[2022] KEHC 214 (KLR)

Maweu v Nguu Transport Company (Civil Appeal 131 of 2019) [2022] KEHC 214 (KLR) (15 March 2022) (Judgment)

Neutral citation: [2022] KEHC 214 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 131 of 2019

MW Muigai, J

March 15, 2022

Between

Benson Kilonzo Maweu

Appellant

and

Nguu Transport Company

Respondent

(Being an Appeal from the judgment and Decree of the Honourable Resident Magistrate Nelly C. K Kenei delivered on 3rd October, 2019 in Machakos CMCC No. 35 of 2018)

Judgment

1. PLAINT DATED 22/01/2018By a Plaint dated 22nd January, 2018 and filed on 25th January, 2018, the Appellant as the Plaintiff sued the Respondent as the Defendant in Machakos CMCC No.35 of 2018. The Appellant sought general damages for pain and suffering and loss of amenities, special damages of Kshs. 14,175/-, costs and interest.

2. The cause of action arose from a road traffic accident that occurred on 16th May, 2016 when the Appellant is said to have been lawfully travelling as a passenger in motor vehicle registration number KBL 286M along Nairobi-Mombasa Road at Kyumbi area and as the Appellant was alighting, the driver of the said motor vehicle negligently drove off causing the Appellant to fall off the motor vehicle and sustained severe body injuries.

3. The particulars of negligence against the Respondent are pleaded at paragraph 4(a) to (g) of the Plaint. The Appellant pleaded that the Respondent is vicariously liable for the acts and/or omissions of its driver. The Appellant pleaded the doctrine of Res Ipsa Loquitor. According to the Appellant he earned Kshs.1,000 a day but as result of the injuries he sustained, he could no longer engage in gainful occupation for a period of one year hence entitled to loss of earnings and earning capacity. It is pleaded that the Appellant’s permanent functional incapacity as a result of the injuries is estimated at 25%.DEFENCE DATED 9/04/2018

4. The Respondent denied all the Appellant’s averments in the Plaint save for its description. According to the Respondent, the Appellant was not lawfully travelling as a passenger aboard motor vehicle registration number KBL 286M and in the alternative if he did, the accident was solely and/or substantially contributed to by the negligence of the Appellant.EVIDENCE

5. The appellant testifying as PW1, stated that he sells bread. He stated that as he was travelling from Nairobi headed to Makutano Junction to visit his aunt, he was involved in an accident on 16/05/2016 as he was alighting. According to the Appellant, the driver pulled out causing him to fall. He stated that he got injured on his back, neck and left hand and was treated at Machakos Level 5 Hospital but transferred to Kenyatta National Hospital where he was informed that he had a spinal injury.

6. He produced a bundle of treatment receipts as Ex 1(a-k), medical report and receipt as Ex 2(a-b), demand letter as Ex 3, police abstract as Ex 4 and P3 Form as Ex 5. He blamed the driver for driving off the motor vehicle as the Appellant was alighting. According to the Appellant, he had not fully healed and feels pain. He stated that his left hand has no strength and he gets tired easily. According to the Appellant, he is unable to do any work. He did pray for refund of his medical expenses.

7. In cross-examination by Miss Ngige, PW1 stated that the motor vehicle was at the stage when he was alighting and he fell as the driver drove off. According to PW1, he reported the accident at Machakos police station. He stated that at the time he was bread seller. He denied that he was on top of a motor vehicle when he jumped and got injured. He stated that he did not have a witness. Miss Ngige referred to the OB No.11/16/05/2016 which she marked as DMFI 1. PW1 denied the facts in the OB that he was drunk and fell. According to PW2, he reported the accident after he came from hospital. He stated that the vehicle was at the stage and had stopped. He pointed out that he stated in his statement that the vehicle was at a speed but he know that the vehicle took off as he alighted. He stated that the motor vehicle was not as speed. It was PW1 testimony that he had been visiting hospital but he did not have documents as proof of visit.

8. In re-examination by Miss Naututu, PW1 stated that he got injured as he alighted.

9. In support of the defense case, DW1, No. xxxxx PC Robert Tomno stationed at Machakos Police Station Traffic Base stated that one Benson Kilonzo Maweu (Appellant) came to their office on 5th October, 2016 to report that on 16/05/2016 at about 1500 hours he was involved in a road traffic accident with KBL 286M Mitsubishi Mini Bus near Kyumbi area and that he was treated at Machakos Level 5 Hospital and Kenyatta National Hospital. According to DW1, they booked the case vide OB 6/5/10/207 but stated that an earlier report had been made at Kyumbi Police station by the driver and conductor of KBL vide OB 11/16/5/2016 at about 1625 Hours. According to DW1, the report made was that a tout unknown on top of the vehicle while drunk and had been rushed to hospital. He pointed out that it has not been mentioned if the motor vehicle was in motion or mobile but the OB stated that it was tout and not passenger. It does not state if anyone was charged. DW1 produced the police abstract from Kyumbi as DEX 1.

10. In cross-examination by Mr. Kyalo, DW1 stated that the matter had two OB reports and had produced the OB for Kyumbi being OB11/1605/2016. According to DW1, true name of the victim was not reported. He did not visit the scene. According to DW1, true touts have uniforms and badges. He stated that the OB report was just an accident report and has no details sufficient for identification. He stated that the tout was unknown and stated that if a person is honest then it would be a likelihood that the Appellant was a passenger. According to DW1, the report in OB 6/5/10/2017 at Machakos Police station had been reported by one Benson Kilonzo Maweu who stated that he was involved in a road traffic accident with motor vehicle KBL 286M. He stated the two reports involve the same vehicle at the same area. He pointed out that PEX 4 originated from Machakos Police station. He stated that it is true that any person in a vehicle is a passenger.

11. In re-examination, when referred to the OB, he stated that the OB states that the tout was on top of motor vehicle but not as a passenger.TRIAL COURT’S JUDGMENT

12. In her Judgment, the Trial Magistrate observed that DW1 produced the OB report by the driver and conductor where it was reported that the Appellant had fallen from on top of a motor vehicle and sustained injuries but that what was not controverted by the Respondent was that the Appellant sustained injuries on 16th May, 2016 whether it was by falling from on top or as he alighted from the Respondent’s motor vehicle. It was the view of the Trial Magistrate that the maker of the initial report relied upon by the Respondent was not cross-examined nor were investigations conducted by the police hence the Trial Magistrate found in favour of the Appellant but apportioned the Appellant liability at 40% since the accident was reported one year later.

13. The Trial Magistrate awarded the Appellant general damages of Kshs. 350,000/- and special damages of Kshs. 13,275/- which was subjected to 40% liability plus costs and interest.APPEAL

14. Aggrieved by the Judgement, the Appellant has appealed citing the following grounds:-(1)THAT the Learned Trial Magistrate erred in law and in fact in finding the Appellant negligent without there being a basis upon which such finding could be made.(2)THAT the Learned Trial Magistrate erred in law and in fact by failing to evaluate the entire evidence on record and make a finding that the Appellant had proved his case against the Respondent on a balance of probabilities and thereby arrived on wrong findings on issues before the court.(3)THAT the Learned Trial Magistrate grossly misdirected himself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same by;a.The Trial Magistrate misdirected herself in ignoring the principles applicable and the authorities which she relied on.b.The Learned Trial Magistrate proceeded on wrong principles, when assessing the damages to be awarded to the Appellant.c.The Learned Trial Magistrate award was so manifestly low in the circumstances as to amount to an erroneous estimate of the loss suffered by the Appellant with the resultant miscarriage of justice to the Appellant.

