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Musa Alulwa vs Hon. Attorney General and Another (Civil Case No. 1597 of 2000) [2003] KEHC 2 (26 June 2003)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CIVIL CASE NO. 1597 OF 2000


MUSA ALULWA PLAINTIFF


versus


THE HON. ATTORNEY GENERAL & ANOTHER DEFENDANT



JUDGMENT


On the 3rd day of September, 1997, Jacob Lumbembe Kuta (now deceased) was lawfully walking as a pedestrian along Waiyaki Way in Nairobi when the 2nd Defendant one John Chepkwony the driver of GK N391 and also a judicial employee with the Kenya Government lost control and knocked the deceased thereby occasioning him fatal injuries.


The Attorney General on being sued entered appearance and filed defence. On behalf of the defendants they denied the allegations but in the alternative they blamed the deceased as being negligent and or substantively contributed towards this accident.


The parties entered into agreed issues for determination by this court. The first of these issues concerns the locus of the Plaintiff which I require to address myself to:


  1. Jurisdiction

    1. Whether or not the Plaintiff is entitled to maintain this suit on behalf of the deceased estate?


The plaintiff tendered in evidence letters of administration and colligenda bona dated the 18.5.99 showing that he holds the same as the legal representative of the estate of the deceased. He is related to the deceased as the brother. There are nine siblings between him and the deceased thus explaining the enormous age gaps between the two of them. According to probate laws, the deceased wife should have applied for these letters. She was not named in the plaint nor mentioned. In evidence, the Plaintiff explained this on the fact that the widow had ran away to her home leaving behind three children. She thereafter died, although no death certificate to this effect was tendered.


I find that the limited grant issued by the High Court of Kenya had not been challenged by the state as to its authenticity. I would find that the Plaintiff holds the letters of administration and as such has the status to bring this suit to court.


I now turn to determine the issue of liability.


  1. Liability

Issue No. 3 states whether or not the defendant is liable for the accident in issue?


The parties, prior to the hearing commencing conceded to the issue of liability. This was agreed at 60% against the defendant and 40% contribution made by the deceased.


The effect of this consent settles the issues No.3

Issue No. 2 therefore follows to the affirmative, namely whether or not the defendant is liable for the accident in issue.


A.Quantum

Issue No. 4 is whether or not the plaintiff is entitled to damages and if so, the quantum thereof?


  1. General Damages

    1. Law Reform Act

Pain and suffering

There is no evidence that has been deduced by the Plaintiff as to the exact time the deceased died. The accident and death occurred on 3.9.97 and as such it is unclear if the death was instantaneous or not. Due to lack of evidence I make no award under this claim.


    1. Loss of expectation of life

The deceased was described by the Plaintiff as young and healthy. The Advocate stated that an award be given of Kshs 100,000/=. I would find the conventional sum of Kshs 70,000/= be given and accordingly award this.

    1. Lost years

The circumstances of the deceased death was indeed most tragic. I say so because the motor vehicle involved belonged to the Judiciary. The drive, a Police Officer from Nyeri who was attached to the Hon. Judge at Nyeri (Osiemo J.) when the accident occurred.


The deceased was at the time of his death aged 26 years old and the normal retirement age in Kenya within the public sector is 55 years. The Advocate for the Plaintiff recommended a multiplier of 20 years old and a minimum multiplicand of Kshs 3,000/=. The deceased lost years would therefore be computed at


Kshs 3,000 x 20 x 12 = Kshs 720,000/= subject to apportionment.


  1. Fatal Accident Act

The claim under this act is normally made by the dependants of the deceased where the legal representative has not made any claim. The legal representative is entitled to claim under this head of damage but if he is the one and same person as a dependant the claim under the Law Reform Act is taken into account. See the case law of Kemfro Africa t/o Meru express v Olive Lubia & another 1982 – 1988 KAR 727


Where the dependants make a claim under this act, the law requires under Section 4 of the Fatal Accidents Act, that this be the spouse, the children or the parents who are entitled. The law further states that any person who was a dependant to the deceased must under section 8 of the Fatal Accidents Act, have his name particularized. The Plaintiff in evidence must prove dependency and that the dependants relied on the deceased for their upkeep through his employment.


In this case the Plaintiff is a brother to the deceased and had earlier explained that the wife to the deceased had in fact left the matrimonial home and is now deceased.


There are three children said to be dependant on the deceased yet the evidence showed that the children lived with his mother. I see that birth certificates were not produced to court to establish that indeed there are children. The deceased could have been a bachelor. This is the point that the State Counsel took in issue.


To prove this claim the Plaintiff required to show that the children indeed belonged to the deceased, their particulars as to their names, age and relationship to the deceased and lastly how they were dependant on the deceased. Was he paying their school fees, their upkeep such as food or clothing?


I make no award under this head.


  1. Special Damages

This claim was abandoned by the Plaintiff at the start of the trial. I hereby dismiss the same.


I would accordingly enter judgment for the Plaintiff on the proved claim.


In summary

(1) Pedestrian male adult aged 26 years in 1997 involved in a motor vehicle accident.


(2) Injuries

Fatal


(3) Liability

Agreed 60% against the defendants jointly and severally 40% against the deceased.


(4) Quantum

a) Law Reform Act

      1. Pain and suffering Nil

      2. Loss of expectation of life 70,000/=

      3. Lost years 720,000/=

(3,000 x 20 x 12)


b) Fatal Accidents Act

Loss of dependency Nil


c) Special Damages abandoned


Total Kshs. 790,000/=


Less 40% contributory negligence 316,000/=

Net 475,000/=


I award the costs of this suit to the Plaintiff. I award interest on general damages from the date of this judgment.


Dated this 26th day of June 2003 at Nairobi.



M. ANG’AWA

JUDGE


Advocates: Ngugi Muhindi & Co. for the Plaintiff

N. M. Mwangi for A.G. for Defendants



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