[2023] KEHC 20969 (KLR)

Lake Victoria North Water Board & another v RB (Minor Suing Through the Father and Next Friend CJO) (Civil Appeal 44 of 2020) [2023] KEHC 20969 (KLR) (28 July 2023) (Judgment)

Neutral citation: [2023] KEHC 20969 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 44 of 2020

DK Kemei, J

July 28, 2023

Between

Lake Victoria North Water Board

1st Appellant

Christopher Muteki

2nd Appellant

and

RB (Minor Suing Through the Father and Next Friend CJO)

Respondent

(Being an Appeal against the Judgement and Decree of the Senior Resident Magistrate at Bungoma (the Honourable G.P. Omondi) in Bungoma CMCC No. 269 of 2014 delivered on 12th February, 2020)

Judgment

1. The appeal herein is against the award of damages by the trial Court in the sum of Kshs. 1, 134,463/= for general and special damages with liability at 100% apportioned to both appellants jointly and severally. The judgment was delivered on 12th February, 2020. Aggrieved by the judgment, the Appellants filed a memorandum of appeal on the 10th March, 2020. The appeal is mainly on the trial Court’s finding on liability and quantum. The grounds of appeal are that: -i.The Honourable trial Court erred in law and/or fact in entertaining judgement in favour of the Respondent on basis of uncorroborated evidence and absence of an eye witness.ii.The Honourable trial Court erred in law and/or fact in entertaining judgement in favour of the Respondent on contradictory evidence.iii.The Honourable trial Court erred in law and/or fact in entering judgement in favour of the Respondent without paying any key consideration on the Defendant’s submissions.iv.The Honourable trial Court erred in law and/or fact in holding the Appellants wholly liable when it chose to rely on medical evidence of no probative value since the author of the medical report or someone as qualified as himself was not called upon to produce the evidence and initial treatment notes were not produced.v.The Honourable trial Court erred in law and/or fact in proceeding to make an award in favour of the Respondent on a claim based on an alleged motor accident when police evidence revealed that the minor’s parent and/or guardian was to blame for the accident.vi.The Honourable trial Court misdirected itself in both law and/or fact in proceeding to award special damages based on receipts that did not bear stamp duty and relying upon profoma invoices when they are not proof of payment.vii.The award of Kshs. 1, 134, 463/= in favour of the Respondent herein was inordinately high, wholly unjustified, against the principles of law and non-merited.

2. The Appellants prayed for orders that: the appeal herein be allowed; the judgement of the Honourable trial Court, be set aside and replaced with one dismissing the Plaintiff/Respondent’s case; in the event that the Plaintiff/Respondent’s case is determined meritorious, the Honourable Court be pleased to reduce and/or reassess the award on quantum; and the Respondent herein be condemned in the costs of the appeal.

3. This being the first appeal, I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123.

4. The Plaintiff/Respondent suing as father and next friend of RB, filed a suit against the Defendants/Appellants vide an amended Plaint dated 18th November 2015 seeking for general and special damages for the injuries he sustained when he was involved in an accident on 3rd May 2013 along Kimilili-Chwele Road. According to him, the accident occurred when motor vehicle registration number KAZ 926L driven by the 2nd Appellant lost control and knocked down the Plaintiff/Respondent causing him serious injuries. The Plaintiff/Respondent blamed the Defendants for the accident.

5. The 1st Defendant/Appellant denied the Plaintiff/Respondent’s claim vide a defence dated 30th November 2015. The 2nd Defendant/Appellant never entered appearance nor filed a defence and thus interlocutory judgement was entered against him.

6. The Plaintiff/Respondent relied on two witnesses. The Plaintiff/Respondent, CJO testified as PW1. According to him, RB is his eldest son and that he filed this case on his behalf. He told the Court that on 3rd May 2013 while at his farm, he received a call from his wife telling him that RB had been hit by a motor vehicle while on his way home from the library. He proceeded to the scene of the accident and found people gathered with the motor vehicle parked next to the gate of the hospital. He observed that there was blood on the murram on the side of the road. He did not find RB at the scene and he learnt that he had been rushed to Kimilili District Hospital (now Kimilili County Hospital). He proceeded to the Hospital and found him receiving first aid before he was transferred to Medihill Hospital. He was discharged on 26th May 2013 after payment of bills. He produced in Court the discharge summary from Medihill Hospital as PMF2 and the x-ray request form from MRI dated 24th April 2014 as PEXH 3. He told the Court that the charges incurred at the hospital was Kshs. 333,000/= and produced an invoice on the same dated 26th May 2013 as PEXH4. He paid a total of Kshs. 344,000/= and he produced a bundle of 10 receipts totaling to Kshs. 344,000/= as PEXH 5a-5j. According to him, RB attended another hospital after discharge, namely St. Luke’s Otheorpedic and Trauma Hospital in Eldoret. An x-ray was done and he paid Kshs. 1,100/= for consultation and Kshs. 980/= for x-ray. He produced the same in Court as Radiology request form as PEXH6 and two receipts as PEXH7a and 7b for Kshs. 1100/= and Kshs. 980/= respectively. He told the Court that RB attended another hospital, Bungoma District Hospital, where he was treated and the plates joining the femur was to be removed. They were further referred to Medihill but opted to head to Kakamega Orthopedic Hospital where the same was removed. At Bungoma District Hospital, he spent Kshs. 4, 400/= but he did not collect the receipt. He produced an invoice from Bungoma District Hospital dated 18th March 2014 as PEXH8 and receipts for buying drugs from Mana Chemist Ltd (Eldoret) dated 26th May 2013 1800/=as PEXH9 and he later took RB to doctor S.I Aluda in Eldoret on 10th May 2014 and paid Kshs. 2,000/=. He availed in Court a medical report by Doctor Aluda dated 10th May 2015 as PMFI 10a and a receipt for Kshs. 2,000/= dated 10th May 2014 by Dr. Aluda produced and marked as PEXH10b. He obtained a P3 form which it was filed at Kimilili District Hospital as PMFI11. He further produced the Police Abstract report dated 3rd May 2013 as PMFI 12 and a demand letter to the Defendant dated 15th July 2013 as PEXH13a and certificate of posting as PEXH13b and 13c. A notice was issued to the Insurance on 10th September 2013 as PEXH14a and courier receipt for Kshs. 200 dated 20th September 2013 as PEXH 14b.

7. He testified that he did not witness the accident but on arriving at the scene, the motor vehicle was still at the scene and it’s registration No. was KAZ 926L. He prayed for compensation.

8. On cross examination, he told the Court that he did not witness the accident. According to him, R was born in the year 2006 and that he was around seven years and that the area of the accident was a busy area in terms of both human and motor vehicle traffic. He told the Court that at Medihill Hospital the receipts are computer generated and thus no duty stamp on them. He told the Court that he was not aware if a search was done to confirm ownership and when referred to the copy of log book marked as DMFI 1 for a motor vehicle registration No. KAZ 926L he noted that it was the one that hit his son and it showed the owner as Sino Hydro Corporation Limited.

9. On re-examination, he told the Court that it was not the first time RB was going to the library and that there were blood spots on the tarmac and murram. According to him, RB was in the company of other children.

10. PW2 was Labert Steward Mugare who testified that he works at the Kenya National Library at Kisumu Branch. According to him, on 3rd May 2013 while working at Kenya National Library at Kimilili Branch he saw RB who was a member of the library and whom he had known. He told the Court that on 3rd May 2013 at around noon while at the office RB came to the library in a group and they showed up at around 10. 30am and left at around 12 to 1pm. The library is along the road and when there one can see the road clearly. As the children were leaving, he heard a bang and people started screaming. He rushed to see what was happening and found it was RB on the left side of the road facing Kimilili and that he was on the edge of the tarmac. He testified that the motor vehicle pulled him for about five meters and it was at the scene. He told the Court that the motor vehicle registration number was KAZ 926L and it stopped about 50 metres from the point of impact. He blamed the driver of the motor vehicle for the accident as the area was very busy due to closed schools and that the point of impact to where the motor vehicle stopped clearly showed that he was driving at a high speed.

11. On cross examination, he told the Court that he did not witness the vehicle hitting RB and while at the scene he did not see the friends of RB and that the motor vehicle did not leave the tarmac.

12. PW3 was Steven Wamalwa Kawa who told the Court that he resides at Kimilili. According to him, on 3rd May 2013 at around noon doing his work near KCC and Chwele-Kimilili road, he heard braking of a motor vehicle then a bang. He saw a boy being hit and a motor vehicle stopped in front. The motor vehicle stopped after 50 metres from his kiosk and that the road is about 3 metres only. He told the Court that he did not see the motor vehicle before the accident but what made him check was the sound of a vehicle applying brakes then the bang. He testified that the body was on the side of the road on the murram and that there was blood on the boy with no movements. He told the Court that the driver of the motor vehicle registration number KAZ 926L double cabin Toyota white was to blame for the accident as he was driving at high speed.

