[2017] KEHC 2129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL SUIT NO.29 OF 2013

J W (Suing through his

mother and next friend ) N L W……...................PLAINTIFF

VERSUS

1. PATEL MITULKUMAR.............................1ST DEFENDANT

2. LEONARD WAFULA SIMIYU.................2ND DEFENDANT

JUDGEMENT

1. On the 7th of November, 2013 the plaintiff a minor, J W sued the defendants through his mother N L W due to an accident that occurred along Eldoret – Webuye road on the 20th of June, 2013. The 1st defendant Patel Mitulkumar was the registered owner of motor vehicle Registration Number KAV 136S being driven at the time by the 2nd defendant Leonard Wafula Simiyu.

2. The plaintiff was a pedestrian along the road and it was contended that the accident occurred due to the negligence of 2nd defendant.

3. On the 7th of October, 2013 Parties recorded a consent on liability where the plaintiff was to be held 30% liable and the defendants 70%.

4. Left for hearing by the Court was the issue of quantum. And at the hearing the Plaintiff adduced evidence. The defence called no witnesses.

At the time hearing, on the 7th of November, 2016 the plaintiff testified that the minor claimant was 13 years and in class 4; the claimant had his leg amputated as a result of the accident, he cannot wear shorts, he has to be escorted to and from school. He has difficulties sitting on the toilet and has to be supported. Further that the plaintiff in unable to do chores for him due to customary constrains and has had to employ a helper who has to clean the claimant at a cost of Kshs.150/- a day.

5. Three medical reports and receipts for treatment were produced by consent of the parties. The medical reports were done by Dr. Kilonzo Ndulu a Consultant Orthopeadic and Trauma surgeon on 24/11/2016, Dr. Joseph A. O. Owalo on 12/5/2015 and Dr. Joab Bodo Consultant Orthopaedic Surgeon on 26th May, 2015

6. Apart from the 3 medical reports, a P3 form and initial treatment cards were also produced by consent. It is evident that the claimant sustained the following injuries:-

i) Severe head injury

ii) Severe crush injury to the right foot and right distal leg – leading to amputation.

iii) Extensive degloving injury to the left foot.

Reports indicate that he had healed from the injuries save for the amputation and he had undergone a second surgery to have a further amputation and he may due to his age as he will have frequent osseous overgrowth require 2/3 amputations. Both Dr. Bodo and Dr. Ndulu are in agreement on this. Both also agree that he requires to have a below knee protasis and Doctor Ndulu gives an assessment cost of Kshs.300,000/-.

The Plaintiffs Counsel in his submissions (summarized) sought for.

a) General damages assessed at Kshs.3,500,000/- he relied on Regina Mwikali Wilson Vs Stephen Githinji & Peter M. Mundi HCC No.728 of 2007 where an award of Kshs.2,500,000/- was made on 28/1/2017.

b) General damages for loss of career and earning capacity assessed at Kshs.3,300,000/-. He relied on Jackson Wahome Ngatia Vs Afridutt R) Ltd, Daniel Wanjohi Kimunyu & Kirinyaga Construction Ltd HCCC No.531 of 2004, judgement delivered on 4/3/2011.

c) Future medical equipment no assessment made or details of the Equipment indicated.

d) Replacement of wheel chair assessed at 100,000/- per year for 45 years total Kshs.4,500,000/-.

e) Cost of hiring a helper. Assessed at Kshs.30,000/- a month for 45 years. Total Kshs.16,200,000/-.

f) Cost of Special bed at Kshs.50,000/-

g) Consultation fee for life assessed at Kshs.2,700,000/- for 45 years.

h) Transport to hospital at Kshs.2,700,000/-

i) Cost of 3 amputation revisions Kshs.500,000/-

j) Cost of long terms follow up Kshs.1,500,000/-

k) Cost of Artificial limp Kshs.300,000/- based on HCCC No.318 of 2013, Grace Beldina Adhiambo Vs Baner Okelo & Joseph Ogutu. Decided on 10/2/2017.

l) Specials of Kshs.47,720. Total aggregated sum Kshs.31,157,720/-.

