[2017] KEHC 3264 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO. 102 OF 2010

HUSSEIN DAIRY LIMITED...............................APPELLANT

VERSUS

ALICE MORAA OMWENGA........................RESPONDENT

(An appeal from the judgment and decree of Hon. M.N.GICHERU

(Chief Magistrate) dated and delivered on the 6th day of May, 2010

in the Original KISII CMCC No. 557 of 2007. )

JUDGMENT

1. Through an amended plaint dated 29th April 2008, the respondent herein, ALICE MORAA OMWENGA, who was the plaintiff before the subordinate court in Kisii CMCC 557 of 2007, sued the appellant herein and sought the following orders:

a. General damages

b. Special damages

c. Future medical expenses

d. Costs

e. Interest

2. The respondent’s case was that on 30th August, 2007, she was a lawful fare paying passenger in motor vehicle Reg. No. KAN 464 D travelling along Kisii-Nyamira Road when at Daraja Moja an accident occurred in which the appellant’s motor vehicle Reg. No. KAX 308Z Trailer Reg. No. ZC0032 lost control, veered off its lane and collided with motor vehicle Reg. No. KAN 464D, in which the respondent was a passenger. The respondent’s case was that as a result of the said collision, she sustained the following injuries:

i. Chest contusion with fracture of two ribs

ii. Bruises on the scapular region left side

iii. Dislocation of the right hip joint

iv. Bruises on the iliac region

3. In its statement of defence dated 31st January 2008, the appellant denied any liability for the accident and instead attributed contributory negligence to the driver of motor vehicle Reg. No. KAN 464D in which the respondent was a passenger.

4. The case proceeded to a full trial and at the end, the trial magistrate found that the appellant was 100% to blame for the accident and the respondent’s injuries and awarded her Kshs. 250,000/= general damages, Kshs. 49,375 special damages together with costs and interest.

5. It is the said judgment of the trial court that has precipitated the instant appeal by the appellant in which it challenges the findings of the trial magistrate on both liability and quantum which findings it states were against the weight of the evidence adduced at the trial and the pleadings of the parties. The appellant also faults the trial court for making an award for special damages when the same was not properly pleaded or proved. It was the appellant’s case that the trial magistrate erred in relying on the evidence adduced in an undisclosed suit in determining the issue of liability against the appellant.

6. On 7th June 2010, the respondent filed a cross appeal in which she stated that the trial court misdirected itself in awarding a minimal amount of Kshs. 250,000 general damages despite the serious nature of the injuries that she had sustained in the accident which ought to have attracted a higher award.

7. When the appeal came up for directions, parties agreed to canvass it by way of written submissions, however, only the respondent had filed her submissions as at 7th June 2017 when the appeal came up for hearing.

Respondent’s submissions

8. On liability, the respondent submitted that the trial court was justified in holding that the appellant was wholly to blame the accident while on quantum, she argued that the injuries that she had sustained in the accident were serious and were proved through the exhibits that were produced during the hearing, to wit, initial treatment notes, p3 form and a medical examination report. It was the respondent’s case that she suffered very severe injuries and urged this court to consider enhancing the trial courts award.

Evidence

9. As a first appellate court, this court is tasked with the responsibility of re-evaluating and re-analyzing the evidence tendered before the trial court with a view to arriving at its own independent findings. See Selle vs associated Motor Boat Co. Ltd [1968] EA 123.

Respondent’s case

10. The respondent’s testimony was that she was, on 30th August, 2007, travelling in motor vehicle Reg. No. KAN 464D along Kisii to Nyamira Road when at Daraja Moja, a trailer Reg. No. KAX 308Z, which was being driven in a zig-zag manner left its lane and hit motor vehicle Reg. No. KAN 464D thereby causing the accident. She sustained injuries in the said accident and was admitted at Kisii General Hospital for 3 weeks before being transferred to Hema Hospital where she remained until 12th May 2008. She blamed the appellant’s driver for causing the accident. She produced the police abstract and receipts in support of her treatment expenses. She stated that she sustained injuries on the right side of her body. On being cross-examined by Mr. Ochoki, advocate for the appellant, the respondent stated that she saw the appellant’s motor vehicle Reg. No. KAX 308Z veer off its lane and collide with the motor vehicle in which she was a passenger and thus faulted the appellant’s driver for the accident while stating that the driver of motor vehicle no. KAN 464D could not have avoided the accident.

11. PW1 was IP William Kaenyo. His testimony related to the investigations that he conducted following the accident. He stated that the appellant’s driver was to blame for the accident as left his lane and rammed into the vehicle in which the respondent was a passenger.

12. PW2 was Dr. P. M. Ajuoga, a consultant surgeon who examined the respondent, prepared a medical report and filled her p3 form which he produced as exhibits. He confirmed that the respondent sustained chest contusion, fracture of two ribs, bruises on the scapular region, dislocation of the left hip and bruises on the iliac region. On cross examination, he stated no permanent disability could be anticipated from the respondent’s said injuries.

13. PW3 was Dr. Cheruiyot Kipn’geno a medical officer of health based at Kisii Level 5 Hospital. He testified that he treated the respondent at the said hospital and produced her treatment notes as P Exhibit9.

Appellant’s case

14. The appellant closed its case without tendering any evidence.

Analysis and Determination

15. I have carefully considered the contents of the record of appeal and the respondent’s written submissions. I note that the issues that arise in this appeal and that require my determination are as follows:

a. Whether the respondent sustained injuries in the accident that took place on 30th August 2007.

b. Whether the respondent proved that the appellant was liable for her said injuries.

c. Whether the award of damages was excessive.

16. On the first issue, I am satisfied that the respondent tendered both oral and documentary evidence which was sufficient to prove that she sustained injuries in the said accident. The respondent called PW1 and PW2 who were both doctors and who confirmed that they examined and treated the respondent for the following injuries.

Chest contusion with fracture of two ribs

Bruises on the scapular region left side

Dislocation of the right hip joint

Bruises on the iliac region

17. I am therefore satisfied that the respondent proved that she suffered the above injuries on a balance of probabilities.

Liability

18. On liability, the respondent’s testimony was that the appellant’s vehicle was moving in a zig zag manner on the road before it veered off its lane and collided with motor vehicle Reg. No. KAN 464D wherein the respondent was a passenger thereby causing the accident in question. The testimony of the appellant on the manner in which the accident took place was not challenged or controverted by the appellant who did not call any evidence during the trial. It is therefore my finding that the respondent proved, on a balance of probabilities, that the appellant was liable for the said accident and by extension, to her injuries. PW1, the police investigating officer corroborated the respondent’s testimony on how the accident took place by confirming that the appellant’s driver was at fault. I uphold the trial court’s finding that the appellant’s driver was negligent. In the Court of Appeal’s decision in Kenya Bus Services vs Dina Kawira Humphrey, CA 295/2000 (unreported) it was observed:

“Buses, when properly maintained, properly serviced and properly driven, do not just run over bridges and plunge into rivers without explanation.”

19. In the instant case, PW2 testified as follows:

“The driver of Motor Vehicle Reg. No. KAN 464D was not at fault. The vehicle was almost turning towards Nyamira road. The vehicle did not at any time leave its lane. The lorry came onto the path of the small vehicle.”

20. The cited case of Kenya Bus Services Ltd vs Dina Kawira Humphrey (supra) is therefore applicable in this case. The appellant did not tender any evidence to explain why his motor vehicle veered off its lane and crashed into an on-coming motor vehicle.

21. In the case of Embu Public Road Services Ltd vs Riimi (1968) EA 22 it was held:

"........Where the circumstances of the accident give rise to the inference of negligence then the defendant, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the explanation for the accident was consistent only with an absence of negligence......"

22. As I have already stated in this judgment, the appellant did not tender any evidence to counter the respondent's testimony that the appellant's driver was negligent in the manner in which he drove, managed or controlled the suit motor vehicle thereby allowing it to veer off its lane and ram into on-coming motor vehicle. Section 107 of the evidence Actstipulates as follows:

“107. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

23. It is my finding that the respondent discharged the burden of proof placed upon her to prove her case on a balance of probabilities and upon discharging this burden, the same shifted to the appellant to show that there was another cause of the accident other than the negligence of its driver.

24. In the instant case, the statement of defence filed by the appellant in the lower court attributed the accident to the negligence of the owner of motor vehicle Reg. No. KAN 464N. The appellant did not however call any evidence to support this claim of negligence and it therefore remained just that, a mere allegation without proof.

25. The standard to be applied on a prudent driver was set in the case of Embu Public Road Services vs Riimi(supra)in which it was held that in order to escape liability, the driver has to show that:

a.There was a probable cause of the accident.

b.The explanation should be consistent with absence of negligence.

c.It has to be shown that although perfect action is not expected of the driver, nonetheless he has to show that the emergency was so sudden that he could not have taken any amount of corrective measure expected of a competent driver.

26. I find that the appellant did not meet the threshold set in the above case so as to entitle him to avoid liability. Consequently, I find that the trial court was justified in holding that the appellant was 100% liable for the accident.

Quantum

27. The appellant contended that the award of Kshs. 250,000 general damages made to the respondent was excessive without making any proposal on what he thought could have been the appropriate award. The respondent, on her part, also filed a cross appeal in which she contested the award made on damages was on the lower side and not commensurate with the serious injuries that she sustained in the said accident. Similarly, the respondent did not make any proposal on general damages in her written submissions before this court.

28. The principles for assessment of damages were set out by the Court of Appeal for East Africa, and subsequently adopted by our Court of Appeal in the following cases:

1. Kanga vs Manyoka [1961] EA 705, 709, 7013.

2. Lukenya Ranching and Farming Co-op. Society Ltd vs Kavoloto [1979] EA 414, 418, 419.

3. Kemfro Africa t/a Meru Express & Anor. vs A.M.Lubia & Anor [1982-88] I KAR 727.

4. C.A. No.66 of 1982 Zablon Mangu vs Morris W. Musila (unreported)

29. From the above authorities, it is clear that an Appellate Court will interfere with the exercise of discretion by the trial court when assessing damages if the trial court;

a. Took into account an irrelevant fact or,

b. Left out of account a relevant fact or,

c. The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

30. I am further guided by the principles laid down in Loice Wanjiku Kagunda -vs- Julius Gachau Mwangi C A No. 142 of 2003 (UR) where the Court held as follows:-

“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence, an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those or other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (See Mariga –vs- Musila (1984) KLR 257. )

31. Going by the dictum in the above cited authorities, I find that the trial magistrate’s exercise of discretion was in tandem with the principles stated hereinabove and was therefore exercised judicially. The trial magistrate based his assessment on damages on the medical evidence adduced in respect to the respondent’s injuries and had the following to say in the judgment:

“The most serious injuries suffered by the plaintiff is the ribs fracture. The hip dislocation does not seem to have been of the fracture type. The medical report lists the fracture of her ribs as the most severe injury suffered by the plaintiff."

32. The above extract of the trial court's judgment shows that the trial magistrate, in arriving at its award, took into account the severity of injuries suffered by the respondent.

33. It is therefore my finding that the award of Kshs. 250,000 general damages made to the respondent was justified, commensurate with the injuries sustained by the respondent in the accident and in line with the principles that the courts have over the time adopted in assessment of damages as I have stated hereinabove in this judgment. I find no reason to interfere with the award made by the trial court for general damages.

Special damages

34. One of the grounds of appeal listed by the appellant was that the trial magistrate erred in making an award for special damages when the same was neither properly pleaded nor proved. A perusal of the Record of Appeal however shows that the respondent produced several receipts which were marked as Pexibit 3a, 3b, 4, 5 and 8 in support of her claim for special damages. I am therefore satisfied that the award made for special damages was justified as the same properly pleaded and specifically proved.

35. In a nutshell, I find that the instant appeal lacks merit and the order that commends itself to me is to dismiss the said appeal with costs to the respondent.

Dated, signed and delivered in open court this 3rd day of October, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

Mr. Mr. Odero for the Appellant

N/A for the Respondent

Omwoyo court clerk