[2023] KEHC 25461 (KLR)

Afriken Impex Limited v Kamwara (Civil Appeal E573 of 2022) [2023] KEHC 25461 (KLR) (Civ) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25461 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E573 of 2022

JN Mulwa, J

November 16, 2023

Between

Afriken Impex Limited

Appellant

and

Peter Gitonga Kamwara

Respondent

(An appeal against the Judgment and Decree of the Chief Magistrates Court at Nairobi in CMCC No 1909 of 2014 delivered by Hon H M Nyaberi (SRM) on 30th June, 2022)

Judgment

1. By an Amended Plaint dated June 3, 2014 the respondent instituted a case at the lower court, Milimani CMCC No 1909 of 2014 against the appellant herein claiming general and special damages, costs of the suit and interest thereon, the claim arising from a road traffic accident that occurred on December 15, 2011 along Nairobi-Mombasa Road in Nairobi. It was pleaded that on the material day, the respondent was walking off the road when the appellant’s authorized servant, agent or driver negligently drove its motor vehicle registration number KBP xxxS causing it to lose control and knock the respondent down. As a result the respondent sustained severe injuries for which he held the appellant liable.

2. In its Amended Statement of Defense dated May 25, 2015, the appellant then the defendant averred that at the time of the alleged accident December 15, 2011, the said motor vehicle was in Mombasa in the Defendant’s showroom and not in Nairobi and therefore not involved in the alleged accident.

3. Upon full trial, the lower court held the appellant wholly liable for the accident and awarded the respondent Kshs 1,500,000/- for general damages, and Kshs 437,345/- for special damages plus costs and interest. Aggrieved by the decision, the appellant lodged the instant appeal by a Memorandum of Appeal dated July 22, 2022 in raising the following grounds:a.That the learned trial magistrate erred in law and in fact in finding the appellant herein 100% liable.b.That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s evidence.c.That the learned trial magistrate erred in law and in fact in failing to appreciate and consider that the appellant’s motor vehicle registration number KBP xxxS was not at all or in any way involved in the accident.d.That the learned trial magistrate erred in law and in fact in awarding an amount in general damages that was manifestly excessive given the nature of the injuries.e.That the learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions and authorities attached thereto wherein the plaintiff sustained comparable injuries to the respondent herein while assessing general damages.f.That the learned trial magistrate’s award was an erroneous estimate of the damages due in the particular case and was manifestly excessive.

4. The appellant prays that this appeal be allowed with costs and the judgment of the trial court be set aside and be substituted with an order dismissing the respondent's Suit.

5. The appellant’s case given by DW1 Atul Amrithal the Director of the appellant company is that the accident motor vehicle KBP xxxS was not along Mombasa Road in Nairobi on the alleged day of the accident as it was in a show room in Mombasa. That the said vehicle was sold to one Mr Singh in May 2012. That the said motor vehicle was impounded in Kisumu where the client who had bought it resides in. On cross examination, the witness stated that he does not keep records of the motor vehicle in the show room and that the vehicles leave once they are sold.

6. The respondent’s case was that the accident did take place on December 15, 2011 and he was hospitalized on the same. The accident motor vehicle was a Saloon car but did not see its colour. On re-examination the witness stated that he was not treated at Kenyatta National Hospital on December 14, 2011 and that the person who issued it factored the date wrongly.Upon the short evidence, parties filed their submissions.

Analysis And Determination 7. This court is the first appellate court. It is required to re-evaluate and re-analyze the entire evidence adduced before the trial court, draw its own conclusions bearing in mind that the judge never saw or F heard the witnesses testify; and taking into account that it is not bound to follow the findings of fact as found by the trial court- Selle v Associates Motor Boat Company [1968] EA 123. The court has examined the Record of Appeal and the grounds of appeal. It has also given due consideration to the parties’ respective submissions and authorities cited and flags only two issues for determination thus:a.Whether the trial magistrate erred in law and fact in holding the appellant wholly to blame for the accident.b.Whether the awards by the trial magistrate are excessively high as to invite the court to interfere with the same.

Liability 8. The general rule is that a trial court’s finding on liability should not be interfered with save in exceptional cases as it is an exercise of discretion. In Khambi andanother v Mahithi andanother [1968] EA 70, it was held thus:“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”

9. On cross-examination, DW1 stated that he does not keep records of motor vehicle in the go down. It is clear that the Appellant did not produce any form of evidence to indicate that indeed the said motor vehicle was at the go down on the day of the accident. The evidence by DW2 Richard Mariga the private investigator stated that he spoke to a witness who confirmed that indeed there was an accident but the car drove off and that he also visited the hospital where he saw the receipt dated December 14, 2011. He confirmed that the respondent was admitted from December 15, 2011 to March 13, 2012 and that he was at the causality as from 11:43 p.m and was admitted shortly and his scope was to verify the documents.

10. On the part of the respondents, the Police Officer PW1 testified that according to the Police abstract the investigations are pending and further on cross examination she also testified that she is not the investigation officer. On re-examination she confirmed that the accident occurred on December 15, 2011. PW2 could not also shed light on what really happened as he just informed the court that he did not see the vehicle and that it came from the front. On the issues of colour of the vehicle, the owner of the vehicle stated that the said vehicle is silver in colour, on the other hand the Respondent mentioned that the vehicle was white but at the time the victim saw the car it was dark and I think he was also unconscious and the two colours are not far fetched from each other. For this reason, in my opinion, the said motor vehicle was out on that fateful night, and the reason it fled after hitting the Respondent was because the owners of the said vehicle knew they lacked insurance and that there was a chance the car would have been returned to the showroom following the collision. In the case William Kabogo Gitau v George Thuo & 2others (2010) eKLR, the court held that“…. A case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place---- he has to establish that it is probable than not that the allegations that he made occurred…’’

11. In light of this, it is evident that there was an accident on December 15, 2011, as both the respondent and the private investigator the Appellant hired have attested to. He claimed to have verified the existence of the collision with a witness who was present, however the aforementioned car left the scene as soon as it struck the respondent. The investigator also demonstrated that the respondent was, in fact, treated and brought to the hospital on the same day. Furthermore, that a police abstract was produced which showed that indeed an accident took place involving the respondent’s motor vehicle.

12. That all the evidence that was adduced by the appellant was to the effect that an accident took place, the appellant was injured, the vehicle that knocked the appellant belonged to the respondent and that the respondent was injured and taken to hospital by good Samaritans after the appellant’s driver drove off after the accident.

13. The Police Abstract states that the Motor vehicle KBD xxxS that caused the accident belonged to the appellant that is African Impex Limited which was also confirmed with the Copy of Records and no evidence was adduced to dispute the documentary evidence thereof and neither was there an objection to the production of the Said Police Abstract Form duly filled by the Police as evidence before the trial court. The Court of Appeal in Joel Muga Opija v East African Sea Food Limited [2013] eKLR allowed an abstract as evidence and stated:“It is clear to us that there has been a move from the rigid position that was pronounced, albeit as obiter, in the Thuranira case. In any case in our view an exhibit is evidence and in this case, the appellant's evidence that the Police recorded the respondent as the owner of the vehicle and Ouma's evidence that he saw the vehicle with words to the effect that the owner was East African Sea Food were not seriously rebutted by the respondent who in the end never offered any evidence to challenge or even to counter that evidence. We think, with respect, that the learned Judge in failing to consider in depth the legal position in respect of what is required to prove ownership, erred on point of law on that aspect. We agree that the best way to prove ownership would be to produce to the court a document from the Registrar of Motor vehicles showing who the registered owner is, but when the abstract is not challenged and is produced in court without any objection, its contents cannot be later denied.” [emphasis added].

14. I therefore find no plausible reason to interfere with the trial court’s finding on liability. It is upheld upheld at 100% against the appellant.

Damages 15. As a general principle, the assessment of damages is a matter of the exercise of court discretion and as such, an appellate court will normally be slow to interfere with such discretion unless it is very necessary. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...”

16. Further, an award of damages for personal bodily injuries should be commensurate to the injuries suffered and comparable to those made in past similar cases. In Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR, Majanja J. stated thus:“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”

17. On the issue of general damages, the trial Court had awarded the respondent a sum of Kshs. 1,500,000/=, the appellant argued that the award was manifestly high and that he had urged the court to award the Respondent for Kshs. 800,000/= was adequate compensation.

18. At paragraph 5 of the Plaint, the respondent pleaded that as a result of the accident, he sustained the following injuries: Fracture of the left humerus, segmental fracture of the right femur and segmental fracture of the left femur. These injuries were duly corroborated by the medical report by Dr. Gisare. The appellant stated that it relied on recent authorities who had suffered similar injuries as the respondent. In the circumstances, the only issue that this court will concern itself with at this point is whether the trial court’s award of general damages is comparable to awards made in matters with comparable injuries.

19. In the case of Devna Pandit v Kennedy Otieno Obara &another [2016] eKLR where the plaintiff, who had sustained a fracture dislocation left hip with fracture head of femur, fracture left tibia comminuted and fracture right face/maxilla was awarded a sum of Kshs. 2,000,000/=. In Mwaura Muiruri v Suera Flowers Limited andanother NKU HCCC No. 189 of 2009, the plaintiff sustained multiple lacerations on the face, soft tissue injuries on the chest case, comminuted fractures of the right humerus upper and lower thirds of the tibia and compound double fractures of the right leg and upper 1/3 tibia fibula. He was awarded Kshs. 1,450,000/- as general damages for pain and suffering in 2014

20. Bearing the above authorities in mind, taking into account the salvage of inflation as an additional factor, the court finds that the trial court’s award of Kshs. 1,500,000/- for general damage was not excessive in the circumstances of the case and will not be disturbed.

21. On Special damages, the appellant submitted that the respondent provided 2 invoices of Kshs. 55,000 each and that the court to consider that invoices are not receipts. The court notes that the said invoices where endorsements such as the word “paid” on the invoice then would turn the status of the invoice into a receipt. In the case of Great Lakes Transport Company (U) Ltd –vs- Kenya Revenue Authority (2009) eKLR to canvas the argument that an invoice that had been endorsed by inclusion of the word “paid” would turn its status to a receipt. I will therefore not interfere with the trial court award on special damages.

22. In conclusion, the court finds that the appeal lacks merit and is hereby dismissed with costs to the respondent.Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 16TH DAY OF NOVEMBER 2023. JANET MULWAJUDGE