[2023] KEHC 25400 (KLR)

Glaxo Smithkline Pharmaceutical Kenya Limited & another v Kilo (Civil Appeal E278 of 2021) [2023] KEHC 25400 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25400 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E278 of 2021

AN Ongeri, J

November 17, 2023

Between

Glaxo Smithkline Pharmaceutical Kenya Limited

1st Appellant

Stella Kiguja Ng’anga

2nd Appellant

and

Joseph Mulinge Kilo

Respondent

(Being an appeal from the judgment and decree of Hon. A. N. Makau (PM) in Milimani CMCC No. 1719 of 2019 delivered on 24/2/2020)

Judgment

1. The respondent in this appeal, Joseph Mulinge Kilo filed Milimani CMCC no 1719 of 2019 seeking general damages for pain and suffering and loss of amenities and special damages of ksh 3,550/= together with costs and interest for injuries the respondent sustained on April 22, 2018 while the respondent was riding motor cycle registration no KMET xxxV when it was hit by the 1st appellants motor vehicle registration no KCF xxxU.

2. The respondent who suffered cut wound web of the 2nd and 3rd fingers on the left hand, bruises on the left thumb, cut wound on the left leg, swollen tender left leg and blunt injury on the hip region blamed the 2nd appellants motor vehicle for the accident.

3. The trial court found that both the rider and the motor vehicle were to blame of the accident and apportioned liability at 80:20% in favour of the respondent against the appellants.

4. The trial court assessed quantum of damages as follows;General damages for pain & suffering ksh 300,000Special damages ksh 3,550Total ksh 303,550Less 20% contributory negligence ksh 242,840

5. The appellants have appealed against the said judgment and decree for the following reasons.a.That the learned magistrate erred in law in failing to consider the provisions of the Traffic Act cap 403 and the traffic rules thereunder as a result, arrived at an erroneous conclusionb.That the learned magistrate erred in fact by failing to scrutinize/evaluate the evidence tendered in this matter and as a result held the appellants wholly liable for the accidentc.The learned magistrate erred in law and in fact by failing to scrutinize the evidence tendered in support of the injuries suffered by the respondent and to correctly relate them to case law cited and as a result failed to arrive at a fair and reasonable compensation for the said injuries.d.That the learned magistrate erred in law and in fact in failing to find that the nature of the injuries by the respondent did not warrant an award of general damages of Kshs 300,000e.That the learned magistrate erred in law by failing to properly consider the appellants’ defence, evidence and submissions and in doing so arrived at an erroneous conclusion.f.That the learned magistrate erred in law and fact by awarding an inordinately high award of damages for the injuries sustained by the plaintiff.

6. The appellant submitted that the respondent does not give a comprehensive account of the accident but merely avers that he was lawfully riding motor cycle registration number KMEB xxxY along Ngong road-Green house when the driver of motor vehicle KCF xxxU carelessly drove at high speed that it lost control and hit his motorcycle causing him very serious injuries.

7. The appellants’ account of the accident, which was uncontroverted during trial was that on the fateful day at around 1:00 pm, the 2nd appellant was driving motor vehicle registration number KCF xxxU along Ngong Road intending to turn right into Ngong Lane. The visibility was clear and there was minimal road traffic.

8. The 2nd appellant indicated that he was turning right and once ascertaining the road was clear, turned right towards Double Tree Hotel and he had already turned when motor vehicle registration KMEB xxxY coming from the direction of Prestige Mall, hit its rear bumper. That from the foregoing, it is clear that the accident occurred when the motor cycle registration number KMET xxxY hit the rear of motor vehicle registration number KCF xxxU.

9. The appellant argued that the respondent did not adduce any eye witness evidence to support his version of events from which he seeks the court to hold that the 2nd appellant is liable for the accident. he did not adduce any evidence proving that the 2nd appellant was driving the motor vehicle at an excessive speed and further the police abstract dates July 11, 2018 confirms the occurrence of an accident but does not state who the police blame for the accident.

10. It was therefore the appellants argument that the respondent failed to discharge his burden of proof to the required standard pursuant to section 108 and 109 of the evidence Act and the trial court erred in holding the appellants liable for the accident either wholly of partially.

11. On damages the appellant submitted that from the medical report dated October 15, 2019 the respondent suffered bruises in the left hand, cut wound on the left shin and blunt injury right hip region. It was the appellants argument that kshs 300,000 was excessive and that an award of Kshs 150,000 would be sufficient based on comparable cases. In support the appellants cited Ahmed Said Amadi v Jacob Fundi Mugo [2021] eKLR: where, the respondent herein was medically examined on 11th July, 2012. He sustained a cut to the head, lacerations on both the upper and lower lip, and an abrasion on the right elbow. PW2 indicated that the respondent would recover fully with no disability. The High Court awarded general damages of Kshs 150,000. 00

12. The respondent submitted that the trial court was justified in its findings on liability considering the evidence that was adduced by both parties. the trial court found that the 2nd appellant joined the road when it was not clear for her and determined that the appellants were 80% liable.

13. On damages the respondent argued that Kshs 300,000 as damages was sufficient and in support cited a decision of the High Court in the case of Robinson Njoroge v Daniel Obasa [2021] eKLR where the court upheld Kshs 300,000 for comparable injuries.

14. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity of seeing the witnesses. In Selle –vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself 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 this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

15. The issues for determination are as follows;i.Whether the trial court was right on its findings on liability.ii.Whether the award of damages was inordinately high.iii.Whether the trial court failed to considered the defence and arrived at an erroneous decision.

16. On the issue as to whether the trial court was right in its findings on liability, the record is clear that the motor cycle hit the car from the back.

17. The trial court found that the 2nd appellant confirmed that the rider hit the motor vehicle at the rear.

18. The trial court said that the 2nd appellant knew that the rider had a right of way and she ought to have given way before joining the road.

19. The trial court also found that the rider ought to have slowed down to avoid hitting the motor vehicle at the rear.

20. In the circumstances, I find that the court was not right on its findings on liability. I have re-evaluated the evidence and find that both were to blame for the accident and the court ought to have apportioned liability at 50:50%.

21. I accordingly set aside 80:20% ratio and substitute it with 50:50% liability for reasons that although the 1st appellant was hit at the rear, there is evidence she had already joined the road when she was hit at the back.

22. On the issue as to whether the award was inordinately high, I have considered the authorities relied on by the trial court and I find they were comparable.

23. The respondent sustained soft tissue injuries.a.In Catherine Wanjiru Kingori & 3others v Gibson Theuri Gichubi [2005] eKLR the plaintiff therein suffered injuries on the left ankle, injuries on the legs and chest, dislocation of the left wrist, fracture of the radius and ulna and soft tissue injuries to the face. The Court awarded general damages of Kshs 300,000 in 2005. b.In Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] eKLR quite recently, the High Court reviewed downwards an award of general damages of Kshs 400,000 to Kshs 300,000 for injuries of head injury with loss of consciousness and soft tissue injuries.

24. I find kshs 300,000 reasonable in the circumstances of this case.

25. I also find that the defence by the appellant was referred to in the judgment.

26. I accordingly adjust the amount payable as follows

27. Liability is adjusted to 50:50% in against the appellant in favour of the respondenti.General damages for pain &suffering 300,000ii.Special damages 3,550Total 303,550iii.Less 50% liability 151,775

28. The trial court’s judgment is set aside and substituted with judgment in favour of the respondent against the appellants in the sum of ksh.151,775 with costs and interest from the time of the judgment of the trial court until payment in full.

29. Since the appeal succeeded partially each party is to bear its own costs. Orders accordingly.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent