[2011] KEHC 226 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO. 543 OF 2008

KENNEDY OKONGO ODHIAMBO................................................................. APPELLANT/ORIGINAL DEFENDANT

VERSUS

JAMES KARIUKI ………………………......................................……….….... RESPONDENT/ORIGINAL PLAINTIFF

(Being an appeal from the Judgment of Hon. A. Muchelule Esq, Chief Magistrate on

15th September 2008 in Civil Case No. 1417 of 2007 at Milimani Commercial Courts at Nairobi)

J U D G M E N T

I.INTRODUCTION

1. This appeal arises out of TORT. It is a running down matter whereby James Kariuki, the original plaintiff/respondent (herein referred to as the respondent) was cycling along the Komarock road when a lorry went onto a pavement that he was cycling on and ran him down.

2. That lorry was identified as motor vehicle lorry registration No.KAU 797S that was in the control of Kennedy Okongo Odhiambo (herein referred as the appellant.)

3. The respondent sustained injuries as a result of the accident. This was pleaded as:

a) Fracture of the right hip.

b) Dislocation of the right hip joint.

c) Fracture of the right mandible

d) Loss of teeth

4. The evidence of both the plaintiff respondent and the defendant appellant was heard together with their witness.

5. The trial magistrate came to the conclusion that the said appellant was vicariously liable for the accident at 100%.

6. The quantum was awarded as follows:

General damages

Pain and suffering Ksh. 1,200,000/-

Special damages

a)Copy of record Ksh. 500/-

b)Medical report Ksh. 2000/-

c)Fracture medical expenses Ksh. 20,000/-

Total Ksh 1,222,500/-

7. Being dissatisfied with this award, the original defendant appellant filed this appeal to the High Court.

IIAPPEAL

8. The memorandum of appeal outlined that the Hon. Magistrate erred in fact and law:

8. 1… by arriving at a decision that was wholly against the weight of evidence.

8. 2… by finding the appellant liable for the accident when he was not the driver.

8. 3… the plaintiff/respondent failed to prove negligence.

8. 4… award of Ksh. 1. 2 million was excessive.

9. The appellant submitted that the appeal be allowed. The subordinate court case be dismissed.

10. He further stated that the award was excessive and should not be permitted.

11. In reply the respondent stated that the appellant was wholly liable for the accident. That the evidence before court was sufficiently proved to show that the accident occurred.

12. The assessment of damages was a matter of discretion of court.

IIIOPINION

13. On looking at the evidence before court, the Hon. Magistrate was correct in reaching his verdict that the appellant defendant is liable for the said accident.

14. This liability is described as vicarious liable for the acts of your servant and or agents.

15. I would not interfere with the aspect of liability.

16. As to quantum, I would agree entirely with the appellant. There has been shown no basis to the court that this award of 1. 2 million be given. It is too large and inordinate.

17. I would allow the appeal on damages of pain and suffering at

1. 2 million and set aside the Hon. Trial magistrate’s claim. I would substitute this with the sum of Ksh. 200,000/= taking into account the loss of teeth and fractures.

18. I would not interfere with the special damages award as none of the parties addressed me on this.

IVIN CONCLUSION

19. This appeal is allowed partially on the following terms:

19. 1 Liability 100%

19. 2 Quantum

General damages

i) Pain and suffering Ksh. 200,000/-

Special damages

i) Copy of record Ksh. 500/-

ii) Medical report Ksh. 2500/-

iii) Medical expenses Ksh. 20,000/-

Total Ksh. 23,000/-

19. 3 Total Ksh. 223,000/-

20. I would enter judgment in favour of the plaintiff on the said sum above.

21. I would award interest from the date of the subordinate court’s judgment 15th September 2008.

22. I would award interest on special damages from the date of filing suit.

23. I award the costs of this appeal to the appellant/original defendant. The costs of the subordinate court case to the respondent/original plaintiff.

DATED THIS 20TH DAY OF DECEMBER 2011 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

ii)G. K Matunda instructed by M/s Omwenga & Associates for appellant/original defendant

ii) F G Mungai instructed by M/s Munene Mwenga & Co Advocates forrespondent/ original defendant

Editorial Summary

1. Civil Appeal

2. Subject of Subordinate Court Case

TORT

2. 1 Running down cause

2. 2 Male adult cyclist.

2. 3 Motor vehicle/cyclist

Collision with motor vehicle registration

KAU 797S

2. 4 Cause of action

11th August 2006

Komarock road

2. 5 Cyclist sustains injuries

Pleaded:

a) Fracture of right hip

(right acetabulum)

b) Dislocation of right hip joint

c) Fracture of right mandible

d) Loss of teeth

2. 6 Judgment of court

15th September 2008:

a) Liability 100%

b) Quantum

General damages

Pain and suffering Ksh. 1,200,000/-

Special damages

Copy of record Ksh. 500/-

Medical report Ksh. 2500/-

Future medical expenses Ksh. 20,000/-

Total Ksh. 1,222,500/-

3. Appeal filed 13th October 2008

3. 1 Memorandum of appeal

Hon. Magistrate erred in fact and law:

a) … arriving at a decision that was wholly

against the weight of evidence.

b) … by finding appellant liable for

accident when not driving.

c) … the plaintiff/respondent failed to

prove negligence.

d) … award of Ksh. 1. 2 million was

excessive.

3. 2 Appeal be allowed and substantive orders dismissing

appeal.

3. 3 In reply, respondent

i) Accident occurred

ii) Liability correct

iii) Appellant vicariously liable

iv) Amount of damages a matter

of discretion.

4. Held:

a) Appeal allowed partially

b) General damages of 1 million excessive

reduced to Ksh. 200,000/-

c) Costs to appellant in appeal court

costs to respondent in subordinate court.

5. Case Law:

a) Kenya Bus Services Ltd

Vs

Dina Kawira Humprey (estate of Josephat KenegeniM’daka)

CA 295/00

2003 Eklr

Omolo, Tunoi, Githinji JJA

b) Automobile Association of Kenya

Vs

James Jaganga

CA 92/99 Eldoret

Dulu ag J

c) Kimatu Mbuvi T/a Kimatu Mbuvi & Bro

Vs

Augustine Munyao Kioko

CA 203/2001 Nairobi

Omolo, Waki, Deverell JJA

d) Michael Hubert Kloss & Another

Vs

David Seroney & 5 Others

Bosire, Waki, Nyamu JJA

6. Advocates:

i)G. K Matunda instructed by M/s Omwenga & Associates for appellant/original defendant

ii) F G Mungai instructed by M/s Munene Omwenga & Co Advocates for

respondent/ original defendant