[2022] KEHC 1291 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO 19 OF 2021

BOLPAK TRADING CO LTD.....1ST APPELLANT

GEOFFREY MICHIERA...........2ND APPELLANT

VERSUS

GILBERT ONYANGO ODIE.........RESPONDENT

(Being an appeal from the whole of the judgment delivered by the Honorable Nathan Shiundu Lutta Chief Magistrate on 10th March 2021)

JUDGMENT

1. The Respondent herein GILBERT ONYANGO ODIE was the Plaintiff in the lower court while the appellants, BOLPAK TRADING CO LTDand GEOFREY MICHIERA, were the Defendants.

2. The respondent, filed a suit before the Chief Magistrate’s Court, Kisii vide a Plaint dated 17th May 2019, against the Respondents herein. The suit filed arose out of a road traffic accident that occurred on 2nd July 2018. The Respondent was a passenger in the appellants’ motor vehicle registration No KAR 947G when the said motor vehicle was allegedly negligently, carelessly and or recklessly driven along Kisii – Oyugis road causing it to hit motor vehicle registration mark KBW 713H and motor vehicle registration mark KAZ 519T. It was pleaded that as a result of the accident, the respondent sustained grievous injuries.

3. After a hearing the case before it, the trial court found the appellants to be 100% liable, and awarded damages as follows:

a. General damages Kshs 400,000/-

b. Special damages Kshs 16,105/-

c. Costs

d. Interest

4. The appeal lodged before this court is against the award on liability and damages based on the following grounds:

1. The Learned Magistrate erred in law and in fact in finding that the Appellants were 100% liable for causing the accident in the subject of this suit while there was a third party motor vehicle involved.

2. The Learned Magistrate erred in law and fact in (sic) was entitled to Kshs 400,000 (Four Hundred thousand) being general damages.

3. The Leaned Magistrate erred in law and in fact in disregarding judicial precedents quoted by the Appellants counsel in his submissions.

4. The Learned Magistrate erred in law in failing to consider conventional awards both on liability and quantum in cases of similar nature.

5. When the matter came up for hearing the court directed that the same be determined by way of written submissions which the parties have complied.

ANALYSIS AND DETERMINATION

6. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See the case of Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126).

7. The only evidence presented before the trial court was by the respondent.

8. Gilbert Onyango Odie (Pw3) testified that he was involved in a road traffic accident on 2nd July 2018 and relied on his witness statement as his evidence in chief. Pw1 testified that vehicle registration No. KAR 947G lost control around Nyakoe area and hit two vehicles, KAZ 519T and KBW 713H. In Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:

“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

9. Pw1 is the only person that witnessed the accident and testified as to the occurrence of the accident and his evidence was uncontroverted. The appellant did not prefer to institute third party proceedings and neither did it lead any evidence to show contributory evidence. I therefore find that the trial court cannot be faulted for holding the appellants’ were 100% liable for the accident.

10. I shall now turn to the issue of quantum of damages. In dealing with an appeal on quantum, I am guided by the decision of the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 where it held that;

“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 some material respect, and so arrived at a figure which was either inordinately high or low ….”

11. The appellants in their submissions have argued that an award of Kshs 400,000/- was inordinately high as the initial x-ray done by Dr. Kouko and the subsequent checkup by Dr. Jenifer Kahuthu reveal that the respondent only sustained soft tissue injuries.

12. The respondent in his plaint claimed to have sustained the following injuries: 7th right rib fracture, 8th right rib fracture, chest contusion, bruises on the face, blunt trauma to the lower back, right knee and left hand.

13. The initial treatment notes reveal that the respondent had fractured 2 ribs on the right lateral chest wall that was managed by committing the respondent to bed rest for 4 weeks. The P3 form and the medical report by Dr. Morebu Peter Momanyi also confirm that the respondent suffered fractures of the 7th and 8th ribs. I therefore find that the respondents proved that he sustained the injuries contained in the plaint.

14. The appellants further submitted proposed an award of Kshs 100,000/- based on the awards on soft tissue injuries by the courts in George Mugo & Another v AKM (minor suing through next friend and mother of A. NK) 2018; George Kinyanjui t/a Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR; and Ndungu Dennis v Ann Wagari Ndirangu & Another [2018] eKLR.

15. Although the appellants attempted to guide the court on damages, having found that the respondent suffered fractures of the 7th and 8th ribs, the cases cited by the appellant on soft tissue injuries offers very little guidance to the court.

16. The respondent on the other hand cited the case of Blue Horizon Travel Co Lt v Kenneth Njoroge [2020] eKLR the plaintiff pleaded the following injuries: bruises on the scalp, neck, abdomen and lower back; cut wounds on the left palm and thumb; and sublaxation of the left shoulder joint and was awarded Kshs 400,000/-. In K.B Sanghani v Lydia Wanjiku Njuguna & 2 Others [2016] eKLR where the plaintiff therein suffered fracture of the ribs (9th right rib as well as 5th, 6th, 7th, 8th and 9th ribs on the left side), bruised knee and developed chest problems and the court awarded general damages of Kshs 450,000/-

17. The authorities by the respondent do not provide awards on injuries that are similar and/or comparable to those sustained in this case. The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past (see Simon Taveta vs. Mercy Mutitu Njeru [2014] eKLR).

18. In the case of Morris Miriti v Nahashon Muriuki & another [2018] eKLRthe plaintiff sustained the following injuries: tender chest posterior and anterior, multiple bruises on the posterior chest, post traumatic fracture of the 3rd and 4th ribs with bilateral haemophreino thorax, left lung contusion and fracture of the right scapula. The court affirmed an award of Kshs 300,000/- for general damages. The injuries sustained by the plaintiff in Morris Miriti case (supra) are however slightly serious compared to those sustained by the respondent herein.

19. The respondent’s injuries are more comparable to the injuries sustained by the plaintiff in West Keya Sugar Company Limited v David Luka Shirandula [2017] eKLR. In the West Keya Sugar Company Limited case (supra)the plaintiff therein suffered fractures of 2 ribs on the right side, blunt injury to the right thigh, blunt injury to the right ankle, bruises to both elbows and blunt Injury to the right knee and was awarded Kshs 180,000/- for general damages.

20. Taking everything into account and noting the injuries sustained by the respondent and considering the awards for comparable injuries, I find that the award by the trial magistrate was high in the circumstances.

21. I am satisfied that an award of Kshs. 250,000/= is what would have been a reasonable award for the injuries at that time taking into account all relevant factors including inflation. The appellant rightfully abandoned their claim on special damages as the same were pleaded and proved to the required standard.

22. Accordingly, the trial court’s award for general damages for pain and suffering is set aside and is substituted with an award for Kshs. 250,000/=.

23. The appellants shall have half the cost of this appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF MARCH, 2022

R. E. OUGO

JUDGE

In the presence of:

Mr. Nganga For the Appellant

Mr. Orayo For the Respondent

Aphline Court Assistant