[2022] KEHC 11800 (KLR)

Muinde v Theophilus (Civil Appeal 117 of 2018) [2022] KEHC 11800 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11800 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 117 of 2018

MW Muigai, J

July 12, 2022

Between

Gedion Kioko Muinde

Appellant

and

Jackson Theophilus

Respondent

(Being an appeal from the judgment of Hon Lorot, HR (SPM.) in the Machakos CMCC No 143 of 2015 delivered on 27/08/2018))

Judgment

Plaint Dated March 2, 2015 1. By plaint dated March 2, 2015 and filed on March 3, 2015 the appellant as the plaintiff sued the respondent as the defendant in Machakos CMCC No 143 of 2015.

2. The claim is based on a road traffic accident that occurred on February 13, 2014, the plaintiff was lawfully travelling in motor vehicle Reg KBU 831D along Machakos -Kitui road. At Masii, the defendant by himself or his driver, servant /agent drove negligently and caused the vehicle to lose control veer off the road and overturn. As a result of the accident, the plaintiff sustained injuries and suffered loss and damage.

3. The appellant sustained severe injuries being;a.Blunt head injuryb.Cut wound on the scalp right sidec.Blunt injury left shoulderd.Extensive friction bruise right shouldere.Blunt injury left hip

4. The particulars of negligence against the appellant are pleaded at paragraph 5(a) to (g) of the plaint. The appellant relied on the doctrine of res ipsa loquitor.

5. The plaintiff sought (a) special damages of Kshs 5,700/-, (b) general damages for pain, suffering and loss of amenities (c) cost of this suit (d) interest on (a), (b) and (c) at court rates plus any other relief the court may deem fit and just to grant.

Defence Dated July 8, 2015 6. The defendant denied all the appellant’s averments in the plaint save for its description. According to the appellant, if the accident occurred on February 13, 2014 the same was caused and or contributed by the negligence of the appellant/plaintiff; He denied the alleged injuries, loss and damage pleaded and puts the plaintiff to strict proof thereof; that he was never been blamed, charged or convicted in relation to any accident and particular the one alleged to have occurred on February 13, 2014 involving motor vehicle KBU 831 D and finally he stated that he had never been served with a demand notice.

Reply To Defence Dated July 14, 2015 7. The respondent reiterated the contents of the plaint and denied the respondent allegation that if any accident occurred it was caused or contributed by the negligence of the appellant.

8. On August 16, 2016 the appellant herein filed an amended plaint which was subsequently replied to by the defense vide their amended defense.

Court Record 9. On April 3, 2018 parties filed consent in trial court which was adopted in court on April 4, 2018 compromising liability at the ratio of 85:15 in favor of the appellant/plaintiff as against the respondent/defendant. The parties agreed to file written submissions on quantum and attached supporting documents.

Judgment Of The Court 10. The trial court delivered its judgment on August 27, 2018 dismissing the appellant/plaintiff’s suit in its entirety.

Appeal Dated September 3, 2018 11. Aggrieved by the judgment of the trial court delivered on August 27, 2018 the appellant appealed against the said decisions based on the following grounds:-(1)That the learned trial magistrate erred in law and in fact by failing to consider all the appellant’s pleadings and thus arriving at an erroneous decision.(2)That the learned trial magistrate erred in law and in fact by failing to consider the consent by the parties on liability in which the occurrence, the date and circumstances of the accident the subject matter of the suit had been agreed upon between the appellant/respondent.(3)That the learned trial magistrate erred in law and in fact by considering extraneous factor since coming upon with the judgment and branding the appellant’s claim fictitious.(4)That the learned trial magistrate erred in law and in fact by awarding costs to the respondents and not the appellant.(5)That the learned trial magistrate erred law and in fact by failing to assess the quantum of damages awarded to the appellant.

12. The appellant urged the court to set aside the judgment in CMCC No 143 of 2015 and proceed to assess the quantum of damages awardable to the appellant.

Appellant’s Submissions 13. It was submitted that on April 4, 2018 when the matter came up for hearing before the trial court the appellant and the respondent entered into a consent on liability at the ratio of 85:15 in favour of the appellant and the same consent was adopted as an order of the court. Parties were directed by the court to file submissions on quantum hence the decision by the trial court’s failure to consider the appellants pleadings, consent, documentary evidence and submissions in reaching his judgment and failing to award quantum for the injuries sustained as per the claim supporting documents it relied on wrong principles.

14. Reliance was made in the case ofNdungo Dennis v Ann Wangari & anor [2018] eKLR the court stated that;-“I will begin by ascertaining the injuries suffered by the respondent. The injuries described in the treatment card, discharge card and P3 form are fairly consistent. The injuries included minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg. All these three conclude that the injuries are “soft tissue injuries.” However, the medical report tendered by Dr GK Mwaura, who testified for the respondent adds the following injuries to these: blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands. That report also says that the Respondent still experiences back pains and chest pains on exertion.It might be fair to say that the learned trial magistrate based his finding on quantum on this report by Dr Mwaura. I, however, find the report less reliable than the treatment notes, the discharge card and the P3 form which are all consistent. The treatment notes were filled immediately after the accident by the treating medical practitioner without any interest in the case. It is fairly categorical that the respondent was conscious when brought to the health facility ...................................”In the above case it would appear that either the trial court proceeded without a proper finding of the actual injuries suffered by the respondent or he erroneously relied on the medical report only.”

15. It is submitted that the respondent voluntarily entered into a consent as to liability hence it is the duty of the court to award quantum for the injuries sustained.

16. See also the case of Rosemary Wanjiru Kungu v Elijah Macharia Githinji & anor and A Rahima Tayab & others v Anna Mary Kinanu CA No 29 of 1982 [1983] KLR 114; KAR 90.

17. It was submitted that this appeal has merit as the trial magistrate misdirected himself on irrelevant factors leaving relevant factors for consideration by failing to award quantum as to the injuries sustained.

Respondent’s Submissions 18. The respondent did not file their written submissions as directed by this court on December 6, 2021 where each party was given 30 days to file and exchange their submissions.

Determination 19. The issue before this court on appeal is whether the judgment of the trial court of August 27, 2018 dismissing the plaintiff’s/appellant’s claim should be set aside or not.

Court Record 19. The memorandum of appeal was filed on September 4, 2018 well within the stipulated 30 days period for filing an appeal. The record of appeal was filed on November 8, 2021 and served on/to the defendant/respondent as confirmed by affidavit of service filed on November 18, 2021.

20. On December 6, 2021 the matter was mentioned for directions on disposal of the appeal. The respondent despite service did not appear or attend or send a representative to this court. Written submissions were to be filed each party within 30 days each.

21. On February 1, 2022, the parties had not filed written submissions and a further mention was on March 3, 2022 when this court was not sitting being away on official duty.

22. On March 29, 2022, the date obtained from the Registry, appellant’s counsel Mr Mbulu confirmed filing of written submissions on February 1, 2022. Counsel confirmed service of the mention notice via e mail and a copy was annexed and filed affidavit of service of March 28, 2022.

23. The respondent despite service failed to appear, respond, send representative or file written submissions. In the absence of any reasons, circumstances or explanation presented to this court to consider, the judgment was slated for May 19, 2022.

Appeal 24. In this appeal, the appellants are challenging dismissal of the suit filed at Chief Magistrate’s Courts Machakos in RMCC No 3289 of 2015. The appellant also contends that the trial magistrate failed to consider the consent by parties on liability at 85:15 in favour of the plaintiff and assess the damages that would have been awarded to the appellant as required by the law.

25. This being a negligence claim against respondent, the standard of proof required is on balance of probabilities hence the two issues for determination are namely; whether the appellant proved his case on a balance of probabilities and whether the doctrine of res ipsa loquitor is applicable in the circumstances.

26. 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.”

27. 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.

28. The appellant relied on the doctrine of res ipsa loquitor which means according to the Black’s Law Dictionary (8th Ed) page 1336, “the thing speaks for itself”.

29. In Nandwa v Kenya Kazi Limited [1988] eKLR, Court of Appeal (Gachuhi JA) cited, with approval, a portion Barkway v South Wales Transport Company Limited [1956] 1 ALLER 392, 393 B on the nature and application of the doctrine of res ipsa loquitur as follows:“The application of the doctrine of res ipsa loquitur, which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things, was more likely than not to have been caused by negligence was itself evidence of negligence, depended on the absence of explanation of an accident, but, although it was the duty of the respondents to give an adequate explanation, if the facts were sufficiently known, the question reached would be one where facts spoke for themselves, and the solution must be found by determining whether or not on the established facts negligence was to be confirmed.”

30. The court is to find out whether the appellants discharged the burden of proof on balance of probabilities. Is it driver or the plaintiff herein who was to blame for the accident?

31. This being the first appeal court, its duty is well expressed in Selle v 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.”

32. The typed proceedings and the original record confirm that the plaintiff/appellant was in court on October 6, 2016 for hearing of the matter.

33. The defendant adjourned the matter and was to pay costs and adjournment fee of Ksh 3,100/- On March 30, 2017, the defendant failed to appear/attend court. On May 18, 2017, parties informed the court that they were negotiating. On July 15, 2017, the plaintiff was in court but not all/any other witnesses. He was not heard and yet he was condemned to pay adjournment fees. It is not clear from the record why if the plaintiff was in court he was not heard but condemned to pay adjournment fees. On October 27, 2017, the defendant was absent. On April 4, 2018 parties through counsel filed consent on liability at 85%:15% in favour of the plaintiff and parties were to file written submissions.

Plaintiff’s Submissions Of April 12, 2018 34. The plaintiff sustained;Blunt head injury; bruises on right ankle; blunt neck injury & fracture of 1 right rib.

35. The plaintiff was treated at Machakos Level 5 Hospital on February 12, 2014 as per the medical card attached. He sustained injury on the head and chest there was tenderness on right chest and 1 rib fracture. He was later examined by Dr Kimuyu on November 24, 2014. He had healing bruises on the right ankle region, mild tenderness on the chest and had no permanent incapacity. On October 27, 2015 he was examined by Dr Maina Ruga ( Dr examination by defendant’s instruction) and chest x-ray of February 13, 2015 showed no rib fractures.

36. The plaintiff submitted an award of Ksh 300,000/- for similar injuries but included fracture of 3rd rib and humero clavicular displacement in the case of China Wu Yi Co Ltd v Andrea Githinji Gitonga [2016] eKLR & similar injuries blunt injuries on the chest wall and left hip & fracture of 2nd rib in the case of Lenson Products Ltd & anor v Njeri Mburu [2014] eKLR an award of Ksh 250,000/-.

37. The plaintiff sought Ksh 500,000/- general damages and special damages of Ksh 5,700/-. The plaintiff produced/attached P3 form, police abstract& copy of records (ownership of motor vehicle).

Defendant’s Submissions 38. The defendant relied on Dr Ruga’s medical report of October 27, 2015 that the plaintiff had no permanent injuries, no fracture and had only soft tissue injuries with high probability of healing.

39. Similar cases were referred to; Simon Taveta v Mercy Mutitu Njeru [2014] eKLR a single fracture with soft tissue injuries was awarded Ksh 150,000/-. Homegrown K Ltd v Jacklim Bonaberi Otieno [2014] eKLR where the plaintiff sustained a fracture at the end of left radius with soft tissue injuries was awarded Kshs 170,000/- special damages as pleaded and proved only to be paid.

40. The trial court’s judgment of August 27, 2018 made reference to the plaintiff’s documents that depicted glaring discrepancies as follows;a)Outpatient medical card from Machakos Level 5 Hospital dated February 12, 2014. b)The police abstract indicates the accident occurred on February 13, 2014 at 9am.c)The P3 form was issued on February 24, 2014. d)Dr Kimuyu’s medical report was of November 24, 2013 & accident reflected as March 3, 2013. e)The injuries depicted in the plaint and those of the verifying affidavit were not consistent outline the injuries, as follows:Plaint:(a)Blunt head injury(b)Cut wound on the scalp right side(c)Blunt injury left shoulder(d)Extensive friction bruise right shoulder(e)Blunt injury left hipVerifying Affidavit:a.Concussion of the brainb.Blunt head injuryc.Contusion to the neckd.Blunt chest injurye.Fracture of 1 ribf.Deep cut wounds right ankle region

41. From the above, the trial court took the view that arising from the above inconsistencies they were not based on inadvertence or innocent mistake but this was a fictitious claim.

42. This court finds that the conclusion maybe true but could be only reached after the plaintiff/appellant has been accorded a fair hearing.Article 22, 48, 50 & 159 of CoK 2010 & section 1A 1B & 3A of CPA mandate a party to access justice; allow its claim or defense be heard and determined on merit and disposed of expeditiously and a party be accorded a fair hearing.

43. In the instant case; the court record confirms on various occasions the plaintiff was present ready to be heard and the defendant not always present or ready to proceed. The plaintiff was not accorded a fair hearing. Where consent on liability was filed and parties agreed to file written submissions, and the trial court found discrepancies on dates on documents and different injuries. The authors ought to have been called to testify and not to condemn the plaintiff unheard.

44. Parties are bound by the pleadings filed. The defense consists of mere denial and contributory negligence to the plaintiff but the defendant never pleaded that the plaintiff’s claim was a fictitious one. Infact parties voluntarily entered into consent on liability at 85:15 and filed it in court, this means the defendant did not contest that an accident occurred and that the plaintiff was involved or injured as a result but contested the injuries sustained. Ideally, the plaintiff’s claim ought to be upheld or dismissed upon adducing /presenting evidence to prove the claim based on the legal standards of proof under section 107-109-111 of Evidence Act and after being accorded a fair hearing.

45. Thirdly, whereas there are inconsistencies with regard to dates on the documents/reports relied on by the plaintiff, with respect that he was not the author of any of the documents. The authors ought to have been called to testify and to be cross-examined to test the veracity of the evidence and credibility of the witnesses eg; scene visiting/investigating officer and doctor(s).

46. Fourthly, it is only through hearing and determination of the dispute process that the trial court would arrive at an informed decision of whether the plaintiff’s claim was/is fictitious or not.

47. The issue of injuries being inconsistent, this court considers that the examination of the plaintiff after the accident, naturally injuries may have been severe or varied. Thereafter, due to time and medical intervention, healing occurred and some injuries may have subsided and healed completely others may have reduced in pain and visibility. Therefore, these possibilities may affect the variety and/or severity of injuries. Both medical reports confirmed that there was no permanent incapacity to the plaintiff.

DISPOSITION 48. For the reasons outlined above, this court upholds the appeal and sets aside the judgment of August 27, 2018 and all consequential orders.

49. The suit is reinstated and remitted for hearing and determination on merit in any court within Chief Magistrates Court Machakos.

50. The defendant /respondent shall be served /advised on the hearing interpartes.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12THJULY 2022 (VIRTUAL CONFERENCE).MW MUIGAIJUDGE