[2022] KEHC 14355 (KLR)

Maina v Obonyo (Civil Appeal E31 of 2021) [2022] KEHC 14355 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14355 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E31 of 2021

JN Njagi, J

February 11, 2022

Between

Florence Wangui Maina

Appellant

and

James Nyambaso Obonyo

Respondent

Judgment

1. The respondent had sued the appellant at the lower court seeking general and special damages after he was knocked down by the appellant`s motor vehicle No KCN xxxx Toyota Noah while he was riding a motor cycle registration No KMDS xxxx along Kisii-Nyamira road. The lower court found that it could not from the evidence adduced before it determines as to who between the appellant`s driver and the motor cyclist was to blame for occasioning the accident. It accordingly ruled that both the motor vehicle driver and the motor cyclist were equally to blame for the accident and apportioned liability equally between the two. The court thereupon assessed damages and awarded the respondent Ksh 600,000/- in general damages. The appellant was aggrieved by the decision and filed the instant appeal.

2. The grounds of appeal are that:1. That the learned trial magistrate erred and misdirected himself in finding negligence against the appellant without any evidence at all.2. That the learned trial magistrate erred and misdirected himself in law in apportioning liability against the appellant.3. That the learned trial magistrate erred in law and in fact in completely ignoring the evidence of DW1 and thereby failed to take into account evidence that he ought to have considered.4. That the learned trial magistrate erred in law and fact by holding that the defendant was 50% liable for causing the accident, while the evidence showed that it is the rider who abruptly entered the road from the side and hit the appellant’s motor vehicle on the left side without ascertaining if it was safe to do so.5. That the learned trial magistrate’s decision apportioning liability against the appellant is unsound and unsupportable on the evidence, his findings on negligence and the applicable law.6. That the learned trial magistrate failed to consider all arguments and submissions made by the appellant and/or ignored the same in totality on the question of liability.7. That the learned trial magistrate erred in awarding damages on injuries that were inconsistent and injuries that were not established by the respondent.8. That the learned trial magistrate erred in law and in fact in failing to find that the medical evidence produced did not support the injuries pleaded.9. That the learned trial magistrate erred in fact and in law in failing to appreciate the principles governing the award of damages, namely that like cases attract similar awards, and ignoring completely the appellant’ submissions thereon.10)That the learned trial magistrate erred in law and in fact in making an award of kshs 750,000/= (?) following inapplicable authorities thus ignoring the principle of law that cases with similar injuries attract comparable awards and thus made an award that was arbitrary, capricious and inordinately high, erroneous, and which amounts to a miscarriage of justice.11. That the learned trial magistrate ignored the appellants submissions paid in service and never referred to any of the precedents on general damages cited before him, thus coming to a wrong decision on the quantum.

3. The appeal was canvassed by way of written submissions of the respective advocates for the parties, Peter Karanja Advocate appearing for the appellant and TO Nyangosi & Co Advocates representing the respondent.

4. The appellant is challenging the trial court`s findings on liability and the amount of quantum it awarded the respondent. I will consider the appeal on these two broad issues.

Liability– 5. It was the evidence of the respondent who was PW1 in his case that he was riding a motor cycle and joined the Kisii- Kericho highway from a feeder road. That after he joined the highway he proceeded for a short distance and he was knocked down by the appellant`s motor vehicle that was driving on the highway. He was carrying a pillion passenger. He and his passenger were injured. He blamed the appellant`s driver for occasioning the accident. He went for treatment at Nyamira County Referral Hospital. He later sued the appellant.

6. The respondent called 2 witnesses -Dr Ombati PW2 of Nyamira County Referral Hospital who produced the out-patient card, the P3 form and the medical report as exhibits and Dr Nyariki PW3 of the same hospital who attended to the respondent at the ward at the said hospital.

7. The appellant on the other hand called one witness, Amos Njogu DW1 who was the driver of the appellant`s motor vehicle at the material time. It was the evidence of DW1 that he was driving along the stated road when he saw a motor cycle stationary at a junction. That when he reached near the junction the motor cycle suddenly entered into the main road and rammed into the left front side of his vehicle near the head lamp. He applied breaks and stopped. The cyclist and his passenger had fallen on the left side of the road. He reported to the police who went to the scene. He blamed the motor cyclist for occasioning the accident.

8. In his judgment the trial magistrate correctly directed himself that the burden of proof was on the plaintiff/respondent to prove his case on a balance of probability. In that respect the magistrate cited the case ofKanyungu Njogu v Daniel Kimani Maingi (2000)eKLR where it was held that when the court is faced with two possibilities, it can only decide the case on a balance of probabilities if there is evidence to show that one probability was more probable than the other. The learned magistrate then considered the evidence that was before him and held that:Having the foregoing in mind, Other than the evidence of PW1 and DW1, there is no other material evidence on record supporting either version of events as to how the accident occurred. However, both PW1 and DW1 confirmed that indeed the accident occurred.Since having considered the evidence on record, no party could fault the other side for causing the accident, this court holds the rider of the motor cycle, James Obonyo, and the driver of the vehicle, DW1, each 50% culpable for the accident.

9. In arriving at that decision, the magistrate relied on the Court of Appeal decision in the case of Farah v Lento Agencies (2006) 1 KLR 123 where it was held that:“4. The trial court had two conflicting versions of how the accident occurred. It was not reasonable possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident.5. Where there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both drivers. Therefore, each driver was equally to blame.”

10. The question is whether the magistrate was correct in his finding that both the driver of the appellant and the motor cycle rider were equally to blame for the accident.

Submissions on Liability- 11. The advocate for the appellant submitted that the trial magistrate erred when he held that where a court is faced with two versions of how an accident happened, where each party blamed the other, the answer would be to apportion liability equally. That it was the duty of the court to examine all the evidence while remembering that it was the plaintiff who must prove liability on a balance of probability. That it was only when there was no evidence upon which the court could decide one way or the other that it would apportion liability as it did. That had the court analyzed the evidence it would have found that the respondent`s version of the evidence was improbable as the respondent agreed in his evidence that the accident happened when the motorcycle was joining the main road which supported what the appellant`s driver said.

12. Counsel further submitted that it is settled law that where there is no concrete evidence to distinguish the blameworthiness or otherwise of each driver the two drivers should be held equally to blame as set down in the case of Lakhamshi vs Attorney General (1971) EA 118. That in this case the evidence before the court showed that the motorcycle emerged onto the road abruptly and without the rider keeping any look out. That the motorcycle rider was largely to blame for the accident. That in the event that the trial court had decided to apportion liability between the appellant and the motor cyclist, the appellant`s liability ought to have been nominal, just about 10% while the respondent should have been made to bear 90% liability.

13. The advocates for the respondent on the other hand submitted that the accident occurred on the main road after the respondent had joined the main road at a junction. That the driver of the motor vehicle is the one who lost control and hit the motor cycle. That the trial court was right in apportioning liability equally.

Analysis and Determination on Liability– 14. This being a first appeal the duty of the court is as was stated by the Court of Appeal in Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123, that:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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..."

15. In Peters v Sunday Post Ltd [1958] EA 424, the Court held that;“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.”

16. I have considered the evidence adduced before the trial court regarding the issue of liability together with the rival submissions of the respective advocates for the parties. The appellant argued that the trial court erred on its finding on liability as there was no evidence led on the pleaded negligence against the appellant. That the evidence adduced before the court showed that it is the motor cycle rider who emerged into the road without keeping a proper lookout and therefore that it is him who was largely to blame for occasioning the accident.

17. The respondent on the other hand denied that he was the one to blame for the accident. He stated that though he had joined the main road at a junction, the accident occurred a few meters away after he had joined the high way. He attributed the cause of the accident to that the appellant was driving at high speed as a result of which he lost control and rammed into his motor cycle.

18. I have carefully considered both the evidence of the motor cyclist and that of the driver of the appellant`s motor vehicle. The driver of the motor vehicle gave vivid evidence of how the accident occurred. The respondent admits that he was hit by the vehicle a few meters after joining the highway which corresponds with the evidence of the driver for the appellant. It was admitted that the accident occurred on the lane that the motor vehicle was moving on. From this evidence the only plausible conclusion was that it is the respondent who entered into the highway without proper look out as a result of which he was hit by the vehicle. The respondent`s explanation that the vehicle hit him because it had lost control cannot be true. He did not explain how the vehicle lost control. There was no coincidence that the vehicle lost control when the cyclist had just entered the road. If the cyclist had noted that the vehicle was moving at high speed as he claimed, the prudent thing that he would have done was to give way to it to pass. It is evident that it is the respondent who entered the highway without proper look out as a result of which he was hit by the vehicle. In the circumstances that the accident happened and the evidence that was before the court, there was sufficient evidence from which a conclusion could be drawn as to which party was to blame for the accident. There was no need to import the concept set in Lakhamshi v Attorney General (supra) since it was clear as to who was to blame for the accident. It is the motor cyclist who was to blame for occasioning the accident. The only blame that can be attributed to the driver of the vehicle is that he did not swerve to the right to avoid the accident.

19. The evidence adduced before the trial court did not support the finding by the trial court that both the motorist and the cyclist were equally to blame for the accident. The court was wrong in apportioning liability equally between the driver and the cyclist. The liability for the appellant`s driver was minimal. I assess the appellant driver`s contribution at 15% while the respondent bears the other 85%.

Quantum– 20. The principles upon which an appellate court may disturb an award of damages made by a lower court are well settled. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 stated those principles to be as follows :-“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

21. The respondent in his evidence in court testified that he sustained fracture of 3 right ribs, dislocation of the right shoulder, bruises on the face and cut on the forehead. That he was admitted at Nyamira County Hospital for one day and discharged. Dr Nyariki PW3 testified that he attended to the respondent in the ward on 12/6/2018 and was discharged on the following day. That x-rays were taken that confirmed the fractures. That reduction of the right shoulder was done. He produced the discharge summary as exhibit.

22. Dr Ombati PW2 on his part stated that he attended to the respondent as an outpatient on the 2/10/2018. He denied that the respondent was treated at their hospital on 12/6/2018.

23. The respondent was examined by Dr Odondi at the instance of the appellant. His report that was produced by consent of the parties indicated that the respondent presented to him an x-ray from Nyamira County Hospital taken on 12/6/2018 which had the name of the respondent but did not have a hospital reference number. That the same showed fractures of 6th, 7th, and 8th ribs on the right side and dislocation of the right shoulder. That those kind of injuries would have called for admission and theatre services but there was no documentation to that end. That due to lack of documentation he could not form an opinion on whether the respondent was injured in the fateful accident.

24. The trial court on considering the evidence on the documents stated that:The medical documents on record together with evidence of their respective makers (P2 and PW3) prove that the plaintiff sustained the injuries as pleaded by the plaint.

25. Counsel for the appellant however submitted that the injuries were not established in the evidence adduced before the court. That there was inconsistent evidence on the injuries that created doubt whether the injuries were sustained. That though the respondent stated that he sustained fractured ribs and shoulder dislocation, there were no x-ray films or their reports produced to prove the injuries. That though the discharge summary showed that the dislocation was reduced it was not shown the treatment given for the fractured ribs. That there was contradiction between the evidence of Dr Ombati PW2 and Dr Nyariki Pw3 as to whether the respondent was treated at their hospital on 12/6/2018, with Dr Nyariki saying that he attended to the patient in the ward on 12/6/2018 but Dr Ombati saying that the patient was not treated at their hospital on that day.

26. It was submitted that the outpatient card from Nyamira County Referral Hospital indicated that the respondent had been treated at Olesi Hospital on 12/6/ 2018 but the document does not mention that the patient was treated at the county referral hospital on that day as alleged by Dr Nyariki and as purported in the discharge summary. That no treatment documents were produced from Olesi Hospital.

27. Counsel for the respondent on the other hand submitted that the respondent produced treatment notes from Nyamira County Referral Hospital evidencing that he was treated there on the date of the accident. That Dr Nyariki confirmed that he attended to the respondent at their hospital on the material day. That Dr Ombati confirmed the injuries sustained by the respondent and that he attended to the patient as an outpatient on 2/10/2018. Therefore, that there was sufficient evidence to prove that the respondent sustained the pleaded injuries.

28. I have keenly examined the evidence adduced at the lower court and the documents that were produced in proof of the claim. Though Dr Ombati stated that the respondent was not treated at their hospital on 12/6/2018, the medical documents from the hospital prove that he was indeed treated there. The documents that proved so were the out-patient card, the discharge summary and the P3 form. The fractures and the dislocation that the respondent sustained were confirmed by x-ray. The patient was attended to in the ward by Dr Nyariki PW3. Though the x-ray film was not produced in court, Dr Odondi on behalf of the appellant confirmed that he saw the x -ray and confirmed the fractures and the dislocation. The observation by Dr Odondi that the X-ray did not have a hospital reference number cannot be visited on the respondent. There is no doubt that the x-ray related to the injuries sustained by the respondent in the fateful accident. I am in agreement with the findings of the trial magistrate that the respondent had proved that he had sustained the pleaded injuries. The submission by counsel for the appellant that the injuries were not proved is not correct.

29. According to the medical report of Dr Ombati, the respondent sustained the following injuries:Cut wounds on the forehead and occipital region of the headBruises on the faceFracture of the 5th,6th, and 7th ribs mediallyDislocation of the right shoulder joint.

30. The trial court awarded Ksh 600,000/= in general damages and relied on the cases ofPauline Gesare Onami v Samuel Changamure & Another (2017)eKLR and EWO (Suing as the next friend of a minor COW) v Chairman Board of Governors Agoro Yombe Secondary School (2018)eKLR. In the former case the High Court upheld an award of Ksh 600,000/= for double fractures of both the right tibia and fibula and fractures of the left tibia and fibula and multiple soft tissue injuries. In the latter case the High Court upheld an award of Ksh 800,000/= for fractures of the right mid-shaft femur and fractures of the tibia-fibula bones.

