[2015] KEHC 213 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 653 OF 2011

MUTHAMIAH ISAAC……………………………………………APPELLANT

VERSUS

LEAH WANGUI KANYINGI ……………....…………………..RESPONDENT

JUDGMENT

This judgment follows the consent setting aside of the court’s judgment delivered on 30th April 2015 after it emerged that the appellant’s “failure to file written submissions” was due to misinformation by the respondent’s counsel. This court has had to reconsider the appeal a fresh on its merits in order to accord the appellant an opportunity to ventilate his grievances, equally taking into account his submissions dated 23rd February 2015 and filed in court on 24th February 2015.

The appeal arises from the judgment and decree of Hon P.Ndindika, Principal Magistrate on 11th January, 2012 in Milimani Chief Magistrates Commercial Court Civil Suit No. 4321 of 2009. The respondent herein, Leah Wangui Kanyingi was involved in a road accident on 23rd April 2009 while walking along Spine Road, Nairobi. She sustained injuries for which she instituted proceedings in the Chief Magistrate’s Court at Milimani seeking general damages for pain and suffering and special damages of Ksh 58,800. The appellant MUTHAMIAH ISSAC denied the claim stating that the accident was solely caused by the negligence on the part of the respondent. The matter was heard in court and judgment was delivered in favour of the respondent. The court found the appellant 100% liable for the accident and awarded the respondent Ksh 500,000 general damages for pain and suffering. The appellant was aggrieved by the decision and he filed this appeal.

The appellant’s memorandum of appeal dated 16th December 2011, the appellant sets out the following grounds:

That the learned trial magistrate erred in law and in fact in finding that the respondent had proved her case on the balance of probability despite the fact that she contradicted her witness , PW3.

That the learned trial magistrate erred in law and in fact in assessing liability at 100% as against the appellant without making a specific finding that it was the appellant’s motor vehicle registration number KAU 916 L which knocked down the respondent in the light of the evidence to the contrary.

That the learned trial magistrate award of Ksh 500,000 by way of general damages for pain, suffering and loss of amenities is so excessive in the circumstances as to amount to an erroneous estimate of damages suffered by the respondent.

The appeal herein was prosecuted by way of written submissions as agreed between both parties. The three grounds of appeal contained in the Memorandum of Appeal dated 16th December 2011 challenges the decision of the trial magistrate both on liability and on quantum.

The appellant combined grounds 1 and 2 to cover the issue of liability whereas ground 3 relates to quantum of damages. On liability, it was submitted by the appellant’s counsel that according to the respondent’s own testimony on page 13 of the record of appeal, the circumstances as described by the respondent at lines 22-page 15 are vague and that the best that one could gather from the said testimony is that the respondent was crossing the road infront of the matatu from which she had alighted when the lorry which started was at a high speed hit her and that she did not state where the lorry was coming from or whether she had seen it before starting to cross the road. Further, that she jumped backwards on seeing the people in front jump forward.

The appellant’s counsel also recalled the evidence as testified by the police officer PW3 on behalf of the plaintiff/respondent who produced the OB extract of the material accident wherein it was recorded that “…….the pedestrian was talking to the driver of the matatu which was stationery near Mobil petrol Station where the driver of the lorry overtook the said matatu suddenly and the pedestrian panicked and was hit by the lorry……” Further, that it was the matatu driver who was hit by the lorry………” Further that it was the matatu driver who was charged and convicted for the offence of careless driving which raised the question as which motor vehicle knocked down the plaintiff/respondent.

The appellant’s counsel faulted the trial magistrate for believing the respondent’s testimony that she was crossing the road and that motor vehicle KAU 916L hit her and that the contradiction in the testimonies of PW1 and PW3 were not slight but major as it caused doubts as to how the accident actually occurred. Further, that no reasons were given by the trial court for finding the appellant 100% liable. Further, that from the judgment of the trial court, it appears that the respondent was under no duty to keep a proper look out while crossing the road in front of a matatu she had alighted from. In the appellant’s view, assuming that was the correct position, then the trial court ought to have apportioned liability between the respondent and the lorry driver. The appellant further submitted that even if the appellant did not call any evidence in defence, the burden of proving the case still lay on the respondent and that the trial magistrate erred in failing to refer to the conviction of the matatu driver over the same accident, and that it was erroneous to find the appellant liable simply because he did not deny ownership of the accident motor vehicle.

In the appellant’s view, the trial magistrate should have made a finding on the two issues of whether the respondent was crossing the road when she was hit and or whether it was motor vehicle registration No. KAU 916L which knocked the respondent, which issues were critical in determining the issue of liability since mere ownership of the motor vehicle cannot be a basis for finding the appellant 100% liable for the accident. He urged this court to find that the respondent did not prove her case on liability as to how the accident happened.

On quantum, the appellant submitted that the general damages awarded for the injuries sustained by the respondent were manifestly excessive and not commensurate with the injuries sustained. He relied on the case of Julius Kiprotich Vs Eliud Mwangi Kihoha [2008] e KLR wherein the plaintiff sustained similar yet more serious injuries and was awarded kshs 350,000/- general damages for pain and suffering and loss of amenities. He maintained that the injuries sustained by the respondent were comparable to those sustained by the 3rd plaintiff in Neema Mansukhlal Shah & Others V Duncan Linccott Ltd [2004] e KLR wherein Angawa J awarded kshs 250,000/- general damages for pain, suffering and loss of amenities on 24th November 2004. The appellant also refered the court to the case of Cecilia Mwangi & Another V. Ruth W. Mwangi[1997] e KLR where the Court of Appeal reduced an award of shs 450,000 to kshs 300,000; and Joshua Mwaniki Nduati V Samuel Muchiri Njuguna {2005] e KLR where the court awarded kshs 250,000 for fracture of right acetabulum and fractures of three(3) ribs. He relied on West (H) & Son Ltd V Shepherd [1964] AC 326 that awards must be reasonable , moderately assessed and not excessive.

The appellant prayed that the appeal be allowed, dismissing the respondent’s suit with costs.

In response and in opposing the appeal, the respondent submitted on three issues:

Whether the respondent/plaintiff proved her case on the balance of probability?

Whether the appellant was 100% liable for the accident.

Whether the award of kshs 500,000 damage was excessive.

On the 1st issue the respondent submitted that she proved her case according to the required standard. The respondent stated that the occurrence of the accident is not disputed, what is in dispute is how or the manner in which the accident occurred. He her counsel maintained that PW1 testified that she was hit by a lorry registration number KAU 916L when she was crossing the road in the company of many other pedestrians . The respondent submitted that the police record submitted in court was written by someone who was not at the scene when the accident occurred. She alleged that PW3, a police officer, was only called to produce the report, she stated that the officer did not witness the accident, he did not also investigate the incident therefore his evidence could not be relied on. The respondent argued that the only other evidence that would help the court was that of the driver who was not called to testify. The respondent stated that if that driver was to say anything then he would have said that she was standing on the road as pleaded which according to the respondent is not a good reason for hitting the plaintiff. The respondent submitted that a driver owes a much greater responsibility to others on the road especially the pedestrians.

On the issue of damages awarded, the respondent submitted that the lower court had the advantage of observing the plaintiff in the witness box, listening to the heated cross examination and interviews of both the plaintiff and the doctor who examined the respondent and in the court’s wisdom the court found Ksh 500,000 was sufficient. The respondent further submitted that the respondent being a young woman of 33 years, a fractured pelvis is a very serious injury and more particularly a woman who as she said is a manual worker her pelvis is everything to her. She therefore prayed that the appeal herein be dismissed with costs.

I have carefully perused the record including the lower court pleadings and the evidence together with the judgment. I have also perused the written submissions by both parties before this court and in the lower court.

I find the issues arising are:

Whether the respondent was crossing the road or talking to the driver of matatu when she was allegedly hit by the lorry which was overtaking the matatu.

Whether it is the lorry which hit her and if so was the matatu driver convicted of careless driving?

Whether the trial magistrate should have apportioned liability between the appellant and respondent

Whether the quantum of damages awarded was excessive or based on wrong principles of law

What orders should the court make

Who should bear costs of the appeal?

The duty of the 1st appellate court is to reassess, re-evaluate and re-examine the evidence and findings of the trial court and arrive at its own independent conclusion bearing in mind that it did not have the advantage of hearing and seeing the witnesses as they testified. This principle was espoused in the case of Selle Vs Associated Motor Boat Company Ltd (1968) EA 123,126 where sir Clement De Lestang stated that:

“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.

