[2022] KEHC 346 (KLR)

Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment)

Neutral citation: [2022] KEHC 346 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal 8 of 2020

LW Gitari, J

March 16, 2022

Between

Gerald Muthengi Ndatho

Appellant

and

Hellen Chebet

Respondent

(Being an appeal against the ruling of learned Magistrate S.M. Maina (S.R.M) at Marimanti in the Senior Resident Magistrate’s Court Civil Case No. 23 of 2019 delivered on 9th July, 2020. )

Judgment

Introduction 1. The appellant filed an appeal against the Judgment in Civil Case No.23 of 2019 at the Senior Resident Magistrate’s Court Marimanti.

2. The appeal is against apportionment of liability and quantum of damages.

3. The appellant had filed a statement of defence wherein he denied liability and prayed that the suit be dismissed with costs.

Background 4. The plaintiff had filed a plaint in the Senior Resident Magistrate’s Court Marimanti claiming general damages for pain, suffering and loss of amenities, special damages, costs and interests. The trial proceeded and the respondent adduced evidence that she was a passenger on board of a motor cycle registration number KMEB 253 T which was being driven along Gatunga- Marimanti road when the appellant who was driving motor vehicle registration number KAD 971F collided with the said motor cycle as a result of which the respondent was knocked down and sustained serious injuries. The respondent suffered a compound fracture of the left femur, Fracture left distal radius, tendon tear on the dorsal aspect of the wrist joint and deep abrasion wound on the frontal aspect of the head. The respondent blamed the appellant for the accident. The parties adduce evidence before the learned trial magistrate and he proceeded to pronounce his Judgement.The Judgment was as follows:-i.Liability - 80% against the defendant.ii.General Damages- Kshs. 1,500,000iii.Special Damages – Kshs.25,000,000iv.Costs and Interest on the award.

5. The appellant was aggrieved by the Judgment of the lower court and filed a memorandum of appeal dated 3rd August 2020 citing the following grounds:-a)That the learned magistrate erred in law and fact in the manner he apportioned liability which was against the weight of the evidence.b)That the learned magistrate exhibited open bias in favour of the respondent by apportioning liability against the appellant in the ratio of 80% without any basis.c)That the learned magistrate misdirected himself into using wrong principles in the assessment of quantum payable to the respondent and thus awarding sums that are inordinately high in the circumstances.The appellant seeks orders that:a)That the appeal be allowed and the decision and Judgment of the learned trial magistrate in Marimanti CMCC No.23 of 2019 be set aside.b)That this honourable court be pleased to reevaluate the evidence and make its own finding and judgment in regard to both liability and quantum.c)That the appellant be awarded the costs of the appeal herein and costs of the suit in the trial court.

Appellant’s Submissions: 6. The appellant submitted that the respondent instituted this suit seeking compensation for injuries sustained in a road accident involving the appellant’s motor vehicle and the motor cycle the respondent was riding. The appellant submitted that the trial court apportioned liability at 80% against the appellant when even the investigating officer was unable to blame the appellant. They relied on the case of Plantinum Car Hire and Tours Limited v Samuel Arasa Nyamesa &another (2019) eKLR where it was held that: where the court cannot determine who is to blame for liability between two drivers, then it should go ahead and apportion liability equally.

7. The appellant therefore submits that the least the trial court should have awarded on liability should have been 50%:50% as against the appellant and the respondent.

8. On quantum, the appellant relied on the case of Phillip Musyoka Mutua v Leonard Kyalo Mutisya [2018]eKLR where the injuries were more severe that the ones sustained by the respondent herein yet an award of Kshs.300,000 in general damages was ordered.

9. The appellant urged this court to consider the appeal and set aside the trial court’s judgment and in its place award an amount Kshs.650,000/-

Respondent’s Submissions: 10. The respondent submitted that it is not in dispute that the said road traffic accident occurred on the 29th September 2018 involving the motor vehicle registration No. KAD 971 and motor cycle KMEB 253 T, both driven in the same direction, along the Marimanti- Gatunga Road. His contention is that the only issue in disputes is, who was to blame for the accident.

11. The respondent relied on the case of James Gikonyo Mwangi v DM (suing through his mother and next friend) (2016) eKLR where the court held that:“……the appellant was under an obligation, if he felt that someone else was responsible for or contributed to this predicament in the case to enjoin that someone else so that he can claim from him any loss or award that he may suffer….”

12. On quantum it is submitted that the injuries sustained by the respondent is not contested and relied on the case of Mwaura Muiruri v Suera Flowers Ltd &anotherwhere an amount of Kshs.1,450,000 was awarded. The respondent urged this court to dismiss the appeal with costs.

13. I have carefully considered the grounds of appeal, the evidence adduced before the learned trial magistrate as well as the parties’ rival written submissions. I have also read the Judgment of the trial court. I find that the issues for determination are:1. Liability2. Quantum/Damages

Analysis And Determination: 14. Being a first appeal the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd &others [1968] 1EA 123:“…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 into account of particular circumstances or probabilities materially to estimate the evidence.”

Liability: 15. The liability was apportioned in the ratio of 20:80 against the appellant.

16. In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:“ To determine what cause an accident from the point of view of legal liability is a most difficulat task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case.One may find that a matte of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”

17. The facts speak for themselves that an accident indeed occurred on 29th September 2018 involving motor vehicle Registration No. KAD 971 F driven by the appellant, pillion passenger (the respondent herein) and a motor cycle Registration No.KMEB 253 T controlled by the deceased.

18. It is not in dispute that both the appellant and the respondent were heading to Gatunga market when they got into contact and crashed at the gate to Gatunga Catholic Church that is on the right side of the road facing Gatunga.

