[1999] KEHC 164 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

Civil Suit 452 of 1995

JAMES GITAU NGUGI............................................................ PLAINTIFF

VERSUS

1. BOBMILL CO. LTD................................................. 1st DEFENDANT

2. GEORGE NDUNGU.............................................. 2ND DEFENDANT

3. MULTIPLE HAULERS LTD................................ 3 rd DEFENDANT

4. SAMMY KIOKO MAKEI..........................................4TI' DEFENDANT

JUDGMENT

The plaintiff filed this suit against the four defendants claimingspecial and general damages for injuries suffered by him in a road trafficaccident on the 23rd July 1993 involving motor vehicle number KZL 275belonging to the 1st defendant and at the material time driven by the 2nddefendant, and motor vehicle registration number KQA 692 ZA 6250Mercedes Benz lorry with trailer belonging to the 3rd defendant and at thematerial time driven by the 4n defendant acting in the course of duty. The2nd defendant drove motor vehicle KZL 275 in the course of duty as anemployee of the 1st defendant.

It is the plaintiffs case that on 23/7/93, he was travelling in the 1stdefendant's motor vehicle KZL 275 from Nairobi to Kisumu. He was aconductor/turnboy on that motor vehicle which was transporting mattressesto Kisumu. he sat in the driver's cabin with another man and the driver(2nd defendant). Plaintiff said that they left Nairobi at about 6. 30 p.m.although he did not have a watch. He said the motor vehicle was very fast.On reaching "Soilo" near the Njoro junction their motor vehicle rammedinto motor vehicle KQA 692/ ZA 650 belonging to the 3rd defendant. Thatmotor vehicle was stationary on the left hand side of the road facingEldoret. There was no sign on the road to warn other motorists of thepresence of the 3rd defendant's motor vehicle on the road. He said he hadbeen dozing on and off when the collision took place. He passed out for 3-4minutes after the collision and on regaining consciousness, he found that hehad the following injuries:-

(a) Injury at the back of neck

(b) Chest injury

(c) Three fractures on the left, leg i.e. on the knee, thigh and hip.The plaint, paragraph 8, gives the injuries suffered as :-

(a) Head injury with possibility of post traumatic epilepsy

(b) Fracture of the upper and the neck of left femur

(c) Compound fractures of tibia and fibula.

He was admitted in hospital at Nakuru for a period of six (6) months.He received blood transfusion and was put on drip. He then passed out, andremained unconscious for a period of two weeks. Two medical reports were produced by consent of the three counsel appearing for the parties(Exh.2 & 3).

The wound on the left leg was sutured and the leg was immobilized intraction for a period of about 5 (five) months but the report of Dr. Malikdated 15-12-95 puts the period at 4 months. During this time the leg waspulled through a system of pulleys and weights. After the traction wasremoved, a plaster cast extending from his abdomen down the entire leg(left) was applied. He was then discharged in plaster and on crutches. Themedical report of Dr. Malik (Ex.3) gives the date of discharge as 20-12-93. The plaster was removed about April, 1994, after four months. Anotherplaster cast was applied extending from the upper thigh to the left foot andhe remained in it for six weeks when it was removed. He howevercontinued on crutches up to May, 1994 when he now started using a walkingstick up to August, 1994. He complained of pain in the back of the neck andinability to work as the fractured leg was very weak.

In cross examination, he said that at the time of the collision, themotor vehicle was going downhill and much as he was sleepy and dozing onand off, he could feel that the motor vehicle was moving very fast. In theplaint, the accident time is put at 11 p.m. Since the two medical reportswere produced by consent of both counsel, this is evidence that each report represents the correct assessment of the injuries at the time when each reportwas made. I shall therefore rely on the latest of the two reports, as givingthe latest position on the condition of the plaintiff, and that is the report byDr. Malik (Ex.3) dated 15/12/95 .

On examination by Dr. Malik, the doctor found the following:-

(a) There was visible wasting of the muscles of the left leg especiallynoticeable in the thigh.

