[2021] KEHC 9045 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 6 OF 2020

JOHN KINYUA MURIITHI......................................................................APPELLANT

-VERSUS-

TITO METHO..........................................................................................RESPONDENT

(Being an Appeal from the Judgment of the learned Senior Resident Magistrate

Hon. Eric Mutunga in MombasaRMCC No. 812 of 2015

delivered on the 30th January, 2019)

JUDGMENT

1. The Appellant was the owner of Motor Vehicle Registration No.KBV 710N Toyota NZE while the Respondent was the owner of Tuk Tuk registration No. KTWA 411B. The two vehicles were involved in a road accident along Kibarani – Makupa Causeway on 15/12/2013. Consequently, the Respondent sued the Appellant in the lower court vide a Plaint dated 16/4/2015 and filed on 28/4/2015 seeking compensation for both general and special damages arising out of the said accident. He pleaded that the accident occurred as a result of negligence attributable to the Defendant, now the Appellant and/or his authorized driver, particulars thereof are pleaded at paragraph 5 of the plaint.

2. The Defendant/Appellant denied the entire claim in toto the statement of defence dated 21/8/2015 and stated that if any accident did occur, the same was wholly or substantially contributed to by the negligence of the Plaintiff/Respondent. Some of the particulars of the Plaintiff/Respondent’s negligence which the Appellant attributed as having caused the accident were pleaded at paragraph 6 of the defence thereof.

3. After the preliminaries, the matter proceeded for hearing and the Plaintiff/Respondent called three witnesses whilst the Defendant testified on his behalf on 16/8/2018. The Plaintiff/Respondent testified as PW1 and told the trial court that on the material day, he was hit by a Saloon Car registration No. KBU 710N Toyota Corolla while driving towards the same direction along Kibarani-Makupa Causeway. As a result of the said accident, PW1 averred that he sustained serious injuries and was treated at Coast General Hospital. He produced treatment receipts for Kshs. 1,690/= and Kshs. 1,200/= respectively. When cross-examined, he maintained that the Defendant’s motor vehicle hit him from behind.

4. Dr. Ajoni Adede testified as PW2. His testimony was that he had examined the Plaintiff/Respondent and prepared a medical report dated 17/12/2013 which he presented as Exhibit 6 together with a receipt for payment thereof for Kshs.2000/=. He described the injuries suffered by the Plaintiff as soft tissue injuries which would eventually heal without any permanent disability.

5. PW3, No. 82314 PC Ogol, testified that on 15/5/2013 at around 0900hrs, an accident occurred between Motor Vehicle KBV 710N and a Tuk Tuk KTWA 411P along Makupa – Changamwe Road. According to him Motor Vehicle KBV 710N sharply changed the lane and hit the Tuk Tuk and was therefore to blame for the accident. On cross-examination, he conceded that he was not the Investigating Officer and the matter was pending investigations.

6. On the other hand the Defendant adopted his witness statement as evidence in chief on 16/8/2018. When cross-examined by Mr. Gachiri, counsel for the Plaintiff, he told the court that there was a truck in front of him shortly before the accident happened but he did not see the Tuk Tuk at that moment. He, however, admitted that he hit the Tuk Tuk from behind and could not avoid the accident because it happened so fast. The Appellant also said that he lost control of his vehicle and it rolled off the road.

7. Parties were then directed to file written submissions and after considering the evidence presented before it, the trial court eventually delivered Judgment on 30/1/2019. The trial magistrate awarded liability at 100% in favour of the Plaintiff as against the Defendant/Appellant in the following terms:

a) Special damages Kshs. 5,000. 00

b) General damages Kshs.250,000. 00

Total Kshs. 255,000. 00

The Appeal

8. Aggrieved by the Judgment, the Appellant filed this appeal and raised fourteen (14) grounds as follows:

(a) That the learned Senior Resident Magistrate erred in holding that the Defendant was fully to blame for the accident which occurred on 15th December 2013 contrary to the evidence before him.

(b) That the Learned Senior Resident Magistrate erred in holding that defendant did not call any witness to controvert the evidence by the Plaintiff when it was clear that on 16/4/2018 the Defendant testified before trial court and his witness statement dated 26/3/2014 and filed in court on 16/11/2016 was adopted in evidence.

(c) That the learned Senior Resident Magistrate erred in falling to hold that the plaintiff’s witness did not prove any negligence against the Defendant’s driver.

(d) That the Learned Senior Magistrate erred in failing to hold that the plaintiff was wholly and/or substantially to blame for the accident in that he drove the Tuk Tuk Reg. No. KTWA411B recklessly and at a high speed and suddenly cut into the path of the defendant’s motor vehicle Reg. No. KBV710M on the said road and exposed himself to a risk of damage or injury of which he knew or ought to have known.

(e) That the Learned Senior Magistrate erred in not holding that the plaintiff been driving his Tuk Tuk with due care and attention this accident could not have occurred.

(f) That the Learned Senior Resident Magistrate erred in holding that there was not rebuttal in respect of the plaintiff’s case when the statement of the defendant dated 26th March 2014 and tendered in evidence was very clear on how the accident occurred.

(g) That the Learned Senior Resident Magistrate erred whilst determining liability in failing to take into account the evidence of PW3 P.C. Daniel Ogot when he clearly stated that the case was still pending under investigation and no charges in respect of the accident had been brought to date.

(h) That the Learned Senior Resident Magistrate failed to take into account the sworn testimony of the defendant in the trial court that he has not been with any traffic offence in respect of the accident on 15th December 2013.

(i) That the learned Senior Resident Magistrate erred in not fully considering all the evidence tendered before him when he came to the finding that the defendant was wholly to blame for the accident and when he found that the defendant was wholly to blame for the accident.

(j) That the Learned Senior Resident Magistrate erred in awarding to the plaintiff Kshs. 250,000. 00 for general damages in that the said sum is so excessive as to amount to an erroneous estimate of the damages payable to the plaintiff.

(k) That the Learned Senior Resident Magistrate erred in failing to consider or adequately consider the medical reports of Dr. Ajoni Adede dated 17th December 2013 on the injuries sustained by the plaintiff which was tendered in evidence.

(l) The Learned Senior Resident Magistrate failed to give any or any adequate reason or reasons of how he arrived at the figure of Kshs. 250,000. 00 general damages which he awarded to the plaintiff.

m) That the Learned Senior Resident Magistrate erred in failing: -

a. To appreciate the significance of the various facts that emerged from the evidence of the plaintiff’s witnesses.

b. To consider or properly consider all the evidence before him and/or

c. To make any or any proper findings on the respect of the quantum of damages on the evidence before him.

(n) That the Learned Senior Resident Magistrate erred in failing to consider or adequately consider all the evidence before him and the written submissions filed by the Appellant.

9. Directions were then given on 18. 9.2020 that the appeal be canvassed by way of written submissions. Accordingly, parties complied and filed their respective submissions.

Appellant’s Submissions

10. In his submissions, the Appellant summarized the 14 ground of appeal into three headings as follows;

a) Whether the learned Senior Resident Magistrate erred in law and in Fact in holding the Appellant wholly liable for the accident which occurred on 15/12/2013.

b) Whether the Learned Senior Resident Magistrate erred in law and in fact in holding that the Defendant did not call any witness to controvert the Plaintiff’s evidence.

c) Whether the award of Kshs. 250,000/= for general damages was inordinately high.

11. On whether the trial magistrate erred in holding the Appellant 100% liable for the accident, it is submitted that the Respondent’s evidence could not support the finding of the court. The grounds of that assertion by the Appellant are, firstly that the Plaintiff had pleaded under paragraph 4 of the Plaintiff that the Appellant’s motor vehicle had veered off the road to hit the Tuk Tuk while in his testimony before the court the Plaintiff denied that the Appellant’s had ever veered off the road. Secondly, that the evidence of the police officer contrasted the averments of the Plaintiff in that the Police officer testified that the Appellant sharply changed his lane and hit the Tuk Tuk the Respondent was driving. Thirdly, that although the Police officer stated that the Appellant was charged for abruptly changing his lane, on cross-examination, he admitted that no one was ever charged and further that the case was still pending under investigations.

