[2022] KEHC 2479 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO.98 OF 2018

JOHN NJOROGE MURIGI.....................................................APPELLANT

VS.

D.M.K. (Minor suing through the father and next friend

MICHAEL KARIUKI NGANGA).................................... RESPONDENT

(An appeal from the judgment of the Chief Magistrate’s Court at Thika

(G. Omodho, SRM) on 25th July 2018 in THIKA CMCC NO. 551 OF 2012)

JUDGMENT

1. D.M.K. (a minor) filed a suit before the Thika Chief Magistrate’s Court through his next friend, Michael Kariuki Nganga. By that suit, he sought special and general damages in respect to a motor vehicle accident which occurred on 17th September, 2011. The trial court’s judgment dated 25th July, 2018 was in favour of the minor in that it found the defendants John Njoroge Murigi, the appellant in this appeal, was 100% liable for the accident in which the minor was injured. The trial court awarded the minor Kshs.1,500,000 in general damages, Kshs.120,000 for future medical expenses and Kshs.51,730 as special damages for medical expenses. That judgment was against John Njoroge Murigi, the appellant herein. Martha Nduta, the 2nd defendant before the trial court, was found vicariously liable. The present appeal however was only filed by John Njoroge Murigi. Martha Nduta has not appealed the trial court’s judgment.

2. It is common ground that on 17th September, 2011 the appellant was driving motor vehicle registration number KBM 586M. The appellant by his written witness statement and by his evidence at the trial stated interchangeably that, in that vehicle, there were four or 5 adults and three or two children. The minor in this case was in that vehicle. According to the minor’s mother who was also a passenger in that vehicle, the minor was seated on his own on the seat while the appellant stated the minor was seated on his mother’s lap. The minor’s mother described hearing a loud bang sound coming from the vehicle and the vehicle began to roll. She stated it rolled several times before it stopped. The appellant stated that he was driving the vehicle at speed of 60 KPH. When he began to negotiate a bend, there was a motor cycle that was being ridden at the wrong side of the road. The appellant stated further:-

“I eased to by (sic) left side to avoid a head on collision. Unfortunately the left side tyres were both on the marram which caused the vehicle to loose(sic)control and rolled.”

3. The minor’s mother stated that the minor suffered injury to the jaw. The minor was taken to Thika District Hospital where upon, he was admitted and that hospital referred him to Kenyatta National Hospital (KNH). The minor was operated on at KNH hospital.

4. The medical report of Dr. R.K.W. Mumenya stated the minor was admitted at KNH for a week. That hospital did radiograph which revealed the minor’s skull had mandibular fracture. The minor had facial scaring and nine missing teeth.

5. The appellant admitted that following the accident he was charged with the offence of dangerous driving and indeed the police abstract indicated that the appellant was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act Cap. 403. He was convicted and was fined Kshs.10,000/=.

ANALYSIS

6. This is the first appellate court. I am well guided by the holding in the case SELLE & ANOTHER VS. ASSOCIATED MOTOR BOAT CO. LTD & OTHERS (1968) EA 123 as follows:-

“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

7. The appellant has presented the following grounds of appeal:-

(a) The learned magistrate erred in finding the appellant wholly liable for the accident.

(b) The learned magistrate erred in law and in fact in holding that to have an impact that cause death and serious injury, was due to the carelessness on the part of the appellant.

(c) The learned magistrate erred in law and in fact in failing to find that the respondent’s mother as the guardian was under a duty of care to ensure the minor was as secure as possible in either a child seat or secured with a safety belt.

(d) The learned magistrate erred in law and in failing to appreciate that the appellant as the driver was the only one who had unobstructed view of the road ahead while the respondent’s mother admitted that she did not know how the accident occurred.

(e) The learned magistrate erred in law and in fact in failing to apportion liability.

(f) The learned magistrate erred in law and in fact in awarding general damages of Kshs.1,500,000/= and Kshs.120,000/= for future medical expensed.

(g) The learned magistrate erred in law and in fact in awarding special damages of Kshs.51,730/=.

8. Grounds (a) – (e) touch on the finding by the trial court that the appellant was 100% liable for the accident.

9. By the appellant’s written submission, it was stated that the trial court erred in failing to find that the mother of the minor failed to “secure the minor safely in the vehicle.” I understand the appellant to mean by that submission that the minor’s mother had a duty to ensure the minor sat on a car child’s seat. The minor on the date of the accident was 8 years old. Further, appellant submitted that negligence on his part was not proved on the required civil standard. Appellant faulted the trial court for what he stated was its failure to evaluate the parties evidence.

10. The appellant is wrong in stating that the trial court did not evaluate the parties’ evidence. The judgment of the trial court narrated in detail the evidence of the parties before identifying the issues for determination.

11. The first issue the trial court identified was, “whether the defendant (now the appellant) is to blame for the accident.”

12. The determination by this Court of that issue above will indeed tackle the appellant’s ground of appeal (a) to (e). At the trial the appellant admitted that he was convicted of the offence of causing death by dangerous driving at Kigumo Law Courts. He was sentenced to a fine after his conviction, Kshs.10,000/-. That conviction was recorded in the police abstract. Appellant did not state he appealed his said conviction. Consequently, the provisions of Section 47A of the Evidence Act are applicable. That Section provides:-

“A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.

13. The jurisprudence of the above Section is that where there is a conviction, and no appeal is preferred against such a conviction a party cannot seek to challenge such a conviction in another action. This is what was held in the persuasive decision of KENYATTA OBEGI & ANOTHER VS. SEBASTIANO OINO MOGUSU (2021) eKLRas follows:-

“24. The appellants’ did not prefer an appeal against their conviction in Criminal Case No. 947 of 2016 and cannot purport to challenge that decision in the present appeal. It cannot also be said that the trial magistrate erred for relying on the conviction of the appellants in the criminal case as he was empowered to do so based on section 47A of the Evidence Act.”

14. Similar holding was also made in the case VIRGINIA WANGECHI WACHIRA VS. WANJOHI (1988) eKLR thus:-

“Accordingly, in my view, when the provisions of section 47A of the Evidence Act are applied to the facts of the case, the result should surely be that the defendant having been found guilty of unlawfully killing the deceased, he cannot in this suit be allowed to go behind the conviction and by explaining what the circumstances of the killing were, attempt to show that he was after all, not guilty. If such a defence were permissible, it would involve, in a subsequent civil suit, a retrial of the criminal case, with the awkward and obviously undesirable possibility of conflicting results on the same facts. In principal and in the law I find that the defendant cannot sustain a defence involving a denial of the unlawfulness of his acts after having been convicted of manslaughter.”

15. The conviction of the appellant of the offence of causing death by dangerous driving entitled the trial court to find the appellant liable since the civil case arose out of the same facts. The learned trial magistrate was obviously very aware of that provisions of the law because the learned magistrate stated thus in her considered judgment:-

“… it appears only two people were seriously affected that is, the plaintiff (the minor) and the passenger who passed on. To have had an impact that caused death and serious injuries, I would want to believe that there was some high degree of carelessness for which the driver (the appellant) was already penalized for in the traffic offence. The finding of guilt in the traffic case would equally be my line of blame to a larger extent as the driver was fully in control of the motor vehicle. The plaintiff being a passenger who was in no way in control of the motor vehicle…”

16. Appellant submitted that the minor’s mother had a duty of care to ensure the minor was safely secured in the child’s seat. The minor’s mother was not a party in the case before the trial court. The appellant if indeed desired to claim contributory negligence against or wholly blame the minor’s mother ought to have applied to have the minor’s mother joined in that action. The trial court could not make order against the minor’s mother so long as she was not a party to the action.

17. If, however the appellant in making the submission implied that the minor ought to have ensured he was well secured while the vehicle was in motion, the appellant will well be advised to note that the minor who was 8 years as at the date of the accident cannot have contributory negligence imputed against him. I will cite the holding in the case M.M. (suing through the next of kin C.M.N.) VS. BONIFACE NYARUYA KAGIRI & ANOTHER (2018) eKLR thus:-

“12. In the case ofBASHIR AHMED BUTT VS. UWAIS AHMED KHAN(1982 – 88) IKAR 1 (1981) KLR 349the Court of Appeal held that:-

“It would need a great deal of persuasion before imputing contributory negligence to the child aged 8 years having regard to her tender age. Even if she did step off into the car it would not be right to count as negligence on her part such a momentary act of inattention or carelessness… A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child...

Clearly each case must depend on its peculiar circumstances.…”

13. In the case ofRAHIMA TAYAB & OTHERS VS. ANNA MARY KINANU(1983) KLR 114 & I KAR 90:

‘The practice of the court ought to be that normally a person under the age of ten years cannot be guilty of contributory negligence, and thereafter, insofar as a young person is concerned, only upon clear proof that at the time of the doing of the act or making the omission he had the capacity to know that he ought not to do the act or make the omission...

The foregoing decision does not say that a person under the age of ten years cannot be guilty of contributory negligence, but that such a person cannot normally be guilty of such negligence. In dealing with contributory negligence on the part of a young boy, the age of the boy and the ability to understand and appreciate the dangers involved have to be taken into consideration. A Judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elders and therefore cannot be found negligent unless he or she is blameworthy.’”

18. Even if the court was persuaded that the minor was negligent, although this is more hypothetical than not, the appellant being the driver of the vehicle ought not to have driven the vehicle if the minor was not secured either by a car child’s seat or a seat belt. Looking at it from all sides, the appellant cannot escape liability at 100%.

19. It follows that grounds (a) to (e) above are rejected. This Court wholly upholds the trial court’s finding on liability.

20. On ground (f) of the appeal, the appellant seeks a finding that the trial court erred in awarding he minor Kshs.1,500,000/= in general damages and Kshs.120,000/= for future medical care. Appellant opined that general damages should have been Kshs.300,000. Appellant relied on two cases HCCC 5670 of 1992 (unreported) JESSE KARIUKI WANENE VS. OKALAU CO-OPERATIVE & ANOTHER. In this case, the plaintiff was a 52-year-old man. He lost eight (8) teeth and suffered soft tissue injuries to the chest and cerebral concussion. The plaintiff was awarded Kshs.120,000/= in general damages.

21. Appellant also relied on the case HCCC No. 5328 of 1988 (unreported) MONICA MBITHE KITUKU & ANOTHER VS. JOSEPH NDARI KIRONDO & ANOTHER. The plaintiff lost three teeth and suffered soft tissue injuries and fracture of pelvic bone. She was awarded Kshs.150,000/= in general damages.

22. The trial court relied on the cases JOSEPH MUSEE MUA VS. JULIUS MBOGO AND 3 OTHERS (2013) eKLR AND DUNCAN KIMATHI KARAGANIA VS. NGUGI DAVID & 3 OTHERS (2016) eKLR in awarding the minor Kshs.1,500,000/= general damages.

23. The appellant relied on cases decided in 1988 and 1992. Those authorities cannot aid this Court to determine the amount of general damages. Further, this Court as an appellate court will not disturb the trial court’s award in damages unless it is inordinately high or low as to represent an erroneous estimate: See COAST BUS (MSA) LITD VS. FATIMABHAI OSMAN SULEIMAN & ANOTHER (2020) eKLR. Dr. Mumenye by his report indicated that the minor will require extensive dental treatment following the accident. Dr. W.M. Wokabi by his report dated 5th March, 2012 stated thereof as follows:-

“Today he (the minor) had complains that he is not able to eat properly and he cannot bit or gnaw.

Examination revealed that 4 upper incisors are missing. Two lower incisors are missing and other two are broken.

He has severe trismus (inability to open the mouth). There are scars visible on the midline of the upper lip and on the left side of the neck.

OPINION

The medical and clinical evidence indicates that he had sustained major facial injuries that caused broken lower jaw, broken teeth and loss of many teeth. He suffered a lot of pain from these major injuries.

The way his mouth is with the loss of teeth and stiff jaw he is definitely having problems with eating.

He is still young and with time and some jaw exercises the movement of this (sic) jaw should be restored.”

24. Bearing in mind the injuries suffered by the minor, this Court does not have a basis of disturbing the trial court’s award of general damages. In addition to the authorities the trial court relied upon, I also rely on the case BONIFACE NJIRU VS. TOHEL AGENCIES AND ANOTHER (2011) eKLR where the plaintiff sustained blunt head injury with loss of consciousness for 24 hours, loss of four upper incisor teeth, fracture of the shaft of the right femur and a compound fracture of the right labial with soft injuries. The court awarded the plaintiff Kshs.1,000,000 general damages for pain suffering and loss of amenities. Accordingly, grounds (f) of the grounds of appeal is rejected.

25. Ground (g) of grounds of appeal seeks to find that the trial court erred in awarding the minor Kshs.51,730/= in special damages.

26. The trial court awarded the minor Kshs.120,000/= for future medical expenses, as set out in the medical report and Kshs.51,730/- for cost of treatment of the minor. The appellant is indeed correct to state that the principle of law is that special damages which in this case was the cost of treatment must be specifically pleaded and proved. The minor by the plaint before the trial court pleaded as follows:-

“Medical expenses to be adduced at the time of hearing”

27. I have perused the receipts of the medical expenses and I noted those payments were made on behalf of the minor before the suit was filed before the trial court. The receipts were available when the plaint was filed. Those payments should have been pleaded and proved. They were not pleaded but were proved by receipts that were produced. I draw attention to the holding in the case SWALLEH C. KARIUKI & ANOTHER VS. VIOLET OWISO OKUYU (2021) eKLR thus:-

“In regard to special damages the law is quite clear on the head of damages called special damages. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of the Court of Appeal inHAHN V. SINGH, Civil Appeal No. 42 Of 1983[1985] KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:-

“Special damages must not only be specifically claimed(pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

A natural corollary of this has been that the Courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury. It is not enough for a party to provide pro forma invoices sent to the party by a third party. In this regard, our Courts have held that an invoice is not proof of payment and that only a receipt meets the test. (SeeTOTAL (KENYA) LIMITEDformallyCALTEX OIL(KENYA) LIMITED V JANEVAMS LIMITED [2015] eKLR; ZACHARIA WAWERU THUMBI V SAMUEL NJOROGE THUKU [2006] eKLR; SANYA HASSAN V SOMA PROPERTIES LTD.)”

28. The above shows that the minor’s claim for medical expense must fail because it was not pleaded. The appellant’s ground (g) of the grounds of appeal for the above reasons succeeds. The minor’s award of Kshs.51,730 will be deducted.

29. Before concluding this judgment, I find that it is necessary to state the trial court’s award on general damages will attract interest from the date of judgment that is 25th July, 2018, until payment in full. See the Court of Appeal decision in the case SHARIFF SALIM & ANOTHER VS. MAUNDU KIKAVA (1989) eKLR.

30. DISPOSITION

(a) The trial court’s award on general damages Kshs.1,500,000/= and for future medical expenses of Kshs.120,000/= are hereby upheld.

(b) The trial court’s award for medical expenses Kshs.51,730/= is disallowed and the appeal succeeds in that regard.

(c) The award of general damages of Kshs.1,500,000 is upheld and shall attract interest at court rate from 25th July, 2018 until payment in full.

(d) The respondent in this appeal is awarded ¾ of the cost of this appeal.

(e) The award of costs by the trial court is upheld.

(f) Orders accordingly.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

For Appellant: - Mrs. Githae

For Respondent: - Ms. Wambui H/B Mrs. Kariuki

COURT

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE