[2023] KEHC 25170 (KLR)

Auto Selection (K) Ltd & another v Raibu (Civil Appeal E049 of 2022) [2023] KEHC 25170 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25170 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E049 of 2022

LW Gitari, J

November 2, 2023

Between

Auto Selection (K) Ltd

1st Appellant

Amos Ntongai

2nd Appellant

and

Henley Muriithi Raibu

Respondent

(Being an appeal against the decree and Judgment delivered on 6th April 2020 by Hon. E. Tsimonjero (SRM) at Meru Chief Magistrate’s Court Civil Case No. 31 of 2019)

Judgment

1. This is an appeal against the decision of the trial court in Meru CMCC No. 31 of 2019. The Respondent herein had sought for damages, special damages, and costs of the suit together with interest at court rate. His claim arose from a road traffic accident that occurred on or about 20th January, 2018 where the Respondent was riding motorcycle registration number KMCT 011G along Meru-Maua road when he got involved in an accident with motor vehicle registration number KCG 425G which occasioned him bodily injuries.

2. On 6th April, 2022, the learned trial magistrate delivered the subject judgment in favour of the Respondent. in the following terms:a.Liability – 100%;b.General damages – Kshs. 300,000/=;c.Special damages – Kshs. 4,750/=;d.Interest on the decretal sum at court rates from the date of the judgement until payment in full;e.Costs of the suit awarded to the Respondent to be borne by the 2nd Appellant.f.Suit against the 1st Appellant dismissed with no order as to costs.

3. The Appellants herein being dissatisfied with the Judgment of the learned trial magistrate filed the current appeal raising seven (7) grounds of appeal:a.The learned magistrate erred in fact and in law in awarding the Respondent 100% liability as against the Appellants Kshs. 300,000/= as general damages and Kshs. 4,750/= for special damages which amount was exorbitantly high in the circumstances and injuries suffered by the Respondent.b.The learned magistrate erred in fact and in law in holding that the Respondent had proved his case on a balance of probabilities which finding was against the weight of the evidence on record.c.The learned magistrate erred in law and in fact when he failed consider the Appellant’s evidence on points of law and facts with regard to quantum based on the injuries sustained by the Respondent.d.The learned magistrate’s decision was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.e.The learned trial magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed alongside the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable on similar injuries as the case he was deciding.f.The learned magistrate erred in fact and law in finding that the Respondent was entitled to general damages that were too high in view of the injuries suffered by the Plaintiff.

4. The Appellant proposed to ask this Court for the following orders:a.That the appellate court does set aside the learned trial magistrate’s Judgment delivered on 6th April, 2022 on quantum and replace with its own assessment.b.That this appeal be allowed with costs.c.That cost of this appeal be borne by the Respondents.

5. The appeal was opposed and was canvassed by way of written submissions.

The Submissions 6. It is the Appellant’s submission that the appeal can be summed up to one issue of quantum. In this regard, the Appellant noted the medical report from Dr. Cyprianus Okoth Okere dated 09/10/2018 which gave the prognosis of the Respondent’s injuries as blunt injuries to the neck, shoulders, bruise on the right elbow, and laceration on the right thigh. The Appellant’s submitted that the trial court’s award of Kshs. 300,000/= was inordinately high for the said injuries.

7. The Appellant proposed the said award of KShs. 300,000/= be substituted with an award of Kshs. 80,000/= which sum he considered sufficient and adequate compensation. To buttress this proposal, the Appellant cited several cases including the case of Power Lighting Company Limited & Another v. Zakayo Saitoti Naingola & Another [2008] cited in the case of Jennifer Mathenge v. Patrick Muriuki Maina [2020]eKLR, the case o HB (Minor suing through mother & next friend DKM) v. Jasper Nchonga Magari & Another [2021] eKLR, Ndungu Dennis v. Ann Wangari Ndirangu & Another [2018] eKLR and Eva Karemi & 5 Others v. Koskei Kieng & Another [2020]eKLR. The Appellant thus urged this Court to set aside the impugned judgment and reassess the quantum based on his submissions in this appeal and in the trial court.

8. On the other hand, it is the Respondent’s submission that he proved his case on a balance of probability. That the learned trial magistrate did not err in any law or principle while apportioning liability at 100% in favour of the Respondent. The Respondent thus urged this Court to uphold the trial court assessment of liability.

9. On quantum of damages, it was the Respondents submission that his proposed award of Kshs. 400,000/= was reasonable and sufficient to compensate him. He however acknowledged that courts are not bound by the submissions of parties and submitted that the trial court was well within its discretion to award Kshs. 300,000/= for general damages as the court put into account the injuries sustained and the comparable authorities adjusted to the current inflation trends. The Respondent thus urged this Court to uphold the decision of the trial court by dismissing this appeal as being incompetent, fatally defective and unsustainable.

Issue for Determination 10. I have considered the pleadings, and the submissions by the parties. The main issue that arises for determination by this Court is whether the trial court erred in its assessment of liability and damages.

Analysis 11. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions see Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”

12. It is therefore the duty of this court as a first appellate court to re-evaluate the evidence and arrive at its own conclusions. In so doing the court must take into account that it had no opportunity to hear and see witnesses, and therefore must make an allowance for that. (See: Selle & Another Vs Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).

13. From the record, PW1 was Henry Mureithi the respondent herein. He testified as the only witness in support of his claim against the Appellants. PW1 adopted his statement dated 28/01/2019 as his evidence in his chief. He also produced his list of documents dated 28/01/2021, as his exhibits. These included Police Abstract dated 16/08/2018; copy of motor vehicle records for KCG 425J; demand letter dated 28/09/2018; Statutory Notice dated 28/09/2018; P3 form, medical report dated 09/10/2018; and receipts for special damages for Kshs. 4,750/=. From the police abstract, the driver of motor vehicle was to blame. It was his testimony that the point of impact was in the middle of the lane and the subject motor vehicle moved in his lane.

14. The Appellants, on the other hand, closed their case without calling any witnesses or adducing any evidence.

15. On the issue of liability, it was the Respondent’s claim that on 20th January, 2018, he was lawfully and carefully riding in his motor cycle registration number KMCT 011G along the Meru-Maua road when the Appellant’s motor vehicle registration number KCG 425J was so negligently driven, controlled and/or managed that it knocked him down. It was his testimony that he was riding on the left side of the road facing Maua while the motor vehicle was moving from Maua headed to Meru. That the subject motor vehicle was trying to overtake another vehicle when it knocked him down in the middle of the left lane facing Maua. No evidence was adduced by the Appellants on how the accident occurred. In view of the evidence on record, it is my view that the trial court was correct to find that the occurrence of the accident was proved by the police abstract which blamed the driver of motor vehicle registration number KCG 425J and by the copy of records produced as evidence which confirmed that the 2nd Appellant was the beneficial owner of the subject motor vehicle as at the time of the accident. The evidence of the respondent was not controverted.I note from the submissions by the appellant that he has abandoned the ground on liability, as he has not advanced any submissions.The appellant had denied liability in his defence and blamed the respondent for heaving solely and/or substantially contributed to the cause of the accident. The appellant bore the burden to proof that indeed the respondent was to blame. Section 107 of the Evidence Act places the legal burden of proof on the party who alleges. It provides:-“whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.”The appellant did not adduce any evidence on how the accident occurred. The evidence adduced by the respondent was not challenged and furthermore the claim made by the appellant in his defence was not substantiated. Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact which by themselves are not sufficient to prove the case. It also goes without saying that failure to adduce any evidence means that the evidence adduced by the adverse party against them is uncontroverted and therefore unchallenged. The trial magistrate held that-“The defendants did not adduce any evidence over the said accidents as neither of them filed a written witness statement. Even a perusal of cross-examination does not point to any plausible alternative version of how the accident occurred. There being no evidence to controvert that of the plaintiff the defence and the assertions therein remain as such for lack of evidence to substantiate them.”I find that this holding by the learned trial magistrate cannot be faulted. I find no reason not to uphold the decision of the trial magistrate on liability. The liability on the appellant was 100%.

16. On quantum, it was the Respondent’s evidence as per the plaint dated 28th January, 2019 that he suffered blunt neck injury, blunt injuries to both shoulders, blunt lower back injury, bruises on the right elbow, laceration on the right thigh with cosmetic significance, recurrent backaches, recurrent shoulder pains, and bruised scar on the right elbow.

17. The particulars of the special damages were as follows:a.Motor vehicle search – Kshs. 550/=b.Medical Report – Kshs. 3,000/=c.Medical related expenses continuing and details to be provided at the hearing - Kshs. 1,200/=Total – Kshs. 4,750/=

18. The trial court considered the submissions by the parties. It noted the award of Kshs. 400,000/= that had been proposed by the Respondent and cited authority of Joseph Wambura v. Joseph Mwangi Obai [2018] eKLR where an award of Kshs. 400,000/= was made for a plaintiff that had sustained cut wound on the left orbit side, deep laceration on the left gluteal area, multiple laceration on the left elbow, deep laceration on the left hand, cut wound on the right palm, multiple cut wounds on both knees with stitches in place, deep cut wound on the left leg, deep cut wound on the left ankle, and cut on the right toe.

