Case ID:165424

Emmanuel Wawole Mochawa v Harun Kariuki Kamande [2020] eKLR

Case Metadata

Case Number:

Civil Suit 14 of 2017

Parties:

Emmanuel Wawole Mochawa (Suing as the Legal Administrator of the Estate of Victor Eldaima Mochawa v Harun Kariuki Kamande

Date Delivered:

15 Oct 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Judgment

Judge(s):

Dorah O. Chepkwony

Citation:

Emmanuel Wawole Mochawa v Harun Kariuki Kamande [2020] eKLR

Court Division:

Civil

County:

Mombasa

Disclaimer:

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 14 OF 2017

EMMANUEL WAWOLE MOCHAWA

(

Suing as the Legal Administrator of the Estate of

VICTOR

ELDAIMA MOCHAWA...................................................................

....PLAINTIFF

VERSUS

HARUN KARIUKI KAMANDE...................................................................DEFENDANT

JUDGMENT

1. By his

Plaint

dated the

27

th

March 2014

, the Plaintiff on behalf of the estate of the deceased pleads that on or about

22

nd

March 2013

, the deceased was a lawful passenger in the Defendant Motor Vehicle Registration Number

KBR 841J Toyota Probox (subject motor vehicle)

along

Mwingi – Garissa Road

at

Yakari

Area when the Defendant, his authorized driver, servant, agent and/or employee so carelessly drove and/or managed the subject motor vehicle causing the same to have an accident whereof the deceased sustained fatal injuries for which the Defendant is liable for loss and damages suffered by the estate and family of the deceased and the Plaintiff.

2. The particulars of negligence that were alleged against the second Defendant were:-

a) Driving at a very excessive speed without regard to the nature of the road and available traffic.

b) Failing to exercise due care and skills in managing and/or controlling the Motor vehicle.

c) Driving without due care and attention thereby causing the accident.

d) Failing to apply brakes in sufficient time or at all to avoid the accident.

e) Failing to steer in a clear and proper cause.

3. On those pleaded facts, the Plaintiff sought the following orders:

a) General damages under Law Reform Act and Fatal Accident Act.

b) Special damages of Kshs.461,890/=

c) Costs.

d) Interest on (a) and (c)

The Evidence adduced at Trial

4. Two witnesses testified in support of the Plaintiff’s case

Emmanuel Mochawa Wawole

, the deceased’s father, testified as

PW1

and

PC

Daniel Mulinya

testified as

PW2

. For the defence, although a

Statement of Defence

was filed, no witness was called to prove that Defence.

5.

PW1

testified and stated that on

25

th

January 1.2013

, he was informed via a phone call, that his son had been involved in a fatal accident while being a passenger in the subject motor vehicle at

Bangal

on

Garissa Road

. The body of the deceased was preserved at

Garissa Hospital

and later at

Taveta Hospital Mortuary

while funeral arrangements were being undertaken.

PW1

further states that he incurred all the expenses for transportation, preservation, feeding of the mourners and incurred legal fees expenses in filing the instant suit.

6. It was

PW1’s

testimony that at the time of his demise, his son was aged

29 years

, and had worked for

six years

after leaving the

Kenya Medical Training College

, so that he had a promising career as a

Dental Technologist

since he ran a Dispensary from which he earned a monthly income of

Kshs.100,000/=.

PW1

also stated that his son had a

son

aged

7 years

at the time of his demise and the deceased family was his dependents.

7. It is

PW1’s

testimony that he was issued with a

Police Abstract

from the Police with regard to the said accident and upon conducting an

Official Search

of the subject motor vehicle, he established that the same belonged to the Defendant. He asked this Court for compensation for the loss of his son and the expenses incurred for funeral and Advocate fees and costs.

8. On cross-examination by

Ms. Kwaya,

PW1

was referred to the

Limited Grant

Ad Coligenda

, and he confirmed that it was indicated as

Ad Colligenda

. He further confirmed that although he did not provide a

Certificate of Registration

, the deceased had opened his own

Private Practice Clinic

and he had a book-in, which he used to record his daily collections. However, the said book was not produced in evidence.

PW1

also confirmed that he was not aware whether his son died on the spot or in the hospital.

9. In re-examination,

PW1

stated that he did not know what

Ad Colligenda

meant and that it is his Advocate who applied for the cases and the Court processed and issued the same.

10.

PW2

testified and stated that the accident occurred on

25

th

January, 2013

as evidenced in the Police File, and Police Abstract.

PW2

stated that the accident was fatal and the Investigation Officer recommended that the matter be referred to the Insurance for compensation since the driver of the subject motor vehicle had agreed to take full responsibility for the accident.

11. On cross-examination,

PW2

stated that he was not the Investigating Officer and he had nothing in writing to indicate that the Defendant driver agreed to take full responsibility for the accident.

PW2

further confirmed that the Defendant driver was never charged and that in the driver’s statement it was indicated that the deceased never wore a seatbelt.

12. In re-examination

, PW2

stated that charges are only brought when the drivers do not admit responsibility and in this case, the driver admitted responsibility because the vehicle was comprehensively insured.

The Parties’ Submissions in Support of their Respective Cases

13. The parties filed written submissions in support of their respective positions. The Plaintiff’s submissions were filed on

14

th

October, 2019

, while the Defendant’s submissions were filed on

25

th

November, 2019

.

14.

Ms. Momanyi,

Learned Counsel for the Plaintiff, submitted that the deceased was a passenger in the subject motor vehicles, and there is no evidence that was tendered by the defence to show that the deceased acted or failed to act in any way pointing to contributory negligence on his part. Therefore, the driver to the subject motor vehicle is solely to blame for the accident that led to the demise of the deceased.

15. On the issue of quantum, Counsel submitted that although the deceased was not married, he was survived by a child and his parents, and since he was in his own Private Practice, he would have worked and retired at

70 years

. Counsel therefore submitted that a

multiplier of

41 years

on the basis of

2

/

3

expenditure to his dependents over his monthly income of

Kshs.100,000/=

would suffice.

16.

Ms. Mwangi,

the Learned Counsel for the Defendant submitted that the proper grant for instituting the present suit would have been a grant

Ad Litem

. Therefore, this suit ought to be dismissed for being instituted through a

Limited Grant Ad Colligenda

.

17. Counsel further submitted that the Plaintiff failed to prove his case against the Defendant as pleaded in the

Plaint

, reason being that no eye witness was availed to give evidence on the circumstance surrounding the accident. Also, it was submitted that the Police had nothing to prove that the Defendant driver admitted to being

100%

liable for the accident and that charges were never preferred against the Defendant driver.

18. On the issue of quantum, Counsel submitted that the Plaintiff was required to prove the deceased earning and that since the deceased worked in the volatile part of the country, a

multiplier of 10 years

. would be reasonable in the circumstances.

19. On the ratio of dependency, Counsel submitted that the ratio of

1

/

3

ought to be adopted by this Court since the deceased was unmarried and his parents are of an advanced age.

Determination

20. At the onset, it s worth noting that even though a

Statement of Defence

was filed on behalf of the Defendant, no witness was called on his behalf. Therefore, no evidence was adduced in support of the Defence case. The Defence on record remained as a mere allegation. This is the position in law and was restated in the Court of Appeal case of

Edward Muriga through Stanley Muriga V Nathaniel D.

Schulter Civil Appeal No.23 of 1997,

where the Court stated as follows:

“In this matter; apart from filing its statement of defence the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1

st

Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

21. Similarly, in the case of

Chrispine Otieno Caleb…Vs…

Attorney General (2014)eKLR,

where Justice G.V Odunga held that:

“Again in the case of Trust Bank Limited –vs- & 2 others Nairobi (Milimani) H.C.C.C. No. 1243 of 2001 the learned Judge citing the same decision stated that it is trite 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 by the Plaintiff against them is unconverted...”

22. This Court has carefully considered Plaintiff’s pleadings, evidence, and submissions for both parties. The Court has also considered the relevant law and jurisprudence on the key issues falling for determination. The

key issues that have emerged for determination are namely:

a) Whether the Limited Grant of Letters of Administration

Ad Colligenda Bona empowered the Plaintiff to institute the present suit;

b) Whether the Defendant is to blame for the accident;

c) What damages are awardable?

a)

Whether the Limited Grant of Letters of Administration Ad Colligenda Bona empowered the Plaintiff to institute the present suit?

23. This court proposes to start with this issue because it has the potential to summarily dispose of this suit in that if the

letters of administration

ad colligenda bona

did not give the Plaintiff the power to institute the instant suit, then he does not have locus and his suit will be struck out without need for delving into the merits. However, if the court finds that the grant gives him the requisite locus, his suit will be determined on the merits.

24. A

Limited Grant

, as the name suggests, is limited to a specific purpose in relation to the estate of a deceased person. The basis of a Limited Grant is found in

Section 54

of the

Law of Succession Act

, which states that:-

“A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.'

25. The grant

ad colligenda bona

is provided for under

Section 67

of the

Law of Succession Act

and

Rule 36

of the

Probate and Administration Rules.

The Latin verb

“

colligere

”

means to

collect

, bring together or assemble. As such, this form of grant is usually issued to collect the property of a deceased person where it is of a perishable nature, and where a regular Probate or Administration cannot be granted at once. The Court of Appeal in the case of

Morjaria…Vs…Abdalla [1984] KLR 490,

inter alia held:

i. The purpose of a Grant of Letters of Administration Ad Colligenda bona is to collect the property of the deceased person where it is of a perishable or precarious nature and where regular probate and administration cannot be granted at once.

ii. The appointment of a person as an administrator Ad Colligenda Bona in respect of the estate of a deceased person cannot include the right to take the place of the deceased for the purpose of instituting an action or appeal, especially where there is specific provision for that purpose in paragraph 14 of the Fifth Schedule to the Law of Succession Act.

26. This Court has had an opportunity to go through the

Limited Grant

of

Letters of Administration

ad colligenda bona

obtained by the Plaintiff in this matter. It is noteworthy that, on the face of the said Grant it is indicated as follows:

‘…

limited to the purpose only of collecting and getting in and receiving the estate and doing such acts as may be necessary for the preservation of the estate, until further representation were granted by this Court.

’

27. This Court finds that instituting a suit is not one of the special purposes indicated on the said Grant. Consequently, this Court finds and holds that the said Grant was specifically limited to collection and preservation of the deceased estate until further representation was granted. Their Lordships in the

Morjaria…Vs…Abdalla

case

[supra]

at

page 497

stated as follows:-

“However, we do not think that the appointment of a person “Ad Colligenda bona” can possibly include the right to stand in the shoes of the deceased for the purpose of instituting an action, or, indeed, an appeal, especially where there is a specific provision, paragraph 14 of the fifth schedule, designed for this purpose. The Latin verb “Colligere” means to collect, bring together or assemble, and we are satisfied that this form of grant is only to be used for the purpose we have indicated and not for purpose of representation in a suit or in an Appeal.”

28. For purposes of instituting the suit, the Plaintiff required to have obtained an

Ad Litem Grant

under

paragraph 14

of the

Fifth

Schedule

before commencement of a suit. The Plaintiff was not a Legal Representative of the estate of the deceased, having obtained a

Limited Grant of Letters of Administration

Ad Colligenda Bona

.

Such a Grant is only useful for collecting, getting in, and receiving the estate of the deceased that may require preservation from waste. The grant did not entitle the Plaintiff to file suit as a legal representative of the estate of the deceased.

29. Therefore, in the premises, this Court finds and holds that the Plaintiff lacked the capacity and/or locus to institute the present suit. Where a party has no

locus standi,

the Court cannot hear him/her and cannot grant any reliefs in his/her favour as the suit would virtually be

null

and

void abinitio

for want of a competent party. In the case of

Alfred Njau & Others…Vs…City Council of Nairobi [1982-88]1KAR 229,

the Court stated:-

“…to say a person has no cause of action is not necessarily tantamount to shuttling the person out of the Court but to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth of listening to.”

