|Civil Case 120 of 2007
|ASMIN NANJALA USOLO WAWIRE & HUMPHREY NAKHWELI USOLO v DAVID SITIENEI & SWAN CARRIER LTD
|08 Apr 2011
|High Court at Kitale
|Martha Karambu Koome
|ASMIN NANJALA USOLO WAWIRE & Another v DAVID SITIENEI & Another  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
1. The plaintiffs filed this suit against the defendants in their capacity as the legal representatives of the estate of the late William Usolo Wawire. On 14th July, 2010, both counsel for the plaintiffs and the defendants filed the following consent order By Consent
2. Judgment entered into this suit on liability to apply in Kitale HCCC No. “R” 2 of 2007.
4. The plaintiffs application dated 27/4/2010 be withdrawn with no orders as to cost.”
3. As at the time the deceased met his untimely death, he was enjoying good health, her was employed as town clerk with the Municipal Council of Kitale earning Ksh. 50,551/= per month. He was also doing farming to support his family thus his estate has suffered loss. The deceased could have been promoted in his career but due to the fatal accident his expectations of life was considerably reduced and his estate suffered loss. The plaintiff also sought for special damages named up as follows:-
4. Evidence was also read by Alfred Wamalwa Natif, an accounts clerk who told the court that he audited and compiled all the expenses incurred during the funeral. Several receipts were produced for all the services that were procured namely the coffin, food items and other miscellaneous expenses amounting to Ksh. 2,226,814/=. Both counsel for the plaintiffs and the defendants filed written submissions. According to the plaintiff, the court should order the plaintiff be paid Ksh. 200,000/= for pain and suffering. This is as it was held in a similar case Mombasa HCCC No. 324/2002 JENNIFER ODHIAMBO OLOO & HELLEN AWINO ODONGO VS. ELIZABETH MBUKA & BROLLA ADONJO AT PAGE 40. Under the heading of general damages of loss of life, counsels suggested that the deceased should be awarded a multiplier of 11 years considering that he was 49 years as at the time of the accident and he would have worked upto the mandatory retirement age of 60 years. Counsel relied on the case of RABECCA SAVETHI MWANGI VS. EASTERN BUS SERVICES LTD. & CHRISTOPHER NGARA KAUKO. – NRB HCCC NO. 2750/1998. In that case the court awarded a multiplier of 19 years for a deceased who died at the age of 39 years. As regards special damages, counsel submitted that the accounts were reconciled by PW2 and the same were also worked out with Ben Mulwa from Kenidia Assurance Co. Ltd. Thus the plaintiff should be awarded the entire claim.
5. On the parts of the defendant, counsel submitted that the deceased was aged 49 years and the estate should be awarded a sum of Ksh. 100,000/= for loss of life since the deceased died at the age of 49 the court should use a multiplier of 5 years. This was as it was held in the authority of Dainty Vs Haji & Another (2005) 1E.A. 48 where a multiplier of 10 years was applied for a deceased who was aged 27 years. As regards the income of the deceased, counsel submitted that a multiplacant of Ksh. 40,554 be applied based on the deceased net income per month and to apply a dependency ratio of 2/3. For this preposition, the counsel cited the case of Davies & Another vs. Powell Daffyn Associated Calories Ltd. 1942 All E.R. 657 which was cited with approval by the Court of Appeal in Maina Kamau & Another vs. Josephat Wangondu & Another C.A. No. 148 of 1989.
6. As regards special damages, counsel submitted that special damages must not only be pleaded but proved specifically. Counsel pointed out that no receipts were produced to support the travel expenses of Ksh. 547,000/= and also the food expenses of Ksh. 503,500/=. Similarly, no receipts were produced to support publications and advertisements. Similarly, the miscellaneous expenses of Ksh. 60,000/= is not supported.
On the issue of quantum, the deceased was aged 49 years, his payslip was produced in evidence. He was earning a gross salary of Ksh. 50,551/= and a net pay of Ksh. 40,551/=. It is also not disputed that he was supporting his large family consisting his widow and seven children. It is reasonable to consider that the deceased could have used his 2/3 of his salary to support his large family. There is no doubt the plaintiff and her children lost the assistance they used to receive from the deceased. It was held in the case of; Sheikh Mushtaq Hassan vs. Nathan Mwangi Kamau Transporters & Another 1982-88 Vol. KAR The Court of Appeal held as follows:-
8. Judgment is hereby entered for the plaintiffs as follows:-