[2019] KEHC 6096 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL APPEAL NO. 113 OF 2018

ALEX WANJALA...........................................................APPELLANT

VERSUS

PWANI OIL PRODUCTS LIMITED.................1ST RESPONDENT

DUNCAN GICHINI.............................................2ND RESPONDENT

(from the judgment and decree of T. K. Kwambai, RM, in Butali SPMC

Civil Case No.134 of 2017 dated 16/8/2018)

JUDGMENT

1. The appellant had sued the respondents at the lower court seeking compensation in general and special damages after the motorcycle the appellant was riding on as a pillion passenger was involved in an accident with a motor vehicle belonging to the 1st respondent and which at the time of the accident was being driven by the 2nd respondent. The appellant blamed the 2nd respondent for negligently driving his motor vehicle as a result of which he rammed into the motorcycle the appellant was riding on thereby occasioning the appellant injuries. The respondent had denied the claim. After a full trial the trial magistrate found that the appellant had failed to prove the case against the respondents and accordingly dismissed the suit with costs. The appellant was aggrieved by the decision and filed the instant appeal.

2. The court has considered the issue of liability in this appeal in Kakamega High Court Civil Appeal No. 114 of 2018 which was an appeal by the rider of the motorcycle the pillion passenger herein was riding on. The reasons for the court’s judgment are given therein. I need not repeat them here. In that appeal I have held that the learned trial magistrate erred in dismissing the suit against the appellant therein. I accordingly found that the 2nd appellant herein was the one at fault in occasioning the accident. I assessed his liability at 90%. I found the rider of the motorcycle to have contributed to the accident and assessed his contributory negligence at 10%.

3. In this appeal the appellant was a pillion passenger. He was not the one riding the motorcycle. He was not in any way to blame for occasioning the accident. He did not contribute to the occurrence of the accident. Liability is thereby entered at 100% against the respondents.

Quantum –

4. The appellant’s evidence was that he was injured on the head, right hand and right leg. That he lost consciousness on impact and later found himself at Moi Teaching and Referral Hospital. He was told that he had been treated at Webuye District Hospital. Later on he was examined by Dr. Andai who prepared a medical report for him. According to the report the appellant had sustained -

- Closed head injury leading to loss of consciousness for several weeks

- Closed fracture of the right humerus

- Closed fracture of the right femur

5. The report noted that the appellant was admitted at Moi Teaching and Referral Hospital Eldoret from 13/2/2016 to 17/3/2016. At the time of examination by Dr. Andai, the doctor noted that the right humerus fracture had healed with some form of malunion which needed to be corrected surgically. That the sign nail used on internal fixation of the right femoral fracture was supposed to be removed after one and a half years from the date of the report.

6. The advocates for the appellant, M/s Mukisu & Co. Advocates, had submitted at the lower court that an award of Ksh. 1,000,000/= was adequate compensation for the injuries. They cited the case of Charles Mwania & Another –Vs- Batty Hassan (2008) eKLR where an award of Ksh. 800,000/= was made for bruise on the forehead, wound on the right thumb and left wrist joint, wound on the second right finger, fracture of the right tibia and fibula and wounds below the right knees and on the lateral aspect of the right ankle joint.

7. The advocates for the respondent Onyinkwa & Co. Advocates, had at the lower court submitted that Ksh. 400,000/= would have been adequate compensation. They relied on the case of Paul N. Njoroge –Vs- Abdul Sabuni Sabonyo (2015) eKLRwhere the Court of Appeal re-assessed general damages at Ksh. 500,000/= for multiple comminuted fracture of the femur that had caused severance of major vessels to the right leg and shortening of leg by 5cm, displaced fracture of the left shoulder blade, swelling and stiffness of knee.

8. The trial court had suggested a sum of Ksh. 550,000/= had the appellant succeeded in the case. In this appeal the advocates for the respective parties relied on the same authorities that they had cited at the lower court.

9. I have considered other cases where awards involving fractures were made. In Mary Pamela Oyioma –Vs- Yess Holdings Limited (2011) eKLR a sum of Kshs. 900,000/= was made for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.

10. In Boniface Njiru –Vs- Tohel Agencies & Another (2011) eKLRan award of Ksh. 1,000,000/= was made for head injury with loss of consciousness for 24 hours, loss of upper incisor teeth, fracture of shaft of the right femur and a compound fracture of the right tibia with soft tissue injuries.

11. In Florence Njoki Mwangi –Vs- Chege Mbitiru (2014) eKLR the court allowed a sum of Ksh. 700,000/= for fractures of femur bilaterally, 2 degloving injuries of the right knee and right ankle.

12. In Akamba Public Road Services Limited –Vs- Abdikadir Adan Galgalo (2016) eKLR the court reduced an award of Ksh. 800,000/= to Ksh. 500,000/= where the respondent had sustained fracture of the right tibia leg malleulus and right fibular bone and a blunt injury to the right knee.

13. I have considered the injuries sustained by the appellant. The fact that he lost consciousness for several weeks means that the injury on the head was very serious. He stayed in hospital for more than a month. He suffered fractures of two bones on the right hand and right leg. I award him Ksh. 600,000/= in general damages for pain and suffering and loss of amenities.

14. Special damages of Ksh. 14,400/= were proved by production of receipts in support thereof. The said sum is therefore awarded.

The award is therefore as follows:-

Liability at 100% in favour of the appellant against the respondents.

General damages - Ksh. 600,000/=

Special damages - Ksh. 14,400/=

Total - Ksh. 614,400/=

15. I accordingly enter judgment for the appellant, jointly and severally, against the respondents to the sum of Ksh. 614,400/= with interest at court rates till payment in full. Interest on general damages to accrue from the date of this judgment while interest on special damages will accrue from the date of filing of the suit. The appellant to bear the costs of the suit at the lower court and for this appeal.

Delivered, dated and signed in open court at Kakamega this 4th day of July, 2019.

J. NJAGI

JUDGE

In the presence of:

No appearance for appellant

Miss Mukhwana holding brief for Onyikwa for respondents

Appellant - absent

Respondents - absent

Court Assistant - George

30 days right of appeal.