(b) There was a knee long scar over the anterior aspect of the midthigh

(c) There was a Y shaped scar over the upper anterior aspect of thelower leg (10cm x 7cm)

(d) Movements at the left hip joint were all restricted by about 10%

(e) Flexion and extension were more restricted than abduction andadduction which were almost full. Extremes of movement were abit painful

(f) Flexion at the left knee was restricted by about 10% whileextension was full and pain free

(g)Muscle power both around the hip joint and the knee joint was Slightly reduced

(h) There was no shortening of the left leg

(l) The fracture of the tibia and fibula had healed with complete radiological union of both the tibia and fibula (j) The fracture of the femur had healed with complete union of the

Shaft with no overlapDr. Malik summarized the plaintiff’s injuries as:-

- Undisplaced fracture of the neck of the left femur

- Comminuted fracture of the upper third of the left femur with freefragments

- Oblique fractures of the left tibia and fibula

The doctor noted no appreciable change in the line of weight bearing of thebones. He also noted that none of the above fractures involved joint surfacesand so, these two will minimize any chances of post traumatic osteoarthritisstarting in the hip or knee joints. Dr. Malik found that the plaintiff did notsuffer any head injuries and he was of the opinion that the loss ofconsciousness for about five minutes may have been as a result of shocktrauma rather than concussion of the brain. He found that the possibility ofposttraumatic epilepsy does not really arise.

He assessed the period of total incapacity at six (6) months and partialincapacity at 8 (eight) months. He assessed the disability in the left leg at10% and was of the opinion that the plaintiff would continue to improve.

It was the evidence of the 2nd defendant, that on the material date hewas driving motor vehicle KZL 275, which motor vehicle belonged to the 1stdefendant. He was with the plaintiff and another man in that motor vehicle.The other man died in the collision. They left Nairobi for Kisumu at 6 p.m.The plaintiff was the turnboy to that motor vehicle. They passed the railwaybridge near Ngata Farm at 11. 30 p.m. The motor vehicle was going uphill atabout 45 k.p.h. As he approached Ngata Farm he saw an oncoming vehiclewith full lights on. That vehicle was about 500 meters away. He deemedthe lights of his vehicle but the oncoming vehicle would not deem its lights.The 2nd defendant did not stop and did not apply brakes when the on comingvehicle continued coming with full lights on. As soon as the oncomingvehicle by passed his, the 2nd defendant said he just saw darkness andrammed into a stationery trailer. He said the darkness he saw was thestationery trailer. He said the full light of the oncoming vehicle had been sopowerful that it became difficult for him to see the stationary trailer in goodtime in order to avoid the collision. The trailer he said did not have lights onneither did he see any triangles on the road to warn other motorists of thepresence of the stationery trailer which he said was parked on the road in thesame lane which his motor vehicle was riding in. The road had the normaltwo lanes and therefore the trailer had taken up all the space for other vehicles travelling in the same direction. \He denied that he was going downhill at the time of the collision. He blamed the collision on the oncomingmotor vehicle, which failed to deem its lights as the two vehicles approachedeach other. He did not know the registration of that motor vehicle because itdid not stop.

The 4th defendant testified and said, that on this day 23/7/93, he wasdriving motor vehicle KQA 692/ZA 6250 from Nairobi to Kampala inUganda. This trailer belonged to the 3 defendant. He spent the night inNakuru and left Nakuru on 23/7/93 at 5. 45 a.m. On reaching somewherenear Ngata Farm, the motor vehicle cum trailer developed engine problemsand suffered an engine knock. The trailer stopped on the road and would notbe moved off the road because the engine was hydraulic. He placed thelifesaver triangles ahead and behind the motor vehicle at a distance of 50meters each. He then went to Nakuru to telephone his employer, 3rddefendant in Nairobi. 4 defendants came back to the scene at 8 a.m. andstayed there the whole day. He agreed with with the 2nd defendant that asone approaches the scene from Nakuru, it is uphill. He said in addition tothe triangles he had put twigs on the road to warn other motorists of thepresence of his motor vehicle on the road. It was 11. 30p.m. that the motorvehicle of the 2nd defendant rammed into his stationery vehicle. He said prior to this he kept adding more twigs on the road as the wind blew themaway and he also checked on the triangles just to ensure that they were stillin place.

After the collision, he saw that one of the triangles had been destroyedby the motor vehicle of the 2nd defendant but he did not pick it up. Heconceded that with his vehicle stationery on the road, it blocked the othervehicles driving the same direction. He also said that the road had only twolanes.

He was charged vide NKU Traffic Case 5251/93, with offence of causingdeath by obstruction and was acquitted. The case file was produced asexhibit (D-Ex.3). His employer arrived at the scene with the replacementengine just after the accident had taken place.

