[2022] KEHC 14282 (KLR)

Mutua v Muthini (Civil Appeal E003 of 2022) [2022] KEHC 14282 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14282 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E003 of 2022

MW Muigai, J

October 13, 2022

Between

Francis Mutua aka Francis Mutua

Appellant

and

Jackline Mumbu Muthini

Respondent

(Being an appeal from the Judgment and Decree of the Chief Magistrate’s Court at Machakos delivered by Hon. M. A. Otindo (P.M) on the 8 th day of December, 2021)

Judgment

1. By a Plaint dated February 22, 2021 and filed on February 24, 2021 the Respondent as the Plaintiff sued the Appellant as the Defendant in Machakos CMCC No 106 of 2021. The Respondent sought;-(a)General damages (b) cost of the suit, (c) interest on (a) and (b) and (d) any other relief as this Court may deem fit and propter to grant.

2. The cause of action arose from a Road Traffic Accident that occurred on or about August 23, 2020 along Kyawango – Kitui/Masii Road at Maweli area whilst the Plaintiff/Respondent was lawfully walking off the road as a pedestrian, the Defendant/Appellant and/or his authorized driver, agent and or servant negligently drove, managed and or controlled motor vehicle No KCU 796K that the same lost control, veered off the road and hit the Plaintiff/Respondent as a consequence whereof the Plaintiff/Respondent sustained severe injuries.

3. The particulars of the injuries sustained are as follows:-i.Blunt injury to Pelvisii.Fracture right superior and inferior RAMI.

4. According to the Respondent the Appellant, its driver, servant and/or agent while in the cause of his employment of driving, drove said motor vehicle at excessive and dangerous speed, failed to have any regard to the safety of other road users particularly that of the Respondent, failing to slow down, swerve, stop or otherwise so as to avoid the said accident, driving carelessly and recklessly, driving without proper look out and attention, failing to notice the plaintiff in sufficient time so as to avoid the said accident and adhere to traffic rules.

5. The Respondent relied on the doctrine of Res Ipsa Loquitor.

6. The Respondent averred that despite demand and notice of intention to sue having been given to the Appellant, the Appellant has neglected to make the Respondent’s claim good.

Defence Dated March 22, 2021 7. The Appellant denied all the Respondents averments in the Plaint save for the occurrence of the accident which indeed took place on the material date ie August 23, 2020 involving the motor vehicle registration No KCU 796 K. The Appellant denies the allegations on how the accident took place and avers that the Plaintiff neither sustained severe bodily injuries occasioned by the said accident nor did the Respondent suffer loss and damage and puts the said Plaintiff to strict proof of all her allegations thereon.

8. The Appellant denied that the accident was caused by his negligence, the negligence of his driver or agent and/or servant as alleged by the Respondent and put the Respondent to strict proof thereof.

9. That the Appellant avers that if any injuries were occasioned to the Respondent it was as a result of gross negligence on the part of the Respondent who is entirely to blame for the cause of the same. The particulars of negligence was that the Respondent failed to keep any proper lookout as a pedestrian, walking or being on the road where it is not safe for a pedestrian, failing to pay attention or take heed of the presence of motor vehicle registration number KCU 7896 K on the said road, failing to observe traffic rules, walking without having regard to the proximity of traffic and particularly motor vehicle KCU 796K, failing to have any due regard for her own safety and abruptly jumping into the lawful path of the motor vehicle KCU 796K.

10. The Appellant denied that the doctrine of Res Ipsa Loquitor and Vicarious liability are applicable in the circumstances of this case and put the Respondent to strict proof of the said allegations thereof.

11. That no demand notice of intention to sue has been made herein as alleged in the plaint and put the Respondent to strict proof thereof.

Reply To Defence Dated March 29, 2022 12. The Respondent reiterated the contents of the Plaint and denied the Appellant’s allegation that if any accident occurred it was caused or contributed by the negligence of the Respondent and put the Appellant to strict proof at the time of the hearing hereof.

Court Proceedings 13. On 3/11/2021 the parties appeared before the Trial Court. The Plaintiff was represented by Mr Kamolo while the Defendant was represented by Mr Gitonga holding brief for Mr Maluki. Parties informed the Court that they had a consent to record. The Consent recorded as follows;-a.That judgment on liability be entered in favour of Plaintiff as against the Defendant in the ratio of 10:90 ie, the Defence bearing 90%, the Plaintiff 10%.b.That all claims supporting documents as per the Plaintiff’s list of documents dated February 22, 2021 be admitted as evidence without calling the maker’s thereof. The same to be attached to the Parties submissions. The assessment of quantum be by way of written submissions.

14. The Consent was adopted as an order of the Court.

Trial Court Judgment 15. The Trial Court delivered its judgment on December 8, 2021 and awarded the Plaintiff/Respondent:-a.General damages at .........Kshs 1,500,000/-b.less 10% contribution ....... Kshs 150, 000/-c.Total .................................. Kshs 1,350,000/-The said amount shall be paid together with costs of this suit and interest thereon from the date of filing the suit.

