[2011] KEHC 4106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO.186 OF 2008

MARY PAMELA OYIOMA...................................................................................................PLAINTIFF

VERSUS

YESS HOLDINGS LIMITED.............................................................................................DEFENDANT

JUDGMENT

This claim arises from the most unusual accident, at least from what can be gleaned from the pleadings. The plaintiff Mary Pamela Oyioma was on 5th October, 2005 traveling from Nakuru heading to Busia on motor vehicle registration No.KAS 132R. Upon reaching Salgaa, a lorry owned by the defendant, Yess Holding Limited driven by the defendant’s authorized agent lost control, hit another motor vehicle, KAV 631S before crushing the motor vehicle in which the plaintiff was traveling.

No evidence was presented by either party, a consent having been recorded on liability on 90%:10% ratio and all relevant documents admitted by consent. What therefore falls for determination is the quantum of damages.

Parties through their advocates filed submissions together with relevant authorities. For the plaintiff, it has been submitted that in view of her injuries, she was entitled to general damages for pain, suffering and loss of amenities in the sum of Kshs.1,800,000/=, costs of future medical expenses in the sum on Kshs.1,500,000/= and 3,200/= constituting special damages.

On their part, the defendant has submitted for:

General damages – Kshs.400,000. 00

Special damages – Kshs.3,200. 00

I have considered these proposals and the authorities upon which they are based. No doubt, the plaintiff suffered very serious injuries as confirmed by two doctors. Those injuries were:

1. a comminuted fracture of the right femur

2. a compound fracture of the right tibia

3. a fracture of the left tibia

4. soft tissue injuries of the right shoulder and

5. multiple cut wounds over the whole body

The plaintiff was subsequently examined by Dr. Kenneth Mbati, who gave the medical history of the plaintiff following the accident, the effect of which is that the plaintiff underwent several operations, hospitalized for several months; that she has been left with fractured limbs and surgical and traumatic scars; that she has suffered severe pains.

Dr. A. M. Otara instructed by the insurers of the defendant’s motor vehicle, Fidelity Shield Insurance Company Limited confirmed those injuries. He said in conclusion regarding the plaintiff that:

“She has had many surgical interventions to the limbs, but still her movement has been affected greatly by the accident. She has not resumed normal duties. I classify the injuries as maim.”

The authorities cited in support of the plaintiff’s claim for general damages for pain, suffering and loss of amenities range between Kshs.650,000/= and Kshs.800,000 (See Victor Musoga Vs. Linus Watito Kariuki, Nbi. HCCC No.2797 of 1997, Kombo Amani Vs. Attorney General & 2 Others, Msa. HCCC No.298 of 1989 Mohammed SheeVs.Dominic Mwaura, Msa. HCC No.119 of 1991 and Sabina Kibirithu Gitonga Vs. William Chege and Another, Nbi HCCC No.2680 of 1986. )

On the other hand, the defendant’s authorities relate to awards of between Kshs.160,000/= and Kshs.400,000/=. (See ReginaWambui Muhuhu Vs. Silas Kiniiya Gachii, Nbi HCCC No.634 of 2000, Lilian Wanja Njagi Vs. George Mwaniki, Nbi. HCCC No.1518 of 2001 and James Kirambu Mbugua Vs. D.V. Shah ECO (K) Limited, Nbi. HCCC No.277 of 1996. )

The proposals by the parties are worlds apart. It is the duty of this court to arrive at a reasonable award bearing in mind the nature of injuries suffered by the plaintiff. So far as possible comparable injuries should be compensated by comparable awards. See Rahina Tayah & Another Vs. Anna Mary Kinaru (1987-88) 1KAR 90 (per Potter, JA).

In the cited case of Victor Musoga (supra) where an award of Kshs.800,000/= was made under this head, the nature of the injuries are not disclosed in the judgment hence my inability to draw any comparison with the injuries in the present case.

In Kombo Amani (supra) where an award of Kshs.750,000/= was made in the year 2000 the plaintiff had suffered:

-fracture shafts tibia and fibula of both legs

-head injury

-severe contusion chest

-soft tissue injuries to the abdomen and back

The final medical report indicated that he had sufficiently recovered from the severe injuries and had no permanent disabilities. The injuries suffered by the plaintiff in the cited case are less severe than those suffered by the plaintiff herein. But a proposal of Kshs.1. 8m is excessive and not supported by any authority. Indeed, no reason has been advanced why I should depart from the decisions of the cited cases. The defendant’s proposal based on the decision of Regina Wambui Muhuhu (supra) is on the lower side. That decision and that of Kombo Amani were made in 2000, ten years ago. I award to the plaintiff Kshs.900,000/= for pain, suffering and loss of amenities.

The plaintiff also claims costs for future medical expenses in the sum of Kshs.1,500,000/=. Apart from an averment in the plaint that the plaintiff will need to undergo further treatment, there is no proof of how much that treatment would cost. It is settled that future medical expenses is a claim under special damages . It must therefore not only be pleaded but also proved. There is no contention on the special damages at Khs.3,200/=. Judgment is hereby entered against the defendant as follows:

a)General damages for pain,

suffering and loss of amenities - Kshs.900,000. 00

b)Special damages- Kshs.3,200. 00

Total - Kshs.903,200. 00

Less 10% - Kshs. 90,320. 00

- Kshs.812,880. 00

I award costs and interest to the plaintiff.

Dated, Delivered and Signed at Nakuru this 2nd day of February, 2011.

W.OUKO

JUDGE