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JudgmentIRMA BEJDIC VS ROYAL STAR LIMITED AND LUKAS GIKUNDA MITONGA15 min read

IRMA BEJDIC VS ROYAL STAR LIMITED AND LUKAS GIKUNDA MITONGA

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

HIGH COURT CIVIL CASE NUMBER 41 OF 2014

IRMA BEJDIC…...........………….…........................................PLAINTIFF

-versus

ROYAL STAR LIMITED……………………....................1ST DEFENDANT

LUKAS GIKUNDA MITONGA………………...........….2ND DEFENDANT

JUDGEMENT

I. Introduction

1.   The Plaintiff instituted the present suit against the Defendants through a Plaint dated 28th August 2014 and amended on 31st August 2023 together with the requisite accompanying documents. The Plaintiff sought inter alia; General damages for pain, suffering and loss of amenities, special damages in the sum of Kshs.68,949,548 (439,785.36 EUR), interest at commercial rates and costs of the suit.

2.   The 1st and 2nd Defendants did not enter appearance or file a Statement of Defence. Consequently, the Plaintiff moved the Court and requested for judgment against the Defendants. The said request was duly considered by this court, endorsed and interlocutory judgment was entered on 18th April, 2023.

3.    The Plaintiff subsequently proceeded with formal proof hearing on 21st November 2024.

II. Background

4.    The Plaintiff is a Bosnia & Herzegovinian Citizen, in 2011 was also a member of AIESEC, a global organization that seeks to develop leadership qualities and capabilities in young people. In August 2011, the Plaintiff was among students selected to participate in an AIESEC International Congress which took place in Nairobi, Kenya. The Plaintiff duly registered and paid Stitching AISEC International a fee which catered for both the International Conference and a study tour in Mombasa.

5.   On or about 30th August 2011, while on the said study tour after the conference, the Plaintiff herein was a lawful passenger aboard Motor Vehicle Registration Number KBN 182N being driven along Nairobi- Mombasa Road near Tsavo River, when the Defendants, their servants and/or agents, so carelessly drove, managed and/or controlled Motor Vehicles Registration Numbers KBN 182N and KBP 914V, thereby causing the said motor vehicles to violently ram into and/or collide with each other, causing an accident. The said accident is the subject of this present suit.

6.  The particulars of negligence of the Defendants herein, their servants and/or agents are itemized at paragraph 8 of the Amended Plaint. As result of the collision, the Plaintiff sustained grievous injuries to her being and as testified by the Plaintiff at the formal proof hearing, she lost consciousness at the time of the accident, and only woke up 2 weeks later at a hospital in Germany after being airlifted from Kenya. The Plaintiff has since 2011 undergone over 30 surgeries with next set of surgeries being scheduled between December 2024 and April 2025 for facial reconstruction.

7.    The said injuries are further particularized at Paragraph 10 of the Amended Plaint and as testified by the Plaintiff during formal proof include:

a) Disarticulation of the Plaintiff’s right shoulder that led to loss of the right arm.

        b) An injury to her right eye that led to loss of the eye.

        c) Crushed side of her face and a broken upper jaw.

       d) Head and brain Injury.

       e) Soft issue injuries

        f) Liver lacerations

8.    The Plaintiff’s initial injuries are evidenced in the medical report by Dr. J.M. Muthuuri, (Exhibit 2; Page 2-4 of the Plaintiff’s Bundle of Documents) which medical report provides that the Plaintiff suffered traumatic disarticulation of the right shoulder, penetrating injury to the right eye which led to the enucleation of the eye, crushed right side of the face with broken pieces of the upper jaw and liver lacerations. The Plaintiff was placed under emergency response care and placed in the Intensive Care Unit (ICU).

9.   Whilst the Plaintiff was airlifted out of Kenya for further special treatment, the said accident was reported to Mtito Andei Police Station and police abstract dated 1st September 2011 was prepared. The Plaintiff has additionally presented to the Court a medical report evincing a report by the Medical Officer, medical treatment notes and examination, hospital bills and receipts and other relevant documents relating to the accident and its aftereffects. The Plaintiff has also particularized the special damages she incurred at Paragraph 7 of the Amended Plaint.

