IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA DISTRICT REGISTRY

(AT ARUSHA)
CIVIL CASE NO. 14 OF 2016

MICHELLE L. GIGER................................................... 1st PLAINTIFF

KARL E. JOHNSON.........................................................2NPLAINTIFF
VERSUS
OJUKWU JOSEPH SIRIKWA................................. 1st DEFENDANT
CONRAD ELINGI................................................... 2nd DEFENDANT
THOMSON SAFARIS LIMITED.............................. 3rd DEFENDANT
MISSIONARY SPIRIT TRAVEL AND TOURS.........4TH DEFENDANT
PHOENIX OF TANZANIA ASSURANCE CO. LTD... 5th DEFENDANT
AON TANZANIA LIMITED.................................... 6th DEFENDANT

JUDGMENT

Last Order.............18/12/2020 &

Judgment delivered... 17/02/2020

GWAE, JUDGE

The plaintiffs, Dr. Michelle L. Sirikwa and KarL E. John who are
wife and husband respectively who involved in an accident on the 13th
September 2013 at 15: hrs at Ngorongoro crater at Sopa road area in
Tanzania. The plaintiffs are both Mexicans (American citizens) who visited
Tanzania for tours purposes and they used Motor Vehicle with registration
No. T.201 make Land Rover Station Wagon owned by the 3rd defendant,
Thomson Safari Limited and it was driven by the 1st defendant,
Ojukwu Joseph Sirikwa on that material date.
 The accident involved two motor vehicles, the 3rd defendant's motor
vehicle aforementioned and another motor vehicle with registration No. T.
*
497 ALU make Land Cruiser owned by the 4th defendant, Missionary Spirit
Travels and Tours and it was driven by the 2nd defendant, Conradi Eligi.
The 5th defendant and defendant named above are sued in the capacities
of insurance companies.
The Plaintiffs are claiming to have sustained serious injuries which
necessitated them to undergo medical treatments in various hospitals
including Fame Clinic at Karatu District in Tanzania, Nairobi-Kenya and in
their mother land. Following the sustained injuries, they are now claiming
before this court for payment of special and general damages against the
defendants in their different capacities for the alleged negligent and
reckless driving by the 1st defendant and 2nd defendant, the claims are as
follows;
a. An order of payment of special damages amounting to USD
497,000.12 OR Tshs. Tshs. 1,093,411,264/= that is USD 84,
221,92 being out of the pocket medical and related expenses,
(USD13, 685.29), loss of income (USD 258,114.53), Mileage
expenses (USD 478.38) and future lost income (USD 140.505.00)
b. An order for payment of general damages as may be assessed by
the court
c. Interest of 20 % on the decretal amount from the date when the
cause of action arose to the date of payment in full
d. Costs of this suit
e. Any other further relief (s) as may be deemed fit and just to grant
♦
by the court

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 The defendants through their respective written statements of
defence denied liability. The 1st, 3rd and 6th defendant refuted the plaintiffs'
claims by stating that the accident was caused by the 2nd defendant
whereas the 2nd and 4th defendant contended that the accident was caused
by the 1st defendant's high speed. The defendants except 5th defendant
also raised the defence the defence of contributory negligence on the part
of the plaintiffs for not fastening the seat belts. The 5th defendant denied
liability however he admitted that the 4th defendants' motor vehicle was
insured by him at the time the accident occurred that is on 13.09.2013
Before commencement of the trial of the plaintiffs' suit, the following
issues for determination were framed after consultation with the parties'
advocates
1. Whether the accident in question was caused by negligent
and recklessness driving of the 1st and 2nd defendant.
2. Whether as a result of the accident the plaintiffs suffered
severe injuries
3. Whether the 1st and 3rd defendants were negligent and
contributed to the plaintiffs' injuries by failing to have a policy
requiring the fastening of seat belt.
4. Whether the plaintiff contributed to the negligence and to
what extent.
5. Whether the plaintiff suffered the pleaded special damages.
6. To what reliefs are the parties entitled to
At the hearing of this civil suit, the plaintiffs and defendants were
enjoying legal services from Mr. John Materu, the learned advocate
being assisted by Mr.- Ombeni Kimaro (adv) represented both plaintiffs,

