[2023] KEHC 25460 (KLR)

Doshi & Co. Hardware Limited & another v Ndumi (Civil Appeal 280 of 2018) [2023] KEHC 25460 (KLR) (Civ) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25460 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 280 of 2018

JN Mulwa, J

November 16, 2023

Between

Doshi & Co. Hardware Limited

1st Appellant

Patrick Nyoike Makato

2nd Appellant

and

Susan Nduku Ndumi

Respondent

(An appeal against the Judgment and Decree of the Chief Magistrates Court at Nairobi in CMCC No. 5822 of 2017 delivered by Hon. D. O. Mbeja (SRM) on 22nd May, 2018)

Judgment

1. Vide a Plaint dated 14/8/2017 the Respondent instituted a case at the lower court, Milimani CMCC No. 5822 of 2017 against the Appellant herein claiming general and special damages, costs of the suit and interest thereon. The claim arose from a road traffic accident that occurred on 6th March 2017 along Lusaka Road in Nairobi. It was pleaded that on the material day, the Respondent was riding on a motor cycle as a pillion passenger when the 2nd Appellant authorized servant, agent or driver negligently drove its motor vehicle registration number KBB 881A causing the said motor vehicle to collide onto the motor cycle. As a result, the Respondent sustained severe injuries for which he held the Appellant liable.

2. In their statement of defense, the Appellants then the defendants stated that if the accident ever occurred which they denied, the same was caused by the negligence on the Respondent’s part.

3. Upon full trial, the lower court held the Appellants wholly liable for the accident and awarded the Respondent Kshs. 1,500,000/- for general damages, and Kshs. 14,045/- for special damages plus costs and interest from date of filing of the suit. Aggrieved by the decision, the Appellant lodged the instant appeal by a Memorandum of Appeal dated 22nd June 2018 upon the following grounds that the trial magistrate failed to consider the evidence adduced before the court, and awarding excessive damages, and prays that this Appeal be allowed with costs and the judgment on general damages in the sum of Kshs. 1,500,000/= be set aside and be substituted with an appropriate order.

4. The Appellant’s evidence was adduced by DW1 Eric Okoth the turn boy of the Lorry KBB 881A that the motorcycle rider was being overtaken on the right side by the truck when it struck him on the left while travelling along Lusaka Road, Nairobi. During cross-examination, the witness claimed that he could not hold the Respondent accountable and that the driver, Patrick Nyoike, was not available to testify.

5. The Respondent’s case was that she was riding as a pillion passenger on the accident motorbike and that it was hit by the said lorry causing her injuries. On cross examination she confirmed that she was alone with the rider on the motorcycle and that she had a helmet and reflector on. She further testified that the lorry driver left the right hand side and hit them on the left side. On re-examination, she blamed the lorry driver for the accident.

Analysis and determination 6. This an appellate court. Its duty is to re-evaluate and re-analyze the entire evidence adduced before the trial court, draw its own conclusions bearing in mind that the judge never saw or heard the witnesses testify; and taking into account that it is not bound to follow the findings of fact as found by the trial court- Selle V. Associates Motor Boat Company [1968] EA 123.

7. The court has examined the Record of Appeal and the grounds of appeal. It has also given due consideration to the parties’ respective submissions and authorities cited and flags only two issues for determination thus:a.Whether the trial magistrate erred in law and fact in holding the Appellant wholly to blame for the accident.b.Whether the awards by the trial magistrate are excessively high as to invite the court to interfere with the same.

8. The Appellant testified that he was a turn boy and that he did not blame the Respondent for the accident. The driver of the lorry did not testify. On the other hand, the Respondent testified that she was a pillion passenger on motorcycle registration number KMDW 346R when it was hit from behind by vehicle registration number KBB 881A, and therefore being a pillion passenger, she had no control of the motorcycle.

9. Section 107 of the Evidence Act places the burden of proof on who alleges. In the case of Civil Appeal No. 100 of 2017 Rosemary Mwasya vs Steve Tito Mwasya & 2 Others (2018) eKLR the Court of Appeal held: -“Our reasons for affirming the Judges conclusions are that the deceased as a passenger had no control over the manner in which the appellant drove/managed and or controlled the accident vehicle prior to the accident.” (emphasis)

10. The argument of the Appellant is that there was no real attempt at proof, beyond mere words alleging the negligence as there was no sketch maps /photographs of the scene of the accident and there was no investigating officer called to give expert evidence and that the Plaintiff/Respondent did not discharge the requisite standard of proof for the trial court to be able to establish the occurrence of the said accident as a result of the Appellant’s negligence. For the argument of the Appellant to be sustained, he was at liberty to join the motorcyclist as a third party to the suit for the trial court to be able to apportion liability. Order 1 Rule 15 of the Civil Procedure Rules. T provides: -“(1)Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)—(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.(2)A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.(3)The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.”

11. Having failed to join the driver of the motorbike registration number KBY 732N as a third party, the trial court could not have apportioned liability between the Appellant and a person who was not a party to the suit. The Court is persuaded by the case of Benson Charles Ochieng & Anor v Patricia Otieno HCCA 69 of 2010 (UR) where it was held: -‘The trial court could not have apportioned liability between the appellants and a person who was not a party to this suit. This court is unable to agree with the Appellant's argument which was to the effect that the Respondent ought to be blamed for not joining the third party into the proceedings. This cannot be because it is the Appellants who will bear the consequences of any failure to include the third party into the proceedings.Mutatis Mutandis, in the present appeal, it is the Appellants who were to face the consequences for failure to join the motorcyclist to the suit. Having failed to join that party, the argument as to contribution of negligence fail.”

12. Thus, liability cannot be apportioned against a passenger even if the police abstract did not blame the Appellant. It would be unjust and illegal to condemn a party who has not been accorded the right to be heard by the court by fault of another party. To that end then, this court finds that the trial magistrate did not err by finding the Appellant wholly liable for the accident, and holds the Appellants jointly and severally wholly to blame for the accident and the Respondent’s injuries.

Damages 13. As a general principle, the assessment of damages is a matter of the exercise of court discretion and as such, an appellate court will normally be slow to interfere with such discretion unless it is very necessary. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:“An appellate court will not disturb an award for general 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...”

14. Further, an award of damages for personal bodily injuries should be commensurate to the injuries suffered and comparable to those made in past similar cases. In Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR, Majanja J. stated thus:“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”

15. The Appellant is only challenging the award of general damages, arguing that the trial court took into account some irrelevant facts and thus erroneously awarded the Respondent general damages of Kshs. 1,500,000/= which was inordinately high in the circumstances of the injuries sustained. In George Okewe Osawa v Sukari Industries Limited (2015) eKLR the Appellant sustained a fracture of the pelvis. In allowing the appeal the court awarded Kshs. 400,000/= as general damages.

16. On the other hand, the Respondent submitted that the Appellants failed to adduce an alternative medical report to controvert the Report by Dr. Mwaura. He therefore urged the court to uphold the trial court’s award of Kshs. 1,500,000/- for general damages for pain and suffering.

17. At paragraph 6 of the Plaint, the Respondent pleaded that as a result of the accident, he sustained the following injuries: fracture –ischial bone (pelvis), Diathesis (separation –ischial –iliac and wound right thigh and further assessed a degree of incapacitation at 15%. These injuries were duly corroborated by the medical report by Dr. Mwaura. The Appellant cannot purport to dismiss the medical report when it neither objected to its production during trial nor adduced an alternative medical report to challenge the one tendered by the Respondent. In the circumstances, the only issue that this court will concern itself with at this point is whether the trial court’s award of general damages is comparable to awards made in recent matters with comparable injuries.

18. In EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR the appellate court upheld an award of Kshs. 800,000 where the plaintiff had suffered femur fractures and fractures of the tibia fibula. In Denshire Muteti Wambua vs. Kenya Power & Lighting Co. Ltd [2013] eKLR the claimant suffered multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joined associated with a fracture of the radial head; dislocation of left lunate bone and bruises parietal scalp. The Court of Appeal awarded Kshs. 1,500,000 general damages when in fact the fractures in the case were much more serious. In Joseph Musee Mua vs. Julius Mbogo Mugi & 3 Others [2013] eKLR, the claimant sustained much more serious injuries resulting in surgeries in several hospitals and treatment. He had an injury to the left leg, on the head, and face. The left leg tibia and fibula were fractured. He had two broken upper jaw teeth i.e. one molar and one canine tooth. He had chest injury. He had right shoulder injury as well as bruises on the left elbow. The left leg was shortened due to the injury and the treatment procedures undertaken. The nerves therein were also affected. The Court awarded KShs. 1,300,000. 00 general damages. In Mwaura Muiruri vs. Suera Flowers Limited & Another [2014] eKLR the Plaintiff sustained multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left sub-axillary area), comminuted fractures of the right humerus upper and lower thirds of the tibia compound double fractures of the right leg upper and lower third tibia fibula. Court awarded Kshs. 1,450,000. In James Gathirwa Ngungi vs. Multiple Hauliers (EA) Limited & another [2015] eKLR the Plaintiff suffered compound comminuted fracture of the right tibia Compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands’ multiple facial cuts and lacerations and pathological /re-fracture of the right leg. Court awarded Kshs. 1,500,000.

19. Bearing the above authorities in mind, and considering the aspect of inflation and taking into account the passage of time and economic realities the court finds that the trial court’s award of Kshs. 1,500,000/- for general damage was not excessive in the circumstances of the case and will not be disturbed.

20. In conclusion, the court finds that the appeal lacks merit and is hereby dismissed with costs to the Respondent.Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 16TH DAY OF NOVEMBER 2023. JANET MULWAJUDGE