REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Civil Case 211 of 1990

SAMWEL NGANGA MUTHIKE………...………………...…………..PLAINTIFF

-VERSUS-

PETER NZUKI………………….……………………………..1ST DEFENDANT

TALA/KANGUNDO URBAN COUNCIL………….….…….2ND DEFENDANT

Coram:  J.W. Mwera J.

Mr. Hassan Advocate for Plaintiff Mr. Kisebu Advocate for Defendant Court Clerk Muli

JUDGEMENT

On 19th November 1990 the Plaintiff sued the 1st Defendant, the employee with the employer, the 2nd Defendant jointly andseverally in liability which, it was claimed, arose at a barrieroperated by the 2nd Defendant but manned by the 1st Defendant on21st February 1989 to regulate the entrance of motor vehicles intothe premises owned and controlled by the 2nd Defendant.It was pleaded that on the material day the Plaintiff-cyclistwas about to enter Tala Market, through a barrier which the 1stDefendant was manning when the 1st Defendant by negligence loweredthe metal bar (the barrier) when it was not safe to do so and bythat the bar caught and hit the Plaintiff knocking him off hisbicycle and at the same time inflicting on him an ulcer to the rightpart of the lip, loosening central upper and lower incisor teeth andcausing a loss of the bone around the front teeth. It was addedthat the Plaintiff also suffered a wound on the left side of theforehead.  He claimed for damages costs and interest.

A defence was filed on 26th February 1991 denying the claim bythe Plaintiff and in turn pleading that he had contributed to theinjury by riding a bicycle very fast at the barrier and failing tobrake or stop at it in order to allow the 1st Defendant to open thebarrier for him. There was no reply to the defence but issues wereagreed and filed on 6th April 1991.

The final part of the trial took place on 6^th November 1996when the Plaintiff's side completed its case, started before OsiemoJ. and the defence led its evidence. The Plaintiff himself hadtestified earlier and for no stated reason the parties, orparticularly the Plaintiff did not move to produce typed proceedingsbefore Osiemo J. to facilitate easier perusal and understanding ofthe record.  The same had been ordered on 24th January 1996.

However in doing its best the whole record was read i.e. thepleadings, evidence and the submissions for a

considereddetermination.

The Plaintiff had testified more or less as reproduced in thepleadings above. He exhibited medical reports, receipts and suchevidence as he considered supported his claim. His witness JosephNzuki (PW2) supported the Plaintiff in that as the latter had riddenclose to and about to pass the barrier which the 1st Defendant hadraised, he saw the 1st Defendant lower it instantly and it knockedhim off his bicycle inflicting injuries. That the 1st Defendant haddone that in an apparent move to stop a motor vehicle that wasapproaching the barrier. He wanted to collect a toll from thatmotorist. The incident was reported to the police as well as at the2nd Defendant's office where, according to PW2 he with the 1stDefendant carried the injured Nga’ng’a (Plaintiff). PW2 asserted incross examination that he had passed at this barrier many times,being a local farmer, and it was not normally closed. It wassometimes left open as it was on the material day. He denied thatthe Plaintiff rode into a closed barrier, hit it and fell downinjured. There was no separate path for cyclists and PW2 hadwitnessed the accident.

The 1^st Defendant said that he was on duty on the materialday.The barrier was lowered and as was usual he could only raise it to allow motorists who paid a toll to drive through. He wouldthen lower it again. When it is closed the cyclists who pay no tollride past by a side path.

On 21st February 1989 a motor vehicle came to the barrier.The 1st Defendant stood in the barrier room window to collect thetoll. The motor vehicle stopped. The Plaintiff then came cyclingalong, passed the waiting motorist and rode into the closedbarrier. He hit the bar and fell off the bicycle. He jumped up,raised the barrier and even the waiting motorist just drove throughwithout paying. The 1st Defendant further testified that his reliefNgotho Waweru replaced him at 1 p.m. He went for lunch. When hewent to the 2nd Defendant's offices at 2 p.m. he found the Plaintiffthere, having reported to the superior officers that by the act ofthe 1st Defendant, he had been hit with a barrier and he gotinjured. That a superior officer then directed the Plaintiff toreport the matter to police and the 1st Defendant went along towrite his statement. According to him, PW2 then showed up at thepolice station - never at the barrier. The 1st Defendant deniedever having failed to notice the Plaintiff cyclist as he rode to thebarrier whereupon he suddenly lowered it injuring him. That all thetime the barrier was down and he did not lower it suddenly to stop amotorist who had come there more or less at the same time with thePlaintiff. However when the 1st Defendant reported at the policestation to write a statement in connection with the Plaintiff's complaint, he was remanded and later charged in a criminal court.He was subsequently convicted and fined. He had nonethelessmaintained his defence in the criminal court as he did before thiscourt.

When Ngotho (DW2) came to relieve the 1st Defendant he foundthe barrier down with a motor vehicle waiting at it. In between wasa bicycle with a man standing by it. All this time the 1st Defendantwas in the barrier room endeavouring to collect a toll from andissue a receipt to the waiting motorist. That the 1st Defendantthen told Ngotho that the cyclist there had hit the barrier. SoNgotho advised him to report the incident at their offices. Thecyclist and PW1 went accordingly. 1st Defendant did not return tothe barrier. According to DW2, they usually kept the barrier closedand only opened it when a motorist came along, paid and was allowedto pass by raising the barrier.  It was then .lowered again,

In cross examination DW2 answered that he had not been presentto see the Plaintiff riding to crash into the barrier (this differswith what DW2 told the criminal court that he had seen the Plaintiffride up to the barrier very fast, hitting it). He did not see thePlaintiff raise the barrier.

On liability, the Plaintiff claimed that it was all due to theDefendants.  The defence denied it and laid part of it at his feet.

There was no reply (see 0.6 r.9 Civil Procedure Rules). This courtis of the view that the Plaintiff was partly to blame for thisaccident. The 1st Defendant's evidence left the impression that theaccident occurred long before Ngotho (DW2) came to relieve him at 1p.m. That the Plaintiff then went away, but actually to the 2nd Defendant's offices where the 1st Defendant discovered him laterwhen he went there after lunch. From the evidence of Ngotho, it isapparent that he found the Plaintiff still at the scene. When 1stDefendant told him what had transpired, he advised the 1st Defendantto go and report the incident to their offices. Then he and thePlaintiff went along together. Again this court has the impressionthat much as that part of DW2 ' s story looks plausible, it had somedifficulty in believing this witness, DW2, on another aspect. Inthe criminal court he had said that he saw the Plaintiff ride fastto the barrier and crash into it. Here he said that he had not beenpresent at the time of the accident. He only found the motoristwaiting for a receipt from the 1st Defendant while the barrier wasclosed and the Plaintiff's bicycle lay between the motorist and thebarrier with the Plaintiff standing by. Nonetheless the story toldhere appears the more plausible of the two. Without denying it inpleadings but seeking to do so in evidence only and havingconsidered the matter before it this court apportions 10% ofliability to the Plaintiff while the Defendants take 90%. The 1stDefendant may have been raising and lowering the bar for motoristsas was his duty but it was also incumbent on the Plaintiff to watch out as to what was likely to happen as he came to the barrier with amotorist. If the 1st Defendant was in the process of lowering thebarrier as the motorist came along, the Plaintiff may have thoughtthat he could ride past it before it came down and by such thoughthe was caught and hit off his bicycle which DW2 found lying betweenthe motor vehicle and the closed barrier. The story of thePlaintiff simply and probably riding fast to crash into a loweredbarrier is not quite a convincing story, given that a motorist wason the scene. But it can also be so for instance if the Plaintiff'sbicycle had no effective brakes. And likewise it is unbelievablethat the 1st Defendant simply and suddenly lowered the barrier asthe Plaintiff alone was about to ride through it without cause, yetcyclists never paid tolls there.

The Plaintiff's side submitted that he is entitled to anoutlandish sum of Sh.500,000/- general damages plus Sh.80,000/- for the cost of restoring the function of his upper and lower jaws – the sum having escalated since Dr. Obura's report. It was alsosubmitted that he should get special damages: copying the KANGUNDOCRIMINAL CASE NO. 480/89 in which the 1st Defendant was prosecutedfor his negligent act at the barrier and he was fined; medicalreport and treatment expenses.

Five cases were cited to guide the court:

SISCO NDANYI & ORS VS. COAST BUS SERVICE LTD NRI HCCC 4425/90JOSEPH OUMA VS. SIGWILI & ANR NRI HCCC NO.3628/89ANDREW THUO VS. SALIM & ANR MBA HCCC 36/89SUSANA KANANA VS. ADAM NRI HCCC 1724/89SIMON NGAMIONE VS. KAGUNDA NRI HCCC 1625/91

In the defence submissions a 50-50 apportionment wasproposed.  It too cited 5 cases:

   MAINGI MAKAU VS. EMCO PLASTICS LIMITED HCCC 850/86KENNETH KIFAFA VS. NDUNDA & ANR C.APP.NO.143/91JEROME WANGOMBE VS. MBUTHIA HCCC 404/91LEONARD MUTHAMA VS. GICHUBI & 3 ORS HCCC 3176/87FREDRICK BARAE VS. CHAOTA KOONGIT HCCC NO.5634/89

A gross award of Sh.110,000/- was considered fair; the defencedid  not  challenge  the  special  damages  but  saw no  basis  forSh.500,000/-  general  damages. Accordingly special damages ofSh.1, 353/60 are awarded.

As for general damages a close look was given to the reportsof Mr. Obura, dated 11th July 1990 and the later of the two, by Mr.Bodo dated 20th November 1991. Both reports however are fairly oldand can hardly be relied on for whatever status the Plaintiff'shealth was at time of this judgement.  However on looking at them both, they were made within a year of each other. Mr. Oburasuggested that Sh.40,000/- be availed to treat and manage thePlaintiff's upper and lower jaws affected in the accident. Mr.Bondo on his part, referred to an old hip joint injury that thePlaintiff had and of which he was complaining even at the time hewas examined in respect of the Tala barrier accident. But that neednot be reflected in the damages to be assessed here even if thePlaintiff desired to link, the pain thereat to have started after thefall. It was however not pleaded that the fall had aggravated an earlier but healed problem.

So all in all this court can but grant the PlaintiffSh. 90,000/- for pain and suffering due to the fall at the barrierplus Sh.40,000/- for the anticipated treatment of the jaws. Therewas no expert revision of this sum and this court need not engage inthe "escalating of costs" project. It is not suited or qualified todo so.

In sum the Plaintiff gets a gross total of Sh.131,353/60. This on being reduced by 10% contributory negligence leaves thePlaintiff with  a net  award  of  Sh.118,218/24  a  round figure ofSh.118,218/25 plus costs and interest at the lower court rates.

Judgement accordingly.

Delivered on 18th December 1996.

J.W. MWERA

JUDGE