[2023] KEHC 25243 (KLR)

HVOT (Suing as the Father and Next Friend of DOT) v Musyimi (Civil Appeal 202 of 2021) [2023] KEHC 25243 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25243 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 202 of 2021

MW Muigai, J

November 6, 2023

Between

HVOT (Suing as the Father and Next Friend of DOT)

Appellant

and

Richard Wambua Musyimi

Respondent

(Appeal from the Judgement and Decree of the Hon. B. Kasavuli (PM) dated the in Mavoko Chief Magistrate Court Civil Case No. 442 of 2019)

Judgment

Background Proceedings In The Trial Court The Plaint 1. By Plaint dated May 8, 2019 and filed in the Trial Court on 27th June,2019 against the Defendant/ Respondent in which the plaintiff/appellant claimed that at all material times to the suit, the Defendant/Respondent was the registered owner of motor vehicle registration number KCF 403Z. Contending that on or about the 3rd December,2018 the minor was lawfully and carefully pedal-cycling at Mueleys Stage in Morongo when motor vehicle registration number KCF 403Z was so negligently and/or carelessly driven, managed and/or controlled that the same allowed to knock down the minor occasioning him severe bodily injuries and has since suffered loss and damage.

2. It was averred that as a result of the said accident the appellant sustained severe bodily injuries. Particulars of the injuries to appellant/plaintiff were:a.Degloving injury on the left thighb.Blunt neck injuryc.Blunt injury to the upper backd.Blunt injury to the left lower abdominal walle.Bruise on the right upper legf.Blunt injury to the left kneeg.Blunt injury to the left wristh.Pain on the left thighi.Backachesj.Pain on the left wristk.Pain on the lower abdomenl.Neck movements are tenderm.The left wrist joint movements are tendern.The abdomen is tender on flexiono.Lacerated scar on the upper right leg distallyp.Large lacerated wound on the upper left leg

3. The Plaintiff/Appellant pleaded particulars of special damages as follows:a.Medical report Kshs. 3,000b.Motor vehicle search Kshs. 550c.Medical and related expenseContinuing and details to beSupplied at the hearing Kshs. --------- Total Kshs. 3,550

4. The Plaintiff/Appellant prayed for judgment to be entered against the Defendants/ Respondents jointly and severally for:a.General damagesb.Special damagesc.Costs of the suitd.Interest from the date of filing the suit

The Defence 5. The Defendant/Respondent in his defense dated September 17, 2019 opposed the respondent’s claims and denied the minor being a lawful pedal cyclist; denied that the motor vehicle was negligently or carelessly driven and denied the particulars of negligence therein cited.

6. The defendant/respondent averred that by further defence, in the alternative and without prejudice to the foregoing the defendant/respondent stated that if any accident occurred (which was denied), it was wholly and/or substantially caused by the negligence of the minor in the manner he conducted himself as a pedal cyclist.

7. The defendant/respondent denied in entirety the contents of the Plaint including particulars of injuries, general and special damages set out and pleaded save for the jurisdiction the Honorable Court which was admitted and prayed that the Respondent’s suit against him be dismissed with costs.

Reply To The Defence 8. In reply to the defence dated September 26, 2019 and filed in court on October 14, 2019 the Plaintiff/Appellant, reiterated the contents of the plaint and placed the Defendant/Respondent to strict proof. Whereof, the Plaintiff/Appellant prayed that the Defendant/ Respondent defence be struck out with costs and judgement be entered his favor as prayed in the plaint.

Hearing In The Trial Court The Plaintiff’s Case 9. PW1 was DOT. He testified that he is in court because of the accident of 13/12/2018 and that he was aware of the witness statement he recorded with his advocate which he wished to adopt as evidence. PW1 testified that the accident occurred in evening between 5-6pm. According to PW1, he was from Mlolongo to Sabaki pedal cycling on the extreme left. PW1 claimed that there was heavy traffic he slowed down and all over sudden a lorry knocked him from behind. KCS 403Z was the registration number. PW1 was wearing a red helmet and orange reflector. As per PW1, the lorry stopped and he was taken to the nearby clinic where he received the first aid and allowed to call his father HV. He was taken to Shalom hospital where he was admitted for a day. Testifying that he had a deep cut wound on his left thigh, neck, head and lower abdomen; that after being discharged he reported case at Athi River police station where he was issued with police abstract and P3 form. PW1 relied on the list documents filed in court being the documents written to the owner of motor vehicle and insurance. PW1 blamed the driver for reckless driving.

10. In cross-examination, it was PW1’s testimony that the accident occurred on Mlolongo service lane. He was cycling on the one on the left towards Mombasa. Testifying that the lorry was headed towards same direction and the road is straight with bumps. PW1 did not recall if bumps were ahead or behind scene of accident. He did not recall if there was stalled pick-up on the road and he did not see the lorry before the collision. He told court that he did not how many meters a far did it stop after the accident and he knew the speed was high. PW1 did not know the manner in which the lorry was driven at and that his dad was not at the scene. The vehicle hit him from behind on the left side and fell on his left. It was PW1’s testimony that he had no injuries on the right side of his body and that he was not hanging on the back of the lorry. PW1 did not run into the rear mudguard of the lorry. The first treatment he got was at Shalom Hospital, the discharge summary showed wound on left thigh. PW1 testified further that he was only got treated on left thigh and that the other injuries are not in document summary. He did not agree the injuries to be because of the manner he was cycling the bicycle; that he did not run into the vehicle. PW1 claimed that he is not the one who caused the accident.

11. In re-examination, PW1 confirmed that he was a pedal cyclist. He was not hanging on the vehicle. According to PW1, he was hit from behind; he had a protective gear. He testified that the motor vehicle did not apply brakes meaning it was at high speed. Testifying that the police abstract showed he was a pedal cyclist and he fell on his left side of the body that’s why most injuries are on his left. PW1 blamed the driver because he hit him from behind.

12. PW2 was No. 81990 CPL Wilfred Mburugu. He testified that he had O.B 68/2/12/18 it relates to a serious road traffic accident involving motor vehicle KCF 403Z Isuzu lorry driven by Benjamin Musyoki and a pedal cyclist aged 15 years Daniel Tago. According to PW2 the motor vehicle was overtaking other motor vehicles when it hit the victim who was heading same direction and as a result, the pedal cyclist sustained serious injuries and taken to Shalom Hospital. Testifying that the motor vehicle was detained for further investigations. It was PW2 testimony that he was not the investigating officer as the investigating was PC Etyang who had gone on transfer. PW2 told the court that he was not at the station when accident occurred. He came to station early 2019 and that he has never seen the police file. PW2 had the police abstract issued to victim which he produced as PEXH. 2

13. In cross-examination, PW2 testified that he was not the investigating officer and that he knows the area of accident as it has not changed. Testifying that the area has a busy service lane and that the road is tarmacked, straight and some bumps away from Mulleys Supermarket. According to PW2 the accident occurred at Mulleys Supermarket area. He told court that there are bumps before and after the supermarket more 50 meters away before supermarket and that the accident occurred facing Mombasa direction. Claiming that the lorry was overtaking when accident occurred as the same occurred on the overtaking lane. PW2 could not tell how far lorry stopped after accident and could not tell where the victim laid after accident. PW2 did not have the inspection report and could not tell the damage noted on motor vehicle, could not tell whether the driver was charged, he was not aware the police file was opened as he had only the O.B. it was PW2’s testimony that the O.B has no determination on who was to blame because it was PUI. He could not tell outcome of investigations. Claiming that the investigation officer visited the scene and found motor vehicle at the scene. PW2 did not know measurements from the scene. He testified that the O.B shows the lorry hit a pedal cyclist who was heading to Mombasa direction and logically the pedal cyclist was also overtaking.

14. In re-examination. He told court that logically, collision could happen on either side of the road. PW2 blamed the driver because the pedal cyclist was at law speed. Lorry was going to off lane and that he was not the investigating officer.

The Defence Case 15. DW1 was Benjamin Maweu. He wished to rely on his witness statement which was adopted by court. DW1 testified that he did not knock Daniel from behind as he had just passed him 500 meters away and that he stopped when people screamed on the right lane. Testifying that when he was overtaking, he had already passed cyclist. According to DW1 it was the cyclist who had hung on his motor vehicle and when he overtook pickup, the cyclist must have been hit by it that’s why he was injured on the left. DW1 was not charged and cyclist hit left rear tyre of his motor vehicle.

16. In cross-examination, DW1 told court that he knows how accident occurred and agreed accident occurred. Testifying that he did not see cyclist hung on the lorry, he saw cyclist knocking pickup. He claimed he did not record it on his statement. According to DWI, the police was lying that he hit the cyclist from behind which he did not tell the police. DW1 could not see cyclist from behind and he was not told by anybody how accident occurred. It was his testimony that his motor vehicle was inspected and did not know if the inspection report was produced. DW1 saw cyclist 500 meters, he overtook the pickup, he did not tell police he knocked cyclist from behind and that he was with his turn boy whom he did not call as a witness.

17. In re-examination, he told court that he was 500 meters away after passing cyclist when accident occurred and that he checked it was safe before overtaking. According to DWI, he stopped when he heard people scream. DW1 assumed the cyclist was the one he had passed as he had not passed another cyclist. According to his witness statement, motor vehicle was taken to police station and released in the evening. According to him cyclist is to blame.

18. The matter was canvassed by written submissions.

Trial Court Judgment 19. Vide a judgment dated April 1, 2021, the Trial Court found that the Appellant was also to blame for the accident and apportioned liability in the ratio of 50:50 and entered judgment as followsa.Liability 50:50b.General damages Kshs. 70,000c.Special damages Kshs. 3,550Total KSHS. 73,550Less 50% Kshs. 36,775Net total Kshs. 36,775

The Appeal 20. Dissatisfied with the Judgment, the Appellant vide Memorandum of Appeal dated 15th December,2021 and file in court on 16th December,2021 sought orders that:a.The Appeal be allowed.b.The judgment and decree of the Learned Magistrate be set aside.c.The Plaintiff suit in Mavoko Chief Magistrate’s Court Civil Case No. 442 of 2019 be allowed and the defendant be held 100% liable for the accident.d.The Court be pleased to set aside the award and proceed to re-asses the damages awardable to the Appellant.e.The cost of the Appeal and that of the subordinate court be awarded to the Appellant with interest from the date of filing the lower court suit.

21. The Appeal is brought on the grounds:1. The learned magistrate erred in law and in fact by finding that the Appellant had contributed to the accident.2. The learned magistrate erred in law and in fact by considering and addressing irrelevant issues that were not canvassed before the trial court.3. The learned magistrate erred in law and in fact by apportioning liability in the ratio of 50% 50%.4. The learned magistrate erred in law and in fact by using wrong principles in assessing general damages thus arriving at an award so inordinately low considering the injuries sustained by the minor.5. The learned magistrate erred in law and in fact by reaching at a conclusion that is contrary to the evidence before the court and the Appellant’s submission.6. In all circumstances of the case, the findings of the learned magistrate were characterized by misapplication of the law and wrong exercise of discretion.

22. The appeal was canvassed by way of written submissions.

Submissions The Appellant’s Submissions 23. The Appellant by his submissions dated May 8, 2023 and filed in court on May 17, 2023, in which Mr. Musili counsel for the Appellant submitted that the injuries suffered by the minor herein were not soft tissue injuries in all means, contending that it is not in dispute that the Appellant had suffered degloving injury on the left thigh. According to the counsel, the Appellant produced treatment notes and medical report corroborating this fact.

24. It was the Counsel’s argument that having established that indeed the minor had suffered severe injuries including degloving injury on the left thigh, it is then clear that the Learned Trial Magistrate award of Kshs. 70,000/- was too low as to present an entirety erroneous estimate of compensation to which the minor is entitled.

25. Credence was placed on the cases of Mutua Kaluku v Muthini Kiluto [2018], Civil Appeal 180 of 2008 and S. MvMahesh Kerai & Manoj A Patel Civil Suit 127 of 2007, to buttress his point

26. Counsel averred that the authorities cited by the Appellant before the trial court were relevant and comparable to the injuries sustained by the minor he urged the court to adjust the award of the learned trial magistrate and award the Appellant a fair and reasonable compensation for pain and suffering in line with the cited authorities adjusted to the inflation trend of Kenyan Shillings.

27. Counsel urged the court to allow the Appellant’s appeal as prayed plus cost and interest from the date of filing the lower court suit.

Respondent’s Submissions 28. The respondent in his submissions dated 29th May,2023 and filed in court on 2nd June,2023, in which counsel for the Respondent submitted on grounds 1,2 and 3 that the trial court arrived at the correct decision in finding the Appellant 50% liable for the accident. Counsel made reference to page 67 record of appeal. Submitting further that the Appellant had failed to discharge the burden of proof placed upon him. Reliance was placed on sections 107, 108, and 109 of the Evidence Act

29. Counsel submitted that the point of collision was on the road as testified to by CPL Mburugu PW2 who stated the collision occurred on the overtaking lane reference was on page 59 record of appeal, and Mr. Benjamin Maweu DW1 who stated that when he was on the overtaking lane when he heard people screaming and he stopped. Reference was made on page 63 record of appeal.

30. On grounds 4,5 and 6 counsel argued that the trial court arrived at the right decision in awarding the Appellant Kshs. 70,000/=. Contending that according to the medical reports on record the Appellant sustained multiple blunt injuries. Dr. Cyprianus Okoth Okere vide his medical report dated 8th January,2019 at pages 21 and 22 record of appeal, opines that the Appellant sustained Degloving injuries to the left thigh, with bruises to the right upper leg neck back abdomen left knee and wrist. Submitting that Dr. P.M. Wambugu vide his medical report dated 3rd December,2019 indicates that the Appellant sustained deep lacerations wound on the left thigh. According to the counsel the Trial Court was correct in holding that the injuries observed by Dr. Wambugu’s report was of more probative value.

31. Counsel opined that an award of KSHS. 50,000/= would have sufficed under this head of damages. Credence was placed on the authorities of Buds and Bloom Ltd v Lawrence Emusugut Obwa [2016] eKLR and Paul Gatheru Mureithi v AA Growers Limited [2019] eKLR, and submitted that court upheld an award of Kshs 50,000/= for soft tissue injuries sustained by the Appellant and prayed that the appeal be dismissed with costs.

Determination/Analysis 32. The Court considered the pleadings appeal and written submissions on record and the issues that commend themselves for determination are; the liability whether it ought to be 50% each party or 100% against the Defendant/Respondent.

33. This being the first appeal court, its duty is well expressed in Selle v. Associated Motor Boat Co[1986] EA 123. The Court in discharging its mandate, this being a 1st appeal, the Court evaluates and reconsiders the evidence on record and draws its own conclusion while bearing in mind that the Court has neither seen or heard the witnesses and should make allowances in this respect. See Peters v. Sunday Post Ltd [1958] E.A.424; Butt v. Khan [1981] KLR 349 & Kemfro Africa Ltd T/A Meru Express Service Gathogo Kanini v. A. M. Lubia & Olive Lubia (1982-1988) 1 KAR 727.

34. In Palace Investment Ltd v. Geoffrey Kariuki Mwenda &another [2015] eKLR, the Court of Appeal held :-“Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

35. The accident that occurred on 3rd December 2018 by motor vehicle Registration Number KCF 402Z and the Plaintiff cycling is not disputed. The ownership of the suit motor vehicle and driver on the fateful day is also not disputed. How the accident occurred is what is disputed and the resultant apportionment of liability at 50% each party.

Liability 36. PW1 testified that the accident occurred in evening between 5-6pm. According to PW1, he was from Mlolongo to Sabaki pedal cycling on the extreme left. PW1 claimed that there was heavy traffic he slowed down and all over sudden a lorry knocked him from behind. KCS 403Z was the registration number. PW1 was wearing a red helmet and orange reflector. As per PW1, the lorry stopped and the Respondent was taken to the nearby clinic where he received the first aid and allowed to call his father Hezekiel Victor. He was taken to Shalom hospital where he was admitted for a day.

37. He testified that he had O.B 68/2/12/18 it relates to a serious road traffic accident involving motor vehicle KCF 403Z Isuzu lorry driven by Benjamin Musyoki and a pedal cyclist aged 15 years Daniel Tago. According to PW2 the motor vehicle was overtaking other motor vehicles when it hit the victim who was heading same direction and as a result, the pedal cyclist sustained serious injuries and taken to Shalom Hospital. Testifying that the motor vehicle was detained for further investigations. It was PW2 testimony that he was not the Investigating Officer as the Investigating Officer was PC Etyang who had gone on transfer. PW2 told the Court that he was not at the station when the accident occurred. He came to station early 2019 and that he has never seen the police file. PW2 had the police abstract issued to victim which he produced as PEXH. 2

38. DW1 testified that he did not knock Daniel from behind as he had just passed him 500 meters away and that he stopped when people screamed on the right lane. Testifying that when he was overtaking, he had already passed cyclist. According to DW1 it was the cyclist who had hung on his motor vehicle and when he overtook pickup, the cyclist must have been hit by it that’s why he was injured on the left.

39. On liability, the trial court at Pg 3 of the Judgment observed that;“in the process of ascertaining the veracity of the eye witnesses account of the case he ran into serious factual troubles on the basis of substantive account of 3rd Party on what actually happened. PW2 was not the Investigation Officer he did not have the Investigation File and he only had the Police Abstract [which indicated the matter was pending under investigation P.U.I.] and one would wonder how PW2 arrived at determination that the lorry driver was to blame for the accident and he knocked the minor Plaintiff from behind.The eye account of DW1 the driver was equally not sound for the reason that it is based on his own opinion of what he thought might have happened. However, what appears to be clear in this case is that the accident occurred while the lorry was overtaking other motorists…There being no other evidence to demonstrate the point of impact and where the Plaintiff might have fallen after the collision [the Court] was not convinced that the driver ought to be held fully liable for this accident…, the minor Plaintiff equally to blame. Liability is therefore apportioned at 50%/50%.”

40. The Trial Court correctly assessed the evidence by Plaintiff minor and driver and none could tell exactly how the accident happened. There was no eye witness. The Scene Visiting Officer did not testify, there was no sketch plan on the point of impact of the accident. The Police Abstract did not indicate anyone was held liable the matter was marked PUI (pending under investigation) the driver was not charged in Court with any offence. In the absence of any tangible and cogent evidence on blameworthiness of 1 party, the Trial Court apportioned liability equally. I uphold the Trial Court’s holding on liability 50%/50%.

Quantum 41. This Court relied on Court of Appeal case of Bashir Ahmed Butt v. Uwais Ahmed Khan(1982-88) KAR where the Learned judges set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...’

42. The Plaintiff pleaded the following injuries;a.Degloving injury on the left thighb.Blunt neck injuryc.Blunt injury to the upper backd.Blunt injury to the left lower abdominal walle.Bruise on the right upper legf.Blunt injury to the left kneeg.Blunt injury to the left wristh.Pain on the left thighi.Backachesj.Pain on the left wristk.Pain on the lower abdomenl.Neck movements are tenderm.The left wrist joint movements are tender

43. The above listed injuries, complaints and results of physical examination by Dr. Cyprianus Okoth Okwere were outlined in the medical Report filled in on 8/1/2019 which were classified as serious harm. The Athi River Shalom Community Hospital Discharge Summary of 4/12/2018 confirmed injuries and stitching of wounds of deep cuts on the left thigh. The P3 Form classified injuries as harm. The Medical Report by Dr. Wambugu referred to in the Judgment was/is not contained in the Record of Appeal.

44. The Trial Court awarded general damages of Ksh 70,000/- which was too low taking into account various soft tissue injuries stitching of the deep cut wound on the left thigh, admission for 1 day and referral to another hospital for treatment. The general damages are increased to Ksh 100,000/- at 50%/ 50% liability each party.

Disposition:1. The Appeal on liability is dismissed and appeal on quantum succeeds.2. Each party to bear own costs on the appeal.3. The costs and interest in the Trial Court upheld.

JUDGMENT DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 6TH NOVEMBER, 2023 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn The Presence Of:No Appearance - For The PetitionerMs Ikubi H/b Ngechu- For The RespondentGeoffrey/Patrick - Court Assistant(s)