[2023] KEHC 24804 (KLR)

FKG (Suing as the Father and Next Friend to SW (Minor) & 2 others v Wachira (Civil Appeal 96, 97 & 98 of 2019 (Consolidated)) [2023] KEHC 24804 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24804 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 96, 97 & 98 of 2019 (Consolidated)

LM Njuguna, J

November 3, 2023

Between

FKG (Suing as the Father and Next Friend to SW (Minor)

1st Appellant

FKG (Suing as the Father and Next Friend to JBM (Minor)

2nd Appellant

FKG

3rd Appellant

and

Antony Muthomi Wachira

Respondent

(An Appeal against the judgments and decrees of the trial court in Wang’uru Magistrate’s Court Civil Case Numbers 127 of 2018, 128 of 2018 and 125 of 2018)

Judgment

1. The 1st, 2nd and 3rd appellants have filed memoranda of appeal dated 29th December 2019, for the 1st appellant and 09th December 2019 for the 2nd and 3rd appellants. They seek orders that:a.The appeals be allowed;b.The judgments and decrees of the learned magistrates be set aside;c.The plaintiffs’ suit in Wang’uru Magistrate’s Court Civil Case Numbers 127 of 2018, 128 of 2018 and 125 of 2018 be allowed and the respondent be held 100% liable for the accident;d.The Honourable court be pleased to award general damages and special damages to the appellants; ande.The costs of the appeals and trial court be awarded to the appellants with interest from the date of filing the lower court suits.

2. The grounds of appeal in all the three cases are:a.That the Magistrate erred in law and fact by finding that the appellants had failed to prove their cases on a balance of probabilities;b.That the Magistrate erred in law and fact by considering and addressing irrelevant matters that were not before the court;c.That the Magistrate erred in law and fact by finding that the respondent was not 100% liable for the accident and against the weight of the evidence before the court;d.That the Magistrate erred in law and fact by awarding figures that are manifestly too low if the judgments had been in favour of the appellants;e.That the Magistrate erred in law and fact by reaching a conclusion that was contrary to the evidence before him and the appellants’ submissions; andf.In all the circumstances of the cases, the findings of the trial magistrate were characterized by misapplication of the law and wrong exercise of discretion.

3. The facts of the cases are that on/or about the 26th day of December 2017, the 3rd appellant was riding motor cycle registration number KMDY 937G with the 1st and 2nd appellants being lawful pillion passengers thereon, along Embu-Mwea Road near Kimbimbi Town center, when motor vehicle registration number KCK 537M was so negligently and/or carelessly driven, managed and/or controlled that the same was allowed to knock down the appellants occasioning them severe bodily injuries and causing them to suffer loss and damage. The particulars of the injuries sustained were: in the case of the 1st appellant- bruises on the occipital region, in the case of the 2nd appellant-bruises on the face and the chest recurrent headaches and chest pains, and in the case of the 3rd appellant- bruises on the scalp, back and lower back with recurrent headaches and chest pains. In the plaints, the appellants sought general damages, costs of the suits with interest and special damages of Ksh. 3,550/= each for the 1st and 2nd appellants and Kshs. 5,550/= for the 3rd appellant.

4. The respondent filed a statement of defense denying the allegations made by the appellants stating that the accident, if any, was caused solely or substantially by the negligence of the appellants, and put the appellants to strict proof of the facts alleged.

5. PW1 stated that she was not the investigating officer of the cases but she had been briefed on the facts. That she did not visit the accident scene but was informed that the respondent’s vehicle hit the motorcycle and injured the appellants. She added that she did not know if the driver of the motor vehicle KCK 537M had been charged with a traffic offence and that she was not sure if the motor cycle was insured. That four people were on the motor cycle and three of them got injured from the accident. She also stated that she did not have conduct of the investigations and did not know how the same were progressing.

6. PW2 was the 3rd appellant herein who stated that on the day of the incident at around 10PM, he was riding the motorcycle while carrying his wife and two children when the motorcycle was hit from behind by the motor vehicle KCK 537M. That during the accident, the motor vehicle did not stop but one of its side mirrors had fallen off and it bore the registration number. It was his testimony that after the accident, him and his wife fell unconscious and he suffered recurrent headaches for seven months. That as a result of the accident, the minor who is the 2nd appellant did not attend school for one year, even though there was no proof that she was attending school before the accident. He did not produce a copy of his insurance sticker as an exhibit but he stated that he had his driving licence in court.

7. DW1 testified that he was the driver of motor vehicle registration number KCK 537M and that PW2 who was riding the motor cycle entered the road abruptly and without indicating. That he, (DW1) was driving at a speed of 50-60 KPH and was not able to swerve to avert the accident as there was an oncoming vehicle and that neither the driver nor the three passengers of the motorcycle were wearing reflector jackets. That he was not charged with any traffic offence and he blames PW2 for the accident. He stated that the accident happened at around 11PM and he did not stop because he feared for his life, even though the side mirror on the left-hand side had been broken during the accident. That he voluntarily reported the incident at Mwea Police Station but no charges were preferred against him.

8. The court noted that by consent, the parties agreed that Wang’uru Magistrate’s Court Civil Case Numbers 125 of 2018 will be the lead case of the three cases and went on to dismiss the plaintiffs’ claims on liability but the court assessed what it would have awarded the plaintiffs had they succeeded.

9. In this appeal, the court directed the parties file their written submissions and they complied in all the three appeals.

10. The appellants filed their submissions and supplementary submissions wherein they stated that they discharged the burden of proof to the required standard in accordance with Section 107 of the Evidence Act. That it is not in contest that the appellants were indeed involved in the accident and sustained serious injuries as this evidence was well corroborated. It was their argument that there was no junction and that PW1 did not enter the road but that he was riding the motorcycle on the road when the accident happened. That DW1 confirmed that the motorcycle was about 20 meters from the motor vehicle and it was carrying PW1, his wife and two minors being aged three years and the other 10 months old.

11. It was their case that PW1 was an experienced driver and knew how to use the road and therefore could not have maneuvered the motorcycle in the way narrated by the respondent. That the speed at which the motor vehicle was being driven was moderate and should have allowed the respondent to stop the motor vehicle and avert the accident but he did not stop. He placed reliance on the cases of William Kabogo Gitau Vs. George Thuo & 2 Others (2010) 1 KLR 526 and Miller Vs. Minister of Pensions (1947) 2 ALL ER 372. On the argument that the minors could not have contributed to the negligence that resulted in the accident, reliance was placed on the cases of James Gikonyo Mwangi Vs. D.M. (minor suing through his mother and next friend IMO) (2016) eKLR, Rahima Tayab & Others Vs. Anna Mary Kinanu (1983) KLR 114 and Multiple Hauliers (EA) Ltd Vs. DMK (minor suing through his next friend and father DKM) (2015) eKLR. They submitted that the court should find 100% liability on the part of the respondent and award general damages Kshs. 300,000/= in the case of the 1st appellant, Kshs. 300,000/= in the case of the 2nd appellant and Kshs. 400,000/= in the case of the 3rd appellant.

12. On his part, the respondent stated that the appellants did not call any witnesses in support of their case and yet they were aware of their burden of proof according to Section 107 of the Evidence Act. That PW1 conceded that he did not see the vehicle that hit the appellants but only found the side mirror at the scene of the accident. That they should have called witnesses to corroborate this evidence but none were called. It was their argument that the trial court’s finding on liability is accurate and should not be interfered with. He relied on the cases of Kennedy Nyangoya Vs. Bash Hauliers (2016) eKLR, Brian Muchiri Waihenya Vs. Jubilee Hauliers & 2 others (2017) eKLR and Lochab Brothers Ltd & Another Vs. Johana Kipkosgei Yegon (2017) eKLR.

13. He argued that the appellants were all given a clean bill of health after examination by Dr. Cyprianus Okoth Okere. He relied on the case of Joseph Wambura Vs. Joseph Mwangi Obai (2018) eKLR, Catherine Wanjiku King’ori & Another Vs. Gibson Theuri Gichubi (2005) eKLR, Patrick Mwiti M’Imanene & Another Vs. Kelvin Mugambi Nkunja (2013) eKLR and Kitale Hauliers Limited Vs. Emmanuel Soita Simiyu (2013) eKLR in making his case that general damages of Kshs. 30,000/= for each of the appellants would suffice. He also relied on the case of HB (minor suing through mother and next friend DKM) Vs. Jasper Nchonga Magari & Another (2021) eKLR where the court awarded Kshs. 60,000/= for soft tissue injuries.

