[2017] KEHC 1232 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 290 OF 2016

NAFTALI AMIRU ...............................................................APPELLANT

-V E R S U S –

SERVITEL SUPPLIES LTD........................................1ST RESPONDENT

WILFRED JAMES OREGE ....................................... 2ND RESPONDENT

(Being an appeal from the judgement of Hon. L. W. Kabaria (Ms) Resident Magistrate delivered on 31st day of May 2016 in Civil Case no. 5521 of 2013)

JUDGEMENT

1) Naftali Amiru, the appellant herein, filed a compensatory suit against Servitel Supplies Ltd and Wilfred James Orege, the 1st and 2nd respondents respectively claiming general damages for the injuries he suffered when he was knocked down by motor vehicle registration number KAY 709Y. The accident car belongs to the 1st respondent herein and was being driven by the 2nd respondent.

2) According to the appellant, he was standing on a pavement along Moi Avenue when he was knocked down while awaiting to cross the road.

3) The appellant filed this suit by plaint dated 5th September 2013.

The respondent appeared to deny the allegations in a statement of defence filed in court on 28th October 2013 in the Chief Magistrate’s Court, Milimani Commercial Courts at Nairobi.

4) The trial magistrate held in her judgment that the appellant failed to discharge the burden of proof against the respondents hence dismissing the suit.

5) The appellant being dissatisfied with the decision preferred this appeal

6) On appeal the appellant put forward the following grounds of appeal in its memorandum:

1. The learned magistrate erred in law and facts by finding that the appellant had not proved his case on issue of liability on balance of probabilities.

2. The learned magistrate erred in law and fact by finding that mere contradiction as to dates of the accident in the police abstract, and P3 form affects liability in a traffic accident whereas there was other evidence on record proving liability.

3. The learned magistrate erred in law and fact by ignoring the appellant direct probative and clarified evidence as to the date of the accident, and attaching dates and information in the police abstract and P3 form which is hearsay evidence and beyond control of the appellants, as central in proving liability in a traffic accident case.

4. The learned magistrate erred in law and fact by failing to consider the appellant submission and the case authority cited of Francis Njeri v James Mwangi (2015) eKLR on the effect, purport and role of police abstract and P3 form in running down cases, against direct victim evidence.

5. The learned magistrate erred in law and fact by failing to ward general damages under the head of future medical costs whereas there was evidence to that effect.

6. The learned magistrate erred in law and fact by placing upon the appellant a heavy burden of proving his case beyond balance of probabilities.

7. The learned magistrate erred in law and fact by failing to appreciate that the appellants case ws not controverted and challenged by the respondent.

8. The learned magistrate erred by elevating the issue of date of accident as so fundamental in proving liability, and ignored other evidence on record.

7) The aforesaid grounds may be summarised to three main grounds namely;

i.Whether or not the learned trial magistrate erred n law and in fact by finding that the appellant had not proved his case on the issue of liability on a balance of probabilities (grounds 1, 6, 7)

ii. Whether or not the trail magistrate erred in law and fact by finding that mere contradiction as to dates of the accident in the police abstract, and P3 form affects liability in a traffic accident (grounds 2, 3, 4, 8)

iii.Whether or not the learned trial magistrate erred in law and fact by failing to award damages under the head of future medical expenses costs (ground 5)

8) When this appeal came up for hearing, learned counsels appearing in this matter recorded a consent order to have the appeal disposed of by written submissions. I have re-evaluated the case that was before the trial court and considered the rival submissions too.

9) The 1st ground of appeal relates to the question as to whether or not the learned trial magistrate erred in law and in fact in finding that the appellant had not discharged the burden of proof on liability.

10) The appellant submits that the trial court erred by placing upon the appellant a heavy burden of proof beyond a balance of probabilities. The appellant cited the case of Farway Safari Centre Ltd –vs- General Tyres Ltd (2014) eKLR where the High Court quoting Lord Denning in Miller –vs- Minister of Pensions defined the balance of probabilities to mean a ‘narrow win’. The appellant stated that upon the total evaluation of the unchallenged appellant’s case and evidence as to how the accident occurred, the issue of liability was proved on a balance of probabilities hence there was a narrow win.

