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Sarova Whitesands to pay Sh2.4m to family of child who drowned

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A birthday party at the Sarova Whitesands Beach Resort and Spa in 2018 that turned tragic when a nine-year-old boy died will cost the hotel Sh2 million.

The boy was swimming with several other children when he got submerged.

He was rescued and rushed to a hospital in Nyali in critical condition but he died while being resuscitated.

His parents then sued the hotel, accusing its employees of failing to watch over the children.

In court documents, WMT and LCM accused the hotel of negligence.

“The defendant’s employees allowed the deceased to swim in a pool within its premises but owing to their negligence or poor supervision, the minor drowned, leading to its death,” they said.

The family asked to be compensated for the loss of their child.

They asked for more than Sh1.3 million, including expenses for the post-mortem, a coffin, transport and funeral.

In its response, the hotel denied that its employees were negligent and said the boy’s death was wholly or substantially caused by the complainant’s own negligence.

During the hearing of the case, the parties recorded a consent on liability in the ratio of 10:90 in favour of the complainants.

Mombasa Principal Magistrate Charles Ndegwa awarded Sh1.9 million in compensation, broken down into Sh1.5 million as damages for lost years, Sh200,000 for pain and suffering and another Sh200,000 for loss and expectation for life.

He also awarded the family Sh396,000 as special damages for a fee for obtaining a limited grant of letters of administration, the cost of buying a coffin, the pathologist’s fees for conducting the postmortem and medical expenses.

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But the magistrate declined to award special damages for transport and other funeral expenses for lack of documentary evidence to prove that the family had used the Sh520,000 they were claiming.

The family had said that they used Sh300,000 on food during the mourning period and another Sh98,000 for digging and preparing the grave.

When the magistrate declined to award these damages, the family was aggrieved and moved to the High Court.

In the appeal filed before Justice Dorah Chepkwony, the family said the magistrate had failed to award them the money despite the evidence they tabled before him.

They asked the judge to allow their appeal by setting aside the magistrate’s judgment that dismissed their claim for transport and funeral expenses, grave digging and food.

But the hotel opposed the appeal, arguing that special damages should not only be specifically pleaded but also specifically proven.

Its lawyer argued that the funeral expenses claimed were too high.

Justice Chepkwony agreed, noting that funeral expenses should be reasonable and limited to the ceremony, but not other engagements family members opt to conduct.

“Although the appellant pleaded the expenses in amounts which were subject to this appeal, I will award the sum of Sh150,000, which in my view is reasonable to compensate the family for funeral expenses in burying a nine-year-old boy,” the judge said.

Justice Chepkwony awarded the money on the basis that the family and their relatives must have spent money to bury their child and should be reasonably compensated.

BY nationmedia.com

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