19. The trial court also considered the case of Joseph Kimani Gathanga & Another v. Dickson Ndung’u Njoroge [2019] eKLR where the court made an award of Kshs. 240,000/= for a plaintiff that had sustained head concussion, swollen tender face, bruises on peri-orbital region, bruises on the left hand, blunt injuries on the left leg, blunt injury to the back and chest, swollen tender left knee, and cut wound and swelling on the left elbow.

20. The trial court also considered the Appellant’s submissions and correctly found that the same were misplaced and gad no relationship with the claim before it. It found so because the case before it only had one witness testimony yet a perusal of the submissions by the Appellants showed that there were three witnesses including a police officer and the doctor. The doctor referred to was one Dr. P. K. Mwangi while medical report produced by the Plaintiff was made by Dr. Okoth Okere. For that reason, the trial court correctly found it just not to consider those submissions.

21. In its judgment, the trial court considered the above injuries and guided by the case of Joseph Wambura v. Joseph Mwangi Obai (supra), made a finding that an award of Kshs. 300,000/= as general damages for pain and suffering was sufficient compensation for the Respondent.

22. The respondent discharged the burden of proof that he suffered bodily injuries which were pleaded at paragraph six (6) of the plaint, as follows:-a.Blunt neck injuryb.Blunt injuries both shoulders.c.Blunt lower back injuryd.Bruises on the right elbowe.Laceration on the right thigh with cosmetic significance.f.Re-current backachesg.Re-current shoulder pains.h.Bruised scar on the right elbow.

23. A medical legal report by Dr. C.O Okere whose prognosis and opinion is that the respondent sustained blunt injuries to the neck both shoulders and lower back, a bruise on the right elbow and a laceration on the right thigh. The injuries can be classified as harm. The injuries did not leave any complications which would require and future medication. The injuries were soft tissue injuries which healed. The appellant has cited the case of Power & Lighting Company Limited & Another –v- Zakayo Saitoti Naingola & Another cited in the case of Jeniffer Mathenge-v- Patrick Muriuki Maina (2020)eKLR where the court held-In determining whether to interfere with the same or not the court has to bear in mind the following principles on assessment of damages:a.Damages should not be inordinately too high or too low.b.They are meant to compensate a party for the loss suffered but not to enrich a party and as such should be commensurate with the injuries suffered.c.Where past-decisions are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shilling then at the time of the Judgment.”

24. I have considered the authority and I entirely agree that these re the principles the court has to consider when assessing general damages. Courts award conventional awards in the sense that awards for comparable injuries should comparable.

25. I have considered the authorities and I am inclined to agree with the appellant that the award of Ksh.300,000/- for soft tissue injuries which were not severe was manifestly excessive.

26. In the case of Ndungu Denis –v- Ann Wangari Ndirangu & Another (2018 KLR, Justice J. Ngugi (as he then was) held that having considered the injuries sustained were soft tissue injuries, and award of Ksh.300,000/- is manifestly excessive. One of the principle upon which an appellate court will interfere with an award of damages is where the damages are inordinately so high. This was held in the case of Butt-v- Khan (1977) KAR 1 –An appellate court will not disturb an award of 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 s some material respect and so arrived at a figure which was in ordinately high or low.”

27. I note from the Judgment of the trial magistrate that he proceeded to award the damages based on, “doing the best I can and considering the inflation in the country…….” The trial magistrate was supposed to be guided by the nature of injuries and comparable awards. The decision he relied onJoseph Kimani Gathanga & Another –v- Dickson Ndungu Njoroge (2019)eKLR the respondent had sustained more severe injuries and was awarded Kshs.240,000/-. I find in the circumstances that the award of Ksh.300,000/- for soft tissue injuries was in-ordinately high and prompts me to interfere with the award of damages by the learned trial magistrate. Based on the persuasive decision in Ndungu Dennis –v- Ann Wangari Ndirangu (supra). I find that an award of Ksh.150,000/- is reasonable considering that it is a 2018 decision and the rise in inflation.

28. In conclusion, the appeal on quantum of damages succeeds. I set aside the award of general damages by the learned trial magistrate and substitute with an award of general damages of Ksh.150,000/-. The award of special damages was not challenged. I find that it was pleaded and proved as required.

29. I order that each party will bear its own costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF NOVEMBER 2023. L.W. GITARIJUDGE