Rutua v. Zambia Tanzania Road Services Ltd. & Anor. Civ. Cas. 7-D-1971; 28/2/72, Saidi, C. J.

 

Rutua v. Zambia Tanzania Road Services Ltd. & Anor. Civ. Cas. 7-D-1971; 28/2/72, Saidi, C. J.

The deceased was employed by the 1^st defendant as a driver and he died while on duty from injuries sustained from a motor accident. The 1^st defendant duly reported the accidental death to the Labour Office for the assessment or compensation. That office assessed the compensation for 8 dependants, i.e. the widow, 4 infant children, mother, father and brother of the deceased. Eight agreements were drawn up under section 15 of the Workmen’s Compensation Ordinance and were signed in Kenya by the dependants. An action was subsequently brought by the dependants under the Law Reform (Fatal Accidents & Miscellaneous Provisions) Ord., Cap. 360; the agreements were pleaded in defence.

It was argued on behalf of the plaintiffs that the agreement envisaged in section 15 of the former Ordinance must be one between the employer and a living workman and was not applicable where the workman died. A ruling was sought on this interpretation of section 15.

            Held: (1) “This argument does not carry much weight as the meaning of “workman” is extended to his legal personal representative in case he is dead as it is evidence by the provisions in section 2(3) of the Workmen’s Compensation Ordinance.” (2)”The real dispute that must be resolved is whether or not the agreements signed on behalf of the 4 infant children are valid and binding on these children. In Herman Kaar vs. Chamnion Motor Spares Ltd. and another 1971 E.A. 28 it was held by the Court of Appeal that (i) a binding agreement (under the Workmen’s Compensation Ordinance) can only be made when all the dependants of the deceased are sui juris and (iii) where there are minors compensation must be paid into court. Quite clearly the children could not be barred in this claim. It is a different case with the widow, mother, father and brother of the deceased. In Herman’s case the claim of the dependants’ children as well as that of the widow was allowed to go to trial although compensation had been paid under an agreement come to. I think in respect of all dependants with liberty to the defendants to set off what has already been paid as provided in section 24 (1)(d) of the Workmen’s Compensation Ordinance.”