[2020] KEHC 5780 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 336 OF 2014

JAMES WAMBUA KIMILA............................................PLAINTIFF

VERSUS

SINOHYDRO CORPORATION LIMITED........1ST DEFENDANT

JAMES NJUHO.....................................................2ND DEFENDANT

JUDGMENT

1. James Wambua Kimila, the plaintiff herein, filed suit against the 1st and 2nd defendants by way of a plaint dated 17th October, 2014. The 1st defendant Sinohydro Corporation Limited is sued in its capacity as the registered owner of motor vehicle registration number KBH 718V (the 1st motor vehicle) while the 2nd defendant James Njuho is sued in his capacity as the registered owner of motor vehicle registration number KBA 531H (the 2nd motor vehicle).

2. In his plaint dated 17th October 2014, the plaintiff pleaded that sometime on or about the 15th day of April, 2012 while travelling along Thika Road aboard the 2nd motor vehicle as a lawful fare paying passenger, an accident occurred involving the 1st and 2nd motor vehicles which accident he blamed on the negligence of both defendants, their servants or agents. The particulars of negligence attributed to each of the defendants or their agents were pleaded in paragraph 7 of the plaint.

3. The plaintiff further averred that consequent to the accident, he suffered serious multiple personal injuries which he particularized as follows:

i. Fracture, compound, communited, depressed frontal bone of the skull

ii. Fracture of the left orbital bone of the skull

iii. Fracture of the left maxilla

iv. Extradurall haemorrhage

v. Injuries to the left eye evidenced by contusion of the optic nerve and bilateral subconjunctival haemorrhage

vi. Fracture, bimalleolar of the right ankle joint

4. It was the plaintiff’s contention that the 1st and 2nd defendants ought to be found vicariously liable for the accident and resultant injuries to his person. He therefore sought the following reliefs against both defendants jointly and severally:

a) Special damages in the sum of Kshs.817,249/;

b) General damages for pain, suffering and loss of amenities;

c) Costs of the suit and interest thereon at court rates; and

d) Any other or further reliefs that this Honourable Court may deem fit and just to grant.

5. Upon being served with summons, the 1st defendant failed to enter appearance within the stipulated time and on application by the plaintiff, interlocutory judgment was entered against the 1st defendant on 21st January 2015.

6. On his part, the 2nd defendant entered appearance and put in a statement of defence dated 10th December 2014 in which he denied the occurrence of the accident and all allegations of negligence attributed to him or his agents in the plaint. In the alternative, he pleaded that if the accident occurred, it was solely or substantially contributed to by the plaintiff. He invited the court to dismiss the plaintiff’s suit with costs.

7. At the hearing of the suit, the plaintiff testified in support of his case and called one other witness while the 2nd defendant closed his case without calling any witness.

8. Dr. Antony Wandugu who testified in support of the plaintiff’s case as PW1 stated that he examined the plaintiff and perused treatment notes and test results from the Aga Khan Hospital and confirmed that the plaintiff had suffered multiple fractures. He also noted that the plaintiff had bleeding in his left eye which could only get worse.

He produced his medical report as Exhibit 1 and receipts issued to the plaintiff for preparation of the medical report and for his court attendance as Exhibits 1a) and 1b).

During re-examination, he testified that the implants which were inserted in the plaintiff’s body to fix the fractures will require removal at an estimated cost of Kshs.500,000.

9. The plaintiff gave evidence as PW2. He testified that he worked with a Non-Governmental Organization (NGO) known as Choose Life Africa and that at the time of the accident, he was aged 28 years and was pursuing a Master’s Degree in Project Management at the University of Nairobi; that previously, he had graduated with a Bachelor’s Degree in Education.

10. The plaintiff adopted his witness statement and further stated that on the material day, he was a passenger in the 2nd motor vehicle when its driver who is now deceased while driving at high speed lost control of the vehicle at Allsops descent along Thika Road and rammed into the rear of the 1st motor vehicle.

11. It was the plaintiff’s case that the 1st motor vehicle was at the time dangerously parked with no reflectors at the edge of the left side of the road, the same lane the 2nd vehicle was using. On cross examination, he stated that on the date of the accident, parts of the Thika Superhighway were under construction and the road was not busy; that since the 1st motor vehicle was parked on the road, if the 2nd defendant’s driver was careful and was not over speeding, he would have been able to see and control the said vehicle in order to avoid the accident.

12. Upon being re-examined, the plaintiff claimed that as the 1st defendant’s employees were constructing the road, they ought to have placed warning signs to alert other road users of the presence of the lorry.

13. The plaintiff further testified that following the accident, he was admitted at Aga Khan Hospital for 13 days and that he underwent four (4) surgeries, spending a total of Kshs.817,000 in medical expenses. He produced a bundle of documents as exhibits in support of his case.

14. As stated earlier, the 2nd defendant opted not to call any witness to support the defence case but he relied on the medical report dated 19th December, 2018 prepared by Dr. Geoffrey N. Nyaga which was produced as Dexhibit 1 by consent of the parties.

15. At the end of the hearing, both parties consented to filing of written submissions. This notwithstanding, only the plaintiff filed his submissions. The 2nd defendant failed to file any submissions despite being given ample time and opportunity to do so.

16. On liability, the plaintiff submitted that in the absence of evidence to refute his account concerning how the accident occurred, this court ought to find the defendants 100% jointly and severally liable. In this respect, he urged the court to draw guidance from the case of P N M [Suing as Next Friend and Father of N W N & Another V Synohydro Co. Ltd & 2 Others, [2017] eKLR which arose from the same cause of action as this suit where the court found the defendants 100% liable.

17. On quantum, it was the plaintiff’s contention that an award of Kshs.25,000,000 would suffice as general damages for pain and suffering and loss of amenities, citing a vast array of authorities including:

a) Duncan Kimathi Karagania V Ngugi David & 3 Others, [2016] eKLR where the court awarded general damages in the sum of Kshs.4,000,000 to a plaintiff who sustained blunt head injury with the loss of consciousness for over two hours, lacerations over the face on both sides, comminuted fracture of the maxilla bilaterally at the Le /fort 11 level, compound fracture of the mandible, comminuted fracture of the right humerus, articular region of the elbow surface of radio carpal and multiple lacerations of the hands and forearms.

b) Gabriel Mwashuma V Mohammed Sajjad & Another, [2015] eKLR in which the court after considering the injuries sustained by the plaintiff, namely, segmental left femur fracture, compound fracture left patella and femoral condyle, comminuted left distal tibia/fibula (pilon) fracture, fracture right fibula and soft tissue injuries right knee exercised its discretion and awarded the plaintiff general damages in the sum of Kshs.3,000,000/.

18. The plaintiff also urged the court to take into account the injury sustained in his left eye which led to total blindness. He invited me to consider the authorities of Kenya Power And Lighting Company Limited V Bernard Mutuku Kilonzo, [2015] eKLR where an award of Kshs.1,500,000 was made under general damages for pain and suffering to a plaintiff who had suffered loss of eyesight in his left eye in addition to other injuries and Isaac Njuguna V Farmland Aviation Ltd, [2018] eKLR in which the court awarded Kshs.4,000,000 as general damages to a plaintiff who had suffered several injuries including total blindness to the left eye.

19. It was similarly the plaintiff’s submission that he is entitled to an award of Kshs.817,249 special damages for cost of medical expenses; Kshs.22,000 for preparation of the medical reports and doctor’s attendance fee and Kshs.500,000 for future medical expenses.

In the end, the plaintiff urged this court to award him a total sum of Kshs.26,793,677 in both general and special damages.

20. I have carefully considered the evidence on record and the plaintiff’s submissions alongside the authorities cited. Having done so, I have distilled the following as the issues arising for my determination in this case:

i. Who between the 1st and 2nd defendants is to blame for the accident and to what extent if at all?

ii. Whether the plaintiff is entitled to the reliefs sought.

iii. Who should bear the cost of the suit?

21. On liability, I have considered the plaintiff’s evidence regarding how the accident in question occurred. I note from the plaintiff’s witness statement and from the police abstract that the accident happened at about 5. 30pm which was still during the day and had the driver of the 2nd motor vehicle been careful and alert, he would have been able to see the 1st motor vehicle in good time and avoid ramming into it.

22. The fact that the 2nd defendant’s driver caused the accident by ramming into the rear of a stationary vehicle and the fact that he died on the spot corroborates the plaintiff’s assertion that the driver had been over speeding and was not keeping a proper look out for other road users. It is important to note that the plaintiff’s version regarding how the accident happened has not been controverted by any evidence to the contrary since neither of the defendants offered any evidence during the trial.

23. I have considered the doctrine of res ipsa loquitur pleaded in the plaint. The Court of Appeal in the case of Fred Ben Okoth V Equator Bottlers Limited, [2015] eKLR adopted the definition of the doctrine in Black’s Law Dictionary, 9th Editionand expressed itselfas follows:

“The phrase ‘res ipsa loquitur’ is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature as to justify a jury, in light of common sense and past experience, in inferring that the accident was probably the result of the defendant’s negligence, in the absence of explanation or other evidence which the jury believes.”

24. In my view, unless there are extenuating circumstances and none were tendered by way of evidence in this case, ramming into the rear of a stationary vehicle parked on the edge of a road in broad daylight is a clear indicator that the 2nd defendant’s driver was guilty of negligence.

25. I have examined a copy of records from the Registrar of motor vehicles produced as exhibit by the plaintiff in respect of the 2nd motor vehicle. The same confirms that the 2nd defendant is the owner of that vehicle since it was registered in his name. In the premises, I find that the plaintiff has proved to the required legal standard that the 2nd defendant was the owner of the 2nd vehicle and that the same was being driven by his servant or agent at the material time.

26. This now brings me to the issue of liability with respect to the 1st defendant. It is noteworthy that there is interlocutory judgment entered against the 1st defendant and hearing proceeded for formal proof against the 1st defendant and for full hearing against the 2nd defendant. Be that as it may, the plaintiff still bore the burden of proving that the 1st defendant was also to blame for the accident which occasioned his injuries. In this regard, I refer to the provision of Section 107of theEvidence Act, Cap. 80 Laws of Kenya which expressly states the following:

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

27. The plaintiff gave evidence that there was partial construction of the Thika Superhighway at the material time and that the 1st defendant had not given any warning signs to show that the 1st motor vehicle was stationary on the road. He however testified that despite this fact, other motorists were passing the 1st motor vehicle comfortably without causing any accidents or incidents and that though the vehicle was not completely off the road, it was parked on the extreme left lane next to a drainage tunnel meaning that there was no parking space off the road.

28. Though it is not disputed that the 1st defendant was the registered owner of the 1st vehicle, the plaintiff in my view failed to adduce any tangible evidence to establish that the 1st defendant or its agents caused the accident in any way. The fact that the 1st defendant had not placed warning signs on the road to warn other road users of the presence of the vehicle on the road is not by itself evidence of negligence given the state of the road at the time. In any event, it was during the day and given the size of the vehicle which was a lorry, it should have been clearly visible to any careful road user. That is why other drivers were able to bypass it without any incident. Besides, the police abstract produced by the plaintiff made no mention of blameworthiness on the part of the 1st defendant.

29. In view of the foregoing, I find that the plaintiff failed to discharge his burden of proof against the 1st defendant and I find no basis on which to apportion any liability on the 1st defendant. On the other hand, I find that the plaintiff has ably demonstrated that the 2nd defendant’s driver solely caused the accident by negligently driving and managing the 2nd motor vehicle.

30. Consequently, I find the 2nd defendant 100% vicariously liable for the accident and the resultant injuries suffered by the plaintiff. I accordingly enter judgment on liability for the plaintiff against the 2nd defendant. The suit against the 1st defendant is hereby dismissed with no orders as costs.

31. On quantum, I have examined and considered the two medical reports produced herein which confirm that the plaintiff sustained the injuries pleaded in the plaint as a result of the accident. I note that in the first medical report by Dr. Gichuru Mwangi dated 25th April 2012, the doctor noted a remarkable improvement in the plaintiff’s vision but his condition appears to have worsened thereafter because in the 2nd medical report by Dr. A.O. Wandugu dated 2nd November 2012, the doctor noted that the plaintiff had visual acuity of only 15% in the affected eye. He assessed his degree of incapacity at 80%.

32. In the final and most recent report dated 19th December, 2018 prepared by the 2nd defendant’s doctor Dr. Godfrey N. Nyaga, the prognosis was that the plaintiff’s right eye was normal but he had lost total vision in his left eye. The doctor assessed his degree of incapacity at 50%. Besides the serious injury tp the plaintiff’s left eye, all the medical reports confirmed that the plaintiff had also suffered multiple fractures on his skull and right ankle. According to Dr. Wandugu, the injuries had created uncosmetic scars in the affected areas. The medical evidence on record also confirmed that the plaintiff was admitted at Aga Khan Hospital for about 9 days.

33. A reading of a majority of the authorities cited by the plaintiff in his submissions on quantum show that the plaintiffs in those cases were awarded sums ranging from Kshs2,500,00 to Kshs 3,000,000 in general damages for injuries which included multiple fractures and Kshs 1,500,000 and Kshs 4,000,000 for loss of vision on one eye. The authorities were decided a couple of years ago between year 2012 and 2015. As stated earlier, while relying on those authorities, the plaintiff proposed an award Kshs 25,000,000 in general damages which in my view is on the higher side. No proposal was made by the 2nd defendant since no submissions were made on his behalf.

34. Upon considering the nature of the injuries suffered by the plaintiff including loss of vision in the left eye, the range of degrees of incapacity assessed by the various doctors who examined him, the plaintiff’s age and inflationary trends, I find that a sum of Kshs.6,000,000 would be fair and adequate compensation for the plaintiff’s pain and suffering and loss of amenities. The plaintiff is therefore awarded general damages in the sum of Kshs.6,000,000.

35. On special damages, the plaintiff pleaded a total sum of Kshs.817,249 being medical expenses incurred at the Aga Khan Hospital, preparation of a medical report, cost of copy of records from the Registrar of Motor vehicles and payment for the police abstract. However, in his submissions, the plaintiff sought for additional damages in the sum of Kshs.22,000 being cost of procuring medical reports and fees for doctor’s court attendance and Kshs.500,000 for future medical expenses.

36. It cannot be emphasized enough that special damages ought to be specifically pleaded and strictly proved for them to be awarded. From my examination of the documentary evidence tendered before me, I find that the plaintiff both pleaded and proved special damages amounting to Kshs.817,049. As the alleged cost of further medical reports, doctor’s attendances and cost of future medical expenses were not specifically pleaded, the same cannot be allowed. The plaintiff is thus awarded special damages in the sum of Kshs.817,049.

37. Consequently, judgment is hereby entered in favour of the plaintiff against the 2nd defendant as follows:

(a) General damages

Pain, suffering and loss of amenities Kshs.6,000,000

(b) Special damages Kshs. 817,049

Total Kshs.6,817,049

38. The plaintiff will also have costs of the suit and interest on special damages at court rates from the date of filing suit while the general damages shall attract interest at court rates from the date of judgment until payment in full.

It is so ordered.

DATED, SIGNED andDELIVERED at NAIROBIthis 14th day of May 2020 through electronic mail with the written consent of the parties in compliance with the practice directions issued by the Honourable Chief Justice aimed at mitigating the spread of the COVID-19 pandemic.

C. W. GITHUA

JUDGE