[2022] KEHC 1397 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NUMBER 98 OF 2020

GEORGE KARANJA MUKUNDI...................................................................................APPELLANT

VERSUS

MARIERA FRANCIS..............................................................................................1ST RESPONDENT

VICTOR NYACHIEKA MARIERA......................................................................2ND RESPONDENT

(Being an Appeal arising from the Judgement of Honourable Eunice Kelly,

Resident Magistrate delivered on the 9th August, 2019)

JUDGMENT

1. The Appellant George Karanja Mukundi formerly the plaintiff in CMCC No. 1147 of 2015 has appealed against the Judgment of the trial court on both liability and assessment of damages vide his Memorandum of appeal dated 25th May, 2020 on the following grounds: -

(1)The Learned Trial Magistrate erred in Law and in fact in holding that the Appellant was intoxicated with alcohol while crossing the road hence the author of his own misfortune when there was no plausible evidence that the Appellant was intoxicated at the time of the accident.

(2)THAT the learned trial magistrate erred in law and in fact in failing to appreciate that alcoholism observed as final diagnosis in the discharge summary was a disease as opposed to the state of drunkenness hence wrongly blaming the Appellant for the accident

(3)THAT the learned magistrate erred in law and in fact in failing to appreciate that the 2nd respondent as a motorist had a higher liability to have a proper lookout for pedestrians and other road users and hence ought to have shouldered a higher percentage of liability.

(4)That the learned magistrate erred in law and fact by failing to find that the accident was wholly caused by the reckless and careless driving of the respondent who contravened section 86 and 87 of the Traffic Act by driving at an excessive speed under the circumstances hence was unable to control the motor vehicle to avoid the accident.

(5)THAT the learned magistrate erred in law and fact by failing to consider the severity of the injuries sustained by the Appellant as a result of the accident hence awarding low amount of damages.

(6)The Learned Magistrate erred in law in disregarding the Appellant’s evidence on record and written submissions in making her judgement hence the erroneous judgement.

2. The appellant thus prayed for orders that: -

(a)This appeal be allowed and the court do find the respondents jointly and severally wholly to blame.

(b)The judgement of the trial court be set aside and this court do award him damages commensurate to the injuries sustained.

(c) He be awarded costs of the appeal.

BRIEF FACTS OF THE CASE IN THE SUBORDINATE COURT

3. Vide a plaint filed on 8th October 2013, George Karanja Mukundi sought damages for injuries sustained in a road traffic accident which took place on 10th July, 2015. His case was that at the material time he was lawfully walking along Nakuru - Nairobi Highway when at Kiondo Area the 2nd respondent so negligently drove Motor Vehicle Registration Number KAV 807 U that he violently knocked him down as a result of which he sustained serious fracture injuries. He blamed the respondents, their agent, servant or employee for the accident. The particulars of negligence were as outlined in paragraph 5 of the Plaint.

4. He alleged negligence on the part of the 2nd respondent:

(a) Driving Motor Vehicle Registration No. KAV 807 U in a built up area at an excessive speed in the circumstances.

(b) Failure to have sufficient look out for the safety of other road users particularly pedestrians.

(c) Failure to stop, slow down, brake, swerve in any other manner so manage Motor Vehicle Registration No. KAV 807 U so as to avert the accident.

(d) Failure to observe the Highway Code and the Traffic Rules hence the resultant accident.

(e) Driving Motor Vehicle Registration No. KAV 807 U without due care and attention.

(f) Failure to exercise skills reasonably expected of a competent driver in so managing Motor Vehicle Registration No. KAV 807 U.

5. The defendants/respondents filed their defence on 6th November, 2015 denying any breach of duty of care and or particulars of negligence as pleaded by the appellant. They blamed the plaintiff Appellant for substantially contributing to the Accident for:

a. Failing to keep a proper look out so as to avoid the accident.

b. Failing to see the Motor Vehicle in time to avoid the accident.

c. Failing to appreciate the fact that Vehicle are frequent on that road hence be on the proper look out while crossing the road.

d. Crossing the road abruptly without proper look on the road to ascertain whether it was safe to cross.

e. Failing to exercise due caution and reasonable precaution when using the road.

6. PW1, No. 49807 Cpl Jackson Konge from Nakuru Police Station produced the OB and the abstract with respect to the accident. He said the accident happened along the Nakuru Nairobi Highway at Kiondo area between the pedestrian and motor vehicle registration number KAV 807 U on 10th July 2015. That the driver was one Victor Ngariena who was charged with the offence of careless driving. He said the plaintiff was crossing the road from right to left side facing Nairobi and was no indication in the OB that there was a Zebra Crossing at the scene of the accident.

7. The appellant George Karanja, was PW2. He testified that on 10th July, 2015 while he was standing between two roads near a tree facing Nairobi road waiting for the road to clear so that he could cross, he was hit by Motor Vehicle Registration number KAV 807 U which was heading to Nairobi. He sustained fracture injuries of his right leg and right hand. He was admitted in hospital for one month. He produced his discharge summaries, invoices for Kshs. 327, 821/=, plus a bundle of receipts, medical report, search records for the motor vehicle and the demand letter to the appellants. He said that he had a metal inserted in his leg that would stay there for life and that he still felt pain in his leg.

8. Upon cross examination he stated that he was hit while standing between two roads. That there were trees at the point where he was standing, that the road was clear and he only saw the motor vehicle after he was knocked down. He denied being drunk on the material date, that Motor Vehicle that hit him was speeding but he did not know the exact speed it was moving at. On re exam he clarified that there was no indication of taking alcohol in the hospital record.

9. PW3, Elisha Odhiambo, the records officer at Nakuru Nursing Home testified that the appellant was admitted on the 11th July 2015, discharged on 27th July 2015 then re admitted on the same date and discharged on the 13th August 2015. He produced the discharge summaries and stated that the final diagnosis was alcoholism.

10. DWI, Victor Nyachieka Mariera, 2nd respondent herein, testified that on the material date he was driving motor vehicle registration number KAV 807 U from Nakuru town heading to pipeline. When he reached Kiondo Center while driving at a speed of 40-60 km per hour someone jumped onto the road about 10m away from him. He swerved to the right but he hit him. He said he was on the outer lane and he couldn’t avoid the accident, the accident scene did not have zebra crossing, the Appellant was drunk and he crossed the road when it was not safe to do so.

11. He said that after the accident he went to assist the appellant with the help of some good Samaritans and hired a taxi to take him to hospital. He said that the appellant was smelling of alcohol and that he ran across the road

12. On cross examination he stated that the appellant was crossing the road from the left to the right direction. He saw him about 10 meters away. He said he was crossing the road from the outer lane and that he reported the accident but the police never visited the scene.

13. On the issue of liability, the trial court found the appellant was eighty five percent (85%) to blame for the accident whereas the respondents were fifteen percent (15%) to blame. According to court the appellant was liable for the accident because of the following;

(i) Evidence of PW1 showed that the appellant crossed the road while running and when it was not safe to do so.

(ii) The discharge summary from Nakuru Maternity and Nursing Home dated 27th July 2015 gave final diagnosis as alcoholism and having been intoxicated at the time of the accident, the appellant’s ability to make good judgement of the situation may have been impaired such that he could not determine whether it was safe to cross the road.

(iii) There was no Zebra crossing at the scene of the accident and the appellant failed to exercise more care before crossing.

14. The court also found that the respondents were to blame for the accident because;

(i) They failed to control the motor vehicle so as to avoid the accident.

(ii) They failed to exercise caution while driving on the road at 7 pm noting that the area where the accident occurred has no zebra crossing but was often used by the pedestrians to cross.

15. On damages the court relied on the injuries as pleaded in the Plaint and the case of Wilson Lonapa Vs Patrick Kamanda Ngugi [2012] eKLR where the plaintiff was awarded Kshs.500,000/= as general damages for a fracture of the right tibia and humerus.

16. Special damages of Kshs. 328,321/= were awarded based on the receipts that were adduced by the appellant.

17. Costs and interest of the suit was also awarded to the appellant.

18. Parties consented to canvass the Appeal through Written Submissions.

19. Theappellant filed his Submissions dated 20th August 2020 on 25th August 2020.

20. With regard to Grounds of Appeal 1, 2, 3 and 4 as set out in the Memorandum, the appellant submitted that the court erred and misdirected itself in determining the issue of causation of the accident for the following reasons;

· There was No iota of evidence to prove that the Appellant was intoxicated at the time of the accident.

· The investigation report compiled by Gaskins Insurance Investigators and assessors dated 12th August, 2015 on behalf of the respondents did not state or allege that the Appellant smelled of alcohol at the time of the accident.

· The 2nd respondent did not record in his statement with the investigators that the Appellant smelled alcohol.

· The insurance accident investigator in his report at page 33 concluded that the 2nd respondent may have been driving at an excessive speed thus colliding with the Appellant.

· The defence of intoxication was not pleaded in the Respondent’s statement of defence dated 5th November, 2015.

· The 2nd respondent’s oral testimony that the Appellant was intoxicated was completely an afterthought and not credible.

· The trial court misapprehended the testimony of PW1 as this witness never stated that the appellant ran crossing the road without confirming that the road was safe nor did he state that the appellant was to blame. There were two conflicting accounts as to how the accident occurred and the court appreciated that the point of impact was not established and therefore the finding that the appellant was the author of his own misfortune was misplaced.

· The trial court in its judgement at page 132 correctly pointed out that the 2nd respondent who was in possession of the lethal machine may have been driving it at a such a speed that he was unable to control it and to avoid the accident.

· There is evidence that the 2nd respondent did not hoot when he saw the Appellant and he changed lanes from the outer lane to the right lane was consistent with the evidence of the Appellant during cross examination that the respondent motor vehicle was overlapping.

21. The appellant submitted that the cause of the accident was speeding by the 2nd respondent and not intoxication or drunkenness on his part. The appellant relied on the case of John Wanaina Kagwe Vs Hussein Dairy Limited [2013] eKLR which overturned the High Court decision which found the plaintiff was to wholly blame for the accident on allegations of driving while drunk. The Court of Appeal was of the view that if the appellant was indeed drunk, the same would have been noticed and recorded by the respondent in their statement and that defence of driving under the influence of alcohol against the Appellant was never proved by the defence.

22. On grounds 5 and 6 the appellant referred this court to Doctor’s Omuyoma’s interim medical report and the discharge summaries. He argued that the trial’s court award of Kshs.500,000/= as general damages for pain and suffering was too low. That the trial court did not take into account that the appellant will require to undergo a further operation subjecting him to more expenses and more pain. The appellant reiterated that an award of Kshs.1,500,000/= was reasonable award for general damages for pain and suffering.

23. The appellant in support of this position relied on the following cases;

· Charles Mwania & Another vs Batty Hassan And Another HCCA No. 106 of 2003. - In this case the plaintiff sustained soft tissue injuries and fracture of right tibia and fibula and the court awarded Kshs.800,000/= as general damages for pain and suffering and a further Kshs.120,000/= for future medical care.

· Joseph Musee Mua vs Julius Mbogo Mugi & 3 Others[2013] eKLR- the plaintiff sustained fracture to the left leg tibia fibula, two broken upper jaw teeth and soft tissue injuries and the court awarded Ksh.1. 3 million.

· Shem Shituyi vs Rexon Shiyonga[2004] eKLR – the respondent sustained soft tissue injuries and he was awarded Kshs.500,000/= for pain and suffering.

· Easy Coach Ltd vs Emily Nyangasi[2017] eKLR where the court awarded Kshs.700,000/= as general damages for pain and suffering for soft tissue injuries.

· Loise Njoki Kariuki vs Bendriacon Wamboka Waswa & Another [2013] eKLR the court awarded Kshs.1. 5 million for compound fractures of humerus right upper arm and fractures of bones of the right forearm.

· Mwaura Muiruri Vs Suera Flowers Limited & Another[2014] eKLR court awarded Kshs.1. 9 million general damages for multiple soft tissue injuries communited fractures of the right humerus, upper compound fractures of the right leg.

· Mary Pamela Oyioma vs Yess Holdings Limited[2011] eKLR court awarded Kshs.900,000/=general damages for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.

· Mishek Musili Mutiso vs Mahmoud Osman & Another HCC No.45 of 2000. The court awarded general damages for pain suffering and loss of amenities of Kshs.960,000/- for fracture humerus, fracture 5th Metatarsal, severe crush injuries of the right foot with deep wounds.

24. The respondents filed their submissions dated 4th March, 2021 on 9th March, 2021.

25. With regard to grounds 1 - 4 of the Appeal, the respondents supported the trial court’s judgement. They argued that evidence on record established that the appellant was running while crossing the road without a proper look when he was knocked down. That this evidence was presented by PW1 and corroborated by the 2nd respondent.

26. They also argued that there was no zebra crossing on the scene of the accident and that the discharge summary showed that the appellant was intoxicated on the material day while crossing the road. They stated that even though intoxication was not pleaded in their defence a court may base its decision on unpleaded issue if in the course of trial a party addresses and leads evidence on the issue. For this proposition they relied on the case of Sarah Jelangat Siele Vs Attorney General & 3 Others[2018] eKLR.

