[2017] KEHC 4310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CIVIL APPEAL NO.28 OF 2015

IOO – MINOR (suing through father and next friend

MOR…….................................................................................PLAINTIFF/APPELLANT

VERSUS

FRANCISCAN SISTERS OF THE IMMACULATE….…..RESPONDENT/DEFENDANT

(Being an appeal from the Judgment of Hon. J. Ndururi (PM) in Kericho CM CC No.232 of 2014)

JUDGMENT

1. This appeal arises out of the decision of Hon. Ndururi, Principal Magistrate, dated 14th July 2015. In the said decision, the Honourable Principal Magistrate dismissed the plaintiff/appellant’s claim against the respondent/defendant in the suit, with costs.

2. The appellant’s claim against the respondent arose out of a road traffic accident that occurred on 14th January 2014 along the Kericho-Nyagacho road. In his plaint dated 16th June 2014, the minor plaintiff/appellant alleges that he was lawfully and carefully walking off the said road when the defendant, his driver, agent and or servant drove motor vehicle registration number KBL 789F Toyota van so carelessly, recklessly and/or negligently without due care and attention to pedestrians that he caused the said vehicle to violently hit the plaintiff thereby causing him serious injuries.

3. In its statement of defence dated 2nd August 2014, the defendant denied that it was the registered owner of motor vehicle KBC 789F Toyota van, denied the particulars set out in the plaint with respect to the occurrence of the accident, and denied that the occurrence of the accident was attributable to the negligence or carelessness of its driver or agent. It attributed the accident, in the alternative, to the negligence of the plaintiff’s father or of the minor himself.

4. After hearing the respective cases of the parties, the court analysed the issues presented for determination against the evidence adduced by the parties. The trial magistrate reached the conclusion that the defendant/respondent was the registered owner of the motor vehicle involved in the accident, and that the plaintiff/appellant had sustained serious injuries as a result of the accident.

5. With respect to the issue of liability, the court found that it turned on the evidence of PW2, Thomas Okuku Owino, the only eye witness called by the plaintiff, and DW1, David Kipsui, the driver of the motor vehicle. He found that PW2 had not actually witnessed the defendant’s motor vehicle knock down the child. DW1’s evidence was that it was not his motor vehicle that knocked down the child, but another motor vehicle, and that the area is usually crowded in the morning with school children, motor cycles and public service vehicles. In the court’s view, the case turned on PW2’s word against that of DW1, and the plaintiff had failed to discharge the burden of proving negligence against the defendant. He therefore found against the plaintiff.

6. Aggrieved by the decision of the trial court, the appellant has filed the present appeal in which he raises the following grounds in his Memorandum of Appeal dated 7th August 2015:

1. That the trial magistrate erred in law and in fact by not appreciating that the standard of proof in civil cases is on a balance of probability.

2. That the trial magistrate erred in law and in fact by wrongly evaluating tendered evidence by failing to consider the fact that the respondent’s evidence corroborated that appellant.

3. That the trial magistrate erred in law and in fact by wrongly disregarding the evidential value of the police abstract which confirmed the accident and which itself was not controverted.

4. That the trial magistrate erred in law and in fact by failing to appreciate that all the documents produced in support of the appellant’s case including the second medical report made at the behest of the respondent supported the appellant’s case as to the occurrence of the accident and thereby arrived at wrong conclusion.

5. The learned magistrate erred in law and fact by wrongly and/or grossly under assessing damages that would have been awarded to the appellant even after dismissing the appellant’s case owing to severe injuries the appellant suffered.

7. As this is a first appeal, I am under a duty to evaluate the evidence before the trial court and reach my own conclusion- Selle vs Associated Boat Co. Ltd [1969] EA 123. In doing so, I must bear in mind that I have neither seen nor heard the witnesses.

The Evidence

8. The plaintiff/appellant called 2 witnesses. The first, PW1, was the plaintiff’s father. His evidence was that his son was knocked down on 14th January 2014 along the Kericho-Nyagacho road while on the way to school. He was injured on the head and treated at various hospitals. PW1 relied on various documents with respect to the injuries sustained by the plaintiff. He also produced a birth certificate in respect of the minor which showed that he was 5 years old at the time of the accident.

9. PW2 was Thomas Okuku Owino. His evidence was that he was on the way to work on the material day at about 7. 00 a.m. He was going uphill towards town, and was ahead of some school children whom he had just passed. That a vehicle approached from behind. He heard a bang behind him and turned, and saw that the vehicle had knocked down one child. That the driver of the vehicle wanted to flee the scene but members of the public blocked him. According to PW2, the vehicle’s registration number was KBC 789 F.

