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JudgmentPETERSON KARIUKI MUTHATHAI VS ADHIL ABDUL RAZAK JOKIA AND CHARLES KYALO NGUI9 min read

PETERSON KARIUKI MUTHATHAI VS ADHIL ABDUL RAZAK JOKIA AND CHARLES KYALO NGUI

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS 

CIVIL SUIT NO.18 OF 2020

PETERSON KARIUKI MUTHATHAI &

PURITY WARUE MUTHATHAI (suing as administrators of the Estate of

PHILIP NJIRU  MUTHATHAI (Deceased)...................…........…..PLAINTIFFS

     -VERSUS-

ADHIL  ABDUL RAZAK  JOKHIA alias  ADHIL JOKAHIA ........1ST DEFENDANT

CHARLES KYALO NGUI ……………………….….…...…....,.....2ND DEFENDANT

JUDGMENT

  1. The Plaintiffs in an amended Plaint on 13th November 2019 sued the Defendants as the Administrators of the Estate of Philip Njiru Muthathai (Deceased) for damages arising from a fatal road accident that occurred on 13th January 2019 at Devki junction along Nairobi- Mombasa Road.
  2. The Plaintiffs’ case is that on the material date, the deceased was travelling as a lawful passenger in a car registration No. KCH 960G coming from Machakos and upon reaching Devki junction along Nairobi-Mombasa Road, the 2nd Defendant drove and or managed motor vehicle registration No. KBP 265E in such a reckless and or negligent manner that it hit motor vehicle registration No. KCH 960G as a consequence of which Philip Njiru Muthathai sustained serious injuries from which he succumbed thereafter. That the said accident was solely caused by the negligence of the 2nd Defendant who was the authorized driver of the 1st Defendant. The 1st Defendant is thus to be held vicariously liable.
  3. The Defendants entered appearance through the law firm of Ngaywa & Kibet Partners LLP who filed a Statement of Defence dated 2nd December 2019 in which they denied the occurrence of the accident, ownership of motor vehicle registration No. KBP 265F and the 2nd Defendant being the authorized driver in the course of employment at that time of accident. The Defendants prayed that the suit be dismissed with costs.
  4. The suit was fixed for hearing on 29th September 2024. Upon confirmation that the Defendants’ Advocates were aware of the hearing date, the court directed the hearing to proceed in default of appearance by the Defendants and or their Advocate.
  5. PW1 was Joseph Kivuva Mutisya adopted his witness statement dated 25th January 2022 as evidence in chief. He was the driver of motor vehicle registration No. KCH 960G in which the deceased who was his friend was aboard. He was driving at a speed of 70km/h and the weather was dry. Suddenly a lorry registration No. KBP 265E carelessly and recklessly joined the highway encroaching into his lane and before he knew, the said lorry collided with his motor vehicle with impact. That good Samaritans came and helped them get out of the vehicle. Philip was hurt and was bleeding on the head and nose. He was rushed to Shalom Hospital Athi River where first aid was administered but he succumbed to the injuries. The matter was reported to Athi River Police Station. He blamed the 2nd Defendant for failure to exercise due care and adequate caution on the road, thus causing the accident.
  6. PW2 was Peterson Kariuki Muthathai who adopted a joint witness statement he signed with his wife dated 8th November 2019as his evidence in chief. He testified that the deceased was his son who was aged 38 years at the time of death. Him and his wife together with the deceased two sons depended on the deceased. He produced as PExts.1 – 34 documents on the List of Documents dated 6th November 2019.
  7. PW3 was PC Ifayo Ali attached to Athi River Police Station performing Traffic duties. He referred to a Police Abstract dated 14th March 2019 for a RTA that occurred on 13th January 2019 involving motor vehicle registration No. KBP 265F and Motor vehicle KCH 960G which occurred along Nairobi-Mombasa Road at Devki Junction. The matter was investigated by CP Githaiga who concluded the investigation and concluded that the driver of motor vehicle KBP 265F one Charles Kyalo Ngui was to blame and was charged in Mavoko Traffic Case No.111 of 2019 for causing death by dangerous driving. The eye witnesses were Joseph Kivuva Mutisya (PW1) and Stephen Mugutu Nganguni.
  8. The Plaintiffs case was then closed and directions were given for filing of written submissions. The Plaintiffs counsel’s submissions are filed dated 4th November 2024.

Determination

On liability

  1. PW1 testified as to how the accident occurred and blamed the 2nd Defendant for causing the accident. PW3 confirmed that the investigations had concluded that the 2nd Defendant was to blame for the accident and was charged in Mavoko Traffic case 111 of 2019. This evidence on liability has not been challenged by the Defendants. In the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 as cited in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR the learned judge citing the same decision stated that:

“It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein, the failure to adduce any evidence means that the evidence adduced by the plaintiffs against them is uncontroverted and therefore unchallenged”.

  1. I will therefore find that the 2nd Defendant 100% liable and hence the 1st Defendant shall be vicariously liable for the actions of his authorized driver, the 2nd Defendant.

On quantum

11.  Loss of expectation of life.

The deceased died at the age of 38 years. The Plaintiffs urged the court to consider the rate of inflation and award the sum of Kshs.200,000/- under this head. They relied on the case of Joseph Gatone Karanja v Michael Ouma Okutoyi & 2 others [2022] eKLR wherein the plaintiff was awarded Kshs. 150,000 for deceased person who died at the age of 39 years.

On Loss of expectation of life, the court in the case of Mercy Muriuki & another supra stated that an award of Kshs.100,000 was conventional for loss of expectation of life. I thus find that an award of Kshs.100,000/= is sufficient under this head.

Pain and suffering

  1. The Plaintiffs cited the case of General Cargo (Transport) Limited v Ndeme (Suing as administrator of the Estate of Mwadingo Mkama Beja - Deceased) (Civil Appeal 174 of 2022) [2023] KEHC 27244 (KLR) (14 December 2023) (Judgment) where the court declined to interfere with the lower court’s award of Kshs.100,000/- for a deceased person who died on the same day.

  1. They submitted that considerable time has passed since the delivery of the above case was delivered and urged the court to award Kshs.150,000/=.

  1. PW1 stated that good Samaritans came and helped them get out of the vehicle. Philip was hurt and was bleeding on the head and nose. He was rushed to Shalom Hospital Athi River where first aid was administered but he succumbed to the injuries. The deceased must have endured a lot of pain from when he was injured, gotten out of the vehicle, taken to Shalom Hospital where first aid was administered before he died. The deceased passed on some few hours after the accident considering that it took some time for him to be removed from the vehicle and rushed to hospital where he died.
  2. An award of Kshs.100,000/= will be reasonable under this head and I so award.

Loss of dependency

  1. The deceased was aged 38 years. The Death Certificate indicates that the deceased was a Prosecutor whereas PW2, his father testified that the deceased was a Compliance officer with the National Social Security Fund earning Kshs.240,000/- per month. The Plaintiffs produced a document from the National Social Security Fund as proof of his earnings. The deceased was survived by his parents and his two children who are still of school going age. 

I have seen the Chief’s letter dated 20/2/2019 (PExbt.2) which only confirms PW2 to be the father to the deceased. I have also seen only one birth certificate for Payden Amos Mwaki (PExbt.29) and not for the other child listed in the pleadings.

  1. This court is guided by the principles applicable to an assessment of damages under the Fatal Accidents Act which were enunciated in the case of  Odera v Adoyo & another (Suing as the Legal Representatives of the Estate of Vincent Ochieng Adoyo - Deceased) (Civil Appeal 13 of 2020) [2023] KEHC 17962 (KLR) (30 May 2023) (Judgment) which referred to the case of Richard Matheka Musvoka & another v Susan Aoko &  (suing as the administrators ad litem of Joseph Onyango Owiti (Deceased)) (2016) eKLR where J. Ringera stated as follows:-

"The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants."

  1. Dependency is a matter of fact and must be proved by evidence as was held in Abdalla Rubeya Hemed Vs Kayuma Mvurya & Another [2017] eKLR as follows:-

“Dependency is always a matter of fact to be proved by evidence. It is not that the deceased earned a sum and therefore must have devoted a portion or part of it to his dependence. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

  1. There is no doubt that the deceased must have spent a portion of the income on his dependants. See the case of Gordon Ouma Sunda & another v Adan Abdikadir Omar & another [2019] eKLR wherein the court in substituting the dependency ratio of 1/3 with that of 2/3 held that:

“This court finds and holds that it was also reasonable to have expected that deceased would have to spend a large chunk of his income on his dependents. Rather the claimant must give some evidence to show that he was dependent upon the deceased and to what extent.”

  1. In light of the above, I will adopt the dependency ratio of 2/3 in this case.

  1. The Plaintiffs urged this court to adopt a multiplier of 20 years submitting that the deceased would have worked until the retirement age of sixty (60) years being in public service. The Plaintiff applied the deceased’s income at Kshs.240,000/- per month, which in this court’s view was not proved.
  2. I have perused the document from National Social Security Fund (Pexbt.28) which shows the deceased’s Net pay to be Kshs.122,715.60 for December 2018, I will therefore apply the same as the deceased’s income. The award under dependency will thus be as follows:

Kshs.122,715.60 x 20 x 12 x 2/3 = Kshs.19,634,496.00

  Special Damages

  1. The Plaintiffs have pleaded and prayed for Kshs.3,103,930.47/-. I have seen the schedule and receipts for funeral expenses totalling to Kshs.3,063,130,47 as pleaded and thus proved. Although, the funeral expenses to me appear to be excessive I have no otherwise but to allow them as specifically pleaded and strictly proved.

Conclusion

  1. Accordingly, this court finds that the Plaintiffs have proven their case on a balance of probability and judgment is entered as follow:
  2. Liability   100%
  3. Loss of expectation of life 100,000.00
  4. Pain and suffering                    100,000.00
  5. Loss of dependency           19,634,496.00
  6. Special damages                   3,103,930.47

   Total                     22,938,426.47

Order accordingly.

JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 12TH FEBRUARY 2025  

     NOEL I. ADAGI

                JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 12TH FEBRUARY 2025

In the presence of :

Ms Kinyua h/b for Mrs Hani  .... for Plaintiff

N/A .................... for Defendant

Milly Grace...... Court Assistant

    PETERSON KARIUKI MUTHATHAI VS ADHIL ABDUL RAZAK JOKIA AND CHARLES KYALO NGUI PETERSON KARIUKI MUTHATHAI VS ADHIL ABDUL RAZAK JOKIA AND CHARLES KYALO NGUI