[2015] KEHC 2559 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 1079 OF 2002

SULEIMAN MBANGO.............................................................PLAINTIFF

VERSUS

Mboya Wambua

Samuel Maina Kavetu

Equator Auto Mobiles

G. Kingoo

F.K. Mukora....................................................................DEFENDANT

AMENDED JUDGEMENT

(TEST SUIT ON LIABILITY)

On 25th September 2015, this court delivered judgment on liability and quantum. On liability this court found the drivers of the two motor vehicles to be equally liable. On quantum, this court, gave the Plaintiff an award of kshs.500,000/= to represent general damages and Ksh.98,500/= as special damages.

At the time of delivery of the aforesaid judgement, Mrs. Onyango, learned advocate for the Plaintiff pointed out that the court had made an error which was apparent on the face of record. She pointed out that the parties had invited this court to correct the judgment by setting aside the decision on quantum because the court was not invited to make a finding on it. Mr. Kamenda who appeared as holding brief for Mr. Mbugua for the 1st Defendant supported the submissions of Mrs. Mbugua.

I have considered the oral submissions of learned counsels. I have also perused the court record and it is clear to this court that learned advocates had with the concurrence of the court agreed to have this file dealt with as a test suit on liability. Unfortunately that consent was recorded before another judge and was not pointed out to this court when the matter came up for hearing.

With respect, I agree with the submissions of both learned counsels that this court made an error when it made a finding on quantum. The Plaintiff had not put that issue for the determination of this court. In exercise of my inherent power I hereby set aside the order on quantum and direct that the issue be heard and determined in terms of the consent recorded by the parties.

On the question of liability, this court substantively expressed itself in its decision delivered on 25. 09. 2015. For the avoidance of doubt I will reproduce the findings in page that that judgement on liability as follows:

It emerged from the evidence on record that there was a stationary lorry in the middle of the road at the material time. It is that lorry that the accident vehicle rammed into. The weather was said to be rainy and misty. In that kind of weather, a driver is expected to be keen in his/her driving. Considering DW1 and DW2's evidence that the tyres skidded, I draw an inference that the DW1 was driving at a higher speed. It is for that reason that he could not manage to apply brakes to avoid hitting the lorry. Had he been on the look-out and drove carefully, he could have avoided the accident. In the circumstances, I find him partly liable for the accident. The lorry driver too was liable for parking in the middle of the road. I find the two drivers equally liable and I apportion liability at the ratio of 50:50 between the 1st Defendant and 3rd to 5th Defendants. The Plaintiff was a passenger and is absolved from liability.

In the end the initial judgement delivered on 25. 9.2015 is reviewed and amended by setting aside the order on quantum. The driver of lorry registration no. KQL 420 is to shoulder 50% liability while the driver of motor vehicle registration no. KAN 166 C should shoulder 50% contribution.

Dated and delivered in open court this 30th day of September, 2015.

J. K. SERGON

JUDGE

In the presence of:

………………………………………. for the Plaintiff

……………………………………….for the Defendant