[2014] KEHC 347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 110 OF 2010

KABANSORA MILLERS…………………….APPELLANT

VERSUS

J W O (Minor suing through the father and next of friend M A O)…………………..........................................RESPONDENT

JUDGMENT

This is an appeal by J W O O against the judgment/decree of Senior Principal Magistrate, Migori, Hon. Shitubi, whose judgment is dated 11th May, 2010 in Migori SPMCC.NO. 85 of 2004.

The grounds against which the appeal is brought are: as summarized as herebelow:

The learned trial magistrate erred in fact and in law in apportioning liability at 80% against the plaintiff and 20% against the defendant in total disregard of the evidence on record.

The decision of the learned magistrate was against the weight of evidence.

The learned trial magistrate erred when she held that the special damages pleaded were kshs. 12,000 when, in fact it was 163,000 through an amendment done on 3rd September, 2008 prior to the judgment on 11th may, 2010.

The learned trial magistrate in awarding kshs. 500,000 as general damages, a figure which is inordinately too low in the light of the injuries.

The testimony of the appellant is that he was riding a bicycle from Lwala Mixed Secondary School, at about 5p.m, towards Awendo. Suddenly he was hit from behind by a lorry, registration no. KAF 400F, the property of the defendant, Kabansora Millers ltd, the respondent herein.The impact of the accident left the appellant/Plaintiff unconscious for upto mid night when he regained consciousness at Ombo Mission Hospital. He suffered several injuries, the major ones being a dislocated left collar bone and two (2) fractures of the right leg. This injury to the right leg caused a deformity and shortening of the said right leg. He also had post traumatic epilepsy syndrome. The doctor PW2 assessed permanent deformation at 40%.

Both the appellant and the respondent have put in their respective written submissions. Both have cited authorities in support of their cause.

The appellant cites three authorities:

Civil appeal No. 36 of 1980: “Two vehicles approaching each other in opposite direction, one on its right side, the other at a fast pace but on a wrong side, and zig zagging. The court: held: a driver is not necessarily negligent if he fails to take avoiding action in such a dilemma and a collision occurs. In view of the foregoing finding of fact I doubt that the respondent was correctly held to have contributed to the accident. Madan J.A. held.

In the instance case, the cyclist was at his correct side of the road and motor vehicle KAF 400F coming from behind at a faster pace. Collision occurred. The driver, being in control of a motor vehicle on the road has a higher duty to be careful, as any negligence, recklessness and carelessness on his part, will engender grave injuries, even fatalities to other road users who are pedestrians, cyclists and motor cyclists- who use less powerful, motorized locomotive apparatus, than the motorists.

It is true, a non driver can also be held negligent, however, in liability distribution thereof, or apportioning the same, the driver who control a motor vehicle must, in all fairness, bear the greater burden of liability, not the reverse. I find that the trial leaned magistrate erred in law and fact in attributing 80% negligence to a cyclist and 20% to a motorist.

In civil suit No. 31 of 1967 Selle and another vs. Associated Motor boat company Ltd and another 1968 E.A.L.R. pg 126, the court said:

“Briefly put there 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 witness and should make due allowance in this respect.

If therefore the trial court makes wrong inference of law and fact, the appeal court must correct the same.

The driver, who it turned out, had died, could not give testimony. DW1, John Lundu Kahi, was but a manager of the respondent/defendant’s company. He was not at the scene of the accident, nor did he see what happened. His evidence carries no weight on issues under consideration.

The police abstract is evidence of the occurrence of the accident only, not evidential material as who of the parties to the accident was to blame. This, if any, must be given by the driver or an investigating officer. None of these people gave testimony. The appellant’s second authority is:

Civil appeal No. 65 of 2004,

Amongst other relevances, it holds inter alia that evidence must be adduced to prove a case, it is not enough to rely on mere paper information. It also says:

“It is trite law, and the provisions of O.XIV of CPC are clear, that issues for determination in a suit generally flow from the pleadings and unless pleadings are amended in accordance with provisions of the Civil Procedure Code, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid Rules, may only pronounce judgment on the issues arising from the pleadings of said issues as the parties have framed for the court’s determination”.

The court funds that the pleadings herein were amended to insert 163,000 as Special Damages. Yet the court in its subsequent judgment did not take cognizance of this fact, simply referred to any earlier figure of kshs. 12,000, ignoring the amendment. I find that to be an error of law on the trial magistrate’s judgment.

However, the respondent in his submissions advances the issue that the appellant was to blame because the police abstract exhibit.4, clearly pointed out that after due investigation they found the cyclist wholly to blame for the accident. This was not a conviction, see pg 1039 of Chemwolo vs. Kubende(1982-88) 1 KAR the court said:

“……..a conviction…. Where a final judgment of a competent court in criminal proceedings has declared any person to be guilty of a criminal offence,….a judgment shall be taken as conclusive evidence that the person so convicted shall be guilty of carelessness”.

The police abstract report, pointing to blame one part, is not a conviction of carelessness.

The court finds that special damages of kshs. 163,600 were equally pleaded in the subsequent amendment to the pleadings and, ought to be included in the final judgment of the court, an omission of the same is an error of law.

After consideration of this appeal and for reason,above, advanced in support thereof, the court allows civil appeal No. 112 of 2010 as follows:-

On liability,

20% against the cyclist

80% against the driver of motor vehicle KAF 400F.

General damages.

Courts substitutes Kshs. 800,000 for kshs. 500,000.

Special damages 163, 600

Thus the appellant is hereby awarded;

General damages 640,000(Less 20%)

Special damages 32,720 (Less 20%)672,720

Levy costs of this suit.

It is so ordered.

This judgment in civil appeal No. 110 of 2010, J W O- the respondent and Kabansora Millers Ltd- the appellant, to apply, mutatis mutandis, to Kabansora Millers Limited- the Appellant and J W O (minor suing through the father and next friend M A O) . Respondent, equally as the facts are the same.

It is so ordered.

Dated and Delivered at KISII this 14th day of November, 2014

C.B. NAGILLAH,

JUDGE.

In the presence of:-

Abisai holding brief for Okongo for the appellant

Firm of Kerario Marwa, not in for the respondent

Edwin Mongare Court Clerk.