[2023] KEHC 25389 (KLR)

Mashru v Odhiambo (Civil Appeal 21 of 2022) [2023] KEHC 25389 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25389 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 21 of 2022

RN Nyakundi, J

November 14, 2023

Between

P.N Mashru

Appellant

and

Stephen Odhiambo

Respondent

Judgment

Coram: Before Justice R. NyakundiOnyinkwa & Co. AdvocatesM/s G.K Okara & Co. Advocates 1. The appeal herein arises from the decision of the trial court in Eldoret CMCC No. E102 of 2021 where the respondent instituted a suit against the appellant. The cause of action on the trial court was that on 3rd November 2020, he was a pedestrian at Maili Nne along Eldoret - Webuye road when the appellant’s motor vehicle registration number KBL 592M/ZB 9411 Scania was caused to lose control and hit the respondent. The respondent resultantly suffered severe injuries, Ioss and damage. The appellant opposed the claim vide a statement of defence dated 6th March 2021 and the matter proceeded for hearing. Upon considering the evidence and the pleadings, the trial court entered judgement against the appellant in the following terms;a.Liability 100% as against the defendantb.General damages Kshs. 1,000,000/-c.Future medical expenses Kshs. 100,000/-d.Special damages Kshs. 6,000/-Total Kshs.1,106,000

2. Being aggrieved with the entire judgement, the appellant instituted the present appeal vide a Memorandum of Appeal dated 24th February 2022 premised on the following grounds;1. The learned trial magistrate erred in law and in fact in holding the appellant 100% liable in negligence without taking into account the evidence on record.2. The learned trial magistrate erred in law and in fact in failing to take into account the evidence on record hence arriving at a wrong decision on the issue of liability.3. The learned trial magistrate erred in law and in fact by failing to apportion liability on the part of the respondent in view of the evidence attached.4. The learned trial magistrate erred in law and in fact by failing to consider the submissions of the appellant.5. The learned trial magistrate erred in law and in fact in adopting the wrong principles in assessment of the damages payable to the respondent.6. The learned trial magistrate erred in law and in fact in awarding general damages which were excessive in the circumstances in view of the injuries sustained by the plaintiff.7. The learned trial magistrate erred in law and in fact by awarding the respondent Kshs. 1,000,000/- as general damages which is inordinately high.The parties prosecuted the appeal vide written submissions.

Appellant’s Case 3. Learned counsel for the appellant submitted that the learned trial magistrate erred in law and fact in holding the appellant 100% liable and/or at all in view of the evidence on record. Further, that the respondent failed to prove his case on a balance of probability and therefore, the respondent’s suit ought to be dismissed with costs. The burden of proving that the accident was caused by the negligent of the driver of Motor Vehicle Registration Number KBL 592M/ZB 9411 Scania lies squarely on the respondent/plaintiff. In law, the respondent/plaintiff must demonstrate that it is more probable than not that the said driver committed acts of negligence that actually cause the occurrence of the accident. The burden of proof is still on the respondent/plaintiff even if the appellant/defendant choose to remain silent. To buttress the above, the appellant cited the case of Susan Kanini Mwangangi & another Vs Patrick Mbithi Kavita. He urged that in the instant suit, the respondent called the police officer who testified as PW2 and he categorically stated that he was not the investigating officer. They only led him to confirm the scene of accident.

4. Learned counsel urged that PW2 produced an abstract that he did not author nor make. He did not produce the police file and neither did he take any sketch plans of the scene nor map of the area where the accident happened. In addition, the abstract cannot be held as conclusive proof of liability on the part of the appellant as was held in the case of Kennedy Nvangova Vs Bash Hauliers (2016) eKLR, High Court Civil Appeal No. 8 of 2015. Further, that it is indispensable to note that PW2 during cross – examination, testified and confirmed that this matter is still pending under investigation and that the driver of the subject motor vehicle was never charged for the accident. Counsel urged this court to heed to PW2’s testimony that the driver of the subject motor vehicle was not charged and thus no liability was apportioned by the police at the onset of their investigations to date.

5. It is the appellant’s case that based on the foregoing, the appellant cannot be held liable in negligence for the accident. The weight of evidence adduced to find the driver of said motor vehicle liable, falls far below the required standard. Counsel urged the court to find that the testimony of the police officer (PW2) is unsalable proof that no one was blamed for the accident. Further, that the respondent failed to conclusively prove the appellant’s liability for the occurrence of the accident and this suit should be dismissed with costs.

6. On quantum, the appellant submitted that the trial magistrate erred and misdirected himself as to the nature of the respondent’s injuries and thus awarded damages which were manifestly excessive. Further, that before an award of quantum is disturbed by an appellate court, it must be proved that the award by the trial court was made on an irrelevant consideration on that the award was manifestly excessive. In this regard counsel referred the court to the case of Butt Vs Khan (1975) eKLR Civil Anneal No. 40 of 1997.

