F K M & P M M v Evans Ngore & Simon Kubugi Tiri [2016] KEHC 2760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  337 OF 2004

F K M.......................................................................1ST PLAINTIFF

P M M.....................................................................2ND PLAINTIFF

VERSUS

EVANS NGORE..................................................1ST DEFENDANT

SIMON KUBUGI TIRI........................................2ND DEFENDANT

JUDGMENT

1. By an amended  plaint  dated  5th October  2012  and filed in  court on 8th October  2012, the  plaintiffs F K  M  and P  M M  claimed against the defendants  Evans  Ngore and Simon Kubugi  Tiri  special  and general damages, costs and interest  arising from injuries allegedly sustained from a road traffic  accident.

2. The plaintiffs  who are husband  and wife alleged that on or about  the 11th day of  October  2003  the 1st plaintiff   was lawfully travelling  in a matatu registration No.  KAL 639X as a  fare paying passenger  when at or  near Clay works, Nairobi, the said  vehicle owned  by the 1st defendant  and driven by the 2nd defendant  as the  former’s agent/servant, lost  control and overturned  thereby seriously injurying  the 1st plaintiff.  The plaintiffs blame the 2nd defendant’s negligence   for the occurrence of the said accident in that he:

a) Drove too fast in the circumstances.

b) Failed to have any adequate control of the said vehicle.

c) Failed to apply any effective breaks.

d) Drove without any effective breaks.

e) Drove without any due regard for the safety of the passengers on board the said vehicle.

f) Failed to stop, slow down or in any other way to manage the said vehicle as to avoid the said accident.

3. The plaintiffs  sought  to rely  on the police  investigations  and traffic  case  proceedings  and judgment  in Nairobi Traffic base No. 428/2004  resulting  from the  material accident.

4. The plaintiffs claimed that as a consequence of the said accident, the 1st plaintiff who had a healthy and active life sustained injuries involving:

a) Fracture of sternum.

b) Head injuries

c) Fracture /dislocation of TII/T12.

d|) Total paralysis  from the waist  down the lower limbs as a  result of which she lost  her  natural right  to sexual fulfillment with her  husband  the 1st plaintiff .

5. On the   part of  the 2nd plaintiff, it  was averred  that he suffered  loss of conjugal rights  with his wife, the 1st plaintiff  and that he  suffered  mental and  psychological  torture, loss of  servitude  and consortium.

6. The two plaintiffs claimed for damages as follows:

a) Special damages  -shs  2,528,051. 81

b) Cost  of remodeling her  house in view of the serious  paraplegic  injuries –shs  1,258,446

c) General damages.

d) Costs of the suit.

f) Interest  on (a) and (b)

g) Any further relief that the court may deem fit to grant.

7. The defendants filed  a joint statement  of defence  dated  5th October   2004 on 7th October   2004  denying all the allegations leveled against them regarding the occurrence  of the pleaded accident; particulars of negligence  attributed  to them;  and or any injury/loss sustained /suffered by  the plaintiffs as  alleged in the  plaint.  The defendants also denied that the 1st plaintiff was or at all a lawful passenger in motor vehicle registration No.  KAL 639X on the material date of accident and put the plaintiffs to strict proof.  The defendants  further contended  that  if at all an accident occurred  as pleaded  then it  was   wholly due to unforeseeable  and  unavoidable circumstances  beyond the power  and control of the defendants and not because of want of  care or negligence on the part of  the  2nd defendant.

8. All particulars of injuries and loss was denied.  The defendants  also denied  that the  2nd plaintiff  was a husband  to the 1st plaintiff  and or that  the two plaintiffs suffered  the damages-special  or general or loss  of  servitude and consortium and put the  plaintiffs  to strict  proof  thereof.

9. The plaintiff’s counsel filed reply to defence dated 1st October 2004 reiterating the contents of the plaint and correcting the names of the 1st defendant to read Evans Njoroge as contained in the Memorandum of Appearance.

10. On 7th February  2005  both parties’ advocates  filed 11 agreed  set of issues for determination  and on 23rd  April 2007 the plaintiff’s  counsel filed  a list of  documents. On 20th May  2011  the defendants’ counsels  were granted  leave to  cease acting  for the defendants  and the court ordered  that the  defendants be  served  personally.

