[2023] KEHC 25994 (KLR)

Mwachia v Kamau (Civil Appeal E570 of 2021) [2023] KEHC 25994 (KLR) (Civ) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 25994 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E570 of 2021

AN Ongeri, J

December 1, 2023

Between

Thomas Mong’Are Mwachia

Appellant

and

Paul Mwangi Kamau

Respondent

Judgment

1. The respondent was one of the plaintiffs in CMCC No. 3344 of 2019 where he was seeking general and special damages in respect of injuries the respondent sustained on 29/8/2018 along Nyerere Road Nairobi while the respondent was riding motor cycle registration no. KMDW 953E when it was hit by the appellant’s motor vehicle registration no. KCG 540C.

2. The respondent sustained the following injuries

Fracture of the left tibia and fibula 3. The trial court found the appellant 100% liable for the accident and assessed general damages at kshs.1,500,000 plus special damages of ksh.152,842 and a further ksh.200,000 for removal of the metal implants.

4. The appellant has appealed to this court on the following groundsi.The learned magistrate erred in fact in holding that the appellant was responsible for the accident that gave rise to the suit.ii.The learned magistrate erred in fact in failing to hold that the 1st respondent was liable or substantially contributed to the accident.iii.The learned magistrate erred in fact in failing to place any weight on the evidence given by the appellant.iv.The learned magistrate erred in law and in fact in failing to take into account the medical report of Dr. Wambugu P.M or for failing to give the reasons for not relying on the same while making the award on the removal of the metal implants.v.The learned magistrate’s award on general damages was excessive.vi.The learned magistrate erred both in law and fact in failing to consider the evidence on record and the submissions of the appellant, which failure occasioned a miscarriage of justice.

5. The parties filed written submissions as follows; the appellant submitted that the respondent called two witnesses in support of his case. PW1 the police officer who produced the police Abstract stated in cross examination that he was not present when the accident occurred nor was anyone blamed for the accident. He further stated that as at the time of the hearing of the suit, the matter was still undergoing investigation.

6. The appellant contended that at trial he indicated that the respondent was riding on the wrong side of the road from Serena Hotel towards University of Nairobi. It was his argument that the trial court made no attempt to arrive at the finding as to which side of the road the accident occurred to enable him arrive at a conclusion. He made no remarks on the sketch that was produced by the appellant nor did he refer to the issued of the police abstract not having blamed the appellant.

7. On quantum the appellant submitted that Kshs. 1,500,000 was excessive as general damages and proposed Ksh. 500,000 and in support cited Kiambu HCCC No. 100 Of 2017, (Minors) Tirus Mburu Chege Another v JKU & Another where the court reduced the general damages awarded for pain and suffering for fractures of the tibula and fibula, blunt injury on the forehead, broken upper right second from tooth, nose bleeding and consistent loss of consciousness from Kshs.800,000 to Kshs. 500,000

8. The respondent submitted that he testified that on 29/8/2018 he was lawfully and carefully riding his motor cycle along Nyerere road when motor vehicle number KCG 540E was permitted to join the main road in total disregard of the traffic rules that he failed to give way to oncoming motorists before joining the road consequently knocking down the respondent’s motorcycle.

9. The respondent contended that the appellants sketch clearly shows that he was on the overtaking lane and hence he was not overlapping. The Sketch map it was clear that the opposite lane was clear and the respondent was at liberty to overtake only for the Appellant to join the said road without any indication or due regard to Respondent’s motor cycle who was already on the road.

10. On general damages the respondent indicated that he suffered; a fracture of the left tibia, fracture of the left fibula, recurrent pains on the left leg, surgical scars on the left lower leg and degree of permanent incapacity of 30%. It was thus the respondent’s argument that Kshs. 1,500,000 was reasonable as general damages.

11. This being a first appeal, the duty of the first appellate court is re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses. In Selle v ssociated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

12. The issues for determination are as follows;I. Whether the appellant was entirely to blame for the accident.II. Whether the award of general damages was excessive.III. Whether the respondent proved special damages in respect of removal of metal implants.

13. On the issue as to whether the appellant was entirely to blame for the accident, I find that the appellant said that he had been given way by other motorists when the respondent hit him with the motor cycle.

14. The respondent on his part said that it was the Appellant’s motor vehicle which hit the Respondent’s motorcycle.

15. There is evidence that the motor vehicle was joining the main road while the motorcycle was overtaking the stationary vehicles which had given the Appellant way to join the main road.

16. I find that the trial court was not right in holding the appellant 100% liable for the accident.

17. The respondent was overtaking stationary vehicles and he contributed to the accident and the court ought to have apportioned liability between the Appellant and the Respondent.

18. The Appellant was under a duty to ensure that the main road was clear before joining.

19. I accordingly apportion liability at 80:20 in favor of the respondent against the Appellant.

20. On the issue as to whether the award of general damages was excessive, I find that the respondent suffered two fractures of the fibula and tibia.

21. It is not in dispute that he suffered 30% disability and has metal implants which will require removal.

22. I have considered the following comparable cases;a.Joseph Musee Mua v Julius Mbogo Mugi & 3 Others [2013] eKLR. The Plaintiff sustained fractures of the right tibia and fibula, 2 broken upper jaw teeth and a chest injury. The injury left the Plaintiff with a permanent injury of 5% and the court awarded Kshs.1,300,000/= general damages for pain, suffering and loss of amenities.b.In Mwaura Muiruri –vs- Suera Flowers Limited & Another [2014] eKLR wherein the Plaintiff sustained compound fractures of the right tibia and fibula, comminuted fractures of the right humerus, and soft tissue injuries. The court awarded him Kshs.1,450,000. 00/= for pain and suffering and Kshs. 300,000/= for loss of amenities.

23. I find the award of kshs.1,500,000 reasonable in the circumstances.

24. I also find that the award of ksh.200,000 for removal of the metal implant was specified and pleaded and proved.

25. The court can only interfere with the award of the trial court if the same is inordinately low or high as to warrant interference. The court in the case of Butt v Khan [1981] KLR 349 sets the guiding principle of when an appellate Court can interfere with an award of damages that:“... 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...”

26. I partially allow the appeal to the extent that liability is apportioned at 80:20%.

27. I set aside the trial court’s finding on liability and substitute it with an order apportioning liability at 80:20%.

28. The award is accordingly reduced by 20% contributory negligence.

29. Judgment be and is hereby entered in favor of the Respondent against the Appellant in the sum of Kshs.1,482,273. 60 together with costs and interest at court rates from the date of the trial court’s judgment until payment in full.

30. Since the appeal partially succeeded, each party to bear its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. .........................................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent