[2003] KEHC 731 (KLR)
The court found that the 1st Defendant was negligent in the manner he drove the army vehicle, overtaking at a junction and failing to exercise due care, which directly caused the collision and damage to the Plaintiff's lorry. The Plaintiff successfully proved special damages for repair costs, assessment charges, and...
Source-derived case information.
- Citation
- [2003] KEHC 731 (KLR)
- Parties
- Plaintiff: Stephen Njuguna; Defendant: Jonathan Ogoso Nyangara; Defendant: Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 118 of 1997
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim for repair costs, assessment charges, and police abstract allowed; claim for loss of user disallowed.
- Legal Topics
- Negligence, Motor Vehicle Accidents, Special Damages, Loss of User
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Njuguna
Plaintiff
Jonathan Ogoso Nyangara
Defendant
Hon. The Attorney General
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the 1st Defendant was negligent in causing the motor vehicle accident involving the Plaintiff.
- 2 Whether the Plaintiff proved special damages for repair costs and loss of user as required by law.
Ratio Decidendi
The court found that the 1st Defendant was negligent in the manner he drove the army vehicle, overtaking at a junction and failing to exercise due care, which directly caused the collision and damage to the Plaintiff's lorry. The Plaintiff successfully proved special damages for repair costs, assessment charges, and police abstract as pleaded and supported by documentary evidence. However, the Plaintiff failed to strictly prove the claim for loss of user, as the evidence at trial did not support the amount pleaded in the plaint. The court therefore awarded only the proven special damages, disallowing the unproven loss of user claim.
Court Disposition
Plaintiff's claim for repair costs, assessment charges, and police abstract allowed; claim for loss of user disallowed.
Orders
- Judgment entered for the Plaintiff for Kshs.229,017.75 plus costs and interest.
- Claim for loss of user is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 118 OF 1997
STEPHEN NJUGUNA……………………………...……..……..PLAINTIFF
V E R S U S
JONATHAN OGOSO NYANGARA……………………1ST DEFENDANT
HON. THE ATTORNEY GENERAL……………………2ND DEFENDANT
JUDGEMENT
The Plaintiff filed this claim on 20. 1.97 claiming Kshs.589,017. 75 in compensation from the Government in negligence arising from a motor accident.
The Plaintiff gave evidence at the hearing of this claim and produced record of proceedings in the Nairobi RMCTr. Case No. 6908 of 1996 in which Jonathan Ogoso Nyagala the driver of the army vehicle registration Number 08AF 38 Peugeot Saloon was charged with driving a motor vehicle on a public road without due care and attention Contrary to Section 49(1) of the Traffic Act Cap 403. Evidence from the records and findings of the Magistrate was that on 6. 2.96 at about 10. 00 a.m. along Ngong Road, Plaintiff was overtaking at a junction while he was meant to drive straight and collided with the lorry registration Number KUX 593.
The 1st Defendant was negligent in failing to exercise care, overtaking at a junction and driving on the outer lane while he was not turning on the offside.. PW1 said his lorry got extensively damaged and produced assessors and investigators reports Exh.2 and Exh.3 dated 13. 2.96 showing damage and the spare parts worth Kshs.161,885/- and needing labour costing Kshs.223,919. 75 to repair. The vehicles used to be used by Plaintiff for carrying stones carrying about Kshs.15,000/- per day. He was not able to work for 12 days so he claimed loss of user. In my findings; the damages proved are; -
i) Repair of the lorry as per invoice from Ms Valley Garage Kshs.223,.917. 75
ii) Assessment charges Kshs. 5,000. 00
iii) Police Abstract Kshs. 100. 00
TOTAL Kshs.229,017. 75
As for loss of user, this is to be claimed as special damages and the law is that special damages must be proved as pleaded. Here, the Plaint provided under paragraph 7(d) thereof as follows “7(d) loss of user at the rate of Kshs.15,000/- per day for 21 days Kshs.315,000/-“
But at the hearing of this case, the Plaintiff himself said: -
“I used to trade with KUX 593 carrying stones and other things for 6 days earning between Kshs.10,000/- and Kshs.15,000/- per day after the accident the lorry stayed for about 12 days so I claim loss of user. I hired some other vehicle for Kshs.8,000/- and I claim that.”
It is obvious that the pleaded claim is not supported by the evidence adduced and therefore, there is no proof over this claim as it should be and disallowed.
The award, therefore, is for Kshs.229,017. 75 plus cost and interest.
DELIVERED this 20th day of June 2003
A.I. HAYANGA
JUDGE
Read to Mr. Siamei for Plaintiff
No appearance for Defendant
A.I. HAYANGA
JUDGE