30. Although the finding on whether or not the Plaintiff had the

locus standi

to institute the instant suit should have been sufficient to dispose of the suit. This Court will nonetheless consider the other issues just in case it could be wrong in its holding on the issue of

locus standi

.

b)

Whether the Defendant was negligent

29. I will proceed to deal with the issue of liability. It is trite law that

‘he who alleges must prove’

. Under

Section 107

of the

Evidence Act,

it is provided that:-

“1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

30. In this case, the Plaintiffs gave evidence, which was not controverted. Although they were not eyewitnesses, nevertheless

PW1

ad

PW2

availed documentary evidence seeking to prove their claims. At

paragraph 9

of the

Plaint

, they also relied on the

doctrine of

“Res ipsa loquitor”

by stating that:-

“The Plaintiffs shall also rely on the principals of Res ipsa loquitor so far as it is applicable to this case.”

31.

PW1

testified that the deceased was killed in an accident. He produced a

Police Abstract

-

Exhibit 3,

which is dated

22

nd

March, 2013

and shows as follows: the accident involved

Victor Elidaima Mochawa

; it occurred on

25

th

January,2013

; it involved vehicle registration

No KBR 841J

,

Toyota Probox

, owned by

Harun Kariuki Kamande

; under persons injured, the name of the deceased is indicated and the nature of injury is indicated as fatal; in addition, the case was stated to have been referred to Insurance for compensation, although it was not indicated whether any person was to be charged.

32. From this exhibit, the following can be ascertained, subject to contrary evidence: the occurrence of the accident, the identities of the persons and vehicle involved, the dates of the accident, and the nature of the injury as a fatality.

PW1

also produced

Exhibit 5

, which was the

Death Certificate

of the deceased. It indicates the

date of death

as

25

th

January, 2013

and the

cause of death

as

“head injury due to

Road Traffic Accident)”.

Doctrine of Res ipsa loquiter

33. This doctrine, translated directly, means

the thing speaks for itself

. Under the common law of negligence, the

res

ipsa loquitur

doctrine indicates that a breach of a party's duty of care may be inferred or presumed from the events that occurred. In other words, the negligence is so obvious that you can tell that someone had a negligent hand in what happened. It is true that in the present case, there was no eyewitness of the accident. The

Police Abstract

however, shows that motor vehicle registration number

KBR 841J

owned by the Defendant was involved in a fatal accident with the deceased. In the pleadings, the Plaintiffs assert that the vehicle was owned and or negligently driven by the Defendant.

34. On the other hand, other than the Defendant’s blanket denials in their defence, the only other evidence to be relied upon is that of the Plaintiff. It does not prove the negligent acts asserted. However, it can be inferred from the

Police Abstract

and under the

doctrine of

res ipsa loquitor

that the Defendants’ vehicle was responsible for the deceased’s death. He did not die on account of anything but the accident. The Certificate of Death even contains such an assertion. In the absence of any other explanation, or evidence rebutting the same, the above doctrine does apply.

35. In other words, if one is responsible for or controls something, such as a property or vehicle that person is responsible for providing a reasonable amount of care to make sure that the vehicle or property is safe. When an accident happens, the question is whether the property owner breached his duty of care. However, with

res ipsa loquitur

, the breach is so apparent that there is a presumption of the breach of duty and the Plaintiff does not need to provide extensive evidence, if any, of the breach. Thus, the negligence speaks for itself.

36. In the case of

Nandwa…Vs…Kenya Kazi Limited [1988] eKLR,

the Court of Appeal (Gachuhi J. A. as he then was) cited a portion of the Judgment in the English case of

Barkway …Vs… South Wales Transport Company Limited [19560] 1 ALLER 392 at

Page 393 B

on the nature and application of the

doctrine of

res ipsa loquitur

as follows:-

“The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but,

although it was the duty of the Respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.”

37. In the upshot, this Court finds that the Plaintiff proved his case on balance of probabilities, and the Defendant is

100%

liable for the accident that resulted into the demise of the deceased.

c)

What damages are awardable

?

Damages under the Law Reform Act

i. Pain and Suffering

38. According to the

Death Certificate

, the deceased died on

25

th

January, 2013

after sustaining serious injury after the accident occurred. Under this head, this Court would have awarded

Kshs.10,000/=

for pain and suffering.

ii. Loss of expectation of life

39. The deceased passed away at the age of

29 years

. Surely, he had his

whole life ahead of him. There are cases where people who died at

40

years

or more were awarded

Kshs.150,000

onwards. For example see

the case of

Violet Jeptum Rahedi…Vs…Albert Kubai Mbogori [2013]eKLR.

Under this head,

Kshs.200,000/=

is appropriate.

Damages under the Fatal Accidents Act

i. Loss of dependency

40. It was the PW1’s evidence that his son was a

Dental Technologist

who was running his own clinic in Garissa.

PW1

produced a

Diploma Certificate in Dental Technology

belonging to the deceased. It was further submitted that the deceased earned roughly between

Kshs.80,000/= to Kshs.150,000/=

from his clinic and banking slips showing various deposits into the deceased account were produced. Although no books of accounts or tax returns were tendered to give a fair view of the deceased's earnings, this Court cannot shut its eyes to the evidence tendered in court

(PEX 8)

which showed that in the month of

November, 2012

alone, the deceased deposited

Kshs.51,570/=

by

eight deposits

. In

December 2012

, he made

six deposits

of

Kshs.68,000/=

respectively. Certainly, that evidence cannot help this court ascertain what the deceased's income was. The court also takes note of the fact that in some of these one-man small businesses, people ordinarily do not keep books of accounts. A useful guide on application on the multiplier approach was given by Ringera, J. in the case of

Mwanzia..Vs…Ngalali Mutua & Kenya Bus Services (Msa) Ltd & Another,

which was quoted with approval in the case of

Albert Odawa…Vs… Gichimu Gichenji, NKU HCCA No.15 of 2003 [2007] eKLR.

The learned judge noted as follows:

“

The multiplier approach is just a method of assessing damages. It is not a principle of law or a dogma. It can, and must be abandoned, where the facts do not facilitate its application. It is plain that it is a useful and practical method where factors such as the age of the deceased, the amount of annual or monthly dependency, and the expected length of the dependency are known or are knowable without undue speculation where that is not possible, to insist on the multiplier approach would be to sacrifice justice on the altar of methodology, something a Court of Justice should never do.”

41. In the absence of evidence of clear earnings, it then follows that this is a proper case for making a global award. See for example in the cases of

Mary Khayesi Awalo & Another…Vs…Mwilu Malungu & Another, ELD HCCC No.19 of 1997 [1999] eKLR

and

Moses Mairua Muchiri…Vs…Cyrus Maina Macharia (Suing as the Personal Representative of the Estate of Mercy Nzula Maina(deceased) [2016]eKLR.

42

.

Under this head, this Court would have awarded a global award of

Kshs.2,500,000/=

which is fair and appropriate. This award takes into account the age of the deceased at the time of his death and the fact that he was not married but had one child.

ii. Special damages

43.

PW1

testified that his son died in Garissa and the body was preserved at

Garissa Hospital

for two days before being transported to

Taita Taveta Hospital Mortuary

as funeral arrangement were being made and he was buried in

Taita Taveta

.

PW1

produced a bundle of receipts totaling

Kshs.433,000

/=. I have perused the receipts and they include, among others, payments to funeral transport services, and payments incurred in the ordinary course of making funeral arrangements. This Court is satisfied that the Plaintiff specifically proved his claim for special damages and so this Court would have awarded him the

Kshs.261,450/=

specifically claimed.

Conclusion and Final Orders

44. From the above analysis and having found that the Plaintiff lacked the

locus standi

in the suit, this suit is hereby struck out with direction that the Plaintiff be and is at liberty to file a fresh suit after obtaining a

Limited Grant Ad Litem

.

It is so ordered.

DATED

and

SIGNED

at

MOMBASA

on this

5

th

day of

October, 2020.

D. O. CHEPKWONY

JUDGE

DELIVERED

at

MOMBASA

this

15

th

day of

October, 2020

P. J. OTIENO

JUDGE

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Judgment has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules, which requires that all Judgments and rulings be pronounced in open Court.