[2022] KEHC 12676 (KLR)

Kiriro v EW(Minor Suing Through Her Father And Next Friend) GK (Civil Appeal 124 of 2018) [2022] KEHC 12676 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12676 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 124 of 2018

MM Kasango, J

June 16, 2022

Between

David Kimani Kiriro

Appellant

and

EW(Minor Suing Through Her Father And Next Friend) GK

Respondent

(Being an appeal from the judgment in the Principal Magistrate’s Court at Kikuyu (D.N. Musyoka, PM) in Civil Case No. 25 of 2012 dated 31st August, 2018)

Judgment

1. The respondent, EW, through her father filed a case before the Principal Magistrate’s Court, Kikuyu seeking compensation in general and special damages following a motor vehicle accident on December 15, 2010.

2. Although David Kimani Kirirro, the appellant filed a defence to that claim, he did not offer evidence to support that defence. The trial court received evidence of three witnesses for the respondent. It delivered judgment on August 31, 2018. By that judgment, the respondent was awarded Kshs 800,000 in general damages and Kshs 2,500 in special damages. The appellant has filed this appeal against that entire judgment.

3. This is the first appellate court. Accordingly, this court has a duty to re-evaluate the evidence of the trial court and come to its own independent conclusion taking into account the fact that this court did not have the advantage of seeing and hearing the witnesses when they testified: See the case of Selle Vs Associated Motor Boat Co Ltd (1968) EA 123.

4. At the trial, the respondent’s father stated that the respondent (EW) was 10 years old when the accident occurred. He did not witness the accident. He said the respondent sustained injuries following that accident. She sustained compound fracture to her right leg and injuries to her ankle.

5. Doctor GK Mwaura testified. According to his medical report, respondent suffered compound (open) fracture to the right tibia and fibular and wound to the right ankle anteriorly. The respondent had plaster of Paris applied. The doctor surmised his finding as follows:- She suffered pain, bleeding and swelling.

There is a bonny deformity – right leg (a depression)

There are prominent and disfiguring scars right leg.

She experiences pain – right leg on exertion.

She sustained grievous harm injuries and soft tissue injuries.

Permanent degree of incapacity is assessed at 10% (right leg).

6. The third witness for the respondent was Njoroge Wanjiku who was an eye witness of the accident. This witness was on the material day at Kanjeru stage along Wangige-Kikuyu road. The respondent child was in the company of several other children the respondent on foot. The witness further stated:-“… they (the children) waved on (sic) the driver of motor vehicle registration KAX 932S that they wanted to cross but the driver saw them and slowed down for them to cross but all over a sudden he accelerated as they were in the middle of the road. The other children managed to jump but one of them did not manage and was crushed by the vehicle.”

7. This witness stated that when the accident occurred the driver’s attention had been taken by someone a pedestrian who waved at him. This witness blamed the driver for the accident.

Analysis 8. The appellant faulted the trial court for having found liability in favour of the respondent at 100%; and for awarding the respondent Kshs 800,000 as general damages.

Liability 9. The appellant submitted that the trial court ought to have found the respondent contributed to the accident. The appellant was of the view that the 3rd witness for the respondent was not an expert on the Highway Code. Further, that the police abstract showed the criminal traffic file was closed.

10. The appellant other than filing a defence denying liability did not adduce evidence to support that denial. That defence therefore remained mere allegation and nothing more: see the case of Janet Kaphiphe Ouma & Another Vs Marie Stopes Itnernaiton (kenya) HCCC NO 68 of 2007 where Justice Ali-Aroni stated thus:-“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

11. The respondent, notwithstanding the failure of the appellant to adduce evidence, had an obligation to prove her case on a balance of probability. The civil standards of proof was discussed in the case Miller Vs Minister Of Pension(1947) All Er 373 as follows:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance of probabilities means a win, however narrow; a draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally [un] convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

12. That standard of proof must be attained whether or not the defendant adduces evidence. This was discussed in the case Charterhouse Bank Limited (under Statutory Management) Vs Frank N Kamau (2016) eKLR thus:-“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgment merely because the defendant has not testified.”

13. The appellant erred to argue that the respondent did not prove the negligence of the appellant. The evidence of the 3rd witness was clear that the respondent was in a group of young children. Those children signalled the appellant requesting her to allow them to cross the road. The appellant slowed down but while he allowed them to cross his attention was be taken away by pedestrian who waved at him. He accelerated his car and knocked the respondent resulting in the injuries she suffered.

14. The evidence of those witnesses proved that the appellant was 100% liable in negligence.

15. Further, the appellant erred to suggest that there can be contributory negligence attributable to a child. The respondent was 10 years old on the day the accident occurred. A judge should only find a child guilty of contributory negligence if he or she is of an age to be expected to take precaution for his or her own safety and then he or she is only to be found guilty if blame is attached to him or her. A child has not the road sense of his or her elder. He or she is not to be found guilty unless s he or she is blameworthy. She or the statement made in the case Gough Vs Thorne (1966) Wrl 1387.

16. In the case MM (Suing through the next of kin Cmn) Vs Boniface Ngaruya Kagiri & Another(2018) eKLR the same sentiments were expressed thus:-“12. In the case of Bashir Ahmed Butt Vs Uwais Ahmed Khan (1982 – 88) IKAR 1 (1981) KLR 349 the Court of Appeal held that:“It would need a great deal of persuasion before imputing contributory negligence to the child aged 8 years having regard to her tender age. Even if she did step off into the car it would not be right to count as negligence on her part such a momentary act of inattention or carelessness…A young child cannot be guilty of contributory negligence although an older child might be, depending on the circumstances. The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence should only be made if blame could be attached to the child. ...”

Clearly each case must depend on its peculiar circumstances.”

17. In view of the above discussion, the two grounds of appeal where the appellant sought a finding that the respondent did not prove liability or for a finding that the respondent contributed to the accident fail.

Quontum 18. The third ground of appeal seeks a finding that the trial court erred to find for the respondent general damages of Kshs 800,000/=

19. The trial court in making the award in general damages did so in exercise of its discretion. How appellant should deal with the appeal which seeks interference of the trial court’s discretion was discussed in the case Nguruman Limited Vs Jan Bonde Nielson & 2 Others (214) eKLR where the court stated:-“… this court will not interfere with the exercise of discretion by the judge in the court below unless satisfied that the decision of the judge is clearly wrong because of some misdirection, or because of failure to take into consideration relevant matters or because the judge considered irrelevant matters and as a result arrived at a wrong conclusion, or where there is a clear abuse by the judge of his discretion. whenever a court exercises a discretion, there is always a presumption of correctness of decision which is reversible only upon showing of clear abuse of discretion.”

20. I have considered the cases cited by the appellant. In the caseKenyatta University Vs Isaac Karumba Nyuthe (2014) eKLR the injury suffered therein is not comparable to that suffered by the respondent. In that case, the injury was a fracture, whereas in this case, the respondent suffered compound fracture. Similarly, the case Musinga Ndonga Ndonye Vs Kualam Limited(2016) eKLR the injury was a fracture to the big toe. The case Rachael Minaki Kiragu Vs Karimi Simon Mwihaki & Another (2015) eKLR the injuries though comparable to appellant, the case was decided in the year 2015 while this case was decided in 2018. In that 2015 case, the court awarded Kshs 450,000/= in general damages for compound fracture to the scalp, amongst other injuries. In this case, the trial court relied on the case James Gathirwa Ngugi Vs Multple Hauliers Ltd And Another(2015) eKLR in awarding Kshs 800,000/= general damages. In my consideration of the trial court’s award, I am unable to find the trial court misdirected itself to invite this court to interfere with that award. the third ground of appeal accordingly fails.

Disposition 21. The judgment of this court is that this appeal fails and is dismissed with costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16THDAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Appellant: N/AFor the Respondent :- Mr. MuhindiCOURTJudgment delivered virtually.MARY KASANGOJUDGE