11) The respondents’ on the other hand have submitted that the appellant completely failed to discharge the burden of proof as required by law, particularly with regard to proof of occurrence of the accident. It is trite law that where suits are undefended or even where a defendant fails to adduce adequate evidence on any evidence at all, the burden of proof does not get lowered and a claimant still has the burden of proving their case to the required standards. The respondents cited the case of Shamakame Adam Mbui –vs- Kyoga Hauliers (K) Ltd (2013) eKLR, where it was restated inter alia as follows;

“..................... causes are determined on the basis of pleadings and evidence placed before the court. This applies even on undefended causes and the parties should not assume that because a cause is undefended the obligation to discharge the statutory obligation upon the party is lowered.”

12) PW1, Dr. Moses Kinuthia’s medical report confirmed the injuries the appellant herein sustained. He suffered a fracture in the right humerus and also subloxcetion and dislocation of the right hip joint. The injuries were classified as grievous harm. The right hip dislocation had resulted in permanent aestoarthritis. Future medical costs assessed at ksh.300,000/= incapacity assessed at 30%.

13) PW2, the appellant herein stated that on 28/3/2012 at about 6. 30pm when coming from work, he was headed towards the Kencom bus stage. To cross the road, he had to stop at the pavement on Moi Avenue for the vehicles to stop and the pedestrians to cross over to the Kencom side. This is when he was hit by a Kenya Bus no. KAY 709F minibus. The bus was in high speed and it looked like it was avoiding to collide with another bus it seemed to be competing with. It came to the pavement and hit him and he sustained injuries to his right arm and dislocation to the hip. The driver of the said bus, then took PW2 to the hospital where he was admitted and discharged after 2 months. The discharge summary from KNH, treatment cards and x-ray report show the proof of hospitalization and injuries sustained by the appellant herein.

14) The driver was driving in high speed in a place/street that he should be driving slowly near a bus stage, at a place where a lot of pedestrians are expected. The driver hit the appellant while he was on the pavement and not while he was in the middle of the road. The accident was reported by the driver, 2nd respondent herein and captured in the police OB entered on 29/3/2012, a day after the accident. The P3 form was issued to the appellant ,police abstract was issued that stated that the accident car belongs to the 1st respondent and was being driven by the 2nd respondent.

Having re-evaluated the evidence presented before the trial court, I am convinced that the accident occurred. I find the respondents herein wholly to blame for the appellant’s accident.

15) The issue of quantum payable is what has to be determined, having established liability. The trial Magistrate, despite dismissing this suit stated that, if she was to enter judgment, and if the plaintiff (appellant ) could have fully discharged his burden of proof, then the judgment would have been entered in favour of the plaintiff and against the defendants jointly as follows:

Liability 100%

General damages for pain and suffering and loss of amenities ksh.600,000/=

Special damages ksh.18,150/- (for medical report and expenses)

Total =618,150/=.

The trial magistrate was guided by the case of Philip Kipkorir –vs- Nebco Ltd Kericho HCCC.70 of 2000 (unreported), where the plaintiff suffered near similar injuries to those of the appellant and was awarded Ksh.600,000/- in the year 2006. The plaintiff proposed a sum of Kshs.900,000/-. The respondent on the other hand proposed a sum of Ksh.300,000/- and relied on the case of Kenya Marine Contractors (Epz) Ltd-vs- Mbiti Mwangi (2012)e KLRwhere a sum of kshs.300,000/= was awarded.

I am convinced in the circumstances of this case that Ksh.600,000/- is adequate compensation under the head of general damages for the appellant.

16)The second ground of appeal is as to whether or not the trial magistrate erred in law and fact by finding that mere contradiction as to dates of the accident in the police abstract, and the P3 form affected liability in a traffic accident.

