[2017] KEHC 1290 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 497 OF 2011

JOHN NGUGI GITAU.....................................................PLAINTIFF

-V E R S U S –

HON. THE ATTORNEY GENERAL............................DEFENDANT

JUDGEMENT

1) John Ngugi Gitau, the plaintiff herein, commenced this suit by way of the plaint dated 7th November 2011 against the Attorney General the defendant herein, for compensation for gunshot injuries he sustained.

2) The plaintiff alleges that on 5th March 2011 while going about his daily businesses on the streets of Narok town along Ololung’a he was shot at by live bullets fired by armed police officers who were allegedly pursuing armed criminals. The bullet pierced through the plaintiff left leg that was later on amputated under the knee.

3) The defendant filed his defence dated 15th March 2012 denying the plaintiffs claim.

4) The plaintiff herein, PW1 testified alone without summoning independent witnesses. He stated that he was in Olulung’a area in Narok town on 4th March 2011 doing his daily business when he was hit by a bullet on his left leg. He was taken to Narok District Hospital and later transferred to Tenwek Hospital in Bomet County for specialised treatment. His left leg was later amputated rendering him incapacitated. Dr. Ikonya J. M prepared medical reports showing that the plaintiff suffered a permanent incapacity assessed at 60%.

5) The plaintiff said that he used to carry out a variety of businesses which include buying and selling of potatoes and vegetables, operating a hotel, second hand clothes business and selling water. He said that the nature of his business was informal hence did not require licences. He also employed people to assist him in his various businesses.

6. ) PW1 said in his testimony in cross examination that he is no longer operating any business anymore as a result of the shooting.

7) The defendant on the other hand closed his case without summoning any witnesses.

8) The issues left to this court to determine were:

i.Whether the plaintiff was indeed shot by police officers as alleged and if yes who is liable for his injuries.

ii.What is the quantum of damages payable.

9) The first issue for determination is whether the plaintiff was shot by police officers and if so who is liable for the plaintiff’s injuries. PW1 testified of the events that led to his shooting before this honourable court. The police P3 form filled by Dr. Soita N. A at Narok District Hospital and the discharge summary from Tenwek Hospital confirmed that the plaintiff’s injuries to have been caused by a gunshot. The documents produced in evidence show that on the one hand, the plaintiff was shot on a mistaken identity, while on the other hand it is stated to be a stray bullet.

The plaintiff testified that he was taken to hospital by administrative police officers, who told him that he had been shot at.

10) The defendant on the other hand did not call any witnesses. It is in his submissions that the plaintiff has not proved that indeed he was shot by police officers. There was no evidence to show that the plaintiff could not have been shot by people other than the police. The plaintiff did not adduce any evidence of investigations conducted by a competent authority for instance, the national police service to confirm that it is the police who indeed shot at him. Neither did the plaintiff call any witnesses to collaborate the events that led to his shooting.

11) The defendant submits that the burden of proof lies on the plaintiff and he is convinced that the burden has not been discharged by the plaintiff herein.

12) The plaintiff cited the case of Joseph Chege vs AttorneyGeneral Nairobi HCCC no. 6456 of 1992(unreported) where the Attorney General was held liable for the shooting of a member of the public. It was held inter alia that “........ As it is not lawful for policemen to shoot at members of the public except on self defence, on a balance of probabilities, I hold that the police officers did shoot the plaintiff negligently on the material date and the plaintiff had not disobeyed an order to stop. The defendant is vicariously liable for the policemen’s action as they were acting in the course of their duties.”

13) The defendant cited the case of Patrick Mbuthia –vs-Attorney General & 2 others (2016) eKLR;where the court observed that, “In civil proceeding, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him”.

14) From the evidence and submissions presented to this court I am convinced that the plaintiff has proved that he was shot by a police officer. The defendant can therefore not be held liable for the injuries sustained by the plaintiff herein. The Medical reports and the discharge summary are not conclusive evidence to ascertain liability on the part of the defendant.

15) The second issue for determination by this court is on quantum of damages payable.

The plaintiff has proposed to be paid damages as follows:

1. General damages for pain and suffering Ksh.10,000,000/=

2. Cost of the Doctor’s medical report Ksh.2,000/=

3. . General damages for loss of earning capacity (70-46=24)

at a monthly earning ksh. 100,000/=

100,000x24x12= Ksh.28,800,000/=

4. Cost of aide to assist the plaintiff in his day to day activities

at a minimum wage of 4,047 calculated as 4,047x24x12 = Ksh.1,165,536/=

5. Exemplary/punitive/aggravated damages Ksh.500,000/=

6. Purchase of artificial limb Ksh.500,000/=

Total ksh. 40,967,536/=

16) The defendant proposed damages payable to the plaintiff as follows

i. General damages for pain and suffering ksh.450,000/= The defendant cited the case of Peter Njoroge Gichii –vs- Bernard Thimangu & Another (2006) eKLR.where the plaintiff sustained intra-peritoneal haemorrhage and perforations of the descending colon ileum. The court awarded ksh.300,000/= in 2006. Given the rise in the cost of living since 2006 the defendant submits that 450,000/= would be adequate compensation to the injuries sustained by the plaintiff.

ii. Cost of aide and costs to purchase artificial limb

The defendant submits that this falls under the ambit of special damages and as such should not be awarded.

iii. Cost of rehabilitative physiotherapy

The defendant submits that the plaintiff is not entitled to this prayer because it cannot be proved until treatment has been undertaken and paid.

iv. Loss of earning and earning capacity

The defendant submits that the plaintiff cannot benefit from both. Loss of earning capacity is justified at ksh.500,000/= and loss of earnings award would be an overlap of the award on general damages. The defendant cited the case of Rock masters Limited –vs- Isaack Kabue Miringu (2017)eKLR,Final computation by the defendant were as follows:

General damages for pain and suffering ksh.450,000/=

Loss of earning ksh.500,000/=

Total ksh.950,000/=

17) After a careful consideration of the proposals by both parties on the issue of quantum I am of the view that if the plaintiff had succeeded I would have awarded him as follows:

1. General damages for pain and suffering – Ksh. 3,000,000/-

2. Special damages Ksh.2,000/=

Total = Ksh.3,002,000/=

I find the above award to be reasonable and commensurate with the injuries sustained.

18) In the end, the plaintiff herein having not proved liability against

The defendant, the suit herein is dismissed with each party bearing its own costs.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................for the Plaintiff

................................... for the Defendant