REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3723 of 1990

HELLEN MUHONJA MAINA................................................. PLAINTIFF

VERSUS

PETER KINAGI GITUKA.................................................. DEFENDANT

JUDGMENT

HELLEN MUHONJA MAINA is the widow of Charles Gakobo Maina -deceased). She brings this action in her capacity as theadministrator of the estate of the deceased and also on her ownbehalf and on behalf of her two minor children as dependants of thedeceased. The claim is expressed to be under both the Law ReformAct, Cap. 25, of the Laws of Kenya, and under the Fatal AccidentsAct, cap. 32, of the Laws of Kenya. Her allegation is that thedeceased died as a result of injuries sustained in a road accidenton 17.3.89, which accident she blames on the negligence of thedefendant. The defendant does not deny that the deceased died inthe alleged accident but avers that the accident was caused by thesole negligence of the deceased, or that in the alternative thedeceased contributed thereto. Accordingly both liability andquantum are issues for determination in this trial. I will beginwith a consideration of the issue of liability.

In brief the evidence on behalf of the plaintiff is this. Thedeceased was driving a fiat car KWT 058 on the night of the 17thMarch, 1989 along Mbagathi road, Nairobi, with intention of joining Langata road and ultimately proceeding home to Ngei Phase II. Thetime was around midnight. It was drizzling. His brother, PW3 wasdriving behind him but with an intention of joining Langata roadand turning left in order to proceed to BuruBuru where he lived.At the same time, PWl was driving along Langata road from thedirection of Nairobi dam towards Nairobi west. The defendant wasalso driving along Langata road from Ongata Rongai towards the CityCentre. According to PWl, he was driving at a slow speed of about30-50 K.P.H. There was a vehicle behind him whose head beams werehigh. In front of him, about 50 metres away, he saw a small carmaking to join Langata road. The said car stopped at the junctiontemporarily (which according to him is the same thing asmomentarily) and then curved into Langata road in front of him.According to him, all this was in order and the small car was nota danger to him as he was some distance away from it. While allthis was happening, the vehicle which was behind him, overtook himon the right of the yellow lane at a great speed, he heard somescreeching noise, and then that vehicle, which he saw was a lorry,collided with the small car in front of him. The collision occurredon the stretch between the prison officers’ mess and the post officeat the junction of Langata and Mbagathi roads. The small car waspushed to the ditch across the road. The lorry stopped in themiddle of the road. P.W.I noted after the collision that the lorrywas KTQ 507. He then stopped at a safe distance and got out of hiscar to go to the rescue of the driver of the small car. Othermotorists also stopped on the road.  Metal bars were used to open the door of the small car. The driver, who was a man, was removedand taken to hospital. PW1 went home but he was sufficientlydisturbed by the accident to visit the scene on the morrow. Hefound the vehicles had been towed away but he recovered a roadlicense for KWT 058. He took this document to Langata Policestation and reported the matter. PW3 who was driving behind thedeceased testified that the deceased was about 20 metres ahead ofhim on Mbagathi road. The deceased stopped at the junction ofMbagathi/Langata road for a little while and then entered Langataroad. The witness then saw a big vehicle overtaking a small carahead of it. That big vehicle collided with the deceased's motorvehicle on Langata road. When he reached Langata road, he foundhis brother's vehicle had been pushed off the road on the rightside. The lorry was stationary in the middle of the road. Thiswitness is the one who took the deceased to hospital. I may alsorecord that according to this witness the deceased had taken twobeers in the company of the witness and his wife at Silver springsHotel a few minutes before the accident. Both witnesses wererigorously cross-examined by Mr. Gachomba, the defendant'scounsel.  They were unshaken and maintained their evidence.

