Samuel Ngure Gathii v Josephine Wanjiru Mbugua [1998] KECA 125 (KLR)
The bottom line
#Kenya's Court of Appeal cut a fatal accident award because the widow sued before getting letters of administration, but kept full liability on the driver.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the fact of the appellant's conviction for causing death by dangerous driving, in the absence of evidence from the appellant, justified a finding of 100% liability
- 2.Whether damages could be awarded under the Law Reform Act where the respondent had not obtained letters of administration at the time of instituting the suit
- 3.Whether the multiplier of 12 years and multiplicand of shs.3,000 per month adopted by the learned judge warranted interference
Key legal issues
#Effect of a criminal conviction for causing death by dangerous driving on civil liability where the defendant gives no evidence
The conviction under section 46 of the Traffic Act, read with section 47A of the Evidence Act, is conclusive evidence of guilt; where contributory negligence is pleaded but the defendant calls no evidence, the court cannot assess relative blameworthiness and a finding of 100% liability is not erroneous
Section 47A of the Evidence Act renders a final judgment of a competent court in criminal proceedings conclusive evidence of guilt after the appeal period. The trial judge had evidence of dangerous driving via the conviction. Since the appellant pleaded contributory negligence but adduced no evidence of the deceased's contribution, the onus was not discharged and the judge correctly concluded the appellant was 100% to blame.
Competence of a Law Reform Act claim filed before grant of letters of administration
Such a claim is incompetent at inception; later-obtained letters do not validate it, and the award under that head must be set aside
Relying on Troustik Union International v Mbeya and Otieno v Ougo, the court held that an administrator cannot sue as such before obtaining letters of administration. The doctrine of relation back applicable to wills does not extend to intestacy, so letters taken out after filing cannot cure the defect. The trial judge erred in holding Hintz v Mwakima applied and that Troustik did not apply retrospectively; Troustik did not alter the law but put it right.
Assessment of damages under the Fatal Accidents Act - multiplier and multiplicand
A multiplier of 12 years for a healthy 43-year-old teacher who would retire at 55 was not excessive, and the multiplicand of shs.3,000 per month was conceded reasonable; no interference warranted
The appellant argued imponderables such as post-retirement private teaching were ignored, but there was no evidence the deceased would not have worked past 55. The multiplicand was conceded by appellant's counsel. The court therefore declined to disturb the Fatal Accidents Act award.
Legal principles established
#- A defendant who pleads contributory negligence must call evidence to prove it; if he calls no evidence, the court cannot determine relative blameworthiness and the plea fails
- An action under the Law Reform Act brought before letters of administration are obtained is incompetent at inception, and letters taken out later do not cure the defect; the doctrine of relation back does not apply to intestacy
Court orders
#- 1.The award of shs.80,000 under the Law Reform Act is set aside in its entirety
- 2.Judgment for the respondent against the appellant in the sum of shs.460,500 (general damages shs.432,000 and special damages shs.28,500)
- 3.Interest at 12% per annum on shs.28,500 from 15th September 1989 until payment in full
- 4.Interest at 12% per annum on shs.432,000 from 27th June 1996 until payment in full
- 5.The appellant is awarded 1/5th of the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 4173 of 1989
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (judgment and decree of the High Court)
Relief refused
#Interference with the multiplier of 12 years
The multiplier was not so high as to merit interference; there was no evidence the deceased would not have worked past retirement age
Interference with the multiplicand of shs.3,000 per month
Counsel for the appellant conceded it was reasonable in the circumstances of the deceased
Costs
The appellant will have 1/5th of the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If the defendant calls no evidence then he has not discharged the onus on him of proving the contributory negligence pleaded by him.
47A. A final judgment of a competent Court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, to be taken as conclusive evidence that the person so convicted was guilty of that offence as charged
The letters of administration were taken out after the institution of the proceedings. Such letters do not validate a claim filed earlier. The doctrine of relation back, as applies in the case of a will, does not apply to intestacy.
The upshot of all this is that this appeal is allowed only to the extent that the award of shs.80,000/= made under the Law Reform Act is set aside and there will be judgment for the respondent against the appellant in the sum of shs.460,500/= as follows
Issues in the judgment
#The judgment text contains typographical corruption in places (e.g. 'appelAlta ntt.h e trial' and 'driveSre cdtoieosn 4o7tA goifv et heev iEdveidnecnce?'), though the intended text is recoverable from context
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ngure Gathii v Josephine Wanjiru Mbugua [1998] KECA 125 (KLR)", Case Analysis (1998). Civil Appeal No. 292 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/125/eng@1998-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.