10. It was his evidence that he saw the child having been knocked down on the left side of the road, and he blamed the driver of the vehicle for the accident. In cross-examination, he stated that he saw the vehicle after it knocked down the child. He did not see any other vehicle at the scene apart from the respondent’s vehicle. The plaintiff then closed his case.

11. The defence called one witness, the driver of the vehicle, one David Kipsui. He denied causing an accident or hitting the child. His evidence was that he was driving slowly as the road is rough and there are many pedestrians and motor cycles at the scene, which is near St Leonard’s hospital. He also testified that there was a junction to the left of the stage where children are dropped and matatus and motorcycles make u-turns after dropping children.

12. His evidence was that he passed the section slowly, then after 10-13 metres, heard women screaming pointing at his vehicle and saying that he had knocked down a child. He stopped his vehicle and walked back to the scene, where people accused him of knocking down the child. He did not see the children before the accident, and he denied that he could have knocked down the child without realizing it. He was never charged with causing an accident.

13. In cross-examination, he maintained that he was driving in the middle of the road as it is a narrow road. He also maintained that his vehicle was not involved in the accident, and that there were other vehicles and motor cycles on the road.

The Submissions

14. The parties filed written submissions which they asked the court to rely on in rendering its verdict.

15. In his submissions dated 6th December 2016, the appellant argued his first 4 grounds, which related to the question of liability, together. He submitted, first, that from an analysis of the evidence, an accident had occurred and the child was injured as a result. In his view, the trial magistrate should have considered this evidence, which was corroborated by the defendant.

16. It was his submission, further, that the trial court failed to appreciate the evidential value of the police abstract which confirmed the accident. In his view, the trial court erred in law and fact in relying only on a few exhibits for analysis and disregarding all other documents produced in support of the appellant’s case. The trial court was therefore wrong to rely on testimonies only and not consider the documents relied on.

17. The submissions from the respondent on this point are that the trial Magistrate correctly evaluated and considered the evidence of both parties in the matter in reaching his decision on liability. In the respondent’s view, the evidence of PW1 was hearsay as he did not witness the accident. As for the evidence of PW2, it was unreliable as it was full of contradictions. By way of illustration, the respondent submitted that PW2 had testified that he saw the vehicle hit the child yet he also stated that the vehicle was coming from behind him.

18. With respect to the evidence of DW1, the respondent submitted, inter alia, that the mere fact that DW1 did not realize that he had hit anyone shows that he actually did not hit the minor, and that the minor was probably hit by some other vehicle or something.

19. The appellant’s 5th ground of appeal related to the quantum of damages. The plaintiff/appellant was aggrieved by the amount of damages assessed by the trial court. In his view, the medical evidence tendered with regard to the injuries suffered by the plaintiff/appellant should have guided the trial court in reasonably assessing the quantum of damages. The appellant urged the court to reassess the damages and allow the appeal with costs to the appellant.

20. The response from the respondent on the issue of quantum was to reiterate its submission before the lower court that an award of Kshs 120,000/= would have been ideal to compensate the plaintiff for general damages.

Analysis and Determination

21. I have considered the record of appeal and the submissions of the parties in this appeal. In my view, this appeal raised two main issues:

i. Whether the trial court erred in law and fact in dismissing the appellant’s case.

ii. Whether the trial court erred in the assessment of damages due to the appellant for the injuries sustained.

22. In considering the above issues, I take into account the facts that emerged from the evidence before the trial court which were not in contention.

23. First, there is no dispute that an accident occurred involving the minor plaintiff and a motor vehicle, as a result of which the minor sustained serious injuries to the face and head. The police abstract produced by consent of the parties on 26th May 2015 indicates that an accident involving the minor, Ivan Omondi Otieno, occurred on 14th January 2014.

24. As the medical reports by Dr. Wokabi dated 4th April 2014 and Dr. Omuyoma dated 15th May 2014 show, the plaintiff sustained a major extensive degloving injury on the frontal scalp and forehead, the underlying scalp bone was exposed, but had not suffered any fractures. He had suffered a lot of pain and blood loss from the injury and has been left quite disfigured.

25. The evidence from the appellant’s second witness was that he had passed some children. He had then heard a loud bang and women screaming. He had turned and seen that a vehicle had knocked down a child. He stated that the driver of the vehicle wanted to flee but was stopped by members of the public.

26. The finding of the trial court was that this was a case of PW2’s word against that of DW1. In his view, to tilt the balance either way, some other independent evidence was necessary. While the trial court was correct in this assessment, I am satisfied that he failed to properly evaluate the evidence before him, which would have led to a different conclusion with respect to liability for the accident. I say this for several reasons.

27. First, there was the police abstract which was not challenged. In fact, it was admitted into the record by consent. The police abstract indicates that an accident occurred on the material day and time involving the plaintiff/appellant and the respondent’s motor vehicle. While the evidence of DW1 was that the child was knocked down by another vehicle, there was no evidence of other vehicles at the time of the accident. PW2 was categorical that there was no other vehicle at the scene.

28. Add to this the evidence of DW1 that “I did not see the children before the accident” weighed against the evidence of PW2 that he had passed some children, and DW1’s evidence that the area where the accident occurred usually is where children are dropped, and one cannot help but draw the inference that the respondent’s driver did hit the plaintiff/appellant, whom he had not seen, and caused the injuries that the minor sustained. A further inference can be drawn that he drove motor vehicle registration number KBC 789F without due care and attention for the safety of pedestrians such as the plaintiff. Accordingly, I would, and hereby do, set aside the trial court’s finding that the plaintiff/appellant had not proved his case to the required standard.

29. The trial court made a finding that issues (a), (d) and (h) which had been agreed as falling for determination had been admitted by the respondent. These issues were that the defendant was the registered owner of the motor vehicle, that the plaintiff/appellant suffered the alleged injuries, and that the requisite notice was issued to the defendant prior to the filing of the suit. In light of my findings above, issue number f) must also be determined in the affirmative- the defendant is vicariously liable for the acts or omission of its driver.

30. Issue number (g) before the trial court was whether the plaintiff can be held partially or wholly to have contributed to the accident. The evidence before me indicates that the plaintiff was 5 years old at the time of the accident. In line with the decision in Butt vs Khan Civil Appeal No.40 of 1997 [1982-88] 1 KAR 1 among others, a child of such tender years cannot normally be held to be liable in contributory negligence. I therefore find the respondent wholly to blame for the accident.

31. The last issue relates to the quantum of damages to be awarded to the plaintiff/appellant. The trial court made an award of ksh.7,700 in respect of special damages, which he found had been proved by documentary evidence.

32. As for special damages, the plaintiff had proposed an award of Ksh.1,800,000. The plaintiff had relied before the trial court on Civil Appeal No. 1045 of 2004-Kiiru Tea Factory & Another vs Peterson Watheka Wanjohi.The respondent relied on the decision inHCCA No. 180 of 2005-Simon Muchemi Atako & Another vs Gordon Oseseto propose an award in damages of kshs.120,000. Upon considering the injuries sustained by the plaintiff/appellant, which he noted were extensive and the resultant scars would definitely have an adverse effect on the plaintiff/appellant, the trial magistrate assessed the damages he would have awarded the plaintiff/appellant, had he found in his favour, at kshs.700,000.

33. The law is that an appellate court will not interfere with a trial court’s award in damages unless the award is so inordinately high or low as to represent an entirely erroneous estimate, or it is shown that the court proceeded on wrong principles or misapprehended the evidence in some material respect and so arrived at a figure that was inordinately high or low.

34. In this case, I am satisfied that the amount assessed was reasonable in the circumstances. I have reached this conclusion upon considering various authorities, including the ones relied on by the parties. In Kiiru Tea Factory & Another vs Peterson Watheka Wanjohi, a decision of Waweru J rendered in 2008, the plaintiff had suffered a degloving injury on the right hand with extensive skin and muscle loss on the forearm. He had fractures of the radius and ulna bones. He also had a fracture of the iliac bone in the pelvis. He was hospitalized for three and a half months, and his arm was left more or less functionless, with disability assessed at 15%-45%. The injuries sustained by the plaintiff in that case were more serious than those suffered by the appellant in this case, and the High Court upheld the award of Kshs.800,000 in general damages.

35. In Simon Muchemi Atako & Another vs Gordon Osese,the Court of Appeal, in its decision dated 8th November 2013, made an award in general damages of Kshs.120,000. The court noted that the appellants suffered mainly soft tissues injuries which had healed well, leaving no permanent or residual disability. It is therefore not a good guide in assessing damages due to the plaintiff in this case.

36. The result, therefore is that the response to the issues earlier identified as falling for determination in this appeal is in the affirmative with respect to the first issue, and in the negative with respect to the second. I find first, that the trial court erred in law and fact in dismissing the appellant’s case. Secondly, that the trial court cannot be faulted with respect to its assessment of damages due to the appellant for the injuries sustained.

37. Accordingly, I hereby allow the appeal. I find that the respondent’s driver was wholly responsible for the accident, and the respondent is vicariously liable for his acts or omissions.

38. With respect to damages, I make an award of Kshs.7,700 in special damages which the trial court found had been proved. I further make an award of Kenya Shillings Seven Hundred Thousand (Kshs.700,000) in general damages for the injuries sustained by the plaintiff/appellant.

39. The appellant shall also have the costs of the suit in the lower court and in this court together with interest on the costs and damages

40. Orders accordingly.

Dated, Delivered and Signed at Kericho this 17th day of July 2017.

MUMBI NGUGI

JUDGE