[2022] KEHC 2615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. E010 OF 2021

KAPARI LIMITED ........................................................................APPELLANT

VERSUS

NESTER DISHON GATUKU.....................................................RESPONDENT

(Being an appeal from the judgement of Hon. Kwambai SRM delivered on 17. 02. 2021 in Embu CMCC 295 of 2009. )

JUDGMENT

1. The appellant herein filed the instant appeal having been dissatisfied with the judgment in CMCC No. 295 of 2009 and thus set out the following grounds of appeal:

i)The learned trial magistrate erred in both law and factin entering judgment in favour of the plaintiff without giving due consideration of the pleading and evidence before him.

ii)The learned trial magistrate erred in both law and fact by failing to consider the various critical issues raised in the 1st defendant written submissions.

iii)The learned trial magistrate erred in both law and fact by filing to apply the principles that guide the courts in the award of damages thus arriving at a wrong decision.

iv)The learned trial magistrate erred in both law and fact in finding that the 1st defendant defence lacked merit.

v)The learned trial magistrate erred in both law and fact by finding in favour of the plaintiff despite lack of evidence to support her claim.

vi)The learned trial magistrate erred in both law and fact and ended up awarding excessive general damages.

2. The appellant sought for orders that:

i)This appeal be allowed and the decision of the subordinate court be set aside.

ii)The costs of both lower court and this court.

iii)Such other and/or further relief be granted as this Honorable court might deem fit and just to grant in the unique circumstances of this matter.

3. At the hearing of the suit, the respondent testified that she was hit by the appellant’s motor vehicle registration No. KAM 337Z when the driver was reversing as a result of which she sustained a fracture. The appellant denied hitting the respondent and further confirmed that the respondent sustained a fracture but as a result of having been pushed into the ditch by somebody. When the appellant was cross examined, he maintained that he did not hit the respondent but rather, the respondent was hurt by being pushed into the ditch. That he only heard people make noise and upon coming out of the car, the respondent told him that the man he was standing with pushed her into the ditch and that she had sustained a fracture; this prompted the appellant to rush the respondent to hospital but only on humanitarian ground. After that, he was advised to report the matter to the Police Station but since he had with him at that time, a person who was diabetic, he preferred to visit the Manyatta Police Station the following day.

4. The parties proceeded to file their submissions and upon consideration of the pleadings, evidence and the submissions, the trial court found the appellant 100% liable for the injuries sustained by the respondent. The court awarded the respondent an amount of Kshs. 600,000/- as general damages and Kshs. 2,800/- as special damages and cost of the suit.

5. It is this judgment which provoked the appeal herein.

6. At the hearing of the appeal, directions were taken that the appeal be canvassed by way of written submissions and the parties herein filed their rival submissions

7. The appellant submitted that the respondent herein filed a suit wherein he averred that on or about 20. 02. 2008, he was walking/standing on the road along Embu – Manyatta road when the appellant’s motor vehicle which was carelessly and negligently driven by its driver or servant, veered off the road and knocked him as a result of which he was critically and seriously injured. It is its case that there was a major departure between the pleading by the plaintiff/respondent and his evidence on the manner in which the alleged accident occurred thus, liability could not attach to it. That the plaintiff in compliance with Order 11 of the Civil Procedure Rules filed his witness statement dated 08. 08. 2019 and at paragraph 2 introduced the issue of ‘reversing on the road’. That the introduction of the issue of reversing in the evidence introduces a totally different aspect on how the accident occurred. It submitted that parties are bound by their pleadings and that evidence led by any of the parties which does not support the averments in the pleadings must be disregarded. Reliance was made on the case of Raila Amolo Odinga & Another v IEBC & 2 Others (2017) eKLR in which the Supreme Court was of the view that; it is not desirable nor permissible for a court to frame an issue not arising from the pleadings. In that regard, the appellant argued that any evidence in a matter must be in consonance with the pleadings and evidence however strong, which tends to be at variance with the pleadings must be disregarded. It is its case that there is no evidence before the court that supports the averment on paragraph 4 of the plaint which in effect raises doubt as to whether there was an accident that took place as pleaded. The appellant further relied on the case of Philmark System Co. Ltd v Andermore Enterprises (2018) eKLR.

8. The respondent’s case is that on or about 20. 02. 2008, he was walking on the side of the road when the defendant’s motor vehicle registration No. KAM 337Z was recklessly driven along Embu/Manyatta Road by the driver of the appellant that it reversed, veered off the road and knocked her down as a result of which she sustained serious injuries. That she was treated at Embu General Hospital but later transferred to St. Mary’s Mission Hospital. The respondent relied on the case of Great Lakes Transport Co. (U) Ltd v Kenya Revenue AuthorityCivil Appeal 106 of 2006 to support his claim that a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue had been left to the court to make a decision. It is his case that the appellant has neither disputed the nature and extent of the respondent’s injuries nor the award of damages and has not addressed this court on how the same was wrongly assessed.

9. I have carefully considered the appeal, as well as the parties’ rival written submissions. I have also re-evaluated the evidence that was adduced before the trial court. Having done so, I find that the main issues for determination are:

i.Liability;

ii.Quantum/Damages.

10. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1EA 123:

“…..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 into account of particular circumstances or probabilities materially to estimate the evidence.”

11. In Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid was of the view that:

To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it…..The question must be determined by applying common sense to the facts of each particular case.

One may find that as a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can apply generally.’’

12. The appellant contends that there was a major departure between the plaintiff’s pleadings and his evidence in the manner in which the alleged accident occurred thus affecting the issue of liability. That the introduction of the issue of reversing in the evidence, introduced a totally different aspect on how the accident occurred. It is not in dispute that an accident occurred on or about the 20th day of February, 2008 involving motor vehicle registration No. KAM 337Z driven by the appellant’s driver and the plaintiff and as a result, she sustained injuries.

13. The appellant contends that there is no evidence before the court that supports the averment on paragraph 4 of the plaint which in effect puts doubt as to whether there was an accident that took place as pleaded, According to him, the respondent’s injuries were caused by a man who pushed her to the ditch.

14. The trial court formed the view that it was not possible that one could just push another for no apparent reason. That in any case, if it was true, then there must have been fracas which must have ensued prior to the respondent being pushed and such kind of fracas would have attracted a crowd which of course would have been witnessed by the appellant herein too. Further, the appellant testified that he never saw the respondent fall, but that the respondent informed him that a man had pushed him into the ditch. Further, the driver to the appellant took it upon himself to take the respondent to hospital for treatment and though he stated that it was on humanitarian grounds, he did not report the accident on the same day but did so, a day after.

15. The finding of the trial court that the appellant was liable for the injuries of the respondent can thus not be faulted.

16. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (See also LawJA, Kneller & Hancox Ag JJA inNkube v Nyamuro [1983] KLR, 403-415, AT 403).

17. On the issue of quantum of damages, the question is whether I have grounds to interfere with the damages awarded by the trial Court. It is trite that the discretion in assessing general damages payable will only be disturbed if it is shown that 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 high that it must be a wholly erroneous estimate of the damages or that it was inordinately low. I am guided by the decision by the Court of Appeal in Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that :

Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

18. In addition, the current value of the shilling and the economy have to be taken into account and astronomical awards must be avoided. The court must ensure that awards result in fair compensation. (See Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja[1986] KLR 661).

19. The trial magistrate awarded the respondent an amount of Kshs. 600,000/- as general damages and Kshs. 2,800/- as special damages and cost of the suit; the appellant regards the award as undeserved while on the other hand, the respondent contends that the award is commensurate to the injuries sustained.

20. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondent herein sustained injuries which were attested by Doctors Nyagah and Njiru G.N. and of course from the medical documents, it did show that the respondent sustained multiple fractures of the tibia/fibula.

21. The medical report by Dr. Nyaga assessed the respondent’s incapacitation at 6%. He gave an opinion that the patient was at risk of developing post traumatic osteoarthritis with significant impact on quality of life.

22. This Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLRreasoned that:

“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

23. Money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what in the circumstances is a fair compensation on the principle that comparable injuries should be compensated by comparable awards.

24. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar, time and inflation, and also that the respondent is at risk of developing post traumatic osteoarthritis with significant impact on quality of life due to pain and a degree of permanent disability at 6%; I find that the trial court was properly guided by the authorities cited before it.

25. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. There is no reversible error on these as well.

26. In my humble view therefore, the learned trial magistrate considered all the relevant factors in this case in arriving at his decision.

27. I therefore find that the appeal is without merit and the same is dismissed with costs.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

…………………………………………FOR THE APPELLANTS

………………………………………...FOR THE RESPONDENTS