SK (Suing Thro' his Mother and Next Friend ENM) v Mwangi (Civil Suit 18 of 2013) [2014] KEMC 7 (KLR) (5 June 2014) (Judgment) Neutral citation: [2014] KEMC 7 (KLR) REPUBLIC OF KENYA IN THE NYAHURURU LAW COURTS CIVIL SUIT 18 OF 2013 PA NDEGE, AG. PM JUNE 5, 2014 BETWEEN SK (SUING THRO' HIS MOTHER AND NEXT FRIEND ENM) ........ PLAINTIFF AND FRANCIS KARUMBA MWANGI ........................................................ DEFENDANT JUDGMENT 1. On 11.02.2013, the Plaintifi herein, SK, brought this suit through his mother and next friend, ENM, by way of a plaint dated 21st November, 2012, seeking General and Kshs. 5,600/= Special damages from the defendant herein, Francis Karumba Mwangi, for loss, damages and great pain that he sufiered and continue to sufier, as a result of a road trafic accident that happened on or about 31st July, 2012, involving him and the defendant's motor vehicle registration number KYG 938. 2. The parties herein negotiated and recorded a consent on liability before me on 13.03.2014, where the defendant agreed to shoulder 70% liability; while the plaintifi was to bear 30%. The matter thereafter proceeded for the assessment of damages awardable herein. 3 2 witnesses testified herein. They were the plaintifi and his mother and next friend. 4. The plaintifi testified as PW2. He stated on oath that he sustained a fracture on the right arm and other injuries on left side of the abdomen and right leg. That the right arm was plastered and later healed. That his abdomen had however not healed completely. 5. His mother and next friend testified as PW1, and gave a detailed account of the injuries and the treatment that were efiected on them. She stated that the plaintifi was injured at the face, ribs and face. That the right arm was also fractured. That he was taken to Ol Kalau District Hospital where he was admitted for 3 days. She paid Kshs. 800/= for his treatment. She, however, produced the Out Patient Card, Receipt for Kshs. 40/=, the discharge summary and a further receipt for Kshs. 1550/= as PEXHS. Nos. 1A, 1B, 2 and 3 respectively. That upon discharge, they proceeded to Engineer Police https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/7/eng@2014-06-05 1
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Station where they were issued with a Medical Examination (P3) Form which was filled and produced as PEXH. No. 4. That later in the month of November, the plaintifi complained of abdominal discomfort. She again took him to Ol Kalau District Hospital where he was again admitted and later referred to Nakuru Provincial General Hospital where he was also admitted for a further 3 months. She produced the discharge summary and the receipt for Ksh. 31,880/= being the medical fees as PEXH. Nos. 6 and 7 respectively. She also produced an x-ray film for the injured arm, a clinic attendance card, a further Medical Report by Dr. Wellington K. Kiamba dated 26/09/2012 and the receipt of Kshs. 500/= being the fees for the report as PEXH. Nos. 8, 9, 10A and 10B respectively. 6. The parties filed and exchanged their written submissions at the close of hearing. From the submissions, it is clear that the parties appear to be in agreement on the injuries sufiered by the plaintifi from the accident herein. Both parties appear to be unanimous that I rely on the findings of Dr. Wellington K. Kiamba's medical examination ( PEXH. No. 10A.) which discloses the following injuries:a. Soft tissue injuries to the forehead b. Soft tissue injuries to the right elbow joints c. Soft tissue injuries of the left lower limb. 7. For the plaintifi, I was urged to rely on the High Court decision in Kiwanjani Hardware Ltd & Anor. VRs Nicholas Mule Mutinda, Machakos HCCCA NO. 16 OF 2008, by Justice I. Lenaola, where the plaintifi sustained blunt injuries to the head, left shoulder, back, chest, right forearm and neck, a cut throat, deep penetrating wound on the left leg with cuts and bruises, and was awarded Kshs. 150,000/ = on 25.09.2008. 8. The defendants, on the other hand, submitted for an award of Kshs. 70,000/=, citing the High Court decisions in Eastern Produce (k) Ltd (Savana Estata) =VRS= Gilbert Muhunzi MakotSi (2013)eKLR and KENYA Power & Lighting Limited =vrs= Samson Machuma Makori (2008)eKLR, where the plaintifis sufiered soft tissue injuries. 9. Going by the injuries pleaded and agreed on herein, I do find the decision in Kenya Power & Lighting Co. Ltd case where the plaintifi was proved to have sustained soft tissue injuries to the face, chin, left rib cage and right knee to be almost similar to those pleaded and agreed upon in the written submissions herein. The fracture and the injury to the abdomen that the plaintifi attempted to prove in the trial herein were not pleaded and the parties also appear not too keen to pursue them in their submissions. 10. The High Court awarded the plaintifi in Kenya Power & Lighting Co/ Ltd. case cited hereinabove Kshs. 80,000/= for the soft tissue injuries sustained in 1999. I will consider the efiects of infiation and award the plaintifi herein Kshs. 180,000/= for the soft tissue injuries proved and agreed upon herein. 11. Whereas the plaintifi produced several receipts of payments herein, he only pleaded Kshs. 5,600/= special damages, being the costs of the Medical Report and the P3 form. He is therefore only entitled to Kshs. 5,000/= being the only pleaded special damage which he was able to prove vide PEXH No. 10B. All the other payments and expenses proved by the other receipts were not pleaded. Conversely, the pleaded Kshs. 600/= cost of P3 Form was not proved. 12. Judgment is therefore hereby entered in favour of the plaintifi and against the defendant in the sum of Kshs. 126,000.00 and Kshs. 3,500.00 being General and Special damages respectively. The plaintifi to also get the costs of this suit. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 05TH DAY OF JUNE , 2014 https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/7/eng@2014-06-05 2
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ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Plaintifi's advocate: n/a Defendant's advocate: Muchela h/b Nyachiro Plaintifi: Defendant: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/7/eng@2014-06-05 3
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