Duncan Kimathi Karagania v Ngugi David, George Njoroge Waswa, Nazish Motors Latd & Samuel Njunge Ndung’u [2016] KEHC 4620 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  75 OF 2012

DUNCAN KIMATHI KARAGANIA ….…...…………………………….PLAINTIFF

VERSUS

NGUGI DAVID …………………………………………….........1ST DEFENDANT

GEORGE NJOROGE WASWA……………………………….2ND DEFENDANT

NAZISH MOTORS LATD…………………………………..…3RD DEFENDANT

SAMUEL NJUNGE NDUNG’U………………………………..4TH DEFENDANT

JUDGMENT

The plaintiff  in this case is Duncan  Kimathi Karagania.  He filed suit  herein against  the  four defendants Ngugi David, George  Njoroge  Waswa, Nazish Motors  Limited and Samuel  Njunge Ndung’u  vide plaint dated  17th February  2012 and filed in  court on  29th February 2012.

The plaintiff’s claim against the defendants jointly   and severally is for damages arising from a road traffic accident which was alleged to have occurred on or about the 10th day of April 2010 at 8. 00pm along Nakuru- Nairobi Highway around Gilgil area involving motor vehicle registration No.  KBF 754W wherein the plaintiff was lawfully travelling.  The plaintiff avers  that the said  accident  was occasioned by the  negligence of the defendant’s by  themselves  or through their agents, employees, servants/drivers their managing, controlling, steering and  or driving the  subject  motor vehicle  which collided  with motor vehicle  KBA 511 W as a result  of which  the two  motor vehicles  rolled thereby  injuring  the plaintiff seriously.

The plaint further  alleges that  at all material times to this suit  the           1st defendant  Ngugi David  was the registered  owner of motor vehicle  KBF 754W  a  Toyota matatu  which  was   on the material day  lawfully driven by the 2nd defendant  George Njoroge  Waswa as the 1st  defendant’s employee, servant, agent  and or driver  in the course of  his employment.  The  3rd  defendant  Nazish Motors  Limited  as alleged  to have been the  registered  owner of motor vehicle  registration number KBA 511 W a Toyota station wagon which  was  then being driven by the 4th defendant Samuel Njunge  Ndungu as its lawful driver, and employee, servant, agent  and  in the course  of his employment  with the 3rd defendant.

The plaintiff blamed the  2nd and 4th defendants   who were in control, management, steering and driving  the respective  motor vehicles  for

Driving  recklessly  and or carelessly.

Driving at an  excessive  speed in  the circumstances  as it  was  at night.

Failing to swerve or take full control of their respective  motor vehicles s to avoid collision  with  the oncoming motor vehicle.

Failing to apply breaks  to stop the vehicles from colliding  with the vehicles driven by them.

The 4th defendant  is exclusively  blamed for  trying to overtake  the motor vehicle, driven by the 2nd defendant  when it  was clearly dangerous  as it was at night  and there was an oncoming  motor vehicle  therefore swerving in the land occupied by the  motor vehicle  driven by the 2nd defendant and consequently colliding with the said  motor  vehicle  and thereby causing the accident.

The plaintiff also sought to rely  on the doctrine  of Res Ipsa Loquitor .  The plaintiff therefore  holds  the 1st and  3rd  defendants  vicariously  liable for  the accident  and the severe personal injuries  which he  sustained  as a result of the collision  between the  two motor vehicles  driven by the 2nd and  4th defendants respectively.

The plaintiff claimed that  he sustained  injuries  as a result  of the material  accident involving

Blunt  head injury  with the loss of consciousness for over two hours;

Lacerations over the face on both sides.

Comminuted fracture of the maxilla bilaterally at the Le /fort 11 level.

Compound fracture of the mandible.

Comminuted fracture of the right humerus, articular region of the elbow surface of radio car pal.

Multiple lacerations of the hands and  forearms.