15. The Appellant urged the Court to set aside and/or vary the Judgment in Machakos CMCC No.35 of 2018 and award the Appellant the costs of the appeal.APPELLANT’S SUBMISSIONS

16. As regards ground 1 and 2 of the appeal, it is submitted that the Appellant testified that he was alighting from motor vehicle registration number KBL 286M when it was driven off causing him to fall off the said motor vehicle. The Appellant blamed the driver for driving at a high speed. The Appellant controverted DW1 testimony by stating that DW1did not visit the scene of the accident nor did he conduct any follow up investigations of the said accident. He pointed out that in cross-examination, DW1 stated that the Appellant was not identified as a tout hence a possibility that the Appellant could have been a passenger aboard the motor vehicle herein.

17. According to the Appellant, the police abstract confirmed that the Appellant was a passenger. The Appellant submitted that the OB extract confirmed the that the accident occurred on 16th May,2016 whereby an unknown person fell from motor vehicle registration number KBL 286M and that the unknown person was taken to Kenyatta National Hospital.

18. The Appellant submitted that DW1 testimony was hearsay as he did not personally carry out the investigation, visit the scene or produce any sketch plans of the scene of accident to aid Respondent’s case. The Appellant asserted that the driver or owner were not called to give direct evidence of the accident. Reliance was placed on the cases of Kennedy Nyangoya vs. Bash Hauliers CA No. 8 of 2015 [2015] eKLR, David Kajogi vs. Francis Muthomi CA. No. 118 of 2010 [2012] eKLR and Rosemary Wanjiru Kungu vs. Elijah Macharia Githinji & Anor CA No. 145 of 2010.

19. It is submitted that the Appellant did not in any way contribute to the occurrence of the accident as he was lawfully travelling as a passenger aboard the motor vehicle herein when he fell off the motor vehicle when alighting due to the Respondent’s driver negligence hence the Respondent should be held 100% liable.

20. As regards quantum, it is submitted that a fair award would be Kshs. 3,500,000/-. Reliance is placed on the cases of Sammy Machoka Orira vs. Josphat Mwangi Kihuro & Another (2008) eKLR where the Plaintiff sustained injuries on the head, neck, abdomen, right wrist, tenderness over the cervical spine and disc prolapse at L4,L5/S1 and a permanent disability of 12% and court awarded Kshs.1,750,000/- as general damages while inJoyce Wayna Richard vs Mike Trojanuok and Another(2014) eKLR where the court while citing Emmanuel Kombe Nzai also known as Kombe Emmanuel vs. Basari Co. Ltd & Another [2017]eKLR made an award of Kshs.3,200,000/-.

21. As regards the award for loss of earnings, it is submitted that the Appellant was in an informal sector hence could not produce receipts in support of his earnings and placed reliance on the cases of Jacob Ayiga Maruja & Francis Karani vs. Simeon Obayo (2005) eKLR and Michael Murage vs. Dorcas Atieno Ndwala[2019] eKLR where the courts are said to have held that documentary evidence is not always necessary to prove loss of earnings. The Appellant computed loss of earnings as follows; Kshs.1000 x 30 days x 12 months=Kshs.360, 000/-.

22. The Appellant urged this court to allow the appeal with costs.RESPONDENT’S SUBMISSIONS

23. The Respondent supported liability apportioned to the Appellant at 40%.

24. On quantum of damages, it is submitted that the award was absolutely in line with the injuries sustained by the Plaintiff. According to the Respondent, the injuries are soft tissues in nature with no permanent incapacity assessed. According to the Respondent, the Trial Magistrate adhered to the principle that comparable injuries attract similar awards of damages. Reliance was placed on the cases cited in the case of Michael Okello vs Priscilla Atieno[2021]eKLR, PF (Suing as the Next Friend and Father of SK(Minor) vs. Victor O. Kamadi & Another [2018] eKLR, cases cited in Blue Horizon Travel Co. Ltd vs. Kenneth Njoroge[2020]eKLR.

25. In comparison to other cases where the Plaintiff’s sustained more serious injuries, it is submitted that the award herein was within the correct range. The cases are Zachariah Mwangi Njeru vs. Joseph Wachira Kanoga, Nyeri HCAA No. 9 of 2012 where the award of Kshs. 800,000/- for comminuted fracture of tibia and fibula was substituted with an award of Kshs.400,000/-, Harun Munyoma Boge vs Dr. Daniel Otieno MigoriHCCA No. 86 of 2012 where the award of Kshs.150,000/- for multiple injuries and fracture of right tibia and fibula was substituted with Kshs. 300,000/- and Mbithi Muinde William vs. Rose Mutheu Mulatia[2019]eKLR where the court awarded Kshs. 400,000/- for swollen, tender left wrist and left leg, fracture of the left 5th Metacarpal bone and fracture of the right tibia, Naomi Momanyi vs. G4S Security Services Kenya Ltd[2018]eKLR where court awarded Kshs. 300,000/- and in Wakim Sodas Limited vs. Sammy Aritos[2017]eKLR where court upheld the trial court award of Kshs. 400,000/- for fracture of the 4th rib and compound fracture of the left tibia and fibula.

26. The Respondents urge this court to uphold the award of Kshs.350, 000/- as general damages and dismiss the appeal for lack of merit with costs.DETERMINATION

27. I have considered the submissions filed on behalf of respective parties.

28. This being the first Appellate Court, its duty is well expressed in Selle vs. Associated Motor Boat Co [1986] EA 123 where court held as follows:-“The Appellate Court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are that the Court must reconsider the evidence, evaluate it itself and draw its own conclusions through it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect in particular the court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

29. In this appeal the Appellant is challenging both liability and quantum awarded by the Trial Magistrate.

30. The standard of proof required in negligence claims is on balance of probabilities hence the sole issue for determination is whether the Appellant proved his case on a balance of probabilities.

31. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another[2015] eKLR, the Judges of Appeal held that:“Denning J, in Miller vs. Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

32. According to Kimaru J. in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 stated that:-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

33. It is trite that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:-Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

34. Once the Plaintiff discharges the legal burden of proof, the burden is then shifted to the Defendant to adduce evidence against the Plaintiff’s claims. This burden is well captured under Sections 109 and 112 of the same Act as follows:Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

35. The Court of Appeal’s position in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR espouses the correct legal position that:“….The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”

36. It follows therefore that despite the absence of the defendant in court to testify, the burden of proof in civil case will not change.LIABILITY

37. The Trial Magistrate apportioned the Appellant 40 % liability for reporting the accident for over one year. According to the Trial Magistrate, investigations were not conducted out to find whether the driver was liable or not the issue of 2 OB reports was not resolved and the evidence of DW.1 was not conclusive as he did record OB report- visit the scene or investigate the matter.

38. The court in Khambi & Another vs. Mahithi and Another [1968] EA 70, held that:“It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge”

39. I have perused the police abstract dated 9th October,2017 which show that one Benson Kilonzo, the Appellant herein was a passenger in motor vehicle KBL 286M. I agree with the Trial Magistrate that the Respondent did not controvert whether the Appellant sustained injuries on 16th May, 2016. In the Respondent submissions, the issue of liability was not canvassed hence neither did the driver and conductor of the suit motor vehicle testify in court. The driver and conductor who reported at Kyumbi police station did not testify in court noting that they reported that the Appellant was on top of the suit motor vehicle while drunk. I noted that DW1 was not the investigating Officer.

40. The fact that the accident was reported one year later when the Appellant has testified in court that he was alighting from the suit motor vehicle when the driver drove off causing the Appellant to sustain serious injuries is not ground to apportion the Appellant liability.

41. In my view I see no reason why the Trial Magistrate apportioned liability to the Appellant who it has been confirmed by the police abstract was a passenger. I therefore find the Respondent 100% liable.QUANTUM

42. The Appellant submitted that a fair award for general damages should have been Kshs. 3,500,000/- and not Kshs.350,000/- awarded.

43. The Doctor’s report prepared by Dr. G. K. Mwaura dated 20/07/2017 showed that the Appellant sustained the following injuries:a.Blunt Injury at the backb.compression fracture – 5th & 6th cervical (neck),c.left sided body weakness &d.Inability to walk and loss as sensation left side.He stated that the healing was fair but with painful neck movements with a permanent degree of incapacity assessed at 25% (overall) and classified the injuries as grievous harm.

44. The P.3 form in respect of the Appellant was filled and duly signed showing that an MRI Scan was carried out and he was put on antibiotics and analgesics.

45. In the Plaint, the Appellant pleaded injuries of compression fracture-5th and 6th Cervical(neck) vertebrae, left side body weakness, inability to walk and loss of sensation left side and blunt to the back. The medical report of Dr. G.K Mwaura confirmed the injuries and opined that the Appellant had healed but with a permanent degree of incapacity assessed at 25%. It was the Appellant’s testimony that he had not healed, feels pain, his left hand has no strength and he gets tired easily.

46. This court is guided by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR where the Learned judges set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general 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...’

47. In the case of Southern Engineering Co. Ltd vs. Musungi Mutia [1985] KLR 730, the court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

48. I have considered the decision relied upon by the Appellant and in my view they establish serious injuries than the injuries sustained by the Appellant. The proposed award of Kshs. 3,500,000/- is inordinately high for such injuries.

49. Kshs.400,000/-is fair compensation for such injuries.

50. As regards the loss of earnings, the Appellant has submitted that he was working as bread seller earning Kshs. 1,000/- per day but due to the injuries he sustained he could not engage in any gainful employment for a period of one (1) year. According to Dr. G.K Mwaura report, the assessed permanent degree of incapacity was at 25%.

51. In the Plaint, the Appellant sought for loss of earnings, future earnings, future medical and earning capacity. In the Trial Court judgment, I note that the Trial Magistrate did not render herself on this damages.

52. According to the Court of Appeal in Cecilia W. Mwangi & Another vs. Ruth W. MwangiNYR CA Civil Appeal No. 251 of 1996 [1997] eKLR Loss of earnings is a special damage claim which must be specifically pleaded and strictly proved. In Douglas Kalafa Ombeva vs. David Ngama[2013] eKLR, the Court of Appeal held that where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.

53. It follows that loss of earnings is a special damage but while placing reliance on the Court of Appeal case of Jacob Ayiga Maruja & Francis Karani vs. Simeon Obayo(2005) eKLR, the Appellant has submitted that he was in the informal sector hence he could not produce receipts in support of his earnings.

54. In Jacob Ayiga Maruja case(supra) the Court of Appeal held that:-“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

55. I have perused the court proceedings whereby I note that the Appellant stated in his evidence that he was a bread seller. In the Plaint he pleaded that he earned Kshs.1000 per day but as a result of the injuries he sustained, he could not engage in gainful occupation for one year.

56. I find no iota of evidence controverting the Appellant’s evidence that he engaged in bread selling and earned Kshs.1, 000/- a day. The Respondent has not opposed the award in its submissions. The Trial Magistrate also erred to have rendered herself on loss of earnings pleaded by the Appellant. In my view it will not serve justice if the strict application of the standard of proof of special damages is applied.

57. In that regard I associate myself with the East African Court of Appeal in Woodruff vs. Dupont [1964] EA 404 where it was held that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided cases are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonably be considered as a rising according to the usual course of things, from the breach of the contract itself”. The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.” See Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, Jackson K Kiptoo vs. The Hon Attorney General [2009] KLR 657.

58. The Appellant has computed loss of earning as follows; Kshs.1000 x 30 days x 12 months=Kshs.360, 000/-. From the foregoing, I award the Appellant damages for loss of earnings as computed.DISPOSITION

59. Accordingly, the award that ought to have been made to the Appellant was as hereunder :-a.General damages Kshs. 400,000/-b.Loss of earnings Kshs. 360,000/-c.Special damages Kshs. 13,275/-Kshs. 773,275/-

60. The appeal succeeds in full on liability while on quantum of damages partly. The court will award half costs of the appeal to the Appellant.

61. The general damages shall attract interest at court rates from the date of judgment of the Trial Court while special damage will attract interest from the date of filling the suit.Judgement accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15THDAY OF MARCH, 2022. M.W MUIGAIJUDGE