[2022] KEHC 16979 (KLR)

Njau & 2 others v MWW (Suing as the mother and next friend of SWK) (Civil Appeal 37 of 2019) [2022] KEHC 16979 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16979 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 37 of 2019

GWN Macharia, J

December 15, 2022

Between

Stephen Njau

1st Appellant

Great Wall Construction Co. Ltd

2nd Appellant

Shingly Engineering Construction Ltd

3rd Appellant

and

MWW (Suing as the mother and next friend of SWK)

Respondent

(Being an appeal against the Judgement and Decree of the Chief Magistrate's Court at Naivasha CMCC No. 183 of 2015 delivered by Hon. K. Bidali (CM) on 17th July, 2019)

Judgment

1. This is an appeal against both liability and quantum of damages. It arises from Naivasha CMCC No 183 of 2015 in which the Respondent sued the Appellants, jointly and severally, for general and special damages arising from injuries that the minor sustained in a road traffic accident on May 22, 2014 at Nyakio area along Njambini – Flyover Road. According to the Plaint, it was alleged that 1st Appellant negligently drove motor vehicle registration number xxxx, the property of 2nd and 3rd Appellants, causing it to lose control, veer off the road and hit the minor.

2. The 1st and 3rd Appellants filed a joint Statement of Defence in which they denied the Respondent’s claim and, in the alternative, blamed her for substantially contributing to the accident through her own negligence.

3. Upon trial, the trial court found the Appellants wholly liable for the accident and awarded the Respondent general damages in the sum of Kshs 1,500,000/- and special damages in the sum of Kshs 37,500/-. The Respondent was also awarded costs of the suit and interests.

4. Being dissatisfied with the entire judgment, the Appellants lodged the instant appeal vide a Memorandum of Appeal dated August 7, 2019 and raised the following three grounds:1. The learned trial magistrate erred both in law and in fact by holding the Appellants 100% liable for the subject accident contrary to the evidence on record.2. The learned trial magistrate erred both in law and in fact by shifting the burden of proof to the Appellant contrary to the rules of evidence.3. The learned trial magistrate erred both in law and in fact by awarding the Respondent a sum of Kshs 1,500,000/- in general damages which was too excessive in the circumstances.

Analysis and determination 5. I have carefully perused the Record of Appeal and the parties' respective written submissions filed herein. The issues that arise for determination are: whether the learned trial magistrate erred in finding the Appellants’ wholly liable for the accident; and whether the learned trial magistrate awarded general damages that were manifestly excessive in the circumstances of the case.Whether the learned trial magistrate erred in finding the Appellants’ wholly liable for the accident.

6. On liability, the Appellants submitted that the finding of the trial magistrate was not in tandem with the evidence on record. They contended that there was no evidence of negligence on the part of the 1st Appellant and none of the Respondent's witnesses were present when the accident occurred. In particular, they pointed out that PW4 No xxxx PC John Rain testified that it was impossible to tell whether the driver of the motor vehicle was liable for the accident. Further, they contended that the evidence of DW1, the 1st Appellant herein, that the minor ran across the road and he tried to apply brakes and swerve on the night to avoid hitting her remained uncontroverted. It was also their assertion that the child's parents were equally to blame for not taking care of her and leaving her to across the road carelessly while unaccompanied by an elder. Further, it was their contention that pursuant to the provisions of Section 107(1) and 108 of the Evidence Act, the burden lay on the Respondent to prove that the accident was caused by the negligence of the 1st Appellant. In support of this submission, they relied on Nandwa v Kenya Kazi Ltd [1988] KLR 488 andJamal Ramadhan Yusuf & Another v Ruth Achiengonditi& Another [2010] eKLR.

7. According to the Appellants therefore, the learned trial magistrate shifted the burden of proof to them by circumventing the evidence on record and finding them 100% liable instead of apportioning liability equally between the parties herein in the circumstances of this case. Reliance was placed on the case of WKI minor suing through next friend and mother LKI v Ghalip Khan & Another [2011] eKLR, where the Court of Appeal overturned a High Court’s decision that the driver of a motor vehicle was solely to blame for an accident in which an eleven year old child was knocked and sustained injuries as a result. They therefore urged this court to substitute the lower court's finding on liability with a 50:50 apportionment.

8. According to the Respondent however, there is no reason to interfere with the findings on liability as the learned trial magistrate followed the correct principles of law in arriving at his decision. She relied on G M T v Board of Trusteee Arch – Diocese of Nyeri & another [2005] eKLRwhere the appellate court declined to hold a three-year old contributorily negligent for an accident.

9. This being a first appeal, it is the duty of this court to review and evaluate the evidence on record afresh and draw its own conclusions although due allowance must be given to the fact it did not have the benefit of seeing or hearing the witnesses. See Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123.

10. It is not in doubt that a road traffic accident involving the minor and the subject motor vehicle occurred on May 22, 2014 along Njambini Flyover Road at Nyakio area and the minor herein sustained injuries as a result. According to the minor’s mother, PW1, Susan Wairimu Kamau, the minor who was five years old at the material time was going home from school at about 4. 00pm when she was hit by the subject motor vehicle. PW1 testified that the 1st Appellant, who was the driver of the motor vehicle, is the one who called her and informed her about the accident. He also told her that he had taken the minor to Wasaka Dispensary for treatment. She went there immediately and found the 1st Appellant with the minor. They then transferred the child to Kijabe AIC Hospital. The hospital bill totaling Kshs 245,000/- was paid by the 3rd Appellant.

11. PW4, PC John Karuri of Magumu traffic police base testified that on May 23, 2014, the 1st Appellant herein reported that while he was driving from Njabini towards Magumu, he saw children playing at Nyakio. Suddenly, a child who is the minor herein, ran to the road where she was knocked by the rear left bumper and sustained a fracture. PW4 stated that the driver was to blame because it was a straight road and he should have seen the child. It was also his testimony that if at all the child was crossing the road, she would have been hit by the front of the motor vehicle. PW4 produced the police abstract in evidence.

12. In cross examination, he stated that nobody was charged for the accident even after investigations were completed. He however noted that the investigating officer had recommended that the 1st Appellant be charged.

13. During defence hearing, DW1, Stephen Githinji Njau, the 1st Appellant herein adopted his witness Statement dated June 18, 2015 as his evidence in chief. It was his testimony that he was driving the subject motor vehicle when the minor herein suddenly ran across the road from the left side. He hooted and applied brakes to avoid hitting her then immediately swerved to the right side of the road as there was an oncoming vehicle. The child hit the rear end bumper of the left hand side and sustained a fracture on her right ankle. He immediately rushed her to Kijabe Hospital where she was admitted for treatment. The 3rd Appellant paid the medical bills totaling Kshs 269,445/-. