[2022] KEHC 326 (KLR)

Muthoni v Peter & another (Civil Appeal 242 of 2019) [2022] KEHC 326 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 326 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 242 of 2019

JK Sergon, J

May 6, 2022

Between

John Ngugi Muthoni

Appellant

and

Irungu Peter

1st Respondent

Francis Muthaura

2nd Respondent

(Being an appeal the judgment and decree of Honourable D.O Mbeja Principal Magistrate in Milimani CMCC No. 2796 of 2012 delivered on 6th June, 2018)

Judgment

1. At the onset, the appellant herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 18th May, 2012 pursuant to a road accident on 18th December 2010 along Juja Road and sought for reliefs against the respondents in the nature special damages plus costs of the suit and interest thereon.

2. The appellant claimed in his plaint that on or about December 18, 2010, he was a fare paying passenger in Motor Vehicle No.KBM 710G traveling along Juja Road, and that upon reaching Karambe Petrol Station, the 1st /2nd respondent's driver negligently controlled Motor Vehicle No. KBM 710G, causing it to lose control, veer off its lane, and collide with Motor Vehicle Registration No. KAM 012X, causing the appellant to sustain injuries.

3. The appellant attributed his injuries to negligence on the part of the respondents by setting out their particulars under paragraph 5 of the plaint.

4. The respondents filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the appellant against third party in the sum of Kshs.300, 000/= in general damages plus a further Kshs.4,920/= for special damages.

5. The appellant has now sought to challenge the aforementioned judgment on appeal and has put forward six (6) grounds of appeal as seen in the memorandum of appeal dated 12th April, 2019:i.That the learned trial magistrate erred in fact and in law by dismissing the appellant’s entire suit and in so doing deciding that the respondents were not culpable in causing the accident whilst the plaintiff/appellant produced all relevant documents.ii.That the learned trial magistrate erred in fact and in law in falling to consider the evidence placed before the trial court as to how the accident occurred, particularly the Police Abstract produced by the investigating officer and therefore arrived at a wrong decision in law in dismissing the suit.iii.That the learned trial magistrate erred in law and in fact when he held a third party 100% to blame for causing the accident giving rise to the original suit against the weight of the evidence,iv.That the learned trial magistrate totally misapprehended the law and applied the wrong principles of law by dismissing the appellant’s suit without considering that the appellant had a strong case.v.That the learned trial magistrate erred in law and in fact in shifting the blame attributed to the driver of the motor vehicle Registration Number KBM 710G upon a third party driver of motor vehicle number KAM 012X whereas the defendants had failed to join the said third party to the suit despite having been granted leave to do so.vi.That the learned trial magistrate’s findings were against the weight of the evidence.

6. When the appeal came up for hearing, this court gave directions to have the appeal disposed of by written submissions. The appellant vide its submissions dated 15th December 2021 gave brief facts of the case and identified three (3) issues for determination to be as follows:i.Whether the respondents are liable for the accident that occurred on 18th December, 2010. ii.Whether the third party was liable.iii.What is the quantification of damages?

7. On the first issue, the appellant submitted that the learned magistrate erred in holding that the third party was liable, despite the fact that the appellant's claim was directly against the respondents, and that this holding is fundamentally incorrect because it amounts to the courts imposing the wrong defendant on the plaintiff/appellant, and that a cursory examination of the case establishes that the appellant proved his case against the respondents, not the imposed third party.

8. The appellant further submitted that the learned magistrate incorrectly attributed liability for the accident to KAM 012X based on the police abstracts, as the police abstract dated 10th March 2011 attributed blame to motor vehicle KAM 012X, while the police abstract dated 20th January,2011 indicated that the case was still under investigation at the time the abstract was being filled.

9. The appellant pointed out that his demand letter dated 3rd May 2012 did not elicit any response from the respondents. On this the appellant relied on the case of Wellington Nganga Mathiora v Akamba Public Road Services Ltd & another [2010] eKLR where the court stated that:“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even…challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as a proof of ownership in the absence of anything else as proof in civil cases was within the standard of probability and not beyond reasonable doubt as in criminal cases….”

10. On the second issue, the appellant submitted that the claim was wholly against the 1st and 2nd respondents and that the plaint did not contain any cause of action against the third party however in the impugned judgment the learned magistrate found the third party the owner of motor vehicle registration number KAM 012X as liable at 100%.On this argument the appellant relied on the case Kenya Commmercial Bank v Suntra Investment Bank Ltd [2015] eKLR the Court explained the legal position and role of the third party in civil proceedings as follows:“In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of theCivil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules. The way I understand the law on third parties, such issues of third parties are issues and triable only between the third party and the Defendant, and cannot be a bona fide issue triable between the Defendant and the Plaintiff. On the basis of those legal reasons, even if the third party had been joined, which he has not, it is not a triable issue at all for purposes of liability between the Plaintiff and the Defendant.”

