[2023] KEHC 19405 (KLR)

Munyala v Mwikya & another (Civil Appeal E021 of 2022) [2023] KEHC 19405 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19405 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E021 of 2022

RK Limo, J

July 3, 2023

Between

Muthami Munyala alias Muthami Munyala

Appellant

and

Joseph Mwimi Mwikya

1st Respondent

Peter Mule

2nd Respondent

(Being an appeal from the judgement of the Hon. J. Waweru Wanganga (SRM) delivered on 3rd March 2022 in Mutomo PMCC No. 60 of 2019)

Judgment

1. This appeal arose from the judgement of Hon. J. Waweru Wang’ng’a Senior Resident Magistrate delivered on 3rd March, 2022 vide Mutomo PMCC No. 60 of 2019.

2. In that suit, the appellant had sued the respondent owing to a road traffic accident involving Registration No. KZN 074Y which was ferring the appellant and motor vehicle Registration No. KBM 812B driven by the 2nd Respondent. The appellant’s case was that the 2nd Respondent drove the said motor vehicle so negligently that it violently rammed into motor vehicle registration No. KCN 074Y and that as a result, the appellant sustained injuries. He also pleaded that the doctrine of res ipsa loquitor applied. He pleaded that he suffered the following injuries namely;a.Fracture of the distal radius (right upper limb)b.Soft tissue injuries on the backc.Soft tissue injuries on the left mid leg

3. As a result, the Appellant sought compensation as follows;a.Special damages of Kshs 3,550/-b.General damages for pain, suffering and loss of amenitiesc.General damages for diminished earning capacityd.Costs of the suite.Interest on (a), (b), (c) and (d) above at court ratesf.Any other or further relief that the honourable court deemed just to grant.

4. The appellant testified at the trial that as a result of the accident he suffered the above injuries adding that he was hospitalized from 15th to 17th April, 2018. He further stated that a plaster of paris was applied on the fracture he had sustained and that the plaster remained in his arm for five weeks adding that the same immobilized him and affected his work output at Sino Hydro Company and the same led to termination of employment. He claimed that he lost his employment which earned him Kshs. 24,000 per month. He was however, hard pressed under cross-examination to show proof of the same since he had no documentary proof to show that he was employed and lost his job due to injuries sustained. He however, tendered other supporting documents of the claim as P Ex h 1 to 13.

5. The Respondents on their part filed defence denying liability. They pleaded that the appellant contributed to the accident and pleaded that the doctrine of volenti non fit injuria applied to his claim. They however called no witness in defence. The trial court evaluated the evidence tendered and found that the appellant’s case had not been proved to the required standard because no eye witness or police officer was called to support or corroborate his claims. The Appellant’s case was dismissed as such.

6. The Appellant being dissatisfied with the trial court’s judgment on liability and quantum filed this appeal vide a Memorandum of Appeal dated 25th March 2022 raising the following grounds namely;i.That the Learned Trial Magistrate erred in law and in fact by dismissing the Appellant’s suit against the Respondent.ii.That the Learned Magistrate misdirected himself in law and in fact by finding that the Appellant had not proved his case against the Respondents despite the overwhelming evidence led by the Appellant.iii.That the Learned Magistrate erred in law and in fact by failing to address his mind on the evidence adduced and hence made and erroneous finding.iv.That the Learned Magistrate misdirected himself in law and in fact by placing too much reliance on the Respondent’s evidence which was contradictory.v.That the Learned Magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at trial.vi.That the Learned Magistrate erred in law and in fact by failing to consider the parties’ written submissions.vii.The Learned magistrate erred in law and fact by failing to assess the damages that would have been awarded to the appellant as required by law.viii.That the Learned Magistrate misdirected himself in law and fact by failing to find that at the very least the Respondents were liable for the accident.

7. The appellant in his written submissions through his learned counsel S.N. Ngare & Co. Advocates submits that the trial court erred by holding that his case had not been proved to the required standard.