12. According to the Appellant, the true description on how the accident occurred is in his witness statement dated 26/3/2014. He submits and maintains that the police abstract did not describe which motor vehicle was to blame for the accident and the fact that it is indicated in the police abstract that the matter was pending under investigations leaves no opportunity for one to clearly ascertain that it was the Appellant to blame. Further that there is no final judgment in any traffic case against the Appellant to ascertain his guilt as envisaged under Section 47A of the Evidence Act. It is also submitted that light would have been shed to what transpired had the Plaintiff called an eye witness. But since no eye witness was called, then the Plaintiff did not discharge his burden of proof. It was then suggested that since there was no clear evidence on who to blame for the accident, then the court should apportion at least make a finding that both drivers were to blame and apportion liability in the ratio 50%:50%. In support of these submissions the Appellant relied on excerpts from the cases of Sally Kibii –vs- Francis Ogaro [2012] eKLR, Kiema Mutuku –vs- Kenya Cargo Handling Services Limited [1991] 2 KAR 258 and Hussein Omar Farah –vs- Lento Agencies [2006] eKLR.

13. The second issue is on whether the trial magistrate erred in holding that the Defendant did not call any witness to controvert the Plaintiff’s case. The Appellant here reiterates that the Defendant testified before the trial court on 16/4/2018 and the trial court was wrong to hold that the Plaintiff’s case was not controverted. As such, it is argued that the trial court failed to take into account the testimony of the Defendant and as demonstrated, there are exceptional circumstances and error in principle that would warrant this court’s interference with the trial court’s findings.

14. On whether the award of Kshs. 250,000/= general damages was inordinately high, the Appellant submits that an award not exceeding Kshs. 100,000/= would suffice in the circumstances. The court was invited to consider similar awards in the cases of Hasssan Farid & Another-vs- Sataiya Ene Mepukori & 6 others [2018] eKLR where the court set aside an award of Kshs. 200,000/= in a case where the claimant had sustained blunt injuries and cut wounds and substituted the same with an award of Kshs. 80,000/=. The second case is the case of Ndungu Dennis –vs- Ann Wangari Ndirangu & Another [2018] eKLR. In this case, the claimant had suffered sift tissue injuries to the lower right leg and to the back. The court reduced downwards the award of Kshs. 300,000/= to Kshs. 100,000.

Respondent’s Submissions

15. On his part, the Respondent elected to submit on two issues which he described as follows:

a)Whether the Learned Magistrate erred in finding the Appellant fully liable;

b)Whether the General damages awarded is excessive

16. On the first issue the Respondent submitted that the preponderance of evidence as tendered before the trial court pointed at the negligence on the part of the Appellant. It is argued that the Appellant admitted that he could not recollect what had happened since it happened so fast. The Appellant also admitted that the visibility was clear. The Respondent submits that these admissions are indicative of mindless driving which are buttressed by evidence of the police officer that the Appellant was driving at high speed and his change of lanes resulted into him hitting the Respondent’s Tuk Tuk from behind. From that evidence, it is suggested that this court finds that the trial court was right in find that the Appellant was 100% liable for the accident.

17. As to whether the award on General Damages was excessively high, the Respondent places reliance on cases with similar awards for closely similar injuries he sustained. To wit, the case of Boniface Ojiambo Kodoli –vs- Grain Bulk Handlers Limited [2017] eKLR, where the court awarded Kshs. 150,000/= and the case of Catherine Wanjiru Kingori & 3 others –vs- Gibson Theuri Gichubi [2005] eKLR where the court awarded Ksh. 350,000/= for similar injuries.

Analysis and Determination

18. It is now settled that the duty of a first appellate court is to re-analyze and re-evaluate the evidence on record in order to arrive at its own conclusion. And in doing so, the court should bear in mind that it did not have the benefit of seeing or hearing the witnesses. See case of Selle & Anor –vs- Associated Motor Boat Company Ltd & Others 1968 E.A 123.

19. It may be important to point out that though the appellate court in the exercise of its appellate jurisdiction has power to interfere with the findings of the lower court, this power is not unlimited. It is limited to the existence of certain circumstances. As a general rule, an appellate court should not interfere with the findings of the lower court unless it is satisfied that the court in reaching its findings, considered extraneous factors or failed to take into account relevant factors or that it misinterpreted the evidence or applied the wrong legal principles.

20. Having considered the grounds of appeal, the rival submissions and the entire record, it is my considered view that the following issues arise for determination;

a) Whether the trial court erred in law and fact in holding that the Appellant was 100% liable for the accident

b) Whether the trial magistrate was wrong in finding that the Defendant/Appellant had led no evidence to controvert the Plaintiff’s claim, and

c) Whether the award of Kshs.250,000/= on general damages was inordinately excessive in the circumstances

Whether the Trial court erred in holding the Appellant 100%

liable for the accident

21. In addressing myself to the complaints made by the Appellant over the trial court’s finding on liability, it is important to weigh the same with the evidence on record. The Plaintiff testified that the Defendant’s car registration KBV 710N hit Tuk Tuk from behind while driving towards the same direction along Kibarani-Makupa causeway. These facts were somehow admitted by the Defendant/Appellant upon cross-examination by the Plaintiff’s counsel. He conceded that he hit the Respondent’s Tuk Tuk from the behind but could not explain how it happened because it happened too fast. PW 3’s evidence is the only other testimony that seems to connect the dots on how the accident happened. He told the court that the Appellant was to blame for the accident having sharply changed the lane and hit the Respondent’s Tuk Tuk.

22. The Appellant in his witness statement stated that he was driving to Mikindani and on reaching Kibarani area, the Respondent’s Tuk Tuk overtook his vehicle and encroached onto his driving lane ahead. That on noticing the Tuk Tuk ahead of him, he swerved to the left verge but lost control of his motor vehicle and it overturned. He also stated that he could not recall his vehicle coming into contact with the Respondent’s Tuk Tuk because the accident took place so abruptly and unexpectedly. In his submissions, the Appellant held the view that since the Police Abstract indicated that the matter was pending investigations, there was no conclusive evidence that he was fully to blame for the accident.

23. Given the foregoing summary of the evidence that was placed before the trial court, the magistrate found that the claim as per the defence was not substantiated and there being no rebel in the Plaintiff’s case, the Defendant was fully to blame for the accident.

24. As I have stated above, as the first appellate court, this court can only interfere with findings of fact made by the lower court if such findings were based on no evidence or on a misrepresentation of the evidence or if the trial court in reaching its decision applied the wrong legal principles.

25. From the evidence of both parties, there is no dispute that an accident involving the Appellant’s Saloon Car and the Defendant’s Tuk Tuk occurred on the material day. However, this court is of the view that the trial court erred in fact in holding that the Defendant did not call any witness when indeed the Appellant testified as DW1 on 16/8/2018. Would the claims by the Defendant, if taken into consideration then lead the court in reaching a different finding on liability?

26. Although PW3, testified that the Appellant was to blame for the accident, he admitted that he was not the Investigating Officer and informed the court that the Investigating Officer had left the police force. However, he did not point out the grounds which informed him in reaching that conclusion. He also stated that the record on the file indicated matter was pending investigations. It is therefore not clear to which extent the drivers were to be blamed in view of the evidence tendered.

27. In any event, it is a common ground from the evidence on record that the vehicles were headed towards Changamwe direction when the accident occurred. It is also not denied that the Appellant/Defendant’s Saloon Car Registration Number KBU 710N was driving behind the Respondent’s Tuk Tuk before the accident occurred, which evidence was admitted by the Appellant although in his view it was the Respondent who had encroached onto his driving lane. To that extent this court finds that the Appellant/Defendant bears a higher degree of blame having hit the Respondent’s Tuk Tuk from behind and the best this court can do is to apportion liability in the ratio of 15% as against the Respondent and 85% against the Appellant.

28. As regards the second issue on whether the trial magistrate was wrong in finding that the Defendant/Appellant had led no evidence to controvert the Plaintiff’s claim, as earlier stated, the Appellant testified as DW1. Accordingly, the trial Magistrate was erred in facts and principle in holding that the Plaintiff/Respondent’s case was not controverted.

29. With regard to the appeal on quantum, the Appellant has submitted that the award of Kshs. 250,000/= was excessive in the circumstances taking into consideration the injuries sustained by the Respondent. The Appellant suggested that the court should make an award not exceeding Kshs. 100,000/= whilst the Respondent maintained that this court should uphold the award made by the trial court.

30. Needless to say, it is now trite in law that the Appellate Court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial magistrate 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.

31. Revisiting the evidence on record, the Plaintiff/Respondent produced as an exhibit in court a medical report dated and prepared by Dr. Ajoni Adede and dated 17/12/2013. The same shows that the Plaintiff/Respondent suffered the following injuries;

a) Blunt object injury to the left ankle

b) Bruises on both arms and elbows

c) Bruises on the left leg

d) Bruises on both shoulders

32. I have taken into consideration the submissions made by both parties on quantum. The Appellant suggested that an award not exceeding Kshs. 100,000/= would be adequate in the circumstances. On his part, the Respondent reminded the court that an award on general damages is an exercise of judicial discretion and it should not be interfered with unless it is shown that it was exercised on the wrong principles.

33. In this case, it might be fair to say that the Learned Trial Magistrate based his finding on quantum on two cases cited by the Plaintiff/Respondent. To wit, the cases of Boniface Ojiambo Kodoli –vs- Grain Bulk Handlers Limited [2017] eKLR and the case of Catherine Wanjiru Kingori & 3 others –vs- Gibson Theuri Gichubi [2005] eKLR. In the former case, the Claimant sustained a blunt object injury at the knee and the court awarded general damages at Kshs. 150,000/= whilst on the latter case, the third Plaintiff had sustained multiple soft tissue injuries, injury on the left elbow joint and injuries on both ankles and was awarded general damages at Kshs. 350,000/=. I note that in the case ofCatherine Wanjiru Kingori(Supra),the injuries suffered by the claimant therein were much extensive than the ones suffered by the Respondent as illustrated above. In Catherine Wanjiku case, the claimant therein had sustained multiple soft tissue injuries as opposed to Respondent in the instant appeal and would therefore not be a proper case for inference. Even taking into consideration the injuries sustained by the Respondent herein, to wit, blunt object injury on the ankle and bruises on the arms, left leg and shoulders, it becomes evident that an award Kshs. 250,000/= is manifestly excessive.

34. I have also considered the decisions in the cases of Hasssan Farid & Another-vs- Sataiya Ene Mepukori & 6 others [2018] eKLR and Ndungu Dennis –vs- Ann Wangari Ndirangu & Another [2018] eKLR, where the Plaintiffs suffered soft tissue injuries as the Respondent herein and an award of Kshs. 80,000/= and Kshs. 100,000/= respectively was made. I have also considered the Boniface Ojiambo Kodoli (supra)in which the injuries suffered by the Plaintiff therein are more similar to ones sustained by the Respondent herein.

35. Having had due regard to the aforesaid cases together with the inflationary trends, and having considered the appeal herein and the policy goal of this court to try to compensate injuries as far as possible by comparable awards, I am persuaded the award of Kshs. 250,000/= was excessive and this case is therefore suitable for exercise of this court’s discretion to interfere with the trial court’s finding.

36. In my view, an award of Kshs. 170,000/= would be adequate to compensate the Respondent/Plaintiff for the injuries suffered in his case. I will not venture on the amount awarded on special damages since the same was not challenged.

37. The upshot, then, is that the appeal is allowed and the decision of the trial court embodied in the Judgment delivered on 30/1/2019 is hereby set aside and in its place substituted with the following orders:

a) The Judgment of the Trial Court in Mombasa Resident Magistrate’s Civil Case No. 812 of 2015 be and is hereby set aside and Substituted with an order apportioning liability in the ratio of 85% as Against the Appellant and 15% against the Respondent.

b) The court Substitutes the assessment of Quantum for General Damages for Kshs. 170,000/=

c) The amount awarded in Special damages was not challenged and it is not affected.

d) For equitable reasons, I will not award costs on this appeal, each party shall bear its own costs.

It is hereby so ordered.

Dated, Signed and Delivered at Mombasa this27thday of January, 2021.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

JUSTICE D.O. CHEPKWONY