John Oluoch Otieno v Swan Carriers Limited [2016] KEHC 2851 (KLR)

Facts

The appellant filed a suit against the respondent for damages after being hit by the respondent's vehicle in an accident on 4th October 2010. The appellant claimed injuries including a fracture of the left medical malleolus bone, injury to the chest, injury on the right ankle joint with a cut wound, injury on the right knee with a cut wound, and a cut wound on the right leg. The appellant and the respondent agreed on the liability, with the respondent bearing 60% of the responsibility.

Issues

1. Whether the trial magistrate erred in dismissing the appellant's case on the ground of discrepancy between the injuries pleaded in the plaint and the evidence adduced by the appellant.
2. Whether the appellant's injuries were on the left leg or the right leg.

Reasoning

The court dismissed the case on the ground that the appellant had not proved his case on the balance of probabilities due to discrepancies between the injuries pleaded and the evidence adduced.

Outcome

The appeal is allowed, and the judgment of the subordinate court dismissing the suit is set aside.

Authorities cited