[2017] KEHC 3190 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 121 OF 2009

GRACE NZULA MUTUNGA………..………………………..APPELLANT

VERSUS

JOYCE WANZA MUSILA………………………………….RESPONDENT

(Appeal against the judgment and decree of Hon. J. M. Munguti (S.R.M.) in Machakos CMCC No. 954 of 2007 on 9th June, 2009. )

JUDGMENT

1. The appellant filed this appeal on the following grounds:

a) That the learned magistrate erred in law and fact in disregarding the evidence on record and dismissing her suit.

b) That the learned magistrate erred in law and fact in failing to take into consideration sufficiently or at all the appellant’s submission as to facts placed before him.

c) That the learned magistrate erred in law and fact in failing to take judicial notice of the respondent’s conviction of the said offence of assaulting the appellant herein in Machakos Chief Magistrates’ Court Criminal Case No. 435 of 2007.

d) That the learned magistrate erred in law and fact in in dismissing the appellant’s suit yet no evidence was offered by the respondent to controvert the appellant’s case.

2. The appellant sought damages both special and general in Machakos CMCC No. 954 of 2007 against the respondent. She filed her plaint on 11th October, 2007. Her case was that on 5th November, 2006, the respondent assaulted her for failure to pay Kshs. 50/= for emptying a toilet. As a result of the alleged assault, she is said to have suffered nail scratches on her face, lower hip and left wrist joint. She was treated and a p3 form was filled to that effect. It was stated that the respondent was charged in Machakos Chief Magistrates’ Court Criminal Case No. 435 of 2007 where he was found guilty and was placed on CSO for a period of 2 months. She claimed that as a result of the assault she incurred a cost of Kshs. 4,700/- (Medical report- Kshs. 3,000/=, P3 form – Kshs. 1,500/= and Police abstract- Kshs. 200/=). She also claimed that she incurred a cost of Kshs. 30,000/= being advocates fees in the criminal case. She produced the proceedings in the criminal case, charge sheet and judgment as P. Exhibit 1-3 and receipt for Kshs. 30,000/= as P. Exhibit 5. Dr. Kimuyu Judith (PW2) of Machakos General Hospital confirmed the appellant’s injuries and produced the p3 form as P. Exhibit 4.

3. The respondent filed a defence in which he denied the claim. He claimed that the suit was brought in bad faith with an intention to enrich oneself and amounted to an abuse of court process. He contended that his conviction did not justify a cause of action in favour of the appellant. The respondent tendered no evidence since he and his advocate was absent. The case proceeded ex parte.

4. The appellant’s submission was that she satisfied the court that the injuries she sustained were as a result of the respondent’s actions. That there was on record a judgment of a competent court which proved that the respondent was convicted of the offence of assault. She relied on section 47 of the Evidence Act which is to the effect that a person if convicted of a criminal offence for which he/she does not appeal against is deemed to be guilty. She further argued that the respondent having failed to offer a rebuttal to her claim the facts of her case was deemed to have been true. On that issue, the appellant cited Phelista Mukamu Makau v. Elizabeth Kanini Mulumbi (2015) eKLR which cited with approval the holding in Janet Kaphiphe Ouma and another v. Marie Stopes International (Kenya), HCC No. 68 of 2007. The court in Janet Kaphiphe (supra) held:

“In this matter, apart from filing its statement of defence the defendant did not adduces any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remains uncontroverted and the statement in the defence therefore remains mere allegations…”

5. The appellant proposed an award of Kshs. 250,000/= as general damages. She relied on the case of Catherine Wanjiru King’ori and 3 others v. Gibson Theuri Githumbi, Nyeri HCCC No. 320 of 1998 where the court awarded Kshs. 350,000/= to a plaintiff who suffered similar injuries.

6. This being a first appeal, this court is duty bound to re assess the case and arrive at its own conclusions though bearing in mind the fact that it did not have the benefit of seeing the witnesses. The trial magistrate dismissed the appellant’s case on the basis of the fact that in her pleading she claimed to have been assaulted on 5th November, 2006 and later instigated Criminal case no. 435 of 2007. That the evidence brought was criminal case no. 1438 of 2007 in which the assault was committed on 28th November, 2005. While I appreciate that a party is bound by their pleadings, I am minded of the proviso of Article 159 (2) (d) of the Constitution. It is clear from the record that the claim the appellant brings to court is for the assault of 5th November, 2006 from which the respondent was prosecuted in Criminal Case No. 1438 of 2007. From the charge sheet and the proceedings therein and the failure by the respondent to controvert the same, it is clear that the respondent was prosecuted and in fact found guilty of the offence of assault on 5th November, 2006. In my view therefore, I find that the appellant’s case was properly pleaded.

7. The next question to be considered is whether or not the appellant proved the aspect of assault by the respondent. Section 47 A of the Evidence Act provides that:

“A final judgment of a competent court in any criminal proceedings which declares any person guilty of a criminal offence shall after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest shall be taken as conclusive evidence that the person so convicted was guilty of that offence s charged.”

The respondent did not dispute that he was convicted of the offence of assault. Can the conviction be therefore said to be conclusive evidence that he was to blame? The issue of whether or not the convict was guilty of the offence cannot be subject of a subsequent inquiry. However, it does not necessarily mean that the convict is 100% liable in the first instance. See Francis Mwangi vs Omar Al-kurby CA 87of 1992 where the Court of Appeal was clear that a conviction is conclusive evidence of negligence but does not rule out the element of contributory negligence. I however note that in this case, the respondent made no attempt to rebut the appellant’s case or adduce any evidence to controvert the appellant’s case. The consequence of such failure was discussed in Karuru Munyoro v. Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988 Makhandia J held:-

“The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.”

8. In Janet Kaphiphe Ouma & Another v. Marie Stopes International(Kenya) HCCC No. 68 of 2007, Ali-Aroni j, stated:-

“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

9. In the absence of evidence in rebuttal from the Respondent, it follows that the Appellant proved his case on a balance of probabilities against the Respondent. Hence I find the Respondent liable in damages to the Appellant at 100%.

10. On quantum, I am of the view that the proposal by the appellant is on the higher side considering the nature of injuries she sustained. It is trite law that damages must be within limits set out by decided cases and within the limits the Kenyan economy can afford. See Osman Mohammed & another v. Saluro Bundit Mohammed Civil Appeal No. 30 of 1997. Guided by Sokoro Saw Mills & Co. Ltd v. Grace Nduta Ndungu, Nakuru HCCA No. 99 of 2003, where the court awarded KShs. 30,000/= to an appellant who suffered soft tissue injuries to the lumbar sacral spine, I find that an award of Kshs. 100,000/= suffices in this case. This is so bearing in mind the rate of inflation on the Kenyan shilling. The appellant also proved special damages of Kshs. 34,700/=.

11. In the end, this appeal succeeds. I hereby set aside the trial magistrate’s judgment and order that:

a) Respondent is liable to the Appellant in damages at 100%.

b) The appellants is awarded Kshs. 100,000/= as general damages.

c) The appellant is awarded Kshs. 34,700/= as pleaded and proved special damages.

d) The Appellant is awarded the costs of the suit in this appeal and the court below.

It is so ordered.

Dated, signed and delivered at Machakos this 6THday of OCTOBER, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Mbusya for the Applicant

No appearance for Joyce Wanza - the Respondent

C/A: Kituva