He claimed for damages for the pain and suffering, and loss of amenities future medical expenses and special damages of kshs 1,097,428.  The plaintiff  also claimed for costs of  the suit, interest  and any other relief  or further relief  as  thus Honourable  court deems fit.

The plaintiff’s advocate Wasonga  Kimakia  & Associates  Advocates  took out  summons  to enter  appearance  on 24th February  2012  and effected  service  upon the defendants  who neither  entered  an appearance  nor filed  defence.  The  3rd defendant  was served  on      10th July 2012.  The  1st  defendant  was  served on 23rd  August  2012.  The 4th  defendant was served  on  30th October  2013  whereas  the        2nd defendant  was served on  30th October 2013.  All the defendants  were served in  person as  per the filed sworn affidavit   by Milton Okello.

On 29th  November  2012  interlocutory judgment  in default   was entered against  the 1st and  3rd defendants  whereas  interlocutory judgment  in default   was entered against  the 2nd  and  4th defendants on 20th  November  2013.

This suit was therefore set down for formal proof hearing which took place on 21st July 2015 exparte.

The plaintiff testified on oath as PW1 relying on his witness statement signed on 17th February 20012 which was filed and adopted as his evidence in chief. The plaintiff testified that he  resides  in Nairobi  and works  with Davis  and Shirtliff as a  technician.  That on 10th April 2010 he was travelling to Nakuru from Nairobi together with other relatives and friends to pay dowry to his in laws.  On their way to back, he was a passenger in motor vehicle registration No.  KBF 754W.  At around  8. 00pm at around Gilgil  area, a station  wagon  motor vehicle  registration number KBA 511W tried  to overtake  the matatu in which the plaintiff  was  a passenger but  because  there  was   an oncoming  lorry which  hooted, the station  wagon veered  to the side into  the matatu registration No.KBF 754W and the two vehicles  collided  and rolled.  The plaintiff had on him a safety belt.  He lost  consciousness  and only regained  it at Kijabe Hospital the next day 11th April 2010.  He was  transferred  to Aga Khan Hospital, Nairobi the same day/night  and admitted until 25th April  2010 when he  was discharged.  He suffered extensive injuries to his face, nose, head, mouth, jaws, hands and legs.  He had scratches  on his  face, his  right lower jaw was fractured, his head  was aching  seriously,  his both hands  had  fractured  and his left  knee  had  scratches.  He was operated on and implants inserted in his nose, upper and lower jaws and both hands. On 11th October  2010  he was readmitted  at Kenyatta  National Hospital  private  wing for wires to be removed  from the right elbow  and he  was discharged on 13th October 2010.  He continued with checkup  treatment at Kenyatta National  Hospital and at the time of hearing  he still visited the said Kenyatta  National Hospital  for  regular checkup  because of the implants which are still insitu his  right forearm and left elbow  and in the jaws  which cracked.  He reported to the police  at Gilgil Traffic Base  and  was issued with   a  police abstract  and P3 form which  was filled by a  doctor which he  produced  as contained in the bundle of  documents  filed on 20th February 2012.  The plaintiff’s instructed   an advocate who did a search on the ownership of the accident motor vehicles.  He produced   the two searches  confirming that the  motor vehicles  were owned  by the 2nd and  2rd defendants respectively  as  pleaded  in the plaint  and which  he produced  as contained  in his  bundle  of documents  filed on  20th February  2012.  The plaintiff was later examined by doctors G. Gikenye and Professor M.L. Chindia.  He prayed for  general  damages  and special damages as  per the receipts  contained  in his bundle of documents   filed on  20th February  2012.  He also  prayed  for  costs  and interest.  The plaintiff  produced  his entire  bundle of documents  filed on                   20th February 2012  as his exhibit  No. 1.

