[2022] KEHC 16184 (KLR)

Mutua & another v Ogutu & 2 others (Civil Appeal 12 of 2018) [2022] KEHC 16184 (KLR) (6 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16184 (KLR)

Republic of Kenya

In the High Court at Busia

Civil Appeal 12 of 2018

JR Karanja, J

December 6, 2022

Between

Ndambuki Mutua

1st Appellant

Ephraim Gakuru Kinyangoi

2nd Appellant

and

Philip Nico Ogutu

1st Respondent

Chabhadiya Enterprises Ltd

2nd Respondent

Hassan Juma Shibende

3rd Respondent

(This appeal arises from the judgment and decree of the Chief Magistrate delivered on September 14, 2018 in Busia CMCC No 214 of 2014)

Judgment

1. This appeal arises from the judgment and decree of the Chief Magistrate delivered on September 14, 2018 in Busia CMCC No 214 of 2014, in which the appellants, Ndambuki Mutua (appellant one) and Ephraim Gakuaru Kinyangoi (appellant two) were the first and second defendants respectively, and were sued together with the second respondent, Chabhadiya Enterprises Ltd and the third respondent, Hassan Juma Shibende, by the first respondent, Philip Nico Ogutu, for general and special damages resulting from a road traffic accident which occurred on or about the August 31, 2012, along the Busia-Mumias road at an area known as Kisoko.

2. The accident involved a Toyota S/Wagon motor vehicle Registration Number KAX 342 E, in which the plaintiff (first respondent) was travelling as a bonafide passenger and was at the time being driven by the second defendant (second appellant) as an agent/employee of the first defendant (first appellant), its registered or beneficial owner. The vehicle collided with two other motor vehicles make Mitsubishi lorry registration Number KAV 803 M owned by Online Retreads Ltd (third defendant) and a Ford tractor registration number KAL 101 E, belonging to the fourth defendant (second respondent) and driven at the time by its agent, employee or driver, the fifth defendant (third respondent).As a result of the accident, the plaintiff (first respondent) suffered severe bodily injuries for which he claimed damages against all the defendants (first and second appellants together with the second and third respondents).

3. It was the plaintiff’s contention that the accident was caused by the negligence, carelessness and/or recklessness of the drivers and/or owners of the three motor vehicles i.e. the second defendant/appellant, the third defendant and fifth defendant/third respondent.The plaintiff (first respondent) therefore prayed for damages and costs against all the defendants including the first and second appellants, the second and third respondents.The claim was however, denied by all the defendants on the basis of their respective pleadings in their statements of defence in which they not only blamed each other for the accident but also the plaintiff. It is notable that the third defendant (Online Retreads Ltd), owner of motor vehicle registration Number KAV 803 M lorry, did not participate in the trial, neither did it file its statement of defence. The explanation for the omission was apparently lack of service of the claim or hearing notice upon it (third defendant).

4. Nonetheless, after a full trial, the court found in favour of the plaintiff (first respondent) against the defendants but apportioned liability at the rate of 40% against the second appellant and 30% each against the drivers of the lorry registration number KAV 803 M and the tractor registration number KAL 101 E (ie the third respondent). However, the trial court barred the plaintiff from executing the judgment against the third defendant or owner of the motor vehicle registration number KAV 803 M lorry on the basis of the fundamental principle of natural justice. In so doing, the court observed that it was a grave mistake and serious inadvertence for the plaintiff to fail to involve the third defendant in the proceedings.

5. Ultimately, the trial court awarded the plaintiff/first respondent damages in the total sum of Kshs 2,185,430/- made up of general damages in the sum of Kshs 2 Million (Kshs 2,000,000/-) and special damages in the sum of Kshs 185,430/- together with cost of the suit and interest.Being dissatisfied with the Judgment and the award, the first and second appellants lodged this appeal on the basis of the grounds set out in the memorandum of appeal dated the October 8, 2018 filed herein by Peter M Karanja advocate.The three respondents essentially opposed the appeal through Bogonko, Otanga & Co Advocates and Omwenga & Co Advocates respectively.

6. The appeal was canvassed by way of written submissions. Both sides filed their respective submissions which this Court duly considered alongside the grounds of appeal and the opposition thereto.The duty of this court was basically to re-consider the evidence presented before the trial court and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.In that regard, the plaintiff’s evidence and that of his witness Dr Charles Mudai (PW 2) was considered by this Court against that of the defendants on the basis of their pleadings as they did not avail themselves for hearing. Ironically, they closed their case without testifying in Court thereby implying that they had no evidence in support and proof of their respective pleadings.

