[2023] KEHC 23675 (KLR)

Ndung’u v Maisitis & another (Civil Case 35 of 2017) [2023] KEHC 23675 (KLR) (Civ) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23675 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 35 of 2017

AN Ongeri, J

October 19, 2023

Between

John Njoroge Ndung’U

Plaintiff

and

Hudson Maisitis

1st Defendant

Cello Thermoware Ltd

2nd Defendant

Judgment

1. The plaintiff in this case John Njoroge Ndungu (hereafter referred to as the plaintiff only) has sued the two defendants Hudson Maisitis And Cello Thermoware Ltd (hereafter referred to as the 1st and 2nd defendants respectively) seeking general damages for pain and suffering and special damages and future medical expenses for injuries the plaintiff sustained on 15/6/2014 when the plaintiff was riding motor cycle registration no. KMCW 002H along Mombasa Road near Sameer Business park when the 1st defendant driving the 2nd defendant’s motor vehicle registration no. KAU 547W made a sudden U turn on the road and caused it to collide with the plaintiff’s motor cycle inflicting the plaintiff serious bodily injuries.

2. The plaintiff avers in his plaint dated 1/2/2017 and amended on 24/3/2023 he suffered the following injuriesa.Head injuries resulting in post traumatic dementiab.Post road traffic accident mood disorder with psychosis.c.Loss of cognitive function abilitiesd.Mid shaft fracture of the left humerous.e.Fracture of the acromion process and superior margin of the right scapula bone.f.Cervical bone fractureg.Deep venous thrombosis affecting the right legh.Severe pain and massive blood lossi.Surgical scars

3. The plaintiff is seeking special damages as followsi.Nairobi Hospital bills ksh.1,216,983/00ii.Dr. Kibuga (Orthopedic surgeon(debt) ksh. 300,000/00iii.Dr. Otieno (general surgeon(debt) ksh. 12,000/00iv.Dr. Muni (aesthesist) ksh. 250,000/00v.Dr. P. Wanyoike (neurosurgeon) ksh. 70,000/00vi.Dr. Martin Wanyoike-cardiologist ksh. 50,000/00vii.Medical report ksh. 12,000/00viii.Copy of records ksh. 500/00Sub total ksh.1,911,483/00Less amount paid by Resolution Health ksh. 500,000/00Total . ksh.1,411,483/00

4. The plaintiff is also seeking further medical costs associated with physiotherapy and removal of metal plates of ksh.50,000/= and ksh.120,000/= respectively.

5. The plaintiff further avers that he suffered loss of earning capacity and ability to function physically and psychologically since he suffered 65% permanent incapacity and he depends on others for upkeep and support.

6. The defendants filed a statement of defence dated 16/3/2017 denying the plaintiff’s claim.

7. The case proceeded by viva voce evidence. The plaintiff called Dr. Theophilus Wangata who testified as PW 1. The doctor said he examined the plaintiff on 231/5/2015 who had a history of having been involved in a road traffic accident on 15/6/2014.

8. The doctor confirmed the injuries stated in the plaint. The doctor said the plaintiff was admitted at Nairobi Hospital from 16/6/2014 to 8/7/2014 and thereafter at Cottege Hospital from 7/3/2015 to 18/3/2015.

9. PW 1 produced a medical report showing the kind of injuries the plaintiff sustained together with the further medical requirements. The doctor assessed the degree of permanent incapacity at 65% apportioned as followsi.Head injury with complications of dementia, bipolar mood disorder and psychosis – 40%ii.Upper limb fractures and weakness of hands – 25%Total permanent incapacity 65%

10. PW 2 PC Nthinga Muchiri produced the two police abstract reports dated 14/5/2015 and 15/6/2014 as an exhibit in this case.

11. PW 3 Catherine Nyawira Gatonye, the plaintiff’s wife who lives at Metro Atlanta Georgia also testified virtually in this case.

