[2019] KEHC 1468 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CIVIL APPEAL NO. 38 OF 2019

1. CHARLES MOMANYI.................................................1ST APPELLANT

2. HUDSON MOKAYA......................................................2ND APPELLANT

VERSUS-

GODFFREY OGOTI SEME..................................................RESPONDENT

{Being an Appeal against the Judgement of Hon. B. M. Kimtai – PM Keroka dated and delivered on the 6th day of April, 2019 in the original Keroka Principal Magistrate’s Court Civil Suit No. 142 of 2016}

JUDGEMENT

This appeal is against the trial Magistrate’s finding of liability and the assessment of the damages awarded to the respondent following his claim for compensation for injuries sustained in an accident involving a motor vehicle Registration No. KAM 611X belonging to the 1st appellant but which was being driven by the 2nd appellant. The appeal is premised on grounds that: -

“1. The learned magistrate erred in law in making a finding of excessive damages against the defendants.

2. The learned magistrate erred in law and fact in holding that the defendant was liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.

3. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to General Damages of Kshs. 100,000/= without concrete documentary evidence.

4. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendants and thereby arriving at a wrong and erroneous conclusion condemning the defendant to special damages of Kshs. 5,000/= without concrete documentary evidence.

5. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendants and thereby arriving at a wrong and erroneous conclusion condemning the defendant to net damages of Kshs. 105,000/=.

6. The learned magistrate erred in law and fact in failing to appreciate the long established principle ofstare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages.

7. The learned magistrate erred in law and fact in failing to appreciate as follows: -

i. That the plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining the excessive award of damages.

8. The learned magistrate erred in law and fact in entering judgement in favour of the plaintiff against the defendant inspite of the plaintiff’s miserable failure to establish his case more especially on quantum.

9. The learned magistrate erred in law and fact in failing appreciate the legal position to be considered. The court award is unsustainable and baseless in the circumstances.”

The appeal which is vehemently opposed was canvassed by way of written submissions. Relying on Sections 107, 108, 109 and 112 of the Evidence Act, Counsel for the appellants submitted that it was encumbent upon the respondent to prove liability on a balance of probability as the mere allegation of a fatal injury will not automatically shift liability to the other party. Counsel further submitted that the respondent did not adduce any evidence imputing negligence upon the defendant. Counsel argued that there is no liability without fault and as the respondent did not prove his case on a balance of probabilities, the appellants should not have been held liable for the misfortune that befell him.

Regarding the quantum of damages, Counsel submitted that the award was inordinately high and did not reflect the injuries suffered by the respondent. Counsel submitted that an award of Kshs. 90,000/= would have sufficed bearing in mind the year the accident occurred. Counsel urged this court to allow the appeal. Counsel cited several cases in support of his arguments.

For the respondent, it was submitted that liability was strictly proved hence the trial Magistrate’s finding of 100% liability against the defendant. Counsel argued that the finding was not contested. He urged this court to uphold the same.

On the quantum of damages, Counsel submitted that Kshs. 100,000/= was reasonable given the injuries suffered by the respondent. Counsel urged this court to find that the trial court exercised its discretion properly and dismiss this appeal with costs to the respondent. Counsel cited several submissions.

On the issue of liability, this being the first appellate court my duty is to reconsider and evaluate the evidence in the lower court so as to arrive at my own conclusions albeit bearing in mind that I did not see or hear the witnesses – see Selle v Associated Motor Boat Ltd [1968] EA 123.

On the quantum of damages, the principles that should guide this court were paraphrased by Lenaola J, as he then was, in Kiwanjani Hardware Ltd & another v Nicholas Mule Mutinda [2008] eKLR when he stated: -

“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 based on some wrong principle or on a misapprehension of the evidence.”

The respondent testified that he was at a shop 15 metres from the road when the accident occurred. He stated that the vehicle Registration No. KAM 611X hit the wall of the shop breaking it as a result of which he sustained injuries. The 2nd appellant conceded that he was driving the vehicle on the material day. He stated that he was offloading sand and that he hit a kiosk when he reversed. He however blamed the respondent for the accident stating that he had built too close to the road. It is my finding that the 2nd appellant’s testimony was an admission of negligence. He admitted he had a side mirror which he should have used to ensure that he did not bump into people or even objects when reversing. He owed those people in the shop a duty of care since he was in charge of the vehicle which is considered a dangerous machine. The 2nd appellant’s evidence discloses he was negligent and it is immaterial that he was not charged with a traffic offence. In any event the respondent was a mere shopper who could not be blamed for construction of the kiosk “too close” to the road as alleged. I find nothing in the evidence to attribute contributory negligence to the respondent and conclude that the trial Magistrate did not err in finding the appellants wholly liable for the accident.

Regarding the quantum of damages, the respondent sustained soft tissue injuries, namely: -

Tender swollen right arm with bruises.

Blunt injury to the left forearm.

Blunt injury to the left foreleg.

The medical reports adduced in evidence were to the effect that he was treated and discharged the same day. Comparable injuries should attract comparable awards. I have considered the two cases cited by Counsel for the appellants. The trial Magistrate relied on the case of Godwin Ireri v Franklin Gitonga [2018] eKLR where a plaintiff with more serious injuries was awarded Kshs. 90,000/=. An increase of that amount by Kshs. 10,000/= therefore was in my view on the higher side even taking inflation into account. The injuries sustained by the respondent were more comparable to those of the plaintiff in Robert Ngare Gateri v Mango Transportation [2015] eKLRwhere an award of Kshs. 60,000/= was made. In my assessment an award of Kshs. 90,000/= (ninety thousand shillings only) which was conceded by the appellant is not only reasonable but adequate in the circumstances.

The special damages were not in contention and the same shall therefore remain undisturbed.

Accordingly, the appeal on liability is dismissed but that on the quantum of damages is allowed and the award of Kshs. 100,000/= is substituted with one for Kshs. 90,000/=. The specials shall remain at Kshs. 5,000/=.

The special damages shall attract interest at court rates from the date of filing suit while those on general damages shall attract interest at court rates from the date of the judgement in the court below.

As the appellant has succeeded only partially, I shall order that each party bears its own costs of the appeal. It is so ordered.

Signed, dated and delivered in Nyamira this 28th day of November 2019.

E. N. MAINA

JUDGE