[2022] KEHC 3085 (KLR)

Alumasa v Mutiso & another (Civil Appeal E24 of 2020) [2022] KEHC 3085 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3085 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E24 of 2020

MW Muigai, J

May 4, 2022

Between

Wycliffe Mujome Alumasa

Appellant

and

Daniel Muindi Mutiso

1st Respondent

Sammy Mumo Mutiso

2nd Respondent

(Being an appeal from the judgment of the Hon. Eric Musambai Analo (SPM) dated 28 th day of October, 2020 in Machakos Chief Magistrate Court Civil Case No. 338 of 2019)

Judgment

Plaint dated 26/6/2019 1. In the Plaint dated 26th June, 2019 before the Trial Court at Machakos in CMCC No.388 of 2019, the appellant suing as the Plaintiff, sued the Respondents as the 1st and 2nd Defendants for the severe bodily injuries he sustained on 20th October, 2018 along Machakos-Kyumbi Road.

2. The Appellant pleaded that he was carefully walking along the said road when he was hit by motor vehicle registration number KCK 285L. According to the Appellant, the said motor vehicle was driven so negligently and carelessly. The Appellant sought general damages, special damages of Kshs.15, 830/-, costs of the suit and interest against the Respondents for the loss and damage he pleaded to have suffered.

3. The Appellant pleaded that he suffered soft tissue injuries on the right ankle joint, fractured right malleolus, soft tissue injuries on the right foot and occasional pains on the injured sites of the body.

4. The Appellant relied on the doctrine of res ipsa loquitor. The Appellant pleaded that the Respondents are vicariously liable for the tortious acts of their driver and/or agent.

5. In their joint defence dated 28th January, 2020, the Respondents denied that they were the registered and/or beneficial owners of the said motor vehicle KCK 285L. They denied that the accident occurred as alleged by the Appellant and that if it occurred, the Appellant substantially contributed to it. The Respondents denied the particulars of negligence, injuries, loss and damage as itemized in the Plaint. According to the Respondents, the Appellant failed to take any or adequate precautions for his own safety as well as obeying the traffic regulations on safety of a pedestrian.

6. The Respondents denied the applicability of the doctrine of res ipsa loquitor and the vicarious liability. According to the Respondents, the Appellant is not entitled to the pleaded damages.

Evidence 7. PW1, Wycliffe Mujome Alumasa adopted the contents of his witness statement recorded and filed on 26th June, 2019 as his evidence in chief. He produced his list of documents filed on the same day as exhibits. He blamed the driver of KCK 285N for causing the accident. According to PW1, he had not healed and still feels pain on the right leg.

8. In cross-examination by Kithuka, PW1 stated that she was walking beside the road at about 1800 hours from his work place when he tried to run away from the road but was hit, fell down and injured his right leg. He stated that he was not drunk. According to PW1, he was taken to Machakos Level 5 Hospital on 20th October, 2018 where he was issued with treatment notes and the note he had in court was issued on 21st October, 2020.

9. It was his testimony that he went to hospital on 21st October, 2020 and filled in the P3 Form on 20th October, 2020. He stated that he felt pain but did not have any documents to prove that he felt pain.

10. In re-examination, stated that he was taken to Machakos Level 5 Hospital the same morning and that on the date of the accident he was only given pain killers. He stated that he went to hospital on 4th April, 2019. According to PW1, he has not completely healed. He cannot walk for long distances.

11. PW2, CP Pius Njuga No.62646 from Machakos Traffic Base. He stated that on 24th October, 2018 at 15. 08 hours he received a report of an accident from PW1 that PW1 had been ran over by a motor vehicle on 20th October, 2019 at 18. 30 from the right lane when he was walking by motor vehicle Reg KCK 285 L-Toyota Hilux driven by Musya Musau. He stated that PW1 was issued with a P3 on 9th April, 2019 and the victim was taken to hospital and he recorded the accident report in OB39/24/10/2018. He produced the Police Abstract of the accident dated 9/4/2019. He blamed the driver for the accident.

12. PW3, Dr.Titus Ndeti produced his medical report as Pexh 5. He stated that he relied on the P3 Form and treatment notes which he produced as exhibits in court. The doctor’s Report of 24/4/2019 indicated the injuries sustained were soft tissue injuries on the right ankle joint, fractured right malleolus and soft tissue injuries to the right foot. On examination findings were general condition fair but in pain and tenderness on the right ankle joint. The prognosis was that he suffered maim. He sustained soft tissue and skeletal injuries which caused him pain and suffering. The injuries are expected to resolve with time.

13. In cross-examination by Kithuka, PW3 he stated that the injuries were assessed to have been healed.

Trial Court’s Judgment 14. In his Judgment, the Trial Magistrate held the Respondents 100% liable.

15. On quantum of damages, the Trial Magistrate guided by the court decisions of Civicon Limited v Richard Njomo Omwancha & 2 Others [2019] eKLR, Gogni Rajope Construction Company Limited v Francis Ojuok Olewe HB HCCA No. 1 of 2014 [2015]eKLR and Mwavita Jonathan v Silivia Onunga HCCA No. 17 of 2017[2017]eKLR found that the sum of Kshs. 900,000/- proposed by the Appellant was on the higher side and a reasonable award would be Kshs. 300,000/- which he awarded as general damages

Appeal dated 10/11/2020 16. Aggrieved by the Trial Court award of damages, the Appellant has appealed before this Court citing the following grounds:-(1)That the Learned Magistrate erred in law and in fact by awarding manifestly damages to the Appellant against the extent of injuries sustained and proved before the court.(2)That the Learned Magistrate erred in law and in fact by reaching at a conclusion that is contrary to the evidence before him, the established principles on awarding of damages and the appellant’s submissions.(3)In all the circumstances of the case, the findings of the Learned Magistrate were characterized by misapplication of the law, misapprehension of facts of the case, consideration of irrelevant matters and wrong exercise of discretion.

17. The Appellant urged the court to allow the appeal by setting aside and assess the general damages awardable to the Respondent and award him costs of the appeal and the Trial Court.

Appellant’s Submissions 18. It is submitted that in cross-examination, the Appellant confirmed that he sustained a fracture of the right leg and had pain on the injured part. According to the Appellant, the Trial Magistrate wrongly noted that “the examining Doctor also opined that the injuries were soft tissue injuries and complete healing was expected’ since the doctor in his medical report dated 26th April, 2019 opined that the Appellant had ‘sustained Maim’ and went on to opine that the Appellant sustained ‘soft tissue and skeletal injuries which caused him pain and suffering’. It is submitted that the Trial Magistrate misdirected himself on the injuries hence an effect on the assessment of damages that led to manifestly low award of damages considering the extent of injuries sustained.

19. According to the Appellant, he had placed reliance on two court decisions namely, Vincent Mbogholi v Harrison Tunje Chilyalya[2017]eKLR and Godfrey Wamalwa Wamba & Another v Kyalo Wambua[2018]eKLR but the Trial Magistrate failed to draw the distinction against the authorities which concisely highlighted and guided the Trial Court on assessment of damages. It is submitted that the Trial Magistrate failed to cite any relevant authority while awarding Kshs.300, 000/-. According to the Appellant, the court decision of Civicon Limited (supra), Gogni Rajope Construction (supra) and Mwavita Jonathan v Silivia Onunga HCCA No. 17 of 2017[2017]eKLR relied upon by the Trial Magistrate are not comparable to the injuries sustained by the Appellant.

20. It is therefore submitted that the Trial Magistrate proceeded on wrong facts and took into account irrelevant matters contrary to the facts presented before the Trial Court hence reaching a wrong decision in assessment of damages.

21. Based on the court decisions of Vincent Mbogholi (supra) and Godfrey Wamalwa Wamba (supra) where courts respectively awarded Kshs. 500,000/- and Kshs.700,000/- as well as the inflation trends, it is submitted that an award of Kshs. 900,000/- as general damages would be fair compensation for injuries sustained by the Appellant.

22. The Appellant urged this court to re-assess the general damages awardable to the Appellant by enhancing the Trial Court’s award. The Appellant sought the costs of the Appeal and Trial Court’s and interest from the date of the judgment of the Trial Court.

Respondents Submissions 23. On behalf of the Respondent, it is submitted that the Trial Magistrate award of Kshs. 300,000/- as general damages was reasonable and fair compensation for such injuries sustained by the Appellant and the authorities cited by the Appellant established more severe injuries than he had suffered.

24. Reliance was placed on the case of Boniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR where the Plaintiff had sustained soft tissue injuries and fracture of the right malleolus and court stated that the award ranges between Kshs.350, 000/- to Kshs.400, 000/- as general damages while in Isaac Muriungi Mbataru v Silas Kalumani [2017]eKLR Kshs. The court reduced the award of 350,000/- to Kshs.200, 000/- for such injuries. In Joseph Mutua Nthia v Fredrick Moses M.Katuva (2019) eKLR an award of Kshs. 400,000/- was maintained by the High Court.

25. According to the Respondents, the Trial Magistrate considered each parties submissions and gave explicit reasons for awarding the damages as he did.

26. The Respondent urged this court not to interfere with the exercise of discretion by the Trial Court, that it was exercised appropriately. On costs, it is submitted that awarding of costs is a matter of the discretion of the Court and not a matter of right.

Determination 27. I have considered the Appeal, Record of Appeal, submissions filed and the authorities relied upon by respective parties.

28. In this appeal, the Appellant is only aggrieved by the award of Kshs.300, 000/- as general damages. Liability is not in contention.

29. It is trite that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

30. Once the Plaintiff discharges the legal burden of proof, the burden is then shifted to the Defendant to adduce evidence against the Plaintiff’s claims. This burden is well captured under Sections 109 and 112 of the same Act as follows:Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

31. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:-“Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

32. The Appellant has urged this court to set aside and reassess the quantum of damages for being manifestly low for the injuries he sustained.

33. Essentially the Appellants are asking this court to interfere with the quantum awarded by the Trial Magistrate.

34. This Court is guided by the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR where the Learned judges set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“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...’

35. In the case of Southern Engineering Co. Ltd v Musungi Mutia [1985] KLR 730, the Court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

36. Indeed, the Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete – Kisumu Civil Appeal No. 284 of 2001 reiterated what it had earlier held in the case of Kemfro v Lubia (1982-88) KLR that:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance…”

Whether General damages of Kshs.300,000/- are manifestly low 37. According to the Black’s Law Dictionary Free Online Legal Dictionary 2nd Edn.-“General damages are the damages and injuries that directly result from an action or the failure to take action of the defendant.”

38. The Court of Appeal in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177 stated that:-“…General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty…”

39. I note that injuries pleaded by the Appellant are not in dispute. Of importance before this Court is to re-evaluate whether the award was commensurate to injuries sustained by the Appellant and relevant principles in awarding of damages were applied by the Trial Magistrate.

40. I agree with the position of the Court of appeal in Cecilia W. Mwangi & Another v Ruth W. Mwangi [1997] eKLR, as follows:“It has been quite often pointed out by this court that awards of damages must be within limits set by decided cases and also within limits that Kenyans can afford. Large awards inevitably are passed on to members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance cover or increased fees…we would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at page 345:‘But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.’The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Pho Choo vs Camden and Islington Area Heath Authority [1979] 1 ALL ER 332 at page 339 and this approach was also adopted by this court in the case of Tayab vs. Kinanu [1982-88] 1 KAR 90. Lord Denning MR said:‘In considering damages in personal injury claims, it is often said: “the defendants are wrongdoers so make them pay in full. They do not deserve any consideration.” That is a tedious way of putting the case. The accident, like this one may have been due to a pardonable error much as may befall any of us. I stress this so to remove the misapprehension, so often repeated that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay.’The reason why this passage is referred to by us is to show that damages ought to be assessed so as to compensate, reasonably the injured party but not so as to smart the defendant.”

41. The Appellant largely placed reliance on the cases of Vincent Mbogholi vs. Harrison Tunje Chilyalya (supra) and Godfrey Wamalwa Wamba & Another vs. Kyalo Wambua (supra) submitted before the Trial Court. I note that the Trial Magistrate did not indicate whether he had considered the Appellant’s authorities but only stated that the Appellant’s proposal of Kshs. 900,000/- was on the higher side and invoked other court decisions.

42. In this appeal, the Respondents placed reliance on three court decisions on quantum which were never placed before the Trial Court for consideration as the Respondents did not file their written submissions. The Trial Court record confirms that on 2/9/2020 parties were granted 14 days each to file written submissions and the Plaintiff failed to file the submissions.

43. In Kenya Power Lighting Comp. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR the court held inter alia that:“On quantum court the in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages……Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts..”

44. In my view the court decisions cited by the Appellant established more severe injuries and are not comparable injuries. According to PW4, during cross-examination and in presenting the medical report he opined that the injuries were expected to resolve with time. The Trial Magistrate correctly noted the doctor’s opinion. I note that no disability was confirmed by the doctor.

45. It cannot therefore be said that the award of Kshs. 300,000/- as general damages by the Trial Magistrate is manifestly low. The award is reasonable and fair for such injuries sustained by the Appellant.

46. From the foregoing, I find that the Trial Magistrate did not proceed on wrong principles, or that he misapprehended the evidence in some material respect while arriving at the damages he awarded. The Trial Magistrate was entitled to assess the damages as he did. It is trite that the discretion to award damages fall squarely with the Trial Court.

Disposition1. In the result, this appeal fails.2. The award of Kshs. 300,000/- as general damages is upheld.3. Each party to bear their own costs of the appeal since none of them was successful.4. The Appellant will only have the costs awarded by the Trial Court.5. Judgment accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 4thMAY 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE