[2022] KEHC 15305 (KLR)

Mwangi & another v Mwangi & another (Civil Appeal 121 of 2019) [2022] KEHC 15305 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15305 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 121 of 2019

JK Sergon, J

November 11, 2022

Between

Julius Maina Mwangi

1st Appellant

Newlight Junior Academy

2nd Appellant

and

Francis Mwangi

1st Respondent

Stanley Ngaruiya

2nd Respondent

(Being an appeal against the judgment decree of Hon. G.A MMASI (MRS.) Senior Principal Magistrate, delivered on 4th February 2019 in Milimani CMCC No. 6158 of 2016)

Judgment

1. At the onset, the 1st respondent herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated December 21, 2014 pursuant to a road accident on September 23, 2010 along Kangundo road and sought for reliefs against the appellants in the nature of general and special damages plus costs of the suit and interest thereon.

2. The respondent pleaded in his plaint that on or about 23rd of September 2010, the 1st respondent was operating a vehicle with the registration number KAS 064Z along Kangundo Road in Njiru when the 1st appellant drove/managed a vehicle with the registration number KAE 263G in such a careless and reckless manner that it collided with a vehicle with the registration number KAC 743C which in turn collided with 1st respondent’s motor vehicle KAS O64Z. As a result of this collision, the 1st respondent sustained serious injuries as well as loss and damages.

3. The 1st respondent further pleaded in his plaint that he was actively working as a matatu driver previous to the injury, but due to the injuries, he is unable to return to his job as a driver and as a result, his earning capacity has thereby diminished.

4. The appellants filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the 1st respondent in the sum of Kshs 7,517, 500/=.

5. The appellants being aggrieved preferred this appeal and put forward the following grounds:a.That the learned magistrate erred in fact in finding liability at 100% as against the appellants despite overwhelming evidence to the contrary.b.That the honourable learned magistrate erred in law and fact in awarding general damages to the respondent amounting to Kshs 3,000,000/=, loss of earning at Kshs 3,312,000/= and cost of prosthesis at Kshs 1,200,000/=.c.That the award of damages by the learned magistrate was excessive and an erroneous estimate of the damages that may be awarded to the respondent considering the circumstances of the case before the subordinate court and the weight of precedents in similar circumstances.d.That the learned magistrate erred in law and fact in disregarding crucial evidence in arriving at her decision based on only partial evidence.

6. The appeal was canvassed by way of written submissions which were filed and exchanged between the parties. The appellant's submissions were filed by MNM Advocates LLP while those for the 1st respondent were so filed by Jean M Nyoro & Co Advocates.

7. 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.

8. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:i.Whether the appellants were 100% liable for the accident.ii.The issue of quantum

9. On the issue of liability, the appellants submitted that the 1st appellant is easy to exonerate from blame this because if the 1st respondent was able to see the actions of the 1st appellant and in his words he was doing 40km/hr then it would mean the 1st respondent was equally on slow speed and that the allegations of high speed are disapproved by the 1st respondent.

10. The appellants further submitted that it is not gainsaying and the court may draw a presumption that school drivers generally more careful as compared to matatu drivers and if the third party’s lorry hit both vehicles on the left while one faces Nairobi, one after the other, it is clear that the said lorry moved out of its lawful lane.

11. It is the appellants’ submissions that the 1st respondent’s matatu was allegedly hit by the third party’s lorry while outside the road on the left lane, hit the 1st appellant’s van and hit the 1st respondent’s matatustill on the left and that this can only demonstrate reckless speeding as is evidenced on cross-examination by the 1st respondent who stated that the third party’s lorry lost control, came and hit his vehicle on the left side, further that the lorry was moving fast. That the 1st respondent apparently did nothing to avert the accident, his own passengers blame him in other suits and he should bear a portion of the blame.

12. The appellants contend that the testimony of the police officer does not lay blame on the appellants as he informed the court that it was impossible to know which vehicle rammed onto the other and further blaming of the 1st respondent by the police is material evidence and that he should be blamed for the accident.

13. The appellants further contend that the third party did not call evidence to rebut the monumental evidence against him and that a big deal was made of the conviction of the 1st appellant in the traffic case and on this the appellant has relied on the case of PNM & another (the legal personal Representative of estate of LMM v Telkom Kenya Limited & 2others (2015) eKLR that a defendant convicted of the offence of careless driving can still plead contribution in as subsequent civil case filed against him, the following principleinteralia too emerges;- That the party must nonetheless tender satisfactory evidence that proves the alleged contributory negligence. The upshot was the trial court in PNM & anor found that the defence of contributory negligence was not proved and entered judgment against the defendant on a 100% liability basis."

14. The appellants therefore urge the court to find that on preponderance of evidence ,the third party was largely to blame for the accident with the other two bearing minimal blame if at all.

15. In retort, the 1st respondent on the issue of liability submitted that the amended defence averring contributory negligence on part of the 1st respondent was filed outside the stipulated period after leave was granted to amend and once the leave collapsed the amended defence was of no consequence and cannot be relied on.

16. The respondent therefore submits that no evidence of contributory negligence has been tendered by the appellants to warrant this court to apportion him blame in causing the accident.

17. The 1st respondent contends that the allegations that he is to be blamed by the police investigating officer is not true and is misleading in that the said police officer testified that the 1st appellant was convicted of the offence of careless driving and the police abstract produced by the same officer and the traffic proceedings clearly indicate showed that the 1st appellant was charged and convicted.

18. It is still the 1st respondent’s submission that he discharged his burden on a balance of probabilities of showing that the 1st appellant drove at an excessive speed in the circumstance and without due care and attention and that the appellants submission that the school drivers are more careful than matatu does not help the appellants’ case in the circumstances as one may equally state that he is the exception to that general norm.

19. It is the 1st respondent’s submissions also that it was the testimony of the school van left its lane in a bid to avoid a pothole and in the process collided with the 3rd party lorry and that the lorry veered off its course to its right and crashed onto the 1st respondent matatu.

20. The 1st respondent pointed out that the appellants had relied on the case of PNM & anor (supra) to buttress their argument that a defendant convicted of the offence of careless driving can still plead contribution in a subsequent civil case filed against him but the upshot of trial court in the said matter found that the defence of contributory negligence was not proved and entered judgment against the defendant on a 100% lability basis.

21. The 1st respondent went further and cited section 47A of the Evidence Act which provides that:"A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged."

22. The 1st respondent contends that 1st appellant had a right of appeal in the traffic case but did not appeal and also did not tender collaborative evidence as he had testified that he had passengers in the school van but did not call any as a witness.

23. The 1st respondent had the burden to proof the element of tort of negligence on a balance of probabilities. In Treadsetter Tyres Ltd –v- John Wekesa Wepukhulu (2010) eKLR where Ibrahim J allowed an appeal quoted Charles Worth & Percy On Negligence, 9th edition at p 387 on the question of proof, and burden thereof where it is stated:-“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence maybe reasonably inferior and (2) whether, assuming it may be reasonably inferred, negligence is infact inferred.”

24. It is upon the respondent to discharge the burden to proof negligence. The Court of Appeal in East Produce Kenya Limited –v- Christopher Atsiado Asiro, supra, it was reiterated who alleges negligence bears the burden of proof, court quoted with approval the case of Kiema Mutuku –v- Kenya Cargo Hauling’s Services Ltd 1991 on the holding that ‘there is yet no liability without fault in the legal system in Kenya and the plaintiff must prove some negligence against the defendant where the claim is based on negligence’.

25. According to the 1st respondent’s testimony, there was an approaching lorry when his matatu collided with the 1st appellant’s school van after it moved to the right to avoid a pothole. That day, the lorry went to the right and struck the 1st respondent’s matatu, which swerved to the extreme left off the road to avoid the collision. He then accused the 1st appellant, the driver of the school van, of causing the collision.

26. The 1st respondent also used the traffic case judgment as evidence in court, which made it abundantly clear that the 1st respondent was at fault for the injuries he sustained as a result of the accident. In addition, the 1st appellant failed to present any joint evidence, and the fact that he chose not to appeal the traffic case is clear evidence that appellants are responsible.

27. Having found this fact which was before the trial magistrate, did not error by finding the driver of 1st appellant 100% liable when there was evidence to support the finding. I find that having analyzed the evidence on record the 1st respondent proved on a balance of probabilities that the appellant’s driver was negligent. The trial court did not error as, based on the evidence tendered before it, it found in favour of the plaintiff in respect of liability.

28. In the circumstances, I find that the learned trial magistrate did not error in his finding on liability.

29. On the issue of quantum under general damages, the appellants submitted that the medical evidence availed had shown that the 1st respondent sustained amputation of both legs below the knee and that the doctor assessed the permanent incapacity at 80% for pain, suffering and loss of amenities and they suggested the sum of Kshs 1,500,000 would be adequate and comparable award for such injuries. The appellant relied on the case Kurawa Industries Limited v Dama Kiti & another (2017) eKLR Justice Chitembwe while considering an appeal on quantum had this to say;“The scenario given by the above awards show that damages for amputation of one’s leg above the knee would range from Kshs 1. 2 million to Kshs 2. 5 million. The trial court awarded Kshs 2 million on June 26, 2015. I find that assessment not to be excessive. It is within the amounts awarded for similar injuries”

30. On the other hand, the 1st respondent submitted that the injuries in the authority relied on by the appellants that is Kurawa were less serious than those suffered by the 1st respondent in that in Kurawa the plaintiff suffered an amputation of one lower limb while the 1st respondent suffered double amputation at below knee level and that their submissions are misleading in that the award in Kurawa was Kshs 2,000,000/= general damages and not Kshs 1,500,000/=.

31. The 1st respondent urge the court in determining whether the award in general damages was excessive to be guided by the following authorities;a.Everlyne Shivachi v Thara Trading Co Ltd Nbi HCCC No 257 of 2011 Waweru J 2013The 1st respondent suffered double amputation. The court awarded damages thus:-i.Kshs 5,000,000/= general damages for pain, suffering and loss of amenities for amputation of both legs plus other injuries .Permanent disability was assessed at 80%.ii.Cost of prosthesis Kshs 1,000,000/=iii.Lost income /future earnings Kshs 1,800,000/=b.China National Aero technology International Engineering Corp v Lawrence Naibei Chemurugo (2021) eKLR Bungoma HCCC No 80 of 2021 Riechi J July 2021Where the plaintiff/farmer suffered crush injuries to both lower legs plus abdominal injuries. Both legs were amputated at above knee.General damages were assessed at Kshs 6,000,000/=.Court assessed damages for lost income in spite the fact that there were documents to support the income.In addition the court awarded damages for cost of prosthesis in addition to the damages for lost income.c.Samuel Andayi Anganya v Lucy Wangeshi & anor (2019) eKLR Nakuru HCCC No 66 of 2013 Joel Ngugi Jan 2019Where the plaintiff suffered fracture of both lower limbs leading to amputation of both limbs below knee. She was awarded Kshs 6,000, 000/= general damages

32. The 1st respondent submitted that taking into account the authorities coupled with inflation, the 1st respondent urges the court that the sum of Kshs 3,000,000/= general damages for pain and suffering and loss of amenities cannot be said to be excessive and urges the court to uphold the said award.

33. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (see also Law Ja Kneller & Hancox Ag Jja In Mkube vs Nyamuro [1983] KLR, 403-415, at 403)

34. The question is whether this court should interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

35. The trial magistrate awarded Kshs 3,000,000 as general damages. The appellant regards the award as inordinately high. The respondent agrees with the trial magistrate that the award is commensurate to the injuries sustained.

36. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondent herein sustained the following injuries.Crush injury left leg resulting in below knee amputationCrush injury right leg resulting in below knee amputation.Assessed his total permanent disability at 80%

37. The Court of Appeal observed in Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR reasoned that: “The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

38. In Denshire Muteti Wambua v Kenya Power & Lighting Co Ltd [2013] eKLR the claimant suffered multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joint associated with a fracture of the radial head; dislocation of left lunate bone and bruises parietal scalp. The Court of Appeal awarded Kshs 1,500,000 for general damages. Similarly, in James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another [2015] eKLR the plaintiff suffered compound comminuted fracture of the left proximal radi us, fracture of the left ulna, head injury, deep cut wound of the parietal region about 4 cm, soft tissue injury and bruises of both hands multiple facial cuts and lacerations and pathological/re-fracture of the right leg court awarded Ksh 1,500,000. Money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what in the circumstances is a fair compensation on the principle that comparable injuries should be compensated by comparable awards.

39. Considering the injuries sustained by the 1st respondent and keeping in mind that no injuries can be completely similar and further time and inflation, permanent disablement as a result of the injury sustained to be estimated at 80%; I find that the trial court was properly guided by the authorities cited before him and arrived at a reasonable assessment of general damages. The learned trial magistrate cannot be faulted as the award is neither too low nor too high in the circumstances.

40. On the award of diminished earning capacity, the appellant submits that the award under the general damages should include for diminished earning capacity, the court held that to award it separately would be a misnomer.

41. On the other hand, the 1st respondent urges the court to uphold the trial court’s finding that the damages for diminished earning capacity were proven /merited and modest and that the court to uphold the trial court’s award of Kshs 3,312,000/=.

42. As for future earnings or diminished earning capacity, there is a wealth of authorities which enunciate the principles that guide courts in the award of damages for loss of future earnings or diminished earning capacity. In ButlervButler, [1984] KLR 225, the Court of Appeal differentiated the damages awarded in the aforesaid two limbs in the following terms:“A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury. … It is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained in this way: compensation for loss of future earnings is awarded for real accessible loss proved by evidence. Compensation for demotion of earning capacity is awarded as part of the general damages."

43. The factors to be considered in assessing damages under either of the limbs depends on the circumstances of each case. As was well stated by Majanja J in Catherine Gatwiri v Peter Mwenda Karaai, [2018] eKLR, the court considers the disadvantage the injured party will suffer in future from not working because of the injuries and take into account factors such as age, qualifications of the injured person, his remaining work life, disability among others.

44. In this case, the medical reports authored by Dr WM Wokabi confirmed that the appellant’s legs were amputated below the knee and that he had suffered permanent incapacity of 80%. That after the injury he had not been gainfully employed and that he had not resumed his work as a matatu driver due to the disability the injuries had exposed him to.

45. However, given that one of his legs was amputated and he suffered permanent disability assessed at 80%, I am satisfied that his capacity to do matatu driver job which he was engaged in to earn a living before the accident was diminished by the injuries he had sustained in the accident. It is not disputed that the appellant was 47 years at the time of the accident. This court therefore found the sum of Kshs 3, 312,000/= awarded herein to have been reasonable in the circumstances.

46. In the end, this appeal is found to be without merit. The same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………for the 1st Appellant……………………………for the 2nd Appellant…………………………for the 1st Respondent…………………………for the 2nd Respondent