11. The plaintiffs too changed  their  advocates  upon which  the present  advocates  Kilonzo & Company Advocates  took over  the conduct of the  matter from Mbugua and Mbugua   advocates  with leave of the court  granted. Notice of change of advocates dated 31st July 2008 was filed in court on 4th August 2008.

12. The defendants did not file any documents.  They were served  with hearing  notice for  pretrial  directions  on 12th November  2014  but  they never  appeared  upon  which the  court certified    the suit herein  as ready for  trial  on 29th July  2015.

13. Both the plaintiffs testified and called 2 other witnesses to corroborate their testimonies.

14. PW1 No. 39038 Police Constable Duke Mogaka testified on oath that he   was attached to Pangani Police Station performing traffic duties.  He produced  a police abstract  and occurrence  book extract  in respect  of an accident  involving motor  vehicle KAL 639X driven by  one Simon Kubugi  along Thika  Road at  Clay Works  on 11th October 2003.  He testified that according to the records, investigations   were carried out leading to the said driver being charged with the offence of causing death by dangerous driving.  He identified the  1st plaintiff  F K as being one of the passengers  in the  said accident motor vehicle  which  was a Nissan matatu type  and that other passengers died and the driver was charged vide traffic  428/2004  at the City Court, Nairobi.  The witness produced the police abstract as P exhibit 1 and OB extract as PEX 2.

15. PW1 further testified that the driver of the accident motor vehicle is  reported to have lost control of  the motor vehicle  which rolled  and landed in a ditch thereby  fatally injuring  its occupants  while  others like the 1st plaintiff   were seriously  injured.  He added that there was no other motor vehicle involved in the fateful accident.  That after the accident, the driver left the scene and was later arrested and charged in court after investigations.

16. The 1st plaintiff testified as PW2  that she  was a mother of  3   children and that on 11th October  2002 s he was involved  in a road accident  along Thika Road  near Clay Works.  She was a passenger in the matatu KAL 639X.  She   was hospitalized for 3 months.  That since the accident, she had never been the same person.  She was now confined in a wheel chair.  That at the material time she  was constructing  a house  in Githurai and  was compelled  to stop and  later recall the contractor  to  redesign  it  in view  of her serious disability  state, to enable her access the  house using a wheel chair since she was completely paralyzed.  She testified that she led a stressful life because her husband   was jobless as he has to take care of her, make her bed, cook, and wash her and her inner pants. That she was incapable of using public means to travel.  She had to take a loan to buy a car to facilitate her movement and that she had held her daughters hostage. They also take care of her and are not married because maids demand a lot of money which she cannot afford.  She could not go places with her husband, and that she is unable to have sex with her husband.  That she was a senior clerical officer but she has now lost promotional opportunities because she cannot train and improve on her career prospects. She was therefore confined to doing small jobs yet she is the sole bread winner for her family. She suffers from bed sores, urine and stool incontinence which forces her to use napkins and a catheter permanently.

17. The 1st plaintiff  emotionally  narrated  her problems  to the court while  breaking down and adopting her witness statement  material accident, the  driver had stopped at Roysambu  junction   with one person  alighting  and they proceeded  via Githurai route.  Before reaching Clay works, and as the matatu was flying speedily, it started swaying side to side.  She heard a person seated next to the driver saying the matatu had no breaks.  She sat behind the driver so she held onto the metal bar ahead of her.  Passengers started screaming.  She found herself at Kenyatta National Hospital after the vehicle lost control and overturned, rolling severally.  She testified   that the alterations to her house were approved by doctors.  The 1st plaintiff   stated that since   the accident she had been operated on three times and has to go to hospital 3 times a week for physiotherapy.  She also visits Professor Atunga after every 4 months Professor Sande, Dr Gikonyo and Dr Bhanji among other doctors who have prepared medical reports.   That she has no feelings from the waist down and cannot control her urine or stool.  That after every 3 hours she has to relieve herself.

18. At the time of the accident, she   was 42 years and at the time of hearing of this case she was 54   years. That her husband is depressed because he cannot have sex with her.  She cannot be left on her own in the house.   She cannot perform any household chores for her husband and children.  That as a married woman, she feels very embarrassed about her condition. She  produced  her bundle of documents  as filed in court  as PEX3  which  include  receipts  for special  damages, medical reports  and medical treatment chits.

19. She prayed for judgment  as per her  amended  plaint including  amendments that  were done at  the hearing  for the cost of  a helper  at shs  10,000 per month.  She also prayed for costs of the suit and interest.

