[2023] KEHC 25309 (KLR)

Chilaga & another v Gude (Civil Appeal 85 of 2021) [2023] KEHC 25309 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25309 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 85 of 2021

DKN Magare, J

November 6, 2023

Between

Ali Chilaga

1st Appellant

Hamisi Chilaga

2nd Appellant

and

Lwayo Moris Gude

Respondent

Judgment

Background 1. This is an appeal delivered on 21/9/2021 by the honourable N C Adalo, principal magistrate in Mariakani CMCC 131 OF 2019. Though there are 4 grounds of appeal, the last one is otiose, being the evaluation of evidence and 2 of them are a repletion. There are only 2 issues in this appeal. They are:a.The court erred on liability by finding the Appellant 100% liableb.The court erred in assessment of quantum which is inordinately excessive

2. The appellant was the Appellant in the lower court suit.

Pleadings 3. The respondent pleaded that on 22/1/2019 he was a pedestrian along Samburu – Kinango road when the 2nd appellant drove motor vehicle registration number KAM 713 M negligently and as a result knocked the Respondent down and injured him.

4. The Respondent suffered the following injuries as per the plaint: -a.Multiple facial bruisesb.Bruises below the nostrilsc.Cut wound on the upper lipd.Dislocation of the right elbowe.Soft tissue injuries on the chestf.Soft tissue injury on the right shoulderg.Soft tissue injuriesh.To the lumber spine

5. The appellant prayed for special damages ofMedical report 2,500/=P3 form 1,500/=Total 4,000/=

The decision 6. The Court entered Judgment for the Respondent as follows: -a.Liability 100%b.General damages 300,000/=c.Special damages 2,500/=d.Total 302,500/=.

7. In arriving at the special damages the court relied on the case of Kigaraari Versus Aya (1982-88) 1 KAR 768 and Ugenya Bus Services Versus Gachiki (1982) eKLR. She reviewed the decisions the parties relied on before coming up with her own figure of 300,000/=.

Duty of the first Appellate Court 8. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

9. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

10. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows: -“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

11. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

12. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

13. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

14. The duty of the Court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

15. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of ……is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

16. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

17. Similarly in the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

18. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

19. For the appellate Court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

20. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

21. So my duty as the appellate court is threefold regarding quantum of damages:-a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

22. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

Evidence 23. The Respondent testified on 20/4/2021 that he was hit by motor vehicle Registration No. KAM 713 M. He sustained injuries on the face head, hands and chest. The Respondent produced 8 exhibits. He stated he cannot read and write but the names on the examination book are his.

24. PW2 Dr. John Wilson Eukot Oliam testified that he has been practicing medicine since 1982. He examined the Respondent and prepared a report. he classified the injuries as harm. The injuries were soft tissue. PW1 testified on the occurrence of the accident. He was cross examined. He stated that the Motor vehicle veered off the road. No defence evidence was tendered.

25. Though the Court considered authorities by the parties, and those setting out parameters for award of damages, she did not consider any particular decision of Authority on comparable authorities.

26. The appeal is principally on two aspects, as set out in the 4 grounds of appeal: -a.The Learned Trial Magistrate erred in law and in fact in holding that the Appellant was 100% liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.b.The Learned Trial Magistrate erred in law and in fact and misdirected herself by proceeding on wrong principles when assessing damages to be awarded to the Respondent if any and failed to apply precedents and tenets of the law applicable.c.The Learned Trial Magistrate erred and misdirected herself by awarding a sum in respect of damages which was inordinately high and excessive in the circumstances occasioning a miscarriage of justice.d.The Learned Magistrate erred in law and in fact by failing to adequately evaluate the evidence and the Appellant’s submissions and thereby arrived at a decision unsustainable in law.

Liability 27. The award of 100% is said to be excessive. The court was settling on liability on basis of evidence on record.

28. Only the plaintiff testified in support of his case. The appellants did not testify in support of contributory negligence set out in the Defence. in Leo Investment Limited v Mau West Limited & another [2019] eKLR, Justice C. Kariuki, held as doth: -“The appellant chose not to call any witness despite it having filed a defence. In Shaneebal Limited vs County Government of Machakos [2018] eKLR, Odunga J while quoting with approval various court decisions held as follows (in relation to failure to tender evidence in support of averments in a defence:“.......According to Edward Muriga through Stanley Muriga vs Nathaniel D. Shulter Civil Appeal No. 23 of 1997, where a Appellantdoes not adduce evidence the plaintiff’s evidence is to be believed as allegations by the defence is not evidence. In CMC Aviation Ltd vs Cruisair Ltd (No. 1) [1978] KLR 103; [1976-80] 1KLR 835, Madan J (as he then was) expressed himself as hereunder:

29. In Shaneebal Limited vs County Government Of Machakos [2018] eKLR, Odunga J, as then he was stated as following as regards to failure to tender evidence in support of averments in a defence:“.......According to Edward Muriga through Stanley Muriga vs Nathaniel D. Shulter Civil Appeal No. 23 of 1997, where a Appellantdoes not adduce evidence the plaintiff’s evidence is to be believed as allegations by the defence is not evidence. In CMC Aviation Ltd vs Cruisair Ltd (No. 1) [1978] KLR 103; [1976-80] 1KLR 835, Madan J (as he then was) expressed himself as hereunder:Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth....”

30. There were some particulars of negligence pleaded in paragraphs 5 of the Defence. They were not supported by defence evidence. By failing to testify in support of the particulars of negligence, the same became useless. There can be no liability without supporting evidence.

31. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, the Court of Appeal stated that submissions cannot take place of evidence. It stated: -“It is a firmly settled procedure that even where an Appellant has not denied the claim by filing of defence or an affidavit or even where the Appellant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”

32. Evidence ass tendered was only in support of the Respondents case on liability. I have Seen extremely colorful submissions on liability filed in the lower court. They remain just that colourful submissions.

33. They are not evidence and cannot replace evidence. The appellant did not file submissions in this matter. However, in the lower Court they relied on the case of Nandwa =vs= Kenya Kazi Ltd. (1988) KLR 488, where the Court of Appeal (Platt, Gachuhi JJA & Masime Ag JA) held as follows: -“On the evidence before the court the learned trial judge dismissed the appellant’s case with costs. The learned judge found that the appellant was responsible for the accident as he had failed to report the defects on the vehicle to the respondent and since the plaintiff was not obliged to drive the car if he knew it to be defective. In this last finding the judge relied on ss 55 and 58 of the Traffic Act. The court also found against the appellant because of his failure to produce evidence of the defects by a police inspection report. It is against these findings and the decision that this appeal is brought.With the greatest respect the learned judge misdirected himself on the evidence before him and hence made erroneous findings. The appellant’s pleadings and evidence established negligence and it was hence upon the Appellantto displace that negligence. There was no basis for the finding that the appellant knew of the defects as he only took charge of the vehicle at 5. 00 pm after it had previously been driven by another driver, who was not called as a witness.”

34. I fully agree. However, the converse is also true, the burden of providing the contributory negligence against the plaintiff is on the Defendant.

35. The plaintiff testified that he was lawfully walking on the road when the suit motor vehicle veered of the road, BI road at that, and injured the Respondent. It was incumbent upon the Appellant to show that the accident either occurred without their negligence, or in spite of careful, or through the contributory negligence of the plaintiff. This was not done. The driver did not testify and rebut evidence that the pedestrian was carefully on the road.

36. They also relied on the case of Isaac K. Chemjor & another v Laban Kiptoo [2019] eKLR, where the Court, Edward M. Muriithi J, held as follows:-“18. Negligence was in the driving at a high speed without due care that there were other vehicles and other road users to avoid collision with whom he would be required to slow down, and consequently should drive at such speed bearing in mind the traffic on the road and nature of the road and all surrounding circumstances that would permit the driver to safely control his vehicle and avoid accidents. The suggestion that another person could have been the cause of the accident and or contributed thereto must be proved by the maker in accordance with section 109 of the Evidence Act that –“The 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 that fact shall lie on any particular person.”

37. There being no evidence that could lead to any other probability that another person was involved or the cause of the accident, the Court on a balance of probabilities test believe the explanation for the accident as given by the respondent, and there was in it no reasonable hypothesis that another vehicle or person was involved in the cause of the accident. The respondent had discharged his burden of proof under sections 107 and 108 of the Evidence Act in showing that the accident was occasioned by the 2nd appellant in his driving fast beyond his ability to control the vehicle when he encountered another road user. There being no evidence of involvement in the cause of the accident by any other person the Court finds on a balance of probabilities that the events as related by the respondent are more probable than not”.

38. There being no defence evidence, the court had no evidence upon which to base contributory negligence

39. Consequently, an Appeal on liability is unmeritorious and dismissed.

40. On quantum, the Appellants had used the case of Dickson Ndungu Kiremba & Another vs Anua Onyango Chaka (2010) eKLR. the decision is 13 years old. I will not even border attending to it.

41. In that only Appellants filed submissions. The court did not have the benefit of the Respondent submissions. The injuries are also much less severe than the injuries suffered by the Respondent.

42. In this matter there was a dislocated elbow and multiple facial bruises. According to Dr. John W. E Olyian, several soft tissue injuries were suffered. He also lost consciousness which he required at the health facility. The Respondent was left with a 3 cm long scar above the right eye, thus affecting aesthetics. Theses nature if injuries attract between 250,000/= to 300,000/=. The award of Kshs. 300,000/= is high cut not inordinately high. This court cannot substitute its own discretion.

43. R. E Aburili confirmed an award of 200,000/= for far less injuries.

44. I therefore find no merit in the appeal and thus dismiss the same with costs.

Determination 45. The upshot of the foregoing is that I find that the appeal has no merit.a.I therefore dismiss the same with costs of Kshs. 65,000/= to the Respondent.b.The Respondent be at liberty to realize the guarantee deposited as security.c.File is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for parties.Court Assistant - Brian