[1999] KEHC 67 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Civil Case 108 of 1997

MOSES MWANGI MUCHINA …………….……………......….. PLAINTIFF

VERSUS

1. AFRICAN LINE TRANSPORT CO. LTD

2. HUSSEIN MUHIR ABDALLA …………..………..............…. DEFENDANTS

Coram:

J.W. Mwera - Judge

Mulu Advocate for plaintiff

A.F. Gross Advocate for defendant

Court clerk - Muli

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JUDGEMENT

This suit was filed on 19. 6.97 wherein the plaintiff claimed that on 19. 2.97 when he wasdriving motor vehicle registration No.KAG 054C along Mombasa/Nairobi Road, he got to apoint called Cescent Construction site. That the 2nd defendant had driven and stopped the 1stdefendant's motor vehicle registration No.KAH 139N-ZB 6247 in such a negligent manner thatit obstructed other motorists on the said road, like the plaintiff. As a consequence the plaintiff’smotor vehicle collided with the 1 st defendant motor vehicle leaving the plaintiff with acompound fracture of the right lower tibia plus bruises and other injuries to the trunk of hisbody. He prayed for damages, costs jointly and severally, including loss of earning prospects.2

A joint defence was filed on 15. 6.97, on their part the defendants averred that they werenot liable in negligence but that the plaintiff solely or wholly contributed to the said accident byfailing to notice the warning signs, reflectors, branches et.c that the 2nd defendant had placedbehind his motor vehicle. That the plaintiff did not stop swerve or brake to avoid the collision.Apparently there was no reply to this pleading but on 8. 8.97 a statement of issues was filed by consent.

On 10. 12. 98 the plaintiff (P. W. 1) testified that on the material night he was driving a busfrom Kisumu to Mombasa. He then came to where the defendant's lorry had stopped. Oncoming motor vehicles with lights on made it impossible for the plaintiff to see this lorry. It hadno warning lights or signs behind it. Its appearance was so abrupt that without time to swerve orbrake the plaintiff's bus rammed into the rear of the stationary lorry. That he had been driving at70 kph.

The accident was reported to the police and the plaintiff produced an abstract (ExhibitP. 1). He was admitted to Machakos General Hospital for 7 days then he moved to be attended toby Dr. Kiragu at Gill house Nairobi. Dr. Kibore examined him and made out the report whichthe plaintiff paid for (Exhibit P.2A-B). On his part Dr. Kiragu charged and the plaintiff paidShs. 1,550/- (Exhibit P.3). The defence later directed the plaintiff to Dr. Bencivenga whoexamined and prepared a medical report (Exhibit P.4). injuries were a fractured right leg whichnecessitated use of a crutch. He also suffered a wound to the left leg (Exhibit P5). The plaintifftold the court that he was no longer working as a driver. His last pay with the bus company heworked for, was Shs, 4,500/-. The plaintiff denied causing or contributing to the cause of thataccident. He claimed that the rear gate of the defendant's trailer which bears reflectors was removed and placed on top of the trailer and the lorry had stopped in the middle of the road, onthe plaintiff's side as he faced Mombasa.

In cross-examination the plaintiff told the court that his bus sustained much damage onthe driver's side i.e. the right. But the of lorry was not badly damaged. It had no warning signsthat it had stopped at this point. That the 2nd defendant was tried in traffic case following thataccident. The plaintiff who was unwell did not attend the trial. He did not know the outcome.In re-examination the plaintiff referred to his salary of Shs.3,400/- in April 1997.

Dr. Kibore (P.W.2) referred to the injuries sustained by the plaintiff in Exhibit P.2. Hehad seen him later and concluded that the plaintiff could no longer work as a driver since theaccident (Exhibit P.6). Dr. Kibore could have estimated the plaintiff’s disability at 15 per cent.Dr, Bencivcnga put it at 10 per cent. The plaintiff ended with a shortened leg which impairedproper driving but he could do other jobs.

Cpl. Ngechu (P.W.3) then testified. He got a report of the accident in issue at 3 a.m. onthe material night. He proceeded there and found the 2 motor vehicles above referred to Onecontainer could not fit in the defendant's trailer and so it protruded behind. The trailer hadstopped with all its wheels on the tarmac. The plaintiff's bus had been badly damaged on thefront part, the plaintiff himself told the court that his driver's side was the part that wasdamaged. To P.W.2, this collision appeared to have taken place when the bus tried to avoid thetrailer's rear which had inclined into the near lane with one wheel on the edge of the road. Nottoo long ago in this testimony itshall be recalled that P.W.2 had just testified that all the wheelsof the trailer were in the lane. P.W.2 learned from a security guard with the trailer that itsuffered 2 punctures. None of its occupants were present and there were no warning signs e.g.reflectors or branches placed on the road by the trailer driver. That it was P.W.2's team which then did that, That in the morning the trailer driver Abdallah came and he drove it to Kyumbipolice post even before the punctures were repaired it moved slowly P. W.2 told the court thatthe trailer occupied the whole near side lane i.e. to the left as one went to Mombasa and anymotor vehicles coming along could only do so by getting in the lone of the oncoming motorvehicles. At this point were a bridge and a deep galley. But there was room to park a little aheadon. P. W.2 completed the investigations including taking statements and sketch plans and hecaused the 2nd defendant to be charged with obstruction. But he was acquitted. P.W.2 couldnot produce the sketch plan produced in the lower court. However the court allowed him to putin onc, according to his recollection- the same to be considered along other evidence (Exhibit P.7). in cross examination this witness said that the bus had tended to go to the left of the roadat the time of the accident.

That closed the plaintiff’s case.

Next was the 2nd defendant Abdallah (D. W. 1). As he came to the scene already referredto some nails placed on the road (definitely by criminal elements) punctured five of his trailer ina line - from the lorry to the container carrier which carried coffee from Kampala. He pulled offthe motor vehicle three quarters from the road. It could not go further left as one facedMombasa. He stopped it. It was at night. Using the headlights D. W. 1 placed triangles andbranches on the road to warn other motorists, together with lights remaining on. They wereunder security escort who had slopped at Kyumbi trading centre. He reported to this aide and proceeded to Machakos town to call his employers to bring tyres. He stayed overnight at

Machakos. Tyres were brought the following morning. He went to the scene and learnt that at2. a.m. a bus had hit into the trailer. He didnot find it there. To D. W. 1 he parked the trailer insuch a way that some motorists were using the lane. This motor vehicle could not move at all without replacing the punctured tyres. After that was done he moved it to Kyumbi police post.The trailer doors were not open at all. The 2 containers carrying coffee fitted in leaving 2 feet to close the doors and carry the coffee safely. His trailer was hit on the LEFT------------ the part away from the road as one faced Mombasa direction (Exhibit D. 1). He was charged butacquitted of obstruction.

In cross-examination this witness added that as he left the trailer to report the puncturedtyres, he left 2 of his colleagues in it. He denied leaving the trailer in the road without warningssigns that it was there.

Fredrick Kyalo (D.W.2) was defendant's turn boy. He repeated the same story from the time their motor vehicle suffered punctures and how D, W. 1 drove it almost off the road andstopped. It carried coffee safely secured in the containers with door closed. They had placedsignals and branches on the road. He went to sleep and wait in the cabin. He then heard a bangand their trailer shook. When he came out to check he found a bus had hit the trailer on theLEFI side. He had seen a motor vehicle coming from Mombasa direction. That when thismotor vehicle got near the trailer's cabin, then the bus banged into the reax of it. It was at astraight point of the road. Police came took measurements and drew sketch plans.

Both sides submitted. The plaintiffs side placed substantial amount of the liability onthe 2nd defendant and therefore on the 1st defendant vicariously. The cases of DCM THYSSENV. WAKISU ESTATE LTD. [1960] E.A. 2896 and KHAMBI & ANOTHER V. MAHITAI &20 ANOTHER [1969] E.A.71 were cited on apportionment of negligence in situations as this. Itlooks like after citing these 2 cases the plaintiff's side would be happy with one hundred per centliability to be borne by the defendants otherwise it could fairly be apportioned at ninety five per cent for the defendants and five per cent to the plaintiff General damages were put atShs.800,000/= citing the cases of;

NGWE MWALILI VS KELI HCCC 3217/89

MISHACK OLANG VS GOW1 HCCC 2371/90

& PATRICK KANGUNDU VS. MUSILU & ANOTHER HCCC 1202/90

Inthese cases damages ranged between Shs.250,000/= to Shs. 400,000/=.