20. PW3 P M M, the 2nd plaintiff testified that he worked with Jua Kali dealing in electrical goods.  That the  1st plaintiff  was his wife  since  1984 and that they  had  3 children aged  32, 30 and  26 years  respectively.

21. The  2nd plaintiff  recalled that on 11th October  2003  his wife  the 1st  plaintiff  had gone  to visit their  daughter in Machakos  where  she  was in boarding  school.  She never returned and the following day, he received information that she   was at Kenyatta National Hospital following a road accident at Clay works.  Upon being discharged from Kenyatta National Hospital, she   was taken to the Nairobi Hospital where she was admitted for 2 1/2 months.  At that time, all their children were still in school so he took care of them.  That his  wife  was  a responsible   wife  who did  all household  chores  until the  accident which  forced him to employ house helps  who left  from time to time forcing him to take care  of  her, and that  she is not  able to do anything  on her own.  That he could  not have sex  with her    as his wife  though he loves her  very much  which had  affected  him emotionally to the extent that at one  time he  thought of  leaving her  but  he had to persevere.  He urged the court to compensate him and his wife for loss of conjugal rights and damages for   a helper and for the injuries she sustained.  He  added that  he cannot go  to work  because most of the time  the 1st  plaintiff  is  sickly   and he only  goes to  work when she is  well but that  he has to  take  her  to hospital for check up thrice  every week.

22. PW4 Dr.  Nassir Bhanji testified that he had been in medical practice for 35 years as a consultant.  That he examined the 1st plaintiff and prepared for her a medical report on 9th May 2005.  He confirmed that the 1st   plaintiff sustained very serious injuries as reflected in his medical report.  That she is completely paralyzed from her waist down leading to incontinence of stool and urine; and requires catheter and napkins.  She cannot move on her own on the lower limbs.  She  cannot cook for herself; alterations have to be  made  to her house  including   a bed, light switches, dining table, chest  drawers, entrance, mirror, bathroom shower, soap  holder, the bell  to enter her house and that all those  alterations  would cost her  money. The Doctor also testified that the plaintiff needed replacement of a wheel chair whose life span was 4-5 years.

23. That the 1st plaintiff developed blood clots in the legs because of immobility.  She  requires  physiotherapy regularly  at shs  3000/- per session, 3  times  a week, has to use  a taxi or bring  a  private  physiotherapist  at  home, she had developed  bed sores hence  requires a special bed to minimize those bed sores.  The catheter has to be replaced after 7 days to prevent infections and kidney failure.   She needs a nurse 24 hours at a cost of shs 20,000-25,000 per month, x-rays and frequent visits and attention by doctors as she ages.

24. That her fractures which were fixed with metals   and screws require surgery.  She cannot engage   in any sexual activity due to paralysis.  She therefore requires a psychologist at shs 6000/- per month plus medication and hospitalization.  She lost social life.  She  had multiple  fractured  ribs  and dislocated  her chest  muscle  which  affects  her neck.  She will require   a motorized wheelchair at shs 1. 7 million which is very easy to maintain and maneuver.

25. According to PW4, the cost of surgery for bed sores for 2 weeks hospitalization is over   shs 275,000.  She requires   a trained nurse and a taxi at 3000/- one way to hospital.  Complications  associated with passing  stool would require surgery  to the tune of  shs 300,000,to correct  and  remove stool is about  shs  20,000.  She would also require an auto mattress at 200,000 to last for 2 years.  She had a long surgical scar on the spine and bed sore scars.  She feels pain in her chest, breast bone and psychological pain. She is susceptible to depression and mental breakdown.  Her condition   was not expected to improve.

26. The Doctor produced 2 medical reports as PEX 4 and PEX 5 dated 9th May 2005 and 25th February 2010 respectively.  He also produced a receipt   for shs 15,000/- being court attendance charges as PEX 6.  He also identified/recognized the plaintiff who was present in court.

27. The plaintiff’s counsel at  the close of the plaintiff’s case filed  submissions  to guide  the court determine the issues  which she  framed  for the court namely:

1. Whether the 2nd defendant  negligently drove motor vehicle registration no. KAL 639X losing control of motor vehicle on 11th November 2003.

28. On this issue, it was the plaintiff’s submission that PW1 corroborated the plaintiff’s evidence that the 2nd defendant drove negligently as shown by police investigations, proceedings and judgment in Nairobi Traffic case No. 428 of 2004.  Further, that the accident was not inevitable or beyond the control of the defendants.

29. On the second issue ofwhether the 1st defendant was the registered owner of motor vehicle registration no. KAL  639X, it  was  submitted that  the plaintiff  produced  Kenya Revenue Authority  copy of records  for the accident  motor vehicle  dated  27th April  2012  showing the  1st   defendant as the registered  owner  of the accident  motor vehicle.  She relied  on Osapil V Kaddy [2000] 1 EALR 187 where  it  was held that a  registration card or logbook  was only  prima facie  evidence of title to a motor vehicle  and the  person whose  name the  vehicle is  registered   was presumed  to be the  owner thereof  unless  proved otherwise. In this case it   was submitted that the plaintiff had proved that the 1st   defendant was the owner of the accident motor vehicle.

30. On the third issue of whether  the motor vehicle   was driven by the  2nd defendant  at the material time of accident, as the agent, servant   of the 1st  defendant, it  was submitted that since there  was no evidence  that the   2nd defendant   was on a  frolic  of his own, the 2nd defendant  was the driver, agent  or servant  of the 1st defendant owner  of  the accident motor vehicle.  Reliance  was placed on Mwona  Ndoo V Kakuzi Ltd [1982-88] 1 KAR  523 and KBS  Ltd V Humphrey [2003] KLR  665  where  the Court of Appeal held that:

“Where it is proved that  a car has caused  damage  by negligence, then in the absence of evidence  to the contrary, a presumption   arises  that it  was driven  by a person  for whose  negligence  the owner is responsible.  This presumption is made  stronger  by the surrounding  circumstances  and it is not  necessarily  disturbed  by the evidence  that the car  was lent to the driver  by  the owner  as the mere fact of  lending   does not  of itself  dispel the possibility  that it   was being  driven  for the joint  benefit  of  the owner  and  the driver.”

31. It  was  submitted that in view of the fact  that the  2nd defendant  was the agent  or driver   for the  1st defendant, the  1st defendant  was vicariously liable  for the negligent  acts  of the 2nd defendant.

32. On the fourth issue of whether the plaintiff  sustained  injuries  and or incurred  damages  as a result of the accident, reliance  was placed  on the medical  reports and oral testimony  by the plaintiff  and Doctor N.H. Bhanji  as detailed  in his evidence  in chief on what the  plaintiff  would  require  in her  lifetime  in view  of her paralysis  and after   effects  of the injuries   she sustained.

33. On the fifth issue of whether  the plaintiffs  had proved their case  on a balance  of probabilitiesit   was submitted  that the  plaintiff’s  testimonies  in court  were not  controverted  in any  way.  Reliance    was placed on the decision of General Motors EA Ltd V Eunice Aula Ndeon & Another [2015] e KLR that he    who asserts must prove.  In this case, it was submitted that the plaintiffs had discharged their burden of proof.

34. On the sixth issue of whether  the plaintiffs  are entitled to costs of the suit  and special  and general   damages  as a consequences  of the accident  on 11th October, 2003 and if so, what  is the  quantum.The plaintiffs’ counsel submitted that the plaintiffs were entitled to damages as pleaded and proved as well as general damages.

35. On general  damages  for pain, suffering  and  loss of amenities  it  was submitted, relying  on Jobbling V Associated  Dairies Ltd [1981] 3 WLR  172 that the  plaintiff  deserved  to be compensated  not for  having  the serious  injuries  but for inability  to lead a full life.  The principles  to be considered for award of  general damages as laid  down in  the case of  Rahima Tayab  & Others   V Anna  Mary Kinanu  CA 29/1982[1983] KLR 113   were cited. Relying on  Joseph  Maganga  Kasha  V KPLC Ltd [2012] e KLR, William Wagura Maigua  V Elbur Flora Ltd [2012] e KLR and Nancy Oseko V BOG  Maasai Girls  High School [2011] e KLR, the plaintiffs  prayed for  shs  5,000,000 general damages  for pain and suffering  for the  1st plaintiff  inclusive of  physical pain and  mental distress caused  to her and the treatment intended to  alleviate  it, the  awareness of an embarrassment  at the disability  or disfigurement or suffering   caused by anxiety  that the  1st plaintiff’s condition  may  deteriorate relying on Mwaura  Muiruri  V Suera  Flowers  Ltd & Another [2014] e KLR  citing  with approval Halsbury’s  Laws of  England  4th Edition  VOL 12 (1) page 348-883.

36. On loss of earning capacity, the plaintiff prayed for shs   1,500,000.  Reliance  was  placed on  Mumias  Sugar Company Ltd V Francis  Wanalo [2007]  e KLR   and  Butler  V Butler  [1984] KLR  225; Fairley V John Thompson  Ltd {1973]  2 LLLR 40  page  14  and on loss  of consortium the plaintiffs  relied on  the case of Best  V Samuel Fox  & Company Ltd [1951] 2KB 639 cited  with approval in Kimotho & Others  V Vosters & Another  [1988] KLR 48 where the Court  held that

“Companionship, love, affection, comfort, mutual services sexual –intercourse all belongs to the married state (cited in Mwaura Muiruri V Suera Flowers Ltd & Another (supra). However, no sum of money   was proposed under the   head of sexual fulfillment, loss of servitude and consortium.

37. On the claim for care, transport, equipment and other extra costs the plaintiff prayed for the sums as proposed by Dr. Bhanji PW4. In the end, the plaintiffs  submitted  that the court  should  find the defendants  liable  in negligence  at 100% and award  them damages  as pleaded  and proved.

Determination

38. I have  carefully  considered  the plaintiff’s claim, the defendant’s  defence   of denial, the evidence  tendered  in court  by the plaintiffs  and their witnesses, their  counsel’s elaborate  submissions  and  authorities relied  on both  on liability  and  quantum of damages.  In my  humble view, and  from the list of  issues filed by both  parties to this suit, the main  issues for determination  are:-

i. Who should bear liability for the material accident?

ii. Whether the 1st plaintiff was injured as a result of the material accident   and if so, what injuries?

iii. What is the quantum of damages payable to both the plaintiffs?

iv. Who should bear costs of the suit?

39. On the first  issue of who should bear liability for the material accident, the evidence  adduced by the 1st  plaintiff   and PW1 a Police  Officer  is trite  that an accident  did  indeed occur  at Clay Works  Nairobi  involving   motor vehicle KAL 639X and that  the  1st plaintiff who was a  passenger  in the said  public service  vehicle.  It is also  clear that the said  vehicle  was  being driven  very fast  at the material  time; that it  lost control and veered  off the road, overturned  and rolled  several times.  It also emerged from the evidence of the 1st plaintiff and PW1 that no other motor vehicle was involved in the material accident.  It is  also not  in dispute from the evidence  adduced  and which evidence  was not  controverted  that the  2nd defendant  was  the driver  of the said motor  vehicle, owned  by the 1st  defendant  and that   the 2nd defendant driver   was charged  with the  offence of causing death by dangerous driving following  the material  accident wherein several passengers lost  their lives.  The 1st plaintiff produced police abstract no. A569706  issued  by Traffic Department  at Kasarani Police Division  wherein the accident   was reported, scene  visited  and investigations  carried out, leading to the driver of the accident motor vehicle  and who is the 2nd  defendant herein being  charged in court vide Traffic  428 of 2004.

40. In my  humble view, even in the absence  of  any results of the traffic charge, I am satisfied  that the  1st plaintiff  did, on a balance of  probabilities  prove that the 2nd defendant  was negligent in the manner  he  drove  the accident motor vehicle, for there  was no explanation by the  2nd  defendant as to  why a motor vehicle which is  well driven, well  maintained and well managed could have  lost control  and  rolled several times.  It is now  a well  established  principle  of law that  motor  vehicles  which  are well  driven and well  managed  and or well maintained  do  not just  get involved  in accidents.  This principle   was espoused  in the recent  Court  of Appeal decision  of Rahab Micere  Murage V Attorney  General & 2 Others  [2015] e KLRwhere it was stated that   there must  be a cause to an accident and in  this case, only  the driver   of the accident  motor vehicle  could explain that cause.  In this case, however, the driver chose not to give any evidence in court to explain that cause to the satisfaction of the court.

41. In Embu Republic  Road Services  Ltd V Riimi [1968] EA 22  the court stated that:

“ Where  the circumstances s of the accident  give rise to the inference  of negligence  them the  defendant  in order to escape liability  has to show that  there  was  a probable  cause of the accident which  does not  connote  negligence or that the  explanation  for the accident   was consistent  only with an absence  of negligence….”

42. In the instant case, the defendants chose not to attend court to advance any theory explaining why the accident occurred.  This  court, therefore, has no hesitation in concluding  that the  2nd defendant  who  was the driver, agent   or servant  of the 1st defendant, then managing, driving  and or controlling   the accident  motor vehicle  while carrying passengers   was negligent.  I find the 1st defendant vicariously liable for the negligent   acts of the 2nd defendant.  The two are hereby held to be jointly and severally liable at 100% for the accident which occasioned to the plaintiff very serious injuries.

43. On the second issue  of whether  the 1st plaintiff  sustained  injuries   and if so, what   injuries , the  1st  plaintiff  testified  and called  Dr. Bhanji  who examined  her and  produced medical report  on her  injuries.  She also produced a P3 in her bundle of documents as well as medical treatment, discharge summaries from Kenyatta National Hospital and The Nairobi Hospital.  The medical  reports  by Dr. Bhanji  compared with  his detailed  testimony by the plaintiff and Dr Bhanji  reveal that  the 1st plaintiff sustained  injuries involving:

1. Head injury- cerebral concussion

2. Fracture dislocation at T11/T12 level of the thoracic spine causing paralysis.

3. Separation of breast bone.

4. Fractures of ribs on both sides of the chest wall.

44. The plaintiff is unable to move on her own due to paralysis.  She uses a wheel chair.  She cannot perform any household chores, not even bathing herself; she has stool and urine incontinence and cannot have sexual intercourse as a married woman.  She is a total paraplegia left with permanent paralysis and surgical scar over the spine.

45. This court had the opportunity of seeing the plaintiff and observing her as she testified. She was confined in a wheel chair. The plaintiff having suffered severe injuries as a result of negligence   of the defendants, she is entitled to damages.

46. On what quantum of damages  the 1st  plaintiff  is entitled to, based on the injuries  as enumerated  by Dr. Bhanji and the pleadings, it is not in dispute that on special  damages, the  1st plaintiff  incurred heavy  medical bills for the treatment  which  bills  continue to accrue  in  view of  her condition which is permanent  paraplegia  with all its associated  complications.

47. The law regarding special damages is that they must not only be specifically pleaded but strictly proved.  The 1st plaintiff pleaded for shs 2,528,051. 81 which include the doctor’s fees, hospitalization charges and physiotherapy.  She produced a bundle of receipts to prove the same.  Some bills were settled on her behalf by the employer the National Assembly through the medical insurance cover.  Nonetheless, that is a benefit that was due to the 1st plaintiff, the same as AON Minet Insurance Company who also settled some of her bills. I have examined the receipts produced and Iam satisfied that the plaintiff has proved on a balance of probabilities that she incurred the medical expenses plead which I hereby awarded her sh 2,528,051. 81 as proved.

48. The plaintiff also sought for special damages in the sum of shs 1,258,446 being the cost of remodeling her house.  She testified that due to her paraplegic condition, she could only access her house on a wheel chair.  Further doctor Bhanji testified that the 1st plaintiff would require   such alterations to the house to facilitate her movement.  The plaintiff produced a valuation report by Nthunguni Builders dated 31st July 2006.  However, an examination  of that valuation report though  headed  “ valuation  for the extension  and alteration works”, the details in the said  report, showing  completed  work  give a clear indication that  the house  was  being built and  not altered.  There is a whole difference between alterations to a house and building   of a house.   In the item under main house, the valuation shows foundations – natural  stones , ground  floor slabs, walls, ring beam and columns, roof structure  timber, roof  covering-prepainted  sheets, floor  furnishes, ceiling, painting, fittings, plumbing  and electrical  works.  Total sum sh 1,258,446. 64.  However, this court  was not shown  the “alterations” to the main house that would fit  the description of alterations to an existing  or a house under  construction  suitable  for   the 1st plaintiff’s  paraplegic  condition.

49. Furthermore, the  1st plaintiff  testified that at the time  of the accident, she  was  constructing  a house which  she had  to stop and  recall  the contractor to  re-design  it in view of her serious disability  state to enable  her access  the house.  That may be so. However, there is no evidence adduced to show the original design   and the re-designed house with alterations to suit her situation.  This court does not doubt the fact that the 1st plaintiff’s condition is such that she would require   easy access to her house.  However, it is doubtful that the whole   house would be redone to suit her state.  She would no doubt require ramps to access areas.  But the  evidence adduced in court  fell short of  the required   standard that  on a balance  of probabilities, the plaintiff spend shs  1,258,446. 46 to make  alterations to her house  to fit her  situation.

