[2023] KEHC 27450 (KLR)

Muiruri & 2 others v Mbugua (Civil Appeal E246 of 2022) [2023] KEHC 27450 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27450 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E246 of 2022

DO Chepkwony, J

December 14, 2023

Between

George Kamau Muiruri

1st Appellant

Mataara Sacco

2nd Appellant

John Maina Njoroge

3rd Appellant

and

Joseph Nganga Mbugua

Respondent

(Being an appeal from the Judgment delivered on 20th September, 2022 at the Chief Magistrate’s Court at Thika by the Honourable B. Ekhubi, PM in Thika Civil Suit No.794 of 2018))

Ruling

1. The Appeal herein emanates from the Judgment of the trial court whereupon the Respondent sued the Appellants seeking for general damages, special damages, costs and interest of the suit arising from road traffic accident which occurred on 27th August, 2018 along Ruiru-Kiambu road where he was travelling as a lawful passenger in Motor Vehicle Registration No.KHN 818C which was being driven by the 3rd Appellant.

2. In the amended Plaint, the Respondent stated that the 3rd Appellant with the authority of the 1st and 2nd Appellants, so negligently drove, managed and/or controlled the motor vehicle that it lost control and collided, a result of which he sustained severe bodily injuries from which he endured and continues to endure pain and suffering, loss and damages.

3. Particulars of negligence on the part of the Respondent were as pleaded at Paragraph 5 of the amended Plaint while the particulars of injuries and damages were pleaded at Paragraph 7 of the same.

4. In response, the Appellants entered appearance and vide a statement of defence dated 17th December, 2018, which was later amended and filed on 22nd June, 2022, denied the claim but pleaded that if at all the accident happened, then it was as a result of negligence on the part of the respondent. They urged the court to dismiss the Plaintiffs’ suit with costs.

Evidence 5. The parties were heard on diverse dates with effect from 30th January, 2020. PW1 was Sergeant Jane Matuu, a Traffic Police Officer attached to Ruiru Traffic Base and she confirmed the occurrence of the accident involving both motor vehicles on 27th August, 2018 at around 6. 30pm. She also confirmed that P.C Kosgey and P. C. Ndungu visited the scene. It was her testimony that the motor vehicles were heading opposite direction and Motor Vehicle Registration No.KCC 535U was blamed for the accident for failing to keep to its lane hence leading to the collision. PW1 further stated that the driver of Motor Vehicle Registration No.KCC 535U, who is the 1st Appellant herein was charged with the offence of careless driving contrary to Section 49(1) of the Traffic Act vide Thika Traffic case NO.1475 of 2018, wherein he pleaded guilty and was sentenced to pay a fine of Kshs.80,000. 00 and in default serve six (6) months imprisonment. PW1 produced the covering reports, recommendation thereof, charge sheet and police abstract as Plaintiff Exhibits 1(a), (b) and (c) respectively and P.Exhibit 2. When cross-examined, PW1 maintained that the two motor vehicles were being driven from opposite direction.

6. PW2, Dr. G. K. Mwaura testified as the General Physician who examined the Respondent on 24th September, 2018 and then preferred a Medical Report which he produced as Plaintiff Exhibit P4(a). according to the Physician (PW2) the Respondent sustained bruises on the nose and upper lip, blunt injury on the forehead and left cheek, had concussion, bruises on the right leg, blunt injury on the right and left leg and bruises on the right shoulder.

7. PW3, Joseph Nganga is the Respondent and he sought to rely on is statement filed on 15th January, 2019 which was adopted as his evidence in chief. He also had his list of documents filed on even date produced as Plaintiff’s Exhibits 1 (demand letter), 3 (copy of P3 form), 5 (copy of hospital cards and receipts) and 6 (copy of records). PW3 blamed the driver of the Motor Vehicle Registration NO.KCC 535N for hitting the vehicle he was travelling in. He also told court that he had fully recovered. In cross-examination, PW3 told court that he was travelling in a Matatu Registration No.KBN 818C which was hit by Motor Vehicle Registration No.KCC 535C whereby he sustained injuries and lost consciousness briefly but was treated and is now recovered.

8. DW1 – Dr. Jennifer Kahuthu, a General Practitioner testified on behalf of his colleague, Dr. Khamwenge Ruth who had re-examined the Plaintiff and preferred a Medical Report dated 19th February, 2019 which she produced as D.Exhibit 1.

9. In its Judgment, the trial court held the Appellant wholly liable for the accident and awarded the Respondent Kshs.250,000. 00 in general damages, Kshs.9,000. 00 as special damages together with interest and costs of the suit.

10. Aggrieved with the Judgment of the trial court, the Appellants filed the Memorandum of Appeal on 17th October, 2022, wherein the following grounds have been cited:-a.The Learned Magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.b.The Learned Magistrate's decision was unjust, against the weight of evidence and was misguided on deciding that the respondent was entitled to Kshs.250,000/= as general damages which ought to be dismissed.c.The Learned Magistrate erred in law and in fact in awarding excessive and undeserved sum of Kshs.250,000/= to the Respondent as general damages for injuries sustained.d.The Learned Magistrate erred in law and in fact in unduly disregarding the Appellant's evidence, submissions and facts produced in assessing quantum to and the Respondent.

11. The Appeal was admitted for hearing on 15th February, 2023 and the court directed that the appeal be canvassed by way of written submissions, whereby the Appellants’ Submissions are dated 18th April, 2023 while the Respondents’ are submissions dated 23rd March, 2023 together with the authorities cited therein.

12. In their submissions, the Appellants submitted that the award of Kshs. 250,000/= was inordinately high considering that the injuries sustained by the Respondent were only soft tissue and urge the court to substitute the same with an award of Kshs. 100,000/= The Respondent on his part holds that the Judgment of the trial court was not erroneous to warrant the interference of the court .

13. This being the first appeal this Court has a duty to reevaluate and reanalyze the evidence that was adduced and findings of the trial court to establish whether such findings should stand or not so as to arrive at its own decision while remembering that it did not have the advantage of seeing and hearing the said evidence. In doing so, the court is guided by the decision in the case of Abok James Odera T/A A.J Odera & Associates –vs- John Patrick Machira T/A Machira & Co. Advocates [2013]e KLR, which explains the duty of the first appellate court as follows:-“This being a first appeal, we are reminded of our primaryrole as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the Learned trial Judge are to stand or not and give reasons either way”

14. In consideration of the grounds of appeal, I have read through the original record of the trial court and written submissions filed by either party. I find the main issue for determination being whether this court should interfere with the award that was granted in favour of the Respondent.

15. It is trite law that this court can only interfere with quantum of damages assessed by the trial court if is established that the award was inordinately too high or too low. On this, the court is guided by the decision in the case of Kemfro Africa Ltd –vs- Meru Express Servcie –vs- AM Lubia & Another 1957 KLR 27 which stated as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.’

16. In making its award, the court is expected to always bear in mind the current inflation levels and to provide a fair compensation. In the case of Telkom Orange Kenya Limited –vs- S. O. (minor suing through his next friend and mother [2018] eKLR, Majanja J stated that: -“In addition, the current value of the shilling and the economy has to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Service Vs Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] KLR 661).”

17. The Court is guided by the decision in the case of Anthony Nyamwaya –vs- Jackline Moraa Nyandemo [2022]eKLR which upheld an award of Kshs.250,000/= for bruises and soft tissue injuries similar to the present case.

18. Guided by the above-cited decisions, the Court finds that the award of Kshs. 250,000/= given by the trial court was fair and reasonable in view of the injuries sustained by the Respondent and the same is upheld.

19. The upshot is that the Appeal is dismissed with costs to the Respondent.

It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 14TH DAY OF DECEMBER, 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Njuguna counsel for AppellantsMr. Mwangi counsel for RespondentCourt Assistant - Martin