being a passenger could not possibly be to blame as he had no control of the vehicle,  and no allegations  of contributory negligence were levelled against him.

The question  for the court to answer is  whether proof   of   the multiple vehicle collision in the accident was and of itself proof that one or all of the drivers involved were negligent.   None of the drivers testified in this court or at the  inquest.   There being no evidence tendered and there being   no evidence upon which the court can draw a distinction between the three divers, the only justifiable conclusions is to hold all of them to blame.  The above sediments  were expressed in the case Francis  Njoroge Njonjo & Another ­vs­ Irene Muroki Kariuki and Another (2007) e KLR.

20. I have stated above that there is on record interlocutory judgment against the third and fourth defendants entered on the 20th  September 2007. They did not challenge the suit against them either by pleadings or evidence.  All the other defendants challenged the suit through their pleadings. To that extent, the third and fourth defendants must be held to blame on a higher contribution on negligence than the others.

It is not in dispute that the plaintiff failed to testify on the negligence of either of the defendants, and for   good reason, that she was not an eye witness. Neither of the defendants called any eye witnesses.  Circumstantial evidence  however abound that  there was indeed  a multiple collision  of vehicles from which the deceased sustained fatal injuries.

As stated in the case Lucy Muthoni Munene -vs- Kenneth Muchangi & KBS(Supra), and in line with the provisions of Section 107 and 108of the Evidence Act, Chapter 80 Laws of Kenya,whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.  The burden of proof lays on the plaintiff who must show that the loss is to be attributed to the negligence of the defendants, by adducing evidence from which it could be inferred that on a balance of probability the defendant is negligent.

As  I  have stated above, no  evidence  was tendered by the  plaintiff in discharge  of the   burden of proof.   Should  the failure by the plaintiff to testify on the manner of negligence by the defendants, taking into account that she was not an eye witness render her case unsustainable?

21. It is common knowledge and trite that collisions between vehicles do not just  happen. One or both drivers  must  be negligent  for  an accident  to happen. An explanation ought to be given for the accident by the drivers. Either the drivers were not in proper control of the vehicles, did not obey traffic rules, failed in one way or another to avoid the accident or drove carelessly without  due regard and care to other road users or drove at an excessive speed in the circumstances, thus causing the accident.

In the case Patel ­vs­ R (1968) EA 97,it was stated that when vehicles are normally driven at reasonable  speed, certain things  do not just happen. Even if the vehicle was being driven on a wet road, that by itself would not cause it to swerve and onto the path of an on­coming vehicle. As  no evidence was tendered in this case, the court is unable to decisively attach full blame on either of the vehicles. In view of the circumstances appertaining  hereto, the court after a careful  consideration  of the entire scenario and submissions, makes findings, in its   discretion and based on the available evidence and submissions that the three drivers of the respective vehicles were to blame, albeit at different contributory ratios as justified by the circumstances.

22 The second defendant is held vicariously liable in negligence of its driver, the first defendant (now deceased) at 20%.

The third  and fourth  defendant shall  shoulder  contributory negligence  at 60%, while the fifth  and sixth defendants shall shoulder 20%.  The above apportionment of liability is arrived at due regard to the special circumstances in this case. See Francis Njoroge Njoroge Case(Supra).

23. Special damages

The plaintiff pleaded a sum of Kshs.53,670/= being funeral expenses. In her evidence before the court, the plaintiff testified that the second defendant and employer of the deceased met the funeral   expenses by providing the cost of the coffin, transport and mortuary fees.

I have seen the bundle of receipts (PExh 3).   They represent transport of mourners  form Nairobi to Nyeri  and cost of food for the mourners  and other miscellaneous expenses.

I have seen a court receipt for the petition for Letters of Administration AdLitem and fees to the Advocates amounting to Kshs.20,925/=.

I shall  allow the sum of Kshs.20,925/=  only as a genuine  expense.  All other  necessary expenses  and  costs  having  been met  by  the  second Defendant, I  disallow  the sum  of Kshs.53,670/=  as awarding it would amount to double compensation to the plaintiff and beneficiaries.

24. Damages under the Law Reform Act

I fully agree with the Defence Advocates submissions that no evidence on how  long  the deceased  lived after  the accident  before his  demise was stated. For that reason, there shall be no award for pain and suffering.

25On loss of expectation of life,the conventional sum is currently between Kshs.100,000­250,000/=

See FrancisNjoroge Njonjo (Supra) and George Wangang'a ­vs­ Austine Mwangale Khaemmba & Others. Hccc No 487 of 2000 at Nakuru.I shall award a sum of Kshs.150,000/=.

See also  Benedetta Wanjiku Kimani ­vs­ Changwon Cheboi & Another(2013)e KLR.

26. Damages under the Fatal Accident Act

Section4(1)of the Fatal Accidents Actstates that

“every action  brought under the  Act shall  be  for the  benefit of the  wife,  husband, parents and children of the deceased whose death was so caused.”

The plaintiff must prove dependency. If  a wife, she must prove marriage to the deceased either by customary marriage or by production of marriage certificate or by any other acceptable manner,  by  a letter from the Chief confirming that the plaintiff is a wife of the deceased and that the children are children of the deceased in the absence of birth of certificates or any other documents to confirm the same.

The plaintiff did not produce any of the above documents to confirm being a wife and widow of the deceased. I have looked at the Grant of  Letters of Administration issued in the Nakuru High Courtvide HC P&A No. 135 of2000.

The plaintiff's  names appear as Rahab Wanjiru Nderitu as the petitioner while the deceased's names appear as Patrick Kamau Kahu.  These names do not give  the court a hint  on whether the petitioner was wife to the deceased. No  documents  were  produced whatsoever to  show a nexus between the children and the deceased.

Indeed, on cross examination by the defence counsel, the plaintiff confirmed  that  though  married  to  the  deceased and  had  a  marriage certificate,  she did not produce it as an exhibit nor did she produce the Chief's letter and the children birth certificate or documents and no explanation was tendered for the failure.

27. Any person who has a beneficial interest or otherwise in a deceased's estate may apply for grant of Letters of Administration.  It is not always that the person so applying is a wife or husband, or indeed a relative of the deceased. Stating in evidence that one is a wife or husband of a deceased person without proof is not enough. If the plaintiff was indeed the widow of the deceased  as she stated, it would have been very easy for her to produce the marriage certificate she alluded to, or event the chief's letter to confirm customary marriage and the children's documents, say Baptismal certificates  or school  certificates.   The above having  not been done, the court  is  left  with  no option but  to  find  that  dependency has not  been proved, following which no award on loss of dependency can be made.

However, had dependency been proved, I would have assessed damages for loss of dependency  as follows:

The deceased was 41 years old at time of death.  He would in the absence of vicissitudes of life worked for 19 years to reach the official Government retirement age of 60 years. His net salary considering his payslips for the months September 1997, October 1997 and December 1997 was Kshs.5,358/= plus house allowance of Kshs.804/= making a Net salary of Kshs.6,162/=.   I  would  adopt  a  multiplier of 16  years against  a multiplicand of 2/3 thus 12 X 6,161 X 16 X 2/3 = 788,736/=.

InBenedettaWanjiku Kimani ­vs­ Changwon Cheboi & Another (2013) e KLRthe court adopted a multiplier of 16 for a deceased man who died aged 44 years.

28. For the above reasons, there shall  be judgment entered for the plaintiff against the defendants jointly and severally as follows:

1. Liability is  apportioned  among  the defendants  in the following ratios:

Firstand Second Defendant 20%

Third and fourth Defendants 60%

Fifth and 6thDefendants20 %

2. Damages under the Law Reform Act

Pain and Suffering ­   Nil

Lossof expectation of life ­ Kshs.150,000/=

3. Loss of Dependency ­      nil

(not proved)

4. Special damages ­  Kshs.20,925/=

5. Costs of the suit shall be borne by the defendants at the ratios of apportionment of liability stated in (1) above.

6. Interest on special damages shall accrue from the date of filing the suit while interest on general damages shall accrue from the date of this judgment.

Dated, signed and delivered in open court this  14thday of July 2016

JANETMULWA

JUDGE