Appeal Dated December 20, 2021 16. Aggrieved by the Judgment of the Trial Court delivered on 8/12/2021 the Appellant has appealed against the said decision based on the following grounds:-1. That the Learned Trial Magistrate erred in law and in awarding General damages of Kshs 1,500,000/- for which is inordinately excessive given the circumstances of the case and the nature of the injuries sustained by the Respondent.

2. That the Learned Trial Magistrate erred in law and in fact in proceeding on the wrong principles vis-a –vis the evidence before her and laid down principles of law thus arriving at a judgment that was erroneous in the circumstances.

3. That the Learned Trial Magistrate erred in law and in fact in completely failing to consider the Appellant’s submissions and authorities on the question of general damages.

17. The Appellant urged the Court allow the Appeal, set aside the aforesaid judgment in Machakos CMCC No 663 of 2013 and award the Appellant full costs of the Appeal and costs of the trial in the High Court.

Written Submissions Appellant submissions dated September 16, 2022 18. The Appellant filed his submissions on September 19, 2022 and submitted that the principles of interference of an award of damages by a Trial Court were discussed by the High Court in Trustees Registered Maua Methodist Hospital vs Penina Thirindi Koome[2021] eKLR.

19. Also the principles were restated in Shabani v City Council of Nairobi[1985] KLR 516, 518- 9.

20. In reaching its determination, this Court has to put in mind the fact that it neither saw nor heard the witnesses as they testified before the Trial Court. In the case of Selle vs Associated Motor Boat C [1968] EA 123 as quoted by the High Court in James Mutunga Mbinda vs Stephen Mwalula & another (suing as the legal representatives of the estate of Winfred Mbatha Mwalula (deceased) [2021] eKLR the Court stated that:-“..... this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court .. is by way of retrial and the principles upon which this Court acts in such an appeal are well settled .... this Court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect in particular the Court is not bound necessarily to follow the Trial Judge’s findings of fact if it appears either that he has 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...”

21. On whether the award of General damages was inordinately excessive vis-à-vis the injuries sustained by the Respondent it is trite law that damages for bodily injuries must be commensurate with the injuries sustained. The Respondent pleaded that she sustained Blunt injury to the pelvis and fracture right superior and inferior Rami. This was corroborated by a medical report dated February 15, 2021. The said report indicated that compete healing of the Respondent herein though gradual was anticipated. Therefore the award of Kshs 1,500,000/- was inordinately high and non-commensurate with the injuries that the Respondent sustained.

22. Reliance was made in the case of Muthamiah Issac vs Leah Wangui Kanyingi NBI HCCA No 653 of 2011 [2016] eKLR and Lilian Wanja vs Cyprian Mugendi Igonga & 2 others CKA HCCA No 24 of 2015 [2016] eKLR.

23. On whether the Trial Magistrate properly considered the Appellant’s submissions it is trite law that in the dispensation of justice Courts ought to be guided by the principles of Natural justice. In this case the Trial Court prejudiced the Appellant occasioning a biased award of damages upon the Respondent.

24. The Appellant submits that this Appeal be allowed the award of damages awarded to the Respondent be revised to that which is reasonable and commensurate with the injuries sustained by the Respondent.

Respondent’s submissions 25. The Respondent submitted the Judgment of Trial Court should not be dismissed with costs as the Award in the Trial Court was based on sound principles of law and therefore should not be disturbed.

26. In the case ofBoard of Trustee Anglican Church vs Naomi Galma Galgalo 2019 – Marsabit Civil Appeal No 2 of 2019 the Respondent had sustained a fracture of Pelvis Fracture and open facial bruises the Court set aside an award of Kshs 2,000,000/- to Kshs 1,400,000/- in the year 2019. The injury sustained was similar to that of the Respondent.

27. It was further submitted that the relevant factors to be considered includes passage of time and inflation, he award of Kshs 1,350,000/- was a fair award to the Respondent therefore the Trial Court should not be disturbed.

Determination 28. The Court considered pleadings and submissions by parties through their respective Counsel. The issue that this Court is to determine on appeal is quantum which the Appellant finds excessive.

29. On liability, parties through respective Counsel recorded Consent on liability in the Trial Court on 3/11/2021 at 90:10 in favor of the Plaintiff against the Defendant. Parties were directed to file submissions on quantum.

30. As the 1st Appellate Court, it is mandatory to reevaluate the evidence on the Trial Record and make independent conclusion.In the case of Selle vs Associated Motor Boat Co [1968] EA 123 the court stated that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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.”

Quantum 31. On the issue of whether the general damages were inordinately high, there are parameters within which the appellate court can interfere with an award for general damages by the Trial Court that are well established in the case of Butt V Khan (1981)KLR, 349 where the court held as follows:-The appellate court cannot interfere with the decision of Trial Court unless it is shown that the judge proceeded on the wrong principle of law and arrived at misconceived estimates.

32. In Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal restated this principle as follows:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."

33. The Court of Appeal in the case of in the case of Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR, held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297.