7. The defence on the other hand urged the Court to grant General damages of Kshs.700,000/- based on the case of HCCC No.35 of 2001 Jason Nyoike Kariuki Vs Simon Cheruiyot a 2006 decision and HCA No.146 of 2014 Kisumu Concrete Products Limited Vs Kennedy Onyango Olga a 2016 judgement. Specials were urged at Kshs.36,720 being the receipts provided.

8. From the onset I must say that the proposals made by the Plaintiff’s Counsel are most outrageous and not in tandem with the injuries sustained and based on authorities that are not comparables. Indeed Counsel in making his proposals went against his own authorities. He relied on

I) H. West & Sons Ltd Vs Shepherd (1964) A.C 326 at 364 where the Court held as follows;

“The Court has to perform the difficult task of converting into monetary damages the physical injury and deprivation and pain to give judgement for what it considers to be reasonable sum. It does not look beyond the judgement for spending of damages”.

“Money cannot review a physical frame that has been battered and shattered. All that judges can do is to award sums which must be regarded as giving reasonable compensation.”

II) Jackline Syombua Vs BOG & Ekalakula Secondary school Embu HCC No.18 of 2006 where it was held;

“The task of assessing damages in a Case as this is a difficult one. The Court must nonetheless be guided by relevant precedents… In assessing compensatory damages the Court will always bear in mind that the purpose of awarding damages is not to pay as it were for the loss or injury the plaintiff has suffered. Damages only ussuage the pain or loss suffered by the plaintiff because no amount of money can replace a lost limp.”

III) Kigaragari V Aya (1982-88), KAR 766the Court stated

“Damages must be within limits set out by the decided Cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”

9. Considering the above authorities Counsel, must not chase wild goose or seek to mislead the Court or appear to impress their client by making outrageous proposals it is not only unprofessional but total waste of Judicial time, knowing fully well that Courts must decide based on what is reasonable compensation and relying on authorities that are relevant.

10. The Claimant herein has healed very well save for the amputated left leg. The two surgeons are in agreement that he will require 2/3 amputation revisions, and an artificial limp. The artificial limp will allow easy movement indeed even now he uses crutches and is not confined to a wheel chair. The artificial limp will allow him do his own chores and he will not require a helper. The doctors did not allude to any future treatment, need for a special bed nor medical equipment.

Consequently the heads number c, d, e, f, g, h, j, must all fail.

11. The Claimant is a standard 4 pupil. There is no evidence that he has lost his mental capacity nor that his physical capability or so much affected that he cannot go through school and become a responsible and capable citizen in the next few years. And therefore the claim for loss of career and future earnings is baseless.

12. I must equally mention that the proposal by the defence is far too low and equally outrageous taking into account the injuries sustained by the Claimant.

13. Based on the above the Court will proceed to consider the following heads and award as follows

i. General damages. I have considered Daniel KosgeiNgelechi Vs Catholic Diocese & Another HCCCNo.111 of 2006 – decided in 2013, Bayusuf freighters Ltd Versus Patrick Mbathe Kyalo a decision of 2014 and Regina Mwikali Wilson Vs. StephenM. Gichuli & Another HCC No.728 of 2007 a decision of 2015 and award under this head

Kshs.2,500,000/-

ii. Cost of future treatment both doctors agreed on Kshs.500,000/-

iii. Cost of a modern artificial limp Kshs.300,000/-

iv. Specials proved Kshs. 42,720/-

Total Kshs.3,342,720/-

Less 30% Kshs.1,002,816/-

Kshs.2,339,904/-

v. Costs of the suit

DATED and DELIVERED at BUNGOMA this 5th day of October, 2017

ALI-ARONI

JUDGE