JESSEE MURIITHI v JOHN GICHUNGE BAITURU & ANOTHER [1992] KEHC 15 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU

Civil Case 105 of 1988

JESSEE MURIITHI(Minor Suing through Next Friend REUBEN KIBURI)……................……..PLAINTIFF

VERSUS

JOHN GICHUNGE BAITURU……………….….......................................................…………1ST DEFENDANT

ATTORNEY GENERAL…………….....................................................………..…………….2ND DEFENDANT

CORAM:

OGUK S.  JUDGES.

Mr. Mwarania for Plaintiff

Mr. H. Oluoch (State Counsel)  for Defendants.

JUDGEMENT

The Plaintiff,  then a minor aged about 3 years at the  time . of the accident, .brings this action through his father and next friend seeking special  and general damages against the Defendants arising out of an accident that occurred on the evening of 11th July, 1987 involving .M/V,  Reg, No.  G.K.  6982, Land Rover belonging to  the Ministry of Health which was then being driven by the 1st Defendant in  the cause  of his duties.  The 2nd Defendant is merely brought into these proceedings as a representative of the Government of Kenya

vehicle  and employee  ("1st Defendant)  was involved in  the  said accident.

At the material  time,  the Plaintiff was living with father, Reuben Kiburi M'Irangu (PW.3)  at Kula Mawe Village, Isiolo,  along Isiolo Waso road.  He was the youngest child of his parents who. have five children.  Their house is about 30 yards off the Isiolo . Weso  road which passes through a high density residential area with houses on either side.  On this day at about 4. 30 p.m,   this child (the Plaintiff)  in  the company of his brother and sister,  were on, their way home from an afternoon church service where  they had accompanied their father.  They had left their father (PW3)  in church to go back to their house  which was about 600 yards away but on the  same side of Isiolo - Waso road.As they walked, off  the said road in  company of  other .children, there  came a lorry carrying some Europeans behind them heading towards the same direction.  Stephen Murungu M'Ikiara (PW.4), who was then seated at the verandah of his house close  to the  said road and saw- the  said accident happen,  explained that,  as the said children were  approaching off the road on. the same side where his house was located, he saw the lorry carrying the Europeans approach­ing "from Isiolo side  along the said  road.  Behind the lorry,  was a Land, Rover,Reg..No.  G.K 6982.  The  said-Land. Rover then started to  overtake the  said-lorry-by pulling off the murram road on  the sand side, that were the children were walking.  He had first seen these vehicles approaching while they  were some 50 meters away from where he was seated.  As he saw land rover accelerated, to  overtake the lorry it knocked down one  of the  said children  (the Plaintiff) while the  other children managed to ran away.  The  child then fell down while  the driver of the Land Rover (1st Defendant) went slightly a head and stopped on.the road about 10 paces from where the child-had fallen.  The accident happened so close  to his house approximately 14 paces away and he  rashed  to where  the child had fallen-even before  the 1st Defendant and the two occupants of his vehicle  came  to -the scene.  The  child was crying and he noticed that he had some  slight blood on his left leg and that the side  of his. head was dusty on one  side where he had  fallen.  The 1st, Defendant and the occupants of his vehicle went out to the scene.,  observed the  child  and  the  (1st.Defendant)  remarked that the child had. not been seriously injured.  They then  took him back to their vehicle and rashed him to  Isiolo District Hospital.

