[1999] KEHC 64 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

Civil Case 28 of 1996

JANE WAMBUI KAMAU......................................... PLAINTIFF

VERSUS

DOUGLAS NJUE KURIA .................................. DEFENDANT

CONSOLIDATED WITH

HIGH COURT OF KENYA

AT EMBU

CIVIL CASE NO.35 OF 1995

JAMLICK MATENE............................................. PLAINTIFF

VERSUS

DOUGLAS NJUE KURIA ............................... DEFENDANT

CONSOLIDATED WITH

HIGH COURT OF KENYA

CIVIL CASE NO. 40 OF 1995

JAMES WAITITU NG'ANG'A ..........................PLAINTIFF

VERSUS

DOUGLAS NJUE KURIA .............................DEFENDANT

CONSOLIDATED WITH

HIGH COURT OF KENYA

AT EMBU

CIVIL CASE NO.41 OF 1995

PETER MUREITHI MUNENE ............................... PLAINTIFF

VERSUS

DOUGLAS NJUE KURIA ......................................DEFENDANT

CONSOLIDATED WITH

HIGH COURT OF KENYA

AT EMBU

CIVIL CASE NO.4 OF 1996

PETERSON WAWERU NDEGE .......................... PLAINTIFF

VERSUS

DOUGLAS NJUE KURIA .................................. DEFENDANT

JUDGMENT

These cases were all consolidated on the 4th November, 1998when they were called out for hearing. The reason forconsolidation is that they arose from one road traffic accidentinvolving motor vehicle registration No.KAA 204 Q a Toyota Hiace inwhich they were traveling on 23rd April 1995 as fare payingpassengers. In these proceedings all the plaintiffs wererepresented by Mrs. WANGARI MWANZIA Advocate while the DefendantDOUGLAS NJUE KURIA was represented by Mr. KIBIRA from the law firmof M/S MATHENGE & MUCHEMI Advocates.

JANE WAMBUI KAMAU is the plaintiff in this case No.28 of 1995.

I will refer to her as the "First Plaintiff". She instructed thissuit against the defendant through a plaint dated 23. 10. 1995 andfiled the following day. The claim is for general and specialdamages for injuries she sustained in the said accident.

JAMLICK MANENE is the plaintiff in HCCC No.35 of 1995. I willrefer to him as the "Second plaintiff". He instituted this suitthrough a plaint also drawn up on 23. 10. 1995 and filed on the24. 10. 95. He also claims general and special damages for injurieshe sustained.

JAMES WAITITU NG'ANG'A is the plaintiff in HCCC NO.40 of 1995. I will refer to him as the "third plaintiff”. He instituted this suit for general and special damages in a plaint drawn up on16. 11. 1995 and filed the following day.

PETER MUREITHI MUNENE is the plaintiff in HCCC NO.41 of 1995. I will refer to him as the "Fourth plaintiff". He instituted thissuit for general and special damages through a plaint drawn up on16th November, 1995 and filed the following day.

PETERSON WAWERU NDEGE is the plaintiff in HCCC NO.4 of 1996. I will refer to him as the "Fifth plaintiff". He instituted thissuit for general and special damages through a plaint drawn up on29. 12. 1995 and filed on 8. 1.1996.

On the issue of liability, which is common to all these cases,each of the plaintiffs gave evidence.

The first plaintiff told the court that on 23. 4.1995 sheboarded motor vehicle Reg. No. KAA 204 Q, which I shall refer as"TOYOTA HIACE" at a place called KIMBIMBI intending to go to NGURUBANI, where she stays. She sat on the third seat from thedriver's seat. She recalled that the driver then drove the ToyotaHiace very fast. As a result of that it veered off the road andlanded into a ditch on the left side of the road. It did notcollide with anything. In any case there were no other vehicles onthe road at that time. Due to the impact, she sustained injuriesto the right of her shoulder.

In cross-examination she told the court that the accidentoccurred 1/2 km after Kimbimbi matatu stage after the first bump.She could not tell the cause of the accident, but added that theToyota Hiace did not overturn.

