[2023] KEHC 25271 (KLR)

Ndarugu Academy Ltd v Mwathi (Civil Appeal E122 of 2023) [2023] KEHC 25271 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25271 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E122 of 2023

A Mshila, J

November 10, 2023

Between

Ndarugu Academy Ltd

Appellant

and

Francis Wanyoro Mwathi

Respondent

(Being an appeal from the Judgment of the Small Claims Court of Kenya at Thika by Hon. V.A.Ogutu delivered on 5th April, 2023)

Judgment

Background 1. By a Statement of Claim filed on 30/01/2023, the Respondent herein sued the Appellant claiming for judgment against the Appellant for general damages, special damages of Kshs 8,900/= and costs of the suit.

2. The Respondent averred that on or about 17/11/2022 he was lawfully walking as a pedestrian at Ndarugo area along Thika-Nairobi service lane when the Appellant’s motor vehicle registration number KCP 147P was so recklessly driven by the Appellant and/or his authorized driver that it lost control and, in the process, it knocked him down occasioning him serious bodily injuries.

3. The Appellant filed his Response to the Statement of Claim on 27/03/2023 where he denied the averments as contained in the claim. In particular he denied ownership of the suit motor vehicle and sought the court to dismiss the claim with costs.

4. The matter was heard and determined, the Honourable Adjudicator entered judgment for the Respondent as against the Appellant as follows-;i.General damages Kshs, 800,000/=ii.Special damages Kshs 6,700/=Total Kshs 806,700/=Costs and interest from the date of judgment until payment in full

5. The Appellant is dissatisfied with the Small Claim’s Court’s judgment and has preferred the present Appeal. In his Memorandum of Appeal, he has listed three grounds of appeal as follows:a.That the Learned trial Magistrate erred in law and in fact in failing to consider adequately or at all the submissions by the appellant and the authorities submitted.b.That the Learned Magistrate erred in law and fact in failing to appreciate the fact that the respondent failed to prove his case on a balance of probability.c.That the Learned trial Magistrate erred in law in awarding damages which were inordinately high.

6. The court directed the parties to canvass the appeal by filing and exchanging written submissions. Hereunder is a summary of the parties rival submissions.

Appellant’s Submissions. 7. The Appellant submits that the magistrate failed to take into account the Appellant’s submissions to his detriment. Reliance was placed in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another (2014) eKLR. It was submitted that had the court considered the said submissions it would have found that failure by the defendant to appear was not material. It was submitted that the Respondent did not prove his case on a balance of probabilities, according to the witness statement the Respondent stated that he was walking while in cross examination he stated that he was standing beside the road. Moreover the accident was said not to be as serious as alleged by the Respondent as he did not seek medical attention immediately. Reliance was placed in the case of Charterhouse Bank Limited (under statutory management) v Frank N. Kamau (2016) eKLR. Lastly, the Appellant submits that the Respondent suffered a fracture to the right clavicle leading to pain, swelling and loss of the right upper limb, bruises on the right orbit leading to swelling and pain and blunt soft tissue injury in the right lower chest leading to pain. The trial magistrate was said to have relied on the case of Lawrence Wairimu Wanyoike & another v Joseph Letting (2021) eKLR which case the injuries suffered therein were not comparable to the ones in the present suit as they were more grievous. The Appellant relied on the case of Francis Omari Ogaro v JAO (minor suing through next friend and father GOD) (2021) eKLR where the court faced with similar injuries as the one’s in the present suit found that an award of Kshs 230,000/= was excessive and substituted the same with an award of Kshs 180,000/=.

Respondent’s Submissions 8. The Respondent submitted that the burden of proof in civil cases is based on a balance of probability and in the instant case the same tilted more in favour of the claimant. The Respondent submitted that the injuries in the cases relied upon compare well with the ones suffered by the Respondent as such the award of Kshs 800,000/= was fair. Reliance was placed in the case of Odinga Jacktone Ouma v Moureen Achieng Odera (2016) eKLR. The Respondent further submitted that he proved his case on a balance of probability as the general position of the law is that where evidence is adduced and not controverted, it stands the test. Reliance was placed in the case of Interchemie EA Limited v Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No 1658 of 2000. The Respondent stated that there was no contradiction as the Respondent was a pedestrian who at the time of the accident had stopped to wait for a motor vehicle. In regard to the seriousness of the injuries, the same was said to be an issue of opinion as such the court was urged to dismiss the argument. In the end, the court was urged to dismiss the appeal with costs.

Trial Court’s Evidence 9. Francis Mwangoro Mwathi (PW1) wished to adopt his witness statement as his evidence in chief as well as rely on his filed documents. He testified that he was injured on the shoulder, chest and legs. He prayed for general and special damages as well as costs of the suit. In cross-exam he stated that the accident occurred at Ndarugo area as he was waiting for a motor vehicle as he was standing beside the road. He stated that he was hit by a school bus while at the side of the road. That he was taken to Thika Level 5 hospital and he also filled a P3 form. He indicated that the accident was serious as he lost consciousness.

Issues for determination 10. Having read and considered the trial court record, the submissions by both parties and the case law relied upon, the main issues arising for determination are;-a.Whether the Respondent proved his case on a balance of probabilitiesb.Whether the trial magistrate considered the Appellant’s submissions.c.Whether the damages awarded were inordinately high.

Analysis 11. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, this principle was enunciated thus:“...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. 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..."

12. In the case of Butt v Khan (1977) 1 KAR, the court therein rendered itself and held as follows:-“An Appellate court will not disturb an award for damages unless it is 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.”

Whether the trial magistrate considered the Appellant’s submissions. 13. On whether the trial court considered the Appellant’s submissions, there can be no doubt that the trial court considered the said submissions. In any event the Appellant did not call any witnesses to directly controvert the Appellants evidence. A perusal of the impugned judgment shows that the trial court considered the Appellants’ submissions and made a determination on the matter before it.

Whether the Respondent proved his case on a balance of probabilities 14. The Appellant argues that the Respondent failed to prove his case on a balance of probabilities as he gave contradicting information in regard to the occurrence of the accident. In his statement he stated that he was walking along the road while during cross examination he stated that he was standing beside the road. This court has perused the Respondent’s witness statement and the police abstract where the Respondent blamed the Appellant’s driver for causing the accident. The Investigating Officer also blamed the Appellant’s motor vehicle registration number KCP 147P for causing the accident. In the circumstances, and in respect of the fact that the Appellant failed to any witness as such the Respondent’s evidence remained uncontroverted.

15. This court is satisfied that the Respondent proved his case on a balance of probabilities. Refer to the case of Motex Knitwear limited v Gopitex Knitwear Mills limited Nairobi (Milimani) HCCC No, 834 of 2002, Lessit, J citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No 548 of 1998 appreciated that:-“Although the defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”

Whether the damages awarded were inordinately high. 16. The Respondent herein suffered fracture of the right clavicle leading to pain, swelling and loss of the right upper limb, bruises on the right orbit leading to swelling and pain and blunt soft tissue injury in the right lower chest leading to pain. The trial court awarded Kshs 800,000/= having relied on the case of Lawrence Wairimu Wanyoike & another v Joseph Letting (2021) eKLR which case the Appellant allege that the injuries suffered therein are not comparable as they are more grievous. The Appellant opine that an award of Kshs 400,000/= would be sufficient the same having been released to the Respondent’s counsel. See the Court of Appeal case of Stanley Maore v Geoffrey Mwenda (2004) eKLR which settled the principles to be applied in assessing damages and stated that:-“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

17. Having perused the authorities relied upon by the trial court and the ones relied upon by both parties in their submissions, this court is satisfied that the award of Kshs 800,000/= is not excessive. Reference is made to the case of Joseph Kimanthi Nzau v Johnson Macharia [2019] eKLR where Odunga J (as he then was) substituted an award of Kshs 450,000/= with an award of Kshs 800,000/= where the Appellant herein had suffered a fracture of the skull, right clavicle, left 1st and 2nd ribs and multiple soft injuries which injuries are comparable to ones in this instant case.

18. This court has now re-evaluated the evidence on record as it is required to do. This court is satisfied that the trial court arrived at a correct decision.

Findings and Determination 19. For the forgoing reasons this court finds the appeal to be devoid of merit; the appeal is hereby dismissed with costs to the Respondent.Orders Accordingly

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023. A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantOdhiambo – for the RespondentPravin Odiyo – for the Appellant