Rosemary Wanjiru Kungu v Elijah Macharia Githinji & another [2014] eKLR
Civil Case No 145 of 2010
High Court at Nairobi
Brief Facts
The Plaintiff in the instant matter had sustained injuries as a result of an accident caused by the negligence of the 1st Defendant who was the driver of the motor vehicle owned by the 2nd Defendant. She sought general damages for pain and suffering, special damages, loss of income, loss of consortium, future medical expenses, interest on the same and costs of the suit.
Injuries Suffered
- Fracture of spine, thoracic vertebrae T12
- Complete paraplegia
- Large ward on right shoulder
- Urine retention (incontinence)
- Dislocation of right knee
- Severe spinal injury
- Partial paralytic ileus
Issues
- Whether the Plaintiff’s claim was time barred having been instituted two months after the statutory limit of three years had elapsed from the date when the cause of action arose and whether the order extending time was properly granted.
- Whether the suit motor vehicle was owned by the 2nd Defendant.
- Whether the said vehicle was being driven by the 1st Defendant as agent of the 2nd Defendant.
- Whether the accident was caused by the negligence of the Defendants.
- Whether the Plaintiff was entitled to damages and if so, what was the quantum?
- Who should bear the costs?
Tort law - institution of negligence suit- whether a suit based on negligence could be instituted four years after the cause of action arose- whether the present suit was time barred with the accident having occurred in 2007 while the suit was instituted in 2010.
Civil Practice and Procedure - leave to file out of time- whether a negligence suit could be filed out of time- whether the leave to file out of time had been properly obtained.
Civil Practice and Procedure- leave to file out of time- under what circumstances could the court allow an Applicant to institute proceedings after time had elapsed? – where the Petitioner sustained injuries and filed the suit four years after the cause of action had arisen- Limitation of Action Act Cap 22, section 27.
Limitation of Actions Act, Cap 22
Section 27
“(1) Section 4 (2) does not afford a defense to an action founded on tort where -
(a) the action is for damages for negligence, nuisance or breach
of duty (whether the duty exists by virtue of a contract or of a written
law or independently of a contract or written law); and
(b) the damages claimed by the plaintiff for the negligence,
nuisance or breach of duty consist of or include damages in respect of
personal injuries of any person; and
(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.
(2) The requirements of this subsection are fulfilled in relation
to a cause of action if it is proved that material facts relating to
that cause of action were or included facts of a decisive character
which were at all times outside the knowledge (actual or constructive)
of the plaintiff until a date which -
(a) either was after the three-year period of limitation
prescribed for that cause of action or was not earlier than one year
before the end of that period; and
(b) in either case, was a date not earlier than one year before the date on which the action was brought.
(3) This section does not exclude or otherwise affect -
(a) any defence which, in an action to which this section applies,
may be available by virtue of any written law other than section 4 (2)
(whether it is a written law imposing a period of limitation or not) or
by virtue of any rule of law or equity; or
(b) the operation of any law which, apart from this section, would
enable such an action to be brought after the end of the period of
three years from the date on which the cause of action accrued.”
- The effect of the Limitation of Actions Act Cap 22 was that certain causes of action ought not to be brought after the expiry of a particular period of time. In other words the Act barred the bringing of particular actions after the specified periods of limitation but did not necessarily extinguish such causes of action. A cause of action that was barred could in certain cases be revived if the conditions set out in section 27 of the Limitation of Actions Act Cap 22 were fulfilled.
- The extension of time applied only to claims made in tort and even then the claims had to be in respect of personal injuries arising from negligence, nuisance or breach of duty (whether the duty existed by virtue of a contract or of a written law or independently of a contract or written law).
- However, even if the conditions were satisfied time would not be extended unless the Applicant proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the Plaintiff. In order to prove this, the Applicant was expected to show that he did not know that fact; that in so far as that fact was capable of being ascertained by him, he had taken all such steps (if any) as it was reasonable for him to have taken that time for the purpose of ascertaining it; and that in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such steps (if any) as it had been reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.
- ‘Appropriate advice’ was defined as meaning in relation to any facts or circumstances ‘advice of a competent person qualified in their respective spheres, to advice on the medical, legal or other aspects of that fact or those circumstances, as the case ought to be’.
- In the result, where the Defendant or his representative such as the insurance company led the Plaintiff to believe that the claim is capable of being settled and in reliance thereof the Plaintiff or his advocate refrained from filing the suit until after the limitation had run its course, that ought to have constituted a good ground for extending time notwithstanding the provisions of section 27 aforesaid. It was therefore upon the Defendant at the hearing to challenge the grounds upon which the order extending time was granted. Whereas the defence concentrated on the provisions of section 27 of the Limitation of Actions Act Cap 22, no serious challenge was directed to the issue of negotiations. It could not therefore be that the order extending time to file the suit was not properly granted.
- The Court appreciated that the Traffic Act was an Act of Parliament meant to consolidate the law relating to traffic on the roads; it was not an Act which decided de facto or de jure ownership of vehicles hence ownership of vehicles passed by sale and delivery and registration books were only evidence of title and property passed in accordance with the Sale of Goods Act, when the contract of sale was made.
- Without the defence calling witnesses who could be cross-examined on the documents produced by them rendered the same of very little, if any, weight at all. In light of the contents of the certificate of official search produced before the Court, the only reasonable conclusion was that the suit motor vehicle was owned by the 2nd Defendant.
- Where it was proved that a car had caused damage by negligence, then in the absence of evidence to the contrary, a presumption arose that it was driven by a person for whose negligence the owner was responsible. That presumption was made stronger by the surrounding circumstances and it was not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending did not of itself dispel the possibility that it was being driven for the joint benefit of the owner and the driver. Thus, the 1st Defendant was driving the suit vehicle as a servant or agent of the 2nd Defendant hence the 2nd Defendant was vicariously liable.
- The only evidence on record on how the accident occurred was the Plaintiff’s evidence. Without any evidence to the contrary, it had to be concluded that the accident took place when the driver of the suit motor vehicle was reversing. He ought to have had a proper lookout before reversing and the fact that the accident took place without him noticing the Plaintiff could only be explained on the ground of negligence.
- In awarding damages, the general picture, the whole circumstances, and the effect of injuries on the particular person concerned had to be looked at, some degree of uniformity had to be sought, and the best guide in that respect was to have regard to recent awards in comparable cases in the local courts. It was eminently desirable that so far as possible comparable injuries were be compensated by comparable awards. The court had to strike a balance between endeavouring to award the Plaintiff a just amount, so far as money could ever compensate, and entering the realms of very high awards, which could only in the end have a deleterious effect.
- On the issue of the multiplier, the law was that due regard was to be paid to the expectation of working life and dependency by the named dependants as well as the contingencies of life including the fact that the deceased could have died prematurely of a cause other than the accident that took him as well as the fact that the money would be paid in lump sum.
- In determining the multiplicand, the important figure was the net earnings of the deceased. The Court was then to multiply the multiplicand by a reasonable figure representing so many years purchase. In choosing the said figure, usually called the multiplier, the court had to bear in mind in expectation of earning life of the deceased. Taking into account the contingencies of life as well as the fact that the money would be paid in a lump sum, a multiplier of 15 years was reasonable in the instant case.
- General Damages = Kshs 3,000,000.00
- Special Damages = Kshs 972,157.32
- Wheelchair at Kshs 50,000.00 x every 5 years (3) = Kshs 150,000.00
- Diapers at Kshs 50,000.00 x 15 years = Kshs 750, 000.00
- Special Mattress for 15 years =Kshs 150,000.00
- Nurse aide at Kshs 10,000 x 12months x 15 years = Kshs 1, 800,000.00
- Transport costs at Kshs 6,000 x 52 weeks x 15 years= Kshs 4,680,000.00
- Physiotherapy at Kshs 4,500 x 15 x 52= Kshs 3,510,000.00
- Daily skin care at Kshs 1,000 x 15 x 12 = Kshs 180,000.00
Costs awarded to the Plaintiff.
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