[2022] KEHC 15004 (KLR)

Mwangi & another v Elmi & 2 others (Civil Suit 43, 39, 40, 41 & 42 of 2013 & 154 & 155 of 2014 (Consolidated)) [2022] KEHC 15004 (KLR) (Civ) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15004 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 43, 39, 40, 41 & 42 of 2013 & 154 & 155 of 2014 (Consolidated)

JN Mulwa, J

November 10, 2022

Between

Catherine Wangari Mwangi

Plaintiff

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 39 of 2013

Between

Christine Njeri Mwangi

Plaintiff

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 40 of 2013

Between

Christine Njeri Mwangi

Plaintiff

Suing as the mother of Kimberly Wangechi Githinji

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 41 of 2013

Between

Anthony Ndegwa Mwangi

Plaintiff

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 42 of 2013

Between

Prince Keli

Plaintiff

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 154 of 2014

Between

Catherine Wangari Mwangi

Plaintiff

Suing as mother and next of kin of Paul Kinyili

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

As consolidated with

Civil Suit 155 of 2014

Between

Catherine Wangari Mwangi

Plaintiff

Suing as the administrator of the Estate of the Late Geoffrey Mwangi Wamwea

and

Mohammed Abdi Elmi

1st Defendant

Mega Wholesalers Limited

2nd Defendant

Mega Transporters Company Limited

3rd Defendant

Judgment

1. The above suits were consolidated by various court orders. The lead file was selected as Civil Suit No 43 of 2013. Vide amended plaints dated October 26, 2018 and filed in court on November 12, 2018, the plaintiffs in all the consolidated suits sued the defendants for similar orders namely:-a.Special damages.b.General damages.c.Costs of the Suit.d.Interest on damages and costs.e.Any other relief that the court may deem fit and just to grant.

2. The defendants neither entered appearance nor filed statements of defence in all the consolidated cases. As such, interlocutory judgments were entered against all three of them on October 2, 2019. The lead suit proceeded to formal proof on May 30, 2022 on the matter of liability whereupon PW1, Catherine Wangari Mwangi, the plaintiff in Civil Suit No 43 of 2015 testified on her own behalf.

3. This judgment is therefore in respect to liability on all the consolidated suits herein and quantum of damages in the lead file only being Civil Suit No 43 of 2015. Directions on formal proof regarding the quantum in the rest of the matters shall be issued after delivery of this judgment.

4. The brief facts of the case are that: the claims arose from a road traffic accident which occurred on April 21, 2011 at Ndii area along the Nairobi – Mombasa highway in Taita Taveta County. The accident involved motor vehicle registration number [particulars withheld] Toyota Noah in which the plaintiffs herein were travelling and a trailer registration number [particulars withheld] Scania make, property of the defendants herein, which was being driven by the 1st defendant. The two vehicles had a head on collision for which the plaintiffs placed blame on the 1st defendant. As a result of the accident, the plaintiffs and their kins sustained injuries, two of which were fatal and they now seek damages as per their respective pleadings.

5. During formal proof, PW1, Catherine Wangari Mwangi, one of the passengers in the Toyota Noah, adopted her witness statement dated January 7, 2013 as her evidence in chief. She testified that she was heading towards Mombasa with her family in the Toyota Noah while the trailer was heading to Nairobi. There trailer came out of its lane causing a head on collision which she blames on the trailer.

6. It was her testimony that she sustained injuries on the forehead, shoulders and chest and they were first taken to Moi Referral in Voi then transferred to Agakhan Hospital in Mombasa. She later reported the accident at Voi Police station where she was issued with a P3 form dated May 2, 2011 and a police abstract dated June 9, 2011. The driver of the trailer was charged and convicted of two counts of causing death by dangerous driving in Voi Traffic Case No 425 of 2011 and was fined. Further, PW1 testified that she saw a doctor Ndeti who gave her a medical report for which she paid Kshs 3,000/-. Their advocates sent a demand letter to the defendants.

7. PW1 produced the following documents in evidence: medical report as exhibit 1; hospital receipt and discharge summary dated April 22, 2011 as exhibit 2; p3 form as exhibit 3; police abstract as exhibit 4; court proceedings from the traffic case at Voi as exhibit 5; a search certificate from the registrar of the motor vehicle and a receipt for search as exhibit 6; and, demand letter sent to the owner of the trailer as exhibit 7.

8. PW1’s testimony was neither controverted nor rebutted. Further, only the plaintiffs filed submissions herein through their advocates on record.

9. On liability, the plaintiff submitted that the defendants should be found 100% liable for the accident in view of the evidence on record. She urged that the 2nd and 3rd defendants be held vicariously liable for the accident which was caused by the 1st defendant.

10. On general damages, the plaintiff urged that an award of Kshs 500,000/- would suffice as adequate compensation for the injuries she sustained as a result of the accident. She relied onKitale Hauliers Limited v Emmanuel Soita Simiyu [2013] eKLR where Gikonyo J awarded the plaintiff therein Kshs 200,000/- for injuries almost similar to the present ones over 8 years ago. She also relied on Patrick Mwiti & Another v Kevin Mugambi Nkunja [2013] eKLR,where Makau J upheld an award of Kshs 170,000/= on account of general damages.

Liability 11. It is not in doubt that a road traffic accident involving the subject motor vehicles occurred on April 21, 2011 at Ndii area along the Nairobi – Mombasa highway in Taita Taveta County and the plaintiffs herein sustained serious injuries from which some of their kin died. The evidence adduced in the form of a police abstract from Voi Police Station as well as the certified copy of court proceedings and judgment in Voi Traffic Case No 425 of 2011 - Republic v Mohammed Abdi Elmi show on a balance of probabilities, that the 1st defendant who was the driver of the ill-fated trailer was to blame for the accident. From the evidence, it is clear that the 1st defendant was subsequently arrested, tried and convicted on his own plea of guilt, for two counts of the offence of causing death by dangerous driving. He was sentenced to pay a total fine of Kshs 35,000/- or six months imprisonment for each count in default. He resorted to paying the fine and the decision of the trial court in the criminal case has never been challenged or set aside. I therefore find that the 1st defendant is to blame for the accident.