31. The respondent had at the lower court urged the court to award Ksh 600,000/- in general damages while making reliance on the following cases:- Francis Murangiri Josiah & another v Stanley Kiuriam Mutunga (2017) eKLR where the court upheld an award of Kshs 800,000/= to a respondent who sustained fracture of the right clavicle, fracture of two left sided rib fractures with haemothorax (abnormal collection of blood in the pleural space), laceration of the right lower eyelid and bruise on the left side of the chest.- Blue Horizon Travel Co Ltd vs Kenneth Njoroge (2020) eKLR where Kshs 400,000/= was awarded for bruises on the scalp, Bruises on the neck, Bruises on the abdomen, Bruises on the lower back, cut wound on the left thumb and cut wound on the left subluxation of the left shoulder joint.

32. Counsel for the respondent argued that the award made by the trial court was not inordinately high as to warrant interference by this court.

33. Counsel for the appellant on the other hand submitted that the trial court failed to properly apply the principles applicable in award of general damages. That there was no similarity between the injuries in the authorities that the court relied on to make an award of Ksh 600,000/- and the injuries sustained by the respondent. That the court ignored the authorities cited by the appellant and relied on authorities not cited by any of the counsels. Counsel had urged the trial court to make an award of Ksh 300,000/- that they had supported with the following authorities:- David Momanyi Matonda v Baharini Consultants Ltd(2019) eKLR Nyamira HCCA No 25 of 2017, where Ksh. 300,000/- was awarded to the appellant who had sustained soft tissue injuries and fractures to the right 4th, 5th, 7th and 8th ribs, a fracture to the left forearm and soft tissue injuries.- Julius Bundi Ringera & another v Joseph Thuranira Rukaria & another (2019) eKLR Nyeri HCCA Appeal No 26 of 2014, where the plaintiff suffered 3 fractured ribs, a fracture of his left shoulder blade, lacerations to his face and left cheek and an injury to his knee. He was admitted in hospital for three weeks after the accident and underwent further treatment. The trial court awarded Kshs 700,000/= as damages for pain and suffering. The High Court found the award to be inordinately high and substituted it with an award of Kshs 400,000/=.- KB Sanghani v Lydia Wanjiku Njuguna & 2 others (2016) eKLR Nairobi HCCA No 373 of 2011,where the injuries suffered were 6 fractures of the ribs (ie 9th rib-right side, and the 5th, 6th, 7th, 8thand 9th ribs on the left side) and a bruised knee. The examining doctor in his prognosis and opinion, stated that though the healing was fair, the plaintiff experienced pain on the left knee while walking, and chest pain when working and could only lift right objects. The High Court upheld an award of general damages of Kshs 450,000/=.- Gabriel Kariuki Kigathi & another v Monica Wangui Wangechi (2016) eKLR Nairobi HCCA No 322 of 2012, where the plaintiffs suffered injuries which were a fracture of the 2nd cervical vertebra, fracture of five ribs on the left and two ribs on the right, and fracture medial malleolus right ankle undisplaced. The High Court made an award of general damages of Kshs 400,000/=.Counsel urged the court to reduce the award to Ksh 300,000/-.

34. I have looked at the authorities cited by the trial court and those cited by the counsels for the parties. Both cases relied on by the court to arrive at a figure of Ksh.600,000/- involved more serious injuries than those suffered by the respondent in this case. The authorities therefore did not fit the present case.

35. Similarly, the injuries in the case of Francis Murangiri Josiah v Stanley Kiuriam Mutunga cited by the respondent involved far more serious injuries. I found the authorities submitted by the appellant to have been more relevant. The awards in those cases ranged between Ksh 300,000/-450,000/-. In some of those cases, the injuries were more serious than those sustained by the respondent in this matter.

36. The respondent was admitted in hospital for one night and discharged. He did not go back to hospital for further treatment. The injuries seem to have healed without any complication. I do not think that injuries that healed without much medical intervention would warrant an award of Ksh.600,000/-. I am of the considered view that an award of Ksh.350,000/- would have been sufficient compensation for the injuries and I so order.

37. In the final end the result of the appeal is as follows:(1)The trial court`s award of Ksh 600,000/- is set aside and substituted with an award of Ksh 350,000/-.(2)The finding of the trial court on liability is set aside and liability of the appellant to the accident assessed at 15%.(3)The liability of the respondent to the accident is set at 85%.Orders accordingly.Each party to bear its own costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Karanja for the Appellant – VirtuallyMr. Omotto for the Respondent – Virtually30 days R/A.