However, this court is not bound necessary to follow the trial judge’s findings of fact if it appears either that he had 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( Abdul) Hammad Sarif v Ali Mohammed Solan (1955) 22 EACA 270. ”

I am also conscious in determining this appeal of the principle set out in Mbogo v Shah & Another (1968) EA 93 where the court set out circumstances under which an appellate court may interfere with a decision of the trial court thus:-

“ I think it is well settled that this court will interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has acted on matters on which it should not have acted on or because it had failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion.”Seealso in Peters v. Sunday Post (1958) E.A. 424 at 429where it was stated:-

"It is a strong thing for an appellate court to differ from the finding on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion."

Applying the above principles and re-examining the record in the lower court, the main issues are whether the respondent, had discharged her burden of proving negligence on the part of appellant and therefore whether she was entitled to a judgment in her favour and the award of general damages of shs 500,000.

The occurrence of the accident is not a matter in issue albeit I will return to that later in this analysis. On whether the respondent was hit while crossing the road or when talking to the matatu driver, the respondent testified as PW1 that she lived in Lamu and on the material date at 6 O’clock she was coming from work at Gikomba to Kayole. She was hit by a lorry KAU 916L. She alighted from a matatu which stopped so that they could cross the road. The matatu at (sic) Spine Road Kayole. The road was safe they did not finish crossing. The people who were infront jumped forward. She jumped backwards. The lorry that was in high speed hit her. She stated that she jumped as she had seen the lorry at a speed. The matatu was aside. She was hit on her hips and pushed to the front of the matatu by the wheels of the lorry. The driver stopped and took her to Kayole hospital using a taxi. She also stated that the driver told the doctors in Kayole what had happened. In cross examination, by Mrs Njuguna the respondent responded that they were crossing the road. They were infront of the matatu which was stationary besides the road and that she was inside the road and jumped because she saw the lorry coming. That she had checked the lorry. She maintained that if the lorry had not been at speed, she would not have been hit.

PW3 NO.77886 P.C. Morris Juma attached to Kayole police station testified that on 23rd April 2009 an accident took place and he received instructions from the D.T.O. to produce OB, police abstract and police file albeit he denied being the investigating officer. That according to the OB, motor vehicle KAV hit the plaintiff and a P3 was filled while the matter was under investigations. The witness produced the police abstract, OB report and a statement by the respondent, to the police after the accident. He also produced the statement recorded by the matatu driver Evans Nyauma Saiti and the statement of one, Samuel who was an occupant of lorry KAU 916L as exhibits. PW3 further stated that the charge sheet in the traffic case had no basis and that there was a contradiction. On cross examination by Mrs Njuguna for the appellant, the police officer confirmed that the OB abstract was written the same day and in re-examination he stated that the statements were recorded after the OB was filled. The appellant offered no evidence in defence.

In his brief judgment, the trial magistrate summarized the evidence adduced by the respondent to the effect that she was crossing the road when she was knocked by motor vehicle registration KAU 916L and that the defence relied on the police officer’s evidence but called no evidence to disapprove what the plaintiff stated. He also found that the ownership of the motor vehicle was not denied and that the respondent had proved her case on liability and injuries sustained and he found the appellant 100% liable in negligence and awarded her kshs 500,000/- general damages. He also awarded her special damages, with costs of the suit.

The question that arises is whether the above evidence, on a balance of probabilities was suffered to establish liability against the appellant at 100% as pronounced by the trial magistrates and if not, should this court apportion liability between the appellant and the respondent and if so in what proportions? The second question to be answered is whether the award of kshs 500,000/- was commensurate with the injuries sustained.

On how the accident occurred, I find that PW1 was clear in her evidence in chief and on being cross examined that she was crossing the road, ahead of the matatu she had alighted from, and that she was with others who rushed ahead but that as she was trying to cross the road, she saw a lorry emerge in high speed. She therefore retreated and by that time the lorry had reached her so it hit her. The said lorry was overtaking the stationery matatu. That testimony was consistent with her statement recorded after the accident to the police and as produced in evidence. The statement of Evans Nyauma Saiti the driver of the matatu was also clear that the respondent was crossing the road when the lorry came from behind him and as it was overtaking him, it hit her, pushing her against the matatu KBA 020A. The occupant of the lorry Samuel Maina also recorded a statement with the police and according to him, he saw a matatu which had stopped and there was a lady standing at the driver’s motor vehicle door then immediately he saw the woman down near the lorry’s rear side tyre and he informed the driver to stop and he assisted the lady to be escorted to hospital and later he went to record his statement on 25th April 2009. The above statement was scanty on how the respondent was hit and by who but it does not state that the lorry did not hit the respondent and neither does it say that it is the matatu that hit the respondent.

In any event, this court does not phathom how a stationary matatu could have hit the respondent. The irresistable conclusion I make is that on the evidence adduced in court, which was subjected to cross examination, the respondent was hit by the lorry while she was crossing the road, and pushed onto the stationary matatu.

I have also examined the respondent’s exhibit 10 copy of OB extract for the material accident. The initial report was made by telephone and CPL Jane and PC Kitur who were at the police station proceeded to the scene of accident and on return they booked a report of a serious road traffic accident involving motor vehicle KBA 020A and lorry KAU 916L and a pedestrian Leah Wangui to the effect that the pedestrian was talking to the matatu driver which was stationary when the lorry overtook the matatu and suddenly, the pedestrian panicked and was hit by the lorry falling on the matatu and was seriously injured.

From the police Occurrence Book (OB) report, there is no mention of crossing the road . It mentions that the respondent was talking to the matatu driver, which repost is similar to the statement made by the lorry occupant.

Nonetheless, the report is clear that the lorry hit the respondent pushing her to the matatu as a result of which she sustained serious injuries. on the basis of the above findings I do not agree with the appellant’s submissions that the evidence by the respondent was vague as to which motor vehicle hit the respondent. In addition, albeit the appellant’s counsel passionately submitted that the matatu driver was charged with the offence of careless driving and convicted, there is no scintilla of evidence on record to point to that fact. The OB only shows that PC Kitur was tasked to investigate the accident. The police abstract issued on 10th June 2009 showed that the case was pending under investigations. PW3 PC Morris Juma stated in his evidence in chief that what appeared to be a charge sheet in the traffic case file had no basis. What I gather from that piece of evidence is that the PW3 had come to court with the original police file which was not produced as exhibit and in that file there was a draft charge sheet purporting to charge the driver of the matatu with careless driving. Nonetheless, that evidence was never adduced and the police officer could not link the charge sheet and the statements in the file.

Indeed there is no evidence on record of any charge and or conviction of any of the motorists or the respondent with any traffic offence. The drivers of the two motor vehicles never testified and in my view, if the matatu driver had been charged with any offence, nothing prevented the appellant from adducing that evidence, I therefore find that the claim that the matatu driver was charged farfetched and unsupported by any evidence on record.Section 112 of the Evidence Act Cap 80 of the Laws of Kenya, provides thus:

“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

The appellant alleged negligence against the respondent as the cause of the accident and pleaded that:

Failing to keep any proper lookout or to have any sufficient regard for her own safety whilst standing on the said road.

Failing to pay any or sufficient heed to the presence of the said motor vehicle on the said road.

Failing to see the said motor vehicle in sufficient time to avoid the said accident.

Standing on the road in the path of the said motor vehicle thus giving its driver no reasonable opportunity of avoiding the said accident.

However, he never testified to prove those allegations and or facts which were within his knowledge and neither did he claim in his defence and prove by evidence that the accident was solely caused by the matatu driver.

I also find that from the evidence on record, the respondent was crossing the road when she was hit as that is the evidence that was subjected to cross examination. In my view, the OB report that the respondent was talking to the matatu driver when she was hit must have been obtained from the lorry occupants who, regrettably did not testify in court. Their statements therefore remain allegations without proof as their demeanor could not be assessed. The case largely turns on an assessment on recorded evidence since the issue of credibility of those two crucial witnesses did not arise. I also find that there were no material contradictions between the evidence of PW1 and PW3. PW1 described what she witnessed at the scene of accident. PW3 was not an independent eye witness. He was not even an investigating officer. He only attended court to produce records which were in the police file which is a public record of what others stated. He could not have changed the story stated therein. I find no material contradiction capable of challenging the evidence on how the accident occurred. Nonetheless, as no proceedings of the purported traffic case were produced, which could have been helpful to the court below and this court as well, but not necessary essential to the respondent this being a civil case, I find that in the absence of any cogent evidence to the contrary, the appellant’s submissions on that issue, was not supported by pleadings or evidence, and therefore it remained a by the way issue.

I also find that a party cannot build their case on answers gathered in cross examination or evidence of the adverse party unless that other evidence fully supports their side of the story.

