[2007] KECA 422 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Civil Case 142 of 1986

JACKSON MOGAKA TONGI........................................................PLAINTIFF

- versus -

MOSES MABELS & DANIEL SOKONYI MASIBO...........DEFENDANTS

JUDGEMENT

The plaintiff sued the defendants jointly and severally seeking damages for injuries sustained

in an accident involving the defendants motor vehicle in which he was travelling as a fare

paying passenger which accident occurred along the Kitale-Webuye road and which accident

was due to the negligence of the defendants, their servants and or agents whose particulars

are given.

The plaintiff suffered injuries also particularized in the plaint for which he claims both special

and general damages.

The defendants were served and they entered appearance and filed a defence avering that save

that an accident occurred on or about the 9th day of October 1983 along Kitale-Webuye road

to vehicle registration number KSG 714 owned by the first defendant and driven by the

second defendant the defendants deny that the said accident was caused by the negligence of

the second defendant as alleged in the plaint and all singular particulars of negligence are

denied as if the same were set out and traversed- I -seriatim that they shall contend that

the said accident arose from inevitable accident in that suddenly and without any warning at

all one of the vehicle's tyres burst and the vehicle lost control and eventually overturned

without any negligence at all on the part of the vehicle's driver. They did not admit the

particulars of injuries, special damages pleaded and put the plaintiff to strict proof and then

prayed for the suit to be dismissed with costs;

The defendants were served for the hearing but they failed to turn up and the court being

satisfied that they had due notice allowed the plaintiff to proceed by way of formal proof.

The plaintiff's evidence is that he boarded the said matatu heading to Kisumu. It was

speeding and on hearing the scene of accident started descending a steep hill while the vehicle

was speeding with passengers full inside and others hanging outside . He heard a sound and

the next thing he realized was that he woke up in hospital. He does not know what else

happened but learned later that the vehicle rolled after a tyre burst.

He was admitted at Misikhu Mission Hospital and later transferred to Kenyatta National

Hospital by air with the help of a flying doctor. He produced medical documents to show that

he was admitted at Misikhu, Mount Elgon and then Kenyatta National Hospital; He also

produced documents showing that he incurred expenses both for drugs and travelling to and

from Nairobi for check ups.

The plaintiff's counsel filed written submissions and the sum total of the same is that:-

1. The plaintiff's evidence that the vehicle was going at a high speed while descending a steep

hill and was carrying excess passengers should be believed.

2 There is nothing to show that the accident was inevitable and could not be avoided.

3 . The plaintiff was a passenger and he cannot be blamed for the accident and no contribution

can be alleged and proved against him*

4. The plaintiff sustained very severe injuries as he was admitted at Misikhu hospital for only

two days and then flown to Kenyatta National hospital where he was from 11th to 19th

October 1983 and thereafter attended Kenyatta National Hospital and Kitale District Hospital

as an out patient and also for physiotherapy for several years and still undergoes treatment, he

requires to undergo an operation of the spinal cord which will cost kshs 50,000/= to

Kshs.100,000/=, the left ankle is not healed as he walks with a limping gain. As a result of the

injuries the plaintiff has never resumed his work and he has solely become dependant on to

his father for support both for his family and himself. He cannot do any job especially one

requiring standing while working, he experiences headaches and has to use pain killers. They

suggest that the plaintiff be paid Kshs l,207,248/= plus costs and interest.

They referred the court to the case of JAPHETH LUSULI LUHOMBO -V- D.T. DOBIE

COMPANY LIMITED AND ANOTHER NAIROBI HCCC. NQ.2316/82where the plaintiff

substantially incapacitated in an industrial accident involving burns. The plaintiff was earning

Kshs l,500/= per month, he could not take up another job due to injuries. The court awarded

Kshs.200,000/= for loss of earning capacity.

The case ofSAMWEL HURE MURAGE -V- MOSES KIIRU KAMAU AND ANOTHER

NAIROBI HCCC NO.6779/91 where the plaintiff suffered cuts on the shoulders, loss of

consciousness, subdural haematoma, severe head injury, diminished earning capacity. The

court awarded him Kshs.450,000/= as general damages.

The case ofPAUL OJINGO -V- KENYA RAILWAYS CORPORATION NAIROBI

HCCC.NO,1113/94where the plaintiff suffered severe injuries involving the knee, ankle,

sensory loss, contractures of muscles and disability of 40%. The court awarded Kshs.60,000/

or cost of future operation and Kshs.250,000/= for pain, suffering and loss of amenities.

