[2023] KEHC 24926 (KLR)

Kiprop v Wafula (Civil Appeal E175 of 2022) [2023] KEHC 24926 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24926 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E175 of 2022

RN Nyakundi, J

November 7, 2023

Between

Abel Kiplimo Kiprop

Applicant

and

Emmanuel Wafula

Respondent

Judgment

1. The appeal is both on quantum and liability. In the trial Court the Respondent had sued the Appellant claiming general damages, special damages plus costs and interest of the suit arising from road accident that occurred on 15/8/2022, wherein it is alleged that the Respondent was lawfully riding motor cycle registration number KMEU 104 R along Eldoret-Pioneer road when at Karuri apartments area, the Appellant and or his driver negligently drove motor vehicle registration number 174 M Toyota Axio causing it to ram into motor cycle registration number KMEU 104R and as a result of which the Claimant/Respondent sustained severe injuries.

2. In a response to the Statement of Claim dated 14/10/2022, the Appellant denied the occurrence of the accident. Alternatively, he blamed the Respondent for causing the accident.After trial Judgment was delivered on 28/10/2022, as hereunder: -a.Liability.................80: 20 against the Appellantb.General Damages…….………... Kshs.250,000/=c.Less 20% liability.............................Kshs.200,000/=d.Special Damages…………………. Kshs.6,000/=e.Total ………………………………Kshs.206,000/=f.Plus, costs and interests

3. The Appellant is aggrieved by the decision of the trial Magistrate and has preferred the present appeal on (10) grounds: -1. That the learned trial Magistrate/Adjudicator erred in law by failing to dismiss the Respondent’s suit whereas negligence against the Appellant was not proved in trial.

2. That the learned trial Magistrate/Adjudicator erred in law by failing to dismiss the Respondent’s suit whereas the Respondent failed to discharge the burden of proof so as to warrant a judgment in his favour.

3. That the learned trial Magistrate/Adjudicator erred in law by failing to take into account relevant facts relating to the suit thus arriving at a decision that no reasonable tribunal would arrive at in view of the evidence adduced.

4. That the learned trial Magistrate/Adjudicator erred in law and in fact by holding the Appellant 100% liable for causing the accident contrary to the evidence on record and or adduced during trial.

5. That the learned trial Magistrate/Adjudicator erred in law and in fact by awarding Kshs.180,000/= as general damages which award was excessive in view of the injuries sustained by the Respondent thereby deviating from the principle of stare decisi requiring comparable awards being made for comparable injuries sustained.

6. That the learned trial Magistrate/Adjudicator erred in law by failing to consider the Appellant’s written submissions and legal authorities and or precedents on both quantum and liability thereby arriving at determination which is wholly erroneous in fact and law...

7. That the learned trial Magistrate/Adjudicator erred in law by failing to consider the evidence adduced by the Appellant thereby arriving at a determination on liability which is wholly erroneous.

8. That the learned trial Magistrate/Adjudicator erred in law and in fact by holding the Appellant 80% liable for causing the accident without giving any justification and or reasons.

9. That the learned trial Magistrate/Adjudicator erred in law and in fact by holding the Respondent 80% liable for causing the accident despite conceding that there were inconsistencies in the eyewitnesses’ accounts.

10. That the learned trial Magistrate/Adjudicator erred in law and in fact by making an award of Kshs.250,000/= as general damages without giving any justification and or authority relied on whereas the Appellant sustained soft tissue injuries.

4. The appeal was canvassed vide written submissions. The Appellant on 17/7/2023 filed submissions dated 4/7/2023 while the Respondent on 15/6/2023 filed undated submissions.

The Appellant’s Submissions 5. With regard to liability Counsel for the Appellant submitted that the Appellant was not in any manner liable at all for the accident the subject matter of the suit.

6. Counsel further submitted that the Claimant/Respondent during trial only called one eye witness CW3- Emmanuel Wafula who was the claimant, and who adduced evidence which was not in tandem with his statement of Claim. Counsel contended that CW3 further deviated and totally abandoned the contents of his written statement and introduced a new version of events. Counsel added that, the Claimant by his own admission testified that he did not have a riders licence at all, further that the motor cycle was not insured and finally that he was carrying excess pillion passengers and that on that material day it had rained. Counsel submitted that the trial Court in fact and indeed in its judgment found his account/testimony Inconsistent.

7. Counsel further submitted that the Claimant/Respondent further called a police officer CW1,PC W. Sitty Mohammed who by her own admission ,did not witness the accident, nor visit the scene of the accident ,nor carry out any investigations on the accident. According to Counsel her evidence / testimony was of no evidentiary value and did not assist the Court much on the issue of liability. Counsel reiterated that again the trial court indeed singled out her testimony as having found it wholly unhelpful.

8. Counsel maintained that The Respondent/claimant did not call any other witness(es) to corroborate how the accident occurred.

9. Counsel argued that the Respondent, therefore, did not prove his case on a balance of probability despite the abstract indicating that the he, alongside his mother ,was a passenger on the said motor cycle at the time of the accident. Counsel cited the case of Mary Wambui Kabugu vs. Kenya Bus Services Ltd. Civil Appeal No. 195 of 1995 cited in the case of Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR

10. Counsel reiterated that the claimant/respondent herein failed to prove his case on a balance of probabilities or at all as to how the Appellant could have been liable for the alleged accident. Counsel urged the Court to hold that in the circumstances ,the trial Court indeed erred in apportioning liability at 100% against the Appellant. Counsel urged the Court to be guided by cases of Eastern Produce (K) Limited v Christopher Atiado Osiro [2006] eKLR and Benter Atieno Obonyo v Anne Nganga & another [2021]eKLR

11. Counsel argued that the claimant/respondent herein did not state nor demonstrate, in any manner whatsoever , how the Appellant could have been negligent at all. Counsel added that no evidence was adduced and or lead as to the appellants alleged negligence and there was no iota of evidence at all that could have warranted the Appellant to be held wholly liable. Counsel submitted that no liability should have been apportioned to the Appellant.

12. Counsel submitted that in the highly unlikely event, find that the Appellant may have contributed in the occasioning of the accident, then it is only fair that there be equal apportionment of liability between the appellant and the Respondent/claimant. Counsel cited the case of Lakhamshi Vs Attorney General, (1971) E A 118, 120 [as quoted in Calistus Juma Makhanu v Mumias Sugar Co. Ltd & Another [2021] eKLR].

13. Counsel argued that the general rule is that, an Appellate court should be slow to interfere with the discretion of the trial court in the award of damages unless the trial Court is shown to have acted on wrong principles of the law, that is to say, it took into account an irrelevant factor or failed to take into account a relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. Counsel urged the Court be guided by the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M.M.Lubia & Another (1982-88) 1 KAR 777 (as quoted in Ann Kanja Kithinji (suing as the legal representative of the Estate of Patrick Koome (Deceased) & 2 others v Jacob Kirari & another [2018] eKLR).

14. Counsel maintained that trial Court acted on wrong principles of the law and took into account an irrelevant factor in holding and apportioning liability against the Defendant/Appellants at 80%.

15. Counsel further submitted that lower Court was at fault for failing to find that the Claimant had indeed failed to prove his case to the required standard.

16. With regard to quantum, Counsel submitted that the Plaintiff pleaded the following injuries: Blunt injury to the chest, left hand and forearm, left wrist joint, knee, hip joint and right ankle joint. Counsel maintained that re-evaluation of the quantum herein would be prudent in view of the very mild nature of the injuries sustained.

17. Counsel submitted that trite law that assessment of quantum of damages in a claim for general damages is a discretionary exercise. However, the law has set dimensions for an exercise of discretion; must be exercised judicially, with wise circumspect and upon some legal principles. The said dimensions are vital such that when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial Court. The discretion in assessing the amount of general damages payable will be disturbed if the trial court;i.Took into account an irrelevant factor or,ii.Left out of account a relevant factor or, short of thisiii.The amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

18. Counsel further submitted it is also trite law that awards must be within consistent limits and Court awards for damages must be made taking into account comparable injuries or similar injuries and awards. Counsel cited the case of Denshire Muteti Wambua vs. Kenya Power & Lighting Co. Ltd [2013] eKLR [as quoted in Michael Okello v Priscilla Atieno [2021] eKLR] and the case of Kigaraari vs Aya (1982-88) 1 KAR 768, as quoted by Kamau J in Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR.

19. Counsel urged the Court to revise downwards the award of Kshs.180,000in general damages as the same is entirely exaggerated because the Plaintiff sustained soft tissue injuries. In this regard Counsel relied on the following cases as quoted in Michael Okello v Priscilla Atieno [2021] eKLR;a.George Mugo & Another V AKM (minor suing through next friend and mother of A.N.K [2018] where Kemei J awarded Kshs. 90,000/= for soft tissue injuries.b.George Kinyanjui T/A Climax Coaches & Another Vs Hussein Mahad Kuyala [2016] eKLR where the Respondent sustained injuries on his chest,neck, knees and lost two teeth and the High Court on appeal reduced an award of Kshs. 650,0050,000/=to Kshs. 109,890/=; uponupon a firiding that that the loss of teeth was unrelated to the accident in question, as the Respondent had sustained soft tissue injuries.c.Ndungu Dennis Vs Ann Wangari Ndirangu & Another [2018]eKLR where Ngugi Joel J reduced general damages for soft tissue injuries from Kshs.00,000/=to Kshs.100,000/=.

20. Counsel further submitted that in PF (Suing as next friend and father of SK (Mino) v Victor O Kamadi & another [2018] eKLR, the Plaintiff in the lower Court had been awarded Kshs.50,000 for sustaining;a)Cut wound to the forehead.b)Multiple small abrasions to the face.c)Blunt injury to the head leading to loss of consciousness for some time.d)Abrasions to the back.e)Abrasion wounds to the dorsum of the right hand.f)Cut wound to the right leg.

21. Upon Appeal, the award was substituted with that of Kshs.100,000. Counsel relied on this matter in as far as comparable awards for comparable injuries goes.

22. Counsel also relied on the following cases as quoted in Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR;a.Godwin Ireri -vs- Franklin Gitonga (2018) eKLR where the claimant sustained a cut on the scalp and forehead, swelling on the dorsum of the left foot and a bruise on the right knee. An award of Kshs.300,000/= was reduced to Kshs.90,000/=on appeal.b.Lamu Bus services & Anor -vs- Caren Adhiambo Okello (2018) eKLR where the claimant sustained a dislocation of the left shoulder joint, a deep cut wound on the left chin, a deep cut wound on the left thigh and a blunt injury to the left thigh. An award of Kshs. 200,000/= was reduced to Kshs.130,000/= on appeal.

23. Counsel submitted that a re-evaluation of the issues of liability and quantum in this matter is pertinent and especially because the trial court ought to have dismissed the Respondent’s/Claimant’s suit.

24. Counsel submitted that it is trite in our practice that costs follow the event. Counsel prayed for costs of this Appeal based on Section 27(1) of the Civil Procedure

The Respondent’s Submissions 26. On the issue of liability, Counsel for the Respondent submitted that from the record it is clear that the Respondent was a pillion passenger the suit motor cycle. That the Respondent called CW1, a Police Officer PC Sitty Mohammed the investigating officer from Eldoret Police Station where the accident was reported. The said officer clearly stated that the accident occurred at T-junction when the suit motor vehicle made an abrupt turn to join a feeder road that was on the right side of the road without indicating and knocked down the motor cyclist together with the two pillion passengers. Counsel added that the police officer blamed the suit motor vehicle for joining a feeder road when it was not clear and safe.

27. Counsel further submitted that the Respondent also testified that she was travelling as a pillion passenger on a motor cycle together with minor when the suit motor vehicle made an abrupt turn to the right without indicating as a result of which it knocked down the motor cycle which she was on board after it had just finished overtaking the said motor vehicle.

28. Counsel argued that in attempt to shift blame on the Respondent, the Appellant testified that it was the rider of the motor cycle who was to blame for the occurrence of the said accident. That the Appellant stated that he had stopped and indicated that that he wanted to turn right but the rider did not heed to his warning. Counsel maintained that on cross-examination however the Appellant was at pains to explain; why his motor vehicle was damaged but he did not enjoin the owner of the suit motor cycle for damages suffered, why he did not take photographs of the scene when the accident occurred so as to fit his allegations, why he took the victims of the accident to hospital in his car and even paid for their medical expenses, why he never filed a counter-claim against the rider for causing the accident, why did he call an expert witnesses that is a police officer to support his evidence and finally why he did not call an independent witness to support his unfounded allegations.

29. Counsel argued in the circumstances of this case, it clear that the Appellant is to blame for the occurrence of the accident. Counsel urged the Court to find that the Appellant is 100% liable for causing the accident.

30. With regards to whether the Respondent herein contributed in any way to the occurrence of the accident, Counsel submitted that the Respondent was a pillion passenger on the suit motor cycle. Counsel further submitted that the Appellant in his defence did not enjoin the owner of the said motor cycle as third party. Counsel argued that the Respondent was not a driver of the suit motor vehicle neither was she in control of the suit motor cycle. Counsel argued that the Respondent cannot be said to have been negligent. Counsel relied on the following cases to buttress his submissions on the issue: Jones V Livox Quarries Limited 1952 2 QB 608, Benner V Chemical Construction Ltd [1971] 3 ALL ER 822, Lodigelly Iron Coal Company V McMIllian [1934] and Alfred Chivatsi Chai & Another V Cecilia Tabu Kistao, Civil Appeal No. 56 of 2018.

31. On quantum, Counsel submitted that according to the medical report prepared by Dr. Sokobe the Respondent sustained the following injuries:i.Blunt injury to the chestii.Blunt injury with bruises on the left handiii.Bruises on the left forearmiv.Blunt injury to the left wrist jointv.Blunt injury to the left hip jointvi.Blunt injury to the right ankle joint

32. Counsel further submitted that the trial Court, the Appellant submitted that Kshs.80,000/= was sufficient in the circumstances as just compensation for the injuries sustained. That Appellant relied on several cases where the award of Kshs.60,000-100,000/= had been given for similar injuries.

33. According to Counsel, Kshs.200,000/= awarded by the trial Court as general damages was reasonable and commensurate to the injuries sustained by the Respondent. Counsel relied on the following cases to buttress his arguments on the issue: Veronicah Mkanjala Mnyapara V Charles Kinanga Babu [2020] and Jyoti Structures Limited & Another V Charles Ogada Ochola [2022] eKLR.

34. With regards to special damages, Counsel submitted that Kshs.6,000/= was pleaded and strictly proven.

Analysis & Determination 35. Being a first appeal the Court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

36. As stated above the two limbs to this appeal are quantum and liability. I propose to deal with the issue of liability first. The appellant has argued that the trial court misdirected itself at apportioning liability against the Appellant at 100% despite overwhelming evidence to the contrary.

Liability 37. The facts speak for themselves that an accident indeed occurred on 15/8/2022, involving motor vehicle registration number KDE 174M Toyota belonging to the Appellant and motor cycle registration number KMEU 104R and that as a result of which the Respondent sustained injuries.

38. On one hand the Appellant blames the Respondent and the rider of the suit motor cycle for the accident whereas on the other hand the Respondent blames the Appellant for causing the said accident.

39. What then is the extent of the Respondent’s liability? To determine this the Court will draw upon the evidence at the trial Court.

40. The account narrated by the Respondent CW3 was that on the material date he was lawfully riding the suit motor cycle along Eldoret- Pioneer road when at Karuri Apartments area and while on his rightful left lane and while carrying pillion passengers a mother and her minor when the Respondent’s driver and or agent negligently drove the suit motor vehicle and as a consequence of which it lost control and rammed into the suit motor cycle and as a result of which he sustained severe injuries. During cross-examination, CW3 conceded that a motor cycle should only have one passenger. He told Court that he has two pillion passengers on board a mother and her son and was heading to Langas. He also told Court that the road was slippery because it was raining. He further stated that the the accident had occurred at a cross junction and that he and the suit motor vehicle were heading in the same direction and that the driver of the suit motor vehicle hit them when he was joining the cross-junction. He told Court that there were no other motor vehicle on the road and that the driver of the suit motor vehicle was turning. He stated he was not at high speed. He stated that he sustained injuries on his left head, chest and left leg. He confirmed that he was not disabled and had not testified against the suit motor vehicle’s driver in any criminal case. He further stated that he had already overtaken the driver of the suit motor vehicle when he got hit. He told Court that he had a helmet on and that the pillion passengers had no helmets on but they had reflector jackets on.

41. CW1 PCW Sitty Mohammed, told the Court that she was at the station when the Appellant came to the station and made a report that when he was driving his car from Eldoret town towards Pioneer Joy land area and on reaching the site of the accident he indicate to turn right and in the process the suit motor vehicle was hit on the front side by suit motor cycle which was being ridden by Emmanuel Wafula and on board was a pillion passenger the Respondent herein who sustained injuries on the left leg and hand and her young son also sustained injuries. She further told the Court that the accident had occurred at a cross junction and the that victims landed on the right side of the road as one faces Chirunya direction. She further confirmed that she was the investigation officer in this matter and that the driver of the suit motor vehicle did not check his side mirror before turning right.

42. CW2 Wycliffe Nyambane, testified that he is a Clinical Officer attached at Uasin Gishu County Hospital. He produced the attendance card, a prescription form, patient treatment card and the medical report done by Dr. Sokobe.

43. The evidence by the Respondent in this matter was uncontroverted. When I place the evidence on legal scale of balance of probabilities, it is more probable than not that the Appellant’s was not paying attention to traffic rules and other road users when the accident occurred. The Appellant clearly entered the junction without indicating and as a result of which he rammed into the Respondent. The Respondent on the other hand did not have a licence when the accident occurred. In apportioning liability, the trial Magistrate observed that the Claimant must also shoulder liability for failing to give way to the vehicles coming from the right. The trial Magistrate apportioned the Appellant’s liability at 80% for failing to exercise a proper look out and slowing down while approaching a road junction. The circumstances of this case and the evidence presented in this case warrant a 80%: 20% contributory negligence between the Appellant and the Respondent. This Court will therefore not disturb the finding of liability by the trial Court. Accordingly, the trial Court did not err in apportioning liability at 80% : 20% against the Appellant.

Quantum 44. The issue for determination here is whether the award of general damages of Kshs.180,000/= in light of the injuries stated above is inordinately high to persuade this court to interfere with it. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”.

45. It has long been held that an appellate Court should not interfere with exercise of discretion by a trial court unless it acted on a wrong principle, took into account irrelevant factors or failed to take into account relevant factors.

46. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1985] Kneller. J.A, stated:

47. The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the 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. See ILANGO V. Manyoka [1961] E.a. 705, 709, 713; Lukenya Ranching And Farming Co-operatives Society Ltd V. Kavoloto [1970] E.A., 414, 418, 419. This Court follows the same principles.”

48. The question is whether this court should interfere with the damages awarded by the trial Court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

49. To begin, the injuries suffered by the Respondent were listed in the treatment notes, the P3 form and the Medical report by Dr. Joseph Sokobe as:a.Blunt injury to the chestb.Blunt injury with bruises on the left handc.Bruises on the left forearmd.Blunt injury to the left wrist jointe.Blunt injury to the left hip jointf.Blunt injury to the right ankle joint

50. At this juncture it worth pointing out that injuries will never be fully comparable to other person’s injuries. What a Court is to consider is that as far as possible comparable” to the other person’s injuries, and the after effects.

51. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.

52. From the evidence adduced by Dr. Joseph Sokobe medical report it is clear that the Respondent herein sustained both soft tissue and body tissues injuries which he was recovering well. While appreciating that money cannot renew a physical frame that has been shattered or battered, the Respondent is only entitled to what in the circumstances is a fair compensation on the principle that comparable injuries should be compensated by comparable awards.

53. Considering the injuries sustained by the Respondent and keeping in mind that no injuries can be completely similar and further time and inflation. I find that the trial court was properly guided by the authorities cited before her and arrived at a reasonable assessment of general damages. The learned trial Magistrate cannot be faulted as the award of Kshs.180,000/= is neither too low nor too high in the circumstances. In Michael Okello Vs Priscilla Atieno// H.C.C.A. NO. 45 OF 2019, in which Kshs.50,000/= was awarded for soft tissue injuries. In JOseph Mwangi Kiarie & Another Vs Isaac Otieno, H.C.C.A NO. 30 OF 2018, in which the award of Kshs.300,000/= was reduced to Kshs.180,000/=, for soft tissue injuries. In Michael Odiwuor Obonyo Vs// Clarice Odera Obunde, H.C.C.A. NO. 01/2020, the award of Kshs.500,000/= was reduced to Kshs.200,000/= for soft tissue injuries.

54. Turning to special damages, Kshs.6,000/= was pleaded and strictly proved as was held in the case of Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;

55. Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

56. In the end the Court finds no merit in this appeal and therefore proceeds to enter judgment in favour of the Respondent in the following terms;i.Liability 80% : 20% against the Appellantii.General Damages…….………... Kshs.200,000/=iii.Special Damages…………………. Kshs.6,000/=iv.Total ………………………………Kshs.206,000/=v.Plus, costs and interest

It is ordered so.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 7TH DAY OF NOVEMBER 2023In the Presence ofMr. Wanyonyi Advocate…………………………………..R. NYAKUNDIJUDGE