In the meantime,  the Plaintiff's sister who was older than  the rest of the children when the  accident occurred,  ran back to  the church where  they had left their father. (PW.3)  and reported the accident.  Upon receipt of the said report,  the. Plaintiff's father (PW.3)  went to  the District Hospital where he  found the Plaintiff having been attended to.  He was then being carried by a certain woman from their village and was crying..  His left leg  had been bandaged.  He  then took the child with him upto Isiolo Police Station where he found that the 1st Defendant had already reported If the said accident to  the Police  and his vehicle Reg. No.  G.K 6982 had been, detained at the Police  Station.  He  then went home with the  child*

Continuing with his evidence,,  the Plaintiff 's father (PW.3) testified that after two days, he noticed that the left leg of the child which had  been  bandaged was swollen,  the  child would not walk and was just crowling on his buttocks.  He  took him back to Isiolo Hospital  for his leg to be Grayed.  There was no X-ray at the hospital and he was then  referred  to Meru District Hospital.  He was again referred to Nkubu  Mission Hospital where  there was an X-ray. The left leg. of the child was found upon being X-rayed to have sustained what Dr. Namasaka (PW.l)  refers to  as a green stick fracture. The child was taken back to Isiolo District Hospital when he was put on plaster of Pavis upto the  4th of August, 1987. After the plaster was removed, he was again, taken back to Nkubu Hospital for further X-ray which confirmed that the bones which had been fractured had re-united well although there was some infection which was controlled by medication.

The problem for the  child did not end there, his father (PW.3) informed that although in  the  past,  prior to the  accident, he could call  'Mummy" ,  "Daddy" and his brothers,  the child was increasingly becoming unable  to  talk.  The  father suspected that he had a major problem as he had noticed soon after the  accident that the  child had a small-bruise  at the back of his left side  of the neck behind the back left ear. He  then took the child to Nairobi  Clinical Laboratories where he was examined by Prof. Kungu who gave .him a report dated 4th July, 1988 (Ex.ll)  and then referred him to Kenyatta National Hospital.  The  child was thoroughly examined and found to be deaf and dumb.  He  then brought the child back to Meru where he was again seen by Dr.  Randall (PW.2)  who is the District Surgeon who, prepared a report dated 25th of July,  1989  (Ex.4)  in which he confirmed that the  child was deaf and dumb.  He attributed this  to the  accident which the  child had suffered saying that the small external  bruises on  the back left ear was a sign that the  child had sufferred some internal injuries which impaired his power of hearing and speech.  However,  Dr. Namasaka in his earlier report dated 13th  of August, 1988 (Ex.3)  found that the Plaintiff had suffered some  bruises on the left leg with some swelling a fracture on the left tibia at the distal 1/3 which he  testified had healed without any complications.

Both Dr. Namasaka (PW.l)  and Dr.  Randall  (PW.2)  testified before  the court and produced their respective medical  reports (Ex. 3 & 4).  The Plaintiff's father also produced a Police Abstract Report of the said accident and the receipts of payments for the said report together with X-Charges on two occassions all amounting to Sh.l24/-  Because of the present state of the Plaintiff he has now been admitted at Kaaga School for the deaf where his father has been paying Sh.2,700/~ a year as from January, 1990.  Beside this the child is in need of a hearing aid which is available at Kenyatta National Hospital at a cost of 15,000/-,

The Plaintiff through his father, shows the 1st Defendant from the injuries suffered by the Plaintiff in the said accident and holds both defendants liable to him in damages saying that the accident was solely caused by the negligence of the 1st Defendant who was then engaged in  the course  of his duties as such driver. He now asks for special  damages in the sum of Sh.224/-,  and general damages for pain,  suffering and loss of amenities.

The Defendant's have denied the Plaintiff's claim saying that the 1st Defendant did not cause  the  alleged accident as alleged or at all  and that if ever there was any such accident,  he  said was contributed fee by the guardian of the minor Plaintiff who negligently left him to wander about  along busy highway.

The  Defendant's case is that on  the material  day at about 4. 30. p.m.,  the 1st Defendant who is a driver of M/V.  Reg. No, OK 6982,  attached to Isiolo District Hospital,  was driving the said vehicle  along Isiolo - Waso road in  the  company of Simon Kimani  (DW.l)  and Kimani Njine  (DW.4)  who are  both Clinical Officers at the  said Hospital. They were  then looking for the Hospital Secretary to authorise the fuelling  of the  said vehicle for a trip  to Kabarak High School  on  the following morning.  They had failed to get the said hospital secretary at his house  and 'at other places and were now heading to  check for him at another place  beyond KulaMawe Village when the  alleged accident occurred.  According to these witnesses,  after they had gone passed Soko Mjinga along the said road,  there was a certain lorry a head of them which the driver (1st Defendant)  overtook.  They then came across some road bumps across  the road and the  driver had to slow down to about 20  KPH.

He  testified that after he had gone  over the first two road bumps he  saw a group of six (6)  children  some  35 to 40  ft away playing off the' road*  One  of the  said children then  started  to cross the  road from the right side  to  the left side.  He hooted to warn  the  said child but apparently he did not hear.  He  then swerved his vehicle towards the left to avoid hitting the child and never stopped.  He then noticed from his window that the said  child had fallen down in the middle  of the  road .By then the  rear part of his vehicle was still  on the road.  He stated that his vehicle never came into any contact at all with the  said child and that the  child might simply have  slipped and fallen  on  the road on  seeing the vehicle KIMANI Njine  (DW4)  while supporting the 1st Defendants story, stated that as the  said  child appeared from the  right side  of the road,  their driver. (1st Defendant)  "breaked and then swerved to the left side  to avoid the child."  After they had noticed that the child had fallen down,  they all came  out of the vehicle and went to where  the child was lying down.   He was crying.

The 1st Defendant testified that the  child  (Plaintiff) had no visible injuries.  .He was trying to stand up and then falling down Simon Kimani  (BW.l)  noticed that the child had some  small bruises but he  could not recall  on which part of his body they were.  KIMANI Njine  (DW.4)  on the  other hand was quite specific that the child had some injury on the leg above  the  ankle  and they then decided to take him to  the hospital  as he was then bleeding. They took with them a woman neighbour of the  child' s parent who had come to  the scene  to help them carrying the  said child who was then crying.  They left the  child being attended  to at Isiolo Hospital  and proceeded to  the Police Station to report the accident.  The 1st Defendant says that his report to the Police should not be contrued to mean that he was involved in the  said accident but he was simply acting as a good Samaritan*

The Defendant's father called two witnesses who were familiar with  this child  (Plaintiff)  to  show that he had hearing defect prior to this accident contrary to what his father is alleging.

Florence Makandi  (DW.2)  who lives some  400 meters away from the house  of the Plaintiff's parents but works as a subordinate staff at Isiolo Hospital,  testified that she has known  this child since 1982 and that on many occasions prior to this accident she had tried to talk to  this child but he  could not hear.  She believed that this child was not hearing  properly.  Maritha Murige (DW.3)  who works with the Plaintiff's mother in  the  same market at neighbouring stalls says that she had been seeing this child prior to the  said accident in company of his mother at the market and  that she believes that the  said child had a defect in hearing. She explained that on some  occassions,  this child could leave his mother and come to play with her potatoes on display but even if she attempts to talk to him to stop playing with her   tomatoes, their  child could not hear until his mother told her that the  boy had a hearing problem.

lengthy oral  submissions were made before me by Counsel for the Plaintiff and Learned State  Counsel for the Defendants both  on liability and quantum.  I am greatful  for their depth submissions both on  the  evidence and on law.

Dealing first with the question of liability, it is not disputed that the 1st Defendant was the driver of M/V Reg, No.  G.K.  6982, Land Rover,  attached to the Ministry of Health, Isiolo  He was then on duty working for the hospital  secretarial for the necessary authority to enable him to fuel  the vehicle in readness for a trip to Kabarak on  the  following morning.  It was while he was driving along Isiolo Uwaso road looking for the said officer in  company of two clerks from the  same hospital  that they came  across the minor child and a group of  other children within Kula-mawe village, Isiolo.  This is a densely populated low income residential  area with all sorts  of houses or either side  of the road.  The 1st Defendant says that there are road bumps at the scene  of the  accident in this case  and I believe him.  Such road bumps must have  been put there  for the very obvious reason as it passes through a residential area with heavy human traffic.  In his own testimony,  the 1st Defendant admits that as he drove  along the said road, he  saw the Plaintiff in a group of 6 children playing off the road on the right side.  He  saw them in good time which he estimated as between  35  to 40 ft,  Stephen Murungu M'Ikiara (PW,4) also  saw the said children where he was seated outside  the verandah of his house.

He even saw the 1st defendant's land-rover approaching together with a lorry carrying some Europeans..  The 1st Defendant and DW.4 admits that there was indeed such a lorry but they says that they had passed  that lorry when the accident occurred.  However (PW4) on the other hand,  says that the  said accident occurred while  the 1st Defendant was trying to overtake  the said lorry and was accelerating off the  road on the side .where thesaid children were walking.  I  have no doubts that M'ikiara (PW.4)  had clearly seen what had happened.  Whereas, I  do not dispute  the evidence  of the 1st Defendant that these  children might have  been playing off the road as they were walking home from the  church,  the possibility that the sudden  appearance  of this land-rover behind them had caught them unaware cannot be ruled out,  Whereas the 1st Defendant says that he had seen them in good time. I  believe  that these children had no notice  of his approach.  I  say so because none  of the  two witnesses (DW.1  & DW.4)  who were with him in the said vehicle  testified that they heard him hooting to warn these Children.  If ever he had hooted andthis is quite important, I do not think that both DW.l & DW.4. , who elaborately testified as to how this accident occurred,  could have failed to say so. I  reject his evidence  that he had hooted to worn  these  children as a lie but I-accept his evidence that as the  children got scattered on seeing his vehicle, he attempted to brake band swerve to his left to avoid hitting the minor Plaintiff who was then running to cross the  road while  others were going to  the  other direction.  This was a dangerous situation caused out by the  children as they were not playing on  the road,  but by the 1st Defendant himself.  The 1st Defendant caused this dangerous situation first by trying to overtake a lorry infront of him which he admits was being driven quite slowly while it was not safe  for him to do so  given the  fact that this was within a residential  area where precaution had even been made for the  safety of the  residents of the area to put road bumps.  He admits, that he had then crossed over two bumps and there was yet another bump to be crossed.  Secondly, he had not hooted to worn the  children who were off the  road that he was approaching. Thirdly,  as a driver of a leathel weapon, he had a greater duty of  care  then  the pedestrians including the. child Plaintiff.  The  duty upon him was even greater as he knew that he was passing through a built up area with heavy human  traffic.

He  told the  court as follows: -

"I was familiar with the  road and I used to see children around and there are houses nearby."

Perhaps,  the position is well summoned up by Sheridan, Ag. C.J. in the  case of MONJU - V -  JESSA (1963) E.A. 156 at page. 158 where he  stated that:

"It seems to me  that when  a man drives a motor car along the road, he is bound to anticipate  that there may be  things and people or animal in the way at any moment,  and he is bound  to go not faster than will permit him of his stopping; or deflecting his course, at any time to avoid anything he sees,  after he has Seenit.  If there is any difficulty in the way of his seeing, like  for instance fog, he must go slower in consequence."

I may add. that it is the duty of every driver to guard against the possibility of danger which is reasonably apparent or  foreable although this does not mean that he has to proceed in such away that he  could avoid an accident no matter how reckless  the other party may be.

In the instant case,  the 1st Defendant was familiar with the area.  He knew that there are always children criss-crossing this only road through their slum village  He happened to have seen these children in good time  some  35 to  40. ft a head of him. According to his own evidence  and that of DW.4, he was going at no more  than  20 KPH.  Why could he not have hooted and then stopped to enable these children who were not actually on the road to move  away.  Even if his vehicle did not come into actual contact with  this child,  the  fact that this child fell right near the  rear right wheel  of his land Rover,  clearly shows that he is the  one who had caused him to fall and to sustain  the injuries he suffered  I  can see no way the 1st Defendant can escape liability in this case.  Moreover,  a child of 3 years cannot in law be guilty of contributory negligence.  As I have responded out,  even the child's elder sister who was no more  than 10 years then would not be blamed because  the 1st Defendant took all of them by surprise.

