[2004] KEHC 1942 (KLR)
The court found that the plaintiff suffered significant injuries resulting in permanent disability, supported by medical evidence and expert testimony. The court accepted the parties' agreed apportionment of liability (plaintiff 15%, defendants 85%). Special damages were awarded as pleaded and proved. For pain,...
Source-derived case information.
- Citation
- [2004] KEHC 1942 (KLR)
- Parties
- Plaintiff: Misheck Musili Mutiso; Defendant: Mahmoud Osman; Defendant: Mombasa Liner
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 45 of ??
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff against the defendants jointly and severally, subject to agreed apportionment of liability.
- Legal Topics
- Personal Injury, Assessment of Damages, Apportionment of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Misheck Musili Mutiso
Plaintiff
Mahmoud Osman
Defendant
Mombasa Liner
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 What is the appropriate quantum of damages for the injuries suffered by the plaintiff as a result of the accident.
- 2 How should liability be apportioned between the plaintiff and the defendants as agreed by the parties.
- 3 Whether the plaintiff is entitled to special damages and future medical expenses.
Ratio Decidendi
The court found that the plaintiff suffered significant injuries resulting in permanent disability, supported by medical evidence and expert testimony. The court accepted the parties' agreed apportionment of liability (plaintiff 15%, defendants 85%). Special damages were awarded as pleaded and proved. For pain, suffering, and loss of amenities, the court awarded KES 650,000, inclusive of KES 60,000 for future medical treatment. The court also awarded a lump sum of KES 250,000 for loss of future earning capacity, given the plaintiff's disability and diminished ability to work, despite lack of specific evidence on pre-accident earnings. The total award was KES 1,030,050, subject to the...
Court Disposition
Judgment for the plaintiff against the defendants jointly and severally, subject to agreed apportionment of liability.
Orders
- Plaintiff awarded KES 70,050 as special damages.
- Plaintiff awarded KES 960,000 as general damages (including pain, suffering, loss of amenities, future medical expenses, and loss of earning capacity).
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 45 OF 2000 RD
MISHECK MUSILI MUTISO ………………………… PLAINTIFF
V E R S U S
1. MAHMOUD OSMAN
2. MOMBASA LINER …………………………… DEFENDANTS
J U D G M E N T
In this case liability is agreed by the parties thus:-
Plaintiff 15%
Defendants jointly and severally 85%
On the issue of assessment of damages, the plaintiff called Dr. H.
Patel who examined the plaintiff on 15/9/00. The doctor gave evidence and produced a medical report. The plaintiff has to undergo a further operation costing about 60,000/-. He produced exhibit 1 and 2 – receipt for payment of shs. 2500/- The doctor also said that the injuries cause the plaintiff to walk slowly but that he is not totally unemployable. The plaintiff also gave evidence describing his injuries. He said he still feels pain and headaches and that he now walks with the support of a stick. He produced medical expenses receipts shs. 64,460/-. He said he used to play football but now with injury he is not able to enjoy the spot. He was 24 years at the time f accident. The medical report describes the injuries suffered as:-
(1) Fracture humerus
(2) Fracture 5th Metatarsal bone (left foot)
(3) Severe crush injuries of right foot with deep wounds
(4) Extensive wounds on back and head.
(5) Contusion head and chest.
Treatment was at Voi, Coast General Hospital and Kilifi Hospital and Kikuyu Hospital. He was treated for non-union of fracture of left arm and deformity of right foot. He also underwent operation of platting and bone graft for left humerus fracture. The plaintiff was injured on 10. 10. 98 and treated. He did not complete treatment until March 2000. He has deformity of right foot and he cannot therefore move swiftly. He suffers from permanent disability. He required further operation to remove metal plate and screw from left arm approximate charges about 60,000/-
Ms. Ngugi counsel for the plaintiff submitted for shs. 1. 5.m for injuries loss of social life and for further operation. She claimed 60,000/- costs for future operation and proved specials in the sum of shs. 64,450/- and doctors report fees of 3000/-. police abstract shs. 100/- doctors attendance to give evidence sh. 25000/- costs and interest. M. Gor proposed 550. 000/- to be reduced by 15% He conceded special damages claimed.
I have considered evidences the submission of counsel and the authorities cited. There being no objection l allow special damages as pleaded.
Shs. 64,450/- medical expenses
3,000/- medical report
2,500/- doctor attended to give evidence.
100/- police abstract.
70,050/-
On the issue of pain suffering and loss of amenities, l am convinced that a sum of shs. 650,000/- would compensate the plaintiff including shs. 60,000/- for further treatment. The plaintiff was employed in a restaurant before the accident. It is not shown what salary he was earning. The doctors evidence shows that the plaintiff is not completely unemployable. It appears he has not made any effort to get a job. Loss of future earnings is part of general damages suffered by an accident victim. From the medical evidence it is clear the plaintiff has disability and therefore his earning capacity would definitely be affected. For these reason l am inclined to make a lump sum for this item in the sum of shs. 250. 000/-.
Judgment is therefore entered for plaintiff against the defendants jointly and severally in the sum of: -
1. Shs. 70. 050/- special damages
Shs. 960. 000/- general damages
Shs. 1030. 050/-
The amount is subject to apportionment on the agreed liability. The plaintiff will have his costs and interest.
Dated this 30th day of July, 2004.
J. KHAMINWA
JUDGE