[2017] KEHC 2100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 121 OF 2006

ELDORET PACKERS LIMITED............................ APPELLANT

VERSUS

KIERU CHEGE..................................................... RESPONDENT

[An appeal from the original decree and judgment of A.B. Mongare, Resident

Magistrate, in Eldoret PMCC No. 605 of 2003 delivered on 18th September 2006]

JUDGMENT

1. The appellant is aggrieved by the judgment and decree in the Resident Magistrates Court dated 18th September 2006.

2. The appellant company was the defendant in the lower court. In a plaint dated 4th April 2003, the respondent pleaded that he was employed as a driver by the company. He claimed special and general damages for negligence. He testified that on 10th October 2002 he was driving the company’s vehicle registration number KAG 330G along Iten-Kabartonjo road. At a place called Tambach, the brakes failed leading to an accident in which he sustained injuries. The injuries disclosed in the plaint were: blunt trauma to the chest and spinal column; and, swollen left thumb, knees and legs. He suffered multiple lacerations.

3. By a statement of defence dated 30th April 2003, the appellant denied the claim in toto. In particular, the appellant denied that the vehicle belonged to it; or, that the plaintiff was its employee. At paragraph 7, the appellant contended that if any accident occurred, it was solely caused by the respondent’s negligence.

4. The learned trial magistrate found that the appellant was wholly to blame. She assessed general damages at Kshs 80,000. She found that the claim for special damages was not proved. The respondent was granted interest and costs.

5. The appellant lodged an appeal on 5th October 2006. There are sixgrounds of appeal. They can be condensed into three: First, that the trial court erred by holding that the appellant was 100% liable for the accident; secondly, that the learned trial magistrate disregarded the appellant’s documentary evidence and submissions; and, thirdly, that the damages awarded were exorbitant.

6. The appeal is contested. The appellant filed submissions on 11th April 2016. The respondent did not file submissions. On 19th September 2017 learned counsel for both parties made brief oral submissions. The appellant’s learned counsel, Ms. Ruto, submitted that the vehicle was properly serviced; that it could not have travelled all the way to Tambach with faulty brakes; and, that evidence at the trial showed that it could have been stopped using “frenos and gears”. She also submitted that the doctrine of volenti non fit injuria applied; and, that the respondent was guilty of contributory negligence. Considering the nature of injuries, counsel was of the view that an award of Kshs 25,000 would have been sufficient.

7. The respondent’s learned counsel Mr. Kamausubmitted that the appellant did not plead volenti non fit injuria; and, that there was no proof of contributory negligence. He was of the view that the accident was a result of brake failure; and, that gears can never be a substitute for brakes. It was the respondent’s case that the evidence of negligence was not rebutted by the appellant. Lastly, learned counsel submitted that the damages awarded were commensurate with the degree of injuries. I was implored to dismiss the entire appeal with costs

8. This a first appeal to the High Court. It is thus an appeal on both facts and the law. I am required to re-evaluate all the evidence on record and to draw independent conclusions. There is a caveat because I have neither seen nor heard the witnesses. See Selle v Associated Motor Boat Company Ltd [1968] EA 123, Williamson Diamonds Ltd v Brown [1970] EA 1.

9. I have considered the grounds of appeal, the pleadings in the lower court, the evidence in the trial court, the precedents and the submissions by learned counsel.

10. Paragraph 3 of the defence denied that the respondent was employed by the appellant. However, paragraph 2 of the appellant’s written submissions before the lower court conceded that the respondent was its driver. Doubt is removed completely by the respondent’s exhibit 1: his employment card issued by the appellant; and, the testimony of the appellant’s witness, DW1. I thus concur with the learned trial magistrate that the respondent was an employee of the appellant. I also find that the respondent was a company driver; and, that he was behind the wheel on 10th October 2002 when the accident happened.

11. The pleading in the defence that the appellant did not own the vehicle was inconsistent with the evidence. Although the log book was not produced, I entertain no doubt that the appellant was either the owner or in possession of the suit vehicle. The police abstract report (exhibit 5) produced by PW2 states that the owner was the appellant. The appellant did not rebut the evidence. I am fortified by the evidence of the appellant’s witness, DW1. At page 64 of the record, he stated-

“I know motor vehicle KAG 330G. It is an Izusu. It is motor vehicle for Eldoret Packers.”

12. I will now deal with the ground that the learned trial magistrate disregarded the submissions by the appellant. That is untrue. I have studied the judgment of the lower court. At page 70 of the record, the learned trial magistrate referred at length to the written submissions of the appellant; and, to some precedent cited by the appellant. The learned trial magistrate stated-

“I am alive to the Court of Appeal authority and finding in the case of Morgan Transport (K) Ltd v John Katonga Mulozii, Civil Appeal 92 of 1997. With due respect to counsel for the defence, this case is not applicable………………”

13. Furthermore, final submissions are only for the guidance of the court: they are unlike pleadings. There is no requirement that each and every submission or authority tendered be reviewed by the trial court in its judgment. See Joshua Shitawa v Kishan Builders Limited, High Court, Eldoret, Civil Appeal 32 of 2012 [2015] eKLR. This ground of appeal is totally devoid of merit.

14. The crux of the appeal is whether respondent was injured atwork; and, whether the appellant was negligent. A related issue is whether the respondent was guilty of contributory negligence. From the evidence of the respondent and DW1, it is conceded that the respondent was driving the appellant’s vehicle when the accident occurred.

15. From the evidence of DW1, the vehicle had previous problems with the brakes or drum. DW1 had worked as a mechanic for the company since 1984. He was trained at DT Dobie between 1972 and 1979. He repaired the suit vehicle a day before the accident. According to DW1-

“The motor vehicle had a mechanical problem….a defect at the rear wheel, brakes. The pipe was torn; it was pouring brake fluid. I opened it and replaced it with a new one. I did brake adjustment to the four wheels..…I gave the driver the vehicle to test..…the brakes were tested. It is not true I did a shoddy job”

16. The respondent admitted that the following day, he drove the vehicle for many kilometres before the accident. In cross-examination, he conceded that he “had passed many hills and valleys” before the accident. He said the “brakes worked well until they suddenly failed”. He then drove the vehicle into an embankment to stop its momentum. There is then the evidence of the motor vehicle inspector (DW2). In cross examination, he said the speed could be reduced by maneuvering the gears downwards. He said-

“I agree with you that the gears alone are sufficient to control the speed of an Isuzu F.S.R without stepping on the brakes….An experienced driver can successfully reduce the speed using the freno and gears”

17. A number of issues arise from that evidence. First, the vehicle had only been repaired a day before for brake problems. I am satisfied about the qualification of the mechanic and the nature of the repairs. But the problem recurred. It happened suddenly. It was easy for DW1 to theorize about possibilities of slowing down the vehicle using gears. But the point is that the brakes failed; and, the reaction of the respondent was to swerve into an embankment. Secondly, DW1 did not inspect the brakes due to the damage from the accident. He said he did not know how the accident occurred. I am unable in those circumstances to say that the driver contributed to the occurrence of the accident.

18. I will now turn to the defence of volenti non fit injuria.As I have stated, the vehicle had previous problems with its brakes or drum. DW1 had worked as a mechanic for the company since 1984. He was trained at DT Dobie between 1972 and 1979. He repaired the suit vehicle a day before the accident. The pipe was torn and was leaking brake fluid. He replaced it with a new one and adjusted the brakes. The vehicle was tested.When the respondent took up his duties the next morning, the brakes were functioning properly. I cannot then say that he deliberately assumed a risk. Furthermore, the defence of volenti non fit injuriawas neither pleaded nor proved.

19. I find that the respondent discharged the legal burden of proving negligence; or, breach of statutory duty of care. See section 107 of the Evidence Act. I am alive that the duty of the employer to ensure the safety of an employee is not absolute; it is one of reasonable care against a foreseeable risk or one that can be avoided by taking reasonable measures or precautions. See Halsbury’s Laws of England 4th edition volume 16 paragraph 562, Mwanyule v Said [2004] KLR 1, Arkay Industries Ltd v Amani [1990] KLR 309, Eldoret Steel Mills Limited vMoenga Obino, High Court, Eldoret Civil Appeal 3 of 2011 [2014] eKLR,John Karanja v Eastern Produce (K) Limited, Eldoret, High Court Civil Appeal 35 of 2013 [2014] eKLR.

20. In this case, there was ample evidence of recent brake problems with the vehicle. Although repairs were carried out the day before, the brakes failed causing the accident. It remains theoretical that the vehicle’s momentum could have been slowed using the gears. The fact remains that the brakes failed; and, the immediate reaction of the respondent was to swerve into an embankment. In the end, I concur with the learned trial magistrate that in all the circumstances of the accident, the appellant was wholly to blame for the accident.

21. I will now turn to quantum of damages. As a general rule, an appellate court will not interfere with quantum of damages unless the award is so high; or, inordinately low; or, founded on wrong principles. SeeButt v Khan [1982-88] KAR 1, Arkay Industries Ltd v Amani [1990] KLR 309, Karanja v Malele [1983] KLR 42, Akamba Public Road Services Ltd v Omambia Court of Appeal, Kisumu, Civil Appeal 89 of 2010 [2013] eKLR.

22. Immediately after the accident, the respondent was treated at Tambach District Hospital. The medical notes (plaintiff’s exhibit 2) showed bruises on the limbs. The back was not tender and there was no obvious oedema. The respondent was given pain killers and referred to another hospital. The P3 from Moi Teaching and Referral Hospital was made over five months later on 4th April 2003. It stated that the respondent’s chest, knees and legs had multiple bruises and were tender. The medical report by Dr. Samuel Aluda (PW2) is also dated 4th April 2003. He testified that the respondent had “slight tenderness in the chest, spinal column, left thumb, both knees and legs”.There were scars on the knees and legs.

23. The good doctor conceded that these were soft tissue injuries which had healed at the time of his examination. The respondent was at pains to explain the discrepancies between the injuries noted at Tambach Hospital on 10th October 2002; and, those in the P3 form and Dr. Aluda’s report made over five months later. From that evidence, I conclude that the respondent suffered minor bruises on his limbs, chest and back. Save for the scars, the injuries had healed by 4th April 2003. There was no permanent injury. The pain would subside with use of analgesics.

24. In Sokoro Saw Mills Limited v Grace Nduta Ndungu High Court, Nakuru, Civil Appeal 99 of 2000 [2004] eKLR the court reduced the general damages for soft tissue injuries to Kshs 30,000. Considering inflation and the nature of soft tissue injuries, and which had completely healed, an award of Kshs 40,000 was sufficient. I thus find that the award by the lower court of Kshs 80,000 was too high as to be founded on wrong principles. I set aside the award. I concur with the lower court that special damages were not proved.

25. In the result, the appeal succeeds in part. The appeal on liability is dismissed. The judgment of the lower court dated 18th September 2006 on quantum of damages is hereby set aside. Judgment is now entered in favour of the respondent against the appellant for general damages in the sum of Kshs 40,000 plus interest. The respondent shall have the costs in the lower court. Each party shall bear its own costs in this appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 7th day of November 2017.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

Mr. Aseso for Ms. Ruto for the appellant instructed by R. Odede & Company Advocates.

Mr. Mugambi for Ms. Nasiloli for the respondent instructed by Kalya & Company Advocates.

Mr. J. Kemboi, Court Clerk.