[2022] KEHC 10105 (KLR)

County Government of Meru v M’Mbutura (Civil Appeal E029 of 2021) [2022] KEHC 10105 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10105 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E029 of 2021

TW Cherere, J

July 7, 2022

Between

County Government of Meru

Appellant

and

Balet Gituma M’Mbutura

Respondent

(Being an Appeal from the Judgment and Decree in MERU CMCC No. 150 of 2018 by Hon. E. Mbicha (SRM) on 03rd February, 2021)

Judgment

1. By a plaint amended on 10th September, 2019 and filed on 11th September, 2018, Respondent sought against the Appellant damages for injuries he suffered on 01. 09. 2015 when he allegedly fell into an open sewage trench along Meru-Nanyuki Road allegedly due to the negligence of the Appellant.

2. Appellant in its statement of defence amended on 18th September, 2019 denied the Respondent’s claim and urged that the case be dismissed.

Respondent’s case 3. Respondent testified that on the material date at about 08. 30 pm, he was walking home along Meru-Nanyuki Road when he fell in a 60 metre trench as a result of which he was injured. He tendered a bundle of medical notes and receipts in support of his case that he has been going for daily physiotherapy sessions since the time of the accident.

4. Benson Mwirigi Mbui, Appellant’s Chief officer in charge of trade denied that there was an open sewage trench along Meru-Nanyuki Road in 2015 as alleged by the Appellant. He additionally stated that the sewage system does not extend beyond Makutano and that maintenance of the road is the responsibility of KENHA.

5. At the conclusion of the trial, the learned trial magistrate entered judgment on liability at 100% against Respondent and proceeded to award damages as follows:1)General damages Kshs. 1,500,000/-2)Future medical expenses Kshs. 2,300,000/-3)Special damages Kshs. 377,000/-4)Costs of the suit5)Interest

6)Aggrieved by the judgment, Appellant on 24th February, 2021 filed the memorandum of appeal dated 24th February, 2021 raising 7 grounds mainly that:1)The Respondent did not prove that there existed a trench along Meru-Nanyuki Road in 20152)The award of Kshs. 1,500,000/- for general damages is inordinately high3)The award of Kshs. 2,300,000/- for future medical expenses is inordinately high

7. This appeal was canvassed by way of written submission which both parties dutifully filed.

Analysis and Determination 8. In carrying out its mandate, the appellate court must reconsider the evidence before it, evaluate it and draw its own conclusions.

9. In John Onyango & another vs. Samson Luwayi [1986] eKLR the Court of Appeal expressed itself as follows: -“This court will not interfere with the findings of fact of the two lower courts unless it is clear that the magistrate and the judge have so misapprehended the evidence that their conclusions are based on incorrect bases: Abdul v Rubia 1917/1918 7 EALR 73. ”

10. I have carefully perused the record before me, and considered the grounds of appeal and submissions on behalf of the Respondent.

11. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The duty of proving negligence on a balance of probabilities lay squarely on the Respondent. In Karugi & Another V. Kabiya & 3 Others [1987] KLR 347 the Court of Appeal stated that:“The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof…. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”

12. The same court stated in Eastern Produce (K) Ltd V. Christopher Atiado Osiro[2006] eKLR, that the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd[1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

13. Appellant told court that he was informed by someone whose name he could not recall that the trench he fell into was a sewage trench dug by the Appellant. The court visited the scene and from the trial magistrate’s judgment, he stated as follows:“looking at the entirety of the evidence, I find that the trench appears to be a sewage project under the provisions of the County Government.”

14. From the record, it is apparent that there was no evidence that the trench that the Respondent fell into was a sewage trench for which Appellant would be responsible for. I therefore find that the learned trial magistrate fell into error when he attempted to fill the gaps in Respondents case.

15. Consequently, I find that Respondent failed to discharge the burden to prove that Appellant was negligent and the trial magistrate’s finding that Appellant was liable was against the weight of evidence and the case ought to have been dismissed.

16. Concerning quantum, Dr. Koome’s report dated 12. 06. 2018 reveals that Respondent suffered the following injuries:i.Bruises on the left of faceii.Soft tissue injuries to the backiii.Post traumatic back muscle spasms (pain)

17. The doctor stated that the back pains had affected Respondent’s conjugal obligations and his work as a mechanic since he cannot bend or lift heavy objects. A report dated 23. 07. 2018 reveals that Respondent requires physiotherapy to relief back pains at Kshs. 2,000/- three times a week for life.

18. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that the court’s decision is clearly wrong, because the court has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo V Shah (1968) EA 93 and Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1985] KLR 30).

19. The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and stated 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.(Emphasis added).1. Concerning assessment of damages, Kneller JA in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor,(supra) at page 35 stated as follows:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

20. Respondent had asked for Kshs. 5,000,000/- and had cited Ngure Edward Karega –vs- Yusuf Doran Nassir (2014) eKLR, in which the court awarded Ksh. 5,000,000/- for general damages for pain and suffering in 2014 (where the plaintiff sustained a fracture on the 6th cervical and, on the right leg rendering him incapacitated and not able to work.)

21. Appellant did not make any offer but submitted that the authority cited by Respondent related to more serious injuries. I note that the trial magistrate was persuaded that the cited case related to meore serious injuries and rightly awarded Kshs. 1,500,000/- which I find is reasonable.

22. Concerning special damages, I find that the offer made by the Respondent for Kshs. 768,000/- for physiotherapy at the cost of Kshs. 2,000/- three times a week; Kshs. 96,000/- for drugs and Kshs. 112,000/- for corsets for 10 years is reasonable considering the vicissitudes of life.

23. The evidence on record discloses that Respondent proved Kshs. 377,000/- for special damages.

24. Had the appeal not succeeded, I would from the foregoing have upheld the award on general damages but interfered with the award on future medical expenses and special damages in terms of paragraph (22) and (23) of this judgment

25. In the end, I find that the appeal has merit and the judgment in MeruCMCC No. 150 of 2018 dated 03. 02. 2021 is set aside and substituted with an order dismissing the case with. Respondent shall pay the costs of the case in the lower court and of this appeal

Dated at Meru this07th Day of July 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Mwirigi for Mwirigi Kaburu & Co. AdvocatesFor Respondent - Mrs.Muia for Muia Mwanzia & Co. Advocates