[2022] KEHC 9828 (KLR)

Mubia & another v Okoko & 3 others (Civil Appeal Suit E043 of 2021) [2022] KEHC 9828 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9828 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal Suit E043 of 2021

JN Kamau, J

July 19, 2022

Between

Muthoni Mubia

1st Appellant

Transline Galaxy Company Limited

2nd Appellant

and

Loice Atieno Okoko

1st Respondent

Man Oguta Ochieng

2nd Respondent

Patrick Arekai Maya

3rd Respondent

Wedco Clothing Tender Ltd

4th Respondent

(being an appeal from the Judgment and decree of Hon B. M. Kimutai (SPM) delivered at Keroka in Senior Principal Magistrate’s Court Case No 3 of 2017 on 2nd June 2021)

Judgment

Introduction 1. In his decision of 2nd June 2021, the Learned Trial Magistrate, Hon B. M. Kimutai, Senior Principal Magistrate, found the Appellants, 2nd and 3rd Respondents to have been jointly and severally to blame for the accident herein and entered Judgment in favour of the 1st Respondent herein as follows:-General Damages Kshs 700,000/=Special Damages Kshs 122,100/=Kshs 822,100/=Plus costs of the suit and interest thereon.

2. Being aggrieved by the said decision, on 9th June 2021, the Appellants herein filed a Memorandum of Appeal dated 4th June 2021. They relied on eleven (11) grounds of appeal.

3. The Appellant’s Written Submissions were dated 15th February 2022 and filed on 16th February 2021 while those of the 1st Respondent, erroneously titled 1st Appellant’s Written Submissions, were dated 27th November 2022 and filed on 30th November 2022. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court is not bound necessarily to accept the findings of fact by the court below and that on appeal while it must reconsider the evidence, evaluate it itself and draw its own conclusions, it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

6. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were:-a.Whether or not the Learned Trial Magistrate erred in having found the Appellants to have been jointly and severally to blame for the accident herein warranting interference by this court; andb.Whether or not the Learned Trial Magistrate erred in having awarded the 1st Respondent herein damages that were excessive and/or inordinately high warranting interference by this court.

7. The court therefore found it prudent to determine the said issues under the following distinct and separate heads.

I. Liability 8. Grounds of Appeal Nos (1), (2), (3), (4), (8) and (9) were dealt with under this head because they were all related.

9. The Appellants wholly blamed Motor Vehicle Registration Number KYG 846 (hereinafter referred to as “the 1st subject Motor Vehicle”) for having caused the accident (sic) because if it had not been driven in a zig zag manner and veered into the lane of Motor Vehicle Registration Number KCF 432R (hereinafter referred to as “the 2nd subject Motor Vehicle”) in which the 1st Respondent herein was traveling in, then the accident would not have occurred. They were emphatic that they did not cause the said accident as the same occurred on the rightful lane and hence, the driver of the 1st subject Motor Vehicle was negligent.

10. They submitted that the driver of the 1st subject Motor Vehicle owed other road users a duty of care. In support of their arguments, they placed reliance on the case of Ricarda Njoki Wahome (suing as the administrator of the estate of the late Wahome Mutahi (deceased) vs Attorney General & 2 Others [2015] eKLR where it was held that for negligence to arise, there had to be a breach of duty and the breach of duty must have been the direct proximate cause od loss, injury or damage.

11. They also relied on the case of De Frias v Rodney 1998 BDA L5 15 that was cited in the case of Mohammed Kassim & 2 Others vs Salim Fumo Bwanamkuu [2019] eKLR where it was held that for a person to be found guilty of contributory negligence, all that was required was that the plaintiff should have failed to take reasonable care of their own safety.

12. On her part, the 1st Respondent submitted that she testified that she took care of her safety by fastening her seat lead and further that her testimony remained unrebutted as the Appellant did not adduce any evidence during trial. She relied on Section 109 of the Evidence Act Cap 80 (Laws of Kenya) which stipulates that the burden of proof lies on the person who wishes the court to believe in its existence.

13. A perusal of the proceedings shows that on 24th July 2016, the 1st Respondent was a lawful passenger in the 2nd subject Motor Vehicle that belonged to the 2nd Appellant herein. The same was being driven along Nairobi- Kisii Road at a high speed. According to the 1st Respondent herein, she saw the 1st subject Motor Vehicle being driven in a zig zag manner and hit the 2nd subject Motor Vehicle. She was emphatic that the 2nd subject Motor Vehicle was on its lane.

14. According to No 69256 Corporal Prisca from Keroka Police Station Nyanchama (hereinafter referred to as “PW 3”), the 1st subject Motor Vehicle left its lane and hit the 2nd subject Motor Vehicle. Her evidence was that no one was charged for having caused the accident. While testifying for the defence, she asserted that she did not know which vehicle went to the other lane.

15. In his judgment, the Learned trial Magistrate observed that PW 3 who also testified for the defence and was also referred to as “DW 1” did not help the court in deciding who was to blame for the accident because she did not know which motor vehicle veered into which lane. As the Defence did not call the driver of the 1st subject Motor Vehicle, the Learned Trial Magistrate found that the Appellants, 2nd and 3rd Respondents to have been jointly and severally liable for the accident herein.

