[2014] KEHC 327 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISIII

CIVIL APPEAL NO. 136 OF 2005

KENYA TEA DEVELOPMENT AGENCY...........................APPELLANT

VERSUS

AUGUSTINE GORI MAKORI....................................RESPONDENT

(Being an appeal arising from the judgment and decreedelivered by

Hon. A.A.IngutiaSRM on 30/6/2015 in Kisii CMCC.NO. 656 OF 2001)

JUDGMENT

1. The respondent herein Augustine Gori Makori was the plaintiff in the Chief Magistrate’s court at Kisii in Civil Case No. 656 of 2001. He filed a suit against the appellate herein K.T.D.A Limited claiming general damages following a road accident that occurred on 26th April, 2001 while driving the appellants motor vehicle. In his plaint the respondent stated that he was an employee of the appellant. That it was a term of the said contract of employment between the plaintiff/respondent and defendant/appellant that it was the duty of the defendant/appellant to take all reasonable precautions for the safety of the plaintiff/respondent while he was engaged in his work, not to expose him to risk of damage or injury which defendant knew or ought to have known to provide an maintain adequate and suitable measures to enable plaintiff to carry out work in safety, and to provide a safe and proper system of working.

2. In the course of working on 24th April, 2001 at aroud 10. 00a.m. plaintiff was driving appellant motor vehicle registration mark KZX 214 Isuzu Lorry at Kenyenya market when the naked wheels of the said vehicle yielded to the slippery nature of the murram road that the steering wheel violently rotated at top speed hitting the plaintiff right index finger; severely injuring him resulting to much pain suffering and loss on the part of plaintiff/respondent. The plaintiff/respondent also alleged that the said injuries, were occasioned by breach of statutory duty and negligence on the part of the appellant and set out the particulars thereof.

3. With regard to breach of statutory duty the same was particularized as hereunder:-

a. Failing to pay any or any due regard to the slippery nature of the road at the material time and pace to the grave detriment of the plaintiff.

b. Failing to provide a safe system of work.

c. Failing to provide any suitable equipment and/or proactive gear like the wheel chains to avoid and or minimize vehicle slipping.

d. Failing to provide suitable vehicle for the plaintiff’s specific conditions e.g. a four wheel drive vehicle.

e. Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged upon his work.

f. Exposing the plaintiff to a risk of damage which the defendant knew or ought to have known.

4. With regard to the injuries he sustained the same were particularized as hereunder:-

a. Nature of injuries.

i. Failure of the right hand and index finger.

b. Continuing effects of injury

i. In ability to use the injured finger.

ii. Disfigured idex.

5. The appellant on his part filed a statement of defence and denied the respondent’s claim in total. The appellant stated that it was a total stranger to the alleged accident on the 26th April, 2001. Without prejudice to the aforesaid denial the appellant averred that the alleged accident was caused or contributed to by the respondents negligence. Particulars of the alleged negligence were set out in the defence and indeed inter alia allegation that the respondent failed to head to and follow the safety regulations and or procedure as laid down by the appellant.

6. During the hearing the respondent was the only one who testified. He stated that on 26th April, 2001 he was at Ogembo working as a driver at the appellant’s firm driving a KAX 214 Isuzu lorry. On that day it had rained and he got an accident at Kenyenya. He blamed the appellant for the accident as the car he was driving did not have good tyres i.e they were worn out.

7. That he was injured on his aim. He proceeded to Kisii general hospital and Ram Hospital. He produced treatment notes as MFI, Insurance claim forms as MFI.2 and a medical report as MFI.3. Lastly he alleged that he was not fully recovered and seeked general damages, special damages and costs.

8. On cross examination he revealed that the said accident occurred outside the factory about 24km away from factory he was driving a lorry, the motor vehicle slipped and steering hurt his arm. In addition to this he produced his employment card and also revealed that at the time he had the accident he was not alone but in the company of the passengers who were still employed by the appellant.

9. PW2 was Dr. P.M. Ajuoga a consultant surgeon at Awendo. He told the court that he examined the respondent on 18th June, 2002. On examining respondent he saw that he had a fracture of right index finger and bruises therein. He also had mild pains on right index finger. He concluded that the respondent had a fracture. He produced the medical report as P.Exh.3.

10. This marked the close of the plaintiff’s case the appellant chose not to call any witnesses and the learned trial magistrate directed the advocates for the parties to file their written submissions which they did. The respondent’s counsel urged the trial court to find that the appellant was fully liable for the occurrence of the said accident and award general damages for pain suffering and loss of amenities in the sum of kshs. 380,000. The appellant’s counsel on the other had submitted without prejudice that had the plaintiff proved negligence on the part of the defendant and had he also proved the injuries, an award of kshs. 40,000 would have been sufficient in the circumstances of the case, he relied on the authority of Lucy Nthambi Muno Mugambi vs. Bett Kimutai. Nairobi HCCC.NO. 2032 OF 2003. In concluding their submissions, the appellant’s counsel urged this court to dismiss the respondent’s suit with cost since the plaintiff had failed to prove his case on a balance of probability.

11. In his judgment the learned trial magistrate found the plaintiff had proved its case on a balance of probabilities based on what he said in his testimony. On considering submissions tendered by both appellant and respondent he awarded kshs. 100,000 as general damages. The appellant being aggrieved by the said judgment has preferred an appeal to this court.

12. In its memorandum of Appeal dated 25th July, 2005 the appellant has appealed against assessment of quantum on the following grounds:-

1. The learned principal magistrate erred in law and infact in making an award in general damages that was so excessive as to amount to an enomous estimate of the damages suffered.

2. The learned Principal Magistrate erred in law and in fact in his apprehending the injuries suffered by the respondent and therefore took into account ……….facts in assessing damages.

3. The learned magistrate erred in law and in fact in falling to consider that the plaintiff had admitted liability for negligence by failing to rebut through pleadings and or evidence the allegations and particulars of negligence contained in the defence.

4. The learned Principal Magistrate erred in law and infact in failing to address the evidence and submissions tendered by the Appellant and therefore failed to take into account relevant facts while dealing Kisii CMCC. NO. 656 of 2001.

13. Reasons whereof the appellant prays for orders that:-

a. The judgment and decree in Kisii CMCC.NO. 656 OF 2001 be set aside.

b. Kisii CCMCC.NO. 656 of 2001 be dismissed with costs to the appellant.

c. In the alternative, the court do make its own independent assessment on quantum of damages.

d. Costs of appeal.

14. This court being conscious of its role as the first appellate court as stated in Selle vs. Associated Motor Boat Co. ltd {1968} E.A. 123, has to re-evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions. The court must, however, bear in mind that it neither saw nor heard the witnesses and hence make due allowance for that.

15. Regarding quantum of damages, the learned trial magistrate did not expressly state the authorities that he considered before he arrived at an award of kshs. 100,000/-. However he stated that he had carefully re-evaluated the evidence and considered the written submissions that had been filed by both parties. Counsel for the appellate has cited several authorities in this appeal and the authority in his submissions in the lower court. In the High court of Kisii in Kipkebe Limited v. Moses Kauni Masaki Civil Appeal No. 127 of 2004(unreported) Musinga, J (as he then was) stated:-

“It is trite law that award of general damages is an exercise of discretion by a trial court and the award depends on the peculiar facts of each case. The award must however, be reasonable and neither extravagant nor oppressive. The trial court has to be guided by such factors as previous awards for similar injuries and such other relevant factors”.

16. In the matter before this court a medical report was produced by PW2 Dr. Ajuoga. The report by the said doctor indicated that the respondent had suffered a fracture of right index finger and bruises thereon. Furthermore, that the respondent had mild pains on right index finger.

17. The principles which must be observed by an appellate court in an appeal against an award of general damages were stated in Kemfro Africa Ltd NA Meru Express and another vs. A.M. Lubia and Another (No.2) {1987} KLR 30. It was held as follows:-

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by trial judge were held by the former court of Eastern Africa to be that it must be satisfied that either the judge, in assessing damages, took into account an irrelevant factor or left out of account a relevant one, or that: short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

18. In Simba posho Mills Ltd v. Onguti {2000} eKLR the respondent in that case suffered the following injuries:

i. Amputated distal phalanx and commutated fracture of the right index finger of the right hand.

ii. Reducing minor injury palp of the middle finger of the right hand.

iii. Cut wound on the right thumb.

19. Also the degree of permanent disability was assessed at 8%, the trial court in this matter awarded the respondent kshs. 360,000. However, on appeal Kimaru,J reassessed the general damages payable to the respondent at kshs. 180,000.

20. In the instant case, the only evidence adduced during the trial was that of the respondent and PW2 Dr. Ajuoga. The respondent testified that he was working as a driver with the appellant’s company on the material day, it had rained, the roads were slippery, the respondent was on duty transporting appellant’s employees and the appellant’s car tyres were worn out. Thus the car skidded and in the process the steering wheel hit he appellant’s index finger leading to its fracture. This evidence was never rebutted by the appellant.

21. The appellant neither demonstrated that the respondent was negligent nor was it shown that he contributed to the occurrence of the accident in any way. In Kipkebe Limited (supra) Musinga,J.(as he then was) again held:-

“Where a defendant wishes to an contest evidence of a plaintiff, the defendant is under an obligation to adduce such evidence as would be sufficient to controvert that of the plaintiff. The appellant having failed to do so, the trial court was right in holding that the appellate was fully liable for the occurrence of the accident”.

22. Lastly, the appellant has not demonstrated that the award of Kshs. 100,000 was inordinately high nor was it shown that the learned trial magistrate took into account an irrelevant factor in his assessment of damages. In such circumstances, this court will not interfere with the exercise of discretion by the learned trial magistrate consequently the above appeal should be dismissed.

23. The upshot is that this appeal No. 136 of 2006 be and is hereby dismissed and the judgment and decree of the Chief Magistrate’s court(CMCC at Kisii in Civil Case No. 656 of 2001 is hereby upheld with costs to the respondents.

Dated and delivered at KISII this 11th day of November, 2014

C.B. NAGILLAH,

JUDGE.

In the presence of:-

No appearance. Nyaundi Tuyot for the appellant

Nyatundo for the respondent.

Edwin Mongare court clerk.