[1999] KEHC 108 (KLR)
The court found that the defendant, through its driver, was negligent in operating the bus, resulting in the accident and injuries to the plaintiff. The evidence established that the plaintiff was a passenger, the accident was caused by the driver's reckless conduct, and there were no external factors contributing...
Source-derived case information.
- Citation
- [1999] KEHC 108 (KLR)
- Parties
- Plaintiff: Francis Shamalla; Defendant: Kerenga Bus Service
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2048 of 1994
- Procedural Posture
- Civil Case / Assessment of Damages After Interlocutory Judgment
- Outcome
- Judgment for the plaintiff for general damages; special damages claim dismissed.
- Legal Topics
- Negligence, Road Traffic Accidents, Personal Injury, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Shamalla
Plaintiff
Kerenga Bus Service
Defendant
Procedural Posture
Civil Case / Assessment of Damages After Interlocutory Judgment
Legal Issues
- 1 Whether the defendant was liable in negligence for the accident causing injury to the plaintiff.
- 2 What quantum of general damages is appropriate for the injuries sustained by the plaintiff.
- 3 Whether the plaintiff is entitled to special damages.
Ratio Decidendi
The court found that the defendant, through its driver, was negligent in operating the bus, resulting in the accident and injuries to the plaintiff. The evidence established that the plaintiff was a passenger, the accident was caused by the driver's reckless conduct, and there were no external factors contributing to the accident. The defendant, having failed to defend the suit, was held 100% liable. The court dismissed the claim for special damages due to lack of proof but awarded general damages for pain, suffering, and loss of amenities, considering the nature of the injuries, the plaintiff's recovery, and comparable awards in similar cases.
Court Disposition
Judgment for the plaintiff for general damages; special damages claim dismissed.
Orders
- Judgment entered for the plaintiff against the defendant at 100% liability for general damages for pain, suffering, and loss of amenities at Kshs.150,000/-.
- Claim for special damages is dismissed.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.2048 OF 1994
FRANCIS SHAMALLA ................................................. PLAINTIFF
VERSUS
KERENGA BUS SERVICE ....................................... DEFENDANT
JUDGMENT
The Plaintiff was a fare paying passenger in motor vehicle registration number KZU 409 Souza bus. The defendants are a transportation company carrying its operations from Nakuru and owner of the bus in question.
On the 30. 5.92, the Plaintiff boarded the said bus from the Machakos bus stop. This was about 7. 00 p.m.
At about midnight, the driver drove at a high speed. He was using one hand to hold the steering wheel and another to chew miraa - a local drug that keeps one awake.
The bus swerved to the left and overturned into the tea bushes, near Kericho. The Plaintiff lost consciousness. He did recall clearly before this that there was no vehicle in front or behind of the bus. The weather was fair and there were no pot holes in the road.
The plaintiff regained consciousness at the Kericho District Hospital. He was transferred to the Mukimu hospital near his home.
He returned to Nairobi where he was treated as an out patient.
The Plaintiff filed suit against the defendant company. They were duly served. They never entered any appearance or filed their defence. Interlocutory judgement was duly entered against them.
The case before me is for assessment of damages.
I am satisfied from the evidence given by the plaintiff that the defendants through their agent and or servant were negligent in the driving. As a result the same overturned causing injury to the plaintiff who was a passenger in the said bus. The defendants are therefore liable 100% on this.
The Plaintiff sustained injuries. He called PW2 a medical Doctor who prepared a report on the 15. 1.96 as to the plaintiffs fitness. He obtained his information from past historical records held by the plaintiff and his advocates.
From his report he confirmed that the plaintiff had sustained the following injury.
i) Tenderness in the right chest
ii) Fracture of the 3rd, 4th and 5th ribs.
iii) Cuts and bruises of the left hand
iv) Multiple Small cuts on the right hand
As of 1996 the plaintiff complained of headaches and pains especially when doing physical work such as driving long distance.
As a precautions the doctor subjected the plaintiff to further Xray examination.
He found that the plaintiff was in a general good condition.
The nervous system was normal, the blood pressure was normal, no deformity was discovered in the chest cage.
(At the time of the accident one of the lungs had collapsed).
The Plaintiff was a driver by profession. He retired from employment and claimed that some of his benefits was used to pay his medical bills. He was unable to produce the original receipts of the expenses spent. I found out this was because his employer had paid his bill and refused to release the receipt. I have no proof from the plaintiff that this amount again was deducted.
His Plaint reflects no such claim as having been pleaded. His advocate admitted that the special damages of Ksh.2,000/- to which an interlocutory judgement had been entered had not been proved and was therefore no longer claiming this prayer.
I hereby dismiss the claim for Special damages.
As to the claim for General Damages I do note that the plaintiff suffered Pain, and loss fo Amenities. His advocate stated that an award of Ksh300,0000/- or more be awarded. She relied on an authority which gave an award of Ksh.200,000/- that was decided in 1995. Due to inflation this amount can be increased.
The Plaintiff has successfully healed. He has no side effects and his three broken ribs are cured.
The award for Pain, Suffering and Loss of Amenities for three broken ribs and soft tissue injuries I would compute at Ksh.150,000/-.
I make no award as to Special Damages.
I hereby enter judgement for the Plaintiff against the defendant at 100% for General Damages on Pain, Suffering & Loss of Amenities at Kshs.150 ,000/-.
I award costs of this suit from the date of reading of this judgement.
Dated this 6th day of May, 1999 at Nairobi.
M.A. ANG’AWA
JUDGE