[2005] KEHC 3071 (KLR)
The court found that the Plaintiff had established, through documentary evidence and uncontroverted testimony, that the Defendant owned the vehicle and that the accident occurred as alleged. The Defendant, having failed to appear or adduce evidence, did not rebut the Plaintiff's case. The Plaintiff proved that he...
Source-derived case information.
- Citation
- [2005] KEHC 3071 (KLR)
- Parties
- Plaintiff: Justus Ngeta Musyoka; Defendant: Eldoret Express Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 204 of 2003
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Negligence, Employer Liability, Road Traffic Accidents, Personal Injury, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Ngeta Musyoka
Plaintiff
Eldoret Express Co. Ltd
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Defendant was the owner of the motor vehicle involved in the accident.
- 2 Whether the Plaintiff was employed as a bus conductor and/or a passenger in the Defendant's vehicle at the material time.
- 3 Whether the Defendant or its servant/agent was negligent, causing the accident and injuries to the Plaintiff.
Ratio Decidendi
The court found that the Plaintiff had established, through documentary evidence and uncontroverted testimony, that the Defendant owned the vehicle and that the accident occurred as alleged. The Defendant, having failed to appear or adduce evidence, did not rebut the Plaintiff's case. The Plaintiff proved that he was injured due to the negligent driving of the Defendant's servant or agent. The court accepted the Plaintiff's evidence on the extent of injuries, loss of earning capacity, and the quantum of damages. The Defendant was held 100% liable for the accident and the resulting injuries. The Plaintiff was awarded general damages for pain, suffering, and loss of amenities, as well as...
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered against the Defendant for the Plaintiff in the sum of KES 1,602,100.
- Plaintiff awarded costs and interest at court rates.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 204 OF 2003.
JUSTUS NGETA MUSYOKA ………………................................….………….... PLAINTIFF
VERSUS
ELDORET EXPRESS CO. LTD ………………...............................………... DEFENDANT
J U D G E M E N T
The Plaintiff filed suit as an employee of Defendant as Bus Conductor in a motor vehicle KAM 621T Isuzu Bus owned by the Defendant Company. He also sues as a passenger in the said bus.
On or about 7. 1.2003 the Plaintiff was traveling in the said bus lawfully carrying on the duties of a bus conductor. The Plaintiff claims special and general damages out of injuries received by the negligent driving of the servant employee and or agent of the bus thereby causing accident. The Plaintiff also claims costs.
The Defendant filed an appearance and defence changed advocates once. In his defence the Defendant denied ownership of the motor vehicle and that it employed the Plaintiff. Defendant denies that Plaintiff was passenger and conductor in the bus. The Defendant denies the accident occurred and that his driver was negligent and the particulars of injury.
The Defendant blames a third party. He also pleads inevitable accident and the Doctrine of Res Ipsa Loquitor is not applicable. The Plaintiff’s counsel drew up and filed issues and prepared a list of documents.
On the hearing date the Defendant did not appear or his advocates or representative. Counsel for Plaintiff had filed an affidavit of service and requested to be heard under Order 9B rule 3(a). The hearing therefore proceeded without the Defendant or his representative.
The Plaintiff Justus Musyoka gave evidence and produced exhibits. His evidence is that the vehicle belonging to the Defendant aforementioned hit another vehicle on the road which had a trailer from behind and was overtaking at a corner and was driving fast. The evidence before court confirms that although Defendant blamed another part he did not take out third party proceedings although Defendant denies ownership of the vehicle.
Kenya Revenue Authority copy of records exhibit shows that the vehicle was shown as owned by Defendant as on 7. 1.2003 and a police abstract shows that the accident did happen on 7. 1.03 on Naivasha – Nairobi Road and that the Plaintiff did receive grievous harm. In the circumstances I believe the evidence of the Plaintiff and I find the Defendant liable on 100% basis.
On the issue of quantum the injuries are:
1) Severe crush injury of left lower leg
2) Deep wound on the left groin
He was in hospital for one week and thereafter out-patient. One left leg was amputated below the knee lever and he was fitted with artificial leg in March 2003. He did not return to work.
He has healed scar and because of loss of left leg below the knee he walks with use of a clutch. At the time of accident the Plaintiff was aged 27 years and was earning 16,000/= per month. The Doctor says that with his emputed leg hecannot perform duties of bus conductor now. His advocate submits for Sh. 1,600,000/= for General Damages. On evidence on record and considering all the loss suffered by the Plaintiff I am of the view that sum Sh. 1,600,000/= is adequate to compensate for all pain and suffering and loss of amenities. I award the same.
Regarding Special Damages only Sh. 2,100/= was pleaded and proved. I also award the same.
Judgement is therefore entered against Defendant for Plaintiff in the sum of Sh. 1,602,100/=. The Plaintiff shall have costs and interest at court rates.
The damages will carry interest from date of judgement. The special damages from the date of filing suit.
Dated the 4th June 2005/
J KHAMINWA
JUDGE