[2023] KEHC 24149 (KLR)

Muthoni v Kimeu (Civil Appeal E18 of 2022) [2023] KEHC 24149 (KLR) (25 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24149 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E18 of 2022

FROO Olel, J

October 25, 2023

Between

Sylvester Mwangi Muthoni

Appellant

and

Jimmy Makau Kimeu

Respondent

(Being an appeal from the Judgment and/or decree of the Honourable Martha Opanga Resident Magistrate delivered on 1st February 2022 in Kangundo SPMCC No. 231 of 2019)

Judgment

A. Introduction 1. This appeal arises from the judgment and/or decree of Hon. Martha Opanga (RM) delivered on 1st February 2019 in Kangundo SPMCC No. 231 of 2019 where she awarded the Respondent General damage of Ksh.1,800,000/=, Ksh.400,000/= for future medical expenses and Ksh.38,590 as special damages. The total award was Ksh.2,238,590/=.

2. PW1 Jimmy Makau Kimeu did adopt his witness statement wherein he stated that on 30th day of September 2018 at around 19. 30hours he was lawfully riding his motor cycle registration Number KMCR 623B Honda from Nguluni heading to Nairobi. This was along Kangundo-Nairobi road. On reaching Kware area, he spotted motor vehicle registration number KBN 247L Toyota Salon (hereinafter referred to as the suit motor vehicle) which was coming from the opposite direction. Suddenly and abruptly (without any warning) the driver made a U-turn while dodging police officers and violently rammed into the front right side of his motor cycle.

3. As a result of the accident, he sustained serious bodily injuries namely; cut wound on the fore arm, deep cut would on the upper lip and nasal septum, loss of 2 upper incisors teeth, fracture of one upper incisor tooth, fracture of two lower incisor tooth, bruises and tenderness of the chest, cut wound on the left wrist, fracture of the left 2nd metatarsal, deep cut would on the left thigh and deep cut would on the left ankle. He was rushed to Kangundo level 4 hospital where he was admitted for 17 days. After discharge he was re-admitted for 4 days at Kathiani Sub county hospital and later was attended to at AIC Kijabe hospital for 2 days.

4. He had not fully recovered and had breathing problems due to nasal contracture, he had persistent pain on the left foot and difficulty in walking. He was required to undergo teeth replacement, contracture releases and reconstructive surgery. He blamed the appellant for causing the accident. Further the appellant was charged in Kangundo Traffic case no. 312 of 2018 with the offence of careless driving contrary to Section 49(1) of the Traffic Act. He pleaded guilty and was fined Ksh.10,000/=. He thus prayed to be compensated. The respondent produced all his document’s as Exhibits 1- 16, and by consent the 2nd medical report was produced as Exhibit 17.

5. In cross examination PW1 confirmed the suit motor vehicle came from the opposite direction and he saw it while 50 meters away. There was a police motor vehicle following it with its siren on. The appellant in a bid to escape from the police suddenly diverted into his lane and in the process suddenly swerved and knocked him down. At the time of the accident he was not drunk and got injured. He lost three teeth and the doctor had advised him he would require Ksh.300,000/= for future medical expenses and Ksh.100,000/= to replace the 5-tooth lost. The appellant also admitted his mistake and in the traffic, case was fined Ksh.10,000/=. In re-examination the Respondent blamed the appellant for suddenly serving into his lane. He also swerved to avoid the accident, but it was too late and the accident occurred.

6. DW1 Sylvester Mwangi Muthoni the appellant herein, stated that on 30th August 2018 he was driving the suit motor vehicle and when he reached Joska Kware area he turned to exit the main road and intended to turn right to enter his home. He indicated and turned but then heard a bang on the back side of the suit motor vehicle. He stopped to check and found that a motor cyclist had rammed into his motor vehicle and in the process injured himself.