The defendant's evidence is that on the material night he wasdriving his own lorry KTQ 507 on Langata road from the direction ofOngata Rongai towards Nyayo National stadium with intention ofgoing to Jericho estate. There was a small vehicle ahead of him.he overtook that vehicle at the bumps alongside the B.P. petrolstation just before Dr. Thomas Bernado Children's home.  After overtaking, he started descending towards the Mbagathi/Langata roadjunction. As he approached the junction he saw a small vehicle onMbagathi road.  The vehicle slowed down as it moved in thedirection of Langata road.  The defendant thought that the driverof that car had seen his vehicle on Langata road.  So he proceededinstead of stopping at the junction of Mbagathi and Langata roads,the driver of the other car emerged straight unto Langata road,which is at that point the major road.  The defendant appliedbrakes but since it was we.  The lorry skidded and crashed intothe small vehicle. He could not veer to the right since there wereother vehicles travelling towards the direction he was coming from.After the accident his vehicle stopped in the middle of the roadand the small vehicle ended in a ditch off the road on the sidegoing towards Langata. He alighted from his vehicle and togetherwith other motorists extricated the driver of the small vehiclefrom his car and put in another vehicle that took him to hospital.The said driver did not say anything but the defendant could smellalcohol from his vehicle.  He also noticed three bottles full ofalcohol in that car.  Defendant was of the view that the accidentwould not have occurred if the driver of the small vehicle hadstopped at the junction.  In his view, he was not to blame for theaccident.  He was charged in the Kibera court in Traffic case No.1578/89 with the offence of Causing death by dangerous driving andhe was acquitted.  Defendant insisted that the accident occurredsome 500-800 metres after he had overtaken the other vehicle at thebumps. He also stated that he did not see P.W3 at the scene of the accident but saw him at the Kibera court during the trafficproceedings. He did however concede that he saw PW1 at the sceneof the accident and that he had overtaken his vehicle before theaccident occurred. He denied overtaking him as both approached theMbagathi/Langata road junction. He also denied that the accidentoccurred while he was overtaking. He further denied that he wasovertaking illegally on a continuous yellow line. According to himhe had overtaken before he reached the continuous yellow line. On that evidence, counsel for the defendant urged me to find that deceased was the sole author of his own misfortune. Theaccident was caused by deceased's failure to stop as requiredbefore joining the main road. I was asked to disbelieve theevidence of PW1 that deceased stopped momentarily at the junctionbefore joining the main road on the basis that the witness washesitant about the point. I was also asked to disbelieve hisevidence that defendant overtook him when deceased’s motor vehiclewas 20-30 metres in front of the witness on the grounds that theevidence was in the circumstances improbable and in any case the witness was not truthful as he had denied ever taking alcoholwhereas in the traffic proceedings relating to the death of thedeceased, he had confessed that he used to drink. I was invited totake judicial notice of the behavior of drinking Kenyan's onFriday nights. The inference counsel sought me to draw was thatPW1 as a drinking Kenyan must have been drunk on the night of theaccident - a Friday - and accordingly his judgment of distance wasimpaired.  The evidence of PW3 that deceased did stop at the Junction for a while should be disbelieved because, according todefendant's counsel, the witness had contradicted himself on thepoint of whether the deceased had taken any alcohol on the night ofthe accident as he told the traffic court that he had not drunk atall but he admitted to this court that deceased had taken twobeers. Let me observe at this juncture that the allegedcontradiction between PWl's testimony in this court and the trafficcourt on his drinking habits was not put to the witness and hisresponse thereto solicited. And PW3 was also not contradiction inhis testimony about the fact of the deceased's sobriety on thenight of the accident. Be that as it may the entire record ofproceedings, evidence and Ruling in Principal Magistrate's CriminalCase No. 1578/89 in which the defendant was the accused wastendered in evidence, without objection by counsel for thedefendant, and marked as DEI. Counsel for the plaintiff submittedthat the evidence of PWl and PW3, which he praised as candid andconsistent, pointed to the fact that the defendant decided to anddid overtake another vehicle at a junction of the minor and mainroads. That coupled with the fact that there was a continuousyellow line at the spot was an act of gross negligence. Incounsel's view the deceased could not have thought that a truckwould commence overtaking a small vehicle at a junction.Accordingly, I should find that the defendant was solely to blamefor the collision. Counsel deceased was not drunk beyond a safelimit.

