By a plaint dated and filed in the High Court on 16^th July, 1986, and amended on 27^th August, 1987, the respondents, Peter Kabibi Kinyanjui and Africa Media Ltd (plaintiffs in the High Court) claimed general and special damages for injuries and material damage sustained by the respondents arising out of a motor vehicle accident on the night of 5^th and 6^th January, 1986.

At about 1.00 am on that night, the first respondent was driving his motor vehicle registration no. KWJ 588, owned by the 2^nd respondent, along the main Kikuyu-Ndenderu Road in the direction of Ndenderu when the appellant’s motor vehicle registration no. KQZ 288 appeared from a minor road, the Mwimuto/Wangige Road, and collided with the respondents’ motor vehicle, extensively damaging the same, and causing severe injuries to the driver, the 1^st respondent herein.

The material paragraph in the plaint states as follows:

“5. On or about the night of 5^th and 6^th January, 1986 at 1.00 am the first Plaintiff was lawfully driving his motor vehicle registration number KWJ 588 owned by the second Plaintiff along the Kikuyu/Ndenderu Road in the direction of Ndenderu when the Defendant suddenly, carelessly and negligently entered into the said Kikuyu/Ndenderu Road from the Mwimuto/Wangige Road and so managed and/or controlled his said motor vehicle registration number  KQZ 288 that he caused or permitted the same to  violently collide with the second plaintiff’s said motor vehicle.

Aggrieved by that decision, the appellant is before this Court in this second and final appeal. He has presented the following five grounds of appeal:

In his submissions before this Court, Mr. T. T. Tiego, learned counsel for the appellant, essentially complained about the learned Judge’s apportionment of liability, arguing that the 1^st respondent was largely to blame for the accident – almost upto 80%. He relied on the proceedings and judgment of the High Court in Criminal Appeal No. 1131 of 1986 arising out of the same accident, where the learned Judge (Tanui, J) quashed the conviction of the appellant, and found him not guilty of the charge of driving a motor vehicle without due care and attention contrary to section 49 (1) of the Traffic Act. With regard to quantum, Mr. Tiego submitted that an award of Kshs.250,000/= was the maximum the first respondent was entitled to given the nature of the injuries sustained by him. Finally, Mr. Tiego argued that the learned Judge had erred in not considering the appellant’s counter-claim.

Mr. G. Imende, learned counsel for the respondents, argued, on the other hand, that the issues of special damages having been settled by consent (including the counter-claim), the only issues before the trial court related to liability and quantum of damages payable to the 1^st respondent. He defended the learned Judges finding of fact on liability, and the award on quantum, arguing that the injuries sustained were serious. He relied on the cases of Charles Ndirangu vs. John W. Ngiri H.C.C.C. No. 1052 of 1989 and Meshack Allan Olang vs. Erick Gowi H.C.C.C. No. 2371 of 1990.

What is evidently clear in this case is that the 1^st respondent was travelling on the main road, and it is the appellant who came from the minor road, attempting to join the main road, when the accident happened. In dealing with such a situation, the learned trial Judge expressed himself as follows:

“A driver on the main road may be negligent if he did not or could not stop in time in order to avoid an obstacle on his path way but as (sic) greater duty of case (sic) must lie on the driver of the vehicle coming out on to the main road who should only do so when he would cause no obstruction to the users of the main road. This was stated in the case of Fernandes vs. Noronha [1969] E.A. 506 at page 511.” 

With respect to the quantum, given the seriousness of the injuries suffered by the 1^st respondent, again we are unable to interfere with the discretion of the learned Judge, as we have not found it to be so disproportionate to what had been awarded in cases cited to him. We are of the view that an award of Kshs.520,000/= (less the 20% contribution) for multiple fractures of the femur, fractured ribs, radius and index fingers was reasonable.

Finally, with regard to the issue of the appellant’s counter-claim, we are of the view that this matter was clearly settled by the consent order, and the same was not as issue before the trial Judge.

Accordingly, and for the reasons stated, we are of the view that there is no merit in this appeal, and we dismiss the same with costs to the respondent.

Dated and delivered at Nairobi this 9^th day of December, 2011.

I certify that this is a true copy of the original.