50. No photographs of the specific alterations to the said house were   shown to the court.  Not even the contractor who was engaged in the alleged house modification testified as to what specific alterations or fittings were done to the house specifically for the 1st plaintiff’s easy access to the various parts of her house.  That being  the case, I find  that the  plaintiff’s claim for  shs 1,258,446. 64  being the cost  of alteration to her house  was not  proved on a balance of probabilities and  I hereby  disallow it.

51. On the claim for extra costs which  are continuing  expenses  such as  clothing,  special mattresses, bed pans, high profile  cushions, cost of a caretaker  and  nursing care etc, the plaintiff  and  PW4  doctor Bhanji  testified that   she would require  physiotherapy at  shs  3000/- per session  3 times a week  to prevent  blood clots  in her limbs, transport  at shs 8,000/-  3 times a week, a  water bed to reduce bed sores; catheters  removable  after 7 days  at  500  to be done  by a trained  nurse.  A trained nurse  on 24  hours basis at  shs 20,000 per month; Aneurologist   at shs  8,000/-; Surgery   to remove metal implants  incase of  infections; Psychiatrist  charges at shs 6000/- per session due to  depression and low self esteem;  A motorized wheel chair  at shs  1. 7 million which is  easy to  maintain. Operations for bed sores at shs  275,000; Transport to and from hospital at shs  6,000/-  two way; and  Surgery  for incontinence  at  250,00.

52. Doctor Bhanji confirmed that all the above items are necessary for the plaintiff to sustain her life.  He estimated her life   expectancy to be at 80 years.  At the hearing, the plaintiff was aged   55 years.

53. Considering the evidence adduced and the dire condition of the 1st plaintiff,  in my view, the 1st plaintiff  proved, on a balance  of probabilities  that she  requires the above named  items and medical care in view of  her  paraplegic  state.  Accordingly, I  award   to the plaintiff  the  extra  cost pleaded  and proved as  follows, using  a  multiplier  of 20 years , for the plaintiff  who was at 55 years at the time  of  hearing of this  suit and taking into account  vicissitudes of life;

a) Physiotherapy  3,000 x 3  weekly  =9,000 x  4 weeks  x 12 x 20  =8,640,000

b) Transport to and from hospital three times a week at 2000 per day x 3 weekly = 6,000 x 4 weeks x 12 x 20 = shs 5,760,000.

c) Cost of a water  bed – not provided

d) Cost of catheters  = 500 x 4 x 12 x 20 = shs  480,000

e) Cost of hiring  a trained nurse at shs  18,000 per month  x 12 x 20 = shs 4,320,000

f) Cost of neurologist  shs  8,000 x  12 x 20 = shs  1,920,000

g) Cost of psychiatry  services  6000 per session  x 12  x 20 = shs 1,440,000

j) Cost of a motorized wheel chair shs 1, 700, and 00.

i) Cost of future  surgery  on sores shs  275,000

k) Cost of surgery for continence  shs  250,000 x 6/12 x 20 = 2,500,000

Total kshs     27,035,000

54. On  the claim for loss of earning  capacity, reliance   was placed on Mumias Sugar Company Ltd V Francis  Wanalo (supra)  where the Court of Appeal  stated that  the claim  for loss of  earning  capacity is a general  damage  claim and as such it is  deemed  to flow  directly from the claim and need not be pleaded. In this case, the plaintiff   prayed for any other relief that this Honorable court may deem as fit and proper.  She   did not specifically plead for loss of earning capacity.

55. However, the Mumias Sugar Company Ltd V Francis  Wanalo (supra) case is clear  that “ loss  of earning  capacity  can be claimed  and be awarded  as part of general damages for pain, suffering and loss of amenities or as s a separate  head of  damages  and that  the award  can be  a token one, modest  or substantial depending  on the circumstances of each  case.  There is no formula for assessing loss of earning   capacity.   Nevertheless, the judge has to apply  the correct  principles  and take  the relevant factors   into account  in order  to assess    the real or  approximate  financial  loss that the plaintiff has suffered as a result of disability.

56. The above decision also made it clear that the award for loss of earning capacity can be made both when the plaintiff is employed   at the time of trial and when he is not in employment.  The  justification for  the award  when the  plaintiff is employed  is to  compensate  him for the risk that the disability  has exposed  him of either   losing  his job  in future  or  in case he loses  his job, his  diminution of chances of getting  an alternative  job in the labour market.

57. The principles to be considered in making this award was stated in the case of Butler V Butler [1984] KLR 225 which I have considered.  Taking into account the injuries  suffered by the 1st  plaintiff  and its  resultant  effects, and the  fact that the 1st plaintiff’s  prospects  of promotion beyond  chief clerical officer  are diminished as she  had to be assigned lighter duties  due to her disability, and based  on the decision  in Cecilia Mwangi  V Ruth W.Mwangi CA 251/1996, I would, in addition to the claim under  general damages  for pain , suffering  and loss of  amenities I award to the  1st plaintiff  a further sum of shs  800,000/- for  loss of earning  capacity, without  using any  multiplier.

58. On the claim by the 2nd  plaintiff for  loss of sexual  fulfillment loss of  servitude  and consortium, the  plaintiffs  testified that they are  husband and wife  and that as the 1st  plaintiff  lost all sensation from the  waist downwards  due  to total paralysis, she  lost  her libido.  She cannot have sex with her husband.   She tried and failed.  The husband too testified that due to the 1st plaintiff’s paralysis, he was unable   to have sex with her.  He has suffered psychologically and that at one time he considered abandoning her but had to persevere because of his love for her.

59. The case of Best V Samuel Fox & Company Ltd [1951] 2 KB 639 cited in Kimotho & Others V Vesters & Another (supra) defined consortium as ‘companionship, love, affection, comfort, mutual services, sexual intercourse all belong to the married state.”

60. The   1st plaintiff sustained very serious injuries.  Her paraplegic state is permanent.  They have affected her ability to provide any consortium to her spouse the 2nd plaintiff.    Both have suffered psychologically.  The  1st  plaintiff  can be  compensated  by an  award  under pain, suffering and  loss of amenities  whereas  the 2nd plaintiff  can be  compensated  for loss of  consortium.  The doctors’ medical reports and testimony by Dr Bhanji confirms that   the 1st plaintiff lost inability to have any sexual intercourse.

61. In the premise, I find the claim  for loss of consortium by the  2nd plaintiff  proved and accordingly  I award  him   a sum of shs 800,000/- damages  for loss  of consortium.

62. On the 1st plaintiff’s claim for  pain, suffering  and loss  of amenities, based on the  decision in Joseph Maganga  Kasha V Kenya  Power & Lighting  Company  Ltd [2012] e KLR where the plaintiff  was  rendered  100%  permanent  disability, he was awarded  kshs  3,000,000 general damages  for pain, suffering  and loss of  amenities.  Similar  award   was made in William Wagura  Maigua  V Elbur  Flora  Limited  [2012] e KLR and Nancy  Oseko V BOG Maasai Girls  High School[2011] e KLR  all cases  of total paraplegia, I would  award the plaintiff kshs  3,000,000 general damages  under this head.

63. In the end, I enter judgment for the plaintiffs against the defendants jointly and severally on liability at 100%.

64. On  quantum I enter judgment for the plaintiffs against the defendants jointly and severally as follows:

a. Special damages of  Shs 27,035,000made up as follows:

i. Physiotherapy shs  8,640. 000

ii. Transport to hospital shs 5,760,000

iii. Cost of catheters shs  480,000

iv. Cost of hiring  a trained nurse shs 4,320,000

v. Cost of neurologist  shs 1,920,000

vi. Cost of  psychiatry services  shs 1,440,000

vii. Cost of  motorized wheel chair   shs 1,700,000

viii. Cost of  future   surgery   shs 275,000

ix. Surgery for incontinence  shs 2,500,000

b. General damages shs 4,600,000 made up as follows

i. For pain and suffering   and loss of amenities shs3,000,000.

ii. Loss of  earning capacity shs  800. 000

iii. Loss of consortium for the 2nd plaintiff shs 800,000

Total damages shs. 31,635,000/-

65. I also  award to the plaintiffs costs of this suit and interest  on general  damages  (except  on loss of earning  capacity) at  court rates from the date of  this judgment  until payment in full.

66. I award the plaintiffs interest on special damages at court rates from the date of filing suit until payment in full.

67. Those are the final orders of this court.

Dated, signed and delivered in open court at Nairobi this 19th day of July 2016.

R.E. ABURILI

JUDGE

In the presence of

Miss Kethi Kilonzo for the plaintiff

N/A for the defendants

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