[2018] KEHC 8427 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CIVIL APPEAL NO 8A OF 2017

I.G. TRANSPORTERS LIMITED.......................1ST APPELLANT

GREGORY MUTUKA……………….................2ND APPELLANT

VERSUS

MOSES THEURI NDUMIA....................................RESPONDENT

(Being an appeal from the Judgment and Decree of the Principal Magistrate(sic)E. G. Nderitu in Voi Civil Case No 25 of 2016 delivered on the 8th May 2017)

IN

PRINCIPAL MAGISTRATE’S COURT

CIVIL CASE NO 25 OF 2016

MOSES THEURI NDUMIA……...……….............… PLAINTIFF

VERSUS

I.G. TRANSPORTERS LIMITED…................1ST DEFENDANT

GREGORY MUTUKA…..................................2ND DEFENDANT

JUDGMENT

1 In his Plaint that was dated and filed on 15th February 2016, the Respondent sought the following reliefs:-

a. General damages

b. Special damages – included cost of future hip replacement surgery is pleaded(sic)

c. Costs of the suit plus interest on (a) and (b) above at court rates.

2. The 1stAppellant’s Statement of Defence was dated and filed on 8th April 2016. In response thereto, the Respondent filed a Reply to Defence dated 13th May 2016 and filed on 16th May 2016. The 2nd Appellant’s Statement of Defence was dated 12th October 2016 and filed on 13th October 2016.

3. In her judgment delivered on 8th May 2017, Hon E. G. Nderitu, Senior Principal Magistrate at Voi Law Courts awarded the Respondent herein a sum of Kshs 2,825,000/= made up as follows:-

General damages Kshs 1,500,000/=

Future medical expenses Kshs 500,000/=

Special damages Kshs 325,000/=

Plus costs and interest thereon from the date of judgment.

4. The said Learned Trial Magistrate found that the 2ndAppellant herein to have been wholly liable for the accident and the 1stAppellant vicariously liable for his negligence.

5. Being dissatisfied with the Judgment of the said Learned Trial Magistrate, the Appellants filed their Memorandum of Appeal dated 29thMay 2016 on the same day. They relied on four (4) Grounds of Appeal.

6. The Appellants filed their Record of Appeal dated 13th September 2017 on 15th September 2017. Subsequently, they filed their Written submissions dated 4th December 2017 on 5th December 2017. The Respondent filed his Written Submissions dated 8th December 2017 on even date. Further to their Written submissions, on 11th December 2017, both counsel for the Appellants and the Respondent made some oral submissions.

LEGAL ANALYSIS

7. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

8. This was aptly stated in the cases ofSelle vs Associated Motor Boat Company Ltd[1968] EA 123and Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows:-

“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

9. Having the aforesaid holding in mind and having looked at the Appellant’s grounds of appeal and the parties respective Written Submissions, it was clear to the court that the issues for consideration and determination were ideally the following:-

a. Whether or not the Learned Trial Magistrate erred in apportioning liability wholly as against the Appellants;

b. Whether or not the quantum that was awarded by the Learned Trial Magistrate was so manifestly excessive and/ or inordinately high in the circumstances requiring interference by this court.

10. The said issues were therefore dealt with under the distinct heads shown hereinbelow.

I. LIABILITY

11. The Appellants admitted that an accident occurred on 28th November 2013 along Mombasa- Nairobi Highway near Taita Village between Motor Vehicle Registration Number KBP 913Q (hereinafter referred to as “the 1st subject Motor Vehicle”) that was being driven by the Respondent herein and Motor Vehicle Registration Number UAD 161Q that was owned by the 1st Appellant and was being driven by the 2nd Appellant at the material time.

12. They contended that the Respondent gave his version of how the accident occurred but no evidence of the point of impact was adduced. It was their submission that in the absence of any sketch plan to show how the accident occurred, then it could only be assumed that the accident occurred on the road and not off the road as the Respondent had contended. They therefore urged this court to apportion liability at 50%-50% as against the Appellants and him.

13. On his part, the Respondent relied on the case of Jimnah Munene Macharia vs John Kamau Erera(full citation not given) where it was held that where a collision between two (2) vehicles was admitted but none of the drivers was alive to testify how the accident occurred, then the two (2) drivers would be held to have equally liable for the accident.

14. He argued that the Learned Trial Magistrate apportioned liability wholly against the Appellants because they did not call any evidence to rebut his evidence on how the accident occurred. He therefore urged this court not to disturb the finding of the Learned Trial Magistrate in this regard.

15. According to the Respondent, he was driving the 1st subject Motor Vehicle at the aforesaid place and dateat about 12. 30 pm when the 2nd Appellant veered into his lane at Bachuma area while overtaking an unidentified motor vehicle and collided with the said 1st subject Motor Vehicle. He was emphatic in his evidence that he was completely off the road when the 2nd Appellant collided with his Motor Vehicle.

16. On his part, No 77322 Corporal Joyce Iha (hereinafter referred to as “PW 2”) was the Officer-In-Charge of Mackinon Police Post. She tendered in evidence a Police Abstract Report showing that the 2nd Appellant was to blame for the accident herein. She, however, did not have the original file.

17. In Jimnah Munene Macharia vs John Kamau Erera NBI.C.A.C.A.NO.218/1998 (unreported) where the Court of Appeal cited with approval the case of Barclays Steward Limited & Another vs Waiyaki (1982-88) KAR,it was held as follows:-

“The base narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr Cottle was driving on his correct side where the range power crushed it.…Collision is a fact. It is however not reasonable possible to decide on the evidence of Wainyaki(sic)and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drives should be held liable.”

18. In the same case, the Court of Appeal had cited with approval the case of Baker vs Harburough Industrial Co-operative Society Limited (1953) 1 WLR 1472where Lord Denning observed as follows:-

“Everyday, proof of collision is held to be sufficient to call on the Defendant to answer. Never do they both escape liability. One or the other is held to blame and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitantly hold that both were to blame. They would not escape liability simply because the court had nothing by which to draw distinction between them.”

19. Appreciably, the burden of proof lay on the Respondent to prove that the Appellant’s caused the said accident. He made an assertion that was not proven by facts and hence, there was nothing for the Appellants to have controverted. It was not sufficient for him and PW 2 to have asserted that the Appellants were to blame for the accident without adducing documentary evidence such as photographs and sketch plans to prove the same.

20. This court fully associated itself with the holding of Warsame J (as he then was) in the case of Jotham Mugalo vs Telkom (K) Ltd Kisumu HCCC No. 166 of 2001(unreported), when he stated as follows:-

“…The particulars of denial contained in the defence cannot be a basis to reject a claim simply because a party has denied the existence of a fact as a fact denied becomes disputed and the dispute can only be resolved on the quality or availability of evidence.”

21. This court therefore agreed with the Appellants that in the absence of proof of where the impact of the accident between the 1st and 2nd subject Motor Vehicles was, the Learned Trial Magistrate erred when she found and held that liability would attach wholly against them merely because they did not call a witness to counter the Respondent’s assertions.

22. In this regard, this court also fully associated itself with the cases of Barclays Steward Limited & Another vs Waiyaki (Supra) and Baker vs Harburough Industrial Co-operative Society Limited(Supra) that was relied upon by the Appellants and thus came to the conclusion that apportionment of liability at 50%-50% as against the Appellants and the Respondent herein was fair and reasonable in the circumstances of the case herein.

II. QUANTUM

23. The Respondent produced a medical report prepared by Dr S.K. Ndegwa on 22nd January 2016 showing that he sustained the following injuries;

a. Compression fracture of the head of the right femur

b. Fracture of the right acetabulum

c. Severe blunt injury of the right knee leading to the tear of the medial collateral ligament

d. Head injury associated with a 4cm laceration above the left eye brow

e. 2cm cut wound on the dorsum of the right foot

f. 3x4 cm cut wound on the right shin.

24. It was the doctor’s medical opinion that the Respondent was expected to heal with 45% permanent disability and would never work again as a driver. The doctor further noted that the hip joint replacement prosthesis that he had to be fitted with has a life span of ten (10) years and required to be replaced every ten years at a cost of Kshs500,000/=.

25. The Appellants contended that the award of Kshs1,500,000/= as general damages by the trial magistrate was excessive and could not be considered reasonable in the circumstances. It further stated that the Respondent was not entitled to another Kshs1,000,000/= as awarded. They relied on the case of Cecilia W. Mwangi & Josephat Mwangi vs Ruth Mwangi [1977] eKLR where the Court of Appeal held that damages should be assessed so as to reasonably compensate the injured party but not to be prejudicial to a defendant.

26. They submitted that the Trial Magistrate did not take into consideration the authorities it relied on during the trial, and further referred this Court to peruse the same authorities. They contended that award of Kshs 350,000/- as general damages was fair in this case. They relied on the following authorities to buttress their case.

27. In the case ofMwanaisha Ismael vs James Kinuthia HCCC No. 314 of 1988 – Mombasa, the court awarded Kshs450,000/= general damages where the plaintiff therein suffered a fracture of the right femur and laceration of the chin, hospitalised for twenty two (22) months and underwent 5 operations.

28. In the case ofAlex Njagi vs Kenya Bus Services Limited HCCC No. 2614 of 1988 Nairobi,the court awarded Kshs 200,000/= general damages where the plaintiff therein sustained fracture of the femur, multiple lacerations, severe pain of the chest. He was hospitalised for twenty one (21) days and underwent femur surgery where metallic plate was inserted.

29. The other case was that ofAgnes Okoth & 3 Others vs Nyabi Chuki & Another HCCC No 1540 of 1988 Nairobiwhere the court awarded Kshs 220,000/= where the plaintiff therein suffered a fracture of the right femur, blunt injury to the forehead, with swelling and loose tooth, blunt injury to the chest and heamatoma formation on left wall, pain and swelling of left shoulder. He was hospitalised for 19 days where the fracture was internally fixed with “K” nails.

30. The last case they relied upon was that ofSusan Olala vs Dickson Ndegwa James HCCC No 420 of 1990 Nairobiwhere the court awarded a sum of Kshs 200,000/= where the plaintiff therein suffered a fracture of the right femur, shock, cerebral concussion, bruises on the face, upper arms and abdomen. He healed with shortening of the right leg.

31. The Respondent submitted that the trial court had pointed out that the authorities the Appellants relied on were more than thirty (30) years old thus an award of Kshs450,000/= was significant in 1988. The Respondent asked the court to take judicial notice of the fact that in 1988 a sum of Kshs450,000/= was enough to purchase a decent second hand car and thus could be compared to Kshs1,500,000/= or Kshs2,000,000/= in modern day Kenya.

32. He relied on the case of Changawa Baya Thoya vs Kazungu Gowa Kapombe and 3 Others HCCC No 382 of 1995where the court awarded a sum of Kshs1,200,000/= and on the case ofStephen Kihara Gikonyo vsPeter Kirimi Kingori HCCC No 109 of 2002 where the court awarded Kshs800,000/= damages.

33. It is well settled in law that an appellate court will not disturb an award of general damages unless the same is so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law.

34. The principles for an appellate court interfering with an award of a trial court were set out in the case of Kemfro Africa Limited t/a Meru Express Services & Another vs A.M. Lubia and Another (No2) (1982-88) L KAR 727at page 703 that:-

“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case at first instance.

35. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.

36. In the case of Cecilia W Mwangi & Another vs Ruth Mwangi[1977] e KLRwhere the court cited with approval the case of Tayab vs Kinanu (1982-88) 1KAR 90where the court therein stated that:-

“I state this so as to remove the misapprehension so often repeated that the Plaintiff is entitled to be fully compensated for all the loss and detriment she had suffered. That is not the law she is only entitled to what is in the circumstances a fair compensation, fair both to her and to the Defendants. The Defendants are not wrong doers. They are simply the people who foot the bill.

37. Further in the case of Daniel Kosgei Ngelechi vs Catholic Trustee Registered Diocese of Eldoret & Another [2013] eKLR, the court therein cited with approval the case of Kigaragari vs Aya (1982-88) 1 KAR 768 where it had been stated as follows:-

“Damages must be within limits set out by decided cases and also within limits that the Kenyan economy can afford. Kenya awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs of insurance cover or increased fee …...”

38. In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by other courts. In view of the aforesaid, a court must therefore be guided by precedents.

39. In this respect, this court took into consideration the case of Joseph Suri Nyateng vs H.P. Mashru [1999] eKLRwhere the plaintiff therein sustained a fracture of the femur and a dislocation of the shoulder and was awarded Kshs 450,000/= general damages for pain and suffering and loss of amenities.

40. It also considered the case of James Katua Peter vs Simon Mutua Muasya [2008]eKLRwhere the plaintiff therein suffered a fracture to his left tibia, fibula and medial malleolus. As a result of his injuries, his left leg was shortened by 10cm. Permanent incapacity was assessed at 70%. The court therein awarded him Kshs2,000,000/= general damages.

41. It was also guided by the case of Catholic Diocese of Kisumu vs Tete [2004] eKLR where the plaintiff therein suffered a head injury moderate to severe concussion, fractures of both superior and inferior rami with associated dislocation of the left hip joint, comminuted fracture mid-shaft of the left femur, contusion to the left knee, deep cut wound to the left foot 8cm 1. 5 cm, cut wound on the scalp –17cm, soft tissue injuries to the chest and healed with a fifty (50%) per cent disability. The Court of Appeal upheld an award of Kshs 1,300,000/= general damages.

42. Courts have a responsibility to keep themselves appraised of recent authorities. This is not to say that reliance on old authorities is acting on the wrong principle. However, courts are also required to take into consideration inflation which has taken a toll on the value of the Kenya Shilling.

43. Notably, the Appellants relied on very old authorities which did not assist this court in establishing what the recent awards of courts in awarding general damages for pain and suffering and loss of amenities were as they did not take into account the inflationary trends over the years. Bearing in mind the nature of injuries that were sustained by the Respondent herein, the sum of Kshs 350,000/= general damages for pain and suffering and loss of amenities was clearly manifestly low.

44. Accordingly, having considered the evidence that was adduced in the Trial Court, the written submissions and the case law that was relied upon by the Appellant herein, this court came to the firm conclusion that the Learned Trial Magistrate applied the correct principles in assessing the general damages and future medical expenses. The same were assessed with moderation and were not inordinately high or too low in the circumstances for this court to interfere with the same.

45. Taking into account the inflationary trends over the years, it was therefore the considered view of this court that the award of Kshs 1,500,000/= general damages for pain and suffering and loss of amenities that the Learned Trial Magistrate awarded the Respondent herein was reasonable in the circumstances of the case.

46. The Appellants did not dispute the special damages. Interference by this court was hence not warranted. Notably, despite having raised the issue of future medical expenses in their Memorandum of Appeal, they did not submit on the same. What this court noted was that they did not adduce other evidence to controvert the amount in the Medical Report that the Respondent relied upon in this respect. All the same, it was not clear to this court if they had abandoned this Ground of Appeal and there was therefore no value in analysing this Ground of Appeal.

DISPOSITION

47For the reasons foregoing, the upshot of this court’s judgment was that the Appellant’s Appeal that was dated 13th September 2017 and filed on 15th September 2017was partly merited on the issue of apportionment of liability.

48. In the circumstances foregoing, this court hereby sets aside and/or vacates the Judgment of Kshs 2,825,000/= that had been entered in favour of the Respondent against the Appellants and in its place hereby enters judgment in his favour against the Appellants for Kshs 1,412,500/=made up as follows:-

General damages Kshs 1,500,000/=

Future medical expenses Kshs 1,000,000/=

Special damages Kshs 325,000/=

Kshs 2,825,000/=

Less 50% liability Kshs 1,412,500/=

Kshs 1,412,500/=

Plus costs and interest thereon from the date of judgment.

49. In view of the fact that this Appeal was partly successful, each party shall bear its own costs of this appeal.

50. It is so ordered.

DATED and DELIVERED at VOI this 20th day of February2018

J. KAMAU

JUDGE