[2023] KEMC 202 (KLR)

Njuguna v Anguka & another (Civil Suit E4903 of 2020) [2023] KEMC 202 (KLR) (6 June 2023) (Judgment)

Neutral citation: [2023] KEMC 202 (KLR)

Republic of Kenya

In the Milimani Commercial Chief Magistrate's Courts

Civil Suit E4903 of 2020

JP Aduke, SRM

June 6, 2023

Between

Philip Kahara Njuguna

Plaintiff

and

Charles Onyango Anguka & another

Defendant

Judgment

1. The Plaintiff filed this suit against the defendants after he sustained injuries following a road traffic accident on 12th August 2018 along Spine Road in Nairobi. In the plaint available on record, the plaintiff avers he was a lawful driver of motor cycle registration number KMDJ 419J when the Defendants either acting as servant/agent/authorized driver of motor vehicle registration number KBL 542P negligently drove the said motor vehicle that it collided with KMDJ 419J causing the Plaintiff to suffer injuries.

2. The Plaintiff blames the Defendants and their agents/authorized servants for causing the said accident. The Plaintiff further avers that the said accident was solely caused by the negligence of the Defendants.

3. The particulars of injuries sustained by the Plaintiff are captured in para 6a of the Plaint while the particulars of alleged negligence are also captured in para 5 of the Plaint. The Plaintiff prays for general damages for pain and suffering, special damages, costs of the suit, future medical expenses and interest at court rates.

4. Return of Service on Record shows that the defendants were served with the suit papers. The suit is defended. At the hearing thereof, the Plaintiff called two witnesses who testified adopted their statements on file as their evidence in chief. The testimony was tested in cross-examination. By consent, parties agreed that all medical reports filed be admitted into evidence without calling the makers of the documents. The court endorsed these terms of consent. The defence closed its case without calling any witnesses. Parties filed and exchanged submissions. The issues for determination before this court are two:1. Liability;With respect to Liability, I have seen a copy of the Abstract from Police Records confirming further details in respect of the accident victim and the said motor vehicle registration number KBL 542P. I have seen a copy of the Motor Vehicle Search Records confirming that the 2nd defendant was the registered owner of the said motor vehicle as at 11th March 2020. I have also relied on the testimony of PW1 and PW2 on record. This confirmation and chronology settles the issue of liability in my view. For the avoidance of doubt, I find that liability is apportioned at a ratio of 100% in favor of the Plaintiff against the defendants.2. QuontumThe Plaintiff prays for General Damages, Special Damages, future medical expenses, Costs of the Suit and any other relief. With respect to Special Damages, the Plaint prays for KES 5,170/- as captured in the Plaint. I have seen receipts on record attesting to KES 5170/-. It is settled principle that special damages must be pleaded and proved. I find that KES 5,170/- has been pleaded and proved and award the same.

5. With respect to future medical expenses, I am persuaded on a balance of probabilities, by the medical opinions on file. I have seen a medical report on file estimating the probable resultant disability at 12%. It is apparent that the Plaintiff will need surgery and implant removal surgery. I award KES 100,000/- on account of future medical expenses.

6. With respect to general damages, I have considered all the submissions on record and the authorities annexed thereto. I have also considered all the exhibits on record. In particular, I have relied on the reasoning of the court in Civil Appeal Number 126 of 2018 Benuel Bosire vs Lydia Kemunto Mokora[2019]eKLR and Patrisiah Adhiammbo Omolo vs Emily Mandala[2020] EKLR where the courts awarded general damages for comparable injuries. From the documents on record, the plaintiff in this instance suffered a fracture of the right thigh when the accident happened. Taking into account that no amount of damages can restore the Plaintiff to what he was prior to the said accident, the rate of inflation and cost of living, I hereby award KES 250,000/- as general damages for pain and suffering.

7. In conclusion, I enter judgement in favour of the plaintiff as follows:1. General damages KES 250,000/-2. Special damages KES 5,170/-3. Future medical expenses KES 100,000/-4. Costs of the suit.5. Interest on 1 and 4 above at court rates.The Plaintiff shall have costs in this suit and interests as outlined above from the date of this judgement until payment in full.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 06TH JUNE 2023 IN THE ABSENCE/PRESENCE OF THE PARTIES.In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- ………N/A…………….…………………………(Name, Signature, Date)3. For the Defence: ……………N/A…………………………………………………(Name, Signature, Date)