[2003] KEHC 923 (KLR)
The court found that the plaintiff was assaulted by the defendants while lawfully traveling as a fare paying passenger, resulting in multiple bruises, lacerations, and scarring. Although the plaintiff claimed permanent disability and loss of income, the court found the evidence insufficient to support these claims...
Source-derived case information.
- Citation
- [2003] KEHC 923 (KLR)
- Parties
- Plaintiff: Jane Karimi Mwaniki; Defendant: James Ngari Mwaniki; Defendant: John Bosco Gatumo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 6 of 2003
- Procedural Posture
- Civil Suit / Judgment After Formal Proof
- Outcome
- Judgment for the plaintiff against the defendants jointly and severally.
- Legal Topics
- Personal Injury, Assault, General Damages, Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Karimi Mwaniki
Plaintiff
James Ngari Mwaniki
Defendant
John Bosco Gatumo
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof
Legal Issues
- 1 Whether the defendants are liable for assaulting the plaintiff while she was a fare paying passenger.
- 2 Whether the plaintiff is entitled to general and special damages for injuries suffered.
- 3 Whether punitive or exemplary damages should be awarded in the circumstances.
Ratio Decidendi
The court found that the plaintiff was assaulted by the defendants while lawfully traveling as a fare paying passenger, resulting in multiple bruises, lacerations, and scarring. Although the plaintiff claimed permanent disability and loss of income, the court found the evidence insufficient to support these claims beyond pain and suffering. The court held that the medical evidence did not justify the high damages sought, and that punitive damages were not appropriate since the defendants had already been convicted and fined in criminal proceedings. The court awarded Kshs. 150,000 as general damages for pain and suffering and Kshs. 204,294 as special damages, with costs and interest.
Court Disposition
Judgment for the plaintiff against the defendants jointly and severally.
Orders
- The plaintiff is awarded Kshs. 204,294 as special damages.
- The plaintiff is awarded Kshs. 150,000 as general damages for pain and suffering.
Full Case Text
Judgment text and source record
20 paragraphs
1
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CIVIL SUIT NO. 6 Of 2003
JANE KARIMI MWANIKI…………………………………….PLAINTIFF
VERSUS
JAMES NGARI MWANIKI
JOHN BOSCO GATUMO ………………………………….DEFENDANTS
JUDGEMENT
Jane Karimi Mwaniki hereinafter referred to as the Plaintiff brought this suit against the Defendant James Ngari Mwaniki and John Bosco Gatumo seeking general damages for personal injuries suffered by her as a result of being assaulted by the two Defendants whilst lawfully traveling as a fare paying passenger in Motor Vehicle KAJ 526 P. Both the Defendants were tried and convicted in the Senior Principal Magistrate’s Court at Embu for the assault .
Both Defendants having been dully served neither entered appearance nor filed any defence. Interlocutory judgment was therefore entered and the suit listed for formal proof.
In proof of her case the plaintiff testified as to how the two defendants who were driver and conductor of M/V KAJ 526 P assaulted her causing her serious injuries. Dr. Stephen Maina who examined the plaintiff produced a medical legal report showing the extent of plaintiff’s injury which included multiple bruises and lacerations which have left the plaintiff with scars on the face and on the legs and a permanent disability as she continue to suffer pain in the back and hip.
As a result of the injuries the plaintiff was unable to effectively perform her duties as a nurse in the private wing of Kenyatta National Hospital. She had to be re-assigned to the pediatric wing as a result of which she suffered loss of income. P.W.3 John Kariuki Njuki an Executive Officer at Embu Law Court produced the Cr.Case file in respect of Cr. Case No. 1433 of 2000 showing that the two defendants were convicted and fined for assaulting the complainant.
Counsel for the plaintiff has filed written submissions urging the court to award damages of Kshs. 1 million for pain and suffering , Kshs. 700,000/- for loss of future earning capacity and Kshs.200,000/- as punitive damages. I have considered the medical report and the evidence adduced . The plaintiff’s injury were basically bruises and lacerations. Though the Doctor classified the pain experienced in the back and hip as permanent disability, I find this no more than an exaggeration possibly to attract a higher award of damage.
While I have no doubt that the plaintiff suffered a lot of pain and humiliation due to the dehumanizing treatment that the Defendants subjected to, I have to guard against falling into the temptation of treating this case as a road traffic accident case where insurance is involved. Indeed all the cases cited by the Advocate for the plaintiff involved road traffic accident cases where the injury included fracture which is not the case herein.
Moreover although the plaintiff testified that she suffered loss of income as she had to be re-assigned duties, she did not adduce any evidence from her employer in support of this.
All in all I find that there is no justification for the amount of Kshs.1,900,000 proposed by the plaintiff’s advocate as general damages. I find that in the circumstances of this case a sum of Kshs.150,000/- would suffice as general damages for pain and suffering.
The defendants having already been subjected to the criminal process I do not find it appropriate to award punitive or exemplary damages.
The upshot of the above is that I do give final judgment in favour or the plaintiff as against the two defendants jointly and severally in the sum of Kshs. 204,294 special damages and Kshs.150,000/- general damages. The plaintiff shall have costs of the suit and interest thereon from the date of this judgment . Orders accordingly.
Dated Signed and Delivered at Nyeri this 10th day of December, 2003.
H.M. OKWENGU
JUDGE