12. She produced her witness statement dated 1/2/2017 as her evidence in chief.

13. PW 3 stated in her witness statement that she is the wife to John Njoroge Ndungu. On 15/6/2014 at around midnight she received a phone call from Dorotia who informed her that her husband was in an accident along Mombasa road. He was unconscious and was bleeding from his shoulder. She was thereafter driven to Nairobi Hospital where she found her husband being resuscitated which was very perturbing to witness.

14. What followed next were several days of fear and anxiety not knowing whether he would live or die. He was sedated for several days and woke up confused, unable to communicate and had partial paralysis on his right side of the body. He stayed in the hospital for more than three weeks and was taken home for more therapy.

15. The doctors explained the extent of his injuries but they were uncertain that the paralysis would resolve. The plaintiff lost his income and because she was the primary caregiver she was unable to fend for her family. The brain injury changed her husband’s personality and his behavior. He became frustrated and wished out loud that he would rather have died in the accident.

16. The amount of money demanded by Nairobi Hospital was Kshs. 1,216,983. They paid a deposit of Kshs. 450,000. The insurance company, resolution health paid Kshs. 500,000. They also paid Kshs. 80,833 and remained with a balance of Kshs. 500,000 and Nairobi Hospital currently holds their title deed as security. They are claiming special damages totaling to Kshs. 1,411,483. Further, the plaintiff is set to incur further medical costs associated with physiotherapy to mobilize the limbs and the removal of the metal plates estimated at Kshs. 50,000 and Kshs. 120,000 respectively.

17. In cross-examination, PW 3 said there are still bills pending at Nairobi hospital and that her father’s title deed was held at the hospital pending payment of the outstanding bill of kshs.500,000/=.

18. The plaintiff who testified as PW 4 said he also lives in Georgia in Atlanta. He also adopted his written witness statement dated 1/2/2017 as his evidence in chief.

19. The plaintiff stated as follows in the said statement that he is the owner of motor cycle registered as KMCH 002H. On 15/6/2014 at around 11. 00pm while he was riding his motor cycle along Mombasa road heading towards the general direction of Machakos and when he approached Sameer Business Park he collided with motor vehicle registration number KAU 547W. The driver of KAU 547W made a U-Turn at Sameer Business park without having regard to the other road users thereby causing a collision. The speed was excessive and, in the circumstances, failed to stop or slow down. As a result of the accident the motor cycle exploded into flames and he sustained serious injuries.

20. He was admitted to Nairobi Hospital for a period of close to one month. He was thereafter put under home care nursing for a period of one and a half months. His injuries include; head injury resulting in post-traumatic dementia, post RTA bipolar mood disorder with psychosis, mid shaft fracture of the left humerus, fracture of the acromion process and superior margin of the right scapula bone, cervical bone fracture, deep venous thrombosis affecting the right leg and massive blood loss.

21. Due to the hospitalization and the injuries which rendered him 65% permanent incapacitation he was unable to work and fend for his family. His motor vehicle sales business known as Welvaart Ltd completely collapsed and had to be closed down. He is now totally dependent on his wife Catherine Nyawira for his upkeep and wellbeing. He requires future medical treatment and further physiotherapy to restore movement abilities.

22. In cross-examination, the plaintiff said he was not over speeding when the accident occurred.

23. He said he is still suffering the effects of the accident and incurring medical expenses and he cannot work.

24. The plaintiff suffered traumatic brain injury and he forgets things. He also said he cannot walk and he still incurs physiotherapy expenses.

25. The plaintiff said he used to run a company with the father where he was earning kshs.300,000 per month.

26. The defendant did not call any witnesses.

27. The parties filed written submissions as follows; the plaintiff submitted that according to registrar of Motor Vehicles, Motor vehicle KAU 547W as at 15/6/2014 confirmed that the 2nd defendant was the registered owner. PW2 further testified that he is a police officer who produced two abstracts issued by his station indicating that indeed there was a road traffic accident involving the plaintiffs motor cyclist and the defendants motor vehicle KAU 547W has been reported on 15. 6/2014.

28. As to liability the plaintiff argued that he gave details on how the accident happened where he asserted that the 1st defendant made a sudden turn at Sameer Park area without considering that the plaintiff was also on the road. The sudden turn knocked the plaintiff from his lane abruptly which caused him to fall from his motor cycle causing the injuries that he sustained. The 1st defendant was therefore liable by his careless driving.

29. On quantum the plaintiff argued that according to a report by Dr. Theophilus Wangata the plaintiff sustained serious head injuries, multiple fractures, bipolar mood, post traumatic dementia and DVT on the right leg. He is at high risk of post traumatic epilepsy and osteoarthritis and his permanent disability was assessed at 65%. He was admitted in hospital for a long duration of time. Due to his injuries the plaintiff has suffered the loss of his business and has had to endure low quality of life. He lost his motor vehicle business and can barely fed for himself.

30. On general damages the plaintiff submitted that Kshs 3,000,000 would be sufficient as general damages and proposed the amount of Kshs. 82,710,934 as loss of future earnings and Kshs. 120,000 for future medical expenses.

31. The defendants alternatively submitted that PW4 testified that he did not take any action when he saw the 1st defendant over speed which is an indication that he was also over speeding and was therefore unable to slow down or swerve in order to avoid the accident. it was there submission that the plaintiff has failed to prove that he was owed a duty of care and the breach of duty being acts in commission or omission by the first defendant that is the direct cause of his injuries, damage and loss. That in the circumstance the plaintiff failed to prove his case on a balance of probability.

32. On the pleaded sum of Kshs 1,411,483 as medical expenses incurred as a result of the injuries the defendants submitted that the plaintiff failed to produce any supporting documents against the amounts pleaded in the plaint regarding the services of the independent doctors. That it is trite law that special damages must not only be pleaded but also be proved.

33. On the Kshs 500,000 that was paid by resolution health the defendant submitted that the same was not proved as there were neither payment receipts for the same nor any document from the said insurance showing the nexus between the plaintiff and the said insurance company.

34. On the loss of income and future earnings it was the defendant’s submissions that loss of earning capacity was not particularly pleaded or proved. That the plaintiff produced a document in court with figures, without the source of the said figures and the same was termed as statement of comprehensive income for the year ending December 2011.

35. Further, that there were no such other statements for years before and after the accident to be able to make comparisons so as to ascertain the alleged loss of income. In addition, there was no audit firm or auditor that was referred to as the maker of the said document. The documents were therefore mere allegations which could not be relied upon. It was the defendants argument that loss of income and/or future earnings must be pleaded and proved as they are in the nature of special damages.

36. Finally on future medical expenses the defendants submitted that the plaintiff only pleaded further medical expenses in relation to his physiotherapy to mobilize the limb and removal of plates. However, he testified that he will incur additional future expenses which were not specifically pleaded and proven.

37. Therefore, no proper accounting practice documentation has been provided by the Plaintiff in respect to this claim.

38. I have considered the evidence adduced by the plaintiff together with the submissions by both parties.

39. It is the duty of the plaintiff to prove his case to the required standard which is on a balance of probabilities.

40. The issues for determination in this case are as follows;i.Whether the defendants were liable for the injuries sustained by the plaintiff.ii.Whether the plaintiff is entitled to the remedies he is seeking against the defendants.

41. On the issue as to whether the defendants are liable in negligence for the injuries sustained by the plaintiff I find that the plaintiff’s testimony was not controverted since the defendants did not call any witnesses.

42. The plaintiff’s evidence was that the 1st defendant who was the driver of the 2nd defendant suddenly made a U turn while driving motor vehicle registration no. KAU 547W belonging to the 2nd defendant and collided with the plaintiff’s motor cycle registration no. KMCW 002H and inflicted serious injuries to the plaintiff.

43. I find that the defendants are 100% liable for the injuries sustained by the plaintiff.

44. On the issue as to whether the plaintiff is entitled to the remedies he is seeking, I find that the answer is in the affirmative.