7. The appellant blamed the Respondent for causing the accident as he was not diligent and rammed into the suit motor vehicle from behind. The impact was on the back-left side tyre and bumper. By the time the accident occurred, the suit motor vehicle was almost completely off the road. As a result of the accident the suit motor vehicle was damaged on left back door and left back tyre. He was charged in court but unfortunately was misguided to plead guilty. In his opinion it was the Respondent who should have been charged with the traffic offence as he as not to blame for the accident.

8. In cross examination, the appellant confirmed that he turned right to enter his home and did not make a U-turn as alleged. The insurance claim forms that he filled and sent to his Insurer was consistent with his evidence in court and he reiterated that he was misguided to admit being guilty in the Traffic case. The police abstract also did show that the motor cycle had no insurance and he ought not to have been on the road. His plea of guilt could thus not be used to absolve the Respondent of his contribution to the accident.

9. The trial magistrate did consider the evidence and entered judgement in favour of the Respondent. Being aggrieved and/or dissatisfied with the whole judgment delivered on 1st February 2022 the appellant did file this appeal and raised seven (7) grounds of appeal namely that;a.That the learned trial magistrate erred in law and in fact in failing to apportion liability against the Respondent who contributed to the road traffic accident that occurred on 30. 09. 2018 involving motor vehicle registration number KBN 247L and motor cycle registration no. KMCR 623B.b.That the learned trial magistrate erred in law and in fact in failing to consider the unchallenged evidence of the appellant regarding the areas of damaged to his motor vehicle registration number KBN 247L which was to the rear parts of the said motor vehicle being evidence that it is the Respondent who drove into the Appellants motor vehicle registration number KBN 247L and accordingly wholly caused and/or substantially contributed to the said subject accident.c.That he learned trial magistrate erred in law and in fact in failing to make a finding that a conviction on a traffic offence was not a bar to the court apportioning contributory liability.d.That the learned magistrate wholly erred in law and in fact in holding the appellant 100% liable in negligence when there was over whelming evidence of the Respondent contributing to the accident either through acts of omission and/or commission.e.That the learned magistrate erred in law and in fact in assessing general damages at Ksh.1,800,000= for pain, suffering and loss of amenities which amount was/is manifestly excessive in the circumstances.f.That the learned trial magistrate erred in law and in fact in awarding the Respondent future medical costs of Ksh.400,000/= where the same had not been proved and which amount was manifestly excessive in the circumstances.g.That the learned trial magistrate erred in law and in fact in filing to take into cognizance the fact the Kenyan economy cannot sustain such hue awards.

10. The appellant thus did urge this court to set aside the judgement of the subordinate court and be pleased to substitute it with an order dismissing the primary suit and/or apportioning liability. Further this court was urged to reassess damages as awarded and reduce the same as appropriate.

B. Submissions Appellants Submissions 11. The appellant did file their submissions on 17th April 2023 and as regards liability (Grounds 1 – 4 of the grounds of appeal) stated that this court as the first appellant court could re-evaluate the evidence tendered at the trial court and come to its own conclusions/findings. The appellant had placed ample authorities before the trial court to prove that a conviction in a traffic case on the charge of careless driving did not wholly absolve the Respondent from contributory liability. The court had failed to consider this aspect despite the overwhelming evidence tendered thus arrived at a wrong finding. Reliance was placed on Bugoma HCCA no.17 of 2019 Poll link Services Co. Ltd and another versus Bonzema and Nakuru HCCA 16 of 2023 Lillian Birir and another versus Arrabwae Leamon.

12. The appellant further submitted that the treatment notes at Kangundo level 4 hospital did indicate that the appellant was intoxicated and thus his mental capacity to have been on the road was compromised. Secondly the suit motor cycle was not insured and should not have been on the road. An illegality had been committed and the Respondent ought not to be rewarded for breaking the law. The Respondent assertion that the appellant was escaping from the police too was not proved in evidence and if he was driving at a speed of 40kmph as alleged while on a straight road, he could have easily avoided the collusion by comfortably braking or swerving. This according to the appellant was not possible as the Respondent was over speeding and was intoxicated.