I have weighed the above evidence and submissions.  I was particularly impressed by the evidence of PW1. He was straightforward person and his evidence was not hesitant as alleged bycounsel for the defendant. He was also in a sense an independentwitness in that he was not related to or known to either thedeceased or the defendant before the accident. There was noevidence that he was drunk on the night of the accident. And whileI am prepared to taken judicial notice that in general alcoholdrinking Kenyans do indulge themselves on Friday nights, I am notprepared to conclude that every such Kenyan indulges himself on anyand/or every Friday. It would be quite imprudent to find withouttangible evidence that a particular individual was inebriated on aspecific day. I therefore do not find that the judgment of PW1 wasimpaired by drink. PW3 ' s evidence tallies with that of PW1 on boththe fact that the collision was at the junction of Langata/Mbagathiroad as defendant had just overtaken PW1' s car and also on theexistence of a continuous yellow line at that stretch of the road.I approach his evidence with caution as he is the brother of thedeceased. I have nonetheless accepted his evidence as entirelytruthful. I prefer the evidence of these two witnesses to 'that ofthe defendant on the existence of a yellow line at the spot of thecollision and the fact that the defendant had but just overtakenPW1's car when the collision occurred as the more probable version.The fact that after the collision the lorry stopped in the middleof the road disproves the defendant's contention that he had longovertaken PW1's car when the accident occurred. If that were so,his vehicle would have stopped on the left side of Langata road as one goes towards the city centre. And the deceased's motor vehiclewould have been pushed down the middle of the road and not into theditch on the very opposite side. This consideration and the factthat I observed the defendant to bear the demeanour of an insincerewitness - he was tense during his entire testimony and he cast hiseyes firmly down on the witness box as if he were a fixture there -lead me to make the following findings of fact. First, theaccident occurred around midnight on a drizzling Friday night.Secondly, it occurred off the junction of Langata and Mbagathiroads at a point marked by a continuous yellow line. Thirdly, thedefendant was in the process of or had just overtaken PW1^!s car.Fourth, the deceased stopped momentarily at the junction and thenentered Langata road when P.W.'s car was to high right about fiftymetres away. And finally, the deceased had just taken two beersbefore the accident. Defendant's evidence that he saw threebottles of alcohol in the deceased's car after the accident was notput to the plaintiff's witnesses. But even if it were true, itwould be neither here nor there. I now return to the big question.Was the defendant negligent in behaving as he did? How about thedeceased? Who should be visited with blame for this collision and,if applicable, to what extent? Remembering that the defendant isalleged to have been negligent and the deceased is alleged to havewholly or partially contributed to his own demise, I may as wellrestate the respective legal duties. All drivers on the highwayare under a legal duty not to use proper care not to cause injuryto other persons-whether they be other drivers or pedestrians or owners of property - who happen to be on or adjacent to the highwayor whose property is on or adjacent to such highway and whoaccordingly are so placed that they may reasonably expect to beinjured by the omission to take such care.  And any driver whofails to take reasonable care for his own safety will be foundguilty of contributory negligence.  The standard of care demandedis that of an  ordinary  reasonable  man.  The personalindiosguciecied of the affected drivers count for nothing. Propercare dictates that one avoids excessive speed, that one keeps aproper look out, that one obeys traffic rules and adheres to theHighway code and so on (see BOURHILL v YOUNG (1943) A.C. 92).  Itis against that duty and standard of care that I should judge theconduct of the defendant and the deceased in this case. When I doso, I find that the defendant was in overtaking near a roadjunction  at  a  stretch with  a  continuous  yellow  line  incircumstances of wetness of the road and when he had seen thedeceased approaching the function short of the standard of care ofa reasonable man.  He breached all the injunctions in the highwaycode not to overtake on the outside of the yellow line and never toovertake at or near a junction.  He was clearly in breach of hisduty of care to the deceased. And this breach of duty of care hasoccasioned loss and damage for which the defendant is liable. Butthe deceased was not a virtuous virgin either.  He took at twobeers before setting out to drive at night, he then approached aroad junction, stopped fleetingly, he did not give way to vehicleswhich were on his right on the major road to pass, he took a chance of entering into the said road when a vehicle was only fifty metresaway and the chance turned out to be a fatal error of judgment. Itmatters not that he believed he will execute his move safely. Andthe judgment of PWI that it was safe to do so I regard as anopinion of another driver at the material time. It is importantbut not conclusive on whether the deceased exercised the prudenceand care of an ordinary reasonable man. In my judgment he did not.He accordingly contributed to the fatal collision with thedefendant's lorry. In my view, the deceased must in all thecircumstances of this case shoulder the greater portion of blamefor entering into the main road without sufficient regard for hisown safety. I would apportion liability between the defendant andthe deceased in the proportions of forty (40) per cent and sixty (60) per cent to the disadvantage of the deceased. I now turn toa consideration of the quantum of damages.

From the evidence on record, I make the following findings offact. The deceased was a specialized mathematics teacher. He wasmarried to the plaintiff and their marriage was blessed with twochildren. The widow was aged 31 years when the deceased passedaway and was aged 36 years at the time of the trial. Their sonEric Steele Maina is now aged eleven years bug was aged five yearsat the time of deceased's demise. Their daughter was then agedabout one year and is now about seven years old. The deceased hada net regular employment income of Kshs 12,097 including houseallowance. He earned a monthly average of K.shs. 15,000-20,000/-from Private tuition.  This later amount does not appear to have funeral expenses.FATAL ACCIDENT'S ACT

(a)  Loss of dependency - K.shs 4.8 million on the basis of amultiplication of 20,000/- a month and a multiplier of 20.

(b)  The amount to be apportioned as court think AtMr. Kyalo further submitted

That the decision in KEMFRO AFRICA LTD VS A.M. LUBIA (1982-88) 1KAR 727.

demands that an award under the Law Reform Act must be offsetagainst an award under the Fatal Accidents and accordingly the netoverall award to the Plaintiff should be K.shs 2,390,000/-. Thislast figure must have been arrived at erroneously by omitting toinclude damages for loss of expectation of life and the specialdamages as part of the award under the Law Reform Act. Had aproper arithmetical approach been followed, the next amount claimedwould have been Kshs. 2,234,962/-.

Mr. Gachomba, the defendant's advocate on the other handsubmitted that damages for loss of expectation of life are aconventional sum of K.shs 70,000/- and no special facts had beenproved in this case to warrant more. As regards the claim underthe Fatal Accidents Act, he submitted that I should adopt amultiplicand of one third of the net income of the deceased and amultiplier of between 10 and 15 in view of the improved financialstatus of the plaintiff even though such improvement is notconnected with the death of the deceased.

I now turn to a consideration of the quantum of damages in Funeral expenses.FATAL ACCIDENT'S ACT

(a)  Loss of dependency - K.shs 4.8 million on the basis of amultiplication of 20,000/- a month and a multiplier of 20.

(b)  The amount to be apportioned as court think AtMr. Kyalo further submitted

That the decision in KEMFRO AFRICA LTD VS A.M. LUBIA (1982-88) 1KAR 727 demands that an award under the Law Reform Act must be offsetagainst an award under the Fatal Accidents and accordingly the netoverall award to the Plaintiff should be K.shs 2,390,000/-. Thislast figure must have been arrived at erroneously by omitting toinclude damages for loss of expectation of life and the specialdamages as part of the award under the Law Reform Act. Had aproper arithmetical approach been followed, the next amount claimed would have been Kshs. 2,234,962/-.

Mr. Gachomba, the defendant's advocate on the other handsubmitted that damages for loss of expectation of life are aconventional sum of K.shs 70,000/- and no special facts had beenproved in this case to warrant more. As regards the claim underthe Fatal Accidents Act, he submitted that I should adopt amultiplicand of one third of the net income of the deceased and amultiplier of between 10 and 15 in view of the improved financialstatus of the plaintiff even though such improvement is notconnected with the death of the deceased.

I now turn to a consideration of the quantum of damages in light of the above evidence and submissions. There is no doubtthat the claim by the Plaintiff in her capacity as theadministrator of the estate of the deceased under the Law ReformAct is a distinct and separate cause of action from the claim bythe plaintiff on her own behalf and on behalf of the minor childrenof the deceased as dependants of the deceased under the FatalAccidents Act. It is however recognized that in assessing damagesunder the Fatal accidents act, the trial court should take intoaccount the award under the Law reform act because the losssuffered under the former Act must be offset by the gain to thedependants from the estate under the former Act. See KEMFRO VSA.M. LUBIA & ANOTHER & ANOTHER (supra).  And as regards the award under the Fatal accidents act, the guiding principleswould appear to be these. First, the Court must find out as a factwhat the annual loss of dependency is. In so doing, the relevantincome is the net earnings of the deceased. There is noconventional fraction to be applied, each case depends on theevidence before the court. Secondly, the annual loss of dependencymust be multiplied by a figure representing a reasonable number ofyears purchase. In adopting the said multiplier, the court musthave regard to such personal circumstances of both the deceased andthe dependants as age, expectation of working life, expected lengthof dependency, and the vicissitudes of life. The capital sum soarrived at must be discounted to allow for lump sum payment and,where applicable, the chances of widow's remarriage, see HAYES VSPATEL (1961) E.A. 129 and BOR V  ONDVV  (1988-1992) 2 K.A.R. 288 for the above propositions of law.

Applying the above principles to the evidence and submissionson record, I take the following view of the matter. Under the LawReform Act, the estate of the deceased is entitled to a sum ofK.shs 70,000/- as conventional damages for loss of expectation oflife. There is no evidence that the deceased was conscious andexperienced pain from the moment of the accident to the moment ofdeath. An award for damages for pain and suffering before death istherefore unmerited. There is no point of entering into alaborious mathematical calculation of the damages for lost years asit is manifest that those prospective earnings of the deceased arethe fund from which an award for loss of dependency is to be madeunder the Fatal Accidents Act. Special damages in the sum of Kshs.51,618/- are well proved. Given that the amount the deceasedearned from his private tuition ought to have been declared for taxpurposes, I am not prepared to assume the position that all of itwas available for domestic and other family uses. I accordingthink that a multiplicand of Kshs. 17,000/- per month is morereasonable than the Kshs. 20,000/- urged for by plaintiff'scounsel. As regards a multiplier, I think that sixteen (16) isquite reasonable in all the circumstances of this case. Thecapital sum I arrive at is Kshs. 3,264,000/-. I will discount itby about one fifth (20%) to allow for lump sum payment. Thedamages I find as appropriate for loss of dependency is thus Kshs.2,612,000/-. Taking into account that I have refrained from makingan award for lost years under the Law Reform act, I am of the 15opinion that bearing in mind the apportionment of liability thefollowing awards can be made without injustice to either party:-

A.  LAW REFORM ACT, Cap. 26 LAWS OF KENYA

(i)  General damages for loses of expectation of life - Kshs.

28,000.00

(ii) Special damages - K.shs 20,648.00

B.  FATAL ACCIDENTS ACT, CAP. 32, LAWS OF KENYA

General damages for loss of dependency - Kshs. 1,044,800/-.

This award is to be apportioned as follows:-(i) Hellen Muhonja Maina - widow -          K.shs 522,400.00

(ii) Eric Steele Maina - Minor son -         K.shs 261,200.00

(iii) Catherine Wangari Maina - minor daughter - K.shs 261,200.00

Total      K.shs   1,044,800.00

I direct that each minor's share shall be invested in an interestearning account with the Housing Finance Company of Kenya Ltd inthe joint names of the Plaintiff and the Registrar of thishonourable court on terms that the Plaintiff may withdraw theperiodical interest for the maintenance and advancement of theminors and that the capital and interest remaining on the accountof each minor be released to them upon the attainment of eighteenyears, the same being the age of majority.

In the result there will be judgment for the plaintiff againstthe defendant in the sum of Kshs. 1,072,800/- as general damagesand Kshs. 20/648/- as special damages. The Plaintiff will alsohave interest on damages at the usual rates and the costs of the suit.

It is so decreed,

Dated and delivered at Nairobi this 15th day of May, 1995

A.G. RINGERA

JUDGE