[2023] KEHC 25164 (KLR)

Kigada v Juma (Civil Appeal E032 of 2021) [2023] KEHC 25164 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25164 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E032 of 2021

MS Shariff, J

November 10, 2023

Between

Benard Kigada

Appellant

and

Victor Odhiambo Juma

Respondent

(Being an Appeal from the judgment/decree of Hon. M. Agutu (SRM) in Kisumu CMCC Case No. 483 of 2018 delivered on 12th March 2018)

Judgment

1. Vide a Plaint dated 3rd October, 2018, the Plaintiff (now Respondent) sued the Appellant for damages for personal injuries he sustained when the Appellant’s motor vehicle hit the motorcycle in which the Respondent was riding. The Respondent pleaded that had it not been for the Appellant’s negligence, the accident could not have occurred.

2. The Appellant duly entered appearance and filed his statement of defence denying the occurrence of the accident and attributed the occurrence of such accident to the Respondent’s negligence.

3. The matter proceeded to hearing, the Respondent stated that he was riding a pillion passenger to Kisumu town from Kibos. That while keeping to his lane, the Appellant’s driver suddenly made a U turn causing the accident. That the driver while attempting to turn, swerved, hit his motor cycle and threw them into a ditch.

4. PW2 PC Geoffrey Ndiema stated that the motor vehicle’s driver swerved on the left side of the road knocking down the motorcycle. He testified that he had blamed the driver for picking passengers in undesignated area. He stated that the driver was to blame as the Respondent never contributed in any way to the accident.

5. The Appellant’s case was closed without calling any witness.

6. The court subsequently found the Appellant 100% liable for the accident and awarded the Respondent Kshs.200,000/- in general damages. The Appellant being dissatisfied appealed on the following grounds;i.That the learned trial magistrate erred by apportioning 100% liability to the Appellant.ii.That the learned trial magistrate erred in failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and Appellant’s authorities thus arriving at an unjustifiable decision on liability.iii.That the learned trial magistrate erred in awarding general damages of Kshs.200,000/- which award was excessive and not commensurate to the nature of the injuries sustained by the Plaintiff.iv.Learned trial magistrate erred in failing to pay regard to authorities in Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case she was deciding.

Analysis and Determination: 7. This being a first appellate court and bearing in mind the duty bestowed on me as held in Abok James Odera T/A A. J. Odera & Associates vs John Patrick Macharia T/A Macharia & Company Advocates (2013) eKLR thus; to re-evaluate, re-analyze and scrutinize the entire evidence in an exercise akin to a re trial and thus draw my own conclusions while taking into account the fact that I did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses testify and I cannot therefore make any assessment on their demeanor.

8. The principles upon which this court can disturb awards of damages the Appellant must satisfy the test stated in Kiwfio Africa Ltd T/a Meru Express Services Gathogo Kanini vs A. M. M Lubia & Another (1982-88) 1 KAR a 730 that is:i.The Trial court took into account an irrelevant factor.ii.The Trial Court left out of account a relevant factor.iii.The assessed amount is so inordinately low or inordinately high that is must be a wholly erroneous estimate of the damages. (Also see Ilango vs Manyoka (1961) E. A 705 and Lukenya Ranching & Farmers Co-operatives Society Ltd vs Kavoloto (1970) E. A 414, 418, 419

9. On the issue of liability, I have re-analyzed, re-evaluated and scrutinized the evidence on record and I find that the only evidence availed before the trial court was the evidence of PW-1 and PW-2, the Respondent and the police officer respectively. The Appellant on their part availed no witness or documents to dispute the Respondent’s case.

10. According to the Respondent, he was riding on the left-hand side of the road when the Appellant suddenly swerved causing the motor vehicle to hit and threw them into a ditch. PW-2 on his part the police officer gave an account of how the accident occurred and gave the recommendation that the Appellant’s driver was to blame.

11. In a situation where the defendant does not adduce evidence despite filing a defence, the courts have held that such cases, the Plaintiff’s case remains factually uncontroverted because pleadings are not substitutes for evidence. Odunga JA in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR rendered himself on the issue as follows;“What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002 Justice Lesiit, citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 stated:“Although the Defendant has denied liability in an amended Defence and Counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”Again in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the Learned Judge citing the same decision stated:“ that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged.”

12. Still on the issue, Mwongo J in Kenya Power & Lighting Company v Samuel Gathiari Cerere [2019] eKLR held;“There is no reason to belabour the point here. Where a party fails to adduce evidence, and has had opportunity to test and verify the same through cross examination, the court may properly rely on the evidence adduced subject to the usual rules as to relevance and probative value.”

13. Given that the Appellant adduced no evidence on his behalf, I find that the Respondent’s case was not controverted and was thus proved on the balance of probability and there is no basis laid for the setting aside of the trial magistrate’s finding of fact on the issue of liability. I therefore proceed to affirm the trial court’s finding on liability.

14. On the issue of quantum, the Respondent in the trial court proposed an award of Kshs.200,000/- in general damages citing the authorities in Mohamed noor oloo v peter Kinyua murunga (2018) eKLR and Nkaaruarau Lejumurt V VEGPRO (K) Ltd (t/a Kantara Farm) (2018) eKLR.

15. The Appellant on his part proposed Kshs 50,000/- citing the authority in Samwel Mburu N’ngaari, Sarah Wangari N’Ngaari, Grace Waithira N’Ngaari, Mary Waithira Mburu & Jeanette Wangui Mburu V Wangiki Wangare & Christopher Kimani Kuruma (2014) eKLR and Shalimar Flowers Ltd Vs Noah Muniango Matianyi Civil Appeal No. 175 of 2008.

16. According to the trial magistrate, the Respondent, sustained soft tissue injuries and proceeded to award based on the authorities in Mohamed Noor (supra). The injuries are as enumerated in the plaint and reiterated in the Appellant’s submissions and there cannot be doubt on the same.

17. Looking at the authorities relied on by the Appellant, I note that the same were decided in the years 2014 and 2008 respectively which does not fall within the trend of recently decided authorities. In the circumstances, the authorities do not offer a proper guide. I am inclined to find that the Respondent’s cited authorities auger well with the trend in decided cases and hereby proceed to affirm the award of Kshs.200,0000/- in general damages.

18. The upshot is that this appeal is dismissed for want of merit. The Respondent is awarded costs of this appeal.

DELIVERED, DATED, SIGNED AT KISUMU THIS 10TH DAY OF NOVEMBER 2023. MWANAISHA. S. SHARIFFJUDGE