The next question on liability therefore, is, in the circumstances of this case, who was to blame for the accident? By the respondent’s own admission on oath, she was crossing the road infront of a stationary matatu when the appellant’s lorry emerged while overtaking the matatu, hit her before she could cross and pushed her against the body of the matatu. The accident occurred at or about 6pm. The respondent testified that the road was safe so they started crossing but did not finish crossing the road and that those infront of her jumped forward while she jumped backward and a speeding lorry hit her.

The weather and condition of the road was not stated whether it was wet, at a corner or a stage etc. It is also not clear whether the weather was clear or raining etc. The respondent does not state SUCCINCTLY in her testimony that she first checked the road to ensure that there was no oncoming vehicle before she embarked on crossing the road. If she had done so, in my view, she could have seen an oncoming lorry and would have waited until it had passed before she crossed.

It is trite law that it is upon a party who alleges, to prove. in this case, albeit the appellant did not adduce any evidence to deny the manner in which the accident occurred, the primary duty of proving liability is on the respondent that the manner in which the accident took place she could not have contributed to its occurrence. Crossing the road infront of a stationary vehicle is a very risky affair. There was no guarantee that there would be no oncoming vehicle attempting to overtake the stationary matatu at that material time.

On the other hand, the appellant having pleaded contributory negligence on the part of the respondent, it was upon them to prove any of those acts of contributory negligence. They however offered no evidence. There was therefore no denial that the lorry was in high speed and it did not take any avoiding act. The lorry driver was approaching a stationary matatu, it ought to have slowed down and been on the lookout. He did not. In the premise, I find that both the respondent and appellant were at fault. I agree with the appellant’s counsel’s submissions that the trial magistrate erred in finding that since the appellant did not testify in the case then the respondent proved her case on a balance of probability and therefore they were 100% liable. I however disagree with the appellant’s contention that the finding on liability was based on the fact of the defence not denying ownership of the motor vehicle registration KAU 916L. In my view, ownership of an accident motor vehicle was only one aspect that had to be proved before the court could on the evidence determine how the accident occurred. Indeed, without proof of ownership of the accident motor vehicle, even if the driver thereof was liable in negligence, no court of law could have found liability against the appellant.

In my assessment and re-evaluation of the respondent’s evidence, she was an adult of sound mind. She owed a duty of care to her own safety. She darted into the road infront of an obstructing matatu before ensuring that it was safe to do so that is why she jumped backward to avoid being hit but it was too late for the lorry driver who was already overtaking the matatu. As a consequence, she was hit and pushed onto the matatu. In such circumstances the appellant cannot be wholly to blame for the accidents since the respondent saw the lorry after she started crossing. She endangered her own safety.

My findings are based on the fact that there was no evidence that the respondent, upon alighting from the matatu, paused on the side of the road before beginning to cross, and after ensuring that there was no oncoming vehicle. On the other hand, as I have stated before, the lorry driver was equally under a duty, when driving a lethal weapon on the road, to keep proper lookout, and take reasonable precautions in the use of the vehicle. Failure to observe such precautions will give rise to a cause of action to any person who suffers damages as a result.

In Heaven V Pender [1883] II QB Brett M.R. stated at page 507.

“ Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person whom ordinary care an skill, by which neglect the plaintiff, without contributory negligence on his own part has suffered injury.”

Emukule J in Fracah Njeri Grace V Isaiah Ngararika Muindi & Another [2012] e KLR stated:

“A person, therefore, who drives a vehicle on a Highway, must always exercise not only care but also skill. He must observe the ordinary rules of the road unless a deviation from such rules is necessary to avoid an accident. He must keep a proper lookout for pedestrians on other road users. He must, where expedient, give warnings of his approach, as at cross roads, even if another user of the road is negligence, he must exercise due skill in trying to avoid the consequences of that negligence, Failure on the part of the driver in any such matter would be breach of duty on his part and he would be liable for the damage caused by his negligence. What would amount to breach of duty will always depend upon the circumstances of the case and d there is no rule limiting the degree of care that is necessary to exercise.”

There is no evidence that the lorry driver saw the respondent or slowed down or took an avoiding action. He did not do anything to avoid the accident. There was no independent eye witness to the occurrence of the material accident and who testified on the same. In the premise, I find both the respondent and driver of the lorry to blame for the accident and apportion that blame in equal proportions of 50%:50%.