13. The appellant further did fault the trial magistrate for failing to appreciate the evidence tendered and thus erred in her finding that the appellant had branched off onto the side of the road without taking into account that the Respondent was too close thereby occasioning the accident. They discounted this by stating that if indeed he branched off, when the Respondent was close as alleged, then he would have hit him with the front part of the suit motor vehicle. On the contrary it is the Respondent who hit the back-left side of the suit motor vehicle. The appellant thus urged this court to find that the Respondent was 50% liable for the accident.

14. The appellant also did submit that the quantum awarded was excessive taking into consideration the injuries sustained. An award of Ksh.400,000/= would have been adequate and appropriate compensation thereof. The trial magistrate was also faulted for awarding the Respondent Ksh.400,000/= for future medical expenses. The sum of Ksh.300,000/= opined by Dr. Muoki James was ruled out as the Respondent breathing problems was caused by cardiomegaly seen on the chest X-ray and pointed out in Dr. Madhiwala’s medical report. The appellants submitted that a sum of Ksh.100,000/= would have been adequate for restoring the Respondents teeth lost during the accident.

Respondent’s Submissions 15. The Respondent filed his submissions on 17. 05. 2023 and stated that the trial magistrate did not err in making a finding that the appellant was 100% liable for the accident as it was the appellant who suddenly turned and drove into the Respondents lane. He was charged with the offence of careless driving, In Kangundo CMCR Traffic case no.312 of 2018 and was convicted and fined Ksh.10,000/= or in default to serve six month in jail.

16. As regards quantum awarded, the Respondent did state that the same was reasonable and commensurate with current awards for similar injuries. The Respondent had also fully established that his injuries were severe and justify the future treatment needs which were to repair/undergo surgery for contracture release and reconstructive surgery at a cost of Ksh.300,000/= and a further ksh.100,000/= to replace 5 teeth. The degree of injury was classified as grievous harm and his medical report was not contradicted by any other medical report. The Respondent placed reliance on Naivasha HCCA no.65 of 2016 Daniel Mukabwa and another versus Mugabe Mitui Muyala. Eldoret HCCA no 162 of 2016 Moi Teaching and Referral hospital board and another versus Leonard Kibiwoatt Kosgei, Makueni HCCA no.140 of 2017 New Original Investments Co. Ltd versus Benard Kimatu Muia and Nanyukki HCCA no 6 of 2015 Lucy Waruguru Gatundu versus Miriam Nyambura Mwangi.

17. The Respondent did urge this court to find that this appeal lacks merit and dismiss the same with costs

C. Analysis & Determination 18. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari ( Deceased) by L.Rs (2001) 3 SCC 179.

19. The duty of the appellate court was also appreciated in Peters –vs- Sunday Post Limited [1958] EA 424: where the court did hold that“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the court of appeal) of having the witnesses before him and observing the manner in which their evidence is given… Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself, and appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears form the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question….it not infrequently happens that a decision either way may seem equally open and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be show to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”

20. Therefore, this court is under a duty to delve at some length into factual details and revisit the facts as present in the trial court, analyze the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial court had the advantage of hearing the parties.

21. Both the Respondent and the appellant did testify and indeed confirmed that an accident did occur on 30. 09. 2018 at around 1930hrs along Kangundo – Nairobi Road at Kware area involving the suit motor vehicle KBN 247L Toyota Saloon and motor cycle registration Number KMCQ 623B Honda as a result of which the Respondent sustained severe injuries. It is also not in doubt that the appellant turned off his lane to the opposite lane to enter his home and in the process the Respondent who was riding his motor cycle in his rightful lane rammed into the suit motor vehicle.

