[2023] KEHC 26526 (KLR)

Githinji & another v Orege & 2 others (Civil Appeal E477 of 2021) [2023] KEHC 26526 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26526 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E477 of 2021

DAS Majanja, J

December 8, 2023

Between

Ephantus Ngumba Githinji

1st Appellant

Securicor Security Services (K) Limited

2nd Appellant

and

Jared Odhiambo Orege

1st Respondent

Charles Kimunya

2nd Respondent

Gorgeous Trading Company Limited

3rd Respondent

(Being an appeal from the Judgment and Decree of Hon. J. Ofisi, Adjudicator/RM dated 15th July 2021 at the Nairobi Small Claims Court, Milimini in SCCCOMM/069/2021 formerly CMCC/7329/2004)

Judgment

1. The suit before the Subordinate Court was prompted by a road traffic accident that occurred on 29. 09. 2003. The 1st Respondent was a pedestrian walking along the Kamiti – Kahawa road and was hit by motor vehicle xxxx co-owned by the Appellants. According to the Further Amended Plaint13. 07. 2012, the Appellants’ motor vehicle was hit from behind by motor vehicle xxxx owned by the 2nd and 3rd Respondents; which caused it to veer off the road and hit the 1st Respondent.

2. The Appellants denied liability. They further filed a Notice of Claim and Indemnity and/or Contribution against the 2nd Respondent blaming him for causing the accident and claiming special damages thereof amounting to Kshs. 852,006. 00. On 21. 06. 2006, the court directed that the issues between the Appellants and the 3rd Respondent be determined together with the issue between the 1st Respondent and the other parties.

3. The 3rd Respondent denied liability and stated that by a sale agreement dated 15. 12. 2001 it had sold motor vehicle xxxx to the 2nd Respondent who had already taken possession of it at the time of the accident.

4. At the hearing, the 1st Respondent testified and produced documents including receipts, a police abstract, a P3 medical form and a medical report. Neither of the Respondents called any witnesses or produced evidence to support their respective positions. Based on the uncontested evidence, the trial court found the Appellant and the 2nd and 3rd Respondents fully liable and entered judgment against then jointly and severally liable for the accident. The court proceeded to assess damages and awarded Kshs. 350,000. 00 and Kshs. 8,580. 00 as general and special damages respectively.

5. The Appellants were dissatisfied with the judgment and appeal on the issue of liability and quantum of general damages as set out in the Memorandum of Appeal dated 28. 07. 2021. The court directed the parties to file written submissions but the parties failed to comply with the orders.

6. This being a first appeal, I will proceed to re-evaluate and re-assess the evidence produced before the court of first instance. At the same time, I shall have to keep in mind that the trial court interacted first hand with the parties as I consider whether or not to uphold the judgment (see Selle v Associated Motor Boat Co. [1968] EA 123).

7. On the issue of liability, the court is guided by the following words of the court in Khambi andanotherv Mahithi andanother [1968] EA 70, it was held that:It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.

8. The parties in their pleadings have acknowledged that the road traffic accident occurred as a result of a collision between the two motor vehicles which caused one of them to veer off the road and hit the 1st Respondent. The Appellants argue that the totality of the evidence established negligence against the driver of motor vehicle registration number xxxx and that there was no demonstrable negligence established against the Appellants. They urge that had the trial magistrate considered the pleadings and evidence, it would have come to the conclusion that the 2nd and 3rd Respondents were liable.

9. The 1st Respondent was a pedestrian and was not on the lane of the motor vehicle xxxx. He did not thus contribute to the motor vehicle veering off its lane and knocking him. It was the burden of the Appellants to present any evidence to show that they were not liable or that the 2nd and 3rd Respondents were to blame for the accident wholly or substantially for the accident. The Appellants contend that the trial ought to have apportioned liability but the only evidence on record was that of the 1st Respondent who blamed both vehicles. There was no evidence upon which the court could apportion liability and to what extent. The Appellants did not discharge this burden hence the trial court came to the correct conclusion that the Appellants, 2nd and 3rd Respondents were jointly and severally liable.

10. Turning to the issue of damages, the general principle upon which an appellate court can interfere with an award of damages was stated in the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows:An appellate court will not disturb an award of 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 inordinately high or low.

11. According to the Plaint, the 1st Respondent sustained severe soft tissue injury lacerations on the left nostril, two broken upper central incisors, bruises on the left cheek below the left eye, blunt injuries on the chest and other soft tissue injuries. By the time the 1st Respondent was examined by Dr Jacinta Maina on 3rd May 2004, the injuries had healed and all that was left were scars which were of cosmetic significance. The doctor noted that there was partial disability and the two upper incisors would require replacement.

12. Before the trial court, the 1st Respondent prayed for Kshs. 250,000. 00 for pain and suffering. He also asked the court to grant future medical expenses for replacement of two teeth at the cost Kshs. 30,000. 00 per tooth. In his submissions, he relied on the cases of Robert Cheserek v Jackline Jepkoech Jimmy [2019] eKLR where the plaintiff sustained bruises on the hip and on the gum, soft tissue injuries on the lower limb and lost one tooth and Isaac Muriungi Mbataru v Silas Kalumani [2017] eKLR where the plaintiff suffered soft tissue injuries and loss of two teeth, courts awarded Kshs. 200,000. 00 as general damages for pain and suffering in both cases. On their part, the Appellants relied on the case of Paul Kipsang Koech & another v Titus Osule Osore [2013] eKLR where the High Court reduced Kshs. 300,000. 00 to Kshs. 200,000. 00 where the plaintiff sustained a bruised lower lip, fracture of the right upper lateral incisor, loosening of the right upper canine tooth, blunt injuries on the neck and abdomen, bruises on the right cheek, left elbow and left knee.

13. In awarding general damages, the court has to consider both the nature and extent of the injuries suffered and the comparable awards made in the past (see Simon Taveta v Mercy Mutitu Njeru [2014] eKLR). The trial court in its judgment awarded Kshs. 350,000. 00 general damages. This was an amount higher than what the Respondent had proposed. The Court did not give reasons why it chose to escalate the amount above comparable cases with similar injuries. Perhaps the trial court considered the Respondent’s submission for future medical expenses for tooth replacement. This head would not be awardable since it was not pleaded in the Further Amended Plaint dated 13. 07. 2012 (see Kenya Bus Services Ltd v Gituma [2004] 1 EA 91).

14. I thus find that the award of Kshs. 350,000. 00 as general damages is excessive in relation to what was prayed by the 1st Respondent, the injuries suffered and comparable authorities cited by the parties. Given that similar injuries attracted awards of Kshs. 200,000. 00 in 2013, 2017 and 2019, I set aside the award of Kshs. 350,000. 00 and substitute it with an award of Kshs. 250,000. 00 as general damages which I consider sufficient in the circumstances considering inflation.

15. I therefore make the following dispositive order:a.The appeal is allowed to the extent that judgment for Kshs. 350,000. 00 as general damages is set aside and substituted with an award of Kshs. 250,000. 00. b.Each party shall bear its own costs of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D.S. MAJANJAJUDGEMr Mege instructed by Muchui and Company Advocates for the Appellants.Mr Mugoye instructed by Mugoye and Associates Advocates for the 1st Respondent.