In so apportioning the equal liability on both parties, I am persuaded on the evidence adduced by the respondent that there was a sufficiently high degree of probability that, for the acts of omission and commission by the respondent and the lorry driver, the accident would have been avoided or prevented.

If both the respondent and lorry driver were exercising due care and attention while on the road, there was no reason for the pedestrian to jump backwards after seeing the oncoming vehicle (lorry) and similarly, there was no reason the lorry driver hit her. They therefore must share the blame equally.

In the end, I find that the respondent was hit by the appellant’s lorry while she was crossing the road, and that she failed to take care of her own safety when she dashed into the road ahead of a stationary matatu instead of posing and checking to ensure that there was no oncoming vehicle before starting to cross the road. To that extent, the respondent equally contributed to the occurrence of the accident which contribution I assess at 50% and proceed to apportion liability between the appellant and respondent in the ratio of 50:50.

On quantum, It is trite law that an appellate court can only interfere with an award of damages where the award was either based on wrong principles or is so inordinately high or low as to be a wholly an erroneous estimate ( See KEMFRO LIMITED T/A MERU EXPRESS SERVICES VS LUBIA AND ANOTHER [1987] KLR 30).

Ordinarily an award of general damages is an exercise of judicial discretion which is based on the injuries sustained and comparable awards made in the past for comparable injuries. In Simon Taveta v Mercy Mutitu Njeru civil Appeal 26 of 2013 [2014] eKLRthe Court of Appeal observed thus:

“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

In the instant case the lower court awarded the respondent Ksh 500,000 as general damages for pain and suffering. Dr Okere who testified for the respondent/plaintiff as PW2 gave his testimony and also produced a medical report dated 21stFebruary 2011. In that report, he stated that the respondent sustained the following injuries as result of the accident.

Fracture of the right superior public ramus

Fracture of the right inferior pubic ramus

Blunt injury on the left leg.

The respondent supported the award of kshs 500,000/- made by the trial magistrate whereas the appellant contend that the award was exaggerated and manifestly excessive. The appellant contended that the injuries in the Julius Kiprotich case (supra) were more serious in that besides fracture of the pelvic bone, sustained severe injury to the abdomen resulting into peritoneal haematoma and a deep cut wound on the right parietal region of the scalp and that he was left with a prominent scar measuring 4cm x ½ cm on the right parietal region. The appellant also complained that the trial magistrate did not make any reference to the authority cited by the appellant of Neelan Mansukhlal Shah & Others V Duncan Linscott Ltd maintaining that the injuries sustained by the third plaintiff were fairly comparable to those suffered by the plaintiff in the instant case and that the plaintiff in that case was awarded kshs 250,000/- and which they consider would have been appropriate, based on other decisions of Cecilia W.Mwangi & Another V Ruth W. Mwangi [1997] e KLR and Joshua Mwaniki Nduati V Samuel Muchiri Njuguna [2005] e KLR and the principles espoused in the Cecilia case citing with approval West (H) & Sons Ltd V Shephard [1964] AC 326 that money cannot review physical frame that has been battered and judges and courts can only award reasonable compensation.

I have carefully considered the above submissions vis avis the pleadings in the plaint, oral and documentary evidence adduced by the respondent in the court below and the submissions by both parties in the court below and authorities relied on. The respondent pleaded that she sustained injuries involving “Fracture of pubic ramii further and better particulars to be adduced at the hearing hereof.” In her testimony she testified that... “I was hit on the hips. I was pushed to the front of the matatu………There was dislocation of hip and pelvic bone fractured…… I was placed on a catheter and I did bandage (sic) leg. I spent 3 weeks in Naivasha.

Treatment notes from Kenyatta National Hospital showed fracture of superior and inferior pubic ramii, other treatment notes from Lakeview Maternity and Nursing Home show the fracture of the right pubic bone . The P3 shows fracture of right pubic bone. The first medical attention received at Kayole Hospital Ltd showed fracture of pubic Ramii, right hip with a displaced joint.

The medical report by Dr. Cypranus Okoth Okere made on 21st February 2011 stated that she had sustained fracture of the right superior pubic ramus, fracture of the right inferior pubic pamus and blunt injury on the left leg. She complained of pain in the right pelvis and numbness on the left thigh. She had tenderness in the left hip on flexion, painful stimulus reduced on upper leg. She needed physiotherapy and medication for about a year. In the preparation of the medical report Dr. Okere used the discharge summaries, P3 form, Xray films and report and medical report by Dr. Moses Kinuthia.