8. In regard to the occurrence of the accident, the Appellant urges the court to rely on his testimony which he submits was not rebutted by the Respondents. He has placed reliance on the case of Unleek Electrical Company Limited vs Joseph Fanuel Alela HCCC Appeal No. 676 of 2002 where the court relied on the evidence provided by the Respondent in the matter citing that it had no other evidence to go by and further and that it had no reason to disbelieve the only witness presented before it.

9. On the question of liability, the Appellant submits that the 2nd Respondent who was in control of motor vehicle registration number KBM 812B which rammed into the vehicle he was travelling in. He has cited the case of Boniface Waiti & Anor vs Michael Kariuki Kamau (2007) eKLR where a driver in control of a motor vehicle was held to be liable for the occurrence of an accident. The court held that a driver is expected to drive prudently and be on the look-out for any danger on the road, by being vigilant and be able to control the vehicle to bring it to a safe stop in the event of an emergency. The Appellant has also cited the case of Agnes Akinyi Okeyo Vs Marie Stopes – Kenya (2004) eKLR where the court found a driver to be 100% liable for an accident based on the fact that his evidence was contradictory, that he failed explain what he did to avoid the accident and lastly, that he failed to indicate whether he warned the cyclist before the accident occurred.

10. The Appellant further submits that the accident would probably not have occurred if the 2nd Respondent was driving at a reasonable speed and has relied on the case of Ann Mukami Muchiri vs David Kariuki Mundia (2008) eKLR.

11. It is further submitted that the 2nd Respondent failed to keep the suit vehicle in its proper lane. He has cited the case of Michael Njagi Karimi vs Gideon Ndungu Nguribu & Anor (2013) eKLR where the driver was held to be 100% liable for hitting a pedestrian after his motor vehicle veered off the road and found the Plaintiff standing on the reservation area dividing the dual carriage-way. The driver in the case was not called to testify and explain how the accident might have occurred.

12. The appellant insists that the Respondents adduced no evidence in rebuttal of the version he gave on how the accident occurred and that it should be held liable. In this regard he relies on the decision of John Wainana versus Heidsein Dairy Ltd. [2013]eKLR.

13. He contends that his case established that the respondents were 100% liable to blame and has urged this court to find as such.

14. On Quantum, the Appellant submits that an award of Kshs 1,000,000/- in general damages for pain, suffering and loss of amenities would be sufficient and cited the following authorities in support;a.Justine Shimuli Namiinda vs Kenneth Kimngetich Cheruiyot (2005) eKLR where the court awarded a sum of Kshs 600,000/= forhumerus with radial nerve palsy, fracture of right ulna with dislocation of the right radius, blunt injury to the right knee, osteoarthritis of the right shoulder joint and laceration of the face and tongue pain, suffering and loss of amenities. The Plaintiff sustained the following injuries, fracture of rightb.Roy Mackenzie vs Cartrack Kenya Limited & Anor (2012) eKLR where the court awarded Kshs 700,000/- for general damages for pain, suffering and loss of amenities. The Plaintiff suffered serious injuries on his left shoulder leaving him disabled and with restricted movement of his shoulder and armc.Mwaura Muiruri vs Suera Flowers Limited (Anor) (2014) eKLR where the court awarded Kshs. 1,450,000/ under this head. The Plaintiff sustained the following injuries multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left subaxilliary area), communuted fractures of the right humerus upper and lower thirds of the tibia, compound double fractures of the right leg upper and lower 1/3rd tibia fibula

15. The Appellant also seeks general damages for loss of earning capacity stating that he suffered a 3% permanent incapacity which would affect his capacity to compete fairly with others in the job market. He has placed reliance on the case of Mumia Sugar Company Limited vs Francis Wanalo (2007) eKLR where the court awarded Kshs 500,000/- under this head. The Appellant has also sought special damages of Kshs 3,550/-. He faults the trial court for not making any award on loss of earning capacity.

