The High Court has ordered a car owner and her driver to pay an unprecedented Sh44 million to a woman who suffered severe injuries from an accident 10 years ago.
Justice Hatari Waweru directed Lucy Wanja Mbaka and Mark Karani Mgandi to pay Ms Casey Adisa Marenge, 30, the money, excluding costs of the suit, for medical expenses, personal care and damages for the rest of her life.
“Courts ought to be more sensitive to the enormous physical suffering and mental anguish that must attend total paralysis of the body, particularly to a young person,” the Judge found.
Ms Marenge moved to High Court in 2005 seeking compensation for the injuries that she suffered in the accident on September 27, 2003 along Waiyaki Way in Nairobi which she attributed to negligence by the driver Mr Mgandi.
The vehicle was owned by Ms Mbaka.
“She will never again know the joys, little and big, of a full ordinary life — sitting, walking, running, sports, socialising, marriage, sex, children, travelling and driving,” Judge Waweru ruled while awarding Ms Marenge Sh7.5 million for pain, suffering and loss of amenities.
The Judge also awarded Sh640,000 for a customised computer, Sh750,000 for wheel chairs, Sh1.5 million for bed and mattresses, Sh7.78 million for drugs, Sh14.4 million for a care-giver and Sh240,000 for checkups.
She will get a further Sh4.32 million for loss of earnings since she was about to join college at the time of the accident and special damages of Sh7.7 million. The compensation is expected to support her for 24 years.
The case puts reckless drivers on notice as increased carnage on Kenyan roads has prompted policy makers to lobby for causing death through reckless driving to be criminalised just like murder.
At least 1,300 people died as a result of road accidents in the first five months of the year.
The driver of Umoinner bus that was involved in an accident with a train at Mutindwa in Nairobi is facing multiple counts of causing death by dangerous driving.
The owners of City to City bus that was involved in a Narok accident that caused deaths of more than 40 people are also fighting off charges of being negligent in a Narok court.
The case could set a new standard for compensation that will consider future earnings of an individual and expenses, hitting the insurance sector hard.
“I am alive to the need to keep general damages at manageable levels because of attendant consequences like raised cost of insurance,” Mr Waweru said.
The Judge said the payment for Ms Marenge would be reduced by 10 per cent for her “contributory negligence” in boarding a vehicle which was already overloaded.
The Judge said the owner of the vehicle, Lucy Wanja Mbaka, and the driver must carry the responsibility for the accident.
Ms Marenge told the Court that at one time the driver was speeding at 150kph per hour before he veered off the road, overturned and crashed. Two passengers died in the accident.
The case was not defended as the defendants did not attend trial. It is also not clear why the liability fell on the owner and the driver instead of an insurance company.
However, the vehicle with a capacity of five was carrying eight passengers at the time of the accident, a ground that the insurer could have used to reject claims.
Alternatively, the vehicle could have been having only third party insurance.
100 per cent disability
Commercial lawyer Mr Kamau Karori, however, said insurance is supposed to cover all passengers regardless of the number the vehicle is carrying beyond capacity.
Ms Marenge, who was 20 years old then, was critically injured in the accident and was first hospitalised at MP Shah Hospital before being flown to South Africa for further treatment at the Southern Cross Hospital in Cape Town.
The doctor who testified in court described her condition of being 100 per cent disability.