The family of a boy who caused an accident while with his then girlfriend over a decade ago which left her on crutches has been ordered to pay her Sh 21.7 M in damages.
In the case, Charlene Kuria who is the victim sued her ex-boyfriend Simon Gitumbirua and his father Geoffrey Gitu.
Charlene who was 21 years old was in the company of Simon her then boyfriend at the time of the accident in 2012 and he was driving his father’s car that why she sued his father and him.
The accident happened on October 16 2012 along Forest Road and thereafter Charlene who was a first-year dental surgery student got injuries that left her on crutches needing specialised care.
According to court documents, Gitu and his son agreed to 90 percent liability for the accident and Charlene agreed to 10 percent liability.
The Court of appeal on Friday ordered Gitu and his son to pay her Sh 21.7 M in damages which is a reduction from the high court’s damages which had ordered them to pay her Sh 34 M.
Gitu had appealed the damages awarded to Charlene by the high court telling the appellate court that the judge erred in calculating the damages.
Justice Hannah Okwengu, Mohammed Warsame and John Mativo allowed their appeal but only setting side two awards which reduced the damages from Sh 34 M to Sh 21 M.
“The upshot of the above is that we allow this appeal, only to the limited extent of setting aside the awards made by the trial Judge for cost of future medical care and loss of future diminished earning capacity and substituting thereto an award of Sh 1,581,180 and Sh 10,800,000 respectively,” the court ruled.
The judges said that from records it was apparent that contrary to the fear expressed by Dr. Jacinta Maina in her medical report that Charlene’s injuries would cause ‘permanent disability as well as paralysis of the lower limbs’, Charlene’s condition kept on improving.
They also noted that 2 years after the accident, she was able to go back to school and was even been able to complete her 5 years training of becoming a dental surgeon.
The court further ruled that much as Charlene needed medical care and medication for pain management and nerve rehabilitation, it was anticipated that her condition would continue improving.
“In the absence of evidence regarding the period required for the medical care, the learned Judge ought to have adopted a reasonable period necessary for care and recuperation. In our view, a maximum period of 10 years would suffice,” the court ruled.
The high court judge had calculated her loss of future using 30 years but the court of appeal has reduced it to 10 years.
The damages awarded by the appeal court are as follows general damages Sh 5 M, special damages Sh 5.6 M, cost of future medical care Sh 1.5 M, loss of future and diminished earning capacity Sh10.8 M and House help Sh 1 M.
The total award is Sh 24.1 but its less 10 percent from Charlene’s liability making it Sh 21.7 M.
