• Muthee moved to court and, claimed special and general damages from the car owner—Geoffrey Kathuri Mbugi.
• The accused, however, denied the accusations, saying his car was being held at Siakago police station after it was involved in an accident the previous day.
At around 9 pm on July 25, 2018, Jonathan Mugendi Muthee was involved in a road accident along Embu-Kiritiri road, causing a compound fracture to his left lower leg.
According to Cleveland Clinic, a compound fracture is a break or crack in the bone that is visible through the skin - in this case, the lower part of the leg.
Muthee was walking off the road when a car lost control and hit him.
He moved to court and, claimed a special of Sh7,430 and general damages from the car owner—Geoffrey Kathuri Mbugi.
Mbugi, however, denied the accusations, saying his car was being held at Siakago police station after it was involved in an accident the previous day.
The court heard that Mbugi's car was impounded on July 24, and released at 4:40 pm on July 25.
Owing to the damages caused in the earlier accident, the car was taken to the garage where it stayed for seven days.
This, Mbugi said, was evidence that his car could not have hit Muthee.
He termed the suit as malicious, frivolous and aimed at imposing blame on him for an accident he knew nothing about.
A witness who was on a motorcycle said he saw the car, with the number plate 'KCM', overtaking him shortly before the accident.
When he reached the scene of the accident, he heard people talking about it and knew it to be the car that had passed him.
He also added that no other vehicle had overtaken him until he reached the scene.
Mbugi was found liable and the court ordered that he pays general damages of Sh700,000, special damages of Sh7,430, costs and interest at court rates.
He, however, appealed arguing that the magistrate was at fault in finding that it was his car that had caused the accident.
Mbugi claimed the witness did not see the accident, but rather a car that overtook him.
He also argued that the order to pay Sh707,430 damages was an error and that his statement on where his car was, was ignored.
In his written submission to the High Court in Embu, Muthee said when it was booked for inspection, the car that hit him showed pre-accident defects on the headlamps.
It was booked at around 10 pm on July 25.
He also said while at the trial court, Mbugi had not argued against the testimony of the witness who saw the car prior to the accident and also confirmed that someone else had driven his car that night at around 8:50 pm.
Muthee noted that the court that the testimony given by Mbugi was contradictory, finding fault with it.
Weighing the issues raised on appeal, Judge Lucy Njuguna found that even though the witness did see the accident happen, he identified the car as he was trailing it with his motorcycle.
"In my view, the award of Sh700,000 in general damages for pain and suffering is not inordinately high or low but is within the range of award by previous courts, and factoring in economic servitude," the judge said on the issues of damages.
She also found that the amount ordered for special damages was well-proven.
"Regarding special damages, I have perused the trial court file and I find that the sum of Sh7,430 has been well proven and receipts provided."
Consequently, the appeal was dismissed and the trial court's decision was upheld.