There was damage for loss of income from the date of the accident to the date of trial.This court thought that such award would be by way of special damages. It could be specificallypleaded and proved. That was not the ease here and it need not detain the court, until it is writing out its determination.

There was another head of prospective loss of income after trial. This is what this courtthinks is called "loss of earning capacity," A monthly income of Shs. 5,000/= was put forthnobody can say where from and a multiplier of 20 Shs. 1,2M was proposed. Again this is not tomake a short job of the plaintiff’s case go this point, but there was no evidence produced aboutthe plaintiff's income per month as a driver. He told the court that he earned Shs,4,500/= permonth with allowances. He pleaded Shs.4,000/= per month. In cross-examination a documentwas shown to him and he stated that in April 1997 he earned Shs.3,400/-.

Special damages for hospitalisation, doctor’s fees e.tc. were put at Shs.53,100/=. Thegross award stood at Shs.2. 2M. The defence was of the view that the accident was solely caused by the plaintiff. But if the court found otherwise he should bear 75 %. Going over to doctors reports and the defenceciting its own cases (several) which this court similarly perused said that loss of earning capacitywas not proved and only Shs, 52,100/= was proved for special damages.

Beginning with the issue of liability this court took time to look at evidence of both sidesside by side. The plaintiff told this court that the whole of the defendant's trailer stood in thelane as one drove to Mombasa. There were no reflectors lights, signals or other marks to warnother motorists passing there. He came along driving 70 k.p.h. and being dazzled with lightsfrom an oncoming motor vehicle, the defendant's trailer suddenly loomed before him. He couldnot swerve or stop. He rammed in its rear. But that there the plaintiffs driver's side was badlydamaged, One would have thought that if the defendant's trailer stood right in the middle of thelane, the plaintiff unable to swerve or brake should crush the front part of the bus into the rear ofthe trailer. In any case P.W.2 Cpl. Ngechu who could not produce the sketch plan he made onthe scene had a different view or at least a conflicting one. First that the whole of the trailerstood in the lane as one drove to Mombasa as the plaintiff's bus was doing. There were no signsbranches e.t.c. But then in the same breath he told the court that one or two wheels of the trailerwere on the verge of the road. Now these are two stories one excluding another. Coming to thedamage, the plaintiff categorically told the court that his driver's side of the bus was badlydamaged. Cpl. Ngechu saw the whole front part of the bus damaged after the collision. So whois saying the truth? Both P.W. 1 and 2 cannot be testifying of the same thing.

This court is inclined to believe the defence case. The trailer suffered a series ofpunctures. It was heavily loaded with coffee. Its driver, D. W. 1 drove three quarters of it allonto the left side as one faced Mombasa. It could not go further. Warnings were placed on theroad. He left it to call for help. As P.W. 1 drove along, he was about to overtake the trailer. Hesaw lights of a motor vehicle coming from the opposite side. He could not overtake the trailerwithout risking a head-on collision. He pulled back into his lane and even attempted to pass thelorry on its left side I.e. of the road. He hit the rear left side of the trailer and his own right side of the bus was badly damaged. This can only be attributed to the plaintiff's in- attention, lack oflookout and high speed. That was pleaded in the defence. It was not denied by way of reply (see06 r, 9 C.P.R.). The plaintiff has himself to blame. Indeed had the 2nd defendant been wrong inthat his stopping the trailer constituted obstruction in any way with all the stories from P. W. 1and 2 plus sketches, he could not have been acquitted of such a charge.

In sum this suit is dismissed with costs.

Had his suit succeeded the plaintiff would have borne a greater ratio of liability and alldamages worked out would have been subjected to that. General damages would have issued inthe region of Shs.200, 000/- and Shs.350, 000/-.

Suit dismissed. Costs to the defendants.

Judgment accordingly.

Delivered on 15th December 1999

J.W. MWERA

JUDGE

15. 12. 99