[2017] KEHC 3896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL APPEAL NO. 7 of 2014

(Being an appeal from the Judgment of the Chief Magistrate’s Court at Naivasha Civil Case No.45 of 2012, P. Gesora - SPM)

MT. LONGONOT MEDICAL SERVICES LIMITED……...1ST APPELLANT

GEORGE OKWOMI AWINDA…………………....……...2ND APPELLANT

-VERSUS-

ANDASON KITONYO KINYENZE…………….....................RESPONDENT

J U D G M E N T

1. This appeal arises from the judgment of Gesora SPM (as he then was) in Naivasha CMCC 45 of 2012. In the said cause, the Appellant herein was the Defendant and had been sued by the Respondent for damages in respect of injuries sustained in a road traffic accident that occurred on 23rd May 2010 along Kenyatta Avenue and Kariuki Chotara road. The accident involved the 1st Appellant’s vehicle KBD 766W Toyota Pick-up, at the time being driven by the 2nd Appellant the alleged servant and or agent of the 1st Appellant.

2. defence denied all the key averments in the plaint. In the alternative they pleaded contributory negligence against the Respondent. The trial court in its judgment apportioned liability between the parties at the ratio of 25:75% in favour of the Plaintiff and awarded the net sum of Shs 750,000/= as general damages.

3. The Appellant’s memorandum of appeal filed on 13/8/2014 carries five grounds of appeal as follows:-

“1. The learned trial Magistrate erred in law and fact by awarding excessive genera damages not commensurate with the nature, extend and severity of the pleaded injuries and was not supported by the relevant authorities produced in court during submissions.

2. The learned trial Magistrate erred in law and fact in failing to consider the submissions by the Defendant/Appellants herein.

3. The learned trial Magistrate erred in both law and fact in failing to consider the inconsistence and contradictions both the oral evidence and the documents produced by the Plaintiff/Appellants herein.

4. The learned trial Magistrate erred in apportioning liability at only 75:25% between the Appellants and Respondents respectively.

5. The learned trial Magistrate erred in both law and fact in applying wrong principles in finding thereby arriving at a decision that was fundamentally flawed.”

4. The parties agreed to dispose of the appeal by way of written submissions. The Appellants collapsed their grounds into three issues regarding the correctness of the apportionment of liability and the proportionality and the extent of damages awarded. In my own view the third issue concerning the correctness of the magistrates finding and the law overlaps with the 1st and 2nd issue and will be treated as such.

5. The main complaint raised therein is the trial court’s failure to consider evidence by a police officer, PW3, who blamed the respondent entirely for the accident. The Appellant’s view therefore is that the apportionment of liability was unjustified and that the Appellant should at most, bear the least liability for the accident or none at all.

6. Concerning the general damages awarded, the Appellants argued that the award was excessive and disproportionate to the injuries sustained by the Respondent. Relying on the case of Johnson Mose Nyaundi (minor suing through next friend and father Wilfred Wadimbe Nyaundi) -Vs- Petroleum & Industrial Service Limited [2014] eKLR,the Appellants urged the court to interfere and reduce the award to Shs 200,000/=.

7. For his part, the Respondent supported the trial court’s decision and argued that this court can only interfere if it is shown that some error was committed in the apportionment of liability. Concerning the testimony by PW3, the Respondent stated that it was not supported by the Police abstract produced, and neither did PW3 tender sketches drawn at the accident scene. The Respondent dismisses the witness as unreliable. That the trial court properly based its finding on the evidence of the 1st Appellant and Respondent which he has highlighted. The Respondent therefore urges the court to maintain the lower court’s decision regarding the apportionment of liability.

8. Regarding quantum the Respondent pointed out that the skeletal and soft tissue injuries sustained by him were severe and resulted in a bone deformity and 12% permanent disability. The award of Shs 1 million was therefore commensurate with the injuries, according the Respondent.

9. This being a first appeal, the court’s duty is to re-evaluate the evidence and draw its own conclusions while giving allowance for the fact that it did not have the opportunity to hear or see the witnesses testify – See Selle -Vs- Associated Boat Co Ltd. [1968] EA 123, Peter -Vs- Sunday Post Ltd [1958) EA 424, Williamson Diamonds Limited -Vs- Brown, [1970] EA 1.

10. In the case of Ephantus Mwangi & Another -Vs- Duncan Mwangi Wambugu [1982 – 88] 1 KAR 278, Hancox J.A. (as he then was) stated succinctly that:-

“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did”

The first holding in the case was that:-

“The court of appeal would hesitate before reversing the decision of a trial judge on his findings of fact and would only do so if

(a) it appeared that he had failed to take account of particular circumstances or probabilities material to an estimate of evidence or

(b) that his impression based on the demeanour of a material witness was inconsistent with the evidence in the case generally.”

11. The parties called witnesses at the hearing. It is common ground from respective testimony of the parties involved in the accident, namely the Respondent (PW2) and 2nd Appellant (DW1) that a collision occurred between the motor vehicle driven by the latter and Respondent on the night of 23rd May 2012. It is also common ground that the collision occurred along Kenyatta Avenue and that the Plaintiff sustained various skeletal and soft tissue injuries.

12. What has exercised the court’s mind in analyzing the evidence is the determination of the manner in which the accident occurred, and ultimately who was to blame for the collision. According to the Plaintiff he had successfully crossed Kenyatta Avenue at its junction with Kariuki Chotara road, and was about to board a motor cycle when the Appellant’s vehicle knocked him down. The Respondent stated further that:

“I did not see it (motor vehicle) coming because I was facing ahead when the motor vehicle hit me from behind. The motor vehicle then was on the wrong lance since it was on its rightful lane.”

In cross-examination he stated that he was intending to board a motor bike and had “just arrived at the motor bikes near the junction.”

13. For his part the 2nd Appellant said that he was driving down the Kenyatta Avenue to the junction when the Respondent staggered into the road from the driver’s right side, and despite braking, could not avoid hitting him. He stated in cross-examination that:

“I was doing a speed of 20 Km/hr. There were several people walking there. I was driving on the left side…….. I saw two people at a distance of 10 metres. I saw them clearly and on getting closer to them the Plaintiff herein jumped onto the road. He moved from the right side as I was on left. My side mirror him him.”

14. While I agree with the Respondent’s submissions on this appeal that PC Mbila who testified at the trial as PW3did not add value to the case, the failure by the police to draw and produce a sketch plan was a drawback. The omission rendered it impossible for any reasonable tribunal considering the conflicting versions, to conclude who exactly was at fault. If we accept that the Respondent was about to board motor cycle and was hit while on the right hand side of the road, it means that the 2nd Appellant was driving outside his lane, but also that the Respondent was standing inside the road while preparing to board the motor cycle. This is because there is no evidence that the Appellant’s vehicle went off the road at the time of the collision.

15. The 2nd Appellant’s version of the accident on the other hand suggests that the driver could not have been doing 20Km/hr as he asserts. Because, having allegedly seen the two pedestrians at 10 metres and keeping a proper look out whilst on his lane, the said driver ought to have been able to stop or take some other action to avoid the collision. More so if as the 2nd Appellant stated, the Respondent started out from the outer lane towards the inner lane. PW3not having visited the scene of the accident and without the benefit of a sketch plan was in no position to tell who was to blame in light of the two conflicting versions of the accident. While the Respondent claimed that he had already crossed from the left side to the right when knocked down, the 2nd Appellant said that the Respondent walked into the road from the right hand side.

16. The trial magistrate observed as follows his judgment:

“It is evident that as the Plaintiff was walking from oil Libya petrol station he was on the right side when approach Kenyatta Avenue. If the 2nd Defendant was driving along that road he was required to use the left lance which implies that there was the adjacent lance which was vacant thereby giving an allowance to any new user to maneuver in case of anything. The Plaintiff stated that he was hit as he was about to board a motor cycle and that too from behind. The Plaintiff too had a duty to care while using the road.

PW3 stated in passing that the Plaintiff was to blame for the accident but he never substantiated the same. The 2nd Defendant never stated what steps he took to avoid the accident implying that he was not alert. My assessment of the scenario makes me conclude that both parties are to blame for the accident but most certainly the 2nd Deferent will shoulder a large percentage owing to his conduct to which the 1st Defendant is vicariously liable. I accordingly enter judgment on findings for 25% against the Plaintiff and 75% against the Defendant jointly and severally.”

17. I agree with the court’s view on the testimony ofPW3. However, the trial magistrate’s observation concerning an adjacent lane available to the driver suggests that the Respondent appeared from the left side of the 2nd Respondent’s vehicle. That is incorrect. The Respondent’s evidence was that he was on the right side of the 2nd Respondent’s vehicle, and that the said vehicle encroached onto the right hand side lane where it collided into him. He said that at the said moment, he had already crossed the Kenyatta Avenue junction with Kariuki Chotara road. He claimed to have been walking from Oil Libya which is to the left side of the said junction.

18. The 2nd Appellant accepted that the Respondent when he first saw him was to his right, and not the left side before attempting to cross towards his side. The learned magistrate clearly misapprehended the evidence before him in observing that there was a lane to the right providing room for maneuver. That is the side where the Respondent admittedly was, moments before the collision. Secondly, the 2nd Appellant testified that he slowed down to avoid the collision, contrary to the court’s assertion.

19. In the circumstances while I agree with the trial magistrate’s finding that both parties were to blame, there was no evidential basis for the finding that the 2nd Appellant was substantially to blame. In a case like this where there is conflicting evidence, the best approach is to apportion liability equally between the parties. In the case of Haji –Vs- Marair Freight Agencies Ltd [1984] KLR 139 that:-

“Where it is proved by evidence that both parties are to blame and there are no means of making a reasonable distribution between them, the blame can be apportioned equally on each.”

20. The facts of the present compare with those in W. K.(Minor suing through next friend and mother L.K.) –VS- Ghalib Khan Neer Construction Nyeri Civil Appeal No. 328 of 2005. In that case a young girl aged 11 years was knocked down by a vehicle while crossing a road – almost having completed crossing the road. The Defendant claimed, as here, that the minor ran into the road and was caught by the right rear of the vehicle. He admitted that the driver had seen her by the road side before starting to cross. The evidence of the parties made it impossible to determine which party was liable for the accident. The learned judge concluded that Plaintiff had failed to prove negligence and dismissed the case.

21. On appeal, the Court of Appeal reviewed the facts of the case as follows:

“There was the evidence of the appellant that there was a road traffic accident where the 1st respondent’s motor vehicle knocked her down as she was crossing the road. The evidence was that she was hit by the vehicle at the side of the road after crossing the road. On the other hand, there was the evidence of the 1st respondent that the appellant ran into the road from right to left and was knocked by the right rear side of his vehicle. The first respondent testified that he had seen the appellant and other girls standing beside the road. The appellant did not plead in his defence that the appellant ran into the road. Rather, he pleaded that the appellant walked directly on to the path of his vehicle. He also attributed negligence to the appellant for standing on the middle of the road holding hands with another girl totally oblivious of oncoming vehicles. However, he denied in his evidence in cross-examination that the appellant was standing in the middle of the road holding hands with another girl. Thus his evidence is inconsistent with his pleadings. There was no independent evidence in this case such as evidence of investigations of the accident by traffic police. Thus, there was no concrete facts on which a finding would be made that the appellant was solely negligent. This was a case of conflicting evidence and the finding of the trial Judge that the appellant had not proved negligence and that had she proved her claim he would have apportioned liability 90% against her and 10% against 1st respondent shows indecision.

In Haji -Vs- Marair Freight Agencies Limited [1984] KLR 139 it was held that where it is proved by evidence that both parties are to blame and there are no means of making a reasonable distribution between them, the blame can be apportioned equally on each………”

Finally the Court stated that:-

However, in the absence of clear evidence of the contribution of each to the accident, justice of the case would have been met by apportioning blame equally. We are satisfied and we find that the trial Judge misdirected himself in finding that the appellant was solely to blame for the accident.”

22. Concerning the quantum of damages, the principles laid down in Kemfro Africa Limited t/a Meru Express Services (1976) & Another -Vs- Lubia & Anor. (No. 2) [1985] eKLR are pertinent. The court stated:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. This Court follows the same principles.”

23. The medical report produced at the trial by Dr. Wokabi (PW1) shows that the Respondent sustained double fractures of the right fibia and also fibula, in addition to facial abrasions and laceration. As a result of the injuries, the Respondent had to undergo surgical procedures to fix the fractures with metal plates. Almost two years later he was still walking with the aid of crutches. There was noted deformity on the lower fracture site. Although the bones were in the process of uniting the metal plates were still in situ pending removal. Dr. Wokabi assessed 12% permanent functional disability.

24. There can be no doubt that these injuries were severe. The Appellants’ complian that their submissions on quantum were given short shrift by the learned trial magistrate. In his submissions on quantum before the lower court the Respondent had urged an award of Shs 1. 5 million and cited 3 authorities in decisions by Sitati J.

25. The Appellants at the time seemed content to urge the court to dismiss the claim and hence did not submit in any substantive manner regarding general damages. They sought to do so on this appeal citing the case of Johnson Mose Nyaundi (Supra) where the appellate court confirmed an award of Shs 180,000/= as general damages in respect of soft tissue injuries and tibia/fibula fractures suffered by a minor plaintiff.

26. Evidently the fractures sustained by the Respondent in this case were more severe being double fractures. In considering an appropriate award the lower court reviewed two of the authorities cited by the Respondent namely Machakos HCCA No. 12 of 2005 Savco Stores Limited -Vs- David Mwangi Kimothoand Machakos No. HCC 106 of 2003; 2008 eKLR Charles Mwana & Another -Vs- Batty Hassan(Suing through his grandmother and next friend Safina ali Singila)[2008] eKLR.

27. I have on my own reviewed these decisions and noted that they compare well with the instant case. Even then, it would have been useful for the Respondent to include decisions by different judges for purposes of a wider comparison. Be that as it may, I do not think that in the present case an award of Shs 200,000/= as urged by the Appellants would be adequate compensation for the Respondent. Apart from the fact that the injuries sustained by the minor in Nyaundiappear to be less severe, there was no resultant permanent disability.

28. The impugned award herein was made some six years since the decision cited by the Respondent. The award of Shs 1,000,000/= in this case cannot be said to be so inordinately high as to be wholly erroneous. I decline to interfere with the award therefore. The judgment of the learned trial magistrate based on the new liability of 50:50 will therefore be varied as follows:

General damages Shs 1,000,000. 00

less 50% Shs 500,000. 00

Net Shs 500,000. 00

Special damages Shs 82,700. 00

Less 50% Shs 41,350. 00

Net Shs 41,350. 00

Total 541,350. 00

29. The parties will share equally the costs of this appeal and the suit in the lower court. Judgment is accordingly entered for the Respondent against the Appellants.

Delivered and signed at Naivasha this 19th day of July, 2017.

In the presence of:-

Mr. Wairegi holding brief for Ms Owino for the Appellants

N/A for the Respondent

Court Assistant – Quinter Ogutu

C. MEOLI

JUDGE