[2017] KEHC 9580 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MILIMANI LAW COURTS

CIVIL SUIT NO. 174 OF 2013

P N M [Suing as next friend and

FATHER OF N W N…….................................. 1ST PLAINTIFF

PHILIP NYANJUI MACHARIA……................ 2ND PLAINTIFF

VERSUS

SYNOHYDRO CO. LTD……………….…… 1ST DEFENDANT

MOSES NDUNGU NJOROGE……………. 2ND DEFENDANT

JAMES NJUHO…………………………… 3RD DEFENDANT

JUDGMENT

The plaintiffs herein have moved the court by way of an Amended plaint amended on the 20th May, 2015 and filed in court on the 25th May, 2015 seeking special damages, general damages for pain and suffering and loss of amenities, future medical expenses and costs of the suit.

According to the amended plaint, the first and the 2nd plaintiffs were travelling as lawful passengers in motor vehicle KBA 531H along Thika Nairobi road, on the 15th April 2012, when the 2nd defendant in the course of his employment with the 1st defendant so negligently and/or dangerously parked motor vehicle registration number KBH 718V on the road as consequence whereof motor vehicle KBA 531H, wherein the plaintiffs were travelling as passengers rammed into it thereby causing grievous injuries to the plaintiffs.

It is averred that the accident occurred due to the negligence on the part of the first defendant, its agent/servant and the 3rd Defendant, his agent/servant. The particulars of negligence are set out in paragraphs 11 and 12 of the plaint while those of special damages are set out in paragraph 15 of the amended plaint.

The first defendant filed its defence on 10/10/2013 in which it denied the ownership of motor vehicle KBH 718V and the occurrence of the accident aforesaid. The particulars of negligence, particulars of loss and damage are also denied but in the alternative and without prejudice, it is pleaded that if an accident occurred as alleged, but which is denied, the same was wholly or substantially contributed to, by the plaintiffs’ and the 3rd defendant’s negligence. The particulars of such negligence are set out in paragraph 9 of the defence and the plaintiff is put to strict proof of the alleged injuries, loss and damages.

The 3rd defendant did not file a statement of defence following which an interlocutory judgment was entered on the 23rd July, 2013.

At the hearing, the 1st plaintiff who has sued as next friend and father of N W N and on his own behalf as the 2nd plaintiff told the court that on the 15th April 2012 at around 3. 30 pm he was going home from church in Ngara in the company of his daughter N W N. He boarded motor vehicle registration number KBA 531H which was heading to Thika Town and they were both in the matatu as fare –paying passengers. They sat in the front seat with the driver but just before the General Service unit road about, the road was under construction and vehicles were being diverted due to the said constructions but there were road signs to that effect.

It was his evidence that the vehicle they were travelling in, was being driven slowly but on the parts of the road that were clear the driver was driving fast. As the driver was driving down the drift from the G.S.U road about he changed from middle lane to the left as he tried to overtake another vehicle both of which were being driven very fast. The plaintiff brought the attention of the driver to a stationery lorry that dangerously parked without any warning signs and there were some people on top of the lorry.

No sooner had he communicated this to the driver than he rammed on the truck as a result of which the 1st plaintiff sustained injuries to the left hip, the chest and the back while his daughter sustained injuries to her head and the left eye. They were both taken to Neema Ruaraka hospital where they received first aid. He was later taken to Aga Khan Hospital while her daughter was taken to Nairobi hospital due to severity of her injuries. According to him, the driver of the matatu was to blame for driving at a high speed, overtaking carelessly and not leaving enough room between his vehicle and the next one. He also blamed the driver of the lorry because of parking the same without any signs to warn the oncoming vehicles.

PW2, Doctor Wambugu Mwangi is the doctor who examined the plaintiffs and prepared medical reports for them.

PW3, PC. John Ouko produced the police Abstract in respect of the accident. He confirmed that the accident involved motor vehicles KBA 531H and KBH 718V. He also confirmed the involvement of both the plaintiffs in the said accident. It was his evidence that the driver of motor vehicle KBA 531H was blamed for the accident but he was not charged because he died at the scene of the accident. No charges were preferred against the driver of the lorry. The lorry was parked on the extreme left side of the road.