12. As to whether the 2nd and 3rd defendants were vicariously liable for the tortious or negligent actions of the 1st defendant, the plaintiffs were required to prove that the prime mover and trailer were the properties of the 2nd and 3rd defendants and, that the 1st defendant was the driving the same in the ordinary course of his duties. The plaintiffs produced proof of ownership of the subject prime mover and trailer which the 1st defendant was driving on the material day, in the form of NTSA search certificates/copy of records. The search shows that the prime mover [particulars withheld] Scania model was owned by ASL Credit Limited and the 3rd defendant herein, Mega Transporters Company Limited whilst the 2nd defendant, Mega Wholesalers Limited, was the registered owner of the attached trailer registration number ZXXXX.

13. The 2nd and 3rd defendants did not file defences denying that they authorized the 1st defendant to drive the subject prime mover and trailer on the material day and neither did they come forward to testify during formal proof. They simply did not take any action with respect to this matter despite having been duly served with all the documents filed in court. In the premises, I find and hold that the plaintiffs have proved on a balance of probabilities that the 2nd and 3rd defendants are vicariously liable for the tortious actions of the 1st defendant in the subject accident.

Quantum of damages?a.General damages

14. At paragraph 6 of the amended plaint, Catherine Wangari Mwangi, the plaintiff in the lead file, pleaded that she sustained the following injuries as a result of the accident: cut wounds on the face, bruising of the forearm and soft tissue injury. In the P3 form tendered in evidence, the injuries were noted as follows: multiple cut wounds over the face (forehead), multiple bruises on the chest, back and forearm (elbow) and tenderness of the hip. This is corroborated by medical report by Dr Ndeti where the injuries were particularized as follows: blunt injury to the head; multiple bruises on the forehead; multiple injuries on the back; blunt injury to the anterior chest wall; bruises on the right arm around the elbow joint; blunt injury to the right hip; and, blunt injury to the lower limbs. The doctor noted that the time of examination on October 10, 2016 which was over five years later, she had multiple scars on the scalp, back, right arm and around the ankle joint. He opined that she suffered severe soft tissue injuries which were classified as harm.

15. In John Kaindo Ngugi & another v John Kimani Iraya [2020] eKLR, the respondent suffered soft tissue to the right wrist, right leg tissues and temporal scalp injury which were classified as mild soft tissue injury. Justice Wendo set aside the trial court’s award of Kshs 400,000/- in general damages and substituted it with Kshs 250,000/- in 2017. In F Kibon Changwony v Phoebe Nanjala Lubukha [2016] eKLR, the respondent suffered soft tissue injuries on the scalp, shoulders, arms and right eye; and, she had blunt trauma injuries to the neck, chest, lumbar spine, lower abdomen and legs. Justice Kimondo considered the trial court’s award of Kshs 250,000 as too high since there were no permanent injuries or consequences. He therefore set it aside and substituted with Kshs 150,000/- in 2016.

16. In Michael Okello v Priscilla Atieno [2021] eKLR, the respondent suffered blunt injuries to the head; neck, chest, left shoulder, right upper limb, cut wound and blunt injury to the right lower limb. Justice Aburili substituted the trial court’s award of Kshs 500,000/- on account of general damages with Kshs 250,000/- in 2021. Lastly, inFrancis Omari Ogaro v JAO (minor suing through next friend and father GOD [2021] eKLR, the respondent suffered the following injuries; cut wound with bruises on the temporal region; laceration with inflammation of the frontal part of the head; right umbilical region tenderness; left iliac region cut wound with bruises; bruises on the posterior aspect of the elbow joint bilaterally and right lower limb (lateral ankle joint) cut wound with bruises and inflammation. The injuries which were classified as harm, had healed with multiple scars. Justice Maina substituted the trial court’s award of Kshs 230,000/- on account of general damages with Kshs 180,000/-.

17. From the above authorities, it is evident that courts have awarded between Kshs 150,000/- and 250,000/- in general damages for soft tissue injuries which have healed permanently. In the premises, I find that an award of Kshs 250,000/- would suffice as general damages in this case, taking into account inflation and passage of time.b.Special damages

18. On this, Catherine Wangari Mwangi pleaded for Kshs 2,500/- for the medical report in her amended plaint. She produced an official receipt dated October 10, 2016 from Dr Titus Ndeti Nzina showing she was charged Kshs 3,000/- for the medical report. However, the court will only awrd the amount pleaded which is Kshs 2,500/-.

Conclusion 19. For the foregoing, I find and hold that the plaintiff herein, Catherine Wangari Mwangi, has proved her claim on a balance of probabilities. Consequently, I enter judgment as follows:a.The defendants herein are held jointly and severally wholly liable for the accident in all the consolidated cases.b.The plaintiff herein, Catherine Wangari Mwangi, is awarded the sum of:i.General damages – Kshs. 300,000/-.ii.Special damages – Kshs. 2,500/-.c.The general damages shall accrue interest at court rates from the date of this judgment until payment in full, while special damages accrue interest from the date of filing of the suit until payment in full.d.The plaintiff is also awarded costs of the suit plus interest at court rates.

20. The plaintiffs in all the other consolidated suits shall take a hearing date for assessment of damages at the registry, on priority basis.

Orders accordingly.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 10TH NOVEMBER 2022. JN MULWAJUDGE.