[1992] KEHC 118 (KLR)
The court found the plaintiff's evidence credible, consistent, and unshaken by cross-examination. The defendant failed to call any eyewitnesses to the accident and relied solely on a police officer's testimony, who was not present at the scene. The court held that, in the absence of any contradictory or unbelievable...
Source-derived case information.
- Citation
- [1992] KEHC 118 (KLR)
- Parties
- Plaintiff: Kimadi; Defendant: Mbuni Transport Co. Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 363 of 1989
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Personal Injury, Negligence, Motor Vehicle Accidents, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimadi
Plaintiff
Mbuni Transport Co. Ltd
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant was liable in negligence for the accident resulting in the plaintiff's injuries.
- 2 Whether the plaintiff's evidence was credible and sufficient to establish liability.
- 3 What quantum of damages is appropriate for the injuries and losses suffered by the plaintiff.
Ratio Decidendi
The court found the plaintiff's evidence credible, consistent, and unshaken by cross-examination. The defendant failed to call any eyewitnesses to the accident and relied solely on a police officer's testimony, who was not present at the scene. The court held that, in the absence of any contradictory or unbelievable evidence, the plaintiff's account must be accepted. The court further found that the plaintiff was entitled to general damages for pain, suffering, and loss of amenities, as well as special damages for hospital expenses, police abstract, and medical report costs. No evidence was provided regarding diminished earning capacity or the need for further medical treatment, so no...
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall pay the plaintiff KES 341,212 in total damages.
- The defendant shall pay the costs of these proceedings.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
Kimadi v Mbuni Transport Co. Ltd
High Court, at Mombasa January 10, 1992
Shields J
Civil Case No. 363 of 1989
January 10, 1992, Shields J delivered the following Judgment.
The Plaintiff is a school teacher. He was 32 years of age. He was driving his motor-car a Mazda saloon registration number KJU 509 on 28th June, 1987 from Mazeras to Mombasa. Between 6. 30 and 7. 00 p.m. his car was hit by a bus and he sustained injuries which led to his arm being amputated and he suffered whip-lash injury to his neck. He has lost his right arm, he suffers from dizziness and forgetfulness.
He owes the Mombasa Hospital Kshs.40,112/-. He paid shs.100/- for Police Abstract and he paid Mr. Hemant Patel shs.1000/-for his Medical Report.
His account of the accident is that the defendant’s bus was coming from the opposite direction, overtook a vehicle and despite his flashing his headlights, the bus came upon him at high speed. He swerved to the left but his motor-car was hit and thereafter he lost consciousness.
The truthfulness of his evidence was not shaken by Mrs. Adogo’s cross-examination. She did not call any eye witness to the accident. It was content to rely on the investigation of the police officer Peter Musyimi who gave evidence as DW.1 who blamed the Plaintiff for the accident. He was not present at the accident. He took statements from witnesses and made a rough sketch. According to his evidence, he caused the plaintiff to be prosecuted for careless driving. The Plaintiff was however acquitted.
In these circumstances, it appears to me that I must accept the Plaintiff’s evidence unless it is unbelievable or inconsistent or it contradicts the account given by the Plaintiff to the police or it is inconsistent with some evidence which the investigating officer, has been able to observe with his own eyes. I could find nothing unbelievable, inconsistent or contradictory in the evidence of the Plaintiff and nothing in the Police File, to persuade me to disbelieve the Plaintiff’s evidence.
I have been referred to a few cases. Mombasa HCCC. No.508 of 1987 and HCCC.No.298 of 1984. No evidence has been led as to the possibility that the Plaintiff’s earning capacity has diminished. Nor has evidence been led as to the cost or necessity for a further medical treatment or as to the desirability or otherwise of fitting the Plaintiff with an artificial arm. No award consequently can be made on these items.
Guided by the cases referred to, I will award the Plaintiff shs.300,000/- general damages for pain, suffering and loss of amenities. To this should be added the Plaintiff’s hospital expenses of about shs.40,112/-, costs of the Police Abstract and costs of the Medical Report making in all shs.341,212/- and costs of these proceedings.