[2022] KEHC 13034 (KLR)

Muthami v Mutisya (Civil Appeal 2 of 2020) [2022] KEHC 13034 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13034 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 2 of 2020

RK Limo, J

September 20, 2022

Between

David Muthami

Appellant

and

Charles Mutisya

Respondent

(Being an appeal against the decree and judgement delivered on 9th day of January, 2020 by Hon. M. Kimani, Resident Magistrate in Kitui, CMCC Suit No. 176 of 2017)

Judgment

1. This appeal arose from the judgment of Hon. Maureen Kimani delivered on 9th January 2020, vide Kitui Chief Magistrate Court Civil Case No. 176 of 2017. In that case, the appellant sued the Respondent on account of a road traffic accident which occurred on 14th June, 2016 along Kitui Kanyonyo road at Kyatha Area.

2. The Appellant blamed the respondent for causing the accident pleading that as he attempted to cross the road to sell his wares to a prospective customer, the Respondent’s motor vehicle Registration Number KCC 927B was driven negligently and at high speed that it knocked him down and caused him serious injuries which caused him to be hospitalized. In his suit he sought the following reliefs from the Respondent as compensation.i.General damagesii.Special damages of Kshs, 5,500iii.Cost and interests of the suit

3. At the trial, the Appellant told the court that he was a fruit vendor at Kabati market and on the material day, he was pushing his wheelbarrow selling fruit when he was hit by the Respondent’s vehicle. He stated that he broke his left leg above the knee, lost three teeth and that he experiences chest pain as well as bruising. He stated that he had healed but wanted compensation from the Respondent.

4. The Respondent denied liability in his statement of defence but tendered no evidence apart from the medical evidence tendered by consent.

5. The Learned Trial Magistrate apportioned liability for the accident at 50:50 with each party bearing 50% blame. The trial court held that the Appellant assumed a very high risk of injury by crossing the road when he had seen the Respondent’s motor vehicle advancing on the road at a high speed. On the other hand, the trial court also held that the Respondent had ample opportunity to see the Appellant and try to avert the accident as it was stated that the Appellant was knocked down he had almost full crossed the road. To that end, the Respondent was held equally to blame for the accident.

6. The trial court gave an award of Kshs. 300,000 as general damages and Kshs 5,550 for special damages. Judgement was entered against the Respondent at 50% which interpreted to Kshs. 152,775.

8. The Appellant was dissatisfied with the judgment and filed this appeal vide a Memorandum of Appeal dated 7th February 2020 on 6th February 2020 and raised the following grounds that;i.The Learned magistrate erred in law and fact by apportioning liability at 50:50 against the weight of uncontroverted evidence placed before the court by the Appellant.ii.The Learned Magistrate erred in law and fact by finding that the Respondent was not 100% liable for the accident and against the weight of the evidence before the courtiii.The Learned Magistrate erred in law and in fact by awarding manifestly low damages to the Appellant against the extent of injuries sustained and proved before the courtiv.The Learned Magistrate erred in law and fact by reaching at a conclusion that is contrary to the evidence before him and the Appellant submissions.v.In all the circumstances of the case, the findings of the Learned Magistrate were characterized by misapplication of the law, consideration of irrelevant matters and wrong exercise of discretion.

8. In his submissions dated 4th March 2022, through the Counsel, the Appellant faults the trial court’s decision and submits that the Respondent should have been held 100% liable for the accident and that he should been awarded general damages at Kshs 3,200,000/-.

9. On liability, the Appellant submits that he was selling fruits at Kabati market when the Respondent’s vehicle hit him. He submits that his evidence remained uncontroverted in the trial court and that the trial magistrate should have taken his evidence as unchallenged and apportioned full liability to the Respondent. He cited the case of Linus Ng’ang’a Kiongo & 3 Others vs Town Counsil of Kikuyu (2012) eKLR a land matter where the court entered judgment against a defendant who was served with pleadings but failed to enter appearance or file a defence.

10. On general damages, the Appellant submits that the same should have been awarded at Kshs 3,200,000/-. He has cited through counsel the injuries he sustained as well as the authorities they relied on in the trial court which he states has victims who sustained similar injuries to his and were awarded Kshs 2,000,000. He has asked this court to be persuaded by the finding of the court in Charles Mathenge Wahome vs Mark Mboya & Others (2011) eKLR. In this case however, the court found as follows on the injuries sustained; The major injury that the Plaintiffs suffered was fracture of the right femur. The other injuries were a minor cut on the back of the head and bruises

There was, attendant to the fracture, a complication of pulmonary embolism (which was life-threatening) which sent the Plaintiff to the intensive care unit for several days.

The fracture united and healed well, but with attendant shortening of the leg by 2. 5 cm

The Plaintiff suffered 25% permanent disability and would not be able to walk without the assistance of a walking stick.

The Plaintiff was awarded Kshs. 1,500,000/00 for pain, suffering and loss of amenities, subject to reduction by 20% contributory negligence.

11. He also cited the case of Mutua Kaluku vs Muthini Kiluto (2018) eKLR where the court reiterated the principle that awards for comparable injuries should be comparable and the amount of the award should be influenced by the amount of awards in previous cases and should be adjusted in light of fall/rise in the value of money.

12. The Respondent has opposed this appeal through written submission by Learned Counsel dated 29th March, 2022. He submits that this court should not interfere with the exercise of discretion by the trial court unless the appeal establishes that the trial court’s decision was wrong in principle. He cites the decision of Mbogo versus Shah (1968) EA in that regard.

13. He also submits through counsel that apportionment of liability should be maintained at 50% for each party as held by the trial court. He had cited the case ofJane Muthoni Nyaga vs Nicholas Wanjohi Thuo & Anor (2010) eKLR and Peter Okello Omedi vs Clement Ochieng (2006) eKLR where it was held that in situations where both parties to an accident carried equal obligation to ensure their safety and that of other road users. And in both cases liability was apportioned at 50:50.

14. He further submitted that the police abstract relied upon by the Appellant was not a proof of liability but of the fact that an accident occurred. He has cited the case of Peter Kanithi Kimunya vs Aden Guyo Haro (2014) eKLR.

15. On the general damages, the Respondent submits that the award by the trial court should remain unless this court is satisfied that the same was inordinately low or high or that the trial court took irrelevant factors into consideration in awarding the same.

16. He faults the Appellant for relying on authorities which consisted of more grievous injuries than those he sustained. The Respondent has cited two cases which considers to be more applicable in this case being Kenyatta University vs Isaac Karumbe Nyuthe(2014) eKLR and Samuel Kipkemoi Kirui vs Ibrahim Shero Hussein (2016) eKLR where the injuries sustained consisted of fracture of the right femur, soft tissue injuries to the head, bruises on the right knee and fracture of the left femur, severe soft tissue injuries to the left knee joint respectively. The awards issued were 350,000/- and 400,000/- respectively.

17. This appeal raises two issues for determination namely;i.Whether the trial court erred on the question of liability.ii.Whether the award on damages.

18. (i)LiabilityThe evidence tendered before he trial court indicates that the appellant was a hawker.In his witness statement filed together with the plaint, the Appellant stated that he was a roadside hawker and that on the material day, he saw two ladies from across the road along Kitui-Kanyoyo road at Kyatha area who called him to look at what he was selling. He stated that the road was safe to cross but when he was in the process of crossing at the middle of the road, the Respondent’s vehicle which was being driven at a high speed knocked him down leaving him with severe body injuries. He adopted this statement in court but also stated that he was knocked down while pushing his wheelbarrow in Kabati market while he was selling fruit. He blamed the accident on the respondent for the reason that he was speeding.

19. The Respondent on the other hand apart from the pleadings files tendered no evidence to controvert the appellant’s claim. The legal position however is that the onus is always on whoever alleges. A plaintiff still retains the onus of proof notwithstanding the fact that a defendant has not called witness. The Law (Section 107 of Evidence Act) requires him/her prove the claim on a balance of probability before the burden can shift to the defendant.

20. In Patrick Kalava Kulamba & 2 others v PK& another [2019] eKLR, Mwongo J referenced the following cases while handling a similar case where the Defendant opted not to call any witnesses;‘‘Where evidence is adduced and not controverted, it stands the test. In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.”Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.

21. Further, it has been held that even where a defence is held as mere allegations in no way lessens the burden on the plaintiff to prove her case, this was the finding in the case of Kenya Power and Lighting Company Limited vs Nathan Karanja Gachoka & another [2016] eKLR the court stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case to upon a balance of probability whether the evidence in unchallenged or not.’’

22. In this instance, the evidence tendered shows that the appellant, who states that he was hawking his wares along a busy road, says he was called by a customer across the road and in an attempt to get the customer, he must have dashed across the road to sell his wares oblivious of the danger of hawking on a busy road. He testified that he saw the Respondent’s motor vehicle when he was in the middle of road as he was dashing across the road and that the motor vehicle knocked him down before he made it across because the motor vehicle was speeding.

