[2017] KEHC 664 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 101 OF 2009

MOSES THUO................................APPEALLANT

VERSUS

JOSEPH OJUANG.........................RESPONDENT

J U D G M E N T

1. On the 18/5/2009 the trial court, Hon. R. Makungu, (SRM) delivered a reserved Judgment in which she held the Appellant liable to the Respondent at 100% and awarded general damages in the sum of Kshs.50,000/= for pains & suffering on account of injuries sustained by the Respondent, then plaintiff, when he was attacked and bitten by a dog in the Appellant’s home.

2. That judgment aggrieved the Appellant who challenged it on the following grounds:-

i. The learned magistrate erred in law and in fact in failing to find that the risk of an attack from the dog was reasonably unforeseeable;

ii. The learned magistrate erred in law and in fact in failing to find that the plaintiff was uninvited and thereby apply the principle of volenti non fit injuria in his claim;

iii. The learned magistrate erred in law and in fact in failing to find the plaintiff contributory negligent;

iv. The learned magistrate erred in law and in fact in failing to find that the plaintiff did not mitigate the risk in any way;

v. The learned magistrate erred in law and infact making an excessive award in general damages;

vi. The learned magistrate erred in law and infact in awarding costs to the Plaintiff.

3. The evidence before the trial court was that on or about the 28/7/2006, the Respondent, was on his duty as a meter-reader from Mombasa Water and Sewerage Company Limited when he visited the Appellant’s home to do his work. He knocked at the door, a young man came to the gate and assured him that he had restrained the dogs. He sought the assurance because he had been there before and was aware that there were about 4 dogs in the compound. As soon as he entered the compound, a dog rushed toward him and bit his leg. He blamed the Appellant for failure to assure his safety while in his compound.

4. He then proceeded to Nyali Health Centre where he was accorded treatment. He produced treatment notes as exhibit P3. Later he saw Dr. Adede who prepared a medical and had a P3 completed at the Coast General Hospital – Exhibit P4.

5. A demand letter was issued to the Appellant dated 11/8/2006 produced as exhibit P5. He identified medical report and receipt for same as PMFI 6 & 7. The respondent denied agitating the dogs nor being a trespasser and that the dogs attacked him as he bent forward to read the metre.

6. On cross examination the Respondent confirmed his knowledge of the presence of four dogs in the compound but denied knowledge of there being other tenants in the compound. He however denied having served a notice of his visit and confirmed that the Appellant was not within the compound at the material time.

7. PW 2, DR. AJONI ADEDE, gave evidence that he examined the Respondent and noticed two penetrating scars of about 1 centimeter in diameter on the right leg. He reviewed documents evidencing previous treatment involving some 5 injections for anti-rabies vaccines on diverse dates after the bite and formed the opinion that the plaintiff would have met complete recovery with no likelihood of recurrence. He produced a medical report as exhibit P6, and two receipts for Kshs.2000 and 3000 respectively, for the medical report and court attendance, as exhibits P7 & 8.

8. In cross examination, the said doctor, he only saw two puncture marks without any other scars on the plaintiff. That marked the plaintiff’s case.

9. For the Defendant, one Josephat Matena Orangi gave evidence that on the material day the defendant had travelled to Nairobi with the family and left the operations of his home to the witness. On that day he was called by a day-guard with the information that some unidentified persons had gained entry into the house using the small door at the gate when the dogs were in the compound. The guard who called him was called Ouma. He confirmed that he knew about the dogs and that they were normally locked within the compound and that incase of a knock at the gate the askari would restrain the dogs before opening the door.

10. In cross examination, the witness confirmed having not been at the scene and that he was talking about what he had been told. That single witness marked the close of the defendant’s case.

11. In a reserved judgment, now subject of this appeal, the trial court rendered its decision on liability as follows:-

“I find that the prosecution has proved its case on a balance of probabilities. Even if we were to consider the defence of vileati non fit injure what defendant has proved and which plaintiff does not deny is that the Plaintiff knew of the risk, but can it be said he voluntarily assumed the risk? I do not think so. When at the gate, he states that he specifically requested for the dogs to be restrained. He did not step into the compound without first seeking that assurance.

I therefore hold the Defendant 100% liable”.

