Daniel Ndungu Mwangi v Franco Shisoka, A.I.C. Diguna, A.I.C. Kenya Trustee Registered, Michael Hoerder & David Rempel [2017] KEHC 7145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 1801 OF 2002

DANIEL NDUNGU MWANGI …………….…..…………. PLAINTIFF

VERSUS

FRANCO SHISOKA ……………………........….. 1ST DEFENDANT

A.I.C. DIGUNA ……………………………….….. 2ND DEFENDANT

A.I.C. KENYA TRUSTEE REGISTERED …......….3RD DEFENDANT

MICHAEL HOERDER …………………….....……4TH DEFENDANT

DAVID REMPEL …………………………....……..5TH DEFENDANT

JUDGMENT

The plaintiff brought this suit against the defendant jointly and severally following a road traffic accident that took place along Eldoret Nakuru road on 25th June, 2001.  He was a passenger in motor vehicle registration No. KYZ 213 owned by the 2nd defendant and driven by the 1st defendant at the time of the accident.  The 3rd – 8th defendants are trustees of the 2nd defendant. The plaintiff was injured as a result of the said accident and blamed the 1st defendant.   he pleaded that the 1st defendant  was negligent in driving at an excessive speed, failing to maintain proper and effective control of the motor vehicle, failing to stop, swerve, brake, slow down or in any other way so as to avoid the accident, and driving carelessly and dangerously without any due regard for the safety of the passengers.

There is no evidence of any intervening factor relating to the accident going by the evidence of the plaintiff.  The driver of the 1st defendant was in control of the motor vehicle.  The doctrine of res ipsor loquitorapplies in this case.  Liability has therefore been established against the 1st defendant which shall extend to the other defendants on the basis of vicarious liability.

As a result of the accident the plaintiff suffered fracture/sub lacerations at C4/5, injury to spinal cord, fracture of all left ribs, and multiple injuries on the neck, back, head and chest.

There is a medical report prepared by doctor F.J.O.  Wasuna dated 10th November, 2001 and another one prepared by doctor Maina Ruga dated 28th September, 2011. Going by this report the doctor observed that the plaintiff still has stiffness of the neck with limitation of movement. The level of permanent incapacity was accessed at 20%. Cases cited included Wendy Martin Vs. IL Ngwesi Company Limied and two others (2008)e KLR, Mehali Transporters Limited Vs. Damus Mwasia Maingi and Mary Nyadzua Ngale Vs Sheikh Omar  bin Dahman  MSA CC No. 122 of 1999.

I have reviewed the authorities cited and the awards made therein as a guide to awarding general damages and in my assessment make an award of Kshs. 1. 5 Million general damages for pain and suffering.  The plaintiff proved special damages of Kshs. 155,150/= as pleaded.

There shall be judgment therefore in favour of the plaintiff against the defendants jointly and severally in the sum of Kshs. 1. 5 million general damages, Kshs. 155,150/= special damages. The plaintiff shall also have the costs of the suit and interest at court rates.

Dated, signed and delivered at Nairobi this 15th Day of February, 2017

A. MBOGHOLI MSAGHA

JUDGE