AMID the endless news of road carnage causing deaths and injuries, did you know you could sue a matatu owner or company for compensation if you are injured in an accident?
Clovins Ndayikengurutse was travelling aboard a Super Metro bus when it was involved in a collision along the Awasi–Ahero road in Kisumu on January 29, 2024.
He suffered injuries including bruises on the forehead, elbow, and knee joints, as well as a fracture of the left clavicle.
He received treatment at several medical facilities, including Ahero county Hospital, Jaramogi Oginga Odinga Teaching and Referral Hospital, Rabuor subcounty hospital, and Ladnan Hospital in Nairobi.
Ndayikengurutse later filed a lawsuit seeking compensation for both general and special damages, citing medical costs and physical suffering.
In a judgment by the magistrate’s court, the injured passenger was awarded Sh650,000 in general damages and Sh145,974 in special damages, along with interest and the costs of the suit.
However, the Super Metro management appealed the decision at the High Court, arguing that the damages awarded were excessive, the special damages had not been strictly proved, and that there was insufficient evidence to support the finding that the respondent had suffered a clavicle fracture as a result of the accident.
The High Court reviewed the evidence afresh.
It confirmed that while the respondent had pleaded Sh156,474 in special damages, he had successfully proved Sh145,974, supported by receipts and an invoice. The court noted that although one invoice of Sh130,000 lacked a receipt, it still represented a valid financial obligation. As a result, the special damages award of Sh145,974 was upheld.
Regarding the contested clavicle fracture, the High Court found that a referral form from Ahero Hospital had recommended an X-ray of the left shoulder due to suspected fracture. However, due to a diagnostic error, JOOTRH conducted an abdominal X-ray instead.
The respondent later sought treatment at Ladnan Hospital, where an X-ray confirmed the clavicle fracture. The court accepted that the injury was consistent with the accident, noting that the respondent had no control over the misdiagnosis and had testified credibly about persistent shoulder pain. It rejected the appellant's suggestion that the fracture arose from an unrelated incident.
However, on the issue of general damages, the High Court agreed that the award of Sh650,000 was excessive when weighed against comparable case law.
The court substituted the award with a reduced sum of Sh500,000, which it deemed appropriate for the nature of injuries sustained.
The respondent had also claimed Sh200,000 in future medical expenses, which had been pleaded and supported by medical testimony. However, the High Court declined to consider this claim, noting that the respondent had not filed a cross-appeal challenging the trial court’s omission of that award.
In its final orders, the High Court awarded the respondent Sh500,000 in general damages and Sh145,974 in special damages, with interest applicable on general damages from the date of judgment, and on special damages from the date of filing the suit. Each party was directed to bear their own costs of the appeal.