13. On cross-examination, he told the Court that he did not see the motor vehicle hitting the boy but heard the sound and went to investigate the same immediately.

14. On re-examination, he told the Court that he heard the sound of brakes and that the motor vehicle did not stop on the spot.

15. PW4 was Patrick Wamalwa Waswa testified that he works at the butchery at Kapkatek market and that on 3rd May 2013 at around noon while at Kimilili D.C’s offices, he saw the motor vehicle prior to the accident which was heading towards Kimilili. It was being driven at a high speed and about 50 metres from the place where it passed him. He told the Court that he heard a loud bang and on checking, he saw a boy knocked down and that the motor vehicle moved past him for about 50 metres before stopping.

16. On cross-examination, he told the Court that he saw the boy before he was hit and who was exiting the library gate. He did not see the motor vehicle hit the boy but heard the bang. The motor vehicle was white.

17. On re-examination, he told the Court that he saw the motor vehicle pass him before the accident and that the accident occurred about 50 metres from where he was.

18. PW5 was No. 66640 P.C Cleophas Juma who is attached to Kimilili Police Station. He told the Court that he is aware of the road traffic accident that occurred on 3rd May 2013 and that it was reported at Kimilili Police station. According to him, the same involved motor vehicle registration no. KAZ 926L Toyota Double Cabin and a juvenile aged six years old RB. He told the Court that the owner of the motor vehicle is Lake Victoria North Water Services of P.O Box 180 Chwele. The driver was Christopher Muteki. He told the Court that investigations were done by P.C Mutari and he produced the police file and the letter written to the DPP confirming the accident occurred. It confirmed that the driver was driving at high speed. He produced the Police Abstract in Court as PEXH12.

19. On cross-examination, he told the Court that he was not the investigating officer and that the driver was not charged.

20. PW6 was Laban Kipkuri who testified that he works at Medihill Hospital as the accounts manager and that Ryan Bunyasi was treated at their hospital. He was admitted on 3rd May 2013 and discharged on 16th May 2013.

21. Vide Court orders dated 22nd May 2019, he trial Magistrate pursuant to section 33 of the Evidence Act allowed the production of the medical report prepared by the late Dr. Aluda S. to be produced as PEXH10a as the maker was deceased and a case summary from Medihill hospital be produced as PEXH2 as the same was prepared by Dr. Panclu who had relocated to India.

22. At that juncture, the Plaintiff/Respondent and the Defendants/Appellants closed their respective cases.

23. The judgment was delivered on 12th February, 2020 where the trial Court made an award of damages in the sum of Kshs. 1, 134,463/= for general and special damages with liability at 50% apportioned to the 1st Appellant and 50% to the 2nd Appellant respectively. The Plaintiff/Respondent was awarded the costs of the suit and interests.

24. The appeal was canvassed by way of written submissions. Only the Respondents filed and exchanged his respective submissions.

25. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions. See Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.First, on first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

26. The key issues for determination are on liability and quantum. On the issue of liability, the law is clear that he who alleges must prove. The term burden of proof draws from the Latin phrase ‘’Onus Probandi’’ and when we talk of burden we sometimes talk of onus.

27. Burden of proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:i.Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.ii.The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

28. Section 107 of Evidence Act defines burden of proof as– of essence the burden of proof is proving the matter in court. Subsection (2) refers to the legal burden of proof.

29. Section 109 of the Evidence Act exemplifies the rule in Section 107 on proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the Court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof then one will not succeed in as far as that fact is concerned.

30. It follows that the initial burden of proof lay on the Plaintiff, the Respondent in this appeal, but the same could shift to the Defendants, the Appellants in this appeal depending on the circumstances of the case.

31. A cursory look at the record of appeal reveals that indeed on a balance of probabilities there was sufficient evidence to prove, at least on a balance of probability, that indeed a road traffic accident involving the 1st Appellant’s motor vehicle and RB, the pedestrian, occurred along Kimilili-Chwele road on the material date and that the 1st Appellant was the owner of the vehicle. There is no dispute that there was no eye witness present at the scene of the accident save for the 2nd Appellant who was the driver of the vehicle but made no appearance in this matter. There was no eye witness and that the Respondent’s case on liability rested on the testimony of the police officer (PW5) who gave evidence in Court to the effect that the driver was driving at high speed and further stated that minor was on the road without an adult accompanying him yet there was no pedestrian crossing and that the place was dangerous for minors to cross. The witness blamed both the driver and parent and/or guardian of the victim for the accident. Unfortunately, PW5 testified that both the parties herein were to blame for the accident as the minor was on the road without an adult but based on the police file and the letter to the DPP it was confirmed that the 2nd Appellant was driving at a high speed. The trial Court was left to ‘‘ponder’’ on whether the Respondent had proved that the Appellants were to blame for the accident despite their failure to rebut the Respondent’s evidence.

32. The trial Court found that the Respondent had discharged the burden of proof. The question paused in this appeal is whether the trial court was correct in arriving at that conclusion based on the evidence tendered.

33. While it is true that none of the Respondent’s witnesses gave a first-hand account of how the accident occurred, the testimony of PW2-PW4 in my view gave enough indications for the trial Court to draw some inferences. The reason why I take this position is that accidents do happen and can be witnessed but at times it can happen where there are no eye witnesses like it occurred in this instance. The only eye witness is the driver who stood blamed for the accident and in this case the 2nd Appellant did not make any appearance or tender a defence.

34. The evidence tendered by PW2-PW4 does not sufficiently explain how the accident occurred, but the same was well corroborated on how the motor vehicle registration KAZ 926L was being driven and that they all heard the loud bang. In such situations, though it is trite that in action for negligence, the burden of proof rests upon the Plaintiff alleging it to establish the element of tort, negligence can be inferred in the absence of any other plausible explanation on how the accident occurred. This is the rationale behind the doctrine of res ipsa loquitor. In the case of Sally Kibii and Another versus Francis Ogaro [2012] eKLR, the Court was faced with such a scenario and noted the following: -‘‘The Plaintiff in the trial only produced two witnesses who admitted that they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was caused by collusion of two vehicles and investigation were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to blame and the absence of an eye witness diminishes the appellant’s chance to prove a case of negligence against the defendant….to successfully apply this doctrine (res ipsa loquitor) there must be proof of facts that are consistent with negligence on the part of the defendant as against any other cause…….can safely presume that the mere fact that two cars being KAK 746J and KAG 331K collided, negligence was on the part of the defendant’s cause and not the other. The plaintiff must prove fact which give rise to what may be called res-ipsa loquitor situation.’’

35. In this matter, there is no denying the fact that the person who could have been in a better position to explain what happened during the incident, is a minor. I believe that the police officer summoned to testify even though he took no part in the investigation of the accident and turned up in Court with the police file and the letter to the DPP to testify and produce the Police Abstract gave a version as to how the accident took place. His evidence was of assistance to the trial Court in determining how the accident occurred and who was to blame.

36. This Court has also noted from the Respondent’s pleadings that he did plead the doctrines of res ipsa loquitor. I have considered the circumstances of the accident. It is clear that the accident occurred in broad day light (at about 12. 00 PM). According to the evidence of PW2-PW4, the driver of KAZ 926L, the 2nd Appellant, was driving at a high speed based on the impact and the tyres marks on the road. The fact that the minor, RB was on the road without an adult in my view could not have contributed to the occurrence of the accident. The only thing that may have contributed to the fatality of the accident is perhaps the fact that the 2nd Appellant was not considerate of the other road users considering that the road was busy and the impact leading to the severe injuries of the minor showed that he was driving at high speed. Indeed, it transpired that upon hitting the victim, the vehicle dragged him for about five metres before it stopped. Looking at the circumstances, I find that the doctrine of res ipsa loquitur applies. The Court of Appeal in Fred Ben Okoth versus Equator Bottlers Ltd [2015] held in the relevant part as follows: -‘‘Proof of causation is crucial to the success of most of the action in tort, except in instances where the doctrine of ‘‘res ipsa’’ is applicable.’’

37. In this case, Plaintiff/Respondent even though he did not witness the accident and the police officer called to testify was not the investigating officer, this Court has found that the evidence tendered by the Respondents witnesses (PW2-PW4) shows that there was negligence to some degree to be inferred against the Appellants. This Court cannot disregard the undeniable fact that access to justice to a victim who cannot speak for themselves like in this instance would be a tall order unless Courts consider keenly circumstances obtaining with a view to dispensing substantial justice. In my view, the absence of an eye witness in itself should not be an impediment to justice particularly where the doctrine of res ipsa loquitor applies.

38. Taking everything into consideration, this Court finds that the trial Court was right when it found that the Appellants jointly liable for the accident and that the Respondent had proved his case on a balance of probabilities. I will therefore uphold the holding of the trial Court on liability.

