Mukai Mwanza v Joseph Matheka & 4 Others

High Court, at Mombasa

April 2, 1982 Kneller J

Civil Case No 216 of 1976

Negligence - contributory negligence - apportionment of liability - traffic accident - collision of vehicles in middle of tarmac road in fine weather.

Damages - quantum of damages - personal injury - pain and suffering, physical disablement and loss of amenities - assessment of damages - determination loss of earnings.

The plaintiff, a widowed mother of seven children, was a farmer and groceries trader. She was a passenger in the omnibus when a collision occurred between the omnibus and another vehicle, in the centre of a good tarmac road during fine weather and the vehicles were not shown to have been in an unsatisfactory condition. Upon impact, the vehicles had overturned and a fire ensued in which their drivers and twenty-eight passengers, including the plaintiff’s four-month old baby, perished. The plaintiff suffered severe shock and serious burns on over thirty percent of her body for which she was hospitalized for about three and half months during which time she had a skin grafting. She sued the defendants claiming special damages and general damages for pain and suffering, physical disablement and loss of amenities.

Held:

1. It was probable that the driver of the bus had taken no action at all to avoid the collision and he must have seen the other vehicle long enough to rule out his being put in a situation of having to make a decision in the agony of the moment.

2. The defendants were negligent and were equally to blame for the accident.

3. The awards of foreign courts for the kind of injuries complained of by the plaintiff did not necessarily represent the standards which should prevail in Kenya.

4. The plaintiff was awarded Kshs 210,000 for shock, pain, suffering, loss of amenities and permanent disablement, and Kshs 144,000 for loss of earnings.

Judgment for the plaintiff.

Cases

1. Jefford v Gee [1970] 2 QB 130 (CA) Applied

2. George v Pinnock [1973] 1 WLR 118 Applied

3. Kimothia v Bhamra Tyre Retreaders & Another [1971] EA 81 Distinguished

4. Lloyd v British Airports Authority & Brocks Fireworks Limited [1976] CA No 441 A Referred

5. Bromley v Reed Paper and Board (UK) Ltd, January 12, 1978 (unreported) Referred

6. Willi Joseph v Highway Carriers Ltd (Nairobi) HCCS 1679 of 1976 (unreported) Approved & Applied

Texts

DA Kemp, Kemp & Kemp: The Quantum of Damages in Personal Injury and Fatal Accidents Claims, Sweet & Maxwell: London, 4th Edn, 1982, para J2-010

Statutes No statute referred to.

Advocates

Mr Ghalia for Plaintiff

Mr Manek & Mr Kinyajui for Defendants