3
Mr. E. Swai (adv) appeared for the 1st, 3rd and 6th defendant, Mr. C.
Ngalo represented the 2nd and 4th defendant whereas the 5th defendant
was represented by Mr. Adam Jabry assisted by advocate Mapembe.
‘ In establishing their case, the 1st and 2nd plaintiff have been able to
appear as the PW1 and PW2 respectively and managed to summon other
witnesses in support of the suit, namely; E. 8311 CPL. Mathias Joseph, a
traffic police officer (PW3), Frank Lyn Artress, a medical doctor who
attended the plaintiffs at Fame Hospital at Karatu and appeared in court as
PW4 and John Mosses Ngowo, a driver and tour guide (PW5).
The plaintiffs have further tendered a total of twelve (13) exhibits
which were duly admitted by the court during trial by the trial predecessor
(Hon. Maige, J), these are; a booklet containing necessary information
issued by the 3rd defendant (P-l), photographs allegedly taken at the
scene of the accident (P-2), copies of receipts, invoices, credit and cards
statements from different service providers (P-3), statements from four
insurance companies together with covering summary reports (P-4),
copies of the 1st plaintiff's wage and tax statements and a summary report
(P-5), receipts in respect of the plaintiffs' trips to doctors, physiotherapists
and hospitals and costs involved (P-6), plaintiffs' demand notices
addressed to the 5th defendant (P-7) as well as to the 6th defendant and
dispatch book (P-8).
The plaintiffs have also produced medical reports from on call
international, receipts and invoices which were admitted as exhibit P-9,
medical report from Mexico Orthopedists for the 2nd plaintiff (P-10) and
USA Medical reports for the 1st plaintiff ( P ll) , a calculation of hours lost

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by the 2nd palintiff (P-12) and inspection report in respect of the 3rd
defendant motor vehicle (P-13).
On the other hand, the defendants during their defence summoned
their witnesses except the 5th defendant who did not summon any witness.
The 1st defendant (DW1), Sharon Shangiwi for the 3rd defendant (DW2)
Gabriel Noel, an employee of the 6th defendant, 2nd defendant (DW4) and
Evod Edwad, principal officer of the 4th defendant who appeared as the
DW5
The trial of this particular case was heard by two different judges,
the former being judge Maige (trial predecessor) and me (judge Gwae-
trial successor). Plaintiffs' evidence was recorded by my fellow judge who
also recorded the testimony of the 1st defence witness (1st defendant's
testimony-DWl) and I recorded the testimonies of the defence witnesses
No.2 up to 5 (DW2-DW5).
The evidence of the plaintiffs is briefly to the effect that, the 1st and
2nd plaintiff were chief executive officer of Central for Civil Violence and
senior practicing lawyer in USA respectively, who September 2013 had a
tour in Tanzania at Ngorongoro and Serengeti National Park using a vehicle
belonging to the third defendant, speedily driven by the 1st defendant and
that while heading to Ngorongoro crater, the 4th defendant's motor vehicle
which was driven by the 2nd defendant at the high speed knocked the 1st
defendant's car, the plaintiffs who were sitting immediately behind the
drivers were thrown away, the plaintiffs' left hand arm was seriously
damaged three fingers removed and their left shoulders were damaged
too. Both plaintiffs further testified that the damage caused is permanent
despite the medications received by them.

5
 Following the injuries sustained, the 1st plaintiff was not able to
resume to work for more than two (2) months following the accident while
the 2nd plaintiff testified that his left hand shakes as a result of accident
affecting his legal professional seriously as he did not work for a month
and thereafter he could work for only two hours, the condition which
compelled him to use other attorneys to attend his clients as he could not
either take notes or work for a longer hours. The 2nd plaintiff further added
that he is not potent as he used to be before the accident.
The plaintiffs' evidence is also to the effect that, following the
permanent disfigurements and pains they could not do works which they
previously did for about two months as a result they paid the works done
such as cooking, cleaning, laundering, shopping and taking care of their
gardens and dogs. Both plaintiffs went on testifying in common that the
3rd defendant's driver (1st defendant) did not inform the passengers of
necessity of the use of seat belt due to the roughness of the road
adding that he ought to have at least warned them that, they were going
through a dangerous road.
It was further adduced by the plaintiffs that they incurred expenses
from their own pockets due to the fact that, there are medicines not
covered by insurance companies making a total of USD 13,656 USD and
that four different Insurance Companies which paid the costs involved in
the medication and related costs amounting to USD 24,452. which would
be reimbursed to the insurers if granted.
The 1st and 2nd plaintiff also testified that they suffered loss of income
in the tune of USD 17,281 and USD 237, 402 respectively. The plaintiffs
have also testified that the defendants did not reply to their demand notice

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(P7) that is why they instituted this civil suit claiming a total of 293,371
USD being specific damages, general damages and costs of the case.
The plaintiffs' evidence that the 4th motor vehicle was the one which
caused the accident was corroborated by that of the police officer (PW3)
who visited the scene of crime immediately after the occurrence of the
accident at Sopa lodge-Ngorongoro. He testified that the 3rd defendant's
car was seriously damaged as opposed to the 4th defendant's motor vehicle
which caused the accident as it shifted its sight and went to the extreme
right side
The doctor (PW4) who initially attended the plaintiffs at Karatu
Hospital gave his expert opinion that the 2nd plaintiff had sustained more
serious injuries than his wife (1st plaintiff) and that he will have a disability
in the rest of his life and that both may need additional surgery in future.
Another important piece of evidence to the effect that the 4th
defendant's driver (2nd defendant) was negligently and recklessly driving
the motor vehicle as he over took at the corner was adduced by the PW5
who said to have warned him (2nd defendant) not to overtake but the 2nd
defendant ignored. The PW5 also said that he personally saw the victims at
the scene of the accident who were male and female who were then
rescued by the 3rd defendant's employees.
On the other hand, the 1st defendant admittedly stated that while he
was on safari from Serengeti to Ngorongoro at view point way to Sopa
road at the corner and found two cars pulling each other his motor vehicle
was knocked by another motor vehicle which overtook without precaution
at the corner. The DW1 contended he was not negligent except the
plaintiffs who did *not fasten the seat belt despite the fact that he briefed

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all the five passengers adding that the passengers who were not injured
had their belts fastened.
4

Admittedly, the DW2 who appeared for the 3rd defendant stated that
the 3rd defendant's car was knocked by the 4th defendant's motor vehicle at
Ngorongoro area and that he did not make a reply to the plaintiffs' demand
notice however he seriously lamented that those who sustained injuries in
the accident did not fasten their seat belts, hence failure to exercise due
diligence and that there was one who had some health problem prior to
the accident. According to the DW2, the 1st defendant was not negligent.
In his defence through DW3, the 6th defendant testified that he is
wrongly sued in this court since he is a mere insurance broker to the 3rd
defendant
The 2nd defendant (DW4), in his defence, has contended that his
motor vehicle was mechanically fit and had valid insurance cover by the 5th
defendant and that his passengers did not sustain injuries as they had
have fastened the seat belts. He added that he was not negligent but the
accident in question occurred due to rough road and muds. He however
admitted to have overtaken the 3rd defendant's motor vehicle but he did
not know if there was no corner during overtaking and that he diligently
overtook.
Last defence witness was DW5, Evod, the 4th defendant who
admitted to have employed the 2nd defendant as a driver but he contended
that the 2nd defendant is a competent driver of the motor vehicle registered
as T. 497 ALU Make Toyota Land Cruiser. He added that he furnished the
insurer, Phoenix*about the accident and was told that the 5th defendant
could work on the accident.
 The parties' advocates, after closure of the parties' case, sought and
obtained the court's leave to file their closing submissions which I am going
to consider the same where necessary.
This is what in a nut transpired during plaintiffs' case and defence, I
have examined the parties' pleadings and their respective evidence and I
have come up with an observation that the following facts are not in
dispute; that the accident occurred at Sopa Road at Ngorongoro area
where by the 3rd and 4th defendant's motor vehicles driven by the 1st and
2nd defendant respectively collided, that, the plaintiffs did not fasten their
seat belts on the material date and time of the occurrence of the accident.
It is further no doubt that the plaintiffs were attended by the 3rd
defendant's employees at the scene of the accident and they were sent to
Karatu for further treatment (see testimonies of plaintiffs, PW5, DW1, and
DW4). It is also is not disputed that the 2nd defendant overtook the motor
vehicle driven by the 1st defendant.
Having clearly demonstrated facts that are not in dispute, it is now
for determination of the issues framed and indicated herein above.
Starting with the 1st issue, "whether the accident in question
was caused by negligent and recklessness driving of the 1st and
2nd defendant', considering the evidence on record, I am convinced that
the 1st defendant was not negligent and reckless as was the case by the 2nd
defendant. Though the 1st plaintiff testified that both drivers were at high
rate of speed but the PW5 and PW3 have specifically established that, it
was the 2nd defendant who did not take precaution while overtaking and
eventually his motor vehicle went extremely to the right side thereby
causing coalition £nd subsequent serious damage to the 3rd defendant's

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motor vehicle (See DW4's answers when cross examined "It was the motor
vehicle driven by me which went off of its sight" a See also exhibit P13
where damage in the 3rd defendant's car is indicated. This piece of
evidence is also supported by the 1st defendant's testimony who testified
that the cause of the accident was the negligent overtaking by the car with
Registration T.497 ALU at the corner.
The contention by the 2nd defendant that, the accident was inevitable
due to the fact that the road was rough and presence of mud and that he
was not negligent carries less weight than that of the PW1, PW2 PW3 and
PW5 and indeed closely assessing the credibility of the evidence adduced
by the DW1 is very minimal and taking into account that proof in civil case
is on the balance of probabilities as was rightly stressed in Siraj Din v. Ali
Mohamed Khan [1957] 1 EA 25, where standard of proof in civil cases
was interpreted to be and I quote:
"The quantum of proof ordinarily required in civil litigation is
not such as resolves all doubt whatsoever but such as
establishes a preponderance of probability in favour of one
party or the other".
In our instant suit, I am therefore satisfied that the 2nd defendant
was negligent and recklessly driving on the material date and at particular
time by overtaking without taking the requisite precaution as a result his
car knocked the 3rd defendant's motor vehicle.
In the 2nd issue, "whether as a result of the accident the
plaintiffs suffered severe injuries", the oral testimonies of the plaintiffs
supported by that of the PW4 and various documents tendered and
♦
admitted by the plaintiffs and court during trial respectively, for example

10
receipts from New Mexico Orthopaedics ( P ll) , P4, Insurance Payments
receipts in respect of the motor cars' collision at hand (P4 and P10). The
testimony by the 1st defendant that there no person injured nor was any
passenger given first aid is found to have been tainted by ill motive and
therefore not worthy of belief.
In the case of Elizabert Jeremiah Benedict v. Benedict Antony
and Amiry Ally Kishindo (1980) TLR 68, it was held and I quote;
"I accept all the evidence and therefore find on the first issue
that, the plaintiff sustained a fracture conalyle RT, Tobia
involving the knee and suffered and continue to suffer, pain
and discomforts"
When I carefully assess the plaintiffs' evidence, it is glaringly adduced that
both sustained serious injuries for easy of reference the testimony given by
the 2nd plaintiff (PW2) is hereby reproduced for the sake of clarity;
"I cannot reach to my belt. My left hand fingers were broken
down. It affected my work. I did not work for a month. I could
only work 2 hours per hour though I have some clients. I have to
make use of other attorneys. I cannot type on my right hand. I
could not handle papers. I could not write because my right hand
was so injured. I could not take notes. I was to hire another
attorney therefor. I could not think properly. I remained as such
for quite a long time. I have not been able to return to the same
position.
Without much ado, I am legally justified to find that the plaintiffs'
case as far as the 2nd issue is concern to have been sufficiently established
without any shadow of doubt that, the plaintiffs suffered severe injuries,