DWI, yong Ngang testified on behalf of the 1st defendant. He told the court that he was present when the accident occurred. It was raining and the lorry was parked on the left side of the road as it was being loaded with some debris as the road was under construction. That there were clear warning signs and life savers placed behind the lorry about 20 meters from where the lorry was.

He stated that the matatu KBA 531H was being driven very fast and it hit the lorry KBH 718V following which one person in the matatu died while others were injured. He blamed the matatu driver for the accident.

Parties filed submissions both on quantum and liability which this court has duly considered together with the evidence on record. After analyzing the evidence, the issues for determination are;

1. Who between the drivers of motor vehicles registration numbers KBA 531H and KBH 718v is to blame for the accident.

2. And if both of them are to blame, to what extent is each liable.

3. Are the plaintiffs entitled to damages?

4. What is the quantum of such damages?

5. Who should meet the costs of the suit?

From the evidence on record, it has emerged that the driver of motor vehicle KBA 531H (herein referred to as the matatu) was driving from Nairobi- Thika along Nairobi Thika highway. On reaching the G.S.U round about as he was driving down the drift, he changed from middle lane to the left lane as he over took another vehicle. Pw1 who was seated on the front seat with the driver, is on record as having told the court that, at that point in time, the driver was driving fast and he brought his attention to a stationery lorry that had been parked ahead but minutes there after the matatu driver rammed on the lorry.

The road was under construction, there was a diversion and there were warning signs to warn the motorists that the road was under construction. In the circumstances, the matatu driver ought to have been more careful in the manner he drove and/or controlled the vehicle that he was driving. No evidence was led by the 3rd defendant to controvert the evidence of the plaintiff as interlocutory judgment had been entered against him.

On the other hand, it was also the plaintiff’s evidence that the lorry was dangerously parked and there were no warning signs to warn the other motorists that the lorry was stationary.

DW1 who testified on behalf of the first defendant was clear that there were warning signs (life savers) that had been placed behind the lorry 20 meters away. In his statement that was adopted as part of his evidence - in -chief he indicated that along the stretch where the accident occurred the speed limit for all the vehicles was 20kph.

The evidence of PW3 is also important with regard to the issue of liability. He produced the police abstract that was issued to the plaintiffs and according to the same, the driver of the matatu was to blame for the accident but no one was charged because he died on the spot which means that, had he survived, he would have been charged.

It is trite law that the degree of proof in civil matters is on a balance of probability. From the evidence on record, this court is convinced that the plaintiffs have discharged that burden. I find and hold that the driver of motor vehicle registration number KBA 531H was fully to blame for the accident. I find him 100% liable for the same.

On the quantum of damages, this court has carefully considered the submissions made by the respective parties in that regard. On special damages a total sum of Kshs. 1,528,677. 38cts and Kshs.490,142/- has been claimed for 1st and 2nd plaintiffs respectively. The receipts that were produced totals to Kshs. 785,304. 93cts for the first plaintiff and Kshs151,547 for the 2nd Plaintiff which I award accordingly.

On the general damages for pain, suffering and loss of amenities, a medical report of the second plaintiff was produced as an exhibit. According to it, he sustained the following injuries:-

a) Fracture left humerus

b) Blunt neck trauma

The x-rays of the left arm confirmed the above fracture. The fracture was managed by open reduction and internal fixation using metal implants.

In the doctor’s opinion, the fracture has united and the metal implants may be electively removed at an estimated inclusive cost of kshs.70,000/- at Kenyatta National Hospital. He is predisposed to early onset osteoarthritic changes. The degree of permanent incapacitation was assessed at 6%.

The 2nd plaintiff has suggested a figure of Kshs.10,000,000 and has relied on the case of Roy Machenzie Vs Car Track Kenya Limited & Another (2012) eKLRand that of Sabina Nyakenya Mwanga Vs Patrick Kigoro & Ano (2015) eKLR where Kshs 1 and 3 million were awarded respectively.

On the part of the 1st plaintiff, a medical report dated 28/2/2017 was produced as exhibit 26. According to the doctor who examined her and prepared the said report, she sustained the following injuries;

a) A compound communited fracture supraorbital and naso ethmoid complex fractures.

b) Avulsive communited fracture of the left frontal bone.

c) Extensive degloving of the frontal and parietal bones.

d) Extensive mid-frontal and left medial orbital laceration.

