[2004] KEHC 849 (KLR)
The court found the defendant liable for the accident on a 70% basis, with the plaintiff bearing 30% contributory negligence. The plaintiff's injuries were serious, resulting in permanent disability, including a deformed wrist and a limping gait. The court accepted the medical evidence as unchallenged and awarded...
Source-derived case information.
- Citation
- [2004] KEHC 849 (KLR)
- Parties
- Plaintiff: Debora Omari; Defendant: Kenya Woodfuel & Agroforestry Programme Limited
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 132 of 1998
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff, damages awarded subject to contributory negligence.
- Legal Topics
- Road Traffic Accidents, Personal Injury, Negligence, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Debora Omari
Plaintiff
Kenya Woodfuel & Agroforestry Programme Limited
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant was liable in negligence for the road accident causing injury to the plaintiff.
- 2 What quantum of damages is appropriate for the injuries suffered by the plaintiff.
Ratio Decidendi
The court found the defendant liable for the accident on a 70% basis, with the plaintiff bearing 30% contributory negligence. The plaintiff's injuries were serious, resulting in permanent disability, including a deformed wrist and a limping gait. The court accepted the medical evidence as unchallenged and awarded general damages of KES 650,000 for pain and suffering, and special damages of KES 2,000, both subject to a 30% reduction for contributory negligence. The total award after deduction was KES 466,400, plus costs and interest.
Court Disposition
Judgment for the plaintiff, damages awarded subject to contributory negligence.
Orders
- Plaintiff awarded general damages of KES 650,000 for pain and suffering.
- Plaintiff awarded special damages of KES 2,000.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL CASE NO. 132 OF 1998
DEBORA OMARI …………………………………………………….. PLAINTIFF
VERSUS
KENYA WOODFUEL & AGROFORESTRY
PROGRAMME LIMITED ……………………………………………. DEFENDANT
JUDGMENT:
The plaintiff’s claim against the defendant is for special and general damages for injuries suffered in a road accident.
The plaintiff was on 26/11/96 a passenger in motor vehicle Reg.No.KAE 642B along Kisii-Keroka road. When the vehicle reached Nyansira area it collided with motor vehicle Reg. KAC 070 P which is owned by the defendant company.
The plaintiff suffered a fracture and displacement of end of the right radius, bilateral posterior dislocation of the left hip, dislocation of the right hip and soft tissue injuries.
She alleged that the plaintiff driver was negligent in the manner of his driving and hence this suit.
Judgment on liability was entered by court on the basis of 70% to 30% in favour of plaintiff and case proceeded on hearing for quantum. The plaintiff gave evidence and narrated the injuries she suffered. DR. PETER OWOUR (PW2) who examined her on 6/10/99 also gave evidence as to the injuries suffered. The defendant did not tender any evidence and through Mr. Kasamani crossexamined the doctor thoroughly his evidence on the injuries suffered was not shaken.
The injuries are as tabulated above.
I have considered these injuries in the light of the authorities referred to by both counsels in their submissions. These were not slight injuries. The plaintiff suffered fracture and displacement of right and of right radius this led to deformed wrist as there was mal-union of the fractured radius. She also suffered dislocation of left hip, which left her walking in a limping gait. She had other soft tissue injuries.
Though the injuries may have healed there are residual effects such as the deformed wrist and the limping walking gait. She had him admitted in hospital for a whole month. A figure of shs.650,000/= is fair and just sum to compensate her for pain and suffering. I award the same as general damages.
Shs.2000/- was proved as special damages. I award the same.
I therefore enter judgment for the plaintiff as follows:-
General damages shs.650,000
Special damages 2,000
Total shs.652,000
Less 30% contribution185,600
Total shs.466,400/=
The plaintiff will also have costs and interest.
It is so ordered.
Dated this 26th October 2004
KABURU BAUNI
JUDGE
26/10/04
Mr. Obaga for plaintiff
N/A for defendant