11. On quantum, the appellant submitted that the learned magistrate assessed and awarded damages of Kshs.300,000/= as general damages plus Kshs.4,920 special damages and that the assessed damages are so inordinately low and entirely erroneous estimates. The appellant further suggested the sum of Kshs.450,000/= as general damages as it was in the trial court.

12. The appellant has relied on the case of Anne Murithi and 5 others v The Headmistress MKS Girls, the Chairman, Board of Governors & Wambua Makau [2003] eKLR The plaintiff suffered a fracture ole cranion and compound comminuted fracture of the lower end of the humerus. General damages for pain, suffering and loss of amenities assessed at Kshs.500,000/=.The plaintiff was awarded Kshs.340,000/= as general damages for pain and suffering.

13. In reply, the respondents submittedthat, according to the testimony of both the appellant and the 2nd respondent at the trial, the accident occurred due to the negligent acts of the driver of the lorry registration number KAM 021X who moved out of his lane and hit the 2nd respondent on his rightful lane, and the 2nd respondent tried to avoid the accident but there was nothing more he could have done to avoid the collision.

14. The respondents relied on the case of Farida Kimotho v Ernest Maina [2002] eKLR quoted with approval the judgments of Simmonds LJ in Woods v Duncan [1946] AC 419 Alastir Forbes V.P in the court of appeal case of Msuri Muhiddin v Nazzor Bin Sef [1960] EA (207) where he held that:I accept Mr. Fraser Murray’s proposition that the respondents (defendants) can avoid liability if they can show either that there was no negligence on their part which contributed to the accident, or that the accident was due to circumstances not within their control.

15. The respondents submit that the collision was caused by circumstances beyond the control of the 2nd respondent, who tried to escape the impending accident but was nonetheless hit in his lane, and that there was no negligence on their part that led to the occurrence of the accident.

16. The respondents submit that the driver of motor vehicle registration number KAM 012X was the proximate cause of the accident and the trial court was right in holding him 100% for the accident.

17. The respondents asked the Court to be guided by the case of Muthuku v Kenya Cargo Services Ltd [1991] KLR 464, where the court observed that;“In my view, it was for the appellant to prove, of course upon a balance of probability, one of the forms of negligence as was alleged in the plaint. Our law has not yet reached the stage of liability without fault. The appellant clearly failed to prove any sort of negligence against the respondent and in my respectful view his claim was rightly dismissed…..””

18. This is a first appeal and this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that. See: Selle v Associated Motor Boat Company Limited, [1968] EA 123.

19. I have considered the contending submissions and authorities cited on appeal. I have likewise re evaluated the material placed before the trial court. I find two issues falling for determination namely;a.Whether the respondents or the third party are liable for the accident that occurred on 18th December ,2010b.What is the quantification of damages.

20. The appellants submitted that, it is undisputed that the accident occurred on December 18, 2010, that the appellant was injured, and that he demonstrated his case to the required standard, which entitled him to damages, but the sole point of contention was who was to blame.

21. On the other hand the respondents stated that the driver of the motor vehicle with the registration number KBM 710G testified at the hearing that he was driving from Dandora to town along Juja road when he encountered a lorry with the registration number KAM 012X traveling in the opposite direction, and the lorry swerved on his side as he tried to avoid the lorry, but it was late and there was nothing he could do.

22. The appellant submitted that he had a direct claim against the first and second respondents, and that PW2 the investigation officer, police constable Jessy Mwololo, testified that the appellant reported to Pangani Station, and that his testimony was that motor vehicle number KBM 710G rammed into motor vehicle registration number KAM 012X, and that the appellant was injured as a result of the accident.

23. The trial court made reference to two police abstracts one by the respondents dated 10/3/2011 that attributed blame on motor vehicle KAM 012X and the other by the appellant dated 20/1/2011 that indicated that the case was pending investigations as at the time the abstract was filed.

24. After considering the evidence, the trial court was satisfied that the third party was wholly liable for causing the accident at 100% and I am in agreement with the trial court’s decision on the same.

25. The legal position on assessment of damages is that a court sitting on appeal can only interfere with the award of a trial court in instances where an irrelevant factor was taken into account, a relevant factor was disregarded or the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

26. The assessment of General damages is discretionary and in the case of Butt v Khan [1981] KLR 349 Law, JA held as follows:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

27. On quantum, the appellant in the trial court had proposed the sum of Kshs.450,000/= while the respondents advocate had proposed Kshs. 200,000/=and the trial magistrate awarded Kshs.300,000/=.

28. After due consideration of all the material before this court alongside the authorities, I do find that the award for damages for Kshs.300,000/= to be reasonable considering the fact taking into account the inflation rate and the nature of the injuries that were sustained by the appellant.

29. Accordingly, I find no basis to interfere with the trial Magistrate’s decision on being satisfied that the appellant sustained injuries as a result of the accident and that the third party is liable in negligence for causing the accident at 100% and awarding them the damages of Kshs.300,000/= which is reasonable in my view.

30. The Appeal dated 12th April 2019 has no merit, the same is dismissed.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the Respondent