Dilip Asal v Herma Muge & another

Court of Appeal, at Kisumu December 21, 2001

Omolo, O’Kubasu & Keiwua JJ A

Civil Appeal No 49 of 2000

(Appeal against the judgment and decree of the High Court at Kakamega

(Tanui J) dated 9 July 1997 in Kak HCCC No 351 of 1994)

Negligence – contributory negligence–– defendant convicted for causing death by dangerous driving – whether the defence of contributory negligence would be available to such a defendant in a civil suit.

Damages - general damages - damages for loss of dependency and for lost years - under Law Reform Act (cap 26) and Fatal Accidents Act (cap 32) – whether loss of dependency and lost years can be awarded simultaneously to the same persons.

The respondent was the wife and administrator of the estate of the late Bishop Alexander Kipsang Muge of the Anglican Church of Kenya. Alexander Muge died in a road accident on August 14, 1990. His vehicle collided with a lorry which was owned by the appellant and driven by one Nicanori Munai Omukoba. Omokuba was charged with the traffic offence of causing death by dangerous driving contrary to section 46 of the Traffic Act (Cap 403) and convicted. His appeal against the decision abated upon his death. The respondent herein took out letters of administration and commenced proceedings against the appellant whom she pleaded was vicariously liable for the negligence of his servant. The appellant pleaded contributory negligence on the part of the late Alexander Muge. The trial judge rejected the appellant’s defence and awarded the respondent, among others, damages for loss of dependency and lost years. The appellant challenged these awards as amounting to duplicity of awards.

Held:

1. It is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident, that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident.

2. Assessment of damages is essentially an exercise of discretion and the grounds on which an appellate court will interfere with the manner in which a trial court assessed damages relate to issues of an error of principle.

3. The rights conferred by section 2(5) of the Law Reform Act (cap 26) for the benefit of the estates of deceased persons are in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the fatal Accidents Act. This does not mean that damages can be recovered twice over but that if damages recovered under the Law Reform Act devolve on the dependants the same must be taken into account in reduction of the damages recoverable under the Fatal Accidents Act.

4. The award of damages for lost years under the Law Reform Act would go to the same persons who had been awarded damages for loss of dependency under the Fatal Accidents Act. This was a matter which entitled this Court to interfere with the award so that the total award was reduced by an amount equivalent to the award of damages for lost years.

Appeal allowed in part.

Cases

1. Robinson v Oluoch [1971] EA 376

2. Kinairu Maina & another v Josephat Muriuki Wangondu Civil Appeal No 14 of 1989

Statutes

1, Traffic Act (cap 403) section 46

2. Fatal Accidents Act (cap 32)

3. Law Reform Act (cap 26)

Advocates

Mr Menezes for the Appellant.

Civil Practice and Procedure-consent orders-where a notice was filed because it was thought the parties would record an order of consent-where there was no such consent-whether the matter should be fixed for hearing in the ordinary way