The second plaintiff told the court that he had also boardedthe Toyota Hiace at Kimbimbi stage on his way to Ngurubani. He satat the front. He said that before the accident the Toyota Hiacewas being driven very fast. There was no obstruction in front todistract the driver. Then suddenly the vehicle veered off the roadand landed into a ditch. It did not overturn but hit a culvert.He sustained injuries as a result of that accident.

In cross-examination he told the court that the vehicle wasbeing driven very fast before the accident.

The third plaintiff gave evidence of how he also had boardedthe Toyota Hiace at Kimbimbi stage intending to go to Ngurubani.The time was about 8. 00 p.m. but it was a bit dark. He said it wasa straight road but there were bumps. Along the road the ToyotaHiace was being driven very fast, veered off the road to the leftand hit a culvert. He sustained injuries.

In cross-examination he said that he was seated on the fourthseat behind the driver, could see in front properly because therewere other people in front but the vehicle was being driven veryfast.

The fourth plaintiff repeated the same evidence that theToyota Hiace was being driven fast before it veered off the road.In cross-examination in particular this plaintiff had this to say:"I had the full view of the road in front. The driverwas not trying to avoid any head on collision with anyvehicle. There was no other vehicle along the front. Asa driver I could tell the vehicle was being driven fastbecause even after I closed the windows I could still hearwind passing fast. I would estimate the speed to havebeen about 100 km per hour".The fifth plaintiff told the court that he was seated on thesecond seat from the driver; that the driver lost control andveered off the road to the left and hit a culvert. The vehicletraveled for about 100 meters before hitting the culvert.

The defendant called his driver JAMES WAMBUGU KURIA as hiswitness. This witness said that he was indeed driving the ToyotaHiace about 8 pm along Ngurubani/Kimbimbi road. After leavingKimbimbi he met oncoming vehicles at a place called Ngurubani. Onevehicle was driven directly towards him. He then swerved off tothe left and accelerated to avoid being hit by that vehicle. Hemanaged to control it but he entered into a culvert whose presencehe had not known. He denied having been driving fast. He estimated the speed at which he was driving at 75 km per hour.

When cross-examined, he said that he had seen the vehiclewhich had come directly towards him when it was still far, about100 meters but then it was on its lane. Then when they were aboutto bypass each other, the other vehicle suddenly swerved to hislane and he had to avoid a head-on-collision by swerving off. Hesaid he also did not apply brakes as this would have resulted in ahead-on-col1ision.

I have taken that evidence into account. I find theexplanation of the defendant's driver not convincing. After he hadseen the oncoming vehicle driving directly towards him it wasrequired of him to slow and stop by braking and pulling aside, butnot to accelerate and meet it. If that is what he did, his mannerof driving was dangerous.

There is evidence from the plaintiff to the effect that thedefendant's driver drove the Toyota Hiace at high speed, before theaccident, that there was no oncoming vehicles at that time ofnight, that he lost control due to that high speed and veered offthe road, driving for another 100 meters before hitting a culvert.That kind of driving was dangerous to other road users and I holdhim liable for this accident. I assess his degree of liability at100%.

As the defendant's driver, driving the Toyota Hiace in thecourse of his employment and within the scope of his duty, I holdthe defendant vicariously liable, liability being assessed at 100%.

I now propose to deal with quantum of damages in respect of each case.

1. HCCC NO.28 OF 1995

As I have already stated above, this is the case filed by thefirst plaintiff against the defendant for general and specialdamages. On General damages the first plaintiff told the courtthat she sustained fracture of the collar bone and was admitted atKerugoya District Hospital for one week and half. She had alsosustained injuries to the 1st, 2nd and 3rd ribs. She presented tocourt a discharge abstract (Exhibit 1) from Kerugoya DistrictHospital and a Medical Report dated 16th January, 1996 from Dr WOKABI(Exhibit No.2). They show essentially that the first plaintiffsustained a fracture of the right collar bones, which has unitedwell, and injuries to the 1st, 2nd and 3rd ribs on the right sidebut which were not fractured. Mrs. Mwanzia proposed an award ofKShs.300,000 general damages and relied on the case of HCCC NO.5 387OF 1990 (NAIROBI) GIDEON MADEGESO & ANOTHER -V- FELISTA WANJIRU &ANOTHER.