The case ofIRENE EGIRA NTHIGA -V- NAIROBI BUS UNION NAIROBI

HCCC.NO2425/90 where the plaintiff suffered closed head injury and dislocation of the right

knee joint resulting in the following disabilities - pain in the right hip; inability to lift heavy

objects; frequent headaches; scars, amongst other disabilities. The plaintiff was aged 25 years

at the time of accidents The monthly salary was Kshs.3,000/= per month. The court applied a

multiplier of 20 years in assessing loss of earning capacity.

On the court's assessment on liability I find that there is no dispute that an accident occurred

involving the defendants. vehicle in which the plaintiff was travelling as a fare paying

passeger. The plaintiff suffered injuries as a result of the said accident and he seeks damages .

He relies on negligence as particularised and also relies on the doctrine of Res Ipsa Loquitor.

The defendants plead inevitability of the accident. All that the plaintiff remembers is that they

were descending a steep down hill when the driver was speeding and the vehicle was

overloaded as it had passengers inside while some were hanging outside. It is the rear tyre

which burst This evidence is unchallenged. If the driver had driven in a careful manner he

should have been able to control the vehicle in time and to bring it to a safe stand still and to

avoid it loosing control. as submitted it was up to the defendant to show that the accident was

inevitable. They have not done so and so they have not discharged the burden shifted on to

them I agree with the submission that the plaintiff as a passenger had no control over the

manner of driving of the said motor vehicle The defendants are 100% liable to make good his

suffering.

Having established liability I now come to the assessment of damages. On special damages

the plaintiff produced receipts (exhibits 6a-f, 7,8,9 and lOa-d) which total Kshs.7,213/= which

I allow.

On general damages the counsel has asked the court to award the plaintiff damages for loss of

earning capacity which was not pleaded secondly no document was produced to show that the

plaintiff was in salaried employment with anybody The general rule is that the party is bound

by his pleadings. The plaintiff cannot be awarded what he did not ask for in his pleadings.

The claim for loss of earning capacity is disallowed for the reasons given.

On damages for pain, suffering and loss of amenities the plaintiff tendered in evidence three

medical reports. The first report is dated 8th June 1987 by Dr. Angelo D'Cunha On

examination the Doctor found that the plaintiff walked with a slight "high stepping" gait on

the left. Deformity. Gibbus present at lumbar II spinous process level. On the left lower limb

on the tore he noted slight flacidity present of the left calf peroneal and extensor muscles of

the left foot. Grade lll power present in the left quadriceps calf and peroneal groups of

muscles Pareisis Grade II of flexors and exteasors of the toes Muscular wasting - observed of

the left quadriceps, left calf muscles, left extensor of the foot and peroneal group of muscles.

These is loss of sensation to light touch, pin-prick and cotton wool sensation over the dorsum

of the left foot and distal part of the plantar aspect of the left foot.

X-rays taken showed compression fracture of the lumbar spine with posterior displacement of

lumbar II vertebral body There is a diminution in the posterior aspect of the disc space

between L1-L2 vertebral bodies

ln his opinion the plaintiff sustained serious injuries classified as grievous harm And he

awarded a temporary disability-of eighteen months, six months of which would be total and

the rest partial The particulars of injuries were listed as:-

1. Head injury - cerebral contusion, had multiple aid extensive lacerated wounds oven the

scalp

2. compression fracture of Lumbar II with posterior displacement of the vertebral body* Has

paresis of the muscles of the left thigh, left leg AAV foot

3 Traumatic disc prolapse between Ll and L2 vertebral bodies.

Taking all the overall picture into consideration he awarded a permanent disability of 35% a

The second report is dated 6th January 1989 by Dr. J.A.O. Mulimba. On examination the

Doctor made the following findings:-

1 Head - Had multiple cuts scars whole head. No residual evidence of brain damage as these

were no cranial nerve deficits He had no memory lapses

2. Back had a palpable gibbus at Ll-2 area. Not tender now. He stands straight the left lower

limb is wasted At 23cm from anterior superior iliac spine, the left thigh muscle bulk is

dragging the left foot slightly sensation on the dorsum of the left foot is very poor i.e. very

much seduced so that patient has hypoaesthesia. Extensor hallucis longus on the same side is

very weak

3. Left Leg - Had cut scar over lateral malleolus. The scar measures 3cm long. Had other

problems as described under back*

4. x-rays Show compression fracture of L2 vetebra No new bone formation is occuring to

cause fusion These is sharp kyphosis at this level, the spinal canal is compromised

In the Doctor's opinion the multiple cuts on the scalp over the whole head have healed with

multiple ugly scars He also had concussion of the brain, but this has healed well with no

residual disability from that end. He had compression fracture of the lumbar 2 vertebral body.

This has caused masked kyphosis at this level nerve supply to the left lower limb This is

going to get worse and without intervension, the patient has a good chance of getting more

and more disabled as the left lower limb is wasting and he is finding it increasingly difficult to

walk. Two operations have to be done to avert this:

1. Laminectomy to releave the pressure on the Cauda equina

2. Anterior fusion of L1-L2 and L2-L3- These are both major operations and the total cost

will be above Kshs100,000/=i

The left leg had a cut there which has healed with only a scar left behind as permanent

feature, Disability was assessed at 35%-40%.

The third report is dated 5th February 1991 by Doctor Z. Gaya. The findings of the Doctors

are that there is evidence of multiple scars on the face and limbs The general condition is

good without any evidence of mental deficit. Locally at the back, there is a palpable gibbus at

L1-L2 area He stands straight but walks with a slight limp of the left leg. There is uniform

wasting of the left lower limb from the buttock area downwards up to the foot; The muscular

wasting evidently shows on the fact that the left leg is two to three centimeters smaller in

circumference in its entirety as compared to the right leg The straight leg raising is equivocal

bilaterally There is evidence of sensory loss on the dorsum of the left foot The x-rays taken on

31st January 1991 show an old compression fracture of the body of L2 vertebra

ln his opinion the patient has been left with a permanent compressed fracture of the body of

L2 vertebra which has caused a clinically visible kyphosis at this level with pressure effects

on the Cauda equina with its attendance result of compromised nerve supply to the left lower

limb. This is evident from the permanent uniformly wasted left lower limb with diminished

sensation at the back of the foot.

He will need surgical intervention to try and arrest this degeneration otherwise he will

progressively become lame on his left leg in time he will also develop early post traumatic

osteoarthritis of the lumbar vertebrae

The rest of the injuries have left permanent visible body scars There is however, no evidence

of permanent brain damage as a result of the closed head injury.

In a letter dated 28th May 1991 the same doctor stated that the cos of operation will be

between Kshs 50,000/= and Kshs4100,000/=

The plaintiff's complaints as at the time of trial are:-

1 He feels backache because of the spinal cord injury and cannot carry anything heavy.

2 the left leg limps.

3. Headaches are frequent forcing him to use pain killers.

4. He has no mental problems or epilepsy but requires an operation.

On future medical treatment this has been recommended by two doctors who indicate that if

the same is not carried out the plaintiff will become lame. The estimates were given in 1989

and 1991 Since then the shilling has depreciated and the cost has definitely gone up, I will

therefore allow an element of inflation when assessing the same and I will therefore make an

allowance of KshS4280,000/= as cost of future operation*;

As for damages for pain suffering and loss of amenities I take into consideration the following

factors: Effects on the life of the plaintiff who is now virtually lame and cannot do anything

namely he is unable to follow employment and he has to depend on his father for support, one

side of his body suffers from muscle wastage and he is lame. I have also considered the age

of the authorities reffered me and the fact that the injury to the spinal coed is now

permanent and taking all the relevant circumstances into consideration i make the following

assessment:-

1. Head injury leading to concussion - Kshs.30,000/=

2. injury to the spinal cord needing an operationkshs450,000/=

3. Other soft tissue injuries which have healed leaving only scars - Kshs 40,000/=

Total Kshs. 520,000/=

In the premises I enter judgement for the plaintiff on the following terms:-

1. Special damages of Kshs7,213/= with interest at court rates from the date of filing until

payment in full

2. Damages for cost of future operation - Kshs.280,000/ with interest at court rates from the

date of judgement until payment in full

3. General damages for pain, suffering and loss of amenities -

(a) Head concussion - Kshs30,000/=

(b) Soft tissue injuries - Kshs„40 000/=

(c) Serious injury to the spinal cord - Kshs 450,000/=

Total Kshs 520,000/= with interest at court rates from the date of judgement until payment in

full costs of the suit.

Dated at Eldoret this 20th day of August 1999.

Read and delivered at Eldoret this 4th day of OCTOBER 1999 •

NAMBUYE,

JUDGE