45. I find that there is no dispute that the plaintiff was admitted to Nairobi Hospital for a period of close to one month after the accident and that thereafter he was put under home care nursing for a period of one and a half months.

46. The injuries the plaintiff sustained include; head injury resulting in post-traumatic dementia, post RTA bipolar mood disorder with psychosis, mid shaft fracture of the left humerus, fracture of the acromion process and superior margin of the right scapula bone, cervical bone fracture, deep venous thrombosis affecting the right leg and massive blood loss.

47. Due to the hospitalization and the injuries which rendered him 65% permanent incapacitation he was unable to work and fend for his family. His motor vehicle sales business known as Welvaart Ltd completely collapsed and had to be closed down. He is now totally dependent on his wife Catherine Nyawira for his upkeep and wellbeing. He requires future medical treatment and further physiotherapy to restore movement abilities.

48. In the case of Alpharama Limited vs. Joseph Kariuki Cebron [2017] eKLR the court said of assessment of damages for diminished earning capacity as follows: -“...To assess loss of earning capacity in the future, the court must consider to what extent the claimant’s ability to earn income will be affected in the future and for how long this restriction will continue. The traditional approach adopted by the courts when calculating a claim for future loss is to assess what lump sum is needed to compensate the claimant for the future loss. The starting point in this calculation will be to determine what annual net loss the claimant will incur in the future (the "multiplicand"), which is the annual loss of earnings. The multiplicand will then be multiplied by a “multiplier". The multiplier is assessed having regard to the number of years between the date of the settlement and the date when the loss stops. In a claim for future loss of earnings, this may be the date when the claimant would, but for the injury, have retired”.

49. The Court of Appeal decision in Mumias Sugar Company Limited vs Francis Wanalo [2007] eKLR also stated as follows:“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market; while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering, and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or appropriate financial loss that the plaintiff has suffered as a result of the disability.”

50. The plaintiff was 31 years at the time he lost the capacity to earn income. He would have worked for 29 years before retirement.

51. Dr Wangata doctor assessed the degree of permanent incapacity at 65% apportioned as follows;(i)Head injury with complications of dementia, bipolar mood disorder and psychosis – 40%(ii)Upper limb fractures and weakness of hands – 25%Total permanent incapacity 65%

52. The plaintiff’s evidence that he used to run a company with the father where he was earning kshs.365,654 per month was not controverted since the Defendants did not adduce any evidence.

53. In Butler V Butler [1984] KLR 225 at 232 Kneller JA stated as follows:“Loss of earning capacity is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained by Lord Denning M.R. in Fairely vs John Thompson ( Design & Contracting Division)Ltd[1973]2Lloyd’s Rep 40,42(CA)…..Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of the general damages.”

54. I find that the plaintiff specifically pleaded loss of future earnings in the amended plaint which was amended on 24/3/2023.

55. The plaintiff said he was running the company with his father and I award him a multiplicand of Kshs. 100,000 per month and a multiplier of 29 years.

56. I have considered the submissions filed by both parties and I award damages as follows;i.General damages of loss & suffering 3,000,000ii.On General damages for loss of future earnings, I apply a multiplicand of 100,000 and a multiplier of 29 years less 35%= (100,000 x29 x 12 (less 35% )=34,800,000-12,180,000=22,180,000)iii.Special damages of ksh.1,411,483 were also pleaded and proved and the same are awarded.iv.Future medical expenses of ksh.120,000 are also awardedThe total award is Kshs. 26,711,483

57. Judgment be and is hereby entered in favor of the plaintiff against the defendants jointly and severally in the sum of kshs.26,771,483/= plus costs of this suit and interest in respect of the special damages from the date of filing suit and the general damages from the date of this judgment until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2023. ………….…………….A. N. ONGERIJUDGEIn the presence of:……………………………………... for the Plaintiff……………………………………… for the Defendant