16. The Respondent has opposed this appeal vide written submissions by learned counsel M/s Kimondo Gachoka & Co. Advocate. They support the finding of the trial court.

17. On the question of liability, the Respondents submit that the Appellant owed a duty of care and that he failed do so citing that the Appellant was travelling on a back of a lorry when he was supposed to sit at the designated passenger spot at the front. The Respondents submit that even though the subject motor vehicle was being driven at a high speed, it does not imply negligence on the part of the respondent. On the assertion that the vehicle was on the wrong lane, the Respondents submit that both vehicles were heading towards the same direction and that the Appellant’s vehicle moved on the subject motor vehicle’s lane as it attempted to overtake leading to the accident. They submit that the Appellant failed to discharge the burden of proof.

18. On quantum, the Respondents submit that the Appellant is not entitled to damages for loss of earning capacity as he failed to produce letters from his employer proving that he lost his job as a result of the accident. They also submit that the Appellant is still able to earn a living following his testimony that he was involved in menial jobs.

19. The Respondents however, submit that in the event this court finds that liability was established to the required standard, the appellant be awarded Kshs. 400,000 in general damages. They rely on the following authorities: -a.Geoffrey Kamuki & Anor vs RKN (Minor suing through her late father and next friend ZKN) (2020) eKLR where the court awarded a sum of Kshs. 450,000/=as for general damages for pain and suffering. Injuries sustained were recorded as follows; tenderness on the scalp, face, right eye, chest, right forearm, and right leg, fractures of the right radius and ulna at the wrist joint and pains in the injured areasb.Patrisia Adhiambo Omolo vs Emily Mandala (2020) eKLR where Plaintiff suffered a swollen deformed left wrist joint (radius-ulna) fracture of the radio-ulna bones otherwise known as colles fracture and was awarded Kshs. 180,000/= for pain and sufferingc.Akamba Public Road Services Limited vs Rosemary Amoit (2018) eKLR where the Plaintiff suffered a swollen right arm, fracture of the right radius, distal third, bruises on the left hand which was tender, bruises on the right hand and was awarded general damages at Kshs 400,000/-

20. The Respondents, in a 360o turn, have conceded to this appeal and has asked this court to re-assess quantum of damages based on their proposals. They however, pray that they be awarded costs of this appeal but have not given reasons for that prayer.

21. This court has considered this appeal and the response made by the Respondents which I find a bit interesting because on one side they oppose the appeal but on the other hand they concede, which amounts to double speak but I will delve into the issue later in this judgement.

22. The role of this court as a first appellate court is to re-evaluate/re-assess the evidence tendered with a view to reaching own conclusions.

23. The issues in this appeal are basically two namely:i.Whether the appellant’s proved his case to the required standard.ii.If so what is the quantum payable.

24. (i)Whether the appellant’s case was proved to the required standard in law.

25. The appellant’s suit was a civil claim and the threshold required is on a balance of probability. The appellant had the burden of establishing his claim to that standard.

26. The legal burden of proof as provided for under 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. The evidential burden of proof is captured under Sections 109 and 112 of the Evidence Act as follows;109. The 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.112. In 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 record of proceedings from the lower court in this instance indicates that the appellant testified and tendered documents inclusive of Police Abstract, P3 Form and medical report to support his case. I have perused the documents and the same indicate that an accident occurred on 15. 4.2018 involving motor vehicle registration No. KCN 074Y and KBM 812M Mitsubishi Bus.

29. The appellant testified that he was travelling aboard motor vehicle registration No. KCN 074Y when the Respondents’ motor vehicle Registration No. KBM 812M hit them from behind. The appellant attributed negligence on the driver (2nd Respondent) of the bus. The Police Abstract tendered indicates that Peter Mule (2nd Respondent) was recommended for a traffic offence of careless driving.

30. The trial court found that a police officer should have been called to testify but that finding was erroneous because, the Police Abstract was tendered in evidence by consent of the Respondent and the admission of that document (Police Abstract) meant that the Respondent could not contest the contents thereof.

31. Furthermore, the Respondents tendered no evidence in rebuttal. That in effect meant that the evidence placed on the record in so far as liability is concern was the evidence tendered by the appellant. The question posed is whether the evidence tendered reached the threshold? In the absence of any evidence to the contrary, it is apparent that the appellant’s case was clearly established. The trial court erred by placing a premium on the pleadings filed by the Respondents when no evidence was tendered to support it. In CMC Aviation Ltd versus Crisar Ltd (1976-80) eKLR Madan J (as he then was) had this to say;‘‘Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.’’

32. Similarly, in Trust Bank Limited V Paramount Universal Bank Limited & 2 others [2009] eKLR the court held;It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings

33. Odunga J(as he then was) in Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR reemphasized that pleadings are not evidence by citing the following cases;‘‘In Francis Otile vs. Uganda Motors Kampala HCCS No. 210 of 1989 it was held that the court cannot be guided by pleading since pleadings are not evidence and nor can they be a substitute therefore. Before that the then East African Court of Appeal held in Mohammed & Another vs. Haidara [1972] E.A 166 that the contents of a plaint are only allegations, not evidence. According to Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No. 23 of 1997, it was held that where a defendant does not adduce evidence the plaintiff’s evidence is to be believed as allegations by the defence is not evidence.’’

34. In the face of the above authorities, the trial court fell into error when it held that the appellants’ case on liability had not been proved. That finding as observed above, was against the weight of evidence placed upon the trial court. The Respondents for good measure have conceded to that fact albeit in a twist, which in my view is a clear indication that the question of liability was uncontested. The Respondents were 100% to blame and I so find.

35. QuontumThe trial court held that it would have awarded Kshs 500,000/- in general damages had it found the Respondents liable. The court did not address itself on the prayer for damages for diminished earning capacity.

36. The appellant in his pleadings claimed that as a result of the accident his earning capacity was diminished. Though he claimed that he used to earn Kshs. 24,000 per month, he tendered no evidence to prove that fact. The medical report by Dr. Dorcas Kavuli Musyoki tendered in evidence showed that he suffered 3% disability. That shows that his earning capacity diminished by 3%.

37. In awarding loss of earning capacity, the Court of Appeal in Mumias Sugar Company Limited vs. Francis Wanalo (2007) eKLR made the following guiding observations;‘‘The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.’’

38. This court finds that in view of the fact that the appellant’s age is pleaded as 40 years, and in the absence of any documentary evidence to assist the court in assessment of earning capacity, a lump sum or a global award in the circumstances, is appropriate. In that regard, I find that an award of Kshs. 300,000 is just and fair to compensate the appellant for loss of earning capacity.

39. On general damages, the trial court found that an award of Kshs. 400,000 would have been fair and I find no basis to interfere with that assessment in view of the following authorities: -a.In Kennedy Ago Lidweye V Steel Plus Limited (2012) eKLR the Plaintiff sustained a compound fracture to the right distal radial ulna an award of Ksh 400,000 was awarded in 2012. b.In Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] eKLR, the Plaintiff sustained the following injuries, closed fracture radius bone, bruises on the forehead and left hand and cut wound on the face, the High Court set aside an award of Kshs 400,000/- and substituted it with one for Kshs 300,000/-

40. In the end, this court allows this appeal, the judgement of the lower court is set aside. In its place, judgement is entered in favour of the appellant. The Respondents are found 100% liable and the appellant is awarded as follows: -a.General damages Kshs. 400,000b.Loss of earning Kshs. 300,000c.Special damages(proved) Kshs 3,550Total Kshs. 703,550

41. The appellant will have costs of this appeal and cost and interests in the lower court from the date of judgement in the lower court payment all payment made in full.

DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF JULY, 2023. HON. JUSTICE R. LIMO-JUDGE