16. This court had due regard to the decision of the Court of Appeal in Hussein Omar Farah Versus Lento Agencies [2006] eKLR where it was held:-“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

17. For one to be found to have contributed to the causation of an accident, they ought to have reasonably foreseen that their action or omission was likely to lead to loss, injury or damage. It was the view of this court that the driver of the 2nd subject Motor Vehicle ought to have reasonably foreseen that speeding could impair his ability to take evasive action to avoid an accident that was caused by a negligent road user. The said driver did not testify so as to assist the court in appreciating the action that he took to avoid colliding with the 1st subject Motor Vehicle when it veered into his lane. For that reason, the Appellants could not escape liability.

18. In the absence of any evidence by the 2nd and 3rd Respondents during trial and bearing in mind the 1st Respondent’s and PW 3’s evidence before she recanted that the 1st subject Motor Vehicle veered into the lane of the 2nd subject Motor Vehicle, this court took the firm view that the driver of the 1st subject Motor Vehicle was more to blame for the accident that occurred.

19. In the premises foregoing, this court found and held that apportionment of liability at 80%-20% against the 2nd and 3rd Respondents and the Appellants respectively would be fair in the circumstances of the case herein.

20. In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4), (8) and (9) were partially merited and the same be and are hereby upheld.

I. Quantum 21. Grounds of Appeal Nos (5), (6), (7) and (10) were dealt with under this head as they were all related.

22. The Appellants urged this court to reduce the award of general damages to Kshs 300,000/= as the same was adequate compensation. They relied on the cases of Kenya Power Lighting Ltd vs Zakayo Saitoti Naingola & Another [2008] eKLR, Kenyatta University vs Isaac Karumbe Nyuthe [2014] eKLR and Joshua Mwaniki Nduati vs Samuel Muchiri Njuguna [2005] eKLR where the courts therein awarded between Kshs 250,000/= and Kshs 300,000/= for injuries that were similar to those that the 1st Respondent herein sustained.

23. On her part, the 1st Respondent stated that she had opined that a sum of Kshs 2,000,000/= would have been adequate compensation but that the Trial Court awarded her Kshs 700,000/= general damages.

24. It is well settled in law that an appellate court will not disturb an award of general damages unless the same is so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko[ 2004] eKLR.

25. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.

26. However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents.

27. Indeed, in the case of Kigaraari vs Aya(1982-88) 1 KAR 768, it was stated as follows:-“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”

28. According to Dr Peter Morabu Momanyi (hereinafter referred to as “PW 3”) of Kisii Teaching and Referral Hospital, the 1st Respondent sustained a fracture of the right femur, swelling in the knee with a patella fracture and fracture of the right fibula. When he was cross-examined, he stated that the hospital attendance notes did not indicate that the 1st Respondent sustained a fracture of the right fibula. The P3 Form showed that the 1st Respondent suffered high impact injuries that were classified as “grievous harm”. This court took the view that failure to indicate fracture of the right fibula did not negate the fact that the 1st Respondent sustained serious injuries.

29. Remaining faithful to the doctrine of stare decisis, this court had due regard to the case of Florence Njoki Mwangi vs Chege Mbitiru [2014] eKLR with a view to coming to a fair and reasonable assessment of the general damages that ought to be awarded herein.

30. Sitting on appeal in that case, Wakiaga J allowed a sum of Kshs 700,000/= general damages where a plaintiff had sustained fractures of femurs bilaterally, two degloving injuries of the right knee and the right ankle and concluded that she would need money to remove k-nails and screwsor.

31. Bearing in mind the injuries she sustained and comparable general damages that have been awarded in similar cases, that this court came to the firm conclusion that the sum of Kshs 700,000/= that was awarded by the Learned Trial Magistrate was not inordinately high so as to warrant the interference by this court. Notably, the Appellants had relied on very old authorities that did not take into account the inflationary trends.

32. In the premises foregoing, Grounds of Appeal Nos (5), (6), (7) and (10) Ground was not merited and the same be and is hereby dismissed.

Disposition 33. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 9th June 2021 was partly merited. The effect of this is that the apportionment of liability against the Appellants and the 2nd and 3rd Respondents herein jointly and severally that was entered by the Learned Trial Magistrate against the Appellants and the 2nd, 3rd and 4th Respondents herein jointly and severally be and is hereby set aside and/or vacated and the same be and is hereby replaced with a Judgement that liability be and is hereby apportionment at 80%- 20% basis against the 2nd, 3rd and 4th Respondents and Appellant herein respectively.

34. Accordingly, judgment be and is hereby entered in favour of the 1st Respondent herein against the Appellants, 2nd, 3rd and 4th Respondents jointly and severally herein for the sum of Kshs 822,100/= made up as follows:-General Damages Kshs 700,000/=Special Damages Kshs 122,100/=Kshs 822,100/=Plus costs of the suit and interest thereon at court rates. Interest on general damages will accrue from the date of judgment while interest on special damages will accrue from the date of filing suit.

35. For the avoidance of doubt, the Appellants will only be liable to pay the 1st Respondent general and special damages in the sum of Kshs 164,420/= while the 2nd, 3rd and 4th Respondents will be liable to pay the 1st Respondent general and special damages in the sum of Kshs 657,680/=. Costs and interest as aforesaid will be on the same ratio of apportionment of liability.

36. As the Appellants were partially successful in the Appeal herein, each party will bear its own costs of the Appeal herein.

37. It is so ordered.

DATED AND DELIVERED AT NYAMIRA THIS 19TH DAY OF JULY 2022J. KAMAUJUDGE