[2017] KEHC 1661 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 169 OF 2012

JULIE OPON ADELE………………………..…......….APPELLANT

VERSUS

DANSON NG’ANG’A NJUGUNA…………………....RESPONDENT

(Appeal from the judgment of Honourable R.A Oganyo (Mrs.) Senior Principal Magistrate delivered on 21st March, 2012 in CMCC No. 1841 of 2009)

JUDGMENT

The Respondent was the Plaintiff in CMCC No. 1841 of 2009 who filed a Plaint dated 26th March, 2009 claiming that on or about 15th February, 2009 the Respondent was driving motor vehicle registration number KAU 160N along Ngong road when the Appellant (Defendant) drove motor vehicle registration number KAY 761A so carelessly that she caused the same to hit his motor vehicle registration number KAU 160N as a result of which the Respondent suffered serious body injuries, much pain and loss.

The claim was denied by the Appellant who filed a Defence dated 15th May, 2009 and averred that if the accident ever occurred, the same was caused by or substantially contributed to by the negligence on the part of the Respondent. The Appellant further stated that the accident was inevitable and the same occurred despite the exercise of reasonable skills and care on her part.

The case was heard and a judgment delivered on 21st March, 2012. The trial magistrate held the Appellant 90% liable for the accident. On quantum of damages, the trial magistrate awarded Kshs. 150,000/- and Kshs. 2,2000 in general and special damages respectively.

Aggrieved by the decision, the Appellant filed this Appeal on ten grounds which are contained in the Memorandum of Appeal dated 30th March, 2012. The appeal is both on liability, and quantum of damages awarded. This Court will seek to determine whether the Respondent proved his case on a balance of probability, whether the award was excessive and whether special damages were proved.

Both the Respondent and the Appellant called one witness each.

The Respondent DANSON NG’ANG’A NJUGUNA who was the Plaintiff testified as PW1 and told the court that on 15/2/2009 he was driving along Ngong road and on reaching the junction near Jamuhuri show ground, a vehicle registration number KAY 761A emerged from the direction of the show ground and hit his vehicle on the front left side near the front tyre. He was on the main road and driving on the left side of the road and had not seen the approaching vehicle from the junction until the accident occurred. The vehicle KAY 761A did not hoot when approaching the junction. As a result of the accident, the Respondent suffered injuries to the head and the neck, lost lower incisors, left thigh muscles, chest and the back. The Respondent went to hospital on 18th February, 2009 and thereafter reported the matter at Kilimani Police station and got issued with a police abstract form and P3 form. He also did a search of the vehicle and his lawyer sent him to Dr. Wokabi for medical examination.

The Appellant herein JULIE OPON ADELE testified as DW1 and stated that on the material day she was driving motor vehicle KAU 160N to the junction of Jamuhuri Ngong Road and stopped on the inner side of Ngong road. There was a vehicle on her right side on the road that had given her way. As she proceeded, she saw the matatu KAU 160N flashing lights and hooting while overtaking a stationery vehicle. She braked and since the road was wide, she made a judgment that if the matatu stayed where it was she could still have joined the road safely but the matatu went to the extreme right as well and they had a head-on collision. She was charged at Kibera Law Courts with careless driving and the case is still pending. In cross examination, she stated that she saw the matatu after she had passed the stationary car that had obstructed her but she drove on assuming that the matatu would break where it was at, and she would go to her lane.

The Appeal was canvassed by way of written submissions. I have considered the grounds of appeal, the written submissions filed as well as the authorities cited. An appellate court is tasked with re-evaluating the evidence before the lower Court in order to make a judgment and in so doing it will not interfere with the exercise of discretion by a lower court unless the exercise of that discretion was erroneous in law. This is well captured in Mbogo & Another -v- Shah (1968) EA 93 at 96, where it was stated that:-

“An appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in so doing arrived at a wrong conclusion.”

It is trite law that the standard of proof in civil cases is on a balance of probability. Therefore, all that the Plaintiff ought to have proven is that the accident was caused by negligence on the part of the Appellant/Defendant. From the evidence adduced during the trial, it is not in dispute that the Appellant was joining the main road (Ngong road) at the Jamuhuri junction. It is also not in contention that the said accident occurred. What is in contention is, who between the Appellant and the Respondent was to blame for the accident. The Respondent states that his vehicle was on the left lane of the road whereas it is the appellant’s contention that the Respondent was overtaking when the Appellant was joining the main road and negotiating to take the right turn when he saw the Respondent’s matatu approaching and assumed that the matatu would stop.

Considering the circumstances of the case, one would have expected the Appellant who was joining a main road at a junction to be cautious in making sure that she only joined when the main road was clear with a good view of both sides. The Appellant claims that the Respondent was overtaking at the time of the accident and that the vehicle he was overtaking had stopped to give way to the Appellant. On the other hand I find that if the Respondent was driving carefully and was on the look out, he could have noticed the Appellant’s motor vehicle and could have slowed down to avoid the accident.

In the circumstances of this case, I find the Appellant more to blame and I proceed to apportion liability at 90:10 in favour of the Respondent.

On damages, it is a well-established principle that the assessment of damages in a claim for general damages is a discretionary exercise which must be exercised judiciously having regard to the facts of the case within the context of existing legal principles. The amount of general damages payable will 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 low or so inordinately high that it must be a wholly erroneous estimate of the damages.

The assessment of general damages is not a mathematical exercise and the court in doing the best it can takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. In Denshire Muteti Wambua vs KPLC Ltd (2013) eKLR the Court of Appeal observed that:-

“Further we observe that the learned trial judge failed to appreciate that in assessment of damages for personal injuries the general method of approach is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases (see Arrow Car Ltd vs Bimomo &2 Others (2004) 2 KLR 101)”

In this case the Respondent sustained soft tissue injuries and according to the medical report by Dr. Wokabi, his opinion was that though the injuries caused the Respondent considerable pain, the residual pain he had was to disappear soon. The court notes that the report was made way back in the year 2009. It is expected that by now the pain has cleared. The doctor had also opined that the missing lower incisor will require a dental replacement at an approximate cost of Kshs. 20,000/=but there is no claim of future medical expenses. I have considered the submissions by both parties on the award of general damages. Considering that the injuries suffered were soft tissue injuries I find that the award of Kshs. 150,000 was excessive in the circumstances. After the accident the Respondent went to hospital after three days which in my opinion was an unreasonable delay. In the case of African Highlands Produce Co. Ltd V Wilfred Otieno Odhiambo (2011) EKLRthe claimant sustained a cut over the dorsal surface of the left index finger and partial loss of an incisor, the court awarded Kshs. 80,000/=.

Therefore, taking into account the extent of the Respondent’s injuries, the rate of inflation on the Kenya shilling and in comparison with decided authorities, I award the Appellant Kshs. 100,000 in general damages and proven special damages in the sum of Kshs.2000 for the medical report which was pleaded and proved. There is a receipt to that effect and my perusal of the same reveals that there is a revenue stamp affixed to the said receipt. I will not disturb the award on costs as I have perused the lower court file and realised that there is a demand letter dated 23rd February, 2009 contrary to the appellant’s allegations.

In the end, the Appeal partially succeeds to the extent that the award of general damages is set aside and substituted with the sum of Kshs. 100,000/= before apportionment and the award on special damages is set aside and substituted with the sum of Kshs. 2,000/=. For avoidance of doubt, I award the Respondent the total sum of Kshs. 91,800/= after contribution. The Respondent will get half of the costs of the appeal and that of the lower court.

Dated, Signed and Delivered at Nairobi this 8th day of November, 2017

………………

L. NJUGUNA

JUDGE

In the presence of:-

………………………..for the Appellant/Applicant

………………………..for the Respondent