22. The respondent did blame the appellant for making a sudden U- turn on the main highway, while dodging the police and in the process rammed into the front right side of his motor cycle. The appellant on the other hand did testify that he was on the main road and turned right to enter his home. He heard a bang on the back side of his motor vehicle and when he stopped to check he found out that a motor cyclist had rammed into the rear of his car. Even though he pleaded guilty to the offence of careless driving in Kangundo CMCR Traffic Case No no.312 of 2018 he was not entirely to blame and the respondent should also be held to partially liable.

23. In Lakhamshi Vs Attorney General(1971) EA 118 it was held that:“A judge is under a duty when confronted with conflicting evidence to reach a decision on it and inmost traffic accidents, it is possible on a balance of probability to conclude that one or other party was guilty, or both parties were guilty, of negligence. In many cases, as for example, where vehicles collide near the middle of a wide straight road, in conditions of good visibility, with no obstruction or other traffic affecting their courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the Centre of the road, the other must be negligent in failing to take evasive action. It is usually possible, although extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence but where it is not possible, it is proper to divide the blame equally between them.

24. The issue of apportionment of liability was also discussed in Khambi and another Vs Mahithi and another (1968) E.A 70 where it was held that;“It is well settled that where a trial judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial judge.” Similar decisions have been reached in Mahendra M Malde Vs George M Angira Civil Appeal No 12 of 1981.

25. Based on the evidence adduced, the appellant version of how the accident occurred is more accurate. There is no doubt that the accident occurred when the appellant turned off his lane to enter his home which was on the opposite side of the road. He turned right and, in the process, did not have a proper look out for other road user, especially the appellant who was riding his motor cycle and rammed into the suit motor vehicle, thereby injuring himself. The impact of the accident was on the suit motor vehicle back left door and back left tire. See Exhibit D1. There is no supportive evidence that the appellant was being chased by the police and/or that he made a U turn, but even if it were true it does not change the fact of point of impact and that the respondent also had the right of way, which was impeded by the appellant’s action.

26. As to liability the trial court did find that the appellant 100% liable as on completion of the investigation, the appellant was charge with the offence of careless driving and he did on his own volition plead guilty and was fined Kshs 10,000/= or in default was to serve 6 months imprisonment. The appellant did fault this finding on the basis that the court did not consider that the Respondent’s motor cycle was not a insured and the treatment notes from Kangundo Level 4 Hospital also revealed that the respondent was intoxicated at the time of the accident.

27. It is well settled that where a trial magistrate has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous. While there is no doubt that the appellant was negligent and turned into the opposite lane without having a proper look out for other road users, based on the medical evidence, the appellant was also intoxicated. Unfortunately, the level of intoxication remains unknown, but undoubtedly that to some extent did cloud his control of the motor cycle and level of reaction. The trial magistrate did fail to consider this aspect and that was an error of principle.

28. The appellant also faulted the respondent for driving a motor cycle which was not insured and thus should not have been on the road. Lack of an insurance cannot be used as a basis of determining liability and will only attract penal consequences as stipulated under the traffic Act. The appellant may have been intoxicated, but given that it was the appellant who turned into the respondent’s lane without proper look out, I hold that liability should have been apportion at 25:75 in favor of the Respondent.

29. As regards quantum, in Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

30. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004] eKLR 55 also set out circumstances under which an appellant court can interfere with an award of damages in the following terms: -“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

31. In Mbaka Nguru and Another vs. James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR, the court of appeal held that that:“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

32. Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision whether or not to interfere with an award by the appellate court must necessarily be restricted. The respondent did suffer cut wound on the forehead, deep cut wound on the upper lip, deep cut wound on the nasal septum, loss of two upper incisor teeth, fracture of two lower incisor teeth, bruises and tenderness on the chest, cut wound on the left wrist, fracture of the 2nd metatarsal, deep cut wound on the left thigh and deep cut wound on the left ankle.

33. Dr. James Muoki. K medical report dated 30th August 2019, did confirm these injuries and noted that the respondent had multiple disfiguring scars noted on the fore head, nose, upper lip, left shoulder, chest, abdomen, left hand, left thigh and left ankle. He had severe contracture involving he nose and upper lip constricting the nostrils causing difficulty in breathing and mouth opening. The level of injury was described as “Grievous harm”. The 2nd medical report of Dr Ashwin Madhiwala also did confirm the respondent injuries and classified the injuries as “Main”.

34. The appellant relied on Poa Link Serves Co Ltd & Ano Vrs Sindani Boaz Bonzemo (2021) eKLR & Rogers KipKosegei (Suing as legal representative of the estate of Linah Kireng Koech (deceased) Vrs Ambrose Leamon( 2016 ) eKLR and proposed that an award of Kshs400,000/= would be adequate compensation for injuries sustained. On the other hand, the respondent cited Naivasha HCCA No 65 of 2106 Daniel Mukabwa & Ano vrs Maggi Kitui Muyala and opined that the respondent should be awarded Ksh.3,200,000/=.

35. The trial magistrate did find that the respondent did suffer from sever soft tissue injuries, and multiple fracture injuries. She awarded him Kshs.1,800,000/=. But having consider the same and noting the nature of injures sustained, the award of Ksh 1,800,000/= was excessive in the circumstances. In Easy coach Limted Vs Emily Nyangusi (2017) eKLR, Antony Nyamweya Vrs Dorca Gesare Mounde (2022) eKLR, Patrick Kamuya & Ano Vs Asaph Gatundu Wanjiku (2016) eKLR the court awards for similar injuries and awarded damages in the range from Ksh.500,000/= to 700,000/=. Considering the extensive injuries sustained, inflationary trends, I do reduce the award of general damages from Ksh 1,800,000/= to Ksh.8000,000/= .

36. With respect to future medical treatment, the respondent did specifically plead that due to the accident, he had yet to fully recover and had to undergo a contracture release and reconstructive surgery which would cost Ksh.300,000/=. He also required Ksh.100,000/= to replace the 5 teeth lost. The appellant did not oppose the Ksh.100,000/= for replacing lost teeth, but opposed the award of Ksh.300,000/= on the basis that chest X ray revealed that the respondent had a condition called cardiomegaly, which was not related to the accident and was giving him difficulty in breathing.

37. The medical report by Dr Muoki James (Exhibit 7) did confirm that due to the accident, the respondent injuries his nose and there was sever contracture involving the nose and upper lip constricting the nostrils and this caused difficulties in breathing and opening his mouth. Dr.Ashwin Madhiwala medical report Exhibit 17 to confirmed this fact and stated that “There is a well healed injury over the nose resulting in contracture”. Medically the term “contracture” means a condition where there is hardening of muscles tendons, or other tissue, often leading to deformity and rigidity of joints. Both Medical doctors confirmed this fact and it has completely nothing to do with the cardiomegaly noted in the X ray. The award of Kshs 300,000/= is for reconstructive surgery and the same was justified.

D. Disposition 38. This appeal partially succeeds. The award of the trial magistrate Hon Martha Opanga Resident Magistrate dated 1st February, 2022 with respect of General damages of Ksh.1,800,000/= is set aside and the same is reduced to Ksh.800,000/=.

39. Judgment is therefore entered in favour of the appellant against the respondents jointly and severally in the following terms;i.Liability: 30: 70 % in favour of the Respondentii.General damages Ksh.800,000/=iii.Special damages Kshs.6,650/=iv.Cost of future treatment Kshs.400,000/=Less 30% liabilityv.Costs of the suit and interest.

40. Each party will bear their own costs of this Appeal.

41. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 25TH DAY OF OCTOBER 2023. FRANCIS RAYOLA OLEL...............................JUDGEI certify that this is a true copy of the originallySignedDEPUTY REGISTRARDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 25TH DAY OF OCTOBER, 2023.