10. Consequently, the Plaintiff now seeks relief from this Honourable Court against the Defendants jointly and severally for:

  a) General damages for pain and suffering and loss of amenities;

b) Special damages in the sum of Kshs.68, 949,548.05 (439,785.36 EUR), together with interest at the prevailing commercial rate from 30th August 2011 until payment in full

c) Costs of the Suit; and

d) any other relief as the court may deem fit and just.

11.  The Defendants herein were duly served with the summons and pleadings in the matter; however, they failed to enter appearance or file a Defence. The Plaintiff thus made a request for entry of interlocutory judgment against the Defendants and the same was entered on 18th April 2023, ultimately determining liability against the Defendants jointly and severally at 100%.

12. The matter thus proceeded for formal proof hearing on 21st November 2024 for assessment of quantum of damages. The Plaintiff duly testified and directions thereafter given on filing of submissions.

13.  It is against this backdrop that the Plaintiff submitted herein and invited this Court to allow the suit as prayed against the Defendants jointly and severally with costs.

III. Issues for determination

14.  Having considered the pleadings and the evidence adduced during formal proof hearing, it follows therefore that the sole issue for determination by the court is the quantum of damages payable to the Plaintiff, liability already settled at 100% against the Defendants by the entry of the interlocutory judgement.

In presupposing so, the Plaint relied on the Court of Appeal decision in Abdullahi Ibrahim Ahmed versus Lem Lem [2013] eKLR that to buttresses the proposition that:

“once interlocutory judgment is entered, and formal proof is directed, the issue of liability is resolved,” and “the issue to be determined at formal proof is quantum of damages assessment.”

15.   They also relied on the Court of Appeal decision in Peter Njoroge Kamau v Attorney General [2017] KECA 71 (KLR) where the Court observed that once an interlocutory judgment was regularly entered, it meant that there was judgment on liability and the only other step remaining was assessment of damages.

16.  On the strength of the foregoing precedence, I shall therefore not belabour on liability that has already been apportioned to the Defendants at 100% jointly and severally and proceed to consider the damages the Plaintiff is entitled to under various heads as follows;

IV. Quantum of Damages

  1. General Damages for Pain, Suffering and Loss of Amenities
  2. In submitting under this head, the Plaintiff relied on the amended Plaint dated 31st August 2023, which particularizes the Plaintiff’s injuries at Paragraph 10 as follows:

a) traumatic disarticulation of the right shoulder;

              b) penetrating injury to the right eye which led to the  enucleation of the eye;

              c) crushed right side of the face with broken pieces of the upper jaw; and

             d) liver laceration.

18.  To support the Plaintiff’s claim on the injuries sustained, the plaintiff produced the medical report of Dr. J.M. Muthuuri, in which he described the state of the Plaintiff at the time she was admitted at the Mombasa Hospital on 30th August 2011 as follows:

“She sustained the following injuries:

  1. Traumatic disarticulation of the right shoulder. The mangled arm was carried in a paper bag. There was a large open wound at the shoulder with pieces of broken bones and other soft tissues hanging around. She underwent a thorough emergency surgical toilet and the remaining tissues were used to create a flap to close the open wound.
  2. Penetrating injury to her right eye. The eye was lost and enucleated.
  3. Crushed right side of the face, with broken pieces of upper jaw in the wound. Thorough debridement was done followed by closure with the advancement flap from the neck and free graft from the abdominal wall.

On her admission, she was in a very poor state. She was in shock and pale. ...She is stabilizing in the intensive care unit.”

  1. In submitting on the general damages to be awarded to the Plaintiff, the Plaintiff’s counsel cited several cases guided by the trend of previous, recent, and comparable awards. In Barnabas v Ombati (Civil Appeal E43 of 2021) [2022] KEHC 12136 (KLR) (28 July 2022) (Judgment), the High Court, while referring to the landmark case of Stanley Maore v Geoffrey Mwenda noted as follows:

“The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR where the Court of Appeal held:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” (Emphasis added).”

  1. The Plaintiff’s counsel further submitted that the award of damages should reflect the gravity and nature of injuries as Justice Majanja (the Late) held in Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, as follows:

“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

  1. The Plaintiff submitted that the following decisions as outlined below are recent and comparable and reflect the injuries sustained by the Plaintiff herein and invited the Court to find persuasion in the same in determining an appropriate award;
  2. Mbaaru & Another v Kenya Bus Services Limited also known as Stage Coach Bus International & another (Civil Appeal 244 of 2013) [2024] KECA 432 (KLR) (26 April 2024) (Judgment) Tuiyott, Lesiit and Ngenye-Macharia JJA awarded the Appellant Kshs.6,200,000/= after holding that Kshs.900,000/= awarded by the trial court was not adequate for the injuries sustained by 1st appellant which were particularized as: head injury (cerebral concussion); unconsciousness for one month and thereafter confusion for another one month; multiple cuts and abrasions on the face; abrasion over the chest wall; fracture of the right collar bone (clavicle); crush injury to the right upper limb leading to amputation; and crush injury to the right lower limb leading to an above-knee amputation.
  3. James Maina Muriithi v My Beauty Transporters Limited, Timothy Kinuthia & Peter Njihia [2018] KEHC 4023 (KLR)- The plaintiff sustained the injuries of frictional burns over the lower abdomen, frictional buns on both thighs, crush injury right lower limb with eventual below knee amputation, crush injury left upper limb with eventual disarticulation and pains, blood loss and soft tissue injuries and was awarded general damages of Kshs 4,200,000/- for pain and suffering.
  4. Sofia Yusuf Kanyare v Ali Abdi Sabre & Another [2008] eKLR, The plaintiff was awarded Kshs 1,750,000/= for loss of right upper arm and Kshs.70,000/= for soft tissue injuries that healed.
  5. John Nkunja Mbati v Esther Muthomi Mburi [2017] eKLR) P.O. Otieno J, while citing Elizaphan Nyamu vs Ndai Kwa Mwagura, HCCC No. 45 of 1997 awarded Kshs 1,500,000.00 for traumatic amputation of right upper limb.
  6. Kariuki v Shakombo (Civil Appeal 127 of 2022) [2024] KEHC 4432 (KLR) (15 April 2024) (Judgment) Justice Kizito Magare upheld an award of Kshs 1,700,000/- having established that the amount was ordinate for injuries of: a deep cut to the left eyebrow involving the nasal bridge and conjunctiva, posttraumatic loss of vision to the left eye and diminished capacity to work. In arriving at the amount, the Judge relied on the case of Peter Oduor Shikuku -vs- Magimu Engineering and General Contractors Ltd and Another (2021) eKLR where the Plaintiff was awarded Ksh. 2,000,000/= for the loss of the left eye
  7. Anne Nyachomba Gitau & another v Paul Muigai Murigi [2019] eKLR -The High Court upheld the award of Kshs.600,000/- for extreme and severe craniofacial injuries, fractures of the jaw and fractures of facial bones as a result of an accident that occurred in 2006.
  8. St. Joseph Hospital Nyabondo v Nyambala (Civil Appeal 8 of 2020) [2023] KEHC 18976 (KLR) (21 June 2023) (Judgment) the Court awarded Kshs.700,000 for bilateral mandibular fractures, fractured left shoulder, deep cut wounds on the head and elbow, blood loss, soft tissue injuries, and physical and psychological pains.
  9. The Plaintiff’s counsel submitted that the Plaintiff sustained a disarticulating injury to her right shoulder, she lost her right eye, the right side of her face was crushed with broken pieces of the upper jaw and she suffered liver lacerations. Further, the Plaintiff underwent debridement followed by closure with the advancement flap from the neck and free graft from the abdominal wall. Indeed, it ought not to be lost to the court that the Plaintiff woke up in a hospital in Germany two weeks after the accident and had since then undergone 30 surgeries including having to undergo facial reconstruction surgeries as late as December 2024, 13 years after the accident. Lastly, on account of the said injuries, the Plaintiff’s life expectancy has greatly diminished.
  10. Taking into consideration the principles applied in awarding general damages, the injuries sustained by the Plaintiff and guided by the above authorities, the Plaintiff’s counsel impetrated this court to award the Plaintiff minimum general damages of at least Kshs.6,500,000/=, which is reasonable in the circumstances.
  11.  On the issue of general damages for pain and suffering, the Plaintiff is seeking Kshs.6,500,000.  I have considered the authorities relied on and I find them incomparable to the injuries in the instant case which are more severe than those in the cited cases.  I rely on the case of Philip Ondieki Masira v Kenya Power & Lighting Co. Ltd [2020] eKLR , Kshs.5,000,000 was awarded where the Plaintiff lost consciousness and he later learnt he was in a coma for 3 months at Siloam Hospital. The plaintiff was in Siloam Hospital for one and a half years.  Apart of his left foot was cut off with one toe on the right foot which was cut off.  From Siloam he was taken to Kericho Nursing Home and then transferred to Aga Khan Kisumu where he stayed for one month.  An X-ray was done and he was taken to theatre and one bone which was burnt was removed and skin grafting was done on both legs.
  12. Taking into account the lapse of time and inflation rate, I accordingly award the Plaintiff Kshs.6,000,000 in general damages for pain and suffer
  13. Special damages

32. The Plaintiff submitted that it is trite in law that not only should a claim for special damages be specially pleaded, but it is also incumbent upon the Plaintiff to prove it, and failure to prove disentitles a Plaintiff to the award sought. In the instant case, they submitted that the Plaintiff has specifically pleaded for an award of Kshs.68, 949,548.05 (439,785.36 EUR); which special damages were proved by way of exhibits in the form of medical, travel and translation expense receipts.

33.  At the formal proof hearing, the Plaintiff adduced Exhibits 4 – 20; Pages 6 – 150 (inclusive of translated documents from German) being proof of expenses incurred in the Course of treatment for the last 13 years. The said expenses include:

    i.  Obtaining a police abstract- Kshs 200

ii.  Payment invoice to Luitpold clinic dated 29/11/2011 – 819 Euros

  1. Payment invoice to Luitpold clinic dated 28/11/2011 – 2,586.15 Euros
  2. Payment receipt dated 13/6/2012- 9,000 Euros
  3. v. Payment invoice from Evangelisches Krankenhaus – 4,954 Euros
  4. Payment invoice from Honorarvorscheibung – 4,954 Euros
  5. Payment invoice from Stadtisches Klinikum Munchen- 28,072.71Euros
  6. Payment invoice from Pro. Dr. Med.univ.Ninkovic- 10,559.03 Euros
  7. Payment invoice from Pro. Dr. Med.univ.Ninkovic- 10,559.03 Euros
  8. Payment invoice from Pro. Dr. Med.univ.Ninkovic- 6,289.70 Euros
  9. Payment invoice from Pro. Dr. Med.univ.Ninkovic- 6,770.17 Euros
  10. Payment invoice from Labor Dr. Wisplinghoff – 51.98 Euros
  11. Payment Invoice from Klinikum Bogenhausen – 755.29Euros
  12. Payment Invoice from Hospital Bogenhausen –
  13. Payment Invoice from Prof. Dr. Med. Anselm Kampik-117.81 Euros
  14. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 849.87 Euros 8
  15. Payment Invoice from Unimed Abrechnunhhservice for Kliniken und Chefarzte – 669.45 Euros
  16. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 90.61 Euros
  17. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 76.00 Euros
  18. Payment Invoice from Just Tape It BV – 99.50 Euros
  19. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 117.46 Euros
  20. Payment Invoice from Prof. Dr. Med. Helge Topka – 220.32 Euros
  21. Payment Invoice from Dr. Med. Jochen Huverstuhl – 46.39 Euros
  22. Payment Invoice from Munich Municipal Hospital GmbH -85.68 Euros
  23. Payment receipt from Pohlig – 9,754.52 Euros
  24. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 776.58 Euros
  25. Payment Invoice from Hospital Schwabing – 139.67 Euros
  26. Payment Invoice from Hospital Schwabing – 86.76 Euros
  27. Payment Invoice from Unimed GmbH – 61.94 Euros
  28. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 491.82 Euros
  29. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 239.35 Euros
  30. Payment receipt from Dr. Sussan Rosenthal -59.23 Euros
  31. Payment invoice from Dr.med.A. Niebecker- 233.58 Euros
  32. Payment invoice from Dr. Sussan Rosenthal -89.64 Euros
  33. Payment invoice from Dr.med.A. Niebecker- 140.79 Euros
  34. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 109.79 Euros
  35. Payment Invoice from pvsbundigen – 94.79 Euros
  36. Payment Invoice from Dr. Staber & Kollegen – 91.80 Euros
  37. Payment Invoice from Dr. B. Schuster – 215.29 Euros
  38. Payment Invoice from Pohlig – 398.25 Euros
  39. Payment Invoice from Unimed Abrechnunhservice for Kliniken und Chefarzte – 425.14 Euros
