[2022] KEHC 10228 (KLR)

Ng’ang’a v Wangui & another (Civil Appeal 18 of 2020) [2022] KEHC 10228 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10228 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Appeal 18 of 2020

F Gikonyo, J

June 14, 2022

Between

Samuel Mburu Ng’ang’a

Appellant

and

Paul Maina Wangui

1st Respondent

Charles Thuo Mukundi

2nd Respondent

(Being an appeal from the Judgement of Hon. W. Juma (C. M) Delivered on 22nd July 2020 in Narok CMCC No. 8 of 2016)

Judgment

1. This appeal is challenging the judgment dated 12/06/2020 and delivered on the 22nd July 2020, in which the trial court dismissed the plaintiff’s suit with costs to the defendants.

2. The memorandum of appeal dated 05/08/2020 cites 13 grounds of appeal but which may be summarized into three issues;i.Whether the appellant proved his claim on a balance of probabilities that the respondents were liable for the occurrence of the subject accident;ii.Whether the learned magistrate misdirected herself in her assessment, analysis or interpretation of the evidence in failing to give due weight and regard to the medical evidence produced by the appellant and in basing her decision on extraneous factors thus arriving at a wrong erroneous and unjust conclusion and judgment.iii.Whether the learned magistrate erred in law in failing to make an award for general and special damages in favour of the appellant as against the respondents.

3. The appeal was canvassed by way of written submissions.

Appellant’s submissions. 4. The appellant submitted that the appellant’s evidence on causation was not controverted as the respondents closed their case without calling any evidence. That the trial magistrate ought to have found the respondents 100% liable for the occurrence of the subject accident.

5. The appellant submitted further that the trial court misdirected itself on medical evidence produced by failing to give due regard to medical evidence produced and based on her decision on extraneous factors. Further submission; that there was no contrary evidence to disproof over-speeding at a dangerous place as testified by the appellant; and that there was no co relation between the presence of a motor bike and the ‘implied’ lack of over speeding.

6. According to the appellant, the trial court misdirected herself; on the explanation given when leave was sought and granted to file suit out of time; and on the injuries suffered by the appellant.

7. The appellant proposed that this court adopts a mean average and applies a degree of permanent incapacity of 35%.

8. The appellant proposed an award of Kshs. 1,000,000/= on account of general damages for pain, suffering and loss of amenities in light of severity of the injuries and inflation rates. The appellant relied on the cases of Pocyline Kinuva Vs Ocharokebira & Others Nakuru Hccc No. 237 of 2002 and Stephen Kihara Gikonyo Vs Peter Kirimi Kingori & Anor Nakuru Hccc No. 109 Of 2002.

9. The appellant proposed a sum of Kshs. 250,000/= as future medical attention.

10. The appellant also submitted that he produced numerous receipts for a total sum of Kshs. 619,255/= on account of medical expenses. He prayed for Kshs. 64,000/= on account of dead animals the respondents were transporting upon being hired by the appellants. That the cost of medical report and police abstract report were proved.

11. The appellant urged this court to make an award on both special and general damages. He also prayed for costs of both the subordinate court and this court.

Respondents’ submissions 12. The respondents submitted that police did not find the 2nd respondent careless in the manner in which he drove and / or managed the lorry. The respondents agreed with the findings of the trial court that the appellant was not a credible claimant.

13. The respondents submitted that the trial court considered the issue of the suit being time barred in the judgment.

14. The respondents submitted that the appeal lacks merit and ought to be dismissed with costs.

Analysis and Determination Duty of court 15. In law, first appellate court is under an obligation to re-evaluate the evidence and come to own conclusions, except, it must give allowance of the fact that it neither saw nor heard the witnesses; matters of demeanor are best observed by the trial court. See: Selle & Another Vs. Associated Motor Board Company Ltd. [1968] EA 123.