17) The appellant submits that at the commencement of the hearing on 3/11/12 the appellant orally amended the plaint for the date of the accident to read 28/3/12. He was admitted to hospital on the same day and discharged on 24/5/12 two months later from Kenyatta Hospital. PW2 explained that while admitted in hospital, the driver (2nd respondent) reported the accident on 29/3/12, a day later, hence the dates variations. In cross-examination and re-examination as for the different dates appearing in the P3 and police abstract form the appellant maintained that the correct date of the accident was 28/3/12. The appellant pointed out that the different dates in the P3 and police abstract by police were erroneous.

18) It is the appellants submission that, based on the above clarification and evidence by the appellant that the same occurred on 28/3/12, therefore the learned magistrate erred in law and fact by emphasizing on the date in the P3 and police abstract form by the police who were third parties who did not testify on the issue.

19) The appellant cited the case of Francis Maina –v- NahashonWanjau (2015) eKLR, where the court dealt with a situation where police abstract and P3 form gave a different date of accident from the one pleaded and testified by the plaintiff. Although the dates variations were clarified by the plaintiff in cross examination as tallying with the plaint, the high court held that the mistake of the police officer who fills the abstract cannot be visited upon the plaintiff.

20) The respondent on the other hand submitted that in light of the contradictory evidence adduced, the learned trial magistrate was not convinced that the accident occurred as pleaded in the plaint.

The trial magistrate observed inter alia that the appellant’s case was not dismissed by the trial court for failure to prove liability but rather for failure to prove occurrence of the accident. This was so because of the inconsistent and contradictory evidence adduced by the appellant.

This court has considered the evidential burden imposed on each party.

The Provisions of Section 107(1) of the Evidence Act Cap 80,provides:

“whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”while

Section 109 of the Evidence Act provides:

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

Under Section 112 of the Evidence Act it is stated as follows:

“In any civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

21) I am convinced that the appellant discharged the burden of proof therefore the learned trial magistrate erred, hence her decision ought to be impugned on appeal.

22) The 3rd ground of appeal is whether or not the learned trial magistrate erred in law and fact by failing to award damages under the head of future medical expenses. The appellant submits that the claim for future medical expenses forms part of general damages and needs not be specifically pleaded.

The respondent is of the argument that the trial court arrived at the correct decision on this head. The Respondent cited the case of Kenya Bus Services Limited –vs- Gituma (2004) EA 91 where it was held inter alia that: future medical expenses have to be specifically pleaded.

23) PW2 – Dr. Moses Kinuthia testified and produced the medical report Exhibit 1 to confirm that the appellant needed future medical costs to cover removal of metal implants due to fractures suffered, physiotherapy, rehabilitation analgesic and consultation fees. Costs were pegged at Ksh.300,000.

24) I have looked at the manner the trial court determined this issue.

In short the trial Magistrate stated in part as follows “............... regarding future medical expenses, I have read the plaint carefully, they were not pleaded and are therefore not awardable.....”

In Sosphinef Company Ltd and another –vs- Daniel Ng’ang’a Kanyi Civil appeal no. 315 of 2001, the Court of Appeal held inter alia that, the claim for future medical treatment was part of general damages which did not have to be specifically pleaded.

In the case before this court, the claim for future medical expenses was not pleaded. However evidence was led showing that the plaintiff intended to claim future medical expenses. There was therefore justification to reject the claim, because the appellant did not plead nor prove it specifically.

25) In the end, this appeal is allowed. The judgment and decree of the lower court is hereby set aside and substituted by an order of entry of judgment in favour of the appellant and against the respondent as follows:

i.General damages for pain and suffering ksh.600,000/=

ii.Special damages ksh. 18,150/=

Total ksh. 618,150/=

iii.Interest on (i) and (ii) above at court rates from the date of judgement until full payment.

iv.Costs of the Appeal and suit

Dated, Signed and Delivered in open court this 6th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

.................................................. for the Respondent