li
permanent disfigurement and at the scene of the accident and future pains
and psychological torture. According to the testimonies of the plaintiffs,
PW4 and documents tendered for evidential value, it goes without saying
that the plaintiffs got involved in the motor vehicles accident and suffered
injuries.
As to the 3rd issue, whether the 1st defendant and 3rd defendant
were negligent and contributed to the plaintiffs' injuries by failing
to have a policy requiring the fastening of seat belt. According to
the evidence accused by the DW1 which is to the effect that the plaintiffs
were given briefings, requirement of fastening the seat belts inclusive while
the plaintiffs strongly testified that, the 3rd booklet titled "Thomson Travels
Tips" (P-l) supplied to them by the 3rd defendant had none of the policy or
items therein which provides for mandatory requirement for fastening seat
belts adding that they were not warned of a requirement of fastening the
seat belts (See testimony of the PW1-" We received no information about
the use of seat belt"). The 3rd defendant's failure to indicate in his booklet
(P-l) the necessity fastening seat belts has also no room of excuse.
As an experienced driver and a tour guide at the same time, to my
firm view, was supposed to either remind and or warn the passengers of
the necessity of having seat belt fastened and danger of failure to fasten
the seat belts. The failure by the plaintiffs to fasten seat belt or the fact
that to fasten seat belts by a passenger is the legal requirement in
Tanzania and other jurisdictions including Mexico does not, to my
established view, absolutely discharge the 1st defendant from liability as he
had a legal duty of care to his passengers at least to remind them of the

12
importance of fastening seat belts considering the fact they were not
familiar with our roads.
I have also taken the view that, since the 1st defendant is an
employee of the 3rd defendant, it follows therefore the 3rd defendant is
vicariously liable for the 1st defendant's omission to remind or warn or give
briefings to the passengers. This position was correctly emphasized by the
Court of Appeal of Tanzania in Lazaro v Mgomera [1986-1989] 1 EA
302, where it was stated;
"An employer is vicariously liable if his servant commits a tort in
the course and within the scope of his employment. This does
not absolve the liability of the servant but only means that the
employer is also liable as the tort was committed when the
servant was supposed to be acting in place of or for the
employer, whose act it becomes".
It is in the light of the above judicial decision, the 3rd defendant is
also held responsible as the case for the 1st defendant. The 3rd issue is
therefore answered in affirmative.
Regarding the fourth issue, ''whether the plaintiff contributed to
the negligence and to what extent", it is found to be the concern of
the defendants (1st defendant, 2nd defendant, 3rd and 4th defendant that,
the plaintiffs were negligent for their failure to fasten the seat belts as
required by the law and therefore they had contributed to their injuries
since both national and international laws do impose such obligation on the
part of motor vehicles' passengers to fasten seat belts. The plaintiffs are
therefore presumed to have known or ought to have known that they were

13
obliged to fasten seat belts considering the fact that they are also qualified
drivers.
In order to be safer in determining this issue, it is apposite to have
part of answers given by the 1st defendant when cross examined by the
Advocate Swai for the 1st, 3rd and 6th defendant as herein under;
"I am not necessarily conversant with all roads I travel through. I
own a car. Seat belt is used for protection and safety. I do not
need a law to remind me of the use of it. I am from New Mexico
USA. It was necessary for me to be reminded of the seat belt use.
Yes, the first defendant was driving too fast. I cannot know how
much miles per hour. I do not know what should be the normal
speed. I did not warn the driver on the speed. We were from Old
Viegorge to Ngorogoro Crater. I cannot know the distance from
the scene of the accident to the destination. They told us that
they were rushing to the place before it became dark".
Looking at the evidence of both sides including the above quoted
testimony it sounds to me clearly that the plaintiffs owe duty to ensure that
seat belts were fastened as required. The plaintiffs to my considered view
cannot not therefore escape from being liable for contributing the injuries
so caused to them. Had the plaintiffs fastened the seat belts the extent of
injuries would have obviously been prevented or reduced to a certain
degree considering the fact that their fellow tourists had not been injurred.
Since it is evidently clear that the 3rd defendant had no policy in his
booklet (P-l) requiring passengers to fasten the seat belts and since the
collision caused by an act of the 2nd defendant of overtaking at the corner
and since the plaintiffs had no control of the accident as well as the act of

14
the 1st defendant of not warning or reminding the plaintiffs to fasten the
seat belt, it is my view therefore that plaintiffs have contributed the
accident of their personal injuries to extent of 33.30% (1/3).
Last issue but one (fourth), "whether the plaintiff suffered the
pleaded special damages", it is the position of the law that specific
damages must be specifically pleaded and strictly proved. Thus a litigant
claiming under specific damages must ensure that such claim is specifically
pleaded in a plaint and he or she has to strictly prove the same during trial,
I am guided by a decision in Registrar of Buildings v. Bwogi [1986—
1989] 1 EA 487, Court of Appeal Tanzania sitting at its main Registry at
Dar es salaam held among other things that:-

"It is trite law that special damages cannot be recovered unless

specifically pleaded and specifically proved. It is thus not fair for the
trial court to award compensation for loss not specifically alleged in
the pleadings".

See also Zuberi Ugustino v. Anicet Mugabe (1992) TLR 3,

Maritim and another v Anjere [1990-1994] 1 EA 312 (CAT) and Bolag
Hutchson (1950) A.C at 515 and Masolele General Agencies vs.
African Inland Church Tanzania (1994) TLR 192

In determining this issue, I shall pay a look at each item of claimed

specific damages by the plaintiffs as claimed or pleaded in the plaint visa
viz evidence adduced during trial.

Firstly, plaintiffs' claims on the USD 13,685.29 being out pocket

medical and related expenses, this type of the claim has been orally and

15
documentarily established by the plaintiffs and by the exhibit P3
establishing payments made by the plaintiffs for the services rendered to
them from 13/9/2013 to 16th June 2014 making a total of USD 13,265.54
and I have Considerably paid a close assessment of a bundle of documents
tended and admitted by the court and found no doubt to their genuiness.
Hence they were properly admitted in evidence. This amount of money
claimed is thus found to have been proved to the required standard.

Secondly, the plaintiffs' claim of USD 84,221.91 being medical

expenses paid by the plaintiffs' insurers. This claim has been proved both
orally and through tendering statements of four Insurance Companies
(PE4) which were received by the court without objection from the
defendants' counsel. However the plaintiffs during hearing merely stated
that they will required to reimburse USD 24,452 instead of the USD
84,221.91. Thus amount recoverable and ought to be reimbursed to the
Insurance Companies is USD 24,452 collectable by the said Insurance
Companies namely; United Health Care Insurance Company (USD),
Presbyterian Insurance Company, New Mexico Orthopaedic Assoc
and Medicare Insurance since the plaintiffs don't have a letter of
subrogation.

Thirdly, USD 254,783.61 being the plaintiffs' lost income, the

plaintiffs were able to establish that they lost income during which they
were undergoing medication, particularly for the 2nd plaintiff. It is however
doubtful if the 1st plaintiff is entitled to such relief since it is lucidly clear
that she was being paid he monthly salary even when she did not report at

16
work place and work as depicted on her testimony reproduced herein
under;

"The miss of my hours is reflected in the document attached in

the wage statement. There is no evidence from my employer to
the effect of deduction of my salary"
The 1st plaintiff's claim on the loss of income is hereby dismissed and
that of the 2nd plaintiff is reduced to 160,000.00 out of USD 237,402.00
since there is no specific and constant earning by him as legal practicing
lawyer.
Fourthly, USD 478.37 being accident related mileage expenses,
having looked at the oral evidence given by the plaintiffs and the exhibit
P6 being transports expenses and physiotherapies expenses. I do not see
any reason to hold that the claim is not proven by the plaintiffs. It is
granted as prayed.
The plaintiffs are therefore entitled to special damages in the tune of
USD 174,163. 66 being special damages - 174,163.66 x l/6 (contributory
negligence) = USD 145,136.38
Coming to the plaintiffs on general damage which is at the discretion
of the court, in this case, discretion should be exercised judicially. I have
taken into account of the injuries sustained by the plaintiffs, pains
experienced by them, permanents maims, the defendants' inaction to the
victims immediately after the occurrence of the accident to date despite
the fact that they were aware of the same. In Tanzania Saruji
Corporation v. African Marble Co Ltd [2002] 2 EA 613, Court of Appeal
of Tanzania had these to say as far as general damages is concern;

17
 "General damages are such as the law will presume to direct,
natural or probable consequence of the act complained of"
In instant case, I think it is prudent and fair in the circumstances of
the case if the plaintiffs are awarded USD 90,000 as I do hereby do minus
his contributory negligence (USD 15, 000,) award and interest on the
decretal sum be 10 % from the date of the date when the cause of auction
arose to the date of satisfaction of decree
Last but not least, to what reliefs are the parties entitled to,
I have however looked at the extent of contributions of the accident by the
parties and subsequent injuries and social and economic difficulties
experienced by the plaintiffs. To my view, each party has his or her
contribution (s) to the accident and its consequences. As earlier explained
the plaintiffs have contributory negligence to the tune of 1/6 (16.67%) of
whatever is assessed by the court while the 1st defendant and 3rd
defendant are found to have contributed 16.67%-l/6 of the injuries and
loss sustained by the plaintiffs, 2nddefendant (the driver who caused the
accident by overtaking at the corner) and 4th defendant (owner of the
motor vehicle which seriously knocked the 3rd defendant's motor vehicle)
are found liable in the decretal sum at the rate of 1/3 is equal to 33.33%
equally the 5th and 6th defendant 1/3=33.33%. I have found the 6th
defendant liable as no evidence cogent to support his assertion that he was
a mere insurance broker and not an Insurance Company.
Having found as hereinabove the plaintiffs are therefore entitled to
the following reliefs after deduction of their contributory negligence
(16.67%)
a. Special damages USD 145,136.38

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 b. General damages USD 90, 000,00
c. Interest on the decretal sum that is USD 145,136.38 +USD
90,000= USD 235,200 at the rate of 10% from the time the
cause of action arose to the date of full satisfaction of the
decree minus their contributor negligence (16.67%)
d. Costs of the suit minus plaintiffs' contributory negligence
Following the entitlements to the plaintiffs as herein above, the
defendants are therefore liable to their extent of their contributions to the
accident pursuant to Order 1 Rule 4 (b) of the Civil Procedure Code Cap 33
Revised Edition. 2002, their liabilities are as follows;
a. The 1st and 3rd defendant are jointly and severally liable to pay
USD 235,200 X 1/6=USSD 39,189.40 being special damages
+15,000 being general damages =USD 54,189.40
b. The 2nd and 4th defendant are jointly and severally liable to pay
the plaintiffs USD 235,136 X 1/3 being special damages =USD
78,378.79+ USD 30, 000 being general damages=108,378.79
c. The 4th and 5th defendant are jointly and severally liable to pay
the plaintiffs the sum of USD 235,200X1/3 being special
damages=USD 78,400 + 30, 000 being general damages
=108, 378.79
d. The defendants shall pay interest on the decretal sum as per a-
c above at the rate of 10% from the date when the cause of
action arose to the payment of decree in full minus plaintiffs'
contributory negligence
e. Costs of the case as per rate ordered above (a-c) minus
plaintiffs' contributory negligence

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 It is so ordered

M.R. GWAE
JUDG
17/02/2020

Right Of appeal tp the Court of Appeal fully explained

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17/ 02/2020

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