[2023] KEHC 26225 (KLR)

Bititech Systems & Suppliers Ltd & another v Wambugu (Civil Appeal E200 of 2020) [2023] KEHC 26225 (KLR) (Civ) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26225 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E200 of 2020

JN Njagi, J

November 29, 2023

Between

Bititech Systems & Suppliers Ltd

1st Appellant

Kennedy Odhiambo Omondi

2nd Appellant

and

Priscilla Nyawira Wambugu

Respondent

(Being an appeal from the judgment and decree of Hon. D.O. Mbeja, Senior Resident Magistrate, in Nairobi CM`s Court Civil Suit No.5 of 2018 delivered on 24/8/2020)

Judgment

1. The Respondent herein who was the plaintiff at the lower court brought suit against the Appellant (the defendant) claiming general and special damages after the respondent was knocked down by the 1st appellant`s motor cycle that at the time of the accident was being ridden by the 2nd Appellant. The Respondent attributed the occurrence of the accident to the negligence on the part of the 2nd appellant. The appellants denied the claim. After a full trial the learned trial magistrate found the motor cyclist wholly to blame for he accident. The court awarded the respondent general damages in the sum of ksh 200,00/-. The appellant was dissatisfied with the finding on liability and on the amount of the award and filed this appeal.

2. The grounds of appeal are that:1. The learned Magistrate erred in law and in fact in giving a narrow interpretation of the facts, leading to an erroneous assessment of the issue of liability2. The learned Magistrate erred in law and in fact as he failed to take into account issue of liability which was not proved by the Respondent against the Appellant3. The learned Magistrate erred in failing to consider the law on negligence thereby erroneously finding the appellants to blame at 100% liability.4. The learned Magistrate erred in law and in fact in awarding general damages as there was no legal basis for the award.5. The learned Magistrate erred in law and in fact in awarding general damages that were so excessive as to amount to an abusive discretion.6. The learned Magistrate erred in law and in fact in applying wrong principles in awarding general damages.7. The learned Magistrate erred in law and in fact in totally ignoring the law and the submissions put in by the Appellants thereby arriving at a wrong decision on quantum of damages.8. The learned Magistrate misdirected himself on the applicable measure of award of general damages in favour of the Respondent.9. The learned Magistrate erred in law and in fact in awarding damages that were so excessive as to represent an erroneous estimate of the loss suffered.

The evidence in the case 3. The brief facts of the case are that the respondent who was PW3 in the case was on the material day at around 10 am crossing the road at the roundabout at the junction of Haile Selassie Avenue/Uhuru Highway. That there was a policeman at the junction controlling traffic. He waved for vehicles and motor bikes on Mombasa road to stop. The traffic on the said road stopped. She and other pedestrians started to cross the road. She was at the time seven months pregnant and could not move fast. As she was about to finish crossing the road, the 2nd appellant`s motor cycle suddenly emerged from the stationary motor vehicles on Mombasa road and knocked her down. She fell on the road and was injured. She was taken to Nairobi Women`s Hospital. She blamed the 2nd appellant for failing to stop to allow pedestrians to cross the road. She later sued the respondents.

4. The respondent called two witnesses in the case - Dr. Wokabi PW1 and a police officer PW2. Dr. Wokabi testified that he examined the respondent two months after the accident. That at the time of examination she had a report indicating that she had sustained injuries on the face and jaw after being involved in a road traffic accident. The face had sustained swellings. She was pregnant at the time and the foetus was healthy. He assessed the injuries as soft tissue. She was recovering from the injuries at the time of examination. He prepared a medical report. He produced it in court as exhibit, P.exh.4(a).

5. The police officer PW2 from Central Police Station Nairobi testified that the accident was investigated by another police officer who had since been transferred from the station. He, PW2, produced the police abstract as exhibit, P.exh.6.

