[2022] KEHC 15363 (KLR)

Karanja v PG (A minor suing through mother and next friend MMM) (Civil Appeal E758 of 2021) [2022] KEHC 15363 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15363 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E758 of 2021

JK Sergon, J

November 11, 2022

Between

Mary Wangari Karanja

Appellant

and

PG

Respondent

A minor suing through mother and next friend MMM

(An appeal from the judgment of the Senior Resident Magistrate Court at Milimani Commercial Courts, Nairobi delivered on October 29, 2021 by the Hon Mr D O Mbeja in Nairobi CMCC No 1731 of 2019)

Judgment

1. The respondent who is the plaintiff in CMCC no 1731 of 2019 instituted the suit vide against the appellant, in his capacity as the mother and next friend of MMM (“the minor”) through the plaint dated February 19, 2019 seeking both general and special damages as well as costs of the suit and interest.

2. The respondent pleaded in her plaint that sometime on or around June 27, 2018, the respondent was lawfully walking along Ruaka Banana Road when the appellant negligently managed or drove a motor vehicle with the license plate KBB 870A at such a high speed that he lost control, sending the vehicle off the road and colliding with her. This caused the respondent to sustain serious injuries.

3. The respondent further pleaded that she will rely and plead the doctrine of res ipsa loquitor on the true facts and circumstances of the accident subject matter.

4. The appellants filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondent in the sum of kshs 1,500, 000/=.

5. The appellants being aggrieved preferred this appeal and put forward the following grounds:a.That the learned trial magistrate erred in law and in fact in failing to consider the pleadings before him and in proceeding to pronounce himself on the case without a consideration of the said pleadings which formed the basis of the dispute before him hence arriving at a wrong determination.b.That the learned trial magistrate erred in fact and in law in finding that the respondent was entitled to general damages that were excessive as to amount to a wrong estimate.c.That the learned trial magistrate erred in fact and in law in applying his mind to the wrong principles of law while disregarding precedent presented before him therefore arriving at the wrong decision.d.That the learned trial magistrate erred in fact and in law in failing to analyze and apply the law to the evidence before him leading to an inordinately high award hence failing to discharge his duty of ensuring justice for all the parties before him.e.That the learned trial magistrate erred in fact and in law in failing to consider the appellant’s submissions and more specifically on general damages awarded by completely disregarding them thereby exempting himself from arriving at a decision based on merit.f.That the learned trial magistrate erred in law, fact and principle in holding that the appellant was 100% liable for causing the accident despite lack of evidence in support of the allegation.g.That the learned trial magistrate erred in law and fact by not considering the appellant’s submissions and authorities attached thereto in relation to liability and the general damages.h.That the learned trial magistrate erred in law and fact by disregarding the appellant’s submissions in failing to appreciate the relevant precedents provided by the appellant.

6. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

7. This is a first appeal and this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that. See: Selle V Associated Motor Boat Company Limited, [1968] EA 123.

8. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:a.Whether the appellants were 100% liable for the accident.b.The issue of quantum

9. On the issue of liability, the appellant submitted the respondent failed to discharge her burden of proof by failing to establish that indeed the accident happened and caused her the alleged injuries at all.

10. The appellant further submitted that the police abstract produced by the respondent did not indicate who to blame for the accident and it would have imperative for the respondent to call the investigation officer to shed light how the accident occurred.

11. It is the appellant’s submissions that both parties were equally to blame for the accident and hence the learned magistrate ought to have apportioned liability equally between the parties. The appellant relied on the case of Hussein Omar Farah v Lento Agencies CA NAI Civil Appeal 34 of 2005 eKLR where the court observed that:“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame”

12. On the other hand, the respondent submitted that DW1’s evidence that he did not witness any commotion as he was approaching the respondent or the alleged scene of accident however the noise and commotion arose he had passed the alleged scene of the accident and he was in company of a turn boy but did not call him to confirm the circumstances surrounding the accident

13. The respondent contends that from the totality of the evidence presented by the parties herein ,it is evident that the single fact that contributed to the occurrence of the accident herein is the manner in which the appellant/his agent was driving the subject motor vehicle and that the minor did not contribute to the occurrence of the accident.

14. The respondent had the burden to proof the element of tort of negligence on a balance of probabilities.In Treadsetter Tyres Ltd v John Wekesa Wepukhulu (2010) EKLR where Ibrahim J allowed an appeal quoted Charles Worth & Percy On Negligence, 9Th Edition at p 387 on the question of proof, and burden thereof where it is stated:-“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence maybe reasonably inferior and (2) whether, assuming it may be reasonably inferred, negligence is infact inferred.”

15. It is upon the respondent to discharge the burden to proof negligence. The Court of Appeal in East Produce Kenya Limited v Christopher Atsiado Asiro, Civil Appeal no 43/01 , it was reiterated who alleges negligence bears the burden of proof, court quoted with approval the case of Kiema Mutuku v Kenya Cargo Hauling’s Services Ltd 1991 on the holding that ‘there is yet no liability without fault in the legal system in Kenya and the plaintiff must prove some negligence against the defendant where the claim is based on negligence’.

16. According to the respondent, the minor is not to blame for the accident and that the evidence before the trial court showed that the 1st appellant is to blame for causing the accident and ought to have taken reasonable measures to avoid the accident by slowing down or otherwise acting in manner that would have aided him to avoid the accident having the presence of the respondent who is a minor and other pedestrians

17. Having found this fact which was before the trial magistrate, did not error by finding the driver of 1st appellant 100% liable as there was evidence to support the finding. I find that having analyzed the evidence on record the 1st respondent proved on a balance of probabilities that the appellant’s driver was negligent. The trial court did not error as, based on the evidence tendered before it, it found in favour of the respondent in respect of liability.

18. On the issue of quantum, the appellant submitted that the respondent at the time of the accident was a minor aged 31/2 years and according to the medical report he had sustained injuries of the blunt injury on the pelvis and abdomen and fracture left superior and inferior public rami but according to the Kenyatta Radiological report the CT scan of the abdomen indicated that the respondent sustained injuries of Displaced left pubic ramus fracture and Minimal free pelvic fluid.

19. The appellant submitted that in making the award of kshs 1,500,000/= the trial court ignored the cardinal principal of assessment of damages that comparable injuries should as far as possible be compensated by comparable awards thus arrived at an award that was inordinately high.

20. The appellant relied on several authorities includinga.In Reamic Investment Limited v Joaz Amenya Samuel (2021) eKLR where the injuries sustained were open left femur fracture ,abrasion on the left knees ,face ,neck, right upper imp and left upper lip as well as a contusion on the anterior chest ,the court revised an award in general damages from kshs 600,000/= to kshs 350,000/=.(b)In Daniel Otieno Owino & another v Elizabeth Atieno Owuor (2020) eKLR the Lady Justice Aburill reduced an award of kshs 400,000/= for compound fractures of the tibia/fibula bones on the right leg ,deep cut wound and tissue damage on the right leg,head injury with cut wound on the nose and blunt chest.

21. The appellant therefore submits that the respondent herein sustained single fracture in addition to soft tissue injury which had fully healed within 4 months hence an award of kshs 350,000/= in general damages less 50% liability will be adequate and reasonable to compensate the respondent.

22. On the other hand, the respondent submitted that the injuries were described by Dr G K Mwaura as grievous harm as such subjected the minor to severe pain ,mental anguish and emotional stress as she was admitted for 2 weeks and cannot play properly therefore the accident had severe effects on her at a tender age.

23. The respondent relied on the following authoritiesb.Michael Maina Gitonga v Serah Njuguna(2012) eKLR in which the plaintiff sustained fractures to the pelvis and was awarded kshs 1,500,000/= in the year 2012. c.Millicent Atieno v Katola Richard where the award of kshs 2,000,000/= was made for fracture of pelvis and diastasis of the symphysis.d.Peace Kemuma Nyangera v Michael Thuo & another (2014) eKLR where the appellate court made an award of kshs 2,500,000/= for comparable injuries.

24. 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 Law Ja Kneller & Hancox Ag Jja In Mkube vs Nyamuro [1983] KLR, 403-415, at 403)

25. The question is whether this court should interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

26. The trial magistrate awarded kshs 1,500,000 as general damages. The appellant regards the award as inordinately high. The respondent agrees with the trial magistrate that the award is commensurate to the injuries sustained.

27. 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 the following injuries.Fracture of the left superior pub ramiFracture of the inferior pub ramiBlunt Injury pelvis and abdomen.

28. The Court of Appeal observed in Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR reasoned 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.”

29. In Denshire Muteti Wambua v Kenya Power & Lighting Co Ltd[2013] eKLR the claimant suffered multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joint associated with a fracture of the radial head; dislocation of left lunate bone and bruises parietal scalp. The Court of Appeal awarded kshs 1,500,000 for general damages. Similarly, in James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another [2015] eKLR the plaintiff suffered compound comminuted fracture of the left proximal radi us, fracture of the left ulna, head injury, deep cut wound of the parietal region about 4 cm, soft tissue injury and bruises of both hands multiple facial cuts and lacerations and pathological/re-fracture of the right leg court awarded ksh 1,500,000. 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.

30. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar and further time and inflation, and also that the respondent is at has been subjected to severe pain, mental anguish and emotional distress and cannot play normally. I find that the trial court was properly guided by the authorities cited before him and arrived at a reasonable assessment of general damages. The learned trial magistrate cannot be faulted as the award is neither too low nor too high in the circumstances.

31. In the end, the appeal is found to be without merits, it is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………………….J K SERGONJUDGEIn the presence of:...........................for the Appellant...........................for the Respondent