[2017] KEHC 2218 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL APPEAL NO. 95 OF 2015

(Being an appeal from Judgment of the Chief Magistrate’s Court at Naivasha Civil

Case No. 815 of 2013, S. Mwinzi - RM)

KWERI PETER......................................................1ST APPELLANT

PETER KIONGO..................................................2ND APPELLANT

MICHAEL MUTHI BUNDI....................................3RD APPELLANT

-VERSUS-

ANN WANJIKU MAINA.......................................RESPONDENT

J U D G M E N T

1. The Plaintiff in the lower court, Anna Wanjiku Maina, now Respondent was travelling in the vehicle KBJ 922Q along Naivasha – Kinangop Road on 22nd November, 2012. The said vehicle, the property of the 1st and 2nd Defendants was driven by the 3rd Defendant (1st to 3rd Appellants respectively). At the place known as St. John’s area, a cow emerged chasing a boy onto the road. A collision ensued between the vehicle KBJ 922Q and an oncoming vehicle KBL 632W minibus, as a result of which the Plaintiff sustained several skeletal injuries, for which she was admitted for treatment at North Kinangop Catholic Hospital.

2. As a result of the injuries sustained, the Respondent suffered 20% permanent incapacity. This was the gist of the Respondent’s case in the lower court. The Defendants/Appellants filed a defence statement denying all the key averments in the Respondent’s plaint, including liability. However the Appellants did not adduce evidence or file submissions at the close of the trial.

3. In the judgment delivered on 6th October 2015 the trial court found the 2nd and 3rd Appellants 100% liable and proceeded to award to the Plaintiff general and special damages in the sum of Kshs 1,381,277/= as well as costs.

4. Aggrieved by this outcome the three Appellants filed a Memorandum of Appeal on 12th October, 2015. The four grounds in the said memorandum of appeal are that:

“1. THAT the Learned Trial Magistrate erred in law and in fact in holding the appellant 100% liable despite evidence to the contrary.

2. THAT the Learned Trial Magistrate erred in law and in fact in awarding the respondent excessive general damages not in tandem with the Respondent’s injuries and not in tandem with decided authorities on similar injuries.

3. THAT the Learned Trial Magistrate erred in law and in fact in awarding general damages that are inordinately high as to amount to an erroneous estimate of damages.

4. THAT the Learned Trial Magistrate erred in law in awarding excessive special damages which were not specifically pleaded nor strictly proved as required by law.”

5. It was agreed by the parties to dispose of the appeal by way of written submissions which have now been filed on either side. The Appellants rather lengthy submissions dwell on the joint issues of liability and quantum, as it seemed that, the Appellants did not peg any specific submission to the four grounds stated in the memorandum of appeal.

6. Stated broadly, the Appellants’ submission is that the Respondent’s evidence regarding the accident did not give a clear picture of how the accident occurred and who, of the drivers of the two motor vehicles involved in the collision was to blame, and to what extent. That the Respondent’s evidence was contradictory and insufficient. The Appellants, relying on the decision of Lord Denning L J in Baker -Vs- Market Harborough Industrial Co-operative Society Limited [1953] 1 WLR 1472 urged that in the circumstances of this case both vehicles’ drivers ought to share equal liability.

7. Secondly, it was also argued by the Appellants that indeed the question of liability based on ownership of the accident vehicle does not arise, was a creation by trial court, and not pleaded by the Appellants. The decision of Emukule J (as he then was) in Fraciah Njeri Grace -Vs- Isaiah Ngararika Muindi & Another [2012] eKLR was relied upon. In their view therefore the court misapplied the Fraciah Njeri case to the facts of the instant case.

8. On the question of quantum, the Appellants argue that in awarding damages for loss of amenities, the trial court failed to consider the Respondent’s admission at the trial that she had recovered fully, in their view without any permanent disability. Thus the award in this case for pain and suffering was inordinately high. They cite the decisions in George Kinyanjui t/a Climax coaches & Another -Vs- Hassan Muga Agoi [2016] eKLRand Haron Kipchumba Cheron -Vs- East Produce (K) Limited [2014] eKLR to support their proposal that an award of Shs 400,000/= was adequate in this case.

9. For her part the Respondent reiterated her evidence at the trial and called to her aid the decision of the Court of Appeal in Embu Public Road Services Limited -Vs- Riimi [1968] EA 22. The Respondent supports the award in general damages asserting that the same was justified in light of the undisputed evidence on the injuries she sustained. The case of Akamba Public Road Services Limited -Vs- Margaret Modani Musalia [2012] eKLR was cited to support the award.

10. This court has considered the pleadings, evidence and submission by the parties both in the lower court and on this appeal. The applicable principles in so far as the appeal is concerned were restated by the Court of Appeal in the case of Simon Muchemi Atako & Another -Vs- Gordon Osore [2013] eKLR as follows:-

Since this is a first appeal, we are required to consider the evidence adduced before the trial court, evaluate it ourselves and draw our own conclusions, but always bearing in mind and making allowance for the fact that we did not have the opportunity which the trial court had to see and hear the three witnesses who testified. SeeSELLE AND ANOTHER -VS- ASSOCIATED MOTOR BOAT COMPANY LTD & OTHERS [1968] EA 123,RAMJI RATNA AND COMPANY LIMITED VS WOOD PRODUCTS (KENYA) LIMITED, Civil Appeal NO. 117 OF 2001and HANH -VS- SINGH,(1985) KLR 716. We also bear in mind that this Court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the trial judge is shown demonstrably to have acted on a wrong principle in reaching the findings that he did. Nevertheless we are entitled to and will interfere if it appears that the trial judge failed to take account of particular circumstance or probabilities material to an estimate of the evidence or where his or her impression, based on the demeanour of a material witness, is inconsistent with evidence in the case generally. See EPHANTUSMWANGI AND ANOTHER -VS- DUNCAN MWANGI WAMBUGU, [1982-88] 1 KAR 278).

11. In the case of Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that:-

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

12. Having stated at paragraph 3 of the Plaint the capacities in which the Appellants were sued, the Respondent pleaded particulars of the Appellants’ negligence as follows:

“PARTICULARS OF NEGLIGENCE OF THE 1ST AND/OR 2ND DEFENDANT’S SERVANT, EMPLOYEE, AGENT OR AUTHORIZED DRIVER

a.Driving without due care and attention

b.Driving at a speed that was excessive in the circumstances.

c.Driving on the wrong side of the road.

d.Hitting motor vehicle registration KBL 632W on the side.

e.Creating circumstances that precipitated and caused the accident.

f.Failing to keep and/or maintain any or any proper look-out.

g.Failing to exercise the care and skill reasonably expected of a driver of a public service motor vehicle in the circumstances.

h.Failing to brake in time or at all.

i.Failing to stop, to slow down, to swerve or in any other way so to manage and/or control the said motor vehicle and avoid the accident.

j.Failing to have due regard to the safety and well-being of passengers lawfully traveling in the said motor vehicle and in particular the Plaintiff.

k.In so far as is reasonably practicable under the circumstances the plaintiffs will rely on the doctrine of res ipsa loquitor.”

13. A default judgment was recorded against the 1st Appellant on 16th September, 2014. The defence filed on 2nd May, 2014 is entituled

“DEFENDANTS’ WRITTEN STATEMENTS OF DEFENCE”.

The 1st and 2nd Appellants are specifically mentioned therein but not the 3rd Appellant. While denying all the averments in the plaint including negligence, the Appellants pleaded full or contributory negligence against the driver of the motor vehicle KBL 632W in which the Respondent was a passenger, for inter alia:

“5a. Driving at an excessive speed in the circumstance.

b. Encroaching the lawful path of motor vehicle registration number KBJ 922Q.

c. Overtaking carelessly without due regard to oncoming traffic particularly motor vehicle registration number KBJ 922Q.

d. ………………;

e. Failing to heed to the hooting warnings given to him by the driver of motor vehicle Motor Vehicle registration number KBJ 922Q.

f. Abruptly appearing on the way of Motor Vehicle registration KBJ 922Q.

g. Failing to swerve or brake to avoid the accident.

h. Driving without due care and attention to other road users particularly Motor Vehicle registration number KBL 922Q.

i.Being generally careless and negligent.

j. Res Ipsa Loquitor.”

14. However the Appellants did not avail themselves of the provisions of Order 1 Rule 15 of the Civil Procedure Rules which provides for the issuance of notice to the driver or owner of the said motor vehicle as a third party. Nor did they tender any evidence at the trial. While it is true as the Appellants submit that the burden of proof lay with the Respondent to prove their liability, it is disingenuous for the Appellants to propose at this stage, that the driver/owner of the motor vehicle KBL 632Wshould be found at least 50% liable and therefore be condemned unheard. Having failed in the duty to enjoin the third party in this case the Appellants who made allegations against such third party cannot be allowed at this stage to shift liability upon him.

15. Turning to the evidence led at the trial against the Appellants by the Respondent, it is that the driver of the vehicle KBJ 922Q was confronted by a child and a cow at St. John’s area. She stated that:

“…….a cow emerged on the road. It was chasing a small boy. The cow obstructed and confused the driver. After that I was……. I regained consciousness the next day.”

16. In cross-examination she stated:

“I only saw a boy crossing the road. I did not witness how the accident occurred. We were going uphill as other vehicle was coming downhill. The Nissan driver was trying to avoid the cow.”

In re-examination she was more straight forward by stating that the “driver (of matatu) was careless”.

17. PC Adan Jirma (PW1)had already told the court that the accident involved motor vehicle KBJ 922Q Toyota matatu going towards Kinangop which collided with motor vehicle KBL 632W minibus and that the driver of the former motor vehicle was charged with causing death by dangerous driving.

18. The submissions made on this appeal by the Appellants in my view arise from their failure to consider the Respondent’s entire evidence. It is not acceptable to take a witness’s statement in isolation from the rest of her evidence. (See the Court of Appeal’s view in a similar situation in Taura Mtsanganyiko -Vs- Julius Jumbae Mundu [2017] eKLR. The evidence, especially by one party must be read as a whole and not in bits. Piecing together the evidence by PW1 and PW2 a clearer picture of the evidence emerges. This is that the driver of the matatu in which PW2 was travelling KBJ 922Q was obstructed by the cow and boy who had suddenly appeared on the road and became “confused”.

19. Down the hill was the motor vehicle KBL 632Wcoming towards the PW1’s matatu. The two vehicles collided, per the unchallenged evidence by PW1and indeed the driver of KBJ 922Qwas found at fault. The only sensible inference to be made from PW2’s account of the accident is that the driver of KBJ 922Qwhen confronted with the child and cow on the road attempted to avoid hitting them and moved in the direction of the oncoming motor vehicle KBL 632Whence the collision. There was no evidence whatsoever that the driver of the motor vehicle KBL 922Q left his lane thereby causing the collision.

20. In light of the uncontroverted evidence by PW2, the matatu driver when confronted with an emergency was unable to take safe avoiding action and rammed into an oncoming vehicle. This by itself is suggestive of high speed and or lack of care and attention on his part. The case of Baker has no relevance to this case and no amount of hairsplitting by the Appellants at this stage is a good substitute for evidence they could have led at the trial. Indeed some of the theories now being fronted by the Appellants in their submissions relate to factual matters which could have been raised during cross-examination of PW1 and PW2 when they testified. This court is not taken in by such theories.

21. With respect, I am also unable to appreciate how the Appellants hoped to benefit from the decision in Fraciah Njeri. In this case, the trial magistrate in his judgment gave reasons for his findings and these did not include the mere ownership of the motor vehicle KBJ 922Qby the 1st Appellant, against whom at any rate an interlocutory judgment had been entered before the trial. In my own view, all that the trial court was saying in relation to Fraciah’s case was that the evidence of the Respondent concerning liability was unchallenged.

22. The principle quoted by the trial court from Fraciah’s case, applies in a universal way, not just to ownership but to uncontroverted evidence on other issues. This is the general principle extracted from Edward Mariga (through) Stanley Mobisa Mariga -Vs- Nathaniel David Schulter & another [1997] eKLRto the effect that:-

“where a Defendant does not adduce evidence the Plaintiff’s evidence is to be believed as allegations by the defence is not evidence.”

In Fraciah, the court further explained the principle by stating that:

“The other way (of) putting this is that an averment in a pleading is not evidence.”

23. The Respondent herein gave evidence, which on a balance of probabilities, laid the blame on the Appellants for negligence leading to the collision. On their part, the Appellants despite denying negligence and blaming the driver of another vehicle neither enjoined him nor adduced evidence to controvert the Respondent’s evidence.

24. Upon my own review of the evidence I find no reason to fault the findings of the trial court regarding liability and indeed any other key issue. Save that it is not clear why the court omitted to make a finding of liability in respect of the 1st Appellant. On the evidence, all three Appellants were jointly and severally liable and the finding of the lower court leaving out the 1st Appellant is accordingly set aside. This court substitutes therefore a finding of liability against all three Appellants jointly and severally.

25. On the question of quantum, the Appellants have submitted that the trial court erred by failing to consider the Respondent’s admission at the trial that she had healed completely. The Appellants have conceded that the Respondent proved the injuries pleaded in the plaint, however. The record of the Respondent’s testimony confirms that indeed she admitted to have healed completely and was awaiting removal of the metal plate at the fracture site.

26. The Respondent being a lay person had probably no idea what removal of metal places involved but at any rate, if the same required removal, it means that there was still one further pending medical procedure. Besides, she had lost two upper incisor teeth. That is a permanent loss. Although Doctor Omuyoma’s report Exhibit 7 (a) gave the Respondent a fair prognosis, the degree of permanent disability was assessed at 20%. So that whatever words the Respondent may have stated in her evidence, her “complete” healing was subject to the lasting consequences arising from her injuries.

27. The appellate court will not interfere with an award of damages by the trial court merely for the reason that it would have exercised its discretion otherwise. In the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another -Vs- Lubia & Anor. (No. 2) [1985] eKLR the Court of Appeal enunciated principles for ground the appellate court by observing that:

“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. This Court follows the same principles.”

28. In the instant case, the court correctly set out the Respondent’s injuries and compared them with those of the Respondent in Akamba Public Road Services Limited -Vs- Margaret Modani Musalia [2012] eKLR. At paragraph 15 of his judgment the trial magistrate had erroneously observed that:

“The Plaintiff prays for the sum of Kshs 1,500,000/= in general damages for pain, suffering and loss of amenities. She relies on the case of Akamba Public Road Services Limited –Vs- Margaret Modani Musalia [2012] eKLR where the court awarded the sum of KShs 600,000/= for injuries comprising a compound fracture of the right radius and ulna; fracture of the right thumb; fracture of the right tibia and fibula; and cuts and bruises.”(emphasis added)

29. It does not appear from the above that the trial court actually read the Akamba case in full. The Respondent therein had sustained a fracture to the ulna and radius and soft tissue injuries, although accompanied by a 20% permanent disability. The Respondent in the case of George Mathenge Muhingo -Vs- M.D. Patel Nairobi HCC No. 2216 of 1993 quoted by Onyanja J in his decision in Modani is the one who had sustained the sort of injuries erroneously attributed by the lower court herein to the Plaintiff Modaniin the Akamba case.

30. I would agree that the injuries of the Respondent in George Mathenge Muhingo as cited inModanicompare better to the injuries of the instant Respondent. The learned judge allowed the award of Shs 600,000/= toModani to stand on the basis of the case of George Mathenge which had been determined in 2000.

31. Evidently however, the injuries sustained by the Respondent in Akambawere less severe than those in the present case, while those in George Mathenge Muhingo seem just slightly more severe than those sustained by the Respondent herein. It is unfortunate that the trial magistrate failed to note these differences, slight as they may be. While there will hardly ever be two Plaintiffs bearing exactly similar injuries, the little differences often do introduce some form of nuance upon the final award of damages.

32. On this appeal the Appellants urge an award of Shs 400,000/=. In the Easy Coach Limited case which is relied on, the Plaintiff Dinah Habwe had sustained rather severe skeletal injuries compared to the present Respondent. An award of Shs 1 million in general damages by the lower court was upheld on appeal.

33. In George Kinyanjui t/a Climax Coaches & Another -Vs- Hassan Musa Agoi (2016) eKLR, the Plaintiff had suffered the following proven injuries:

“b) blunt trauma to neck.

c) fracture of left clavicle.

d) fracture of the 4th and 5th ribs.

e) blunt trauma to spinal column and right scapula area and

f) dislocation of left shoulder joint.”

34. Although the alleged loss of teeth was found on appeal to be unproved, Kimondo J, after reviewing comparable awards made in other cases in respect of similar injuries and in particular Haron Cheron -Vs- Eastern Produce, (fracture to right ulna and olecranon of right ulna and soft tissue injuries) reviewed downwards the award of general damages from Shs 800,000/= to Shs 450,000/=.

35. In view of all the foregoing I am persuaded that an award of Shs 600,000/= would suffice in the instant case. Special damages are not contested and will stand as before, at Shs 131,277/= and future medical expenses at Shs 50,000/=.

36. Therefore the appeal has succeeded in part with regard to general damages but not liability. The judgment of the lower court is set aside and this court substitutes therefor judgment for the Respondent against all the Appellants, jointly and severally, in the sum of Shs 781,277/= (Seven Hundred Eighty One Thousand Two Hundred Seventy Seven only) with costs and interest.

Delivered and signed at Naivasha on this 3rdday ofNovember, 2017.

In the presence of:-

Miss Kithinji holding brief for Mr. Geno for the Appellants

Miss Amboko for the Respondent absent

C/C – Barasa

C. MEOLI

JUDGE