Felicina Muthoni Wang’ondu v Moses Amadi & another [2016] eKLR

Key Facts

Deceased Name

Issues

• The court assessed the amount of damages to be awarded to the plaintiff for the loss of the deceased, including general damages for pain and suffering, loss of dependency, and special damages for expenses incurred, based on the deceased's income and dependents.
• The court needed to determine if the plaintiff successfully proved liability against both defendants, particularly whether the 1st defendant was the beneficial owner and the 2nd defendant was the registered owner of the accident motor vehicle KAN 039L at the time of the accident on 5th January 2007.
• The court considered whether the plaintiff or the defendants should bear the costs of the suit, taking into account the plaintiff's reliance on her counsel's advice and the 2nd defendant's successful defense despite being a clergyman.

Date of Death

Holdings

• The 2nd defendant, John Makomere Masinde, was wrongly joined to the proceedings and the claim against him is dismissed. The court found that he was not the owner of the accident motor vehicle at the time of the incident and had no liability for the driver's negligence.
• The 1st defendant, Moses Amadi, is held vicariously liable for the negligent acts of his driver, agent, and servant. The court determined he was the beneficial and actual owner of the accident motor vehicle at the time of the incident.
• The 2nd defendant is ordered to bear his own costs of the suit despite being a successful party. The court emphasized his status as a clergy member and the need to promote forgiveness and reconciliation.

Remedies

• The court ordered that the dependency damages must be apportioned among the dependants under the supervision of the court before payment.
• The court found the 1st defendant Moses Amadi to be the beneficial owner and actual owner of the accident motor vehicle, holding him 100% vicariously liable for the driver's negligence.
• The court ruled that the 2nd defendant, Bishop John Makomere Masinde, must bear his own costs of the suit despite successfully defending it, in the spirit of forgiveness and reconciliation.
• The plaintiff was awarded a total of Kshs 3,643,300 in damages, including Kshs 3,560,000 in general damages (dependency, pain and suffering, loss of expectation of life) and Kshs 83,300 in special damages (funeral expenses, legal fees, etc.).
• The court dismissed the plaintiff's suit against the 2nd defendant John Makomere Masinde, finding him not liable and ordering him to bear his own costs.

Monetary Damages

Probate Status

Legal Principles

• The court relied on the presumption that the owner of a vehicle is responsible for the driver's negligence unless proven otherwise, based on the police abstract and traffic court conviction.
• The court ruled that unstamped documents could still be admitted in evidence if no objection is raised, as per the Stamp Duty Act, and the plaintiff's objection was deemed prejudicial.
• The plaintiff had the burden to prove that the second defendant was the actual owner of the vehicle, which was not met as evidence showed the first defendant was the beneficial owner.
• The court applied the standard of proof on a balance of probabilities to determine the ownership and liability of the defendants.
• The court held the first defendant vicariously liable for the driver's negligence, as the driver was in the course of his employment with the defendant when the accident occurred.

Succession Regime

Precedent Name

• Morgan V Launchbuy
• Joel Mugo Apila V East African Sea Food Limited
• Lukungu V Lubia
• Nancy Ayemba Ngara V Abdi Ali
• Securicor Kenya Ltd V Kyumba Holdings Ltd
• Osapil V Kaddy
• Pritoo V West Nile District Administration
• Bishop Henry Paltride vs. James Mugo Mbuthu & Another
• Joseph Wango Kamau V German Agro Action
• Karisa V Solank
• Osumo Apima Nyaundi vs. Charles Isaboke Onyancha Kibondori & 3 Others

Executor Name

Cited Statute

• Sale of Goods Act
• Traffic Act
• Stamp Duty Act
• Fatal Accidents Act
• Evidence Act
• Law Reform Act

Executor Appointment

Judge Name

Passage Text

• Total general damages; shs 3,560,000; Special Damages: Ksh83,300.00. total damages awarded=3,643,300
• Although the traffic case subject of this case was not one of negligence... owner thereof having admitted the offence as charged, this court does not find any merit in the plaintiff's insistence that the 2nd defendant is jointly liable with the 1st defendant.
• It is now trite law that motor vehicles which are well driven... driver thereof was 100% liable for the accident. There is evidence from the traffic court proceedings that the driver in question drove the said motor vehicle as the employee of the defendant...

Beneficiary Classes

• Spouse / Civil Partner
• Child / Issue