19. There is no dispute that the respondent was a pillion passenger.

20. The respondent admitted that the rider was carrying three pillion passenger. She further admitted that she had no helment nor did she have a reflector jacket. This contravened safety regulations issued by National Transport and Safety Authority (Operation of motorcycles) regulations 2015. The respondent, as submitted by the applicant placed herself in harms way and the doctrine of ‘vilonti’ non fit injuria’ applies. As pillion passenger, the respondent had no control of the motorcycle and could not have done anything to cause or avoid the accident. Failure to wear a crash helment amounts to contributory negligence. This also goes for being carried as an excess passenger on the said motor cycle.

21. The appellant contends that liability should have been apportioned in the ratio of 50:50 because the respondent and the appellant were equally to blame for the causation of the accident while the respondent contends that the appellant was wholly to blame for the occurrence of the accident.

22. According to the police officer, the motor cycle and the motor vehicle were both headed to Gatunga; and further that, the accident occurred on the right side of the road facing Gatunga and the motor vehicle had an impact on the driver’s door that was on the right side. The police officer concluded that he could not blame the appellant for the accident and could not tell who between the two was to blame for the accident.

23. In a road traffic accident involving a collition between two motor vehicles, the court apportions liability depending on blameworthiness of the drivers. Other parties like passengers who cannot be held liable will have liability attach to them as apportioned to the drivers.

24. The trial court held that the respondent should bear some blame for her injuries for agreeing to board a motor cycle carrying two passengers. A motor cycle is required by law to carry a single passenger at a time.

25. In the circumstances, it is my view that both the deceased and the Appellant failed to exercise the degree of skill and care reasonably expected of a person using a public road.

26. The Traffic Act (Cap 403 Laws of Kenya) provides for the law relating to traffic on the road. Under Section 68 of the Act provides for the Highway Code. Section 68(3) of the Traffic Act provides:“(3) A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.”

27. The Act further creates offences relating to the manner of driving the motor vehicles on the road. These are provided under Section 46, 47 and 49. These Sections requires motorists to drive with due care and attention. The appellant was turning to the right when the accident happened. The vehicles behind him were supposed to give him way. The motor cycle rider who was behind him while trying to overtake had an obligation to slow down. He was also supposed to keep distance. It is my view that the appellant was not the one who could bear the greatest responsibility for the accident as he had put indicators to turn right when the cyclists banged him on the right door. The law is trite as established by a line of authorities that where the court is unable to determine who is to blame for the accident, liability is apportioned equally. In the case of Platinum Car Hire Limited v Samuel Arasa Nyamesi and Another, Majaja J, H.C Kisii C.A 29/2016 quoted with approval the Court of Appeal decision in the case of Berkly Steward Limited v Waiyaki [1982-1988] KAR where it is cited with approval the decision in Baker v Market Harborough Industrial Co-operative Society Ltd (1953) 1 KLR 1472, 1476 where Lord Denning LJ observed inter-alia that-“Every day proof of collision is held to be sufficient to call on the dependants for an answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court had nothing by which to drawn any distinction between them.”

28. Justice Majanja stated that where the court is unable to determine who is to blame it has apportioned liability equally as illustrated by the Court of Appeal in Hussein Omar Farar v Lento Agencies C.A Nairobi, Civil Appeal No.34/2005 [2006] eKLR where it observed that-“In our view it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

29. In the end he held that – “ I too come to the conclusion that following the collision, the appellant and the second respondent must share culpability in the absence of any other evidence exonerating one or either party.”

30. In this case the finding by the investigating officer was that he did not know who to blame since there were no independent witnesses to the accidents. He further stated that he could not blame the appellant for the accident. It is my finding that apportionment of liability by the trial magistrate was not supported by the evidence. The collition was between the vehicle driven by the appellant and the motor cycle. They both bear the blame for the collition. They should both be held to blame for the collition. The apportionment of liability by the trial magistrate cannot be upheld. The deceased cyclist certainly bears more responsibility than 20% assessed by the trial magistrate. He does not seem to have done anything to avoid the collition and had carried three passengers which must have interfered with his control of the motor cycle when confronted with danger. He failed to give way to the appellant who had indicated that he was turning to the right.

31. In the circumstances, I find that the learned trial magistrate erred in his finding on liability. I set aside the finding and hold that the appellant and the respondent were equally to blame for the collition.

Damages/Quantum: 32. 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)

33. 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.

34. The trial magistrate awarded Kshs.1,500,000 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.

35. 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.i.Compound fracture of the left femurii.Fracture of the left distal radiusiii.Tendon tear on the dorsal aspect of the wrist joint.iv.Deep abrasion wound on the frontal aspect of the head.

36. The medical report by Dr. Kimathi further gave an opinion that the patient was at risk of developing post traumatic osteoarthritis with significant impact on quality of life due to pain and impaired function of the affected ankle joint and a degree of permanent disablement as a result of the injury sustained to be estimated at 40%.

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 respondent and keeping in mind that no injuries can be completely similar and further time and inflation, and also that the respondent is at risk of developing post traumatic osteoarthritis with significant impact on quality of life due to pain and impaired function of the affected ankle joint and a degree of permanent disablement as a result of the injury sustained to be estimated at 40%; 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. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. There award was well founded on the trite law that special damages must be specifically pleaded and proved. I have no reason to upset the finding in special damages.

Conclusion: 41. I find that the appeal succeeded on the issue of liability. I order as follows:1)Liability is apportioned in the ratio of 50:50 as against the appellant and the respondent.2)The appeal on damages fails. The respondent is awarded 1,525,000/- less 50%. The total award damages to the respondent is Kshs.762,500/-3)The appellant will have half cost of the appeal

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16TH DAY OF MARCH 2022. L.W. GITARIJUDGE