7. Be that as it may, the question of liability and the quantum of damages was the main twin issue for determination before the trial Court.The plaintiff (PW 1) with regard to liability testified that he was travelling as a passenger in the appellant’s motor vehicle registration number KAX 342 E Toyota headed towards Nambale when they arrived at the scene of the accident at Kisoko and a collision occurred between the vehicle and a stationery tractor registration number KAL 101 E which had stalled on the left side of the road. That, in the attempt to overtake a Mitsubishi canter lorry registration number KAV 803 M which was ahead of the appellant’s vehicle and which had also stalled on the road, the driver of the vehicle (Toyota) noticed an oncoming vehicle and moved back to his correct left side of the road only to hit the back side of the stalled tractor causing him (plaintiff) bodily injuries for which he was rushed to hospital.

8. The plaintiff recollected that prior to the accident, the appellant’s vehicle was being driven carefully and at a moderate speed behind the lorry and the tractor, all vehicles, moving towards or facing the direction of Nambale on the left side of the road. He indicated that although the lorry and the tractor had stalled on the road there was no warning sign erected or placed on the road by either driver of the lorry or tractor.

9. The plaintiff attributed the accident to the omission by the drivers of the tractor and the lorry to erect or place warning signs on the road to alert other road users of the presence of stalled and stationery vehicles on the road. He effectively exonerated the driver of the appellant’s vehicle (the second appellant) from blame in causing the accident.However, the trial court after considering the evidence of another passenger in the same vehicle, Bonventure Wesonga Oruma,who testified in CMCC No 216 of 2014 involving the same accident was of the opinion that the appellant’s vehicle’s driver carried the greatest blame in causing the accident by his negligent, careless and reckless manner of driving the vehicle such that he failed to exercise proper lookout and ventured to overtake the stalled lorry oblivious of the stalled tractor ahead.

10. Indeed, the trial court, after carefully considering the evidence in its totality together with the applicable legal principles and case law concluded that the drivers of the stalled lorry and tractor as well as the driver of the appellant’s vehicle were all to blame for causing the accident to the extent that whereas the drivers of the stalled vehicles failed to take steps to ensure that other road users were made aware of the breakdown of their vehicles by erecting or placing necessary warning signs, the driver of the appellant’s Toyota vehicle was careless and reckless.

11. The trial court rendered itself thus: -…………, it is the finding of this court that the drivers of the two stalled vehicles were at fault for leaving the vehicles so recklessly stalled on the road. In the court’s opinion, the driver of KAX 342 E, the Toyota Noah carrying the plaintiffs was more at fault for having overtaken the lorry without due care and attention as to the safety of his passengers, he failed to see the stalled vehicles in good time or at all so as to avoid the accident. Since it was drizzling and the surface was wet, it should have been clear to the driver of KAX 342 E that there was a possibility of the vehicles sliding on the road even as he applied his brakes and in that case, he should have driven much slower. Moreover, since his vehicle was the only one in motion, and it is easier to control a mobile vehicle than a stationery one, I would have expected the driver of KAX 342 E to be a lot more careful and to have maneuvered, steered or controlled the motor vehicle so much as to avoid the accident. He failed to do so”.

12. Consequently, the trial court apportioned liability between the three drivers of the ill-fated vehicles at the rate of 60% against the drivers of the lorry (registration number KAV 803 M) and the tractor (registration number KAL 101 E) to be shared equally between them (ie at the rate of 30% each) and at the rate of 40% against the driver of the Toyota (registration number KAX 342 E).

13. This court after re-evaluating the evidence before the trial court was in agreement with the trial court’s findings on liability only to add that although the dangerous situation on the road was created by the presence of the stalled vehicles thereon the accident ought not have occurred had the driver of the Toyota motor vehicle adhered to the applicable traffic regulations and driven his vehicle with great care and attention regard being given to the weather conditions and the condition of the road at the time. The reliance on the evidence of a stranger in this case (ie Bonventure Wesonga Oruma) by the trial Magistrate to make findings on the appellant liability was improper and in any event, was of no consequences herein.

14. In the circumstances, none of the three drivers could escape liability hitherto in varied degrees from the consequences of their respective negligent acts and/or omissions which resulted in the plaintiff suffering serious injuries for which he was rightly entitled to compensation in terms of general and special damages.However, contrary to the findings of the trial court, this court would find that the drivers of the lorry and tractor were greatly responsible for causing the accident in as much as they created the dangerous situation on the road and failed to forewarn other road users by erecting or placing necessary warning signs.

15. In that regard, this court would apportion liability at 80% on equal basis (ie 40% each) against the drivers of the lorry and the tractor while the driver of the Toyota vehicle would bear 20% of the blame.Therefore, grounds three, four, five and seven of the appeal are hereby sustained while grounds one, two, six, eight and nine are overruled. All these grounds relate to liability and apportionment thereof between the three drivers.

