[2024] KEHC 10977 (KLR)

Hussein & another v Sigei (Civil Appeal E012 of 2022) [2024] KEHC 10977 (KLR) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10977 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E012 of 2022

SM Mohochi, J

September 19, 2024

Between

Abdul Hussein

1st Appellant

Awale Transporters Limited

2nd Appellant

and

Richard Kiprotich Sigei

Respondent

(Being an Appeal from the judgement and decree of Hon. R. Yator, Principal Magistrate at Molo delivered on 27th January, 2022 in Molo CMCC No. 127 of 2019)

Judgment

1. The Appellants were the Defendant in a suit wherein the Respondent by Plaint dated 18th June, 2019 claimed general and special damages, loss of earning capacity and future medical expenses in regard to personal injuries sustained in an accident that occurred along the Nakuru-Eldoret Road on 28th November, 2017 involving motor vehicle registration No. KBH 940N/ZD1089 and a motor cycle registration number KMDF 130C in which the Respondent was a pillion passenger. 2. The Appellants filed their joint Statement of Defence on 11th September, 2019 denying any liability and blamed the occurrence of the accident on the rider of motor cycle registration No. KMDF 130C and that the accident was contributed too by negligence on the part of the Respondent.

The Evidence 3. PW1, Richrd Kiprotich Sigei stated that he was aboard motorcycle registration number KMDF 130C headed to Nakuru on 28th November, 2017 a lorry registration No. KBH 940N/ZD1089 headed to Eldoret came from left to right slid into their lane hit him and they fell in a ditch. He was taken to hospital and admitted for 15 days He produced PExh 4,5,7,8,9,10,11,18, 21 as exhibits by consent. He claimed to be an athlete both locally and internationally competing four (4) times a year and hadn’t pursued his career since 2017. That he depended on racing and the last race he earned Kshs. 350,000. He blamed the driver of the lorry and that the rider was not at fault as he was in the proper lane.

4. In cross-examination he stated that at Total Station which is on the right-hand side as one heads to Kericho, he boarded motorbike and were on the left-hand side facing Eldoret and crossed the road. He insisted that his training attire had reflectors but was not brought to Court. They were ascending and the lorry was descending. The vehicle just fell 50 meters from them which was near and slid. Rider did not try to stop there was a bus behind them and a ditch on the left-hand side. They landed on the ditch on left side.

5. He added that there was one eye witness Stephen Maritim. The police arrived at the scene immediately and took the driver and turnboy to hospital. He had not been called to testify in any traffic case and that it would be wrong for the police to find the rider of the motor cycle to blame as they were not crossing the road from right to left. He lost copies or records from St Joseph Hospital. At Tenwek hospital part of the money was settled by NHIF and he settled the balance.

6. He maintained that he would attend races on invitations and his earnings depended on his position, performance and some appearance fee and each race had its amount. He had no documents showing four events in a year. He also had no documents to confirm loss of earnings. He added that once the doctor removes the plates and confirms he can go back to athletic then he will.

7. PW2 was No. 73175 PC Makula Peter attached to Mau Summit Police Station produced Police Abstract PExh6 and confirmed the accident happened on 29th November, 2017 at 6. 20pm. the vehicle was headed towards Eldoret from Nakuru while the motor cycle was headed from Eldoret to Nakuru. He confirmed he did not visit the scene as he was not working at the station and relied on the OB. The OB did not show the final resting positions. He did not have police file or inspection report. He could not confirm that it was a head on collision.

8. In cross-examination he stated that motor cycle was carrying two passengers and crossed the road abruptly following the trailer. That it was not clear if motor cycle was from left to right. He added that he could not blame the driver of the lorry and could not tell how the accident occurred as how they got into contact was not highlighted.

9. PW3, Karen Kirigo, administrator at Athletics Kenya confirmed that PW1 was registered and produced the athletic registration form PExh 17 and invitation letter to Chile PExh18. She also confirmed that the Respondent participated in various races Chile, Europe and the US and was paid. She also produced a contract from adidas PEx19 a contract extension from adidas PExh 20 and one from Volare sports from January up to December 2018 as PExh21. She produced Invitation to attend Santiago marathon PExh22 and visas to Schengen, USA and China PExh23, 25, 26 respectively for various races and also a passport copy PExh27. She added that the Respondent could be traced in the world athletics as an athlete and in the website. The website shows every race he participated in.

10. In cross-examination she stated that the letter dated 11th February, 2018 was signed by the Respondent and not by adidas. She confirmed the Respondent’s performance results were available in the profile and that payments are made through representative and not through athletic Kenya. She also confirmed that participation is upon invitation and that there were no other invitations in 2018. She could however not confirm the pay he earns. In 2017 the Respondent attended 2 events and won some amounts.

11. PW4 Lydia Maritim records officer at Tenwek Hospital confirmed that the Respondent was admitted on 1st December, 2017 and discharged on 15th December, 2017. She produced the discharge summary PExh1, an invoice for Kshs, 120,543 with NHIF paying Kshs 80,000 and cash PExh 2 amounting to Kshs. 131,830. He visited the hospital severally Pexh3, crutches document for Kshs 1,400 hundred PExh4 and summons PExh29. She confirmed that the Kshs 131,830 was not part of what was paid by NHIF.

12. DW1, No . 73175 PC Benard Makhoha attached to Summit Police produced extract of OB as DExh 1 and stated that the acceded happened on 28th November, 2017 at Total Junction involving motorcycle registration number KMDF 130C carrying two pillion passengers and the motor cycle crossed the road abruptly forcing the trailer off the road to the right side as it was on the left side. He added that although he was not at the scene it is likely the motor cycle emerged from the left. He confirmed it was not proper for a motor cycle to carry to pillion passengers and it was not proper for the motorcycle to join the road without confirming the road was clear and the rider was to blame

13. In cross examination he confirmed that CPL Bitok, PC Rop and PC Sang were the officers on scene and was not familiar with the handwriting to tell who recorded the entry, did not get the police file, did not get the sketch plan to tell the point of impact. He denied that the police were hiding the police file. He also did not know if the rider was charged. Both the vehicle and trailer were detained but he did not have the inspection report as are usually housed in the police file

14. By a judgment dated and delivered on 27th of January, 2020 in favour of the Respondent the Court ordered as follows: - and Liability 100%, General damages Kshs 450,000, Loss of earning capacity, Kshs.1,500,000, Future medical expenses Kshs. 100,000, Special damages, Kshs. 41,913 and Total Kshs 2,091,913.

15. Being aggrieved by the said judgment, the Appellants’ preferred this appeal which is premised on grounds that:-a.That the Learned Magistrate erred in law and fact in failing to properly evaluate the evidence adduced on the issue of liability and quantum thereby rendered judgement that is unsound in principle and not reflective of the evidence adduced;b.That the Learned Trial Magistrate grossly misdirected herself to holding the Defendants 100% liable for the accident despite there being contradictory version of the accident;c.That the Learned Trial Magistrate erred in holding the Defendants wholly liable for the accident whereas there was evidence of contributory negligence on the part of the rider of motor cycle registration number KMDF 130C who had been enjoined in the suit as a 3rd Party;d.The Learned Trial Magistrate erred in law and in principle in making an award of Kshs. 1,500,000 on account of loss of earning contrary to the principles and law governing the making of such an award and in the absence of evidence to justify such an award under the said head;e.That the Learned Trial Magistrate erred in failing to consider the Medical Report filed by the Defendants/Appellants while wholly adopting the Medical Report filed by the Plaintiff/Respondent thereby arriving at an award for future medical expenses that is inordinately high.f.That the Learned Trial Magistrate erred in failing to consider the submissions made by the Defendant/Appellants while wholly adopting the submissions of the Plaintiff/Respondent without proper justification.

16. The Appellants urged the Court to set-aside the Trial Magistrate’s findings and replace it with its own evaluation and that the costs of this appeal be borne by the Respondent.

17. The Appeal was heard by way of written submissions. The Appellant filed their submissions on 23rd May, 2023 whereas the Respondent filed his submissions on 30th May, 2023.

Appellants Submissions 18. The Appellants combined grounds 1, 2 and 3 and submitted that there existed two versions of events of the accident and the trial Court failed to take note of that and that the version stated by the Police officer was more probable as he was an independent party.

19. It was also submitted that the Court was at fault in not holding the rider of the motorcycle liable despite the confirmation that there were two pillion passengers contrary to the Highway Code and Traffic Rules. That the rider contributed to the accidents and the claim ought to have been dismissed. Counsel relied on the case of Muthuku v Kenya Cargo Services Ltd [1991] KLR 464 as cited in the case of Tombe Tea Factory Ltd v Samuel O. Araka [2010] eKLR. Or alternatively liability be apportioned at 50:50.

20. As for issues 4, 5 and 6 the Appellants faulted the Court for awarding loss of earning capacity whereas the Respondent pleaded for loss of earnings. The Appellants relied on the case of Douglas Kafala Ombeva v David Ngama [2013] eKLR to submit that the loss of earnings had to be proved strictly. It was further the argument of the Appellants that the authority relied on by the Trial Magistrate was based on a multiplier approach and not comparable to the case.

21. It was also the Appellants submissions that the Court be guided by the decision in SJ vs Francesco Di Nello & Another (2015) eKLR as cited in John Kipkemboi & another vs Morris Kedolo [2019] eKLR to find that the loss of future earnings and loss of earning capacity are distinct heads

Respondent’s Submissions 22. On liability the Respondent submitted on the issue of whether all factors were considered in holding the Appellants 100% liable it was argued that the Defence failed on purpose to call the 1st Appellant or adopt statements made by the 1st Appellant. The Respondent relied on the case of Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR to submit on the consequences of a party failing to call crucial evidence.

23. It was also submitted that the initial statement of the 1st Appellant which was also examined by the Magistrate, corroborated the evidence of the Respondent. It was further contended that the statement of the 1st Appellant contradicted the OB extract relied on by the Defence. The Respondent also argued that DW1 was not at the scene and that the Respondent met the standard of proof expected in civil cases.

24. As regards quantum it was submitted that the trial Court was justified to give the award for loss of earning capacity while relying on the decisions in Alpharma Limited vs Joseph Kariuki Limited Cebron [2017] eKLR and James Kipkemboi & Another v s Morris Kedolo [2019] eKLR.

25. Pertaining future medical expenses, it was submitted that the same was pleaded and justified as it was confirmed and that the right principles were applied in deciding the case.

Analysis and Determination 26. Being a first appeal this Court lays emphasis on the principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123:“…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 into account of particular circumstances or probabilities materially to estimate the evidence.”

27. The issues for determination that spawn from this appeal are as follows:-a.Whether the Respondent discharged the burden of proof to the required standardsb.Whether the award of general damages was excessive in view of the injuries sustained.c.Whether the award for loss of future earning capacity was erroneous and made without consideration of applicable Principlesd.Whether the claim for future medical expenses was excessive in the circumstances of this casee.Who bears costs of the suit

Liability 28. The liability was apportioned 100% against the Appellants in favour of the Respondent. The facts speak for themselves that an accident indeed occurred, the driver of motor vehicle registration number KBH 940N/ZD1089 and the rider of motor cycle Registration No. KMDF 130C were going in the opposite directions and the Respondent was a pillion passenger.

29. The Appellants also faulted the Court for not apportioning liability to the rider of the motorcycle registration number KMDF 130C despite being enjoined in the suit. The third party however he failed to enter appearance or file a defence. The case proceeded as if the third party was not party to it. Order 1 Rule 17 of the Civil Procedure Rules lays provides for what happens when a third party fails to enter appearance. The Record shows that the Appellants did not apply for judgment against the third party or prosecute the case against the third party. The Trial Court in the circumstances cannot be faulted.

30. Secondly, the Appellants contend that liability should have not been apportioned to the Appellants as the burden of proof was not discharged. It was also their contention that liability ought to have been apportioned in the ratio of 50:50 because the Respondent was equally to blame for knowingly boarding the motorcycle as a second passenger.

31. This being a civil case, the burden of proof was on the Respondent and it was on a balance of probability and not otherwise. The minute the burden is discharged by the party moving Court, then it shifts to the Defence. In the entire record, the only challenge to the Respondent’s evidence was that of the police officers who were not at the scene neither were they the investigating officer.

32. The Court of Appeal in the case of Berkly Steward Limited v Waiyaki [1982-1988] KAR where it is cited with approval the decision in Baker v Market Harborough Industrial Co-operative Society Ltd (1953) 1 KLR 1472, 1476 where Lord Denning LJ observed inter-alia that-“Every day proof of collision is held to be sufficient to call on the dependents for an answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court had nothing by which to drawn any distinction between them.”

33. In Ndatho v Chebet [2022] KEHC 346 (KLR):“23 In a road traffic accident involving a collision between two motor vehicles, the court apportions liability depending on blameworthiness of the drivers. Other parties like passengers who cannot be held liable will have liability attach to them as apportioned to the drivers.”

34. The Courts have held that where party filed pleadings but fails to call evidence in support of its case, the party’s pleadings remain mere statements. The party therefore fails to substantiate its pleadings. Failure from the Appellants to adduce evidence means the Respondent’s evidence remains uncontroverted. The driver did not testify.

35. Similarly, the Court of Appeal in the case of John Wainaina Kagwe V Hussein Dairy Limited [2013] eKLR the Court stated: -“....the Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify, meaning that the allegations in its defence with regard to the blame- worthiness of the accident on the Appellant either wholly or substantially remained just that, mere allegations. The Respondent thus never tendered any evidence to prop up its defence, whatever the respondent gathered in cross examination of the Appellant and his witnesses could not be said to have built up its defence as it were, therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident......”

36. Although the OB extract had details of the accident, an investigation report would have shed more light. A sketch map was not brought to Court to guide the Court on the point of impact or how the accident happened. There was also no other independent witness to the accident. The only witness was the Respondent. Accordingly, the Court’s assessment finds that the Respondent discharged the burden of proof to the required standards. This Court finds no reason to interfere with the findings by the trial court on liability.

Quantum 37. As regards quantum, in principle an appellate Court will only interfere with the award of the Trial Court if it is inordinately so high or low as to represent an entirely erroneous estimate or it is based on some wrong legal principle or on a misapprehension of the evidence.

General Damages 38. As a result of the accident, the Respondent sustained the following injuries:a.Fracture mid shaft right humerusb.Severe soft tissue injury of the right handc.Deep cut wound on the scalp leading to soft tissue injuriesd.Dislocation of the left ankle jointe.Severe soft tissue injury of the left foot

39. The Medical Report by Dr. Obed Omunyoma dated 11th July, 2018 about 8 months after accident opined that the Respondent suffered permanent disability at 20% and classified the degree of harm as grievous harm. The medical report from the second medical examination by Dr. A.M. Otara dated 11th November, 2019 done two (2) years after the accident confirmed the injuries, the treatment, the fact that the Respondent would require removal of implants in future and the degree of harm was also similar. He however did not classify the extent of the disability.

40. The trial court also considered the case of Daniel Otieno Owino vs Elzabeth Atieno Owuor [2020] eKLR which was a recent case then where the Plaintiff was awarded Kshs. 400,000 for sustaining fracture of tibia and fibula bruises of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries, soft tissue injury on the lower left leg.

41. This Court is satisfied that the Trial Court took into account the proper principles and was guided by a more recent judicial decision. Further the considerations factored in the nature of injuries sustained and that they had close proximity to those sustained by the Respondent herein. The trial Court also considered the authorities relied upon by both parties. The Appellants had submitted that that Kshs 350,000 would have been sufficient in the trial Court. Considering the circumstances of the case and keeping in mind that no injuries can be completely similar as well the inflation aspect at the time, this Court also finds no reason to interfere with the award on general damages and is thus upheld.

Loss of Earning 42. The Appellants did also fault the Court for awarding loss of earning capacity yet the same was not proven. The Appellants argued that no evidence was tendered on the amount he was earning at the time of the accident and the duration he was denied the earnings. The Trial Court awarded the Respondent an award under the head loss of earning capacity. The Respondent on the other hand pleaded loss of earning.

43. The Appellants contend that loss of earning should be under the head of special damages and should therefore be proven and that there is a difference between loss of earning and loss of earning capacity. The Respondent in this case pleaded loss of earning. The question that begs therefore, is whether loss of earning is the same as loss of earning capacity and is an award for loss of earning awarded under general or special damages?

44. In William J Butler v Maura Kathleen Butler [1984] eKLR [1984] KLR 225 at 232 Kneller JA defined loss of earning capacity and stated:“A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury. The English Court of Appeal made an award under this head in Ashcroft v Curtin [1971] 1 WLR 1731, and by now, it is not a new principle in that jurisdiction.”

45. Further the learned judge stated: -“Loss of earning capacity is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained by Lord Denning M.R. in Fairely vs John Thompson ( Design & Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40,42(CA)…..Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of the general damages.”

46. It is not in dispute that the Respondent was an athlete and therefore the accident did lessen his chances of getting paid as an athlete due to his injuries.

47. In Jacaranda Bodaboda Operators & another v Nyasero (Civil Appeal 774 of 2022) [2023] KEHC 23806 (KLR) the Court at paragraph 30 stated that: -“Diminished earning capacity is decrease in a person’s earning ability as a result of the disability suffered. It is different from loss of earnings which looks at what has actually been lost as a result of the accident. Diminished earning capacity need not be specifically pleaded and proved but loss of earnings must be specifically pleaded and proved.”

48. From the foregoing, damages under the head of loss of earning capacity can be classified as general damages and have to be proved on a balance of probability. Loss of earning on the other hand is the income the Respondent lost during the recovery period as a result of the accident and is therefore a special damage claim. Being a special damage claim it goes without saying that the same has to be proved.

49. In S J vs Francesco Di Nello & Another [2015] eKLR the Court of Appeal propounded the position enunciated in Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 at page 14 wherein Lord Denning M. R. said in part as follows:“It is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” Learned counsel for the respondent was therefore wrong in stating that loss of earning capacity was not pleaded and that it must be proved as though it was a claim under loss of income or future earnings.”

50. The Trial Magistrate applied the global approach in awarding damages under loss of earning capacity despite the same being one that is under general damages. The Trial Magistrate did not err in awarding damaged for loss of earning capacity yet the same was not pleaded. The Trial Court correctly observed that the Respondent adduced evidence from contracts to visas to payments records and the testimony of PW4 who works at Athletics Kenya of the evidence of income that he used to earn and thus adopted the global award approach. The trial Court was not entirely wrong in considering the loss of income as a result of the accident. The Respondent was an athlete actively participating in up to three races per annum with his solid demonstration of earning Almost 1,500,000 Kshs the year preceding the road traffic accident.

51. Loss of earning as has been clearly demonstrated falls under the head of special damages and ought to be strictly proved. According to this Court, the Respondent could not provide documentation of his earnings. The Court does take judicial notice that the nature of employment of athletes is not on a monthly basis and the amount earned is cannot be mathematically computed to the last coin. In that regard the award of loss of earning capacity is anchored on sound reasoning by the trial court and from this court’s perspective might just be the least amount an active athlete participating in up to three races per annum in the western world would earn. This court appreciates the trial court granting under this head this head in the realization substantive justice noting that the evidence tendered did prove loss of earning capacity.

52. This Court shall thus not disturb the award of damages under this head in lieu of loss of earning as pleaded.

Future Medical Expenses 53. The Appellants accused the Court of disregarding the medical report by Dr Otara 11th November, 2019 and instead wholly relying on the Respondent’s medical report dated 11th July, 2018. As clearly noted, both doctors confirmed the nature of injuries and the need of removal of metal plates fitted in future. Only Dr Obed estimated the cost of future medical expenses to approximately Kshs. 100,000.

54. The Trial Court noted in the judgment that this figure was not disputed. It also worth noting that a contrary figure was also not given by Dr Otara to convince the Court otherwise. It is therefore this Court’s considered view that the award was based on correct principles and shall therefore not be disturbed.

55. Special damages were not challenged and were consequently pleaded and proved. The same shall not be disturbed.

56. Accordingly, the Appeal fails for want of merit;a.The award liability and that of general damages is upheld.b.The award for loss of earning capacity in the sum of Kshs 1,500,000 is hereby upheld.c.The award for future medical expenses is also upheld.d.The Respondent shall have costs of the AppealIt is so ordered

SIGNED, DATED AND DELIVERED AT NAKURU ON THIS 19TH DAY OF SEPTEMBER, 2024. MOHOCHI S.MJUDGE