23. There was no evidence tabled by the Appellant to the effect that the accident happened on a hill or that there was a barrier that prevented him from seeing the road clearly or the Respondent’s vehicle coming from a distance. The only logical explanation in my view was that the Appellant saw the Respondent’s vehicle at a distance but believed that he could manage crossing the road to the opposite side before the vehicle got to him as there is no way a vehicle can suddenly appear in the middle of the road from nowhere.

24. In Peter Ngigi Kuria & another (Suing as the legal representatives of the Estate of Joan Wambui Ngigi) vs Thomas Ondili Oduol & another[2019] eKLR the court held as follows as apportionment of liability;‘‘I also do appreciate the fact that determination of liability in road accidents cases is not a scientific affair as Lord Reid put more graphically in Stapley vs Gypsum Mines Ltd (2) (1953) AC 663 at page 681 that:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of …………. It is quite irrelevant in this connection in a court of law this question must be decided as a properly instructed and reasonable jury would decide it …”“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of items. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

25. This court finds that in the face of the evidence tendered, the trial court’s finding was sound and well grounded. The appellant ought to have cared more about his life rather than his wares. The Respondent too owed a duty of care and given that he did not turn up in court to defend himself, it was in order to find him at fault to the extent that he was found liable. The finding of the trial court on liability (50:50) is upheld for those reasons.

26. (ii)QuantumThe assessment of damages is normally a discretionary matter for the trial court. A trial court exercises its discretion guided by the nature of injuries suffered and the principle that comparable injuries should attract similar awards on damages. An appellate court would rarely interfere with the due exercise of discretion unless it is shown that the trial court acted on wrong principles and made either excessively high award or inordinately low.

27. The Court of Appeal in Francis K. Righa v Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga [2021 referenced the case of Butler vs. Butler [1984] KLR 225 which provides a guideline on the role of the court in assessment and reassessment of damages 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…..’’

28. A medical report prepared by the Appellant’s doctor who relied on medical notes and the P3 form cited the injuries sustained by the Appellant as follows: -a.Bruising on the anterior chest.b.Bruising upper limbsc.Bilateral knee swellingd.Fracture mid-shaft left femur

29. The medical doctor then reported on the healing progress of the Appellant as follows;a.The bruises healed with no complicationsb.The fracture also healed with no complicationsc.The degree of injury assessed as grievous harm.

30. The trial court cited the case of Bhachu Industries Ltd v Peter Kariuki Mutura [2015] eKLR where the Plaintiff was awarded Kshs 300,000/- for injury to the chest and right thigh and a fractured femur.

31. The appellant has faulted the trial court and has submitted that he should have been awarded Kshs. 3,200,000 which is ten times what he was awarded. That contention in my view is a bit ambitious and without basis in the face of authorities he has cited which shows obvious disparity in the nature of injuries suffered. The appellant’s injuries were less serious than those injuries cited in the authorities. His injuries were mainly soft tissue injuries and even fracture of mid-shaft femur has healed with no complications going by the evidence tendered.

32. In James Mukathi Maria versus M.A. Bayusuf & Sons Ltd [2013], the court awarded Kshs, 480,000 where the Plaintiff suffered fracture of femur and hospitalization for 2 months with shortening of the plaintiff leg by ½ Cm.

33. In Kenyatta University v Isaac Karumba Nyuthe [2014] eKLR, damages were awarded at Sh. 350,000 for the following injuries; fracture of the right femur, soft tissue injuries to the head and bruises on the right knee

34. In Erick Ratemo vs Joash Nyakweba Ratemo(2018) eKLR the Plaintiff sustained abrasion and deep cut wound on the face, cut wound on the upper lip, contusion on the anterior chest wall, dislocation on the right shoulder, bruises on the right hand, blunt injury on the left and right knee, epistasis and fracture of the right femur and the High Court upheld an award of Kshs. 300,000/=

35. In Reamic Investment Limited versus Joaz Amenya Samuel [2021] eKLR, the Appellant sustained a fracture of the femur and soft tissue injuries and was awarded 350,000/- in general damages.

36. It is evident from the above decisions that the award made by the trial court in this instance cannot be termed as inordinately too low as to call for interference by this court.It should be noted that an award of damages is meant to compensate and as much as possible bring the victim to a position he was before the accident. It is not an enrichment exercise but a compensation exercise.In the premises, this court finds no merit in this appeal. The same is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT KITUI THIS 20TH DAY OF SEPTEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE