[2022] KEHC 2677 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 24 OF 2020

JENIFFER KAARI MAVUTA...........................................................................APPELLANT

VERSUS

SUSAN MUTHAKYE MALUKI....................................................................RESPONDENT

JUDGMENT

1. The appellant herein filed the instant appeal having been dissatisfied with the judgment by the Senior Resident Magistrate and thus set out the following grounds of appeal that:

i.The learned trial magistrate erred in law and fact by finding the appellant 100% liable for the accident whereas it is the respondent who was wholly or substantially liable for the accident in issue.

ii.The learned trial magistrate erred in law and fact by failing to properly evaluate the evidence on record and particularly the evidence tendered by the defence witness (DW 1) and thereby arrived at an erroneous conclusion that the appellant was wholly to blame for the accident.

iii.The learned trial magistrate’s award for the general damages is inordinately excessive considering the injuries sustained by the claimant and the same amounts to an erroneous estimate of the damages payable.

iv.The judgment of the learned magistrate is against the law and weight of evidence on record.

2. The appellant therefore prayed that this appeal be allowed with costs and the Honourable court be pleased to re-evaluate the evidence and make its own findings on liability and quantum.

3. At the hearing of the suit, the appellant presented a case that on the date in question she was driving her car when she saw the respondent on the left side of the road and that she did hoot but the respondent never heard since she was on phone. It was her case that when she arrived near her, she came to the appellant’s lane and placed her leg on the tyre. She stated that she did not hit the respondent as the respondent was further going towards an opposite direction and so, she applied brakes in order to avoid her. Upon cross examination, she stated that she was driving towards Embu – Kiritiri Road. That the respondent was ahead of her and that she hooted twice but the respondent did not get out of the road; that upon the second hooting, the respondent placed her leg on the tyre upon which she requested the appellant to take her to hospital but equally confirmed that the respondent was injured.

4. The respondent gave her evidence and maintained that on or about 09. 05. 2018 at Top Mark area in Embu Town while she was walking off the road on her lawful lane, she was knocked by motor vehicle Registration Number KCA 806W as a consequence of which she sustained injuries. Upon cross examination, the respondent stated that the vehicle was also heading towards the direction of Embu – Kiritiri Road. She denied that she was talking on phone when the accident occurred. It was her case that she still feel pain all over her body. She particularized her injuries as follows;

i.Swollen left ankle.

ii.Fracture on left ankle outer aspect.

5. The parties proceeded to file their submissions and upon consideration of the pleadings, the evidence on record and the said submissions, the trial court found the Appellant 100% liable for the injuries sustained by the Respondent and awarded her an amount of Kshs. 450,000/= as general damages for pain and suffering and Kshs. 24,480/= as special damages plus cost of the suit.

6. It is this judgment which provoked the appeal herein.

7. At the hearing of the appeal, directions were taken that the appeal be canvassed by way of written submissions but however the parties herein chose not to file their rival submissions but that notwithstanding, I will proceed to re-evaluate the evidence that was adduced before the trial court.

8. I have carefully considered the appeal, the evidence on record. I have also read the judgment of the trial court. Having done so, I find that the main issues for determination are:

i.Liability;

ii.Quantum/Damages.

9. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another v 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.”

10. In Stapley v Gypsum Mines Limited (2) (1953) A.C 663at P. 681 Lord Reid was of the view that:

To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it…..The question must be determined by applying common sense to the facts of each particular case.

One may find that as a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can apply generally.

11. The appellant faulted the trial court and averred that it erred in reaching a determination that was never supported by the weight of evidence adduced.

12. It was the trial court’s decision that the appellant herein was liable for the accident in question and it entered a judgment against her. It was not controverted that the appellant herein was the one in control of the said vehicle at the time in question, a fact that she does not deny. It is of importance to note that the respondent equally was using the same road at/or about the exact time in question.

13. In her evidence that was tendered before the trial court, the respondent stated that she was walking off the road on her lane when she was knocked down by motor vehicle KCA 806W. She stated that she was on the walk path. On her part, the appellant testified that she was driving the aforesaid motor vehicle along the path that leads to the main road (Embu – Kiritiri Road) when she noted a pedestrian who was walking the same direct as herself. That the pedestrian happens to be the respondent and that she was talking on phone. That the road is rough and bumpy and that she was driving at 15 kmh.

14. According to her, she slowed down to drive past a bump at Top Mark Academy and when she got closer, the respondent had gotten into the road. She applied brakes but she could not avoid hitting her as the respondent was too close and had abruptly gotten into the road.

15. From that piece of evidence, this court is not convinced that the appellant was driving at a speed of 15 kmh as she alleges. If she was doing that speed, she could have been able to control the motor vehicle and avoid hitting the respondent. Secondly, the injuries that the respondent sustained could have been less severe than the ones that she suffered. In the course of the proceedings before the trial court, the learned magistrate observed the demeanor of the appellant and noted that she was not truthful and refused to answer questions. This court cannot ignore that fact and the only logical inference is that she refused to answer questions because she was telling lies and her evidence could thus not be credible.

16. In my considered view, weighing the evidence of the appellant against that of the respondent, I find the evidence of the respondent more reliable and I believe the same.

17. The learned magistrate had the benefit of seeing both witnesses testify.

18. The finding of the trial court that the appellant was liable for the injuries of the respondent can thus not be faulted.

19. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (See also LawJA, Kneller & Hancox Ag JJA inNkube v Nyamuro [1983] KLR, 403-415, AT 403).

20. On the issue of damages, the question is whether I have grounds to interfere with the damages awarded by the trial Court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is so inordinately high that it must be a wholly erroneous estimate of the damages or that it was inordinately low. I am guided by the decision by the Court of Appeal in Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that :

Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

21. The trial magistrate awarded the respondent an amount of Kshs. 450,000/= as general damages and Kshs. 24,480/= as special damages and indeed cost of the suit; the appellant regards the award as undeserved in comparison to the injuries sustained.

22. In the case ofSavanna Saw Mills Ltd v Gorge Mwale Mudomo (2005) eKLR the court stated as follows: -

“It is the law that the assessment of 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 simply because it would have awarded a different figure if it had tried the case at the first instance …”

23. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondent herein sustained injuries which were attested to by the Doctors G. Mwaura and Macharia.

24. I have also considered recent decisions. In Vincent Mbogholi vs Harrison Tunje Chilyalya [2017] eKLR, the claimant had sustained a fracture of the left tibia leg bone, blunt injury to chest and lower limb and bruises, and was awarded Kshs. 500,000/= .

25. Further, in Godfrey Wamalwa Wamba & Another vs Kyalo Wambua [2018] eKLR, the appellant had sustained a compound fracture of the right distal tibia and fibula, cut wounds on the scalp and chest and a cut on the lower lip. He underwent surgery for repair of the fibula, his leg had shortened. An award of general damages at Kshs. 700,000/= was upheld on appeal.

26. This Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLRthat;

“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

27. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar, the award of Kshs. 450,000/= as general damages cannot be said to represent an entirely erroneous loss suffered by the respondent herein. I find that the trial court was properly guided by the authorities cited before it.

28. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. There is no reversible error on these as well.

29. In my humble view therefore, the learned trial magistrate considered all the relevant factors in this case in arriving at his decision.

30. I therefore find that the appeal is without merit and I dismiss it with costs.

31. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

......................................for the Appellant

...................................for the Respondent