14. I have considered the arguments made by the parties herein both at the trial court and on appeal and in my view, the issues for determination are:a.Whether the finding of the trial court on liability is to be upheld; andb.Whether general damages as envisioned by the trial court are inordinately low.

15. In these appeals, I am expected to re-evaluate the evidence and make a finding vis-a-vis the finding of the trial court. In the case of David Njuguna Wairimu Vs. Republic (2010) eKLR the Court of Appeal held as follows:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

16. On the first issue for determination, the trial court found that the respondent is not liable for the accident. This position is contested on appeal through the arguments made. The evidence by PW1 does not do much helping to the appellants’ cases as she was almost completely not conversant with the cases and the accident itself. PW2 explained how the accident happened, insisted that he was driving along the road and denied the allegation that he entered the road without indicating. It is alleged that the accident happened at night-time and no witnesses were called to testify as eye witnesses. In addition, the side mirror of the motor vehicle that hit the 3rd appellant’s motorcycle was recovered at the scene of the accident. The respondent who was DW1 alleged that he indeed drove off after hitting the motorcycle but he presented himself to Ruiru and later to Mwea Police Station where he reported the incident.

17. Sections 107 and 109 of the Evidence Act lay the burden of proof on the appellants, in this case to prove on a balance of probabilities, that indeed the respondent was liable for the accident. In the case of Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, it was held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

18. DW1 stated that he was about 20 meters from the motorcycle and was driving at a speed of 50-60KPH. Without the testimony of eye witnesses the evidence available is what will be used to determine liability. In my view, the respondent has a duty of care to the appellants being road users while the 3rd appellant also had a duty to ride the motorcycle with caution. The motorcycle was hit from behind and in my view, both parties could have done something to avert the accident. In the Court of Appeal case of Micheal Hubert Kloss & Another Vs. David Seroney & 5 Others (2009) eKLR it was held:“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley Vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:‘To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…’”

19. Going by the evidence on record, the 3rd appellant denied that he was on the murrum when he suddenly joined the road without any indicator. It was his further evidence that his wife who was a pillion passenger did not have reflective jacket yet it was at night. He stated that he had not spotted the respondent’s motor vehicle before the accident yet, according to him the vehicle was over speeding. The question that one may ask is, if the 3rd appellant did not spot the respondent’s motor vehicle before the accident, where did it come from so as to hit his motorcycle and how could he tell that it was overspeeding? I form the view that the 3rd appellant was not being careful while riding his motor cycle on the said road at the material time. He ought to have been careful since it was at night.

20. On the part of the respondent, he stated that he was driving between 50 km/ per hour – 60 km/per hour at the material time. That he saw the motorbike when it was 20 metres away before the accident. He could not swerve to the other side because there was an oncoming vehicle and he was not charged with a traffic offence. In my view, if he had been more careful on the road, he would have been able to see the 3rd appellant in good time and he could have avoided the accident.

21. From where I sit, the 3rd appellant and the respondent are both liable for the accident and therefore I find that a liability ratio of 50%:50% is practical in the circumstances as between the respondent and the 3rd appellant. In the case of the 1st and 2nd appellants, at the time of the accident, they were minors aged 3 years and the other 10 months. There cannot be contributory negligence inferred in this regard as they were not old enough to exercise any due care to avert the accident. They were in the complete care of their parents at the time of the accident. Therefore, the 3rd appellant and the respondent are wholly liable for the injuries sustained by the 1st and the 2nd appellants. In the case of Gough Vs. Thorne (1966) WLR 1387 Lord Denning stated that:“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elder. He or she is not to be found guilty unless he or she is blameworthy.”

22. This was also the position held in the case of Bashir Ahmed Butt Vs. Uwais Ahmed Khan (1982 – 88) IKAR 1 (1981) KLR 349 where the Court of Appeal held that:“…..A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child....”