Miss Susan Ndirangu, who held a brief for Mr. Kibira, for thedefendant submitted that an award of Shs.180,000 would be adequateand she relied on the decision of this court in HCCC NO.5285 OF1992 KROMAH MUSA -VS- MAPUS PALL where an award of Shs.175,000 wasmade for similar injuries by Justice Ringera in 1994.

Taking inflation rates and injuries sustained, I will make anaward of KShs.200, 000.

Special damages were not pleaded and proved and will nottherefore be awarded. I accordingly enter judgment for the first plaintiff in the sum of KShs.200,000 general damages, interest atCourt rates from the date of this judgment and costs.2. HCCC NO.35 OF 1995The second plaintiff presented a medical report to court whichwas marked as Exhibit No.7. It shows that he had sustained a deepscalp laceration, an extensive deep would on the right heel withloss of a lot of soft tissue, and the heel bone was exposed. It could not be closed. It was dressed until it became clean enough and that skin grafted. For this he was admitted at Kerugoya District Hospital for one week, transferred to Mwea Mission Hospital wherehe was admitted for a further period of one month, and thentransferred to JAMII NURSING home at Karatina where he was admittedfor a further period of one month. It was while he was at JAMIINursing home that the skin grafting was done. His complaints arethat he experiences pain on that right heel; he is unable to walkin closed shoes, cannot be able to step flat on the right foot andcannot undertake long journeys on foot. He limps when he walks.Dr Wokabi recorded that clinically the scar is very weak. It willbe prone to constant breakdown ever following minor pressure due tolack of protection by the soft tissues. The heel will be a sourceof pain for a long time. Ideally the 2nd plaintiff could undergoan operation to make the right foot plant grade (capable ofstepping flat). Cost of this operation will be approximatelyShs.60, 000,if this operation is not carried out, the secondplaintiff can only be able to walk with the forefoot. Dr Wokabithus assessed the second plaintiff's disability at 25%.

For these injuries Mrs. Mwanzia proposed an award ofKShs.400,000 general damages, and relied on the decisions of thiscourt in HCCC NO.4987 OF 1992 NAIROBI GITONGA NJEU THARA -V- ALBERTGITAARI MUGERA and HCCC NO.2037 OF 1988 NAIROBI MRS LILLY BEECHERBAILEY -V- KIRIMA KAMAU.

MISS SUSAN NDIRANGU proposed an award of KShs.150,000 and sherelied on HCCC NO.1664 OF 1991 NAIROBI. NEBBERT ASUDI ATONYA -V-JAVAN FRED OCHIENG & NATION NEWSPAPERS LTD (STEPHEN KIMANIKARANJA).

I have taken into account these submissions. I award the 2ndplaintiff Shs.250,000 general damages.

On special damages I award the second plaintiff Shs.19,250 andShs.60,000 for future medical treatment.

I therefore enter judgment for the second plaintiff in the sumof KShs.329,250 general and Special damages, interest at courtrates and costs of this suit.

Interest on special damages of Shs.19,250 to run from date offiling suit. It is so ordered.

3. HCCC NO.40 OF 1995

The third plaintiff presented a medical report as ExhibitNo.12 prepared by Dr. Wokabi which shows that he had sustainedmultiple scalp and facial lacerations, most of which were stitched.He had generalized backache and chest pains. He had sustained alsoa complete fracture of the right femur, abrasions on the left uppershin of the left leg. The right leg became shorter byapproximately 5 cm and this makes him to walk with a limp in his gait.

The fracture of the right femur has united with gross malunionand this is the cause of the deformity of the right thigh. It isthe cause of the shortening also. Left alone it is going to bemoderately disabled. The limping is not likely to be eradicatedunless an operation is done to correct the malunion. Surgery tocorrect this deformity will cost approximately Shs.100,000.

Upon this evidence Mrs. Mwanzia proposed an award ofKShs.600,000 general damages and relied on two decided cases: HCCCNO.705 OF 1996 PETER WILFRED M KAVILU -VS- JOSEPH NJIHIA WANITO &5 OTHERS (NAIROBI) where an award of KShs.415,000 was made Mrs.Mwanzia also prayed for an award of KShs.100,000 for future medicaltreatment.

Miss Susan Ndirangu proposed an award of Shs.180,000 andrelied on HCCC NO.5285/92 KROMA MUSA -VS- MAPUS PALL ANOTHER(Supra) and HCCC NO.20/1990 SUSAN OLALA -VS- DICKSON NDEGWA JAMES(Nairobi) where an award of Shs.200,000 was made for similarfracture of the femur bone. Miss Ndirangu conceded the payment ofShs.100,000 for future medical treatment.

I will award the third plaintiff Shs.250,000 general damagesand Shs.100,000 for future medical treatment.

I therefore enter judgment for the third plaintiff in the sumof KShs.450,000, interest at court rates and costs of the suit.

4. HCCC NO.41 OF 1995

The fourth plaintiff presented a medical report to court,which was marked Exhibit 18. It showed that he had sustained a cut wound on the left hand which was a laceration on the back of theleft thumb. He had also sustained a fracture of the left tibia,resulting in the left leg being immobilized in plaster for threemonths; he had also a fracture of the right tibia malleolus. Hisright leg was immobilized in plaster for two months. Both legs arestill weak and he cannot be able to walk or stand for long hours orto walk fast or even to run. The fourth plaintiff is likely todevelop osteoarthritis of the right ankle joint as a complicationof this fracture of the tibial malleolus.

For these injuries, Mrs. Mwanzia proposed an award ofShs.700,000. She relies on the decision of this court in HCCCNO.1845 OF 1995 (NAIROBI) DANIEL KINGORI -VS- IBRAHIM HAJI MOHAMMED& THREE OTHERS where Shs.500,000 was awarded to a plaintiff whohad sustained double fractures of left femur, fractures of 6, 7 and8 ribs on the left side, dislocation of the right sterno-clavicularjoint and lacerations on the left arm. Those injuries wereobviously more than the fourth plaintiff sustained. This promptedSusan Ndirangu to propose an award of KShs.200,000.

I will award the 4th plaintiff Shs.300,000 general damages.No special damages were proved.

I therefore enter judgment for the 4th plaintiff in the sum ofKShs.300,000, interest at court rates from the date of thisjudgment and costs.

5. HCCC NO.5 OF 1996

The fifth plaintiff presented a medical report which wasmarked Exhibit 21. It showed that he had sustained a fracture of the lower end of the right tibia. The right leg was immobilized inplaster for six months. After removal of the plaster he was foundto have a stiff right knee joint. The fifth plaintiff had alsosustained injuries to his both forearms, which were swollen anddeformed, especially the fingers. X-Rays showed he had nofractures or dislocations there. He was therefore treated formultiple sprains of the fingers. He had also generalised body aches and pains with no visible wounds.

The injuries of the fifth plaintiff were therefore fracture ofthe right tibia and soft tissue trauma to both forearms.

Mrs Mwanzia proposed an award of KShs.500,000 but Miss SusanNdirangu proposed Shs.150,000. I will award him shs.200,000. Nospecial damages were proved.

I therefore enter judgment for the 5th plaintiff in the sum ofShs.200,000 general damages, interest at court rates and costs ofthis suit.

These are the orders of this court.

Dated this 15th July, 1999, at Nairobi.

A. G. A. ETYANG'

JUDGE

Delivered this 15. 7.1999 in the presence of Mrs WangariMwanzia for plaintiffs Miss Susan Ndirangu for the defendant. RoseObachi Court clerk.

A . G . A . ETYANG

JUDGE

15. 7.99