16. The rest of the grounds from ground ten to ground sixteen relate to the award of general damages made by the trial Court in favour of the plaintiff.The evidence led by plaintiff in support of the award primarily came from Dr Charles Mudai (PW 2) who produced the necessary medical documents (P EX 1, 3 and P EX 5 (a)) to show and establish the injuries suffered by the plaintiff, the extent thereof and residual effects.

17. The medical report dated December 13, 2013 (P EX 5 (a)) indicated that the plaintiff suffered injuries mostly to the head and left upper limb. In that regard, the head suffered multiple communicating facial lacerations, compound commuted left facial fractures with significant displaced left facial fractures orbital complex, maxillary complex and the mandible with bone loss. Three teeth in the left lower jaw were lost.The left upper limb suffered comminuted shattered fracture of the left humerous proximal 2/3, fracture of the left medial epicandyle, fracture of the left capital with displacement of the fragment, fracture dislocation of the lumate and displacement of hamates.

18. The report further indicated that the plaintiff was treated at St Marys Hospital, Mumias immediately after the accident and at Aga Khan hospital Kisumu and Nairobi where he was hospitalized for one month from September 3, 2012 up to September 30, 2012. The treatment given to him included facial soft tissue repair, remonstration and open reduction of the fractured facial bones with internal fixation which was done in two stages on September 7, 2012 and September 10, 2012. The fractures of the left humerus were also fixed internally. Reconstruction and angled plate and screws were fixed together with massive bone grafting. The wrist and elbow joints were internally fixed and on the October 23, 2013, corpal tunnel decompression operation was performed and the plate and screws used in internal fixation of the humenal fractures removed.

19. The plaintiff complained of inability to fully use his left upper limb and had scars on the left side of the face and chin. He also had surgical scars on the entire anterior aspect of the lower left upper arm and on the lower anterior aspect of the left forearm. He had partial stiffness of the left wrist joint, reduced grasping power in the left hand fingers, reduced range of abduction of the left shoulder joint and the reduced range of extension of the left elbow joint.

20. In the doctor’s opinion, the plaintiff sustained serious injuries to the face and left upper limb which were both soft tissue and bony in nature and was in the process of recovery from his injuries at the time of examination while continuing with physiotherapy. He was expected to fully recover from his injuries within one year from the date of examination.During the trial, the doctor’s findings and opinion were never disputed and/or disproved or countered to the contrary by any other medical report.

21. The report was considered by the trial court for purposes of assessment of general damages and upon its strength the plaintiff was awarded general damages in the sum of Kshs 2,000,000/- (two million).In making the award, the trial court took into consideration the decision of the superior courts in comparable cases as cited by counsels representing the plaintiff and the defendants.It was apparent that the court agreed more with the submissions of and authorities cited by the first and second defendants (the appellants) but, ironically, proceeded to award the plaintiff general damages in the sum of Kshs 2 Million, without proper basis thereby rendering the award inordinately high and excessive in the circumstances.

22. At most, the award which endeared the circumstances ought not have exceeded the sum of Kshs 1,000,000/- (one million) consideration being given to factors such as inflation and the existing standard of living. In that regard, the award of Kshs 2 Million general damages made by the trial court is hereby set aside and substituted for an award of Kshs 1 million (one million).This means that grounds ten (10) to sixteen (16) of the appeal are sustained.

23. In the end result, this appeal is largely meritable and is hereby allowed to the extent that the judgment of the trial court is hereby set aside with regard to the apportionment of liability between the defendants including the two appellants and to the award of Kshs 2,000,000/- (two million) general damages.Thus, the liability between the defendants be and is hereby apportioned at the rate of 80% against the third and fifth defendants to be shared equally between them at 40% each. The second defendant (second appellant) takes 20% of the blame. The plaintiff (first respondent) would now be entitled to general damages in the sum of Kshs 1,000,000/- (one million) for pain, suffering and loss of amenities.

[24]Otherwise the award of Kshs 185,430/- special damages which was not disputed and was in any event established and proved by necessary documentary evidence be and is hereby confirmed.Ultimately, judgment is herein entered against the defendants including the appellants herein in favour of the plaintiff (first respondent) for the total sum of Kshs 1,185,430/- together with costs of the suit and interest.The parties herein shall bear their own costs of appeal.

25. In the event that part of the decretal amount based on the impugned judgment of the trial court has already been settled by the defendants including the appellants and the second and third respondents herein, then necessary adjustment shall be made by way of an increment or decrement of the due amount to accord with this judgment vis-à-vis apportionment of liability between the defendants.Ordered accordingly.

DATED AND SIGNED THIS 6TH DAY OF DECEMBER, 2022. JR KARANJAHJUDGE