The plaintiff also called  PW2 Jacob  Mwendia  Nabea  who testified  on oath  and his  written witness statements  signed on 17th February  2012  adopted  as his evidence  in chief.  That he is a driver of by profession. PW2 reiterated the testimony of the plaintiff adding that he was indeed travelling with the plaintiff   when the accident occurred.  That their motor vehicle was being driven at a moderate speed towards Nairobi.  He confirmed  that  it is  motor vehicle  KBA 511 W  which tried to  overtake  them but met  an oncoming  lorry and   as the lorry hooted, the driver  of the offending  motor  vehicle  swerved into the  matatu lane  thereby colliding  with the matatu KBF 754W from  the right  front side  by the left  rear of the station wagon  and he two  vehicles  rolled severally. He clung to the seat in front of him while belted.  The windows broke into pieces.  The matatu  suddenly stopped but it  was accelerating  hitting  on the station  wagon  continuously.  He jumped   through the rear  left window  while other passengers dashed to  switch off  the matatu   engine  because  the driver  was unconscious.  PW2 was not injured at all.  He therefore helped putting the injured passengers into a rescue pickup.  Among the injured  was  Duncan Kimathi Karagania  his  friend.  They were  taken to  Gilgil dispensary and taken  to Nakuru  Mission Hospital in an ambulance.  The following day they were taken to Kijabe hospital.  Kimathi  (the plaintiff) was  referred  to Aga Khan Hospital  since his  injuries  were severe.

The plaintiff also called PW3 Doctor Gichambria Gikenye who testified on oath on   28th October 2015.  He stated that he was a private medical practitioner.  He   was also a lecturer at the University of Nairobi, Human Anatony Department.  He further testified  that he examined the plaintiff  on 17th November  2010 as per the  medical report dated 17th November  2010.  He confirmed that the plaintiff sustained  injuries  as  pleaded and that  on examination he complained  of difficulties  in chewing  because of  discomfort  in the right  jaw; restrictions  of  movements at  the right elbow, left  elbow  and left wrist. He also had-

A minor asymmetry of the lower jaw and scar on the upper lip.

Limitation of movement maximum extension at 1100 and flexion 900of the right elbow.

Limited  movements  of the left  wrist  both  in dorsal  and palmar  flexion, ulna  and radial deviations.

The plaintiff had scars in the injured areas.  The doctor concluded that the plaintiff sustained severe injuries.  He relied on the history given by the plaintiff, case summaries and Xray forms.  He identified and produced the plaintiff’s medical report as contained in the plaintiff’s bundle of documents.  He stated that he was paid kshs 10,000/- for court attendance.

The plaintiff closed his case and his advocates filed written submissions on 3rd November 2015. In the said  submissions, the plaintiff’s counsel urged the court to find that the plaintiff had proved his case against  the defendants and that the  court should  find them 100%  to blame   and award  him damages.  Decided cases were annexed to the submissions on quantum.  The plaintiff  prayed for kshs 9 million  general  damages for pain, suffering  and loss  of amenities relying on the  case of  Rukia  Mungayia V Johnson Juma Ogutu & Another CA 135/2006, Nairobi, BKM (minor) V Christopher Komen HCC 139/2012 (Nakuru); and Ngure  Edward  Karega  V Yusuf Doran Nassir HCC 157 of 2012 ( Nakuru).  He also prayed for special damages of kshs 1,107,421.  The plaintiff also prayed for future medical expenses for removal of implants and plastic surgery and superficial radiotherapy each at shs 350,000/- totaling shs 700,000.  He also prayed for costs and interest at court rates from date of filing suit.  He annexed copies of the authorities relied on.

I have carefully considered the plaintiff’s pleadings, evidence as adduced by the plaintiff and his two witnesses including Doctor Gikenye.  I have  also considered  the documentary evidence and submissions  as filed by the plaintiff’s  counsel  both  on liability  and quantum  of damages.

The court notes that the defendants despite being served with the plaint, documents, witness statement, all accompanying summons to enter appearance, none of them entered appearance nor filed defence.  Accordingly, the plaintiff applied and obtained interlocutory judgment and therefore the suit herein proceeded by way of formal proof hearing.

In my view, therefore, considering   the record as a whole, the following are the issues for determination

Whether the defendants are liable for the material accident/who was to blame   for the accident.

Whether the plaintiff sustained injuries and or suffered loss and damage as a result of the accident.

What is the quantum of damages that the court should assess?

Who should  bear the costs of this suit.

On who  was to blame  for the material  accident, the  plaintiff  clearly testified  and his evidence as  corroborated  by PW2 Jacob Mwenda  Nabea  is that the two were both travelling in the same motor  vehicle after   attending a bride price  payment ceremony together  and on their  way  back to Nairobi the  4th defendant driver, was driving the 3rd  defendant’s motor vehicle  registration No.  KBF 754 W matatu when  the 1st defendant driving motor vehicle KBA  511 W station  wagon  tried to overtake  them  and he  met an oncoming  lorry which  hooted.  The  1st defendant  swerved  to the left lane  of the 4th defendant  and collided  with the  matatu.  The two vehicles  rolled severally.  The plaintiff  was seriously injured so he lost  consciousness  and found himself  in hospital.  He later  reported to Gilgil Traffic  Base  and  was  issued   with a police  abstract   and a P3  form which  he produced  as exhibits.

The police abstract  No. 0214416  document 3 in the plaintiff’s  bundle of  documents  show that the motor vehicle KBF 754W Toyota matatu  was driven  by George Njoroge  Waswa  the 4th defendant  whereas  motor vehicle  KBA  511W Toyota  station wagon  was driven  by Samuel  Njunge  Ndungu.  The plaintiff is named  as one of the injured  persons.  PW2 testified  that he escaped the accident  without  any  injuries  or at all.  The  plaintiff sustained  severe injuries  as pleaded  and confirmed  by Doctor Gikenye  PW3 who examined the plaintiff and produced  the medial report  as an exhibit. The plaintiff also produced  certificates  of searches  from Kenya  Revenue Authority  confirming that the  matatu minibus  KBF 754W was owned  by David  Ngugi  the 1st defendant  whereas  the Toyota  station wagon KBA 511W  was owned  by Nazish Motors  Limited, the 3rd  defendant. There was no evidence  that any of the drivers of the accident motor vehicles   was charged with any traffic  offence.

From the evidence  as adduced  by the plaintiff  and his  witness PW2 who was an eye witness  and  who was  lucky to escape  without any scratch,  I am satisfied  that the plaintiff has proved on a balance  of probabilities  that following  the material accident which  was not denied, the 4th  defendant who was driving  motor vehicle  registration No.  KBA 511 W Toyota station wagon  was entirely to blame  for the accident.

I have   reached  that finding and conclusion  for it  is clear from the testimony  of the plaintiff  and PW2 that the  matatu driver  was  lawfully driving  on his side of the road when the  4th defendant started  overtaking the matatu  and  in the  process  he was alerted  by an  oncoming lorry which hooted in order to avoid  a head on collision  with the lorry. As a result, the 4th defendant  swerved to the left  side  of the road into the  1st defendant’s matatu being driven by the 2nd  defendant  and collided with it  sideway and as a  consequence,  both vehicles  rolled severally.

This court, from the above  evidence does not  perceive how the 2nd defendant  could have  contributed  to the occurrence of  the accident even if he has  not defended  this suit.

It is my humble  view that  from the available  evidence, the                      4th defendant  drove recklessly and without  due care.  He  was overtaking the matatu without  ensuring  that the  road ahead   was  clear  or that he would  have sufficient  opportunity to  complete the act of overtaking  the matatu  and get onto the left lane  ahead  without encountering  the motor  vehicles from the opposite  direction.

The 4th defendant  endangered his life and the life  of others  like  the plaintiff and PW2 by taking the risk of  overtaking  without ensuring that  it  was safe to do so thereby swerving  onto the  2nd defendant’s lane and colliding  with the  1st  defendant’s motor vehicle.  It  was at night.  He  did not drive  carefully.  If  he had  been a careful  driver, he should have  seen the oncoming lorry  and waited   until the road  was clear  before  overtaking.  He was  negligent and it is his negligent and rushy or reckless driving by overtaking dangerously that caused  the accident  wherein the plaintiff  was severely  injured.  I hold  him solely responsible  for the accident.  As there  is evidence that the motor  vehicle  was owned  by the 3rd defendant,  I find that  the 3rd  defendant is  vicariously liable  for the  negligent acts of the 4th defendant  who was in the absence  of any evidence  to the  contrary, its driver, agent/servant and in control of the  accident motor vehicle KBA 511W Toyota Station Wagon.

Accordingly I find the 3rd  and 4th defendants wholly, jointly and severally to blame for the  accident  and  for the injuries  suffered  by the plaintiff  at 100%.  As against the 1st and  2nd defendants, I find no  evidence  to apportion liability  on them.  The mere fact  that the matatu driver  was  on the road   and driving  a motor  vehicle  which  was  hit by the 3rd defendant’s  motor vehicle, by itself  does not  make the driver of  the matatu contributory negligent or negligent  at all for the  occurrence  of the accident  and therefore responsible  for the resultant  injuries  that the plaintiff sustained.

Accordingly,  I find that  there  is no evidence  that the 1st and second defendants in any way were  responsible  for the accident  since it is  the reckless  overtaking   and swerving  by the 4th  defendant that  caused the  collision  between the two motor vehicles.

I therefore dismiss the  plaintiff’s suit against  the  1st and 2nd defendants for want  of  proof of  negligence  since the  plaintiff and  his witness did not even tell the  court how the  2nd defendant  could have  avoided being  hit by the 4th defendant  who swerved to avoid colliding  head on  with the oncoming lorry.

On quantum, the plaintiff pleaded  and produced  a medical report  by Doctor  Gikenye  who filled  the P3  form on 17th November 2010  using the treatment notes which  confirmed that he sustained  severe injuries  classified  as grievous  harm.  The said injuries  involved:

Blunt head injury with  loss of  consciousness for over  two hours.

Lacerations over the face  on both sides.

Comminuted  fractures  of the maxilla bilaterally at the Le Fort  11 level.

Compound  fracture of the mandible.

Comminuted fracture  of the right humerus.

Articular region of  the elbow surface  of radio carpal.

Multiple  laceration of the hands and forearms.

The plaintiff  was admitted in Kijabe  hospital, transferred to Aga Khan  Hospital  and Kenyatta  National Hospital’s.  He was  in hospitals  for a total of  18 days.  He sustained    fractures   which necessitated  surgery  and implants  inserted  in the fractured sites.  He  still has implants  and continues to go for medical checkup.  According to Doctor Gikenye’s  medical   report  the fractured  jaws  compromise  the plaintiff’s chewing ability.  His elbows movements are restricted.  He was left with multiple  scars  in the injured areas  measuring  between 0. 5 cm to  19 centimeters  some of which  like the  one on the  forearm  was hypertrophic and had  developed  keloids.  The court  had an opportunity  to  see the plaintiff  as he  testified.  The accident  disfigured  him.  He could hardly speak, stand or even hold  an item  due to the  fractures  and restricted  movements  in the jaws  and elbows  and left wrist.

According  to doctor Gikenye, the scars  noted are permanent.  The implants  in the right  elbow and left  forearm were still insitu.  The plaintiff’s  permanent  incapacity  was assessed at  30%  and he  needs further  surgery to remove  the  metal implants at a cost of shs 200,000 and due to  the keloids, he  will  need shs  200,000 for  plastic  surgery and superficial radiotherapy.

For the above injuries the plaintiff’s counsel submitted  that an  award of  shs  9 million would suffice  for pain and suffering and loss of  amenities.  Counsel  cited  the  cases of  Rukia Mugoya V Johnson Juma Ogutu & Another (supra) where the plaintiff was  awarded  kshs  12,462,000 for  wedge compression, fracture  dislocation  at C4,C5; facial paralysis  both upper  and lower limbs, loss  of stool control and loss of  sensation from naval region downwards. He also relied on BKM (minor) V Christopher Komen (supra)  where the plaintiff minor  suffered  unconsciousness  with Glasgow coma  scale; paralysis  of the left  upper limb  and bilateral lower limbs, swollen  face  on the left  side  with tongue profusion; swollen  (soft tissue injuries) left periorbital  area with occlusion of the  eye; cut wounds, 4cm left super orbital region and 1cm  at the scalp  with multiple  bruises in all  limbs  shoulder and  legs; fractures of the left  maxillary  antrum  and subsequent  raised  intracranial pressure; major  bruises on the right shoulder, right knew, dorsal  aspects  of  hands and foot( bilaterally) fracture  (depress of the left  parietal region with foreign bodies, injury at brocas area, pain and blood loss on the affected areas.  He was awarded kshs  6,000,000 in 2012.

The third authority  on quantum is  of Ngure Edward  Karega  Vs Yusuf  Doran Nassir (supra) where the plaintiff  was awarded  kshs  5,000/- for injuries  involving fracture  of the 6th cervical, fracture  of the right  leg; bruises  on the head and pals  and spinal injury.

It is not  disputed that the plaintiff herein  sustained  severe injuries which have  greatly affected  his  quality of life. The principles governing  assessment  of damages are as espoused  in the often quoted  case of  West (H) and Sons Ltd  V Shepherd  [1964] AC 326 as cited  with approval in Cecilia Mwangi  & Another V Ruth Mwangi  CA 251/1996 where  Lord Morris stated  that :

“ But  money cannot  renew  a physical frame that has been  battered  and shattered.  All that   judges  and courts can do is to award  sums which must  be regarded as giving  reasonable compensation:

In the process there must  be the endeavour to secure some uniformity in the  general method of  approach.  By common constant, awards  must be reasonable  and must be assessed   with  moderation.  Furthermore, it is  eminently desirable that so far as  possible, comparable  injuries should be  compensated  by comparable  awards.  When  all this is said it  still  must  be  that amounts  which are  awarded  are to a considerable  extent  convential.”

Further guidance  is found in the  decision  by Lord Denning in Kim Pho Choo V Camden  & Islignton Area  Health Authority  [1979]  1 ALL ER  332 cited with  approval by Wendoh J  in Nancy Oseko  V BOG Maasai Girls High School [2011] e KLR  that:

“ In assessing  damages  the injured person is only entitled d to what is in the  circumstances, a fair  compensation  for  both  the plaintiff and  the defendant…….the plaintiff cannot  be fully compensated for all the loss  suffered  but the court should aim at  compensating   the plaintiff  fairly and reasonably  but in the  process  should punish the defendant.”

Applying  the above principles  to this case and considering the injuries  suffered by the plaintiff and their resultant  effects as stated by doctor Gikenye and taking into account  the submissions  and authorities  supplied by the plaintiff’s  advocate, I note that  the injuries  sustained  in the authorities cited by the plaintiff’s advocates  were more serious than the  ones sustained  by the plaintiff   herein.  Nonetheless  I am cognizant  of the  fact that no  two cases are similar.  Taking into account  those  comparable  injuries  and inflationary trends  and the  principles  as espoused above  in awarding  general damages  I would  in the circumstances  of this case award  the  plaintiff a sum of kshs  4,000,000 general damages for  pain, suffering  and loss of amenities.

The plaintiff also pleaded for damages and costs of  future  medical expenses.  Doctor Gikenye testified   and stated that  the plaintiff  will require  surgery to remove  the insitu implants   at a cost of  shs  200,000/-and due  to keloid scars, the plaintiff will require   a further  kshs  200,000/- for  plastic surgery and superficial radiotherapy.

This court is satisfied  that the claim for  future  medical  expenses is not  farfetched.  Although  his advocate  submitted  a proposal  for an award of shs 350,000 each  on each item, the Doctor Gikenye proposed shs 200,000/- on each.  The plaintiff did not  seek to  produce any further evidence that would enable  this court to consider enhancing  the figures  proposed  by the doctor   in 2010.  The plaintiff’s counsel also submitted on an injury that was suffered by the plaintiff thus “She is not able to hold urine for long as a result of fracture of the bladder and has difficulty walking long distances because of the leg shortening.”

That injury is not relevant to the plaintiffs case.  Accordingly, I award the plaintiff shs 400,000/- for future medical expenses as proposed by doctor Gikenye.

The plaintiff also prayed for special damages in the sum of kshs 1,107,421/- made up for

Police abstract                  200

Medical report                 3000

Attendance of doctor     10,000

Medical expenses       1,073,221

Transport and related expenses   20,000

Motor vehicle search fees     1,000

________________

Total                                          1,107,421

In the plaint, the plaintiff pleaded   for shs 1,097,428 covering all the above listed expenses except attendance of the doctor shs 10,000. It is trite law that special damages must not only be specifically be pleaded but they must be strictly proved.  Starting with attendance by the doctor shs 10,000/-.  This sum was not pleaded.  The doctor  nonetheless testified   and produced a receipt     confirming that he  was paid shs  10,000/- being court  attendance fees.  That may be so.  However, as the claim was not pleaded, this court   declines to grant it.  One can only prove what is contained in the pleadings.  Furthermore, the doctor is a witness.  Any  sums of money paid  to him to  facilitate  his court attendance  to testify  on behalf of the plaintiff is  a witness expense  therefore  a cost of  the suit  incurred.  It can only be claimed as a cost of the suit by way of witness expenses.  It is not a special damage.  The plaintiff produced police abstract but there is no receipt for shs 200/- as pleaded.  The claim is rejected   as it is not proved.  He produced   two motor vehicle searches from Kenya Revenue Authority.  He paid kshs 500/- each through National Bank of Kenya on 29th June 2011. I grant him shs 1,000/- as pleaded and proved.  He also pleaded and proved shs 3000/- being doctor Gikenye’s fees for medical report examination fee vide receipt dated 11th January 2011. On the medical expenses pleaded kshs 1,073,228,the receipt issued by Aga Khan Hospital all total a sum of kshs 1,091,225. I hereby award the plaintiff the sum of Kshs 1,073,228 medical expenses pleaded and proved.

The plaintiff also pleaded for shs 20,000 transport and related expenses.  He did not produce any receipt to prove that item.  In addition, the claim for ‘related’ expenses is too vague.  Accordingly I decline to award him anything under this head.

In the end, I award the plaintiff the following special damages as specifically pleaded and strictly proved:

Medical expenses             1,073,228

Motor vehicle searches           1, 000

Medical report                           3, 000

Total special   damages            1,077,228

Consequently, I enter  judgment  for the plaintiff  against  the  3rd and 4th defendants  jointly  and severally  on  liability  in negligence  at 100%.  I award the plaintiff   a sum of kshs four million (Kshs 4,000,000) general damages for pain, suffering and loss of amenities.  I award him special damages of kshs 1,077,228. Total damages kshs 5,077,228.

I also award the plaintiff costs of the suit and interest at court rates on general damages from the date of judgment until payment in full.  I Further award him interest on special damages from the date of filing suit until payment in full.  The case  as against  the  1st and  2nd defendants  is hereby dismissed  with no  orders as to costs since  the two defendant did not participate   in the proceedings  herein.

Dated, signed and delivered   in open court at Nairobi this 22nd day of March 2016.

R.E. ABURILI

JUDGE

In the presence of Mr Kimakia for the plaintiff

N/A for defendants

Gitonga: Court Assistant