[2022] KEHC 16111 (KLR)

Cindano & another v Ndwiga (Civil Appeal E012, E010 & E011 of 2022 (Consolidated)) [2022] KEHC 16111 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16111 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E012, E010 & E011 of 2022 (Consolidated)

LM Njuguna, J

December 7, 2022

Between

Angelo Maina Cindano

1st Appellant

Paul Mwangi Kamau

2nd Appellant

and

Winfred Wanja Ndwiga

Respondent

As consolidated with

Civil Appeal E010 of 2022

Between

Angelo Cindano

Appellant

and

Gabriel Muthee Ndwiga

Respondent

As consolidated with

Civil Appeal E011 of 2022

Between

Angelo Maina Cindano

1st Appellant

Paul Mwangi Kamau

2nd Appellant

and

Winfred Njoki Ndwiga

Respondent

(Being an appeal from the judgment of the learned Principal Magistrate Hon. H. Nyakweba in Embu CMCC No. 239,238 and 236 of 2018 dated and delivered on 18. 01. 2022)

Judgment

1. The instant appeals were instituted vide three separate memorandums of appeal all dated January 31, 2022 but which were consolidated on the September 26, 2022 with Civil Appeal No. E012 of 2022 as the lead file. All the appeals are premised on the same grounds as enunciated on the face of the memorandums of appeal.

2. The appellants thus prayed that the appeals be allowed with costs and the judgment of the trial court be set aside and a reasonable award be made for general damages as proposed in the appeals herein.

3. At the hearing of the appeals, directions were taken that the appeal be canvassed by way of written submissions.

4. The appellants reiterated their submissions before the trial court which submissions are found on pages 39-49 of the Record of Appeal in Embu HCCA No. E012 of 2022. They submitted that the respondent called PC Harrison Muchiri from Embu Police Station, the investigating officer in the matter herein, who stated that the respondents were to blame for the occurrence of the accident. It was their case that the respondents were standing in the middle of the road when the accident occurred and thus causing the accident herein. The appellants further submitted that the same was corroborated by the statement of DW1 and as such, it is clear that the respondents were the authors of their misfortunes. That as a result, the respondents ought to bear a greater degree of liability as the 1st appellant did not expect any pedestrians to be crossing and/or standing on the middle of the road at that particular time. Further, it was their submissions that should the court be inclined to find that the appellants contributed to the said accident, liability be apportioned at 50%:50% against the appellants and the respondents. Reliance was placed on the case of W.K (Minor suing through next friend and mother L.K. v Ghalib Khan Neer Construction Nyeri Appeal No. 328 of 2005.

5. On whether the trial court’s award on general damages was excessive, it was submitted that an appellate court can interfere with an award of trial court if it can be shown that the award is inordinately high or low as to present an erroneous estimate. It was averred that the trial court proceeded on wrong principles and/or misapprehended the evidence. On whether the court took into account irrelevant factors or left relevant factors in assessing the damages, reliance was placed on the case ofButler v Butler [1984] KLR. In reference to Embu HCCA 10 of 2022 Angelo Maina Cindano &another, v Gabriel Muthee Ndwiga the appellants contended that, the amount of Kshs. 450,000/= awarded by the trial court is inordinately high and an amount of Kshs. 300,000/= as general damages was proposed to be sufficient with reliance being placed inter alia on the cases of Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR and Morris Miriti v Nahashon Muriuki andanotherMRU HCCA No. 43 of 2014 [2018] eKLR; in Embu HCCA 11 of 2022 Angelo Maina Cindano & Another v Winfred Njoki Ndwiga where the trial court awarded Kshs. 100,000/= as general damages to the respondent, a proposal of Kshs. 50,000/= was proposed with reliance being placed inter alia on the cases of Buds and Bloom Ltd v Lawrence Emusugut Obwa (2016) eKLR and Kipkere Limited v Peterson Ondieki Tai (2016) eKLR.; and in Embu HCCA 12 of 2022 Angelo Maina Cindano & Another v Winfred Wanja Ndwiga, where the trial court had awarded Kshs. 100,000/=, an amount of Kshs. 50,000/= was equally proposed to be adequate with reliance being placed on the case of Buds & Bloom Ltd v Lawrence Emusugut Obwa(2016) eKLR. In the end, it was prayed that the determination by the trial court delivered on January 18, 2022 in the consolidated cases be set aside as a whole and the same be substituted with an order dismissing the respondents’ case against the appellants and in the alternative, this court be pleased to hold that liability be apportioned at the ratio of 50:50 between the appellants and the respondents in the respective appeals.

6. The respondents did not participate in the appeal.

7. I have certainly perused and understood the contents of the pleadings, proceedings, grounds of appeal, submissions and the decisions referred to by the appellants. This appeal therefore revolves around the following issues;i.Liability.ii.Damages.

8. As the first appellate Court, it is now well settled that the role of this court is to revisit the evidence on record, re-evaluate it and reach its own conclusion in the matter. (See the case of Selle &ano. v Associated Motor Boat Co. Ltd[1968] EA 123). This court nevertheless appreciates that an appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 andKiruga v Kiruga &another (1988) KLR 348). These authorities echo section 78 of the Civil Procedure Act and by dint of the same, it is clear that this court is not bound to follow the trial court’s finding of fact if it appears that, either, it failed to take into account particular circumstances or probabilities.

9. However, in the re-evaluation of the trial court’s evidence, there is no set format to which this court ought to conform to, but the evaluation should be done depending on the circumstances of each case and that what matters in the analysis is the substance and not its length. (See Supreme Court of Uganda’s decision in Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634 and Odongo andanother v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR).

10. It is trite law that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is the balance of probabilities (See Miller v Minister of Pensions [1947] 2 All ER 372 and section 107 of the Evidence Act). However, there is evidential burden which is captured by sections 109 and 112 of the Evidence Act. These two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi&another[2005] 1 EA 334, in which the Court of Appeal held that: -“As a general proposition under section 107(1) of the Evidence Act, cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in sections 109 and 112 of the Act.”

11. It follows that the burden of proof lay on the plaintiffs, the respondents herein to prove their case on a balance of probabilities. As Ibrahim J (as he then was) in Treadsetters Tyres Ltd v John Wekesa Wepukhulu (supra) held while finding the evidence on record not sufficient to prove negligence (more so breach of duty owed to the deceased) on a balance of probabilities and having made reference to Charlesworth & Percy at P. 392: -“The party seeking to recover compensation for damage must make out the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed.”

12. The appellants have urged this court to be pleased to hold that liability be apportioned at 50:50 between the parties herein. In HCCA 012 of 2022, the evidence adduced before the court and in all the three cases and which was similar was that on the material day when the respondent was hit by motor vehicle KBY 153 G, she was with her brother, Gabriel Muthee Ndwiga and sister in law, Winfred Njoki Ndwiga. That they were not crossing the road although she was at the driver’s door talking to him. She stated that the vehicle was off the road and that the vehicle that hit them veered off the road. PW3 on the other hand testified that he was the investigating officer and that he blamed the respondents herein for the occurrence of the accident. He stated that upon arriving at the scene, he was informed that the victims had been taken for treatment at Embu Level 5 Hospital and the motor vehicle was also not at the scene. The trial magistrate in his judgment analyzed these pieces of evidence to wit that apart from the plaintiffs, there is no other evidence that any other eye witness recorded a statement to act as a source of his information. That the source of whatever information the investigating officer relied on, was not disclosed thus his evidence only amounted to hearsay which is inadmissible.

13. In cross-examination, it was his evidence that the respondents recorded statements with the police and stated that they were attempting to cross the road when they were knocked down. In further cross-examination, he stated that the respondents were standing in the middle of the road talking to a driver of another motor vehicle when the accident occurred.

14. On the part of the appellants, the 1st appellant testified on December 7, 2020 and adopted his witness statement. He averred that he saw a motor vehicle that was parked in the middle of the road facing the direction he was coming from with its headlights on and when he got close to the motor vehicle he saw three people who were standing on the driver’s side in the middle of the road speaking to the driver, (the respondents). He slowed down to avoid hitting them but as he got nearer to the motor vehicle, the three people suddenly decided to cross the road. He swerved the vehicle to the left to avoid hitting them but it was too late as they were close. He blamed the respondents for the accident.

15. The court notes that the trial magistrate in his analysis of the evidence did not consider the evidence of the 1st appellant. In fact, he did not even mention it but rather, stated that the evidence of the respondents was not controverted which was not the case. The evidence of the 1st appellant and that of the police officer who testified as PW3 and who was the respondent’s own witness is materially the same on how the accident occurred. Though the learned magistrate discredited the evidence of PW3 for the reason that he did not disclose the source of his information, with the evidence of the 1st appellant (DW1) it was a misdirection by the learned magistrate to conclude that the evidence of the respondents was uncontroverted. I respectively disagree with that finding and which was the basis on which he found the appellants 100% to blame for the accident. In my view, it cannot be said that the evidence of PW3 and DW1 was worthless in assisting the court to reach a finding on liability.

16. Further, the court notes that the 1st appellant was not charged with a traffic offence following the accident and for that reason, I believe his evidence to some extent and find that the respondents were also to blame for the accident. However, considering that the 1st appellant was in control of a lethal machine, he ought to have been more careful when riding his vehicle on the said road at the material time and noting that it was at night. In the premises aforegoing, I hereby apportion liability in the ratio of 70:30% in favour of the respondents. That is to say the respondents to bear 30% and the appellants 70%.

17. On the issue of quantum of damages, the question is whether I have grounds to interfere with the damages awarded by the trial court. It is trite that the discretion in assessing general damages payable will only be disturbed if it is shown that the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is so inordinately high that it must be a wholly erroneous estimate of the damages or that it was inordinately low. I am guided by the decision by the Court of Appeal in Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that:Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

18. In HCCA E011 of 2022 where the respondent had suffered blunt soft tissue injuries (a cut wound and swelling) on the left arm at the elbow and soft tissue injuries (bruises and swelling) of the leg, the trial court awarded Kshs. 100,000/= plus special damages of Kshs. 2,030/= hence Kshs. 102,320/= while the appellant proposed an amount of Kshs. 50,000/= to be sufficient instead.

19. In HCCA E012 of 2022 respondent had suffered blunt soft tissue injuries (a cut wound and swelling) on the left arm at the elbow and soft tissue injuries to the leg, the trial court awarded Kshs. 100,000/= plus special damages of Kshs. 5,170/= hence Kshs. 105,170/= while the appellant proposed an amount of Kshs. 50,000/= to be sufficient instead.

20. In HCCA E010 of 2022 where the respondent had suffered fracture of the right tibia/fibula bones, soft tissue injuries to the right leg and soft tissue injuries of the left arm, the trial court awarded Kshs. 450,000/= plus damages of Kshs. 13,930/= hence Kshs. 463,930/= while the appellant proposed an amount of Kshs. 300,000/= to be sufficient instead.

21. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondents herein sustained injuries as already listed above and while the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR that;“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.”

22. Money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what in the circumstances is a fair compensation on the principle that comparable injuries should be compensated by comparable awards.

23. Considering the injuries sustained by the respondents and keeping in mind that no injuries can be completely similar, time and inflation. In HCCA 12 of 2022 where the respondent had suffered blunt soft tissue injuries ( a cut wound and swelling) on the left arm at the elbow and soft tissue injuries (bruises and swelling) of the leg, the trial court awarded Kshs. 100,000/= plus special damages of Kshs. 2,320/= hence Kshs. 102,320/= while the appellant proposed an amount of Kshs. 50,000/= to be sufficient instead.

24. The court in the case of Makueni HCA No.25 of 2018 as consolidated with HCCA No. 16 of 2016 JAP Quality Motors v F.K Wambua where the court awarded Kshs. 80,000/= for blunt injury to the chest, bruises to right lower limb and left upper arm and soft tissue injury to the chin.

25. Further, in Civil Appeal No. 54 OF 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another(2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded Kshs. 300,000/= which was reduced to Kshs. 100,000/= on appeal.

26. Looking at the case of Maimuna Kilungwa vs Motrex Transporters Ltd[2019] eKLR Makueni Civil Appeal No. 11 of 2017, the court awarded Kshs. 125,000/= for injuries to the neck, left ear and left shoulder.

27. InJohn Wambua v Mathew Makau Mwololo & another [2020] eKLR the plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. He was treated as an outpatient and was put on painkillers. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000/= and the same was affirmed by the High Court.

28. In HCCA 11 of 2022 respondent had suffered blunt soft tissue injuries (a cut wound and swelling) on the left hand (back pain), the trial court awarded Kshs. 100,000/= plus special damages of Kshs. 5,170/= hence Kshs. 105,170/= while the appellant proposed an amount of Kshs. 50,000/= to be sufficient instead.

29. In HCCA E010 of 2022 where the respondent had suffered fracture of the right tibia/fibula bones, soft tissue injuries to the right leg and soft tissue injuries of the left arm, the trial court awarded Kshs. 450,000/= plus damages of Kshs. 13,930/= hence Kshs. 463,930/= while the appellant proposed an amount of Kshs. 300,000/= to be sufficient instead.

30. In Sammy Mugo Kinyanjui &another v Kairo Thuo(2017) eKLR where the respondent had slight tenderness in the forehead, neck, chest, abdomen, right knee and both legs; fracture of the right tibia; fracture of the left tibia and fibula. His conclusion was that the injuries were very severe but had healed the court lowered the award of general damages from Kshs. 1,000,000/= to Kshs. 600,000/=.

31. In EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School[2018] eKLR where the High Court upheld an award of Kshs. 800,000/= where the plaintiff had suffered femur fractures and fractures of the tibia fibula.

32. In the case of Daniel Otieno Owino (supra) the court awarded the respondent a sum of Kshs. 600,000/= as compensation for a compound fracture of the tibia/fibula bones on the right leg, deep cut wound on the right leg, head injury with cut wound on the nose, blunt chest injury, soft tissue injury on the left lower limb involving the high and ankle region.

33. In Rayan Investments Limited v Jeremiah Mwakulegwa Kasha[2017]eKLR where the court awarded the claimant a sum of Kshs. 300,000/= as general damages for a fracture of the right fibula, severe blunt trauma on the left ankle joint, bruises on the right elbow and blunt trauma on the right wrist.

34. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. There is no reversible error on the same.

35. In the end, I find that the damages awarded to the respondents were reasonable and this court has no reason to interfere with the same as the appellants have not demonstrated how the learned magistrate erred in principle in awarding the amounts that he did.However, on the liability, the learned magistrate erred in failing to consider the evidence of the appellants. I hereby apportion liability at 70%:30% in favour of the respondents.Each party to bear its own costs of the appeal.It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE…………………………..……..…..for the Appellant……………………………….….for the Respondent