  40. Payment receipt from Hospital Betriebsgesellschaft M.B.H. – 9,040 Euros
  41. Payment receipt from Milica Stevovic – 3,337.00 Euros
  42. Payment Invoice from Prof. Dr. Med.univ.Milomir Ninkovic – 104.10 Euros
  43. Payment Invoice from Prof. Dr. Med.univ.Milomir Ninkovic – 3,311.47 Euros
  44. Payment Invoice from unimed Klinikum Schwabing– 54.29 Euros
  45. Payment Invoice from Unimed Klinikum Schwabing – 591.12 Euros
  46. Payment Invoice from Arnold Greiner – 629.99 Euros
  47. Payment Invoice from Pohlig – 997.46 Euros
  48. Payment Invoice from Unimed Die Rechnungserstellubg erfolgt im Auftrag von Stadtisches Klinikum Munchen GmbH – 3,571.61 Euros l
  49. Payment Invoice from Unimed – 306.42 Euros
  50. Invoice from Pohlig – 24,283.55 Euros
  51. Payment Invoice from Prof. Dr. Med.univ.Milomir Ninkovic – 4,314.53 Euros
  52. Payment Invoice from Unimed- Michael Uwer – 104.10 Euros
  53. Payment Invoice from Unimed- Michael Uwer – 3,665.27 Euros
  54. Payment Invoice from Arnold Greiner – 885.00 Euros
  55. Payment Invoice from Tirol Kliniken – 155.82 Euros
  56. Payment Invoice from Tirol Kliniken – 389.55 Euros
  57. Payment Invoice from Kardiologische Praxis Innbruck – 410.00 Euros
  58. Payment Invoice from Tirol Kliniken – 402.78 Euros
  59. Payment Invoice from Kliniken der Universitat Munchen-237.52 Euros
  60. Payment Invoice from Kliniken der Universitat Munchen1,061.21 Euros
  61. Payment Invoice from Kliniken der Universitat Munchen8,221.18 Euros
  62. Payment Invoice from Kliniken der Universitat Munchen1,728.04 Euros
  63. Payment Invoice to Prof.Dr. med. Bernhard Bwisler- 376.77 Euros
  64. Payment Invoice from Tirol Kliniken – 81.60 Euros
  65. Payment Invoice from Tirol Kliniken – 122.40 Euros
  66. Invoice from Edwin Waswa Goethe Institut for translation of the Invoices from German to English - 872 Euros; and
  67. Obtaining motor vehicle search- Kshs. 500
  68.   On the foregoing, the Plaintiff has adduced proof of the expenses she has incurred due to the injuries sustained from the accident on account of the Defendants herein. The Plaintiff has had over 30 surgeries in Germany and Austria in the last 13 years and continues to incur medical expenses to sustain her life including facial reconstruction surgeries.
  69.   The Plaintiff invited this Court to consider the evidence of produced supporting the special damages sought of Kshs.68, 949,548.05 (439,785.36 EUR) and award the same.
  70.   This court having also perused through the documents presented by the Plaintiff in support of the special damages of Kshs.68,949,548.05 (439,785.36 EURO) and having confirmed that the same was specifically pleaded, the court awards the special damages as pleaded and proved.

V. Costs

  1. Costs follow events. The Plaintiff will have the costs of the suit plus interest at court rates.

IV. Disposition

  1. This court finds that the Plaintiff has proved her case against the Defendants on a balance of probabilities. I will make the following orders:
  2. Liability at 100% jointly and severally against the Defendants
  3. General Damages of Kshs.6,000,000/=
  4. Special Damages of Kshs.68,949,548.05 (439,785.36 EURO)
  5. Costs and interest at court rates.
  6. Orders accordingly.

JUDGEMENT DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS THIS 5TH DAY OF MARCH 2025

………………………..

NOEL I. ADAGI

JUDGE

    IRMA BEJDIC VS ROYAL STAR LIMITED AND LUKAS GIKUNDA MITONGA IRMA BEJDIC VS ROYAL STAR LIMITED AND LUKAS GIKUNDA MITONGA