[2002] KEHC 1 (KLR)
The court found that the plaintiff had established, on a balance of probabilities, that the accident was caused by the negligence of the 2nd defendant's driver, for whom the 2nd defendant was vicariously liable. The defendants did not adduce any evidence to rebut the plaintiff's account. The plaintiff's injuries...
Source-derived case information.
- Citation
- [2002] KEHC 1 (KLR)
- Parties
- Plaintiff: Richard Mungai G Ichuhi; Defendant: Peter Nguru Kahia; Defendant: K.K. Promote Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2654 of 1997
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Negligence, Personal Injury, Vicarious Liability, Motor Vehicle Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Mungai G Ichuhi
Plaintiff
Peter Nguru Kahia
Defendant
K.K. Promote Limited
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendants were liable in negligence for the motor vehicle accident resulting in the plaintiff's injuries.
- 2 Whether the plaintiff is entitled to general damages for pain, suffering, and loss of amenities.
- 3 Whether special damages were properly pleaded and proved.
Ratio Decidendi
The court found that the plaintiff had established, on a balance of probabilities, that the accident was caused by the negligence of the 2nd defendant's driver, for whom the 2nd defendant was vicariously liable. The defendants did not adduce any evidence to rebut the plaintiff's account. The plaintiff's injuries were extensive and supported by medical evidence. The court held that the plaintiff was entitled to general damages for pain and suffering and loss of amenities, but dismissed the claim for special damages as it was not specifically pleaded or proved. Judgment was entered for the plaintiff for general damages, with costs and interest awarded.
Court Disposition
Judgment for the plaintiff.
Orders
- The 2nd defendant is held 100% liable for the accident.
- The plaintiff is awarded Ksh.180,000 as general damages for pain and suffering and loss of amenities.
Full Case Text
Judgment text and source record
62 paragraphs
Running down action
Motor vehicle matatu accident and lorry accident collision.
Driver of the matatu – male adult aged 32 years in 1995
Injuries:-
Comminuted fracture of left lower end of the tibia
Fracture of left patella with mild displacement
Fracture of left tibia plateau
Comminuted fracture of proximal third of the left femur
Compound comminuted fracture of the lower end of the right patella.
Comminuted fracture of proximal third of the right tibia
Compartment syndrome of the right leg.
Closed head injury.
Multiple soft tissue injuries.
Liability: 100%
Quantum:-
A) Damages General
i) Pain and suffering and loss of amenities Ksh.180,000/-
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 2654 OF 1997
RICHARD MUNGAI G ICHUHI …………………………… PLAINTIFF
VERSUS
PETER NGURU KAHIA ………………....…..………. 1ST DEFENDANT
K.K. PROMOTE LIMITED …………………………. 2ND DEFENDANT
JUDGMENT
The plaintiff is a matatu driver. On the material day of the 2. 2.95 in the evening he was traveling along Limuru Road when he had just passed the village market he approached a bend. He noted another vehicle come towards him. The said vehicle came to his lane and knocked his vehicle. The plaintiff lost consciousness and was rushed to the Aga Khan hospital where he was duly admitted.
He sued the 1st and 2nd defendant in negligence for tort. He then prayed for damages for the injuries sustained.
A.LIABILITY
The plaintiff explained the circumstances of the accident. The defendant called no evidence on this part. I would accept the explanation given by the plaintiff. I would hereby hold the defendant No.2 100% liable for the accident. I do so as they are vicariously liable. The suit against the defendant No.1 was withdrawn by the plaintiff as it is said he has since died.
B.QUANTUM
1) General Damages
a) Pain and Suffering
I am satisfied that the plaintiff sustained injuries as a result of the accident. A medical report prepared by a doctor from the Aga Khan hospital Dr. Costa Marwa and produced by PW2 also a doctor under Section 33 of the Evidence At out lined the injuries sustained. These injuries were quite extensive and evidenced.
Comminuted fracture of the left lower end of the tibia
Fracture left patella with mild displacement
Fracture left tibia plateau.
Comminuted fracture or proximal, third of the left femur.
Compound comminuted fracture of the lower end of the right patella.
Comminuted fracture of the proximal third of the right tibia.
Compartment Syndrome of the right leg.
Closed head injury.
Multiple soft tissue injuries.
There was a time the plaintiff had to go into the I.C.U.
I note that the pain and suffering the plaintiff underwent is extremely extensive.
I would find that an award of Ksh.180,000/- under the head of General damages for Pain and suffering should suffice.
Special Damages
This was never pleaded. It requires to be so pleaded. See the case of Bonham Carter vs Hyde Park Hotel Ltd. 1948 64TLRI77. Lord GoddardCJ comments on this.
I would dismiss this claim
I accordingly enter judgment for the plaintiff for the rest of the claim proved.
In summary
Running down action
Motor vehicle accident and lorry accident collision.
Driver of the matatu – male adult aged 32 years in 1995.
Injuries:- Various fractures.
Liability: 100%
General Damages
i) Pain and suffering and loss of amenities Ksh.180,000/-
Total Ksh.180,000/-
I award costs of this suit to the plaintiff. I award interest from the date of this judgment on General Damages.
Dated this 6th day of February, 2002.
M.A. ANG’AWA
JUDGE