[2017] KEHC 1467 (KLR)

REPBULIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 153 OF 2013

KAMAU KIARIE ……………………………………….. 1ST APPELLANT

PCEA KIKUYU HOSPPITAL ………………………… 2ND APPELLANT

MARGARET WANJIRU KIARIE …………………......3RD APPELLANT

VERSUS

LUKAS KILONZO ……………………………………1ST RESPODNENT

BENSON LUTUNYA LASA ………………………...2ND RESPONDENT

JULIUS C. NDARE OKOMBO …………………..…3RD RESPONDENT

ANNA AWAYO IDUITA ……………………………...4TH RESPONDENT

JUDGMENT

This appeal arises from a judgment of the lower court delivered on 22nd February, 2013 against the appellants. The 1st respondent had been injured in a road traffic accident involving motor vehicle registration Nos. KAT 592P and KAG 015Y. The 1st respondent was a passenger in motor vehicle registration No. KAT 592P which was public service vehicle (matatu). As a result of the accident, the 1st respondent filed a suit against the appellants and the 2nd, 3rd and 4th respondents claiming damages for the injuries he sustained.

After a full hearing the lower court found in favour of the 1st respondent against the three appellants on liability at 100% and absolved the 2nd, 3rd and 4th respondents from any blame. The court made an award of Kshs. 350,000/= general damages, 350,000/= future medical expenses plus Kshs. 32,220/= made up of special damages and witnesses’ attendance fees. The appellants were aggrieved by the said judgement and filed this appeal.

The counsels for parties have filed submissions which I have read. The evidence adduced by the 1st respondent showed that the motor vehicle registration No. KAT 592 P in which he was a passenger was headed towards Dagoretti corner from Karen direction along Ngong road. At the bypass a motor vehicle registration No. KAG 015 Y crossed and collided with that motor vehicle. It was his evidence that he was seated behind the driver’s seat on the right hand side. He added that motor vehicle registration No. KAT 592 P was not overlapping. It was not speeding and was on its lane. Further, that the driver applied brakes. After the collision, motor vehicle registration No. KAT 592p landed in the ditch.

As at the time the case was heard in the lower court investigations were still incomplete and no one had been charged relating to that accident. Police visited the scene but the investigating officer was not available to give evidence and therefore the details in the occurrence book and the sketch plan relating to the accident were produced by officers who did not investigate the accident.

What is telling however, according to DW 4 Police Constable Faith Elizabeth Odhiambo, the file was pending investigations as all statements were inconsistent. What is not in dispute is that there was a head collision between the two motor vehicles. From the sketch plan that collision took place along the path of motor vehicle registration No. KAG 015 Y suggesting that motor vehicle registration No. KAT 592 P had moved towards the path of the other vehicle.

There is also evidence that the collision did not take place at the Junction of the Northern by pass at the point where it joins Ngong road. The point of impact was identified as being 75 feet past the junction, and after the Collison motor vehicle registration No. KAT 592 P moved a distance of about 48 feet, suggesting it was moving quite fast just before the collision.

The evidence available suggests that both drivers of the vehicles that collided were to blame and I cannot uphold the finding that the appellants’ motor vehicle was 100% to blame. Although the 1st respondent said the driver of motor vehicle registration No. KAT 592 P applied brakes, no skid marks were detected by the investigating officer. This could have been indicated on the sketch plan. The said driver did not swerve otherwise the 1st respondent would have said so in his evidence. Further, his assertion that their motor vehicle was on the correct lane is contradicted by the sketch plan which showed the point of impact to be on the path of motor vehicle registration No. KAG 015 Y.

The driver of M/V Reg. KAT 592P did not give evidence and therefore a negative inference should be drawn from that omission. On the other hand the driver of motor vehicle registration No. KAG 015Y was aged 20 years old at the time of the accident, and had only been licenced to drive just one and half years before the accident. Indeed, the investigation report concluded that the “clause of a young and inexperienced driver should apply instantly”.

As the first appellate court I have made an independent evaluation of the evidence on record. The judgment of the lower court appears disjointed in addressing the two issues of liability and quantum. There was no clear approach in that regard. The suitable approach where both such issues are the subject of determination is to resolve the issue of liability first and then decide on quantum. Had this not been an old case, I would have remitted it for retrial in view of that judgment which appears wanting in terms of evidence analysis. However, considering that the accident took place over 7 years ago, such a step will result in delay and possible injustice.

In my judgment, doing the best I can with the material before me, I set aside the finding of the trial court on liability and find that the drivers of both motor vehicles were equally to blame for the collision. The appellants shall hold 50% liability while the 2nd, 3rd and 4th respondents shall bear 50% thereof.

The award of general damages amounting to Kshs. 350,000/= cannot be faulted in view of the injuries sustained by the first respondent. However, I am inclined to disturb the award of Kshs. 350,000/= for future medical expenses. While Dr. Bhanji placed the cost at Kshs. 350,000/= Dr. Maina Ruga placed the cost at Kshs. 180,000/=in a public hospital. I know the award of damages rests in the discretion of the court and that this court may interfere if the lower court took into consideration irrelevant matters, did not take into account a relevant factor or acted on wrong principles.

There is the question of a public hospital as opposed to a private hospital in addressing that issue. There is no allegation that a public hospital cannot attend to the 1st respondent to his satisfaction at that reduced cost. The award also is not intended to enrich the 1st respondent but to reduce the degree of his disability.

I am therefore inclined to reduce the award from Kshs. 350,000/= to Kshs. 200,000/=. The award of special damages and witnesses expenses has not attracted any challenge.

Accordingly, this appeal is allowed in part, such that there shall be judgment for the 1st respondent against the appellants and the 2nd, 3rd and 4th respondents jointly and severally in sum of Kshs. 350,000/= general damages, Kshs. 200,000/= cost of future medical expenses and a total of Kshs. 32,220/= special damages plus witnesses’ expenses. The 1st respondent shall also have the costs and interest at court rates applicable from the date of the lower court judgment.

Dated, signed and delivered at Nairobi this 14h Day of November, 2017

A.MBOGHOLI MSAGHA

JUDGE