[2022] KEHC 17252 (KLR)

Ngugi v Kereto (Civil Appeal 29 of 2020) [2022] KEHC 17252 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17252 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Appeal 29 of 2020

SN Mutuku, J

December 1, 2022

Between

David Karanja Ngugi

Appellant

and

Duncan Rarmwat Kereto

Respondent

(Being an appeal from the judgement delivered on 26th August, 2020 at the Senior Resident Magistrate Court at Loitoktok by Hon. J.N Nthuku Senior Resident Magistrate)

Judgment

Introduction 1. This Appeal arises from the judgment of the lower court at Loitoktok (Hon J N Nthuku, SRM) delivered on 26th August, 2020. Through a Plaint filed in court on 17th April, 2019, the Respondent claimed that he had been involved in a road traffic accident on 3rd July, 2016 as he walked along Loitoktok/Ilasit road when Motor Vehicle Registration number KCH 256C, being driven by the Appellant hit him causing injuries which he listed as bruises on the right thigh, fracture of the right femur, blunt injuries to the back, the face and the right eye.

2. The Respondent blamed the Appellant for the accident. He sought general damages, special damages in the sum of Kshs 5000, costs and interest. The Appellant filed a defence but did not adduce evidence in defence of his case. He however called one witness for the defence, Dr. Jeniffer Kahuthu.

3. After a full trial, the lower court found in favour of the Respondent and awarded him damages as follows:a.General damages Kshs 800,000b.Special damages Kshs 5,000c.Costs of the suit.d.Interest from the date of the judgment.

4. This judgment aggrieved the Appellant who filed this Appeal. In a Memorandum of Appeal filed herein, the Appellant has raised the following grounds of appeal:i.That the Learned Magistrate erred in law and in fact when she failed to consider the applicants’ evidence on points of law and facts on finding the appellant fully liable for the accident which is the subject matter of this suit.ii.That the Learned Magistrate’s decision was unjust, against the weight of the evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.iii.That the Learned Magistrate’s decision was unjust, against the weight of the evidence and was based on misguided on deciding that the Respondent was entitled to Kshs. 800,000/- as general damages which ought to be dismissed.iv.That the Learned Magistrate erred in law and in fact in awarding excessive and undeserved sum of Kshs. 800,000/- to the Respondent as general damages and Liability against the Appellant at 100% without accessing the real question on liability on the part of Duncan Parmwat Kereto.

5. The Appellant prays for orders that the appeal be allowed and the judgment delivered on 26th August, 2020 be dismissed.

Submissions 6. The appeal was canvassed by way of written submissions. Both parties have filed their written submissions. The Appellant filed his submissions on 21st September, 2021. He has submitted that there was no documentary proof that the Respondent was admitted at Kenyatta National Hospital from 03/7/2016 to 2/8/2016; that the only written documents as to the Respondent’s injuries are the discharge summary from County Government of Kajiado Health service department, a P3 form and the medical report from Dr. Okere; that the discharge summary shows the Respondent was admitted there 2 years after the accident and that the document did not have a stamp showing the particular facility.

7. The Appellant relied on sections 107- 109 of the Evidence Act and argued that in discharging the burden of proof, the evidence to be adduced is evidence of existence or non- existence of facts in issue. He submitted that it was for the Respondent to proof and give evidence of the injuries sustained as a result of the accident and that failure to discharge the burden of proof meant that the case failed. He argued that the injuries suffered by the Respondent were not sustained in the accident and therefore the award on general damages was erroneous and should be set aside.

8. The Appellant submitted that the appellate court would interfere with discretion of the trial court in assessing general damages if the trial court took into account an irrelevant factor, left out of account a relevant factor or the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. He relied onKigaragari –vs- Aya (1985) KLR 273 where the court reiterated that in awarding damages for personal injury, courts should consider that there is need to develop consistency in the awards and that the awards should both be within the limits of decided cases and avoid the effect of making insurance cover and fees unaffordable for the public.

9. It is the case for the Appellant that the injuries outlined in the Plaint were Bruises on the thigh, fracture of the right femur, blunt injury to the back, blunt injury to the face and blunt injury to the eye and that an award of Kshs. 800,000 for the above-mentioned injuries is unfair and not justified. He has proposed an award of Kshs. 350,000/- as being sufficient compensation.

10. The Respondent filed his submissions on 20th September, 2021. He has submitted that the trial court correctly noted that only the Respondent testified and that the Appellant failed to appear/and or call any witness and that the only defence witness, Doctor Jenipher Kahuthu, gave evidence on quantum only. He submitted that the trial court was correct in awarding liability at 100%. He relied on Linus Nganga Kiongo & 3 others –vs- Town Council of Kikuyu [2012] eKLR where the court held that:“where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in doing so the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.”

11. On the issue of Quantum, the Respondent argued that he sustained injuries including bruises on the right thigh, fracture of the right femur, blunt injury to the back; that his right lower limb was deformed and shortened by 7cm at the time of the re-examination and that he had a massive limping gait.

12. The Respondent submitted that in the Appellant’s submissions, an award of Kshs. 350,000/- was proposed stating that the same would be adequate as the Respondent’s injuries had healed. He argued that the Appellant does not know what he wants as in his memorandum of appeal, he asks the court to dismiss the entire trial court’s judgment but has not invited the court to vary/lower the award to what he proposed.

13. The Respondent relied on Mariga- vs- Musila (1984) KLR 251 where it is stated that:“the assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower court judge acted on the wrong principles.”

14. The Respondent argued that the Appellant has not demonstrated in any way how the trial court either erred in law or in fact in arriving at its findings and that the appeal is unmeritorious and the same should be dismissed.

Determination 15. As the first appellate court, I am reminded that my primary role is to re-evaluate, re-assess and re-analyse the evidence adduced at the lower court and determine whether the conclusions reached by the trial court should or not and give reasons either way. I have accordingly considered the record, the grounds of appeal, submissions and authorities cited by both parties and proceedings before the lower court.

16. In a case like this one, there are normally two major issues for determination: that of liability and that of quantum of damages. On the issue of liability, I have considered the evidence of the Respondent (PW1). He testified that he was walking to work along Loitoktok/Ilasit road when the Appellant, while driving motor vehicle registration number KCH 256C, hit him from the back. He testified that he lost consciousness and regained consciousness it while at Kenyatta National Hospital.

17. I have seen a police abstract form showing that indeed the accident occurred on the said date involving the said motor vehicle. The evidence of the PW1 was not challenged by the Appellant, who did not testify or call any witness to rebut this fact. The Appellant has not tendered any evidence to rebut that of the Respondent that he was hit from the back as he walked beside the road. There is no evidence to show that the Respondent was to blame for the accident in anyway.

18. In Nickson Muthoka Mutavi vs. Kenya Agricultural Research Institute (2016) eKLR, the court cited with approval Halsbury’s Laws of England, 4th Edition at paragraph 662 at page 476 where it is stated that:“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the prove of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which and the breach of a causal connection must be established.”

19. I have noted that the Appellant called one witness, a doctor, whose evidence revolved around quantum and not liability. The evidence of the Respondent that the Appellant was wholly to blame for the accident remains unchallenged. It is my view, and I agree with the trial court, that the Respondent proved that the accident indeed occurred and that it was the Defendant’s motor vehicle that hit him. I similarly arrive at a conclusion that the Appellant was 100% liable for the accident.

20. Turning on the issue of quantum the Respondent has listed the injuries he suffered as shown in this judgment. I have seen the Police Abstract (Ex. 2) dated 29th January, 2019. It refers to he Police Occurrence Book ref: OB 3/3/7/2016. It gives details of the accident involving motor vehicle involved in the accident as No. KCH 256C and a pedestrian along Loitoktok/Ilasit Road. The driver of that vehicle is indicated as the Appellant. I have also seen a P3 Form (Ex. 1) dated 29th January, 2019 referring to the same OB number. I have seen a medical report by Dr. Cyprianus Okoth Okere dated 25th March, 2019 (Ex. 7 (a). The record does not show any record that this doctor testified.

21. The Appellant’s witness, Dr. Jenipher Kahuthu testified that she examined the Respondent on 28th October, 2019. She testified that the Respondent had been treated at Kenyatta National Hospital with road traffic accident injuries of a fractured femurs and soft tissue injuries on the face and back. She testified that the Respondent has implants put on his leg. In her medical report, she found that the Respondent has a healed surgical scar on the right thigh, healed scars on the buttocks, that he was unable to squat due to stiffness on the right knee and the right lower limb was deformed and shortened by 7cm. According to Dr. Kahuthu, the Respondent had 35% permanent physical disability due to stiffness of the right knee joint, inability to squat and right lower limb deformed and shortened by 7cm.

22. I have noted that the doctor concluded by stating that in the absence of an initial treatment notes, it was difficult to relate the injuries to the accident given the severity of the injuries.

23. The Appellant, perhaps following the report of Dr. Kahuthu, argued that the injuries could not be linked to the accident as there were no initial treatment notes, from when the accident occurred on 3/7/2016 to 2/8/2016 as alleged by the Respondent. On this issue, the trial court in its judgement stated that, “the absence of the initial treatment notes cannot be a reason to say that the Plaintiff/Respondent was not injured on the said date especially after the police issued him with a police abstract.’’

24. I have considered this issue. It is worth noting that the Appellant did not defend the case in the lower court. On appeal, it seems to me that the Appellant is arguing the case as though this court were the trial court. Whatever defence he wishes to advance ought to have been advanced in the lower court during the trial. Rules of procedure do not allow the Appellant to argue his case on appeal. He lost the chance to adduce evidence in the lower court.

25. I have noted that the Appellant claims he lost consciousness after he was involved in the accident on 3rd July, 2016. There is therefore no evidence to show what happened between the time of the accident and the time the Respondent woke up at the hospital. However, as I have stated, the Appellant did not rebut the evidence by the Respondent in the lower court and cannot do so at this appellate stage.

26. The evidence of Dr. Kahuthu confirms that the Respondent sustained injuries as she found out from the healed scars on him. These injuries are consistent with all the evidence adduced including the police abstract and P3 form. The only thing that differs from her evidence is that she doubts that the injuries sustained by the Respondent were as a result of a road traffic accident because of lack of earlier treatment notes. As stated, the Appellant did not challenge the evidence of the Respondent at the trial stage.

27. I have considered the lower court record, the grounds of appeal, rival submissions and the authorities cited. I do not find merit in the grounds of appeal. As submitted by the Respondent, the Appellant seems confused as to what he wants. He is contesting liability and quantum but at the same time, he is proposing that an award of Kshs 350,000/ is adequate compensation. I find no reason to disturb the judgment of the trial court on liability and quantum. I find no merit in this appeal and I hereby dismiss it with costs to the Respondent.

28. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 1STDAY OF DECEMBER, 2022. S. N. MUTUKUJUDGE