The sketch plan of this accident was produced as exhibit during thehearing of the traffic case (Ex.1). That plan shows some twigs and stonesplaced on the left hand side of the road facing Eldoret direction. The sketchplan is therefore in agreement with the evidence of the 4th defendant whosaid that he had placed some twigs on the road just behind the broken downvehicle/trailer. No reflecting triangles are shown on the plan.

From the evidence of the plaintiff and that of the 2nd and 4th defendants, Ifind that the following is not in dispute:-

(a) That there was an accident which occurred on 23/7/93 along Nakuru Eldoret Road involving motor vehicle KZL 275 AND KQA 692/ZA 6250.

(b)That the plaintiff was a passenger on motor vehicle KZL 275 driven by the 2 defendant at the material time.

(c)That he was a passenger on that motor vehicle in his capacity as turnboy of that motor vehicle and was therefore a lawful passenger.

(d)The 2nd defendant was employed by the 1st defendant as a driver, and the said motor vehicle, in the absence of evidence from the lst defendant to deny ownership, belongs to the 1st defendant

(e)The 2nd defendant, in the absence of evidence from the 1st defendant, to the contrary drove that motor vehicle in the course of duty and was therefore an agent of the lSt defendant.

With regard to motor vehicle/trailer KQA 692/ZA 6250, it is not indispute that the 4th defendant was employed by the 3rd defendant as a driver.He had been driving that motor vehicle from Nairobi to Kampala when itbroke down and at the time of the accident, was sitting in the vehicle. Hesaid he was in the course of duty and that the motor vehicle belonged to the3rd defendant. In the absence of evidence from the 3rd defendant to thecontrary, I am satisfied and 1 find that motor vehicle KQA 692/ZA 6250 belonged to the 3rd defendant, and at the time of the accident, the 4thdefendant was acting in the course of duty.

I now proceed to address the issue of negligence. In the plaint, theplaintiff accuses the 2nd and 4th defendants of negligence and has set out theparticulars of negligence against each one of them. In their respectivedefences the 2nd and 4th defendants accuse each other of negligence. It wasthe 2nd defendant's evidence that he was going uphill and there was a motorvehicle, which was oncoming with its full lights on. He saw this motorvehicle when he was 500 metres away and although he deemed his lights,that motor vehicle did not deem its lights. The light of the oncoming motorvehicle was so intense that it prevented him from seeing the 4th defendant'smotor vehicle. He just saw it when he was ramming into it. The evidence ofthe 2nd defendant relating to the oncoming motor vehicle must be anafterthought because there is no mention of it in the defence, which the 2nddefendant filed. That not withstanding, assuming that indeed there was sucha motor vehicle then, it is the 2nd defendant's own evidence that he first sawit when he was 500 meters away yet he did not slow down or stop when themotor vehicle continued approaching with full lights on. The fact that hetook no steps to stop, or slow down. to let that motor vehicle pass so that he could see the road ahead clearly, is evidence that he was reckless andnegligent and he contributed to the collision.

The 4th defendant relies on the acquittal in the traffic case to say that hewas not negligent. This motor vehicle broke down at 6 a.m. and stopped onthe road. The accident took place at 11. 30 p.m., 171/2 hourslater. The 4th defendant said he telephoned his employers in Nairobi andinformed them of the problem. He then came back to the scene at 8 a.m. andremained there until 11. 30 p.m. when the accident took place. The 3rddefendant did not come to the scene until sometime after 11. 30 p.m. Thismotor vehicle, much as it had broken down, remained on the road for toolong a period. Section 53 of the Traffic Act provides for removal from theroad, as soon as possible, of any motor vehicle which has broken down sothat the same does not obstruct or prove dangerous to other road users."S.53(2).

The driver of any vehicle shall, in case of a break down,remove the vehicle from the road as soon as possible and until soremoved, the vehicle shall be placed as close to the side of the road aspossible and as the vehicle remains on the road between the hours of6. 45p.m. and 6. 15 a.m., its position shall be clearly indicated by a light or lights visible to drivers of vehicles approaching from eitherdirection."

From the evidence of the 4th defendant the engine stalled and thisbeing a big motor vehicle/trailer, moving it off the road was not possible.The vehicle therefore obstructed other motor vehicles travelling in the samedirection. For this trailer to remain at the scene for 17 1/2 hours was contraryto the provisions of S.53 (2) of the Traffic Act. A replacement engine camefrom Nairobi and the 3rd defendant failed to come to court to explain why ittook them 17 ½hours to come to the scene, if they came at all. The 4thdefendant contributed to the accident by failing to remove the vehicle fromthe road as soon as possible as it posed a danger to other road users.

Section 53(3) of the Traffic Act provides for the placing of two redreflecting triangles one infront and one at the rear of the broken down motorvehicle.

"S.53 (3) If any part of the vehicle remains on or near the road....................................................................... the driver shall place on the road not less than fifty meters from the vehicle two redreflecting triangles of such construction and dimensions as may beprescribed, one ahead of the vehicle and one behind it so that each is clearly visible to drivers of vehicles approaching from ahead or behind as the case maybe."

Although the 4th defendant said he placed the reflecting triangles onthe road as is required, the plan which was produced in the traffic court asExh.l and which now forms part of defence exhibit 1, does not show anysuch triangle. Instead it shows some stones and branches/twigs behind thevehicle. If the 4th defendant had placed the triangles, then placing twigs onthe road could not have been necessary, and such triangles could have beenseen by the officer who drew the sketch plan. This court is aware of the factthat some motorists are in a habit of placing branches or twigs on the roadwhen their motor vehicles break down. There is no provision in the TrafficAct for this. Section 53(3) is specific and mandatory, a driver must place twored reflecting triangles on the road, one infront and the other behind abroken down vehicle.

The evidence of the plaintiff and that of the 2nd defendant togetherwith that of the sketch plan is in agreement, and that is that, there were notriangles on the road. The 4th defendant in failing to comply with S.53(3)with regard to the red-reflecting triangles, was negligent and contributed tothe accident. I am satisfied and I find that the 2nd and 4th defendants throughnegligence were the cause of this collision and each one of them is 50% liable to compensate the plaintiff. They were acting in the cause of duty andtherefore their actions bind their respective employers the lst and 3rddefendants whom l find vicariously liable to pay compensation to theplaintiff for the injuries he suffered.

I now turn to the injuries, which the plaintiff suffered during thisaccident. The same are summarized by Dr. Malik in his report as is outlinedelsewhere in this judgment. As a result of those injuries the plaintiff wastotally incapacitated for a period of six months, followed by a partialincapacity period of eight (8) months. For a period of 14 months therefore,the plaintiff did not lead a normal life. The doctor further assessed a totaldisability on the left leg at 10%. It is obvious that the plaintiff suffered a lotof pain discomfort and inconvenience.

The fractures of the tibia and fibula healed with no malunion of thebones. The fracture of the femur has also healed satisfactorily. Howeverthere is wasting of the muscles of the left leg especially noticeable in thethigh. Movements in the left hip joint were restricted by 10% while flexionat the knee joint (left) was restricted by about 10%. Extension of this joint ishowever full and pain free.

I have considered the submissions by all the three learned counsel forthe parties herein as well as the various High Court Judgments they have relied upon. These being judgments of the High Court of Kenya, bydifferent judges, they can only be of persuasive guidance.

I have further, considered the injuries which the plaintiff suffered andthe long period of both permanent and partial incapacity. I am satisfied andI find that an award of Kshs.450, 000 is adequate compensation.

The plaintiff prays for special damages as well (paragraph 8). This,the plaintiff did not specifically plead. The amounts claimed for medicalfees, police abstract and transport and subsistence while undergoingtreatment are not stated and as such the claim relating to special damagescannot succeed, and the same is dismissed.

It is conceded that the 1st defendant paid to the plaintiff a total ofKshs.85, 800 through the labour officer, as workman's compensation. I haveearlier found that the 1st and 2nd defendants on one part, and the 3 rd and 4thdefendants on the other part are equally liable to compensate the plaintiff forthe injuries he suffered. The amount payable by the 1st and 2nd defendantsjointly and severally shall be less the Kshs85, 800 already paid by the 1stdefendant.

I therefore enter judgment for the plaintiff against the four defendants inthe sum of Kshs.450,000 general damages (four hundred and fifty thousandsonly) with costs and interest, to be paid as follows:-

(a) A sum of Kshs.225, 000 (two hundred and twenty five thousands only), to be paid by the Ist and 2nd defendants jointly and severally, less Kshs.85,800 already paid.(b)A sum of Kshs.225, 000 (two hundred and twenty five thousands only) to be paid by the 3rd and 4th defendants jointly and severally,(c) Once the costs payable to the plaintiff have been taxed and ascertained, the parties shall bear liability in the same proportions.

S. C. ONDEYO

JUDGE

17/6/99

delivered this 7th day of July1999