[2000] KEHC 322 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO. 244 OF 1998

PETER MWANGI KANENE ……………………………….. PLAINTIFF

VERSUS

BERNARD K. NJENGA …………………………….. DEFENDANT

JUDGMENT

Interlocutory judgment was entered against the defendants on the 3rd of December, 1998 for having failed to enter appearance in this case. Thsiw as … entered by the Principal deputy rEg istrar.

The palitnfif amended his plaint on the 8. 11. 99 through an applciationd at ed the 4. 6.99 that came befor ethe Pricniapl Deputy registrar Mr. Bhatt. He ordered that the amdned Plaint be served. Thsiw as doen according to the advocate fo rhte palitnfif. When the case came for hearing on the formal proof the advoate kindl,y notifed the cour that a memroadum fo appearance and defence had been filed. I ntoed that these documents were not on the corut rcord. The advocate asked that these documents be ignoned as t here si already on record an interlocutory judgment. He admitted that he did nto service the de fenant with a eharing n notice of this case. Efforts to trace the purported adocate fo rhte defendant (not on record inthsi fiel) proved fruitless.

I went according ot my records, namely that here was no advocate on rcord for the defendant. Furthe rthat the purported advocate if recently engated should have read the corut fiel beore filing anyd ocuenmtns on payment of the requisite fees.

I have beor eme a moktor vehicle accident case. The plaintiff, ag ed 23 eyars old at he time, boarded a motor vehicle as a fare paying passenger on the 30. 5.97. The vehicle which picke dhim upa t the Gigiri bus stop traveled along Limuru Road. When it neared Rosylin area he saw flashes of light. The vehicles colldinded and he lsot his consciousness. The time was 7. 00 p.m. or thereafter. It was then dark.

He was rushed to the Nazereth hospital where upon gaining consciouness he was treated. He sustained

a) injuries on the left leg

A fracture of the left femur o the lower third. This leg was operated ona nd a metallic plate was inserted.

b) Right hip

A fracture and dislocation of the right hip upt was sustained.

c) Chest

The chest injury consisted of a right sided haemothorax

(blood collection). There was no fractured rib.

The palitnfif was admitted at the Nazrereth hosptal for 4 months. He was thend ischarge don clutches. He was examined by Mr. W.M. Wokabi a consultant Surgeion with MB,chB M MED – for his qualification.

His finding were that there was a complete fracture of the left leg together with a metallic plate having been inserted. This fracture ahd been badly united. There was gross angulaiton at the fracture site. Thsir equires to be corrected at a cost of Ksh.100,000/-.

The right hip pyut was fractured and dislocated from the socket. The right superior and inferior pubic ramiiw ere also fractured. This injury is the cause fo the shortening fothe leg. He the plaintiff requires to have a partial dislocation of the hipjoint to be operated at a cost of Ksh.150,000/-. If not doen the palitnfif would limb permanently.

The chest had bleeding in the chest. The blood was drained. He would nto suffer any problem as a result of this.

As a reault of all these injuries the doctor estimated that the plaitnfif would nto be able to work for another five years.

Mr. Gichahe for the plaintiff prayed that this court award Ksh.250,000/- for the pelvic injury and Ksh.250/- for the hip injury., this he prayed marked a total of Ksh.500,000/- for General Damges of Pain, suffering and lsos of amenties..

I aske dthe doctor what he had emant by the words inhsi report stating “poor outcome fo [the] treatment” he replied that due to poor treatment [and ro medical care] it caused the outcome fo the boens to knit poorly. I believe this emant that the future medical expenses would be incurred to rectifyt his situation.

The advocate did nto make comments on this head of damages in his submission and prayed for Ksh.250,000 for.

I msut state that when on claim General Damages for Pain, suffering and lossof amnenties, the injuries sustiaend are nto assessed separately but as a whole. The advoate in his case is therefore nto correct when he prays for this court to award Ksh.250,000 for a fracture of a leg and Ksh.250,000/- for a hip injury.

As to the award for General damages on the above heading the advocate relied on the authorities of

Humprey L. Kangethe Vs Paul M. Njuguna

Hccc2279/87 and

Joseph Mugani Gituba v Luka M. Warui

Hccc 2942/88 both decisiosn of Mbogholi Msagha J.

Who awarded Ksh.200,000/- for an injury to the left thighand Ksh.250,.000/- in the second case fo an injuryf racture of the pelvis.

I would inthsi instance award ksh.2000/- for General damages of pain, suffering and loss fo amentieies.

As to the future medical care I am inclined to say that it was caused partially bythe poor medical care. The metallic plate in the leg requires to be removed but the injuries did nto heal proeprlyd ue to the negligenc eof ppor medical treatment as opposed ot the said accident. I would award Ksh.150,000/- only.

As to he Seplcial damages I hold that the medcial report ahd been prove dof ksh.2000/- being the doctors fee.

I decline to make award on the medical expenses of ksh.45,000/- as the same had not been proved t o this court.

On the prayer for lsos of future earning, the plaintiff called his former employer PW3. He gave evidence to he effect that he ran a business (He produced the certificat eof business name) hwereby he stated that he had employed the palitnfif as a Marsonf rom 1994. His wages was Ksh.300/- per day or Ksh.1,8000/- eplr week. He the palitnfif had sicne been in an accident and had nto returned to work.

As the doctor said he palitnfif would be incapacitated for 5 eyars - that he be accordinly awarded.

I would hold that lsos of earning have been proved by the palitnfif. It would have assisted the corut tremendously if supported documents of the payments of ksh.300 paer day had been produced.

In the absence of any challenge to this evidence aI would palce the incapacity at 2 years instead of five. This is due to the possible attribution of poor hospital care that may have nothing to do with the accident.

Thus 7,200 x 2 x 12 = Ksh.172,800/-.

Insummary

Inuries sustiaend

a) Fractue of the right leg lower 3rd

b) Fracture of the right hip joint

c) Dislocation fo the right hip bone and pelvis. Liability

Interlocutory judgment against the defendant and in favour of the plaintiff ented on 3ard December, 1998 for failure to enter appearance.

Quantum

Judgment be and is hereby entered for the palitnfif as follows:-

General damages

a) pain suffering and loss of amenities Ksh.200,000/-

b) Loss of future earning Ksh.172,800/-

c) Future medical care Ksh.150,000/-

d) Special Damages (Proved) Ksh. 2,000/-

Total Ksh.528,800/-

I award costs of this suit to the plaintiff. I award inters ton General Damages from the date of this judgment and on Special Damages from the date of filing suit.

Dated this 1st day of February, 2000 at Nairobi.

M. A. Ang’awa

Judge

31. 1.2000