Issues for Determination 16. Arising from the pleadings, evidence and submission of parties, the issues for Determination are: -i.Whether leave to file suit out of time was deserved?ii.Who is to blame for the accident?iii.Whether the trial court adopted wrong principles in assessment of damages.

Leave to file suit out of time 17. Sections 27 and 28 of the Limitation of Actions Act. Section 27 provides: -“127(1) Section 4(2) does not afford a defence to an action founded on tort where-(a)the action is for damages for negligence, nuisance or breach of duty …(b)the damages claimed by the plaintiff for the negligence, nuisance or duty consist of or include damages in respect of personal injuries of any person, and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section, and(d)the requirements of section 2 are fulfilled in relation to the cause of action.(2)The requirements of this section are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff ……..”.

18. This is a claim for damages for personal injuries arising out of alleged tort of negligence. Therefore, leave to file suit out of time will be granted where the plaintiff has proved; that the material facts relating to the cause of action and of a decisive character were not within his knowledge and that he became aware of it after the limitation period had elapsed or at least within one year of lodging the suit.

19. In the present case, the negligent act complained of is alleged to have occurred on the 1st September 2011. This suit was filed on 25th January, 2016, about 4years and 4 months after the date the cause of action arose. The appellant was granted leave to file suit out of time which the respondents challenged at the trial. In law, once leave has been granted under section 28 of the Limitation Act, it can only be challenged at the trial (Oruta & Another v. Nyamato [1988] eKLR).

20. At the trial, the appellant told the court that he had been sick and waited to heal to file the case. He told the Court that he had obtained leave to file suit out of time. In its judgment, the trial court held that the plaintiff is not a credible claimant.

21. The Record shows that when the appellant was cross-examined on why he was late in filing the suit, he stated: -“I did not file case early because I waited to heal.”

22. The evidence shows that the appellant was unwell. That could be a disability which would entitle him to extension of time under Section 22 of theLimitation Act. Except, the Appellant did not seek extension of time under that section but under Section 27 of that Act.

23. He did not show under Section 27 of the Limitation of Actions Act that material facts relating to the cause of action was not within his knowledge.

24. The foregoing notwithstanding, I will allow extension of time under section 22 of the Limitation of Actions Act.

Liability 25. The accident involved motor vehicles registration numbers KAT 880Y. The appellant was a passenger in the said motor vehicle. Where does blame lie?

26. The court will draw upon the evidence in its determination. PW1 testified that the lorry was being driven fast downhill. There was an oncoming motorbike. He stated that he cautioned the driver of the oncoming motorcycle. The driver then moved off the road to avoid hitting the motor bike. The driver braked but did not manage to control it as he avoided the motor bike the lorry overturned. He produced the police abstract a p exh3. The police abstract indicated that the results of the investigations; the diver was charged with the offence of carrying uninsured passengers and was fined Kshs. 10,000/= in default to serve 3 months imprisonment.

27. Contrary to the submission by the appellant, it was the legal burden of the plaintiff to prove his case against the defendant on a balance of probabilities that the lorry driver caused the accident. the appellant seems to suggest that since the defendant did not call witnesses he has proved his case. Notably in law, the person bearing the legal burden must discharge it to get judgment. Failure by the defendant to adduce evidence does not necessarily mean the plaintiff has discharged his burden of proof. The defendant will never share the plaintiff’s legal burden of proof; the defendant will only bear evidential burden which arises where the plaintiff has discharged his legal burden of proof such that the defendant will fail without further evidence. The distinction between legal burden of proof and evidential burden has been explained by the court in cases without number, and the two should never be confused or taken to mean the same thing.

28. What does the evidence portend?

29. The terse appellant’s evidence shows the oncoming motor bike was on the lorry driver’s path. The driver of the lorry did what was reasonable to get off the road to avoid hitting the motor bike, but, in the process the lorry overturned. Despite stating that the lorry was being driven fast downhill, there was no evidence to support the claim. Again, although he stated that the driver was charged with careless driving, the police abstract show otherwise; the driver was charged with a different offence of carrying uninsured passenger. Nothing shows he was charged with careless driving or over speeding as stated by the appellant.

30. It bears repeating that, even if the respondents did not call any witness, the legal burden remained with the appellant to prove his case. He did not discharge it. He did not prove negligence on the part of the driver of the lorry.

31. Therefore, the overall impression of the evidence by the appellant did not show that the respondent was to blame for the accident. The trial court, therefore, rightly held that the appellant did not prove his case against the respondents.

Quantum 32. According to the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR : -‘An appellate court will not disturb an award for general 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...’

Applying the test 33. The trial magistrate found that the appellant had not proved his case on a balance of probabilities. That the appellant’s pleadings and medical documents do not have the fracture of the thigh bone. On special damages the appellant mixed the payments for injuries which were not pleaded even after putting in an amended plaint. That there was no documentary evidence of ownership or purchase of the two cattle. Therefore, the respondents cannot be held liable for something which is unknown or unsubstantiated.

34. The amount of damages is assessed by the court after evaluation of the nature and extent of injuries; and of course, being guided by comparable awards in earlier decisions (Simon Taveta vs. Mercy Mutitu Njeru [2014] eKLR).

35. The appellant herein sustained the following injuries: dislocation of the left shoulder, scalp degloving injury and cuts on the right shoulder.

36. A P3 form was filled at the kikuyu hospital and produced as Exh P5. The p3 form showed that he suffered a degloving injury on the scalp and x ray showed a dislocation of the right shoulder. The diagnosis was the same at kikuyu PCEA hospital. A discharge summary contained the clinical notes (Exh 6). There was an invoice ( Exh 7) of PCEA with receipts for Kshs. 51,415/= ( Exh P8).

37. The appellant produced the permit allowing him to move the cattle as Exh P9.

38. The appellant produced a bunch of receipts from Dr. Njoroge (Exh P10). The appellant was admitted at meridian equator hospital for hip replacement. He produced a discharge summary as Exh P 11. He attended clinic at Ruiru Dispensary of GSU (Exh P 12). He stated that he paid Kshs. 350,000/= for hip replacement and he produced receipts for the same as Exh P 15. He was also seen by Dr. Gitura ( Exh P 16) he produced an x ray request Exh P 17. he produced receipts for drugs he purchased in chemists and other shops as Exh 18. The appellant was seen by the insurance doctor on 20/3/2013 and the total cost of treatment was Kshs. 619,058/=the total costs on the receipts were kshs. 64,000/=

39. The medical report by doctor Theophilus Wangata ( Exh 20) indicates that the appellant suffered the following injuries; fracture of the neck of the right humerous, dislocation of the right shoulder and degloving injury to the scalp. The doctor awarded incapacity of 40% for permanent and functional ability.

40. The doctor of the respondents assessed the permanent incapacity at 25%

41. PW1 stated that his lawyers did not add the injury to the leg. There was no document by any doctor showing any future medical costs. He stated that when he started treatment the leg was not aching. The leg started aching months after the accident happened. The leg was operated in 2016.

42. A perusal of the amended plaint shows that special damages pleaded was Kshs. 139,915/=.

43. The appellant did not provide any evidence of purchase or valuation of the cattle to arrive at Kshs. 64,000/= for two cattle.

44. Future medical expenses were not pleaded or proved.

45. The injuries sustained range from a wide period of time that is between 2011 and 2016. Therefore, the injuries pleaded may not have been sustained from that accident.

46. In the end I find that the appellant did not prove his case on a balance of probabilities in respect of special damages and general damages.

47. In the upshot, I find that the appeal lacks merit and is hereby dismissed.

48. In light of the circumstances of this appeal, each party shall bear own costs of the appeal. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 14TH DAY OF JUNE 2022F. GIKONYO M.JUDGE