6. The Appellants called the 2nd Appellant as a witness in the case, DW1. His evidence was that he was at the time on his way to Zimmerman estate. That on reaching the roundabout at Uhuru Highway and Haile Selassie Avenue, a policeman stopped the vehicles on Mombasa road. That when he gave the green light for the vehicles to move, he moved forward on the second lane. As he did so he saw a pregnant woman jump into the road and left other pedestrians behind. There were two other motor bikes that had moved forward with him. The woman realized that traffic was on motion. She stepped back to escape being hit by a motor bike that was in front of her. She came to his front when she stepped back. He applied emergency breaks but she was hit by the right elbow of his motor bike. Both of them fell down. He took her to hospital. He blamed her for crossing the road carelessly.

Submissions 7. The appellant submitted that the trial court erred in giving a narrow interpretation of the facts, leading to an erroneous assessment of the issue of liability and apportionment. That the abstract produced had different outcomes of the investigation and submitted that liability ought to have been apportioned equally between the parties.

8. The Appellant submitted that the respondent had not discharged her burden of proof in the case. In this respect the Appellant relied on the case of Anne Wambui Nderitu v Joseph Kiprono Ropkoi &another [2004] 1 EA 334 on the meaning of burden of proof.

9. The appellant further submitted that the injuries sustained by the respondent were purely soft tissue in nature and that the doctor, PW1, confirmed that the injuries were expected to have recovered. The appellant argued that the award of ksh 200,000/= for pain and suffering was excessively high and urged this court to award ksh 80,000/=.

10. The Respondent on the other hand submitted that she had proved her case on a balance of probabilities by both oral and documentary evidence. That the trial magistrate did nor error in finding the appellants 100% liable for the accident. That the 2nd appellant testified that he was on the second lane of the highway. That the record indicates that the complainant was at the time 7 months pregnant. Counsel for the respondent wondered how the respondent could have jumped into the road all alone.

11. The respondent submitted that the 2nd appellant said that he was occupying the 2nd lane and that the point of impact was on that lane. It was submitted that it is not possible for the respondent to have jumped from the side of the road into the second lane where the 2nd appellant was. In face of these discrepancies, the respondent submitted that the evidence of the respondent was plausible that the accident occurred when the 2nd appellant failed to stop when a traffic officer ordered motorists to stop and as a result knocked down the respondent.

Analysis and Determination 12. This being a first appeal, it is trite law that the court ought to examine and re-evaluate the evidence on record, assess it and make its conclusion. This position was taken in Selle &anotherv Associated Motor Boat Co. Ltd.& others [1968] EA 123 where the Court of Appeal held that:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is and inconsistent with the evidence in the case generally.”

13. The issues for determination are on whether the trial magistrate erred on his finding on liability and on the award of quantum of damages.

Liability 14. It was the evidence of the respondent that she was knocked down by the 2nd appellant`s motor cycle because he failed to give way to pedestrians after traffic on his road were stopped by a traffic police officer and pedestrians started to cross the road. That she was the last pedestrian to cross the road as she was heavily pregnant and was knocked down when she was about to finish crossing the road. That other vehicles were stationary when the 2nd appellant surged forward and knocked her down.

15. The 2nd appellant on the other hand blamed the respondent for jumping into the road and crossing the road after a traffic policeman waved the traffic on his road to move.

16. I have reviewed the evidence adduced by both parties before the trial court. The 2nd appellant stated that he knocked down the respondent on the second lane of the road. The respondent said that she was heavily pregnant and that she was moving slowly. Considering that the respondent was heavily pregnant, it is not convincing that she jumped into the road all over a sudden and reached the second lane within no time. The evidence of the respondent that the 2nd appellant surged forward when pedestrians were crossing the road must be the true version of how the accident occurred. It is doubtful as was alleged by the 2nd appellant that the respondent jumped into the road and left other pedestrians behind. In the premises, I am in agreement with the finding of the trial magistrate that 2nd appellant is the one who was to blame for occasioning the accident by surging into the road when pedestrians were crossing the road. There was no evidence that the respondent contributed to the occurrence of the accident as it is pedestrians who were crossing the road at the time of the accident. The 2nd appellant left other motorists stationary on the road and surged forward. He therefore failed to give way to pedestrians who were crossing the road and knocked down the respondent. The finding of the trial court that the appellants were wholly liable for the accident is upheld.

Quantum 17. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal no 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“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. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

18. According to the medical report of Dr. Wokabi, the respondent had sustained:a.Blunt injuries to the scalp and faceb.Swelling on the right side of the face including the right eyec.Injuries to the right side molars.

19. The appellant urged the court to reduce the award to ksh 80,000/= and made reliance on the case of HB v Jasper Nchonga Magari &another [2021] eKLR where the court awarded ksh 60,000/= for soft tissue injuries composed of blunt object injury to the head and neck, thorax, abdomen and limbs. The appellant also relied on the award in the case of LNK (a minor suing through CNK as next friend & 2 others v Simon Gatuni Njukia [2022] eKLR where the court set aside awards of ksh 20,000/= for soft tissue injuries and replaced them with awards of ksh 80,000/= for each of the respondents.

20. The respondent on the other hand submitted that the award of ksh 200,000/= was not excessive. She relied on the case of Catherine Mbithe Ngina v Silker Agencies Limited (2021) eKLR, where the court awarded Ks.200,000/= for injuries on the occipital area, mid back, left elbow joint, right knee and on the left big toe. The respondent also cited the case of Lake Naivasha Growers v Muigai Thuku [2020] eKLR where the court upheld an award of ksh 250,000/= where the respondent had sustained soft tissue injuries on the left thigh and left leg.

21. It is trite that comparable injuries ought to attract similar awards. I have considered other cases where comparable awards were made for soft tissue injuries. In Channan Agricultural Contractors Ltd v Fred Barasa Mutayo [2013] eKLR the High Court reviewed downwards an award of ksh 250,000/ to ksh 150,000/= for moderate soft tissue injuries in the form of a blunt injury to the chest and head and cut wound to the left leg that were expected to heal in eight months’ time. In George Kinyanjui T/A Climax Coaches &anor. v Hussein Mahad Kuyale [2016] eKLR the High Court reviewed downwards an award of ksh 650,000/= to ksh 109,890/= for soft tissue injuries that were reported by one doctor as tenderness in the neck, chest, lumbo saxral spine, left shoulder and knee. In Dickson Ndungu Kirembe v Theresia Atieno & 4 Others [2014] eKLR the High Court similarly reviewed downwards an award of ksh 255,000/= to ksh 127,500= for soft tissue injuries which produced no complications. In Kenya Power & Lighting Company Ltd v Rose Anyango & another [2020] eKLR the court (Aburili J.) upheld an award of Ks.100,000/= for head injury with loss of consciousness and injury on the right knee with swelling.

22. The respondent herein only sustained blunt injury on the head, swellings on the face and right eye and injury on the right side molars. According to D.Wokabi she at the time of examination experienced frequent headaches and pain on the right jaw when chewing. During the hearing she said that she had fully healed. In my view the injuries sustained by the respondent were not that serious as to attract an award of ksh 200,000/=. I find the award to have been excessive for soft tissue injuries. I would interfere with the award. I consider an award of ksh 125,000/= to be sufficient for the injuries sustained.

23. The upshot is that the appeal on liability is dismissed. However, the appeal against quantum of damages is allowed and the award of ksh 200,000/= is set aside and substituted with an award of ksh 125,000/=.Orders accordingly. Each party to bear its own costs to the appeal.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF NOVEMBER 2023J. N. NJAGIJUDGEIn the presence of:Miss Muthie holding brief for Miss Opondo for AppellantsMiss Mulinge for RespondentCourt Assistant – Amina30 days Right of Appeal.