James Kasomo and Anor vs Bernard Musyoka Ndonye and Anor (Civil Case No. 156 of 1998) [2001] KEHC 1 (22 March 2001)

The plaint herein was filed by the two who claimed to be the legal representatives of the late Josephine Kasomo. They claimed damages under the Law Reform and Fatal Accidents Acts on account of an accident that took place on EMALI – MATILIKU ROAD. That the 1^st Defendant is said to have driven the 2^nd Defendant’s motor vehicle KZM 827 so negligently that accident in which Josephine died occurred. That Josephine was aged 25 years and in good health. That her death occasioned loss and damage to her estate and to her dependants – who comprised her husband, the 1^st Plaintiff, and three (3) children.

That on 11.7.98 the Plaintiff pointed out the 2^nd Defendant to the process server at Simba trading centre. Service of summons to enter appearance plus a copy of the plaint was effected on the 2^nd Defendant and on behalf of his driver the 1^st Defendant. There was no appearance by either or both the defendants and a default judgment was entered against them on 3.8.98. But it was set aside by consent on 2.2.2000. A defence filed on 10.9.99 was taken on record and parties took hearing dates. This was on 7.2.2001 but the defence lawyer duly notified was not present and an ex parte hearing proceeded.

The claim in negligence was on the basis that the 1^st Defendant was driving too fast in the circumstances and he did not keep a proper look out on the road at all. That he drove without proper control of motor vehicle KZM 827 whereupon it overturned killing the deceased. That that motor vehicle was unroadworthy. The short defence denied negligence and averred that the 1^st Defendant had been proceeding carefully all the time in motor vehicle KZM 827. Agreed issues were signed and filed on 19.4.2000.

The hearing on 7.2.2001 saw the 1^st Plaintiff (P.W.1.) testify. That on 10.6.97 while traveling with his deceased wife from Nairobi to their rural home in the motor vehicle reg. No. KZM 827, after Emali the motor vehicle fell on the driver’s side as it went downhill towards a river. The motor vehicle was full; P.W.1. was standing while his wife sat in the driver’s cabin. When the motor vehicle came to a stop, P.W.1. managed to get out; he went to the cabin and saw the driver and another occupant there leaving the place. The deceased was trapped in the cabin. The motor vehicle’s radiator broke or exploded and its contents of hot water and steam engulfed the deceased. She was scalded from the abdomen downwards. Taken to Kenyatta National Hospital, Josephine was admitted until 27.6.97 when she died of the burns. That when the deceased passed away the 1^st Plaintiff (P.W.1.) employed a maid to take care of their children paying her Sh. 1,500/= per month. That the deceased was a petty trading woman. P.W.1. produced a police abstract (Exh. P1), Josephine’s death certificate (Exh.P2) and a grant to administer her estate (Exh.P3). That Exh. P3 was taken jointly with P.W.1’s brother – the co-plaintiff, on 16.6.98 while the suit was filed on 8.7.98. A bill at Kenyatta National Hospital (Exh.P4) amounted to Sh.2,300/= and medicines etc cost another Sh.51,767/= (Exh.P5). That concluded the plaintiff’s case. Mr. Maina was not minded to put the 2^nd Plaintiff in the witness box because he would merely repeat what P.W.1. had said. Both sides submitted.

The Plaintiff’s side gave 100% to the defendants jointly and severally, its evidence having gone unrebutted. This court agrees. When the 1^st Defendant drove the motor vehicle in question downhill at the speed he did and it fell over splitting the radiator whose contents badly scalded the deceased, the defendants were bound to say why. They did not appear to say it and they bear all responsibility here. This is this court’s conclusion regardless of the defence submission which was largely irrelevant and requires no allusion to.

Under the Law Reform Act no specific sum was proposed for pain and suffering but the court’s attention was drawn to the fact that the deceased lay in hospital for about 18 days under great pain. Sh. 100,000/= was put forth for loss of expectation of life.

Under this Act the court awards Sh. 70,000/= for loss of expectation of life and Sh. 50,000/= for pain and suffering. The death occurred some seventeen (17) days after the accident. So the award here is:

         Loss of Expectation of Life               Sh. 70,000/=
         Pain and Suffering                         Sh. 50,000/=
                                                      Sh.120,000/=

Under the Fatal Accidents Act the court was urged to take a minimum sum of Sh. 1,500/= income per month over a multiplier of 20, Josephine having died aged 25 years. There was a claim without proof that the deceased used to do small time business. It was not said or proved with evidence that she actually sold vegetables as was submitted. So a sum of Sh.240,000/= was the loss of dependency, as worked out in the submission.

For special damages Sh.53,677/= was considered by the plaintiff’s lawyer as proved and thus this court was asked to award it.

If the deceased did do small business activities it can be assumed that she contributed to the family upkeep. Yet there was scanty next to no evidence of such activities save for a bare claim from P.W.1. when he testified. Therefore in this state of things, and a woman is more likely to spend a larger sum of her income, if any, on the family, this court is inclined to put this at Sh. 1,000/= per month – given a minimum wage of Sh. 1,500/= as proposed. No gazette notice was availed for this but let it remain so. However, taking a multiplier of twenty (20) the loss of dependency works at Sh. 240,000/=
(1000 x 12 x 20)

As for special damages the court accepted Exh. P4 – a receipt of Sh. 2,300/= from Kenyatta National Hospital.

From Exh. P5 – the bundle of receipts, this court allows Sh. 100/= for the abstract, Sh. 50/= for the death certificate, Sh. 2,225/= for the grant of administration and Sh. 16,000/= for the coffin. Seven (7) receipts were availed @Sh. 300/= when a room was hired to arrange for Josephine’s funeral – Sh. 21,000/=; Sh. 392/= for drugs at Racecourse Pharmacy plus Sh. 2,300/= paid at Kenyatta National Hospital (Exh. P4) Coming to the 2 bus tickets @ Sh. 15,000/=, they bear the date of 3.7.97 but it was not explained what they were for. Assuming that this was to transport the mourners from Nairobi to Matiliku in this case it is reasonable that only one ticket be accepted – in absence of other evidence. So the total sum awarded here is Sh. 36,667/=.

Under the Fatal Accidents Act the award is:

         Loss of dependency                Sh. 240,000/=
         Special damages          Sh. 36,667/=
                                             Sh. 276,667/=

The same claimant is a beneficiary under these two (2) Acts. So the award under the Law Reform Act ought to be taken into consideration when deliberating over an award under the Fatal Accidents Act. It is by way of deduction. So a sum of Sh. 120,000/= is reduced from Sh. 276,667/= leaving a sum here of Sh. 156,667/=.
(See Kemp & Kemp: The Quantum of Damages).

         The Plaintiffs therefore get this:
         Under the Law Reform Act                  Sh. 120,000/=
         Under the Fatal Accidents Act             Sh. 156,667/=
                                                               Sh. 276,667/=

The Plaintiffs also get costs and interest at the lower court rates.

Judgment accordingly.

Delivered on 22^nd March 2001.

Kenya: High Court

James Kasomo and Anor vs Bernard Musyoka Ndonye and Anor (Civil Case No. 156 of 1998) [2001] KEHC 1 (22 March 2001)