[2022] KEHC 3291 (KLR)

Mulekye v Kovi (Civil Appeal 27 of 2019) [2022] KEHC 3291 (KLR) (11 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3291 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 27 of 2019

RK Limo, J

July 11, 2022

Between

James Tom Mulekye

Appellant

and

Mativo Kovi

Respondent

(An Appeal against the whole Judgement of Hon. J. Munguti-PM in Kitui Chief Magistrate’s Court Civil Case No. 175 of 2017)

Judgment

1. This is an appeal against the whole judgement of Hon. J. Munguti –PM in Kitui Chief Magistrate’s Court Civil Case No. 175 of 2017. In that suit, the Respondent had sued the appellant on account of a road traffic accident which occurred on 8th June, 2015 along Kitui-Museve Road between motorcycle Registration No. KMDE 239E ridden by the Respondent and Appellant’s motor vehicle Registration KAM 818F.

2. The Respondent faulted the Appellant of negligence in the manner in which he drove his vehicle and vide a Plaint dated 20th May 2017, sought compensation as follows;a.General damagesb.Special damages as stated in paragraph 5 abovec.Future medical costs to remove the metal implantsd.Costs of the suite.Interest at court rate on (a) and (b) from the date of filing suit.

3. During trial, the Respondent told the court that the Appellant was to blame for the accident for failing to keep to his side of the road. In his defence dated July 3, 2017 and Witness statement dated July 5, 2017, the Appellant blamed the Respondent for riding his motorcycle carelessly. He stated that the Appellant was riding his bike at a high speed and in a zig-zag manner. He stated that he was driving at 30Km/hr and upon seeing the Respondent he stopped his vehicle. That he saw the Respondent raising his legs and in the process caused the motorbike to hit his car at the front on the driver’s side. He stated that he assisted the Respondent at the scene and then proceeded to report the accident at Kitui Police Station.

4. The Respondent called a Police Officer CPL Charles Kiprotich (PW1) who testified that the Investigating Officer was one Mr. Ngugi. He did not offer explanation as to where the Investigation Officer was but simply stated that the motor vehicle was to blame for failure to keep to the rear side of the proper lane. He further testified that he was paid Kshs. 5,000 to attend court and produce the Police Abstract which he did by tendering it as P. Ex 1.

5. The trial court evaluated the evidence tendered and found that the Respondent was riding a motorbike ahead of the appellant and that the appellant failed to keep his distance. Court found him 100% liable and proceeded to quantify damages at Kshs. 1,115,550 plus costs and interests.

6. The appellant was aggrieved and filed this appeal and raised the following grounds namely: -i.That the Learned magistrate erred in law and fact in awarding the Respondent general damages in the sum of Kshs 1,000,000. 00 which were excessive in the circumstancesii.That the Learned Magistrate erred in law and in fact in awarding the Respondent future medical expenses in the sum of Ksh 100,000. 00 which were not supported in evidenceiii.That the Learned Magistrate erred in law and in fact in holding the Appellant wholly liable for the course of the accident subject matter of the primary suitiv.That the Learned Magistrate erred in law and in fact in considering facts not pleaded by the Respondent in the primary suit in awarding liability and general damagesv.That the Learned Magistrate erred in law and in fact in failing to consider the Appellant’s evidence in his judgement.

7. In his written submissions dated March 14, 2022 and filed on March 16, 2022, the Appellant faults the trial court’s decision and submits that general damages for injuries sustained by the Respondent should have been assessed at Kshs 300,000. He urges this court to rely on evidence contained in the medical report which indicated that the Respondent sustained a fractured left distal femur as well evidence from Dr. Patrick Mutuku who examined the Respondent seven months after the accident and indicated that he had healed well.

8. He has cited the case of Philip Musyoka Mutua versus Leonard Kyalo Mutisya [2018] eKLR where the court awarded Kshs 300,000/- as general damages for the following injuries, closed fracture radius bone, bruises on the forehead and left hand and cut wound face. He has proposed that this court awards the Respondent Kshs 350,000/-as general damages.

9. On liability, the Appellant submits that the same should be apportioned on a 50:50 basis. He has relied on the case of Hussein Omar versus Lento Agencies (2006) eKLR where the Court of Appeal held that in situations where both parties to an accident gave conflicting versions of how the accident occurred and no side is able to establish the fault of the other, liability should be apportioned equally on each driver.

10. The Respondent has opposed this appeal through his submission filed through Counsel dated March 24, 2022. He contends that the appellant conceded liability during the trial though the record does not seem to reflect that.

11. The Respondent asks the court to maintain the award of general damages granted by the trial court. Counsel submits that the Appellant relied on old authorities in their case and that the court should be guided by more recent decisions.

12. He further submits that this court should only interfere with the trial court’s decision in the event it finds the same was inordinately high or low or in the event the court finds that the trial magistrate proceeded on wrong principle or misapprehended the evidence.

13. On the award of future expenses, the Respondent submits that the trial court was right in relying on the doctor’s medical report. Counsel has cited the case of Charles Musau Munguti vs Doshi & Co (H) Ltd (2007) eKLR and Peter Namu Njeru vs Philomena Mwagoti (2016) eKLR where the court’s relied on medical reports as prove of future medical expenses and proceeded to award the same.

14. This court has considered this appeal and the response. I have perused through the record of proceedings. This is a first appeal and this court is well guided by the decision of Selle versus Associated Motor Boat Co. 91968) EA123 where the Court of Appeal held as follows: -“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial 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 though 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.”

15. The issues cropping up in this appeal are basically two namely: -i.Whether the trial court was right in its finding on liability.ii.Whether the trial court applied wrong principles in the award of damages.

16. LiabilityI will begin with the question of liability. The Respondent alleged that the Appellant drove his vehicle negligently and knocked him down causing him to sustain injuries. In his statement, he did not give a detailed account of how the accident occurred other than that he was riding his motor-cycle along the Kitui-Museve road while on the extreme left when he was knocked down by the Appellant’s vehicle. During trial, he maintained that he was riding his motorcycle on his lane. He also maintained that the Appellant was driving at a high speed

17. On his part, the Appellant blamed the Respondent for causing the accident. He indicated that he was driving at 30 Km/h when he saw the Respondent on his side of the road and that he hooted for him to give way but the Respondent started moving in a zig-zag manner. The Appellant indicated that he stopped and that the Respondent raised his legs and in the process caused the motorbike to hit his car on the driver’s side of the vehicle. He also stated that he did not swerve to avoid the accident as he had already stopped his vehicle.

18. The Respondent called a Police Officer (PW1) who tendered the Police Abstract but the said Officer was not the Investigating Officer. He was not at the scene of the accident to give evidence as an eye witness. While he tendered the Police Abstract (P Ex1) which indicated that the motor vehicle was to blame, that evidence in my view did not add any probative value to the respondent’s case basically because it was hearsay. The Police Officer (PW1) did not lay basis under Section 33 of the Evidence Act and explain why he was stepping on the shoes of the Investigating Officer, by testifying in Court. The law required the officer to lay basis before he testified on behalf of witness who is either dead or cannot be procured without an expense deemed unnecessary in the circumstances. That was not done and the evidence given by the Officer was rendered hearsay and inadmissible

19. The trial court erred by relying on the same to make a finding that the appellant was 100% to blame for the accident. This court has taken a position over the irregular manner in which advocates particularly in running down matters simply rush to a Police Station and picks any Policeman in uniform after paying them some fee to come and produce the Abstract when the said Officers have completely no idea on how the accident occurred leave above having the Police Investigation file. That conduct offence the Law of Evidence and in particular Section 33 of the Evidence Act which deals with witnesses who for one reason or another cannot be found to come and testify. The witness stepping in should lay proper basis and state whether he had worked with the witness for a period of time to be familiar with his handwriting and signature. He should also state why the author of the document cannot be availed or why he is testifying on his behalf. The fact that one has been paid some fee to come and testify may satisfy his motive to come and testify but it does not satisfy the requirements of the law.

20. Having made the above findings, the evidence remaining on who was to blame boils down only to the evidence of the Respondent and that of the appellant. In other words, it is his word against that of the appellant because the two parties herein blame each other for the occurrence of the accident.

21. In such scenarios courts have leaned towards having the blame shared equally. The Court of Appeal in Hussein Omar Farah versus Lento Agencies[2006] eKLR held as follows;‘‘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 held 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. In the case of Barclay – Steward Limited & Another Vs. Waiyaki [1982-88] 1 KAR 1118, this Court said:-“The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Range Rover crushed it……The collision is a fact. It is, however, not reasonably possible to decide on the evidence of Waiyaki & Gitau who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame.”

22. In the present scenario, the trial court erred when it apportioned 100% blame to the appellant. The liability should have been shared at 50:50.

23. QuantumOn quantum, an appellate court is usually reserved and hardly interferes unless it is shown that the award is two excessive or high in the circumstance. This court is well guided by the Court of Appeal in Francis K. Righa versus Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga[2021] referenced the case of Butler vs. Butler[1984] eKLR 225 that gave guideline on the role of the court in assessment and reassessment of damages stated as follows;“...that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision...”

24. The Trial court awarded Kshs 1,000,000 as general damages. The court reasoned that the injuries sustained by the Respondent were less than the injuries quoted in the cases that the Respondent relied on in the trial court where he was seeking general damages at Kshs 3,000,000/- All the victims of accidents in the cases relied on by the Respondent suffered some form of permanent disability which was not the same in his case. The medical report tabled in court showed that he had healed well with no major complications. The doctor cited that he may develop osteoarthritis in later in life.

25. In Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR the respondent was awarded a sum of Kshs. 450,000/= in general damages for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.

26. In Fred Mohinga Kipkigiya versus David Agreey Zimbiru [2011] eKLR, the court reduced an award of Kshs. 800,000/= to an award of Kshs. 650,000/ where the Plaintiff had sustained a fracture of the right femur and fracture of the distal femur in addition to soft tissue injuries.

27. Going by the above decision this court finds that the award given by the trial court of Kshs. 1,000,000 was on the higher side. An award of Kshs. 700,000 in my view would have been fair.

28. On special damages, the only amount pleaded and proved was Kshs. 100,000 being costs of future medical expenses. The claim of 10,000 doctors’ fees and Police Officers fees of Kshs. 5,000 were specifically pleaded and proved as required by law.In the end, this court allows this appeal by setting aside the judgement of the Lower Court and in its place judgement is entered for the Respondent at 50% liability. He will shoulder 50% while the Appellant will shoulder 50% blame.On quantum, the Respondent is awarded Kshs. 700,000 general damages and Kshs. 100,000 Special damages. He will get half costs and half interests at the Lower Court but the appellant will have half costs in this appeal. This mean that the Respondent is awarded a total of Kshs. 400,000 plus half costs and half interest from date of judgment in the lower court.

DATED, SIGNED AND DELIVERED AT KITUI THIS 11THDAY OF JULY, 2022. HON. JUSTICE R. K. LIMOJUDGE