[2024] KEHC 3787 (KLR)

Holistic Educational Trust v Mulatya alias Musau Mulatya Samson & another (Civil Appeal 035 of 2022) [2024] KEHC 3787 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3787 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 035 of 2022

DAS Majanja, J

April 5, 2024

Between

Holistic Educational Trust

Appellant

and

Musau Mulatya Alias Musau Mulatya Samson

1st Respondent

Africa University Trust Of Kenya

2nd Respondent

(Being an appeal from the Judgment and Decree of Hon. L. Saitabau, PM dated 21st February 2022 at the Magistrates Court at Mombasa in Civil Case No. 1331 of 2019)

Judgment

Introduction and Background 1. The Appellant appeals against the Subordinate Court’s findings on liability and quantum of damages in a judgment dated 21. 02. 2022. It stemmed from a suit in respect of an accident that occurred on 27. 01. 2019 involving the 1st Respondent and the motor vehicle registration number KCD xxx J (“the motor vehicle”). In his plaint, the 1st Respondent claimed that on the material day, at around 1940hrs he was walking lawfully from Jomo Kenyatta public beach heading to Mtambo-Bamburi matatu stage when on reaching the Bamburi-Mtambo junction, he decided to cross the road after checking and confirming that it was safe for him to do so as the vehicles were held in a standstill jam. He claimed that when he was about to finish crossing the road, the motor vehicle, being driven by the Appellant’s driver hit him and threw him down causing serious injuries including a head injury with loss of consciousness for 12 hours, contusion, oedema brain swelling, bleeding in the brain(right frontal/pariental haemorrhage), global (generalized) headache and inflammation of the skull airspace mastoiditis), skull fracture -left temporal bone, deep cuts on the head and left elbow and blunt object injury to the head (cephalohematoma). He thus sought general and special damages together with interest and costs of the suit.

2. In response, the Appellant generally denied the claims in the plaint but pleaded in the alternative that the accident was wholly caused or substantially contributed to by the 1st Respondent’s negligence.

3. When the matter was set down for hearing the 1st Respondent testified on his own behalf (PW 1) and also called as his witnesses Dr. Ajoni Adede (PW 2) and Cpl. Pius Mutugi, a police officer based at Bamburi Police Station (PW 3). The Appellant did not call any witness but it produced as its evidence the medical report dated 17. 10. 2019 by Dr. Udayan Sheth without any objection from the 1st Respondent. The 2nd Respondent neither called any witnesses nor produced any evidence. At the close of the hearing, the parties filed written submissions which in the judgment, the subordinate court stated it had considered together with the evidence on record.

4. The Subordinate Court held that the testimony of PW 1 and PW 3 that the motor vehicle’s driver overlapped other vehicles and in so doing knocked down the 1st Respondent who was just about to successfully cross the road was not controverted. The trial magistrate observed that the Appellant’s driver must have overlapped other vehicles to avoid the traffic jam and that had the driver stayed on his lane he would not have knocked down the 1st Respondent. Consequently, the trial magistrate found no reason to attribute the accident to negligence on the part of the 1st Respondent as claimed by the Appellant. The Subordinate Court therefore wholly attributed the accident to negligence on the part of the Appellant’s driver, by vicarious liability therefore holding that the Appellant and the 2nd Respondent fully liable.

5. On quantum of damages, the Subordinate Court noted that the Appellant proposed a sum of Kshs. 400,000. 00 whereas the 1st Respondent proposed Kshs. 5,000,000. 00. Having taken into account the medical documents on record, the trial magistrate agreed with PW 2’s opinion that the 1st Respondent sustained serious head injuries that had a risk of health-related complications that may be carried throughout his life. The Subordinate Court accepted PW 2’s award of permanent partial disability of 4%. Thus, guided by the parties’ cited authorities and the decision of Nolfason Obadiah Barongo v Beatrice Kinya [2021]eKLR, it awarded Kshs. 2,000,000. 00 as general damages. It also awarded Kshs. 60,260. 00 as special damages proved by way of receipts. This decision is the subject of the present appeal which I now turn to determine below.

Analysis and Determination 6. Even though the Appellant raises 13 grounds in its memorandum of appeal, the main issue for the court’s determination is whether the Subordinate Court came to the correct conclusion on liability and quantum. In determining this appeal, the court is guided by the principle that it is its duty to re-evaluate the evidence independently and reach its own conclusion as to whether to uphold the judgment. In doing so, the court must make an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Co. Ltd (1968) EA 123).

7. On liability, a court’s finding is dependent on the facts and evidence available and in assessing the same, the court considers causation and blameworthiness. This was held by the Court of Appeal in Isabella Wanjiru Karanja v Washington Malele [1983] eKLR where it was stated:There are two elements in the assessment of liability, namely causation and blameworthiness. See Baker v Willoughby// [1970] AC 467. In my opinion there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. I would not disagree with the learned judge’s finding that the appellant’s speed was excessive in the circumstances, but the failure to keep a proper look out would seem to be the predominant factor. [Emphasis mine]

8. The Appellant faults the Subordinate Court for finding 100% liable, for treating the 2nd Respondent as if it had participated in the trial, for the relying on PW 3’s evidence who had neither investigated the matter nor recorded a statement from the motor vehicle’s driver and for assuming that the driver must have overlapped other vehicles to avoid the traffic jam without any proof of the same. It faults the learned magistrate for failing to attribute some contributory negligence to the 1st Respondent considering that there was evidence that he crossed the road at night when he was not wearing a reflective jacket/or clothing and in a non-designated zebra-crossing. That the Appellant did not need to call its driver to rebut the 1st Respondent’s evidence as the latter’s evidence was a basis to hold the 1st Respondent contributorily negligent for the accident.

9. The Subordinate Court was correct to hold that the testimony of PW 1 and PW 3 provided insight of the circumstances surrounding the accident. In his testimony, PW 1 admitted that there was no zebra crossing at the scene, that he had no reflectors at the time and that he did not see the motor vehicle before it hit him. He also stated that he could not tell the speed the motor vehicle was being driven at. He admitted that the driver of the motor vehicle was not blamed for the accident. PW 3 testified that the driver of the motor vehicle was blamed for the accident. He admitted that he was not the investigating officer, that he did not record a statement from the driver, that the OB does not indicate who is to blame for the accident and that there is no zebra crossing at the scene and that there are times vehicles are given permission to overlap to ease traffic but PW 3 could not tell if the motor vehicle was allowed to overlap.

10. Going through the summary of the testimonies above, I find that the Appellant’s grounds of appeal on the issue of liability have merit. PW 3’s testimony was based on the report made by PW 1. All PW 3 produced as evidence of the accident was the police abstract which as admitted by PW 3 did not blame the Appellant’s driver for the accident. There was also no indication that investigations had been concluded and the Appellant’s driver was found to be blamed for the accident. His evidence therefore did not add much to the 1st Respondent’s case and could not be the basis of finding liability on the part of the Appellant. All that was left therefore was the evidence of PW 1. While I can agree with his evidence that the motor vehicle was overlapping before it hit him, he cannot also be totally blameless in the circumstances. Both he and PW 3 admitted that he crossed the road at a place that was not designated for pedestrian crossing as there was no zebra crossing. The 1st Respondent also admitted that he did not see the motor vehicle before it him, implying that he was not on the lookout as he crossed the road, considering that the road is known to be busy as per the evidence of PW 3. The 1st Respondent also admitted that he was not in any reflective clothing considering it was night time.

11. I am therefore inclined to agree with the Appellant that both parties are to blame for the accident. As the Court of Appeal in Isabella Wanjiru Karanja v Washington Malele (supra) held, “…. there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car” and that a pedestrian is also duty bound to keep a proper lookout. In this case, both the driver of the motor vehicle and the 1st Respondent were careless in the manner they used the road thereby occasioning the accident. The Appellant’s driver was overlapping when there is no evidence that he was allowed to do so and the 1st Respondent was crossing the road at an undesignated point, wore no reflective clothing and yet it was at night and failed to keep a proper lookout as he crossed the road. I find that there was evidence of contributory negligence on the part of the 1st Respondent and the subordinate court is at fault for not finding the same. I allow this ground of appeal by the Appellant and apportion liability at 50:50 between the Appellant and the 1st Respondent.

12. Turning to the quantum of damages awarded, the Appellant states that the award was inordinately high and not keeping with other comparable awards made for similar injuries and that the Subordinate Court erred in relying on PW 2’s medical opinion as opposed to that of Dr. Udayan, an orthopedic surgeon, whereas PW 2 is not. Further, that the decision relied on by the subordinate court was in respect of injuries that were dissimilar to those sustained by the 1st Respondent.

13. In making a determination on quantum of damages, this court can only disturb the awarded sum by the trial court if it is shown that the court took into account an irrelevant factor, or left out of account a relevant one, or the amount is inordinately low or inordinately high that it was wholly erroneous estimate of the damages (see Kemfro Africa Ltd t/a Meru Express Services v Lubia & Another [1982-88] 1 KAR 777). The court should also make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Maore v Geoffrey Mwenda [2004]eKLR).

14. As stated earlier, the 1st Respondent pleaded that he sustained a head injury with loss of consciousness for 12 hours, contusion, oedema brain swelling, bleeding in the brain (right frontal/pariental haemorrhage), global (generalized) headache and inflammation of the skull airspace mastoiditis), skull fracture -left temporal bone, deep cuts on the head and left elbow and blunt object injury to the head (cephalohematoma). He relied on the medical report of PW 2 who examined him 4 months and 17 days after the accident and noted that the 1st Respondent walks unsupported, mental clarity is satisfactory, he engages in meaningful conversation and there is no limb paralysis. That the right side of the head had a 4cm scar while the left elbow had a 3 cm scar. He concluded that the 1st Respondent had 4% permanent partial disability due to skull fracture, that the fracture site is a focus for accelerated bone wear and tear, remains a weak point for life and can re-fracture in the future. PW 2 further noted that the 1st Respondent had occasional headaches and that the risk of head injury related health complications is carried throughout life.

15. The Appellant relied on the medical report of Dr. Udayan R. Sheth who examined him on 17. 10. 2019, 10 months and 7 days after the accident. The Doctor found a 5cm scar over the right parietal areas of the scalp, 3 cm scar over the left elbow, that there was no confusion, memory loss, neurological deficit or history of convulsion. He observed that the rest of the physical examination was normal and concluded that the 1st Respondent had fully recovered, that there was no deformity and there was no permanent incapacity.

16. The Appellant faults the learned magistrate for relying on PW 2’s opinion as opposed to that of Dr. Udayan which found that the 1st Respondent had fully recovered and had no permanent disability whatsoever. In the judgment, the trial magistrate stated that she had considered both medical reports and evidence on the same and agreed that as per Dr. Adede’s (PW 2) report, there was a chance of permanent partial disability at 4%.

17. I would not fault the trial magistrate’s decision to rely on the report and conclusion of PW 2 rather than that of Dr. Udayan for several reasons. First, PW 2’s testimony and report was put to the test through cross-examination whereas that of Dr. Udayan was not and therefore PW 2’s evidence carries more weight. By failing to call Dr. Udayan as a witness for purposes of having his evidence tested by cross examination, the Appellant did not satisfy the elementary principle of law in civil litigation that he who alleges must prove the allegations on a balance of probabilities. In Samuel Kimemia Gathoga v Njoro Canning Factory (K) Limited NYR CA Civil Appeal No.166 of 2013 [2017] eKLR, the Court of Appeal affirmed the subordinate court’s position of relying on the medical report of the doctor who testified in court rather than the one who did not.

18. Second, going through the medical report of Dr. Udayan, it would appear that he did not have the benefit of the 1st Respondent’s prior treatment notes. If he did, then he would not have concluded for instance that the 1st Respondent had no history of loss of consciousness when the treatment summary of the 1st Respondent’s admission to Coast Province General Hospital, Mombasa clearly indicates that he had a history of loss of consciousness of 12 hours.

19. Based on the weight and probative value assigned to the medical report of PW 2, the trial magistrate awarded Kshs. 2,000,000. 00. The Appellant faults the court’s reliance on Nolfason Obadiah Barongo v Beatrice Kinya (supra) where the respondent therein suffered severe head injury with subdural hemorrhage in the bilateral occipito-temporal region and fractures of the left ethmoid and temporal region and bilateral postero-basal pulmonary contusion and comminuted fracture of the lateral aspect of the left clavicle. The doctor went ahead to assess permanent incapacity at 4%.

20. I do not agree with the Appellant that this case was so different from the present case that the trial magistrate was misguided. I find that this case had almost similar injuries to the present matter and the award therein properly guided the Subordinate Court and therefore, I find no reason to disturb the award given. This ground of appeal by the Appellant therefore fails.

Disposition 21. For the reasons I have set out above, the appeal succeeds in part and I order as follows:a.The judgment on liability is set aside and substituted with an apportionment of 50:50 as between the Appellant and the 1st Respondent.b.The Appellant is awarded costs of the appeal assessed at Kshs. 30,000. 00.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED AND DELIVERED AT MOMBASA THIS 5TH DAY OF APRIL 2024. OLGA SEWEJUDGE