[2022] KEHC 3116 (KLR)

Karanja v Njoka (Civil Appeal 56 of 2019) [2022] KEHC 3116 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3116 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 56 of 2019

LM Njuguna, J

May 18, 2022

Between

Anthony Njagi Karanja

Applicant

and

Joseph Kariuki Njoka

Respondent

(Being an appeal against the judgment of Hon. Gicheru M.N. in Embu Civil Case No. 90 of 2015 delivered on 02. 09. 2019)

Judgment

1. The appellant herein approached this court by way of an appeal vide a memorandum of appeal dated 30. 09. 2019 having been dissatisfied with the judgement in Embu CMCC No. 90 of 2015 and thus set out the following grounds of appeal to wit; -i)The learned trial magistrate erred in fact and law in awarding inordinately high quantum of damages for pain and suffering against the weight of the evidence tendered in court that was not commensurate to the injuries sustained by the respondent.ii)The learned trial magistrate erred in fact and law in failing to consider the counterclaim by the appellant.iii)That the learned trial magistrate erred in fact and law in failing to appreciate the pleadings evidence and further submissions of the appellant.

2. The appellant sought for orders that:i)The appeal be allowed and an award for general damages for pain and suffering be set aside.ii)Costs of the appeal be awarded to the appellant.

3. The case herein was filed by the plaintiff/respondent at the lower court and wherein it was alleged that on or about 26. 10. 2014, the defendant/appellant assaulted the respondent using a blunt object as a direct consequence of which the plaintiff/respondent sustained serious injuries and damages classified as grievous harm. The defendant/plaintiff on the other hand entered appearance and filed a statement of defence in which he denied the averments and further proceeded to file a counterclaim. In the counterclaim, the defendant/appellant averred that he was wrongfully assaulted by the plaintiff/respondent who also damaged and destroyed the meat he was dealing in thereby causing him personal injuries and damages. The court heard both parties and thereafter entered a judgment in favour of the plaintiff/respondent in the sum of Kshs. 905,150 plus costs of the suit and interests. It is this judgment that has elicited the filing of the appeal herein.

4. The appeal was canvassed by way of written submissions and wherein the appellant complied.

5. The appellant submitted that the trial magistrate awarded inordinately high quantum as general damages for pain and suffering without considering the applicable principles that comparable injuries ought to attract comparable damages. That the respondent expended an amount of Kshs. 4,450 for treatment and according to the P3 Form, the fracture had healed and taking into consideration the extent of injuries sustained, the award was inordinately high. Reliance was made on the cases of Mombasa Maize Millers Ltd v Rengo Joshua Wafula (2017) eKLR and EM v Wilson Gitari Mburugu.

6. Further, the appellant submitted that he filed a defence and a counterclaim but the trial magistrate failed to address himself to their contents given the manner he framed the issues for determination in the impugned judgment. It was his case that the impugned judgment offended Order 21 Rules 4 and 5 of the Civil Procedure Ruleswhich stipulates that a judgment in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. It was submitted that the judgment was deficient and defective for failure to apply the rules of procedure and in the end, the same led to the appellant herein being denied his constitutional right to a fair hearing as enshrined in Article 25 of the Constitution.

7. It was equally submitted that the trial magistrate failed to consider pleadings, evidence and submissions presented by the parties for determination. That the trial magistrate did not discharge this duty and consequently shut out the appellant from receiving a fair trial. Reliance was made on the cases of Mohamed Eltaff & 3 others v Dream Camp Kenya Ltd CA 318/2000 and in Nairobi Court of Appeal Case No. 234 of 2000 Agnes Nzali Muthoka v Insurance of E. Africa Ltd. In the end, this court was urged to allow the appeal and set aside the determination in regards to general damages and suffering.

8. This being the first appellate court, it is required of it to re-evaluate the evidence adduced in the trial court and arrive at an independent determination. While doing this, this court ought to be minded of the fact that unlike the trial court, it never took evidence first hand and never got an opportunity to observe demeanor of the witnesses and should give due allowance in that respect. (See the case of Alfeen Mehdimohammed v Basil Feroz Mohamed & 223others [2016] eKLR and Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR). Further, this court ought not to ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings. Reliance in that respect was made on the case of Mwangi v Wambugu (1984) KLR 453).

9. I have read through and considered the memorandum of appeal and the submissions of counsel. I have also considered the authorities referred to, by counsel for the appellant to support her legal position in the matter. Further, I have read the record and evidence adduced thereto by the appellant and the respondent before the court but most importantly, the procedure that was adopted by the trial court, in “hearing” the matter.

10. This court has perused the court record and the same shows that, when the matter came up before the court for hearing, the parties compromised the suit to be determined by way of filing submissions and thereafter the court came up with a determination.

11. It is trite that the procedure of hearing of suits and examination of witnesses is provided for in Order 18 of the Civil Procedure Rules (2010), Cap 21 Laws of Kenya. The said order is very comprehensive on how a trial should proceed in court including the recording and production of evidence. Of importance to this court is Order 18 Rules 1 and 2 which provide as follows: -1. The plaintiff shall have the right to begin unless the court otherwise orders.2. Unless the court otherwise orders—(1)On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.(2)The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.(3)After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.

12. In view of the above provisions, can the procedure that was adopted by the parties and the trial court be said to have complied with the procedure as laid down in the Civil Procedure Rules?

13. It is of importance to note that the law provides the mode of hearing and even if the parties agreed between themselves on how they wish the hearing to proceed, the same is a nullity since the law and practice is elaborate on how the same should be done. [See Kenneth Nyaga Mwige v Austin Kiguta and 2 others [2015] eKLR].

14. In the same vein, the Court of Appeal pronounced itself as herein below: -Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.

15. In the case of Des Raj Sharma v Reginan [1953] EACA 210, the court held that there is a distinction between exhibits and articles marked for identification and that the term exhibit should be confined to articles which have been formally proved and admitted in evidence.

16. In this case, parties substantially deviated from the laid down procedure. This court is alive to the provisions of Order 11 and in particular Rule (7) which gives the court the discretion to order admission of statements without calling the makers as witnesses, where appropriate. The challenge this court has is; when a court exercises such discretion “how does it interrogate the veracity of the evidence contained in such statements which are produced without calling the makers?”

17. It is even more challenging when like in this case where the trial court allowed the witness statements to be adopted without calling any of the parties or witnesses to testify. It leaves several questions unanswered given the fact that there was need to call evidence, for the court to come up with issues that needed be determined to enable it reach a logical conclusion.

18. It is, therefore, my view that such substantial deviation from a well laid down procedure is not acceptable. [See James Njoro Kibutiri v Eliud Njau Kibutiri1 KAR 60 [1983] KLR 62; [1975-1985] EA 220].

19. In view of the foregoing, and since the documents referred to in the list of documents were not formally produced and their veracity tested in support of the suit, coupled with the fact that the correct procedure for recording and production of evidence as laid down in Order 18 Rules 1 and 2 was not complied with, it is my humble view that the trial court fell into error as there was no trial as contemplated by the law.

20. In the end, I hold that:i)The matter be and is hereby remitted to the trial court for hearing and determination in the manner stated hereinabove.ii)No order to costs.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE........................... for the Appellant........................... for the Respondent