[2004] KEHC 2032 (KLR)
The court determined that an award of Kshs.600,000 for pain, suffering, and loss of amenities was adequate, considering the plaintiff lived for about 12 months after the accident, endured amputation of the left leg, and was hospitalized for 40 days. Special damages of Kshs.4001 were admitted by the defendant. The...
Source-derived case information.
- Citation
- [2004] KEHC 2032 (KLR)
- Parties
- Plaintiff: Wamwere Kyalo; Plaintiff: Wambua Kyalo; Defendant: Thomas Mutuku Kilonzo; Defendant: Mutuku Kilonzo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 163 of 1996
- Procedural Posture
- Civil Suit / Judgment on Assessment of Damages After Liability Apportioned by Consent
- Outcome
- Judgment for the plaintiff in the sum of Kshs.604,001, subject to apportionment of liability; execution stayed for 45 days.
- Legal Topics
- Personal Injury, Assessment of Damages, Apportionment of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wamwere Kyalo
Plaintiff
Wambua Kyalo
Plaintiff
Thomas Mutuku Kilonzo
Defendant
Mutuku Kilonzo
Defendant
Procedural Posture
Civil Suit / Judgment on Assessment of Damages After Liability Apportioned by Consent
Legal Issues
- 1 What is the appropriate quantum of damages for pain, suffering, and loss of amenities following amputation and subsequent death of the plaintiff.
- 2 How should special damages be awarded and incorporated into the final judgment.
- 3 How should the previously agreed apportionment of liability affect the final award.
Ratio Decidendi
The court determined that an award of Kshs.600,000 for pain, suffering, and loss of amenities was adequate, considering the plaintiff lived for about 12 months after the accident, endured amputation of the left leg, and was hospitalized for 40 days. Special damages of Kshs.4001 were admitted by the defendant. The total award of Kshs.604,001 was subject to the previously agreed apportionment of liability (plaintiff 35%, defendant 65%). The court ordered that the net amount after apportionment be paid to the deceased's personal representatives, with costs and interest. Execution of the decree was stayed for 45 days to allow payment by the defendants.
Court Disposition
Judgment for the plaintiff in the sum of Kshs.604,001, subject to apportionment of liability; execution stayed for 45 days.
Orders
- Judgment entered for the plaintiff in the sum of Kshs.604,001 with costs and interest.
- The amount of decree after apportionment to be paid to the deceased's personal representatives.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL SUIT NO. 163 OF 1996 R.D.
1. WAMWERE KYALO………………………………..1ST PLAINTIFF
2. WAMBUA KYALO…………………………………2ND PLAINTIFF
=V E R S U S=
1. THOMAS MUTUKU KILONZO………………1ST DEFENDANT
2. MUTUKU KILONZO…………………………..2ND DEFENDANT
J U D G M E N T
On 17/4/02 liability was apportioned by consent as follows:-
Plaintiff 35%
Defendant 65%.
When the matter came up for hearing on assessment of damages the Advocates offered submissions which were brief and to the point.
For Plaintiff, one witness was called (his legal representative). The injuries led to amputation of left leg below the knee. The Plaintiff died on 17/7/96 about one year after accident in 1995.
Plaintiff’s counsel proposed Kshs.800,000/- while the Defendants’ counsel proposed Kshs.600,000/-.
Special Damages Kshs.4001/- was admitted by the Defendant.
Upon perusing the record and seeing that the Plaintiff lived for about 12 months and was hospitalized for 40 days and he lived for that period without the left leg, I am of the view that a sum of Kshs.600,000/- for pain suffering and loss of amenities, plus Special Damages of Kshs.4001/= is adequate compensation.
Judgment is therefore entered in the sum of Kshs.604,001/- with costs and interest.
The amount of decree after apportionment shall be paid to the deceased Personal Representatives.
Dated this 30th day of July, 2004.
JOYCE KHAMINWA
J U D G E
Mr. Pandya
Mr. Mutubia – for Were
Mr. Mutubia for Were – for Defendants
I ask for stay for 45 days to pay.
Mr. Pandya
No objection.
COURT
Execution is stay for a period of 45 days from to-day after which Plaintiff shall be at liberty to execute.
JOYCE KHAMINWA, J.