[2023] KEHC 25376 (KLR)

Kimani v Easy Coach Limited (Civil Appeal E029 of 2021) [2023] KEHC 25376 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25376 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E029 of 2021

GL Nzioka, J

November 9, 2023

Between

Samuel Ng’ang’a Kimani

Appellant

and

Easy Coach Limited

Respondent

(Being an appeal against the decision of Hon Joseph Karanja Senior Principle Magistrate(SPM) delivered on 4th June, 2021 vide Civil Case No. 310 of 2019, at the Chief Magistrate Court, at Naivasha).)

Judgment

1. The appellant filed a civil suit in the Chief Magistrate’s Court at Naivasha vide Civil Case No. 310 of 2019, seeking for judgment against the respondent for the following:-a.Special damages - Kshs 34,720. 00b.General damagesc.Costsd.Interest on (a),(b) and (c) above at court rates

2. The appellant case is that, on the 8th day of February 2019, he was travelling as a lawful passenger on motor vehicle registration No. KCL 815E along Naivasha-Nairobi road. That, while that motor was parked off the road, the respondent’s duly authorized driver and/or agent drove motor vehicle registration No. KCG 871S, so negligently that it veered off the road and hit the motor vehicle registration No. KCL 815, from the rear and as result he sustained severe bodily injuries.

3. The appellant avers that he sustained the following injuries:a.Bilateral Longitudinal temporal bone fractures of the skullb.A fracture to the right sphenoidc.Contusions in the left parietotemporal lobed.Extradural hematoma of 15mm a left temporal lobee.Haemorrhage in the nasal citterns of left cerebral convexity

4. The appellant attributes the cause of the accident to the respondent’s driver for driving the subject motor vehicle without observing traffic rules under (Cap 403) of the Laws of Kenya, failing to stop, slow down, brake, serve or manage its motor vehicle and driving at an excessive speed in the circumstances. He pleads that the principle of Res Ipsa Loquitor applies.

5. However, the respondent denied liability vide a statement of defence dated; 21st May 2019, and argued that it is a stranger to all the averments in the plaint. That, if the accident occurred, which is denied, on a without prejudice basis, then it was caused solely or substantially contributed to by the negligent acts of the driver of motor vehicle registration No. KCL 815E, to whom notice was served.

6. The respondent avers that the driver of that other motor vehicle was negligent for abruptly braking on the highway, parking on the road while it was unsafe to do so, and/or failing to consider other road users, in particular the occupants of motor vehicle KCG 871S, that he also drove a defective motor vehicle and failed to heed the warning signs given by the respondent’s driver.

7. Be that as it were, the case proceeded to full hearing. The trial court delivered a judgment on 4th June 2021, and held that both parties contributed to the occurrence of the accident and apportioned liability in the ratio of 70%:30% in favour of the appellant as against the respondent.

8. The judgment on quantum was entered as follows:General damages - Kshs 1,800,000Special damages - Kshs 23,000Sub-Total - Kshs 1,823,800Less 30% negligence contribution (Kshs 546,990/=)

9. It is against that decision of the trial court on both liability and quantum that, the appellant, appeals based on the following grounds: -a.That the learned trial Magistrate erred in law and in fact in finding that the appellant was 30% liable for the accident when he was merely a passenger in motor vehicle KCL 815E and did not contribute to causing the accident.b.That the learned trial Magistrate erred in law and in fact in finding that the Respondent’s driver and/or agent was 70% liable for the accident when he was wholly to blame for the accident.c.That the learned trial Magistrate erred in law and in fact by failing to find that the respondent’s driver and/or agent was 100% liable for the accident.d.That the learned trial Magistrate erred in law and in fact by failing to find that the respondent was 100% vicariously liable for the accident.e.That the learned trial Magistrate erred in law and in fact by failing to consider that the appellant was a passenger in a stationary vehicle registration KCL 815E which had been parked off the road at the time of the accident.f.That the learned trial Magistrate erred in law and in fact in failing to find that the respondent’s driver and/or agent was solely blamed for the accident by the investigating officer as per the police abstract produced as an exhibit in the proceedings by the police officer who testified as PW2g.That the learned trial Magistrate erred in law and in fact by making an award of general damages that was manifestly low in the circumstances.h.That the learned trial Magistrate erred in law and in fact by ignoring the appellant’s evidence and that of the police officer who both testified in these proceedings as PW1 and PW2 respectively.i.That the learned trial Magistrate erred in law and in fact in coming to the conclusion that he did contrary to the evidence on record.

10. The appeal was disposed of by the parties filing submissions. The appellant filed submissions dated; 11th January 2023 and reiterated that, the learned trial magistrate erred in finding that he was liable at 30% for the accident while he was merely a passenger in motor vehicle registration No. KCL 815E and he did not break any traffic rules and/or regulations.

11. That, the respondent’s driver was driving recklessly and speedily causing him to collide with motor vehicle registration No. KCL 815E together with motor vehicles registration No(s). KAZ 036B, KCP 871V, and KCS 202V, as admitted by (DW1) Vincent and corroborated by the police abstract.

12. Further, (DW1) Vincent, the driver of subject bus owed all road users including those adjoining the road duty of care as held by the High Court in the case of; Board of Trustees Diocese of Embu Kairu Parish vs Antony Njeru Ngugi & Another [2020] eKLR.

13. The appellant further relied on the case of; Blyth vs Birmingham Waterworks Company (1856) 11 Ex Ch 781 where the court defined negligence as the omission to do something which a reasonable man guided by considerations that normally regulate the conduct of human affairs would do or, doing something that a prudent and reasonable man would not do.

14. The appellant further argued that, the fact that another motor vehicle allegedly overtook the vehicle driven by (DW1) Vincent does not extinguish his negligence. He relied on the case of; Alex Kipruto Malel vs Cherangani Hills Limited [2022] eKLR where the court cited with approval the case of; Zarani Akbarali Shariff and Another vs Noshir Pirosesha Sethna and Others [1963] EA 239 where the East African Court of Appeal held that, drivers are not entitled to drive with the assumption that other road users will behave reasonably, and that it is a driver’s duty to keep a look out for all vehicles or pedestrians who may come to the road from any direction.

15. Further, reliance was placed on the case of; Board of Trustees Diocese of Embu Kairu Parish vs Antony Njeru Ngugi & Another (supra) where the High Court stated that a driver should drive at a speed that allows him to stop or change his course within the distance he can see clearly and if he hits a person or object without seeing the person or object he was either not keeping a sufficient look out or was driving too fast regarding the limit he could look.

16. That, it is in evidence that motor vehicle registration No. KCL 815E was parked off the road as confirmed by the respondents in his evidence at page 42 of the Record of Appeal and that the respondent blamed the driver of motor vehicle KCL 815E, yet failed to issue a third party notice pursuant to the provisions of Order 1 Rule 15 of the Civil Procedure Rules 2010.

17. The appellant submitted on quantum that, the award of Ksh. 1,800,000 as general damages is manifestly low taking into consideration the injuries he suffered as can be seen form the brain CT Scan report by Dr. Ndaiga and the medical report by Dr. Gadkari.

18. Further, after the accident he was rushed to Mediheal Hospital, Nakuru, where he underwent major brain surgery and was admitted at the ICU for two (2) days and another twenty (20) days in the Ward as evidenced by the case report from the Hospital. Furthermore, at the time of the accident he was twenty-five (25) years old and employed as a Police Officer, however, because of the accident, he cannot write or properly hold the gun and is still on treatment.

19. He urged that an award of Ksh. 2,500,000 as general damages for pain, suffering and loss of amenities would be adequate. He relied on the case of; Alfred Ngige Karanja vs Charles Ndungu Mundia [2005] eKLR where the plaintiff lost consciousness immediately after the accident for forty-eight (48) hours and sustained a fracture base of skull involving the anterior and middle cranial fossa and subsequently developed post traumatic epilepsy. That, the High Court awarded Ksh. 1,200,000 as general damages for pain, suffering and loss of amenities.

20. Further, in the case of; Sosphiant Company Ltd & Another vs Daniel Ng’ang’a Kanyi Civil Appeal HCCC No. 315 of 2001 that the appellant suffered a compound depressed skull fracture of the right frontal bone and was awarded Ksh. 2,000,000 as general damages.

21. Furthermore, in the case of Pioneer Plumber Ltd vs Jacob Nyongesa Mughula [2018] eKLR the respondent sustained similar injuries as the appellant herein which affected his mental and physical abilities and the High Court upheld the award of Ksh. 2,600,000 as general damages by the trial Court.

22. However, the respondent on its part filed submissions dated; 21st November 2022, and argued that the respondent was not wholly to blame for the accident. That, in his evidence (DW1) Vincent, the driver of motor vehicle KCG 871S, blamed motor vehicle registration No. KCL 815E, which the appellant was a passenger in, and the small motor vehicle that overtook him for causing the accident.

23. That, (DW1) Vincent, in an attempt to avoid ramming into the small motor vehicle that overtook the bus, swerved to the left and attempted to navigate in-between the cars parked on the left side of the road, but unfortunately, the left rear side of the bus, grazed matatu motor vehicle registration No. KCL 815E which had been parked precariously and dangerously.

24. Further, the evidence adduced by the appellant was inconclusive, in that he said he lost consciousness and only regained it after the accident and therefore was unaware of the circumstances of the accident. Furthermore, (PW2) PC Onyatiti was not the investigating officer and he did not have the police file records including the sketch maps, investigation diary, or witness statements from the investigations.

25. In additionally, the Occurrence Book indicated that the matter was under investigation and that, the respondent’s driver has never been charged with any traffic offence. The respondent cited section 68(3) of the Traffic Act (Cap 403) Laws of Kenya which states: -A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.

26. The respondent further submitted that, the appellant had to prove some fault on the part of the respondent. The decision of the Court of Appeal in the cases of; Muthuku vs Kenya Cargo Handling Service Ltd (1991) KLR 464 and Lochab Transport Limited vs Teresia Wangari and another (personal representatives of the Late Isaac Macharia Mutunga) [2017] eKLR were relied in support of the afore contention.

27. The respondent argued that, if the appellant’s case had gaps, he had the onus to enjoin all the other victims of the accident in the other three (3) motor vehicles so as to establish the common question of liability. Further, the standard of proof in civil cases under section(s) 107 and 108 of the Evidence Act (Cap 80) Laws of Kenya is clear and cited the case of; Boham Carter vs Hyde Park Hotel Ltd (1948) 64 T.R 177 where it was stated that it is not enough for the plaintiff to write particulars in an action for damages but must prove the damages.

28. On quantum, the respondent relied on the cases of; Kemfro Africa Ltd t/a Meru Express Services Gathogo Kanini vs A M Lubia & Olivia Lubia & Another (No. 2) (1982-88) KAR 727 and Butt vs Khan [1981] KLR 349 where the Court of Appeal set out the principles that guide an appellate court in considering whether to interfere with an award of damages. That, it must be satisfied that the trial court, proceeded on wrong principles by taking into account an irrelevant factor, or left out a relevant fact; misapprehended the evidence in some material aspect; or the award is so inordinately low or so inordinately high, that it must be an erroneous estimate.

29. It was further submitted that, parties are bound by their pleadings thus assessment of damages must be in reference to particulars of injuries enumerated in the plaint and proved in court. That, permanent disability was not pleaded in the plaint nor did the bundle of treatment notes/hospital records produced as exhibit 5 note any permanent disability.

30. Furthermore, the appellant was fully healed without any post injury functional deficit. That, the appellant confirmed in cross-examination that he is still employed as a Police Officer and undertakes his duties, and indeed, the nature of his work is risky and vigorous and requires he be in good shape.

31. The respondent argued that, damages must be within limits and cited the case of; Joseph Musee Mua vs Julius Mbogo Mugi & 3 others [2013] eKLR where the High Court stated that large damages are passed to members of the public most of whom cannot afford the burden in the form of increased insurance or fees.

32. That further, in the case of; Hassan vs Nathan Mwangi Kamau Transporters & 5 others NBI CACA 123 of 1985 the Court of Appeal held that inordinately high awards will lead to monstrously high premiums for insurance of all sorts and is to be avoided.

33. That, taking into consideration the injuries sustained by the appellant an award of Ksh. 500,000 would be reasonable. The respondent relied on the case of; Julius Chelule & Another vs Nathan Kinyanjui [2013] eKLR where the High Court revised downwards the award of Ksh. 600,000 to Ksh. 500,000 where the plaintiff suffered a depressed skull and soft tissue injuries.

34. That in the case of Naivasha High Court Civil Appeal 19 of 2018 Moiz Motors Ltd Co. & Kuweka Trading Company vs Harun Ngethe Wanjiru the appellant sustained a depressed fracture of the skull and soft tissue injuries and the High Court revised downwards the trial court award of Kshs. 700,000 to Ksh. 500,000.

35. At the conclusion of the arguments by the respective parties and considering the grounds of appeal, I find that, the main issue is whether the trial court in holding that the appellant contributed to the cause of the accident by 30%, yet he was merely a passenger in the motor vehicle registration No. KCL 815E.

36. In that regard I find that, there is no dispute that, the appellant was a passenger in the motor vehicle registration No. KCL 815E. The respondent in his statement of defence did not allude to any negligence on the part of the appellant. Instead the respondent blamed the driver of the motor vehicle KCL 815E and tabulated the particulars of negligence on the part of that driver.

37. As such, the holding that, the appellant contribute to the accident in any way was with due respect based on the wrong application of the law or manifestly erroneous, and/or no evidence. I am inclined to and hereby set aside that finding and hold the respondent 100% liable.

38. As regards quantum, I have considered the pleadings and note the injuries listed in the plaint. In support thereof, the appellant produced a list of documents including a P3 form, a medical report prepared by Dr. Cyprinus Okere and hospital records. I have considered the same and I note that, the copy of the P3 form in the Record of Appeal is incomplete however a perusal of the copy thereof in the trial court’s file indicates the appellant sustained; frontal head injury confirmed by CT scan which showed bleeding in the brain and blood clots and loss of consciousness for three (3) weeks.

39. That he was admitted at Mediheal Hospital Nakuru from 9th February to 28th February 2019 whereas the discharge or case summary shows that, he was admitted in coma. The appellant also produced a scan showing fracture of head on left frontal. That he underwent surgery and has improved a lot. In addition, Dr. Hitendra Gadkari, Consultant Neurosurgeon at Mediheal diagnostic and Fertility Centre indicated that the appellant had severe head injury

40. The CT Scan produced showed bilateral fracture, temporal bone with fracture sphenoid, left haemorrhagic and it was concluded that the appellant suffered left temporal Epictural hematoma.

41. In relation to the medical report by Dr. Ndaiga, I note that it is written to technical terms. It is not written in the traditional format of a medical report by a medical officer for simplicity and understanding by the court. He is indeed a Radiologist.

42. The subject report is the interpretation a CT Scan of the brain presented to him. It does not make reference to any other medical report availed by the appellant and neither did the radiologist physical examine the appellant. In conclusion the report states, the appellant sustained:a.Bilateral longitudinal temporal bone fractures of the skullb.A fracture to the right sphenoidc.Contusions in the left parietotemporal lobed.Extradual hematoma of 15mm a left temporal lobee.Haemorrhage in the nasal citterns of left cerebral convexity

43. As such it does not clearly confirm the injuries stated in the plaint with certainty. However, no other medical report to the contrary was produced and neither has the respondent challenged the medical report of Dr. Ndaiga.

44. Be that, as it were, I have considered the evidence on the injuries the appellant suffered, and the submissions on quantum in the trial court. The appellant sought for a sum of Kshs 2,500,000 as general damages. He relied on the cases of; Alfred Ngige Karanja vs Charles Ndungu Mundia [2005] eKLR; Sosphiant Company Ltd & Another vs Daniel Ng’ang’a Kanyi Civil Appeal HCCC No. 315 of 2001; and Pioneer Plumber Ltd vs Jacob Nyongesa Mughula [2018] eKLR.

45. I note that most of those decisions relate to awards in the range of Kshs 800,000 to Kshs 1,000,000 with only one decision of; Pioneer Plumbers Ltd (supra) where a sum of Kshs 2,000,000 was awarded.

46. Having considered the aforesaid and taking into account that there is no cross appeal, I find that the sum awarded of; Kshs 1,800,000 awarded by the trial court is reasonable in the given circumstances and uphold it.

47. The upshot of the aforesaid is that Judgment is therefore entered for the appellant as follows:a.General damages---------------- Kshs 1,800,000b.Special damages -----------------Kshs 23,800Total-------------------------------- Kshs 1,823,800Plus costs and interest. No costs are awarded on appeal as the appeal did not arise from an act omissionon the part of the respondent

48. It is so ordered

DATED, DELIVERED AND SIGNED THIS 9TH NOVEMBER, 2023GRACE L. NZIOKAJUDGEIn the presence of:-Mr. Ngula H/B for Mr. Uvyu for the AppellantMs. Chelule for the RespondentMs. Ogutu Court Assistant