In my view the injuries sustained by the respondent were consistent with the discharge summaries and treatment notes and medical report by Dr. Okere who only confirmed the injuries 2 years later after the accident and after filing of the suit. In the case of Julius Kiprotich (supra) the plaintiff sustained:

Fracture of the pelvic bone

Severe internal abdominal injuries

Head injuries

Loss of consciousness.

Bruises on both knees. He was admitted for 1 month and 4 days. He left with a distended abdomen as a result of bleeding into the peritoneum. The court awarded him kshs 450,000 on 31st May 2006.

The appellant had submitted the case of Neelan Mansukhal shah & Others (Supra) where the 3rd plaintiff sustained

Fractures of pubic bones

Cerebral concussion for

Fracture of six ribs on left side of chest

Fracture of ………..and ischio pubic rami on right and Multiple bruises on forehead.

Injury to right elbow.

Injury to right foot

Injury on left hand. He was awarded kshs 250,000 general damages by Angawa J on 24th November 2004.

The trial magistrate in his judgment found that the plaintiff had fracture of hip and pelvic bones and relying on the case of Julius Kiprotic V Eliud Mwango, he awarded kshs 500,000 as damages.

From the above exposition, I am inclined to agree with the submissions by counsel for the appellant that indeed, the trial magistrate did not even refer to the submissions and authority relied upon by the appellant, in arriving at the figure of kshs 500,000/- general damages in favour of the respondent . In addition, the trial magistrate’s did not even bother to compare the two decisions and neither did he state the principles upon which he arrived at the award that he made. It is for those reasons that this court would be entitled to interfere with the award made by the trial court.

I have carefully examined the evidence by the plaintiff and the submissions and authorities relied on by both parties. I have also examined the pleadings and the medical records produced in court of the respondent’s injuries. I am in agreement with counsel for the appellant that the injuries sustained by the respondent and the after effects were not as serious as those sustained by the plaintiffs in the two cited cases. However, I am also mindful of the fact that this case was decided on 7th November 2011 whereas those two decisions referred to were made on 31st May 2006 and 24th November 2004 respectively.

That being the case, in making an award, the court was not necessarily bound by those decisions which were made 5-7 years earlier owing to inflationary trends and the fact that no two cases can be the same. An award of damages is a matter of the trial court’s decision which discretion has to be exercised judicially and with a reason. The award should not be too inordinately high or too low. It should also be commensurate to the injuries suffered. In addition, it is not meant to enrich the claimant but to restore him to the position in which he was before the injuries were suffered. Further, awards on past decisions are more guides and each case has to depend on its own merits and facts. Where such past awards are taken into account as guides, then the date when they were decided should be considered taking into account either the depreciating or appreciating power of the Kenya shilling as the case may be. Applying the above principles, there was no evidence that the injuries sustained by the respondent would have a debilitating long term effect and neither were they as severe as those sustained by the plaintiff in the cites cases. Although awards vary from court to court each judge exercising its own unfettered discretion, I find that the respondent proposal for shs 500,00 was not supported in the circumstances whereas the appellant’s proposals for kshs 250,000 was in my view too low in the premises bearing in mind the time lapse since those cited decisions ‘s award as he did so without taking into account the submissions by the other party. And doing the best I can, and taking into account the principles for awarding of damages, and applying those principles to this case, I would award the respondent kshs 400,000 general damages for pain and suffering. This figure would be subject to 50% contribution leaving a balance of kshs 200,000/-. I would not interfere with special damages which were proven.

In the end, I allow this appeal, set aside the judgment of the trial court both on liability and quantum of general damages and substitute thereof with judgment on liability to be shared equally between the respondent and appellant and an award of kshs 400,000/- general damages in favour of the respondent subject to 50% contribution.

I also award the appellant half the costs of this appeal. The respondent shall have costs of the suit in the court below plus interest at court rates.

Summary

Liability – 50%: 50%

Quantum -kshs 400,000 less 50% contribution.

½ costs of the appeal to the appellant.

Costs of the suit in the court below to the respondent.

Special damages as awarded in the trial court shs 58,800.

Interest on general damages at court rates from date of judgment in the lower court until payment in full.

Interest on special damages at court rates from date of filing suit in the in the lower court until payment in full.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 23rd day of October 2015.

R.E.ABURILI

JUDGE