12. That finding is the target of attack and fault by the Appellant in grounds 1, 2, 3 & 4 of the Memorandum of Appeal. All can seen as one ground being that the plaintiff did not prove his case as to warrant the Appellant being found to have been liable at 100%.

13. This court’s mandate and duty on a first appeal is now well settled; it is to review and re-examine the entire evidence on record and then determine whether the conclusions reached by the trial court are to stand or not and to give reasons either way [1].

14. My reading of the evidence and the decision by the court is that the trial court duly took into account the evidence led and applied the same to the principles of law applicable and found for the Respondent. For this court to interfere with a trial courts factual findings, the appellant has the obligation to demonstrate that such finding were erroneous, contrary to the evidence or just based on no evidence at all [2].

15. Applying these principles to his appeal, it was in uncontroverted evidence, that the Respondent before entering the compound spoke to the person therein and was assured that the dogs, which he knew to be in the compound, had been restrained. That is all a reasonable man was expected to do – take a reasonable precaution. There was also evidence, equally not challenged, that the Respondent went to the appellant’s compound in the cause of his employment as a water meter reader hence he was not ipso factor a trespasser. More importantly the evidence led by the defendant was totally worthless as found by the trial court. It did not at all seek to prove the pleadings advanced by the Appellant among then that the Respondent was a trespasser. At best, the evidence availed was totally irrelevant to the dispute at hand if not just sloven. The only value it added to the case is the fact that it confirmed that the dogs were ordinarily locked in the compound and that an askari would restrain them before opening the gate.

16. In this case, the defendant/Appellant was admittedly a customer of the Respondents employer for purposes of provision of piped water. I take judicial notice as matter of common notoriety that such contracts between the parties entitled the service provider and its employees to visit the premises and take metre readings. I hold that the Appellant, as the occupier of the premises, owed a duty of care to visitors to the premises, knowing that the dogs were never disputed to have been fierce, to take reasonable precaution to ensure that such visitors are not hurt. On the evidence available on record, I am unable to find that that trial court committed any error as to entitle the court to intervene and interfere with its finding on liability. The four grounds of appeal therefore fail for lack of merits and are dismissed.

Was the award of damages excessive?

17. The settled principle of law on assessment of damages is that it is a difficult task and exclusively a discretionary matter vested upon the trial court. That discretion can never be interfered with unless it be shown that the trial court in arriving at the sum assessed acted on wrong principles and arrived at a figure that outrightly exhibit total erroneous estimates in damages.

18. In this matter in coming to his assessment the trial court took into account decided cases involving soft tissue injuries albeit resulting for road traffic accident and note attack by a dog. Even the decisions cited by the Appellant before the trial were all arising out of road traffic accident. It would appear that the counsel for the parties proceeded from the understanding that a soft tissue injury is a soft tissue injury however inflicted. I do find that the said counsel did not fully assist the court to exercise its discretion in assessment of damages.

19. However the court mandate is to come to own conclusions on all issues including the question of assessment damages if there be need to depart from that by the trial court based on the established principles.

20. Being aware of my boundaries as an appellate court, I must point out that no error has been demonstrated to me to justify my interfering with the exercise of discretion by the trial court in awarding a sum of Kshs.50,000/=. In any event I have read a decision by Mbogholi Msagha J in Iqbal Nanji & 2 Others vs Richard Kiprotich Ngeno [3] where the Judge an award of Kshs.450,000/= for a dog bite to be reasonable and meriting no disturbance. Earlier in Mombasa HCCA No. 13 of 2008, [4] Ojwang J commented by way of a dicta that an award of Kshs.50,000/= for a dog bite was modest.

21. In conclusion, I find that the award of Kshs.50,000/= to the Respondent by the trial court was modest and deserve no interference. In consequence the appeal fails in its entirety and is hereby dismissed with costs.

Dated and Delivered at Mombasa this 01st day of December 2017.

HON P.J.O. OTIENO

JUDGE

[1] Abok James Odera t/a A.J. Odera & Associates vs John Patrick Macharia t/a Macharia & Co. Advocates [2013] eKLR.

[2] Peters vs Sunday Post Ltd [1958] E.A. 424; Mwaura Sokoni vs Kenya Business Ltd [1985] KLR 931 and Kenya Ports Authority vs Kuston (Kenya) Ltd [2009] 2 EA 212

[3] [2017] eKLR

[4] [2011] eKLR