[2025] KEHC 2114 (KLR)

AIC Litein Cottage Hospital v Cheruiyot & another (Civil Appeal E001 of 2023) [2025] KEHC 2114 (KLR) (20 February 2025) (Judgment)

Neutral citation: [2025] KEHC 2114 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E001 of 2023

JK Ng'arng'ar, J

February 20, 2025

Between

AIC Litein Cottage Hospital

Appellant

and

Priscilla Cheruiyot

1st Respondent

Charles K. Rotich

2nd Respondent

(Being an Appeal from the Judgment of the Senior Resident Magistrate, Omwange J. in at the Magistrate’s Court at Sotik, Civil Suit Number E29 of 2020)

Judgment

1. In the trial court, the 1st Respondent (then Plaintiff) sued the Appellant (then Defendant) for general and special damages arising out of a road which occurred on 16th June 2018 at Koiwa along Litein-Sotik road. The 1st Respondent stated that she was a passenger in motor vehicle registration number KBB 436A when they were hit by motor vehicle registration number KAA 124A was to blame for causing the accident and the same vehicle belonged to the Appellant. That as a result of the accident she suffered injuries.

2. On the other hand, the Appellant denied causing the accident. They stated that they had sold the motor vehicle registration number KAA 124 to the 2nd Respondent and were not in possession or control of the said vehicle at the time of the accident.

3. In its Judgment dated 21st December 2022, the trial court found that the driver of motor vehicle registration number KAA 124 100% liable for causing the accident. The court further awarded the 1st Respondent Kshs 900,000/= as general damages and Kshs 176,540/= as special damages and stated that the 2nd Respondent should indemnify the Appellant.

4. Being aggrieved with the Judgment of the trial court, the Appellant filed its Memorandum of Appeal dated 10th January 2023 appealing against whole Judgement and relied on the following grounds:-i.That the learned Magistrate erred in law and fact in awarding the 1st Respondent special damages which were not pleaded or proved.ii.That the learned Magistrate erred in law and fact in disregarding precedent and assessing general damages at Kshs 900,000/=.iii.That the learned Magistrate erred in law and fact in finding the Appellant liable for the accident while disregarding the liability of the 2nd Respondent.iv.That the learned Magistrate erred in law and fact in failing to appreciate the effect of the Sale Agreement entered by the Appellant and the 2nd Respondent as well as the intention of the parties while entering the said Agreement.v.That the learned Magistrate erred in law and fact in disregarding the Appellant liable for the accident without having determined the ownership of the motor vehicle.vi.That the learned Magistrate erred in law and fact in disregarding the responsibility and liability of the 2nd Respondent.vii.That the learned Magistrate erred in law and fact in disregarding all the evidence presented by the Appellant in support of its position that it was not the beneficial owner of the vehicle at the time of the accident.viii.That the learned Magistrate erred in law and fact in entering a Judgement that is unfair, biased, and unjust and an absurdity to the norms of equity and justice.

5. My work as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to my own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the Court of Appeal case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR) where it was stated:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way………”

6. I have gone through and carefully considered the Record of Appeal dated 9th November 2023, the Appellant’s written submissions dated 23rd October 2024 and the 1st Respondent’s written submissions dated 9th November 2024. The two issues for my determination were:-i.Who was the owner of motor vehicle registration number KAA 124A?ii.Whether the trial court properly apportioned liability and properly assessed the quantum payable.

i. Who was the owner of motor vehicle registration number KAA 124A? 7. The 1st Respondent (PW1) stated that while aboard motor vehicle registration number KBB 436A, they were hit by motor vehicle registration number KAA 124A. The 1st Respondent stated her Plaint stated that the motor vehicle registration number KAA 124A was registered in the name of the Appellant.

8. PW1 produced a copy of Motor Vehicle Records as P.Exh 5 which showed that motor vehicle registration number KAA 124A was registered in the name of the Appellant.

9. In her submissions dated 5th November 2024, the 1st Respondent stated that she issued a third party notice to Charles Rotich (1st third party) who then issued a third party notice to Japhet Terer (second third party). That the trial court made a finding that the motor vehicle was in possession and control of the 1st third party and that the 1st third party was obliged to indemnify the Appellant.

10. It was the 1st Appellant’s submission that the rules of citing a third party was to seek indemnity from the third party. That the Appellant could not therefore escape liability. She relied on Order 1 Rule 21 of the Civil Procedure Rules.