34. On whether the award of General damages was inordinately excessive vis-à-vis the injuries sustained by the Respondent it is trite law that damages for bodily injuries must be commensurate with the injuries sustained.

35. The Respondent pleaded that she sustained Blunt injury to the pelvis and fracture right superior and inferior Rami. This was corroborated by a medical report dated February 15, 2021 by Dr John Mutunga of 15/2/2021. The Appellant submitted that the said report indicated that compete healing of the Respondent herein though gradual was anticipated. Therefore, the award of Kshs 1,500,000/- was inordinately high and non-commensurate with the injuries that the Respondent sustained.

36. The Respondent on the other hand submitted that the Respondent was involved in a road traffic accident and sustained blunt injury to the pelvis and fracture right superior and inferior Rami. The Trial Court heard the matter and considered the pleadings and submissions on record and the Appellant failed to file and served their Written submissions.

37. This Court finds from the Trial Court record as follows;a.P3 Form of 5/2/2021 filled by Machakos Hospital Level 5; The Respondent was admitted in the Hospital and the injuries sustained were classified as grievous harm.b.The Medical Report by Dr John Mutunga of 15/2/2021 confirms the Respondent was admitted at the Machakos Level 5 Hospital where X-rays were taken and confirmed the fractures and thereafter she was discharged to take physiotherapy sessions. On examination, the Doctor found that Respondent had pain on the pelvis and found tenderness on the right pelvis. The doctor’s conclusion was that the Respondent suffered severe skeletal injuries. Complete healing was/is anticipated although gradual. She will need physio therapy sessions to improve her mobility.

38. The Plaintiff relied on the following cases at the Trial Court;2 cases;HCCC 38 OF 2012-NAIROBIMillicent Otieno Ochuony vs Katola Richard.The Plaintiff sustained pelvis injuries, fracture of the right pubic ramus and diastasis of the symphysis pubic and was awarded Ksh 2,000,000/-HCCC 202 OF 2009- NAKURUMichael Mawa Gitonga vs Serah Njuguna alias Serah Wanjiku MungaiThe Plaintiff sustained injuries to the pelvis, soft tissue injuries and fracture to the right tibia and was awarded Ksh 1,500,000/-The Appellant did not file written submissions at the Trial CourtIn the High Court on appeal, the Appellant relied on the following cases;NBI HCCA 653 of 2011 [2016] eKLRMuthamia Isaac vs Leah Wangui KanyingiThe Plaintiff sustained fracture of the right superior and inferior pubic ramii and blunt injury of the leg and was awarded Ksh 400,000/-HCCA 24 OF 2015 [2016] eKLRLilian Wanja vs Cyprian Mugendi Igonga & 2 OthersThe plaintiff sustained fracture /dislocation of the hip and multiple soft tissue injuries and was awarded Ksh 500,000/-

39. The Respondent also submitted in this Court and relied on;HCCA No2 OF 2019 MARSABITBoard of Trustees Anglican Church vs Naomi Galma Galgalo 2019 eKLRThe Respondent sustained fracture of pelvis and open facial bruises and the Court set aside award of Ksh 2,000,000/- Ksh 1,400,000/-

40. This Court has considered evidence and pleadings and submissions before the Trial Court and taken into account the injuries sustained by the Respondent occasioned by the accident; she was admitted in hospital for almost a month 23/8/2020-18/9/2020 and the prognosis by the doctor relying on P3 form and medical report and find that the injuries were not soft tissue injuries but blunt injury on the pelvis and fracture on the right superior and inferior rami and requires physiotherapy and gradually heal with time. In the meantime as was diagnosed there is pain in the pelvis area and may impede movement due to the pain.

41. The Trial Court considered the medical report and authorities cited by the Plaintiff and found as follows in the Judgment delivered on 8/12/2021;“Dr John Mutunga of Machakos Level 5 in his medical Report observed that the Plaintiff suffered severe skeletal injuries that will however heal but she required physiotherapy. This report was not controverted and thus Iam persuaded that they are consistent with the nature of the injuries the Plaintiff pleaded..”

42. The Plaintiff sought Ksh 2,500,000/- taking into account the authorities cited included some level of disability the Trial Court rightfully so declined the quantum proposed and found the amount of Kshs 1,500,000/- commensurate to the injuries the Plaintiff sustained.

43. This Court confirmed from Trial Court record, the Appellant did not file Written Submissions for the Court to consider.

44. This Court finds upon evaluation on the evidence on record that the Trial Court did not rely on a wrong principle, but considered the evidence on merit. The amount of quantum of damages is not excessive but sufficient taking into account physiotherapy sessions are required by the Plaintiff to gradually heal and current inflationary trends.

Disposition 1. The appeal is dismissed with costs.

2. The Trial Court judgment of December 8, 2021 is upheld.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13THDAY OF OCTOBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W MUIGAIJUDGEIN THE PRESENCE/ABSENCE OF:NO APPEARANCE - FOR THE APPELLANTNO APPEARANCE - FOR RESPONDENTPATRICK/SUSAN - COURT ASSISTANT(S)