7. Learned counsel urged that in paragraph 8 of the plaint the respondent pleaded injuries as followsi.Head injury with loss of consciousness for 5 hours.ii.Cut wound on the occipital scalp.iii.Crushed right leg/foot with burst wound.iv.Crushed left leg/foot with burst wound.v.Fracture of the right lateral malleolus with dislocation of the joints.

8. The respondent produced a medical report PExh 4 (a) by Dr. Joseph Sokobe who reiterated the above injuries and treatment administered. The respondent was also re-examined by Mr. Z. Gaya who opined that the Plaintiff/respondent sustained a fracture of the right lateral malleolus with dislocation of the joints and some soft tissue injuries. From the evidence tendered by PW1 (Dr. Paul Rono), PW3 (Dr. Joseph Sokobe) and Mr. Z. Gaya’s Medical Report, it is clear that the respondent suffered a fracture of the right lateral and some soft tissue injuries.

9. The appellant urged the court to be guided by the case of Brookside Dairy Limited v Peter Butata Wanjohi [2018] eKLR where the High court noted the following injuries: Compound segmental fracture of the right tibia and fibula, fracture to the right medial malleolus, fracture to the left lateral malleolus and blood loss, Physical and psychological pain and upheld the judgment of the lower court at Kshs. 563,416. 00/-. Further, that it is clear from the above case that the injuries suffered by plaintiffs were more grievous compared to the ones suffered by the respondent herein. It was the appellants’ case that an award of between Kshs. 300,000/= - Kshs. 400,000/= would be sufficient in this case.

Respondent’s Case 10. Learned counsel for the respondent urged that the Respondent called four (4) witnesses. On the issue of liability which is challenged by the Appellant, the respondent submitted that he placed reliance on the evidence of PW2 and PW4 (the Respondent herein). PW2 was categorical that the Respondent was walking on the left side of the road facing Maili Nne when he was knocked down by a trailer which was entering a parking. Both the Respondent and the trailer were facing the same direction. The Respondent was ahead of the Trailer. On Cross-examination, PW2 reiterated the fact that the Appellant's driver was blamed for the accident. He stated that the investigations are completed. The accident was reported by the members of the public. PW 2 recorded the statement of the Respondent. PW4 (the Respondent herein) testified that he was walking on the left side of the road facing Maili Tisa. He was at the edge of the road walking when he was hit by the lorry from behind. On Cross-examination, the Respondent reiterated his evidence that he was hit from behind. On re-examination, he testified and repeated that he was hit by the Motor Vehicle while he was outside the road.

11. The Appellant did not call any witness to rebut the Respondent's evidence and its driver did not file a witness statement before the Trial Court to enable the apportionment of liability between the Appellant and the Respondent. The Trial Court was not told how the Respondent contributed to the occurrence of the accident herein. Parties must tender evidence in support of the allegations or contentions. This is a principle of law espoused in the Court of Appeal decision in the case of John Wainaina Kagwe vs Hussein Dairy Limited - Mombasa Civil Appeal No. 215 OF 2010.

12. The Respondent submitted that it is not in dispute that before the accident, the Respondent was ahead of the Appellant's Motor Vehicle. The Appellant's Counsel did not challenge PW2's and PW4's evidence on this issue. It is also not in contention that the Respondent was off the road and he was only knocked down by the Appellant's Motor Vehicle as the appellant's driver left the road to look for parking space off the road. It is also not in contention that there was a bus stage at the location of the accident. He urged that there is no reason to fault the Trial Court's decision to find the Appellant 100% liable for the occurrence of the accident and therefore the court should dismiss the appeal.

13. On quantum, counsel submitted that the respondent sustained the following injuries;i.Head injury with loss of consciousness for 5 hours.ii.Cut wound on the occipital.iii.Crushed right leg/foot with burst wounds.iv.Crushed left leg/foot with burst wounds.v.Fracture right lateral malleolus with dislocation of the joints.

14. Dr. Joseph C. Sokobe who testified at the Subordinate Court as PW3 opined that the Respondent sustained both soft and bony tissue injuries from which he has not recovered. He requires further treatment at air estimated cost of Kshs. 100, 000/=. His evidence was not challenged on cross-examination. The 2nd Medical Report indicated that the Respondent sustained the following injuries-i.Mild head injury.ii.Cut wound on the scalp.iii.Bursts wounds on the right leg/foot.iv.Fracture right lateral malleolus with dislocation of the ankle joint.

15. The Appellant's Doctor did not say the amount that the Respondent will require for future medical expenses. He cited the case of Onesmus Kimathi Kibiti Vs Leneck Gitan Njoka [2017]eKLR in support of this submission. Counsel submitted that looking at the injuries that were sustained by the Respondent the court should consider the decision in the case of Finland Horticulture Kenya Limited -vs- Grace Wacugu Chiira [2020]eKLR, in which the Plaintiff in the lower court was found to have suffered a severe dislocation of the left ankle joint and fracture of the left malleolus and she was awarded Kshs. 1, 000, 000/= which was upheld on appeal. It is apparent that the Respondent herein suffered more severe injuries than die ones in the cited authority.