I  am satisfied that the 1st Defendant is wholly to blame  and that he together with the  2nd Defendant are vicariously liable  to  the Plaintiff in damages for his injuries.

The  type  of injuries which  the minor Plaintiff sufferred in this accident was a hotly  contested issue.  Soon after the accident, it was evidently clear that he had only sufferred minor bruises on his left leg where he was bleeding from.  It was only after 2 days that it was detected upon X-ray that he had infact sufferred a fracture of the distal one third on the left tibia.  He had also bruises on the left toe as shown in his first out patient treatment card at Isiolo (Ex.8)..  At that time,  the controversial bruise behind the left ear which is alleged by his father and Dr.  Randall  (PW,2)  who saw him more than  2 years later was not noted.  These early clinical notes are very important in a case of this nature where the injury  sufferred is disputed.  Ihave  scrutinized the medical records which were made  on  this child on 12th July, 1987 (Ex, 7 & 8)  and also on the 13th of July, 1987 (Ex,9  (a)  in which there is no mention of any injury behind the left ear.  Taking these  clinical notes together with the evidence  of the two womenFlorence Makandi  (DW.2)  and Maritha Murige  (DW,3).who were  familiar with the Plaintiff prior to this accident, I hold that the hearing and speech defects which the Plaintiff minor now suffers from,  cannot be  attributed to the accident that occurred on the 11th of July, 1987. I  believe that it has not been proved on a balance  of probabilities that the deaf and dumbness which the Plaintiff minor now suffers from was not due to his fall in the  said accident.

The Plaintiffs injuries in  the said accident which I  accept and upon which I  am giving to assess damages are those  contained in the medical  report of Dr. Wamasaka dated 13th  of May, 1988  (Ex,3). Those are consistent with the three different clinical notes that were made on 12th and 13th day of July, 1987 (Ex.7, 8 & 9(a)). The Plaintiff had suffered:-

(i)     Bruises on the left leg

(ii)     Swelling on the left leg

(iii)     Fracture of the left tibia at the  distal  one  third

He was put on plaster of pavis for 3 weeks.  The  fracture healed without any complications as the infant that developed was subsequently controlled.  The  awards in, comperable, cases for these  type  of injuries  ranges from Sh50,000/= to Sh.80,000/-. In the  particular circumstances of this case,  doing these best I  can, I  am satisfied that a sum of Sh.70,000/- would be  just and reasonable  to award the  Plaintiff as general  damages for his pain and. suffering.  To this I will add Sh.224/- for medical expenses incurred and in obtaining Police abstract.  It is regretted that no evidence was adduced with regard to the charges paid to both Dr. -Namasaka and Dr.  Randall for their professional  examination and reports on this  child.  Such charges should be  strictly, proved but in the absence  of any such receipts, I would award the Plaintiff Sh. 600/-  (six hundred  for each Doctor which i think a reasonable  fee  for  such reports.  They were not so detailed but thorough.

In the result,  the Plaintiff will have  judgement  against the Defendants jointly and severally in the sum of Sh.1,424/- as special  damages and Shs.70,000/-  as general  damages all amounting to Sh.71,424-/- together with costs of the  suit and ' interest therein at Court rates from the  date  of Judgement.

Delivered at Meru this 9th day of July,  1992.

OGUK .S.O.

JUDGE

291/92

CORAM -  J. E. ASHIOYA  - D/R.

Mr. Mwarania for Plaintiff

Mr.  Oluoch for Defendant

ORDER:  By consent  Plaintiff'’s bill  of costs  taxed at Shs.32, 596/-.

J.  B. ASHIOYA

DEPUTY REGISTRAR, MERU.

18/9/92