[2022] KEHC 11318 (KLR)

Jumbo Quality Products Ltd v Ndekei & another (Suing on their Behalf and for the benefit of the Estate of Esther Wanjiku (Deceased)) (Civil Appeal 87 of 2020) [2022] KEHC 11318 (KLR) (25 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11318 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 87 of 2020

MM Kasango, J

May 25, 2022

Between

Jumbo Quality Products Ltd

Appellant

and

Chrispo Mukora Ndekei

1st Respondent

Alice Wangari Mukora

2nd Respondent

Suing on their Behalf and for the benefit of the Estate of Esther Wanjiku (Deceased)

((Being an appeal from the Judgment and Orders of the Chief Magistrate’s Court at Gatundu (Hon. C.M. Makari, SPM) dated 4th July, 2019 in Gatundu Civil Case No. 144 of 2018))

Judgment

1. Before the Gatundu Chief Magistrate’s Court, the respondents sued on behalf of the Estate of the of Esther Wanjiku Deceased the appellant claiming both general and special damages for the injuries the deceased suffered through road traffic accident. The trial court by its judgment of July 4, 2019 awarded the estate of the deceased general damages Kshs 1,200,000; and special damages of Kshs 59,700. The deceased was found by the trial court to be 30% liable for the accident.

2. That judgment aggrieved the appellant and hence the present appeal.

3. This is the first appellate court. The duty of this court is as stated in the case Abok James Odera T/a Aj Odera & Associates v John Patrick Machira T/a Machira & Co Advocates (2013) eKLR, thus:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

4. The grounds of appeal filed by the appellant in this appeal seeks the determination by this court of the following issues:-(a)Did the trial court err in its determination on liability?(b)Did the trial court err in the award of general and special damages?(c)Who bears the costs?

5. As stated before the trial court, found the deceased 30% liable for the accident.

6. The evidence adduced on behalf of the deceased’s estate was that the deceased was walking off the Eastern bypass when the appellant’s driver, driving motor vehicle registration NO KCK 405G by reason of negligence of the said driver the deceased was hit whereby she sustained severe injuries. The deceased was admitted at AIC Kijabe Hospital and Provisional General Hospital Nakuru. The deceased suffered the following injuries:-(a)Fracture left mandible and open reduction undertaken and internal hardware fixed.(b)Fracture of the left clavicle.(c)Fracture of the public rem/pelvis.

7. Chrispo Mukora Ndekei, the father of the deceased who testified at the trial stated that he did not witness the accident. PC Stanley Kosgey from Ruiru Police station testified and confirmed that the accident involving the deceased, a pedestrian and the subject vehicle occurred along Eastern Bypass near shell petrol station. He however confirmed that he did not visit the scene of accident. Further, that the matte of the accident is pending investigations.

8. The driver of the subject vehicle relied on his written statement in his evidence in chief. By that evidence in chief he stated that it was on March 9, 2017 at around 2030 hours. He was driving the vehicle on Easter Bypass heading towards Ruai. He was driving at 50 KPH while on his rightful lane. He further stated:-“As I approached shell petrol station, a pedestrian suddenly dashed into the road ahead while crossing to the opposite direction. She was talking on her mobile phone. At that time, I applied emergency brakes to avoid hitting her, but she was too close.”

9. It is that driver who took the deceased to hospital. He confirmed that deceased was later transferred to Kijabe hospital.

10. On being cross-examined, the driver stated:-“I did not see the pedestrian before the accident. I noticed I hit a person after the accident… I did not see the pedestrian talk on the phone… Accident happened and I knocked down a pedestrian.”

11. The deceased died six months after the accident. There is no evidence before court directly connecting the accident to the cause of deceased’s death.

12. The only eye witness of the accident was the driver. It will be noted that the driver’s evidence above is contradictory. In evidence in chief the driver blamed the deceased for the accident alleging she was using her phone when the accident occurred. Later, on being cross examined, the driver stated he did not see the deceased as she was knocked by the vehicle. It will be useful to consider the holding in the case Robert Gitau Kanyiri v Charles R Kahiga & 2 Others (2010) eKLR thus:-“Every driver on a public road owes the other road users a duty of care to ensure that he does not expose any such user to any danger. As was held by the Court of Appeal in Alfarus Muli v Lucy M Lavuta & AnotherCivil Appeal No 47 of 1997, vehicles when properly driven on the road do not run into each other.”

13. The trial court in its judgment stated that the accident occurred at 8. 30 pm. It further stated:-“Reasonably at night, the visibility is not at its optimum and a prudent driver is expected to be driving at a reasonable speed.”

14. The trial court further opined that had the driver been driving at 50 KPH, as he stated in evidence, he would have been in a position to apply emergency brakes and stop when he realised the deceased was in danger of being knocked.

15. Bearing the above in mind, I am of the view that this is a case that this court can invoke the doctrine of re ipsa loquitor. That doctrine was discussed by the Court of Appeal where the trial court had invoked that doctrine in the case Margaret Waithera Maina v Michael K Kimaru (2017) eKLR as follows:-“…on the application of the doctrine of res ipsa loquitur and we may briefly comment on it. Firstly, it is doubtful whether it is a doctrine, a maxim or a principle of law. Its literal meaning is that “the thing speaks for itself”. It is said to be a mechanism whereby the claimant can be relieved of the burden of proving the negligence, and the court can infer negligence in those situations where the factual circumstances of the case would make proving it almost impossible. In the text book Charlesworth & Percy On Negligence, 12th edition, appears this passage:“Although use of the maxim is periodically discouraged, it is so well entrenched that it may take some time to dislodge entirely. However, it has never been correct to describe it in terms of doctrine:I think that it is no more than an exotic although convenient, phrase to describe what is in essence no more than a common-sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances.The question whether to apply the maxim has usually arisen where the claimant is able to prove the happening of an accident but little else. He might well be unable to prove the precise act or omission of the defendant which caused an accident to occur, but if on the evidence it is more likely than not that its effective cause was some act or omission of the defendant, which would constitute a failure to take reasonable care for his safety, then in the absence of some plausible explanation consistent with an absence of negligence, the claim would succeed.”24. The same sentiments were expressed by Hobhouse LJ in the case of RatcliffevPlymouth & Tobay Ha 1998 Piqr 170:“... t -he expression res ipsa loquitur should be dropped from the litigator's vocabulary and replaced by the phase 'a prima facie case'. Res ipsa loquitur is not a principle of law: it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case has been made out.”25. Secondly, it does not have to be pleaded, as erroneously held by the High Court in this case.”

16. The father suing on behalf of his deceased daughter did not witness the accident. The accident however occurred as was stated by the driver of the vehicle. Taking into account the evidence adduced, I do uphold the trial court’s finding on liability which from 30% -70% against deceased and the appellant respectively.

17. The trial court awarded Kshs 59,700 in special damages. The appellant before the trial court citing the case Capital Fish Kenya Limited v The Kenya Power & Lighting Company(2016) submitted that not special damages should not only be specifically pleaded but should also be proved.

18. As stated before, the driver confirmed that the deceased was transferred to AIC Kijabe hospital. I therefore find that there is proof the deceased paid Kshs 20,000 at that hospital. The deceased also paid for scans to the total of Kshs 11,500. I am unable to sight any other receipts relating to the treatment which was as a result of the accident. The other receipts adduced possibly relates to the treatment, unrelated to the accident which led to deceased’s demise.

19. On special damages, I find on behalf of the deceased proved with receipts special damages of Kshs 20,000 plus Kshs 11,500, total of Kshs 31,500.

20. On assessment of damages, I will be guided by the principle to be observed by the court of Appeal in deciding whether there is justification in disturbing quantum of damages awarded by the trial court. Those principles require the appellate court to be satisfied that the trial court in assessing the damages took into account irrelevant factor or left out a relevant one or that the amount awarded is inordinately low or high: See the case Kmfro Africa Limited v Lubia And Another (Nos.) 1987 eKLR 30.

21. The trial court considered the case Mary Pamela Oyioma v Yess Holding Limited (2011) eKLR with comparable injuries to this case where the award in general damages was made of Kshs 900,000. The case relied upon by the appellant are not in sync with the injuries suffered by deceased, these are the cases Morris Miriti v Nahashon Muriki & Another(2018) eKLR And Chuka Hcca No 19 Of 2015James Mruithi Ireri v Cyprian Mugendi Igonya & 2 Others (2016) eKLR

22. The court in the case in Duncan Mwangi v Valley Bakery Limited & 2 Others (2016) eKLR awarded Kshs 1,500,000 for injuries. Fracture to the left thigh bone.

Fracture to the right bone.

Fracture to the left 3 ribs.

Degloving open wound

23. In the case High Court at Machakos Civil Appeal No 23 of 2018 Masau v China Wuyi Limited the award for general damages was Kshs 1,000,000 for fracture let radius bone, fracture of right acetabulum (pelvis bone) amongst others.

24. Having in mind the above discussion, I find no reason to interfere with the trial court’s awarding general damages.

25. The respondent has largely succeeded and I will therefore award him costs of this appeal.

DISPOSITION 26. The judgment of this court is that the trial court’s awards in general damages is upheld, and similarly, is the finding on liability. The award of special damages is reduced and I find that Kshs 31,500 only was proved in special damages and the judgment on special damages is accordingly adjusted.

27. The costs of this appeal are awarded to the respondent.

28. Orders accordingly.

JUDGMENT, SIGNED DATED AND DELIVERED AT KIAMBU THIS 25TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:-Court Assistant: MouriceFor Appellant:- Mr. Omondi MirireFor Respondent: - Mr. OmbatiCOURTJudgment delivered virtually.MARY KASANGOJUDGE