27. On ground 5 and 6 of the Appeal, the respondent cited the case of Charles Owino Odeyo vs Appollo Justus Andawa & Another[2017] eKLR where the court held that issue of damages is within the discretion of the court be interfered with only in certain circumstances.

28. The respondent contended that the trial court award of Kshs.500,000/= as general damages was reasonable. To support this position, the respondents relied on the following cases

· Tabro Transportes Ltd vs Absalom Dora LumariBungoma HCCA No.3 of 2012 where the court awarded the claimant Kshs. 400,000/- for multiple soft tissue injuries and fracture of left tibia and fibula.

· Zacharia Mwangi Njeru Vs Joseph Wachira Kanoga,Nyeri HCCC No.9 of 2012, where the court awarded the plaintiff Kshs.400, 000/- for sustaining fracture of the tibia and fibula.

· Harun Muyona Bose vs Dr. Daniel AguloMigori HCCA No.86 of 2021 the court awarded the plaintiff Kshs. 300,000/= for fracture of the tibia and fibula injuries.

· Civicon Limited Vs Richard Njomo Omwancha & 2 Others[2019] eKLR the court awarded Kshs. 500,000/= for fracture of four upper teeth, cut wound on the upper and lower lips, swollen and tender upper lip, bruises on the chin, dislocation on the left shoulder, bruises on right knee, fracture of the right tibia and fibula to a plaintiff.

29. The respondents urged this court to disregard the prayer on future medical expenses as it was not pleaded in the plaint and to dismiss the appeal.

ANALYSIS AND DETERMINATION

30. Having carefully considered the appeal, the evidence adduced before the trial court, the exhibits produced therein, the parties’ Submissions and the Authorities cited the following issues emerge for determination.

(i) Whether the trial court erred in apportioning liability at the ratio of 85%:15% in favour of the respondents herein.

(ii) Whether the trial Court awarded damages that were inordinately low as to warrant interference by this Court.

31. This being a first appeal, this court is obligated by the stipulation of the Civil Procedure Act and case law to re-assess and re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion bearing in mind the fact that unlike the trial court, it neither saw nor heard the witnesses as they testified.

32. Section 78 of the Civil Procedure Act, provides;

“Powers of appellate court

(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require the evidence to be taken;

(e) to order a new trial.

(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.”

33. See the case of Abok James Odera T/a A. J Odera & Associates vs John Patrick Machira T/a & Co. Advocates[2013] eKLR the Court stated that:

“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of KENYA PORTS AUTHORITY VERSUS KUSTON (KENYA) LIMITED (2009) 2EA 212 wherein the Court of Appeal held inter alia that: -

“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

WHETHER THE TRIAL COURT ERRED IN APPORTIONING LIABILITY AT THE RATIO OF 85%:15% IN FAVOUR OF THE RESPONDENTS HEREIN.

34. The trial court relied on the evidence of PW1 and the Discharge Summary in determining this issue. The court stated that PW1 testified that the appellant crossed the road when it was not safe to do so and that he is to blame for the accident. However, the evidence of PW1 is to the contrary. This witness testified that as per the OB the appellant was hit while crossing the road from right to left. This witness also testified that it was the respondent who was charged with careless driving, clear evidence that prima facie, at the earliest time it was evident that it was the respondent who was in the wrong. Nothing would have been easier than for the respondent to make the report that the pedestrian was drunk when the accident occurred. Nothing would have been easier that for him to plead that in his defence. The alleged drunkenness was not even put to the appellant when he testified. He was only asked about the level of alcohol in his blood at the material time, something which was not even examined by the doctor. The Discharge Summary the court relied on simply stated that final diagnosis was alcoholism. The trial court proceeded to draw the following conclusion:

“..Having been intoxicated at the time of the accident his ability to make good judgement of a situation may have been impaired and hence he may not have been able to determine if it was safe for him to cross the road. It is not disputed that there are no zebra crossing at the point at which the accident occurred and hence the plaintiff ought to have exercised more care before crossing the road but failed to do so and the plaintiff to the above extent was the author of his own misfortune and takes large share of liability in this matter”

35. There was no evidence led by the defence that the appellant was intoxicated at the time of the accident. The defendant’s testimony that the appellant was smelling of alcohol was not supported by any initial medical report from the first hospital where the appellant was taken to show that the appellant was intoxicated to the extent that his judgment was impaired.

36. I read the statement the 2nd respondent recorded for purposes of trial. There was nothing in that statement about the alleged smelling of alcohol of the appellant. It only came up as an afterthought in the 2nd respondent’s testimony. The case of Karanja vs Malele (1983)KLR 147speaks to assessment of liability wherein the court of appeal held inter alia that:-

“there are two elements to be considered when assessing the issue of liability namely causation and blame worthiness; there should be no distinction which can be drawn on attribution of negligence after seeing danger and negligence in not seeing it before hand; and lastly in assessing blame worthiness, the distinction is that the driver had a lethal machine/car in her control. Apportionment of blame represents an exercise of discretion.”

37. In apportioning blame it appears to me that the learned trial magistrate misled herself as to the evidence of alleged intoxication on the part of the appellant at the time of the accident. That having been the basis of the apportionment of liability it is clear then that there was an error. The second respondent was aware that even though there was no Zebra Crossing at the specific part of the road, people used that place as a crossing place. He did not say whether he slowed down as he approached the said crossing. He was the one in charge of the motor vehicle, hence with a greater responsibility. The case of Karanja vs Malele herein above captures that situation and I need not add more.

WHETHER THE TRIAL COURT AWARDED DAMAGES THAT WERE INORDINATELY LOW AS TO WARRANT INTERFERENCE BY THIS COURT

38. The appellant seeks in this appeal a review of the award for general damages from Kshs.500, 000/= to Kshs. 1,500,000/=

39. The award of damages is a discretionary exercise that can only be disturbed by an appellate Court if it is established that the trial Court misdirected itself, or took into consideration irrelevant factors or omitted to take into consideration factors which it ought to have done so and as a result drew the wrong conclusion. This principle of the law was enumerated by the Court of Appeal in the case of Child Welfare Society of Kenya vs Republic, Ex-parte Child in Focus Kenya & AG & Others [2017] eKLR per Waki, Nambuye & M’noti JJA citing Mbogoh & Another Vs Shah [1968] EA 93, on the power of the appellate Court in matters of discretion exercised by the Court in the following terms: -

“I think it is well settled that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have taken into consideration and in doing so arrived at a wrong conclusion.”

40. Hence in determining whether or not I will interfere with the learned trial magistrate’s decision I will be guided by the said principles.

41. The Court of Appeal in Mohammed Jabane vs Highstone Tongoi Olenja Civil Appeal No. 2 of 1986 [1986] 1 KAR 982 l stated that the correct approach in assessing damages the be where the court would be aware that :-

“i) Each case depends on its own facts;

ii) Awards should not be excessive for the sake of those who have to pay premiums, medical fees or taxes (the body politic);

iii) Comparable injuries should attract comparable awards;

iv) Inflation should be taken into account; and

v) Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or is so inordinately high or low as to be an entirely erroneous estimate for an appropriate level, leave it alone.”

I am properly guided. It is evident that the trial magistrate began from the point that the appellant was drunk at the time of the accident a fact that was not pleaded or proved by the defence. On this basis she awarded liability and general damages. In my view she had misdirected herself.

In this case the appellant had fracture of the right tibia, fracture of the right humerous, severe soft tissue injuries of the right leg and hand, and soft tissue injuries of the neck. He contended that the court failed to appreciate that he will require future medical examination

42. I have carefully considered the authorities cited by the appellant with respect to general damages for pain and suffering, and compared the same with those relied on by the respondent, and the injuries sustained by the appellant. The general damages awarded were on the lower side to warrant interference by this court.

43. However, the appellant did not plead damages for future medical expenses and the court was right in its assessment see the Court of Appeal decision in Kenya Bus Service Limited vs Gituma [2004] EA 91,which is cited in Edwin Otieno Japaso vs Easy Coach Bus Company Ltd(2016) eKLRwhere it was held that, future medical costs are in the nature of special damages;

“a fact that must be pleaded if evidence thereof is to be led and the Court is to make an award in respect thereof.”

44. The upshot is that I find that the appeal has merit.

45. The award by the Learned Trial Magistrate is set aside and replaced with the following order;

a. Liability at 85%: 15% in favour of the appellant.

b. General damages for pain and suffering at Kshs. 750,000/=

c. Special Damages remains as awarded below.

d. The appellant to have costs of the appeal and the costs below.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH, 2022.

Mumbua T Matheka

Judge

In the presence of;

CA Edna

Ms Kinuthia for Respondent

Mirugi Kariuki & Co. Advocates

Robert Ndubi & Co. Advocates