16. Counsel submitted that the appeal is not merited and the same should be dismissed with costs to the Respondent.

Analysis & Determination 17. The duty of this court as an appellate court was set out In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

18. Upon considering the Memorandum of Appeal and submissions by the parties, the following issues arise for determination;

Whether the trial court erred in its finding on liability 19. It was the plaintiff’s evidence that he was walking on the right side of the road on 3rd November 2020 at Maili Nne when he was hit from behind. PW2, PC Omar Sitay Mohammed testified on the events that unfolded on 3rd November 2020 being the accident that resulted in the injuries that the plaintiff sustained. Notably, the witness never visited the scene and was not the investigating officer. The abstract that was produced in court as exhibit 3 and was made by PC Peter Kiogora, who PW2 stated had been transferred to Embakasi. The provisions of Section 35 of the Evidence Act stipulate as follows:-“1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say-a.if the maker of the statement either-i.had personal knowledge of the matters dealt with by the statement; orii.where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; andb.if the maker of the statement is called as a witness in the proceedings:

20. Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence-a.notwithstanding that the maker of the statement is available but is not called as a witness;b.notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.”

21. There was no investigation report or police file produced in court. The accident was reported at Central Police station but there were no witness statements filed or investigations conducted afterwards. Therefore, the question that arises is how the appellant was connected to the accident by the evidence before the court. the only point of connection is the abstract. From the judgement of the trial court, the court stated that it was persuaded by the testimonies of the plaintiff’s witnesses that the defendant was to blame for the accident. In Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR the court stated:“A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”

22. There is no witness who corroborated the testimony of the respondent that it was the appellant’s vehicle that knocked him down. Further, the witness who reported the accident did not come to court to testify and corroborate the allegations. The final nail on the coffin is the handling of this matter by the police. There was no investigation report filed, the investigating officer was not summoned to testify and there was no other witness statement filed.

23. The dictum in the case of Continental Petroleum Products Ltd and Scotia DBG Investments Ltd (2016) JMSC Civ 219 “ In assessing credibility, as between two(2) witnesses, one of whom is telling the truth in important respect and the other witness, who is not doing so, as regards those same matters, it is always important for the court of first instance to consider contemporaneous documents probabilities and possible motives in a case involving disputed facts.

24. It is trite law that in order to establish liability in a claim for negligence there must be evidence to show tht the Defendant owned a duty of care to the claimant, that the Defendant acted in breach of that duty and that the claimant sustained damage as a result of that breach. The principle in relation to the law of negligence were laid down in by Lord Atkin in Donoghue v Stevenson (1932) A.C 562 where he stated that:“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”

25. In this case the claim for negligence dependent solely on the evidence by the respondent which by itself prima facie is equally not consistent with negligence on the part of the appellant as against other causes. Therefore, the claim before the lower court cannot be said to have succeeded. It is the responsibility for the respondent in recovery of damages to make out that the appellant against whom he complaint was in the wrong. The standard and burden of proof is clearly upon the respondent to show that the loss attributed to the negligence of the appellant was the proximate cause of the accident. He has to satisfy the court on a balance of probabilities otherwise that inference is not well settled in the impugned judgement of the trial court. In formulating the test it the occurrence of the accident which is the proof of causation but some act which is real, substantial, direct, or effective cause of the damage occasioned due to a breach of duty of care. When it comes to contributory negligence the same must be specifically pleaded and evidence lead to establish the elements of that negligence. It is never proved by suo moto a casual observation of the language in the impugned judgement when considered in connection to the facts of the case and with other portions of the decision it will hardly be warranted to arrive at a legitimate conclusion on liability. The point raised in this court has to do with the burden of proof in cases of contributory negligence and whether on the part of the respondent evidence tending to prove negligence against the defendant materially fell within the scope of a balance of probabilities affirmatively. I seem to disagree with the trial court findings hence casting a doubt to the manifested findings on prove of negligence on part of the appellant.

26. In the premises, I find that the trial court erred in its apportionment of liability. Whereas there is evidence that an accident occurred and the respondent sustained injuries as a result of the same, the respondent did not establish the proximity of the appellant to the cause of action to the required standard. In light of the scanty evidence in support of the claim, this court has no option but to allow the appeal and set it aside. The trial court erred in its assessment of liability as there was no proof, on a balance of probabilities, that the appellant was liable for the accident that occurred on 3rd November 2023.

27. I therefore order that;1. The appeal succeeds in its entirety and the decision of the trial court is hereby set aside.2. Each party shall bear its own costs.

DELIVERED DATED AND SIGNED AT ELDORET ON THIS 14TH DAY OF NOVEMBER 2023In the presence ofNyabuto for the AppellantM/s Kimeli for Okara for the Defendant.........................R. NYAKUNDIJUDGE