[2024] KEHC 6676 (KLR)

Muriuki & another v Kivuli (Civil Appeal E668 of 2021) [2024] KEHC 6676 (KLR) (Civ) (16 May 2024) (Judgment)

Neutral citation: [2024] KEHC 6676 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E668 of 2021

DKN Magare, J

May 16, 2024

Between

Haran Kimathi Muriuki

1st Appellant

Mwangangi Samuel

2nd Appellant

and

Duncan Mwanzia Kivuli

Respondent

Judgment

1. This is an appeal from the judgment and Decree of Hon. D.O. Mbeja given on 2/5/2021 In Milimani CMCC 6136 of 2015.

2. The Appellant were defendant in the lower court. The matter relates to a road traffic accident on 13/8/2015. The Respondent was said to be driving his motor vehicle registration No. KBV 352P when it was involved with a collision with motor vehicle registration KBC 756P. The respondent raises several grounds in negligence. He claimed injuries as follows: -a.Chest and abdomen painb.Fractured 3 lower ribs of the right sidec.Splenic and liver damages.

3. He also claimed the following special damages: -a.Copy of records 500/=b.Medical expenses 740,846c.Medical Report 30000Total 743,346

4. The Appellants filed defence on 21/3/2017 blaming motor vehicle registration No. KBV 352 and as such the plaintiff as the driver and owner.

5. After hearing the parties the court delivered judgment: -a.Liabilityb.Special damagesc.General damages 744,356d.Costs and interest.

6. It is against their decision that the Appellants appealed and set forth 9 – odd grounds of Appeal.

7. Order 42 Rule 1 of the Civil Procedure Rules provides are doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

8. The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

9. In the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that:-“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

10. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

11. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

12. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

13. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

14. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

15. The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

16. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

17. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

18. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

19. So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

20. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

21. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.

22. For the appellate court, to interfere with the award it is not enough to show that the award is high or low or even that had I handled the case in the subordinate court, I would have awarded a different figure.

Evidence 23. The Respondent testified on 18/12/2019 adopted his statement. He blamed the Applicants for overspending. He stated he was unconscious. He was taken to hospital by a good Samaritan. PC Onesmus Mutuku testified over the said accident involving the plaintiff and motor vehicle registration No. KBV 372 Isuzu. He produced the abstract.

24. The parties closed their cases. The defendant did not tender evidence. The court delivered its Judgment as a foresaid on liability the court relied on the case of Uneek Electrical Company Ltd -vs- Joseph Fanuel Alela (2005) eKLR regarding uncontroverted evidence. He found the Appellant 100% liable. He awarded a sum of Kshs. 800,000/=after relying on the case of Mohamed Mahmoud Jabane V Highstone Butty Tongoi Olenja [1986] eKLR on the duty of the court as regards to damages as hereunder: -“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.1. Each case depends on its own facts;2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);3. comparable injuries should attract comparable awards.4. inflation should be taken into account; and5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.”

25. Parties filed submissions which I shall subsume in the Judgment given the nature of authorities referred to.

Analysis 26. The Appeal turns out on pleadings evidence and presumptions. A party who brings an action, must proof it. Sections 107 – 109 of the Evidence Act provides as thus: -(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.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 that fact shall lie on any particular person.”

27. The duty of the plaintiff, even where the case is not opposed or requiring formal prof is to adduce sufficient evidence to prove their case. The plaintiff must bring enough evidence even in formal proof. In the case of Samson S. Maitai & Another -vs- African Safari Club Ltd & Another [2010] eKLR, the High Court in trying to defining Formal Proof stated thus:“……. I have not seen judicial definition of the phrase "Formal Proof". "Formal" in its ordinary Dictionary meanings - refers to being "methodical" according to rules (of evidence). On the other hand according to Halsbury's Laws of England, Vol. 15, para, 260, "proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”

28. Where there is evidence elicited in the cross examination tending to admit negligence the court may have regard to the same. However, there has to be cogent evidence tendered in defence. In the case of Trust Bank Limited V Paramount Universal Bank Limited & 2 others [2009] eKLR, the court, Lesiit, as then she was, stated as doth: -“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. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2nd and 3rd Defendants was uncontroverted and therefore unchallenged. In Autar Singh Bahra And Another Vs Raju Govindji Hccc No. 548 of 1998(UR) Mbaluto J. held:“Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”I am persuaded that the cited case is a good law and I am guided by it. Following the said case it I do find that the 2nd and 3rd Defendants defences were unsubstantiated and further the Plaintiff’s evidence against them unchallenged.”

29. However, the defendant has a primary duty to proof contributory negligence in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR, justice Nyakundi stated as follows: -While distilling the record on contributory negligence, the question is not whether the plaintiff or the defendant was negligent but it is on the circumstances of the case who bears the greatest responsibility. They shared responsibility for the damage is clearly set out in the Judgment of the Learned trial Magistrate. There is no prima facie evidence that there was want of care on the part of the motor vehicle in which the respondent was on board as a fare paying passenger. In Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, the Court held as follows:“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”

30. Submissions will never take place of evidence. There must be evidence in support of contributory negligence. without it, the particulars of contributory negligence must fall. There are essentially two sets of contributory negligence. the first one is the duty the duty the Respondent owes to himself. This is independent from the duty he owes the Appellant. Then there is the duty the respondent owes the Appellant. This arises in cases of collisions where occurrence of the accident prima facie raises negligence on either party.

31. Passengers and pedestrians owe a duty not to other road users but to themselves. If this contributory negligence is pleaded, the Appellant has a duty to prove the same. In the case of Francis Karanja Kimani v Wells Fargo Limited [2020] eKLR, Nyakundi J stated as follows: -“The fact that there was no sketch plan or that the police abstract did not lay blame upon the respondent as the accident was still under investigation did not in my considered view provide a rebuttal to the eye witness account. Only evidence from the respondent on causation and blameworthiness could have rebutted that evidence yet no such evidence was adduced. Secondly, the trial Magistrate relied on submissions to come to the conclusion that the deceased “may have wandered into the road.” She was clearly wrong. Submissions are not evidence just like averments in a pleading are mere allegations unless and until proved through evidence.In the case of Daniel Toroitich Arap Moi & another v Mwangi Stephen Muriithi & another [2014] eKLR the Court of Appeal made it clear that: -“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

32. The duty is not to prove beyond reasonable doubt. It is on a balance of probability. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

33. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

34. The appellants evidence was cogent and uncontroverted. Consequently, I dismiss the Appeal on liability. I only wish to point out that the ground for liability is not properly set out. It is obliquely brought out. Concise pleading] are paramount. In Galaxy Paints Company Limited V. Falcon Guards Limited Court Of Appeal Case Number 219 Of 1998, the Court of Appeal stated that: -“issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court’s determination.”

35. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition:-“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

36. Parties must always be succinct on what they are seeking and not have long winded general pleadings. In the circumstances, I do not find any error as regards liability. The Appeal on liability is accordingly dismissed.

37. On quantum, the principles to be applied have long been settled in the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

38. The Court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 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.

39. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

40. The award of Ksh. 800,000/= was for 3 fractured ribs. The appellant is the lower court relied on Ann -vs- Mohamed Kahiga or subdomains that Kshs. 800,000/= is sufficient. The said authority was for far more serious injuries.

41. It must be remembered that the damages may only repair the frame. In the case of H West and Son Ltd v Shepherd (1964) AC 326 the House of Lords in England stated that: -“… but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional ...”

42. There was an effect on the liver and spleen. The injuries were life threatening and were classified as grievous harm. Ane Chelagat Bor vs Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:“In effect, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, If the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

43. The appellant on the other hand used far less serious authorities. In the case of Muti v Wambua (Civil Appeal E172 of 2018) [2024] KEHC 3808 (KLR) (12 April 2024) (Judgment), Olel J Found That An Award of Ksh. 800,000/- was far less for a plaintiff who suffered severe injuries which include dislocation of the left knee joint, raptured spleen, two broken ribs and soft tissue injuries all over the body. Eventually, the raptured spleen had to be surgically removed and this condemned him to medication for the rest of his life.

44. A search for the injuries suffered will yield more murder cases than civil cases. This is because the injuries are life threatening. The award of 800,000/= was not excessive. In the circumstances the Appeal on general damages is dismissed.

45. On special damages the same must be particularized and specifically proved. In the case of David Bagine Vs Martin Bundi [1997] eKLR, the court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for thm to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it".

46. In the case of Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR, the court, Justice Luka Kimaru, as then he was, stated as doth; -“In regard to special damages the law is quite clear on the head of damages called special damages. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

47. The receipts for Ksh. 744,546 were produced in evidences no challenge. There was no challenge to the same. I find no merit in the appeal and dismiss the same in limine with costs of 145,000/= to the Appellant.

Determination 48. The upshot of the foregoing is that I make the following orders: -a.The appeal lacks merit and is dismissed with costs of Kshs. 145,000/= payable in 30 days.b.Any deposit of security be released forthwith to the respondents.c.File is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 16TH DAY OF MAY, 2024. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for partiesCourt Assistant- Brian