[2023] KEHC 26626 (KLR)

Kinya v M’mauta (Civil Appeal E009 of 2023) [2023] KEHC 26626 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26626 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E009 of 2023

TW Cherere, J

December 14, 2023

Between

Faith Kinya

Appellant

and

Naomi Kathure M’mauta

Respondent

(Being an appeal from the judgment and decree in Maua CMCC 114 of 2018 by Hon. T.Gesora on 16th December 2021)

Judgment

1. On 09th January, 2018, Respondent was travelling in Appellant’s M/V KCM 549G owned when it collided with another motor vehicle as a result of which Respondent suffered bodily injuries. At the trial both Appellants were found liable at 100% and Respondent was awarded damages as follows:1. General damages KES. 1,000,000/-2. Special damages KES. 10,500/-

The Appeal 2. Appellant was dissatisfied with the lower court’s decision and has preferred this appeal on both liability and quantum.

Analysis and Determination 3. I have considered the evidence on record and written submissions filed on behalf of the Respondent and the authorities cited therein, Appellant not having filed any the parties. This is a first appeal and this Court is empowered to review and analyze the evidence on record and arrive at its independent conclusions. (See Selle & another vs. Associated Motor Boat Co.Ltd. & others (1968) EA 123).

Liability 4. Evidence was tendered in the form of a police abstract which confirmed that Respondent was injured while travelling in M/V KBY 258M. Defendant did not tender any evidence and the cause of the accident was therefore not explained.

5. The consequences of a party failing to adduce evidence was considered in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J (as she then was) citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 appreciated that:“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.”

6. Again, in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others [2009] eKLR Lesiit, J (as she then was) 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.

7. In finding Appellant liable at 100%, I find that the learned trial magistrate correctly applied the doctrine of res ipsa loquitur as explicated in Embu Public Road Services Ltd v Riimi (1968) EA 22 where the Court of Appeal held that:“…where an accident occurs and no explanation is given by the defendant which could exonerate him from liability, then the court would be at liberty to apply the doctrine of res ipsa loquitur and hold the defendant liable in negligence.”

Quantum 8. At the hearing, Respondent asked for KES. 2,000,000/- and cited Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR where the court on appeal upheld an award of KES. 1. 5 million for multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joined associated with a fracture of the radial head; dislocation of left lunate bone and bruises parietal scalp.

9. Appellant on the other hand offered KES. 200,000/- and cited three authorities where the sum of between KES. 200,000/- and KES. 350,000/- was awarded for fractures to the tibia and fibula.

10. It is the duty of the advocates to avail relevant authorities to guide the court in arriving at a fair award for the injuries suffered and the advocate in this matter did not do so.

11. The Respondent’s medical report and P3 form reveals that she suffered fracture of left malleolus and soft tissue injuries to the toes. The injuries in the form of tender and swollen left leg and ankle and linear fracture of the tibia appearing the judgment do not appear in the two medical documents and they ought not to have been considered in assessing damages.

12. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo v Shah (1968) EA 93 and Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30).

13. From the foregoing, I find that the learned trial magistrate in assessing quantum considered some injuries that were not suffered by the Respondent and thereby arrived at a wrong conclusion.

14. On the basis of the holding in Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR a party with comparable injuries as those suffered by the Respondent was awarded KES. 500,000/-, I substitute the award of KES, 1,000,000/- with KES. 600,000/-. The award on special damages remain as awarded by the trial court.

15. Appellant having succeeded in the appeal is awarded costs of the appeal,

DATED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE.T. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant - Mr. Kabita for Kimondo Gachoka & Co. AdvocatesFor Respondent - N/A for Mutembei Kimathi & Co. Advocates