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IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 505 OF 1999
MACHARIA WAITHAKA WAITARA PLAINTIFF
(Suing as the administrator of the estate of Michael Waitara Waithaka)
versus
SUNRISE SECURITY LIMITED 1ST DEFENDANT
JOHN MACHARIA NJOROGE 2ND DEFENDANT
This is a running down cause whereby Michael Waitara Waithaka (now deceased) was a pedestrian, was run down by a motor vehicle owned by the first defendant and driven by the second defendant Sunrise Security Services Ltd and John Macharia Njoroge respectively.
The deceased passed away a few hours later.
His father Zachariah Waithaka Waitara filed this present suit for the wrongful death of his late son and prayed for damages under the Law Reform Act and under the Fatal Accidents Act. The defendants entered appearance and filed defence whereby they denied that they caused the said death of the deceased. They blamed the deceased as having contributed to the accident as being negligent in crossing the road.
The parties had agreed issues filed in 1999 dated the 4.10.99
Locus
The Plaintiff Zechariah Waithaka Waitara produced letters of administration and ad colligenda bona whereby he proved that he was the representative of the estate of the deceased estate. It is unclear why his widow did not also jointly take out letters of administration intestate but it is envisaged that when a full grant of letters are obtained there must be two administrators under section 58 of the Law of Succession Act.
The Plaintiff did bring it to the attention of the court that the date of death of 10.5.97 was in fact not correct and a typographical error. The parties agreed on a statement of facts and by admission that the correct date of death was 11.5.97 and not 10.5.97 or 16.5.97. As a result of this agreement, I now find that the plaintiff has locus to bring this suit to court on behalf of the estate of the deceased.
The plaintiff produced a certificate of motor vehicle records of search from the Registrar of motor vehicles that provide that M/s Sunrise Security Ltd and Wheelbase are the registered owners of motor vehicle KAH 9447.
I now look at the issue of liability.
Liability
The Plaintiff produced the lower court traffic court case proceeding as evidence. This is permitted under section 34 of the Evidence Act as read with section 84 of the Evidence Act Cap. 80 Laws of Kenya. In brief, these sections state where proceedings of a lower court or any lawful court has been recorded the same proceedings may be used in another case, such as this one, without recalling the witnesses a second time.
In this case the key witness had since passed away but her evidence is recorded in the said proceeding. I accept this form of evidence.
According to the witness, Veronica Waithera Muiruri (now deceased) the deceased and her had the intention of going to their home area in Ruiru. This is along Thika Road. They took a matatu and alighted at Kenyatta University. Their intention was to connect with another bus that was proceeding to the Ruiru area. They crossed the dual carriage way first two lanes. In the middle, the deceased asked Veronica to continue and cross the second two dual carriage way lanes whilst he would go for a short call.
Veronica did so. When she reached the other side she saw the deceased cross the dual carriage way at a zebra crossing. A motor vehicle suddenly came and knocked the deceased. He was still alive. She rushed for help at the police. By the time she returned to the scene, the deceased had been rushed to hospital. The deceased died at 10.30 p.m. at night. The accident occurred at 8.30 p.m.
The driver of the Defendant’s motor vehicle had run away.
It seems he was later arrested and charged with the offence of causing death by dangerous driving. After trial he was found guilty and convicted. He was fined Kshs. 7,000/= fine in default one year imprisonment.
Who is to blame for this accident?
The traffic laws provide that a vehicle which approaches a zebra crossing must slow down and stop as pedestrians have a right of way. The said vehicle did not stop, it was over speeding and consequently knocked the deceased down.
I would find that the deceased did not contribute in any way to the accident. The Defendant should have attended the trial to state so but did not. The fact that the deceased was at a zebra crossing is sufficient proof that he indeed was not negligent in the manner that he crossed the road.
I find that the deceased was not liable. I find that the Defendants are the ones liable for this accident at 100% jointly and severally with the 1st Defendant being vicariously liable.
I now look at the quantum.
The case law referred to being:-
HCCC 3215/97 (Ang’awa, J).
HCCC 3009/88 (Mbito, J).
HCCC No. 1034/99 (Khamoni, J.)
HCCC No. 5348/88 (Juma, J.)
HCCC No. 1783/99 (Khamoni, J.)
Quantum
a) Law Reform Act
Pain and suffering
The deceased died two hours after the accident. I would award a sum of Kshs 10,000/= as being conventional.
Loss of expectation of life
I award the sum of Kshs. 70,000/= as being conventional.
Lost years
The Plaintiff called the employer who stated that the deceased last salary was Kshs. 6,157/=. He had in fact been personally earning Kshs. 4,957/=. The deceased was employed as a driver with Alibhai Shariff. He had prospects as, by the indication of his increment in salary.
At the time of death the deceased would have lived to retire at the conventional age of 55 years. I would place the multiplier at 25 years.
The salary of 6,157/= was only earned once. The correct average figure is to take is 4,957/= say Kshs. 5,000/=.
Thus 5,000/= x 25 x 12 x 2/3 = Kshs.1,000,000/=
b) Fatal Accidents Act
The Plaintiff had stated that the deceased had a wife and child who were dependent on him. He too stated that he was dependant on the deceased.
I have seen from the evidence that the deceased father/Plaintiff was employed and self-supportive. I would not include him as a dependant.
The wife came to court as the widow of the deceased and gave evidence. She proved to court that she had a son with the deceased. I recognize in law the customary law marriage that has been entered into. I hereby hold that Mary Wambui Waitara and Waithaka Waitara are dependents.
The claim under the Law Reform Act and the Fatal Accidents Act I find is the same namely 5,000/= x 25 x 12 x 2/3 = Kshs 1,000,000/=
Under the Kemfro African t/a Meru Express v Olive Lybiu Case 1982 – 1988 KAR 727.
These two acts require to be taken into account. That is under the Law Reform Act and the Fatal Accidents Act.
Under the Fatal Accidents Act I am required to apportion this sum amongst the dependents which I do after apportionment at Ksh. 980,000/=.
Mary Wambui Waitara widow - Ksh. 480,000/=
Waithaka Waitara minor - Ksh. 500,000/=
Plaintiff father - Nil
I discount the same due to lump sum payment and early remarriage by the widow Ksh. 20,000/=.
I further order that the sum for the minor be invested for the dependent minor in an interest earning account till the age of majority in the name of the registrar of the High Court of Kenya and the administrator and widow herein Mary Wambui Waitara at the East African Building Society.
The interest from the sum deposited to be paid, on application to the widow for the upkeep of the minor.
I enter judgment for the plaintiff on the proved amount.
Running down cause
Pedestrian motor vehicle collision
Male adult aged 30 years old in 1997
Injuries
Fatal
Liability
100% jointly and severally against the 1st and 2nd Defendants
Quantum
Law Reform Act
Loss of expectation of life Kshs 70,000/=
Lost years
5000 x 25 x 12 x 2/3 = Kshs 1,000,000/=
Taken into account
Fatal Accidents Act
Loss of dependency
5,000/= x 25 x 12 x 2/3 Kshs 1,000,000/=
Subject to apportionment
Special Damages
(Agreed) Kshs 12,320/=
Balance of Kshs 3,380/= abandoned ______________
Kshs 1,072,320/=
I award costs of the suit to the Plaintiff. I award interest on Special Damages from the date of filing suit. Interest on General Damages from the date of this judgment.
Dated this 1st day of July 2003 at Nairobi.
1.7.03
Kagwimi Kang’ethe & Co. Advocates for the Plaintiff
Kimani Waweru & Co. Advocates for the Defendants
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