23. That being said, on the issue of award of damages, the trial court had envisioned what the awards would be if liability had been apportioned. In the case of Savanna Saw Mills Ltd Vs George Mwale Mudomo (2005) eKLR the Court stated as follows:“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

24. I have considered other court’s findings in Wang’uru Magistrate’s Court Civil Case Number 127 of 2018 (which is HC Civil Appeal No. 96 of 2019) herein where the court awarded Kshs. 120,000/= for pain suffering and loss of amenities. Comparatively, I have considered similar cases as follows:a.Ndungu Dennis Vs Ann Wangari & Another, Kiambu HCCA 54/2016 decided in February 2018, the High Court awarded KShs.100,000/= general damages to the plaintiff who sustained injuries involving a blunt head injury, head concussion (brief consciousness), blunt injuries to the chest and both hands. The Medical report stated that he experienced back pains and chest pains on exertion.b.Godwin Ireri Vs Francline Gitonga Meru HCCA 47/2015 [2018] eKLR decided in May 2018 the Plaintiff was awarded KShs.90,000/= for injuries involving two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.c.Mumias Sugar Company Limted Vs Julius Abuko Shibia [2015] eKLR Kakamega HCCA 112/2011, an award of KShs.100,000 was made in favour of the plaintiff who suffered blunt injury to the neck, blunt injury to the occipital region of the head, blunt injury to the right shoulder, complaints of neck pain on and off with backache.

25. In Wang’uru Magistrate’s Court Civil Case Number 128 of 2018 (which is HC Civil Appeal No. 97 of 2019), the court awarded Kshs. 200,000/= as general damages for pain, suffering and loss of amenities. In comparison, previous courts have applied the following awards:a.In the case of Dr Harish Cunilal Shah Vs Richard Kipkoech Sang and Another NRB HCCC No. 307 of 1997 [2004] eKLR, the court awarded Kshs. 150,000/- in 2004 where the plaintiff had sustained a cerebral concussion, laceration on the forehead, fracture of four left side ribs and bruising on the chest and a fracture of the acetabulum of the left hip joint without any displacement.b.Kisii Bottlers Limited Vs Josephine Akinyi Mwikwabe [2011] eKLR the Plaintiff sustained blunt head injuries, cerebral concussion, blunt injuries on the abdomen, bruises on the abdomen, fracture on the right hand and complained of persistent pain on right arm, headache and dizziness, they were awarded 220,000/- by the trial court which award was maintained on appeal.

26. In Wang’uru Magistrate’s Court Civil Case Number 125 of 2018 (which is HC Civil Appeal No. 98 of 2019), the trial court would have awarded Ksh. 250,000/= as general damages for pain, suffering and loss of amenities. In comparison I have considered the following cases:a.In the case of Arrow Car Limited Vs Elijah Shamalla Bimomo & 2 Others – Kisumu Court of Appeal C.A. No. 344 of 2001 the court awarded Kshs. 400,000/= as general damages.b.In the case of Joseph Mutua Nthia Vs Fredrick Moses M. Katuva [2019] eKLR the court upheld an award of Kshs. 400,000/= as general damages for similar injuries.c.In the case of Patrick Murithi Mukuha Vs Edwin Warui Munene & 5 Others [2005] eKLR the court awarded Kshs. 500,000/= as general damages for similar injuries.

27. Based on the above precedents, I find that the trial courts’ view of the damages due to the 1st and 2nd appellants are reasonable but in the case of the 3rd appellant, the award would have been inordinately low. I have also considered the rate of inflation in the award of these damages. On the question of special damages, the same have been proved and shall be awarded as pleaded.

28. Therefore, I find that the appeals partly succeed and I make the following orders; the judgments and decrees of the trial court in Wang’uru Magistrate’s Court Civil Case Numbers 127 of 2018, 128 of 2018 and 125 of 2018 are hereby set aside. For the avoidance of doubt, the amounts shall be as follows:a.In HC Civil Appeal No. 96 of 2019Liability 50%:50%General damages Kshs. 80,000/=Proven special damages Kshs. 3,550/=Grand Total Kshs. 43,550/=b.In HC Civil Appeal No. 97 of 2019Liability 50%:50%General damages Kshs. 120,000/=Proven special damages Kshs. 3,550/=Grand Total Kshs. 63,550/=c.In HC Civil Appeal No. 98 of 2019Liability 50%:50%General damages Kshs. 180,000/=Less 50% contribution Kshs. 90,000/=Subtotal Kshs. 90,000/=Proven special damages Kshs. 5,550/=Grand Total Kshs. 95,550/=d.The appellants are awarded half of the costs of the appeals.e.Special damages to attract interest from the date of filing of the suit and the general damages to attract interest from the date of the judgment of the trial court.

29. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE.………………………………………………...…..for the Appellants…………………………………………….…....for the Respondent