39. On the quantum, I must start by pointing out that it is settled law that the award of damages is always at the discretion of the trial court. An appellate court should not interfere with the trial court’s award on damages unless it is satisfied that in awarding the damages, the trial court misapprehended the facts or applied the wrong legal principles or that the award was either too high or too low as to lead to an inference that it was an erroneous estimate of the loss or damage suffered. See: Mariga V Masila, [1984] KLR 251. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated:“[I]t is firmly established that this court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.”

40. On whether or not to interfere with the quantum, the court has to bear in mind the following principles on assessment of damages:i.Damages should not be inordinately too high or too low;ii.Damages are meant to compensate a party for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered;iii.Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts;iv.Where past awards are taken into consideration as guide, an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shilling then at the time of the judgment.(See Kenya Power Lighting Company limited & Another -v- Zakayo Saitoti Naingola & Another (2008) eKLR.)

41. What is of concern to this Court is whether the learned trial magistrate erred in both law and fact in awarding damages of Kshs. 1, 134, 463/=. I have perused and examined the record in its entirety. The trial magistrate heard the evidence of the Respondent and admitted medical reports corroborating the nature of injuries sustained.

42. According to the medical report by the late DR. S.I. Aluda dated 10th May 2014 the injuries suffered by the Plaintiff/Respondent were as follows:i.Head injuryii.The scalp was swollen and tender with a deep cut wound.iii.Blunt trauma to the chest which was tender.iv.Blunt trauma to the right shoulder which was tender.v.A fracture of the right scapula.vi.A fracture of the right clavicle.vii.Blunt trauma to the right arm which was weak.viii.A fracture of the right femur.

43. The other critical point of convergence for this Court is to bear in mind that the award of damages is an exercise of discretion by the trial Court based on the evidence and impressions on demeanour of witnesses made by the learned trial magistrate which advantage an appellate Court by its mode of delivery lacks.

44. I further wish to point out that in assessing compensatory damages, the law seeks at most to indemnify the victim for the loss suffered, not to mulch the tortfeasor for the injury he has caused. See the case of Lim v Camden HA {1980} AC 174. There is a distinct difference between the pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low-level soft tissue injuries.

45. In view of the foregoing, I am persuaded that the award made by the learned trial magistrate fell within the threshold of other comparable awards, hence there is no need for interference. However, I am not persuaded that the sum suggested by the Appellants as an award for general damages is reasonable and fair in light of the injuries suffered and the current economic inflation rate. Further, it is noted that the cases cited by the Appellants herein were decided several years ago. For instance, in George Kinyanjui t/a Climax Coaches & Another vs Hassan Musa Agoi (2016) eKLR where the claimant suffered fractures and multiple soft tissue injuries including trauma to the neck and chest, fracture of the 4th and 5th rib, dislocation of the shoulder, fracture of the left clavicle, blunt trauma to the spinal column and right scapula area. The Court awarded the claimant Kshs. 450,000/= in general damages. Again, in Odinga Jactone Ouma vs Moureen Achieng Odera (2016) eKLR Kisumu HCCA no. 1 of 2014 where the claimant suffered a fracture of the first and 2nd ribs, shoulder dislocation on the left and also a fracture on the left metatarsal, head injury concussion and psychological trauma and that the injuries had healed with multiple hypertrophic scars. The Court awarded the claimant Kshs. 180,000/= in general damages.

46. I find the trial court’s award of Kshs. 800,000/= to be reasonable and adequate to compensate for the injuries suffered by the Respondent as the same is not inordinately high as to represent an erroneous estimate of the damages. It is noted that the Respondent spent a long period in hospital due to the injuries.

47. The test to be applied in an award of special damages is clearly articulated in the cases of Mariam Maghema Ali v Jackson M. Nyambu T/A Sisera Store Civil Appeal No. 5 of 1990 and Idi Ayub Shaban v City Council of Nairobi 1982 – 1988 IKAR 681 which laid down the principle that special damages in addition to being pleaded must be strictly proved. Consequently, on special damages I find that the Respondent had clearly prayed for Kshs. 353,200/= as special damages but only proved Kshs. 334, 463/=as special damages and as such I find no reason to vary the learned trial magistrate’s decision thereon.

48. Accordingly, I find no merit in this appeal. The same is dismissed with costs.

It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 28TH DAY OF JULY, 2023. D.KEMEIJUDGEIn the presence of:Otieno for AppellantsOkara for Respondent*Kizito Court Assistant