11. Richard Koech (DW1) testified on behalf of the Appellant. He stated that the Appellant was not to in possession of motor vehicle registration number KAA 124A at the time of the accident as it had sold the motor vehicle to one Charles K. Rotich (then 1st third party) on 27th June 2016. In support of his case, he produced a motor vehicle delivery document, licenses and transfer form as D. Exh 1. D.Exh 2 and D.Exh 3 respectively. The said documents showed that he had sold motor vehicle registration number KAA 124A to Charles Rotich.

12. In its submissions dated 23rd October 2024, the Appellant submitted that even though it was the registered owner of motor vehicle registration number KAA 124A, it had given uncontroverted evidence that they had disposed of the said motor vehicle to Charles Rotich. That there were alternative forms of ownership like beneficial and possessory ownership. It relied on section 8 of the Traffic Act, Gichira Peter vs Lucy Wambura Ngaku & another (2021) eKLR, Securicor Kenya Ltd vs Kyumba Holdings Ltd (2005) eKLR among others. It was the Appellant’s further submission that they were not in possession of motor vehicle registration number KAA 124A as it had already passed to a third party.

13. I have gone through the record and I have noted that a Third Party Notice dated 15th June 2021 was issued to Charles Rotich. Charles Rotich entered appearance on 12th August 2021 and filed his statement of defence dated 29th July 2021. Charles Rotich (1st third party) then issued a Third Party Notice dated 14th October 2021 to Japhet Terer and he filed his defence on 5th November 2021. I have further noted that the 1st and 2nd third parties did not testify in the trial court.

14. Charles Rotich (1st third party) admitted in his defence dated 29th July 2021 that he bought motor vehicle registration number KAA 124A from the Appellant on 27th June 2016 and sold the same to Japhet Terer (2nd third party). The 2nd third party in his defence filed on 5th November 2021 admitted purchasing the said motor vehicle from the 1st third party and had been in possession ever since. It is therefore my finding that Japhet Terer having bought motor vehicle registration number KAA 124A on 27th June 2016 was in possession of the said motor vehicle as at the time the accident occurred i.e. on 16th June 2018.

15. Regarding liability, there was no dispute that the driver of motor vehicle registration number KAA 124A was to be blamed for causing the accident. The only issue under this head was contribution. The nature of third party proceedings was that if the defendant proved their case against the third party, then the defendant ought to be fully indemnified by such third party. Order 1 Rule 15 of the Civil Procedure Rules provides:-1. Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)—(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.(2)A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.(3)The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.(4)Where a third party makes as against any person not already a party to the action such a claim as is mentioned in subrule (1), the provisions of this Order regulating the rights and procedure as between the defendant and the third party shall apply mutatis mutandis as between the third party and such person, and the court may give leave to such third party to issue a third party notice, and the preceding rules of this Order shall apply mutatis mutandis, and the expressions “third party notice” and “third party” shall respectively apply to and include every notice so issued and every person served with such notice.(5)Where a person served with a notice by a third party under subrule (4) makes such a claim as is mentioned in subrule (1) against another person not already a party to the action, such other person and any subsequent person made a party to the action shall comply mutatis mutandis with the provisions of this rule.

16. I agree with Limo J. in Family Bank Limited v Mutisya & another (Civil Appeal E076 of 2021) [2024] KEHC 5740 (KLR) (13 May 2024) (Judgment) where he stated:-“………A trial court ordinarily should give directions on how liability would be tried first as between a plaintiff and defendant between a defendant and a 3rd Party. There is nothing that prevents a court from trying the issue of such liability simultaneously in the trial.

17. Further, in Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] KEHC 8144 (KLR), Gikonyo J. held:-“………In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the Defendant, and cannot be a bona fide issue triable between the Defendant and the Plaintiff………”

18. In my view, the trial court fell into error when it found that no case had been made against the 2nd third party, Japhet Terer. The 2nd third party admitted having bought and being in possession of motor vehicle registration number KAA 124A and he was therefore liable for causing the accident whether in person or through his driver. It is therefore my finding that the 2nd third party, Japhet Terer shall fully indemnify the Appellant on the damages payable.

19. The 1st Respondent stated that she suffered the following injuries:-i.Fractured left scapula.ii.Large sutured Degloving scalp.iii.Mild tenderness on the left hemathorax tholicin.iv.Reduced rom on the left shoulder.

20. The Appellant submitted that the award of Kshs 900,000/= by the trial court was excessive and they proposed an award of Kshs 100,000/= as sufficient compensation for the injuries sustained. They relied on Nyambati Nyaswabu Erick vs Toyota Kenya Limited & 2 others, Maimuna Kilungya vs Motrex Transporters Ltd (2020) eKLR and Daniel Gatana Ndungu & another vs Harrison Angore Katana (2020) eKLR. On the other hand, the 1st Respondent submitted that the award of Kshs 900,000/= was low in light of the injuries she sustained and that the same should be increased by this court To Kshs 1,200,000/=. She relied on Martin Andungosi vs Ibrahim Munawa Abdala Mombasa HCC No. 681/1987 and James Kimondiu vs Anne Wahome & another Mombasa HCC No. 472 of 1991.

21. The 1st Respondent produced a P3 Form and a Medical Report from Kaplong Mission Hospital as P.Exh 3 and P.Exh 6 respectively which confirmed that she sustained the injuries listed in her Plaint. The nature of injuries and the production of the P3 form and Medical Reports were not challenged on cross examination. It is therefore my finding that the 1st Respondent suffered the injuries as listed in her Plaint dated 2nd December 2020.

22. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards.

23. I have considered the authorities by both parties. I disagree with the Appellant that the nature of injuries suffered by the 1st Respondent were soft tissue injuries and therefore the authorities he relied on were not in conformity with the injuries sustained by the 1st Respondent. I also disagree with the 1st Respondent’s proposal of Kshs 1,200,000/= as general damages as the same was excessive in relation to the authorities she relied upon.

24. I have found the following cases quite helpful in terms of comparison:-i.In Kosgei v Mutisya [2024] KEHC 156 (KLR), the court reduced the award of Kshs 900,000/= to Kshs 450,000/= for multiple blunt injuries to the chest, back and right knee, fracture of both scapula and Degloving injury to the right elbow/forearm.ii.In David Gakinya v Mary Nyambura [2017] KEHC 834 (KLR), the court upheld the award of Kshs 300,000/= for a painful right shoulder, painful lower abdomen, fracture of the right scapula and glenoid, dislocated right shoulder and bruise on the right side of the face.iii.In Jane Warugurumiano v Jotham Nguri Magondu & Muriithi Samuel [2018] KEHC 6902 (KLR), the court upheld the award of Kshs 250,000/= for headache, huge haemotoma, neck pain, left scapular fracture with tenderness, dislocation of right shoulder joint, fracture of 8th rib with tenderness, lumbar spine, pain and bruises of lower limbs.iv.In George Kiptoo Williams vs. William Sang and Another (2004) eKLR, where the Plaintiff suffered cut wound on the occipital region with lacerations on the left temporal region of the head, fracture of the skull on the occipital region, subluxation of the cervical vertebrae C1, C3 and C4, fracture of 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ribs of the left side of the chest, fracture of the left scapula and cut wound on the left hand and left arm. The Plaintiff was awarded Kshs. 560,000/=.

25. Guided by the above authorities, it is my finding that the award of Kshs 900,000/= as general damages by the trial court was excessive. Having taken into consideration the current inflation rates, it is my finding that an award of Kshs 500,000/= would be just and commensurate to the injuries suffered by the Respondent. I therefore substitute the award of Kshs 900,000/= with an award of Kshs 500,000/=.

26. With regards to the special damages, the Respondent pleaded for Kshs 2,000/= as transport expenses. The 1st Respondent did not produce evidence in the form of a receipt to indicate that she had incurred the pleaded transport expense. It is trite law that for a claim of special damages to succeed, the same must be specifically pleaded and proved. The 1st Respondent’s claim for transport expense therefore fails.

27. The trial court erred when it awarded the 1st Respondent Kshs 176,540/= as special damages. The same was not specifically pleaded in the Plaint and it is my finding therefore that this prayer fails.

28. In the end, the Memorandum of Appeal dated 10th January 2023 succeeds as the trial court’s net award of Kshs 1,076,540/= as damages is substituted with Kshs 500,000/=. For avoidance of doubt, the Appellant shall pay the 1st Respondent Kshs 500,000/= and seek full indemnity from the 2nd Interested Party, Japhet Terer.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 20TH DAY OF FEBRUARY, 2025. ..........................J.K.NG’ARNG’ARJUDGEJudgement delivered in the presence of Langat for the Appellant J.K. Rono for the Respondent and Siele and Susan (Court Assistants)