Agatha Wanjiru Njuguna v Mary Wanjiku Ikiki & 3 others [2006] KECA 117 (KLR)

The plaintiff's evidence, corroborated by the police officer's testimony on the record of the accident and the 2nd Defendant's subsequent conviction for causing death by dangerous driving, established on a balance of probability that the driver approached a bridge on a hill near a corner at excessive speed and without attention, causing the collision. As an innocent passenger, the plaintiff bore no contributory negligence, so full liability fell on the driver and the vicariously liable owner.

Although the plaintiff sued four defendants, both the plaint and her evidence alleged negligence only against the 2nd Defendant, holding the 1st Defendant vicariously liable. At the hearing only the advocate for the 1st and 2nd Defendants had been served; the 3rd and 4th Defendants' advocates had applied to withdraw and no hearing notice was served on them. With no evidence adduced against the 3rd and 4th Defendants, no finding of liability against them was possible.

Only a receipt for Kshs.2,600 for the medical report was produced. The court, taking a pragmatic approach, allowed a further Kshs.100 for the police abstract whose copy was produced, but declined the Kshs.3,250 claimed for medical expenses since no evidence supported it. This reflects the strict requirement that special damages be specifically pleaded and proved.

The plaintiff claimed both the cost of domestic help and the cost of future nursing and medical care. The court viewed these as overlapping heads. Taking into account that the provision of a motorized wheelchair and a pair of prosthesis would restore substantial mobility and reduce the plaintiff's dependence on assistance, the court made a global award of Kshs.600,000 covering both heads rather than the combined Kshs.1,776,000 sought.

The court accepted that the plaintiff, a Form III student whose ambition of becoming a school teacher was destroyed by the amputation of both legs, had lost earning capacity. Adopting a monthly income of Kshs.5,400 and a multiplier of 25, it computed 5,400 x 12 x 25 = 1,620,000, without applying the dependency ratio used in fatal-accident claims since the claimant here is the injured person herself.

The plaintiff suffered fractures of both legs resulting in above-knee amputation of both limbs, hospitalisation for 2 months and 22 days, and 100% permanent physical incapacity per Dr. Wachanga. She had to abandon school, forfeiting her ambition to be a teacher, and endured pain, anguish and loss of amenities. Weighing these factors, the court awarded Kshs.2,500,000, substantially below the amount urged by counsel.