She was managed as an inpatient on appropriate medications. Reconstructive surgery was undertaken in stages. In the doctor’s opinion, she had residual frontal bone defects which will require possible further reconstruction at a cost of Kshs.250,000/-. She has cosmetically significant permanent scars.

On the part of the 1st Plaintiff, a sum of Kshs. 20 million was suggested on the strength of the following cases

(1) Duncan Kimathi Vs Ngugi David & 3 others (2016) eKLR where a total of Kshs.4 million was awarded as general damages,

(2) Peris Onduso Omondi Vs Tectura International Ltd & Ano (2012) eKLR, where a total of 3 million was awarded,

(3) Regina Mwikali Wilson Vs Stephen M. Gichuhi & Ano (2015) eKLRwhere a sum of Kshs.2. 5million was awarded and that of

(4) Gabriel Mwashuma Vs Mohammed Sajjad & Another (2015) eKLRwhere a total of Kshs. 3 million was awarded as general damages.

On the part of the first defendant, Kshs.500,000 for the first plaintiff was suggested as reasonable on account of general damages. The case of Collins Omondi Muganda Vs Oceanic Oil Ltd & Ano 2017 eKLR and that of Rose Makombo Masanju Vs Night Flora alias Nightie Flora & Ano (2016) eKLR where Kshs.1million and 500,000/- respectively were awarded.

While a sum of Kshs.300,000 for the 2nd plaintiff was suggested. The case of Said Abdullahi & Ano Vs Alice Wanjora (2016) eKLR and that of Wareng Nedovu Enterprises (2005) Ltd Vs Kelvin Kisanji (2012) eKLRwhere Kshs.600,000 and kshs.300,000 respectively were awarded.

On the part of the 3rd defendant, a sum of Ksh.500,000 was proposed as a reasonable award for the first plaintiff. The case of Peter Gichuru Mwangi HCCC No. 343/2000, that of Rose Makombo Masanju Vs Night Flora alias Nightie Flora & Ano. Civil Appeal No. 2/2015 (Vol) and Mombasa Commercial suit No. 11 of 2006 Uzel Cohen Vs Kenya Power and Lighting Co. Ltd where Kshs.600,000, 500,000 and 1. 2 million respectively was awarded.

While in respect of the 2nd Plaintiff, Kshs.250,000 was proposed the case of Gideon Chibira Mmbono Vs Roseline Chebet Wilson Nakuru Civil Appeal No. 43 of 2008and that of Said Abdullahi & Ano Vs Alice Wanjira where Kshs.210,000 and 300,000 respectively was awarded.

The court has considered the respective submissions on the quantum of damages. With regard to the 1st Plaintiff, it is noted that her injuries were severe which have left her with facial deformity at a very young age. The court also notes that the amount suggested by the Plaintiffs are too high whereas that proposed by the defendants are on the lower side considering the injuries sustained by the respective plaintiffs. In my opinion a sum of Kshs 3 million and ksh. 400,000 are reasonable to compensate the first and the 2nd Plaintiffs respectively.

On future medical expenses, the plaintiffs have urged the court to grant them the amounts as suggested by the doctor in their respective medical reports at Kshs.250,000 for the first plaintiff and Kshs.70,000 for the 2nd Plaintiff.

The defendants have urged the court not to make any award under this head. The court has noted that the amounts were pleaded and there is evidence by an expert, a doctor, in this case who testified as PW2 confirming that the Plaintiffs shall require further treatment in future which will cost them the quoted amounts. No evidence was called by any of the defendants to dispute that fact and to question the amounts suggested by PW2.

This court do hereby award Kshs.250,000 to the first plaintiff and Kshs.70,000 to the 2nd plaintiff for future medical expenses.

In the end, Judgment is entered for the plaintiffs against the defendants as follows;

1) Special damages

I. First plaintiff – Ksh. 785,304. 93 ct

II. Second plaintiff Ksh. 151,547/=

2) General damages

I. First plaintiff ksh 3 million

II. Second plaintiff ksh. 400,000/=

3) Future medical expenses

I. First plaintiff ksh 250,000/=

II. Second plaintiff ksh. 70,000

The plaintiffs are also awarded the costs of the suit.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 10th Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the 1st Plaintiff

…………………………. For the 2nd Plaintiff

…………………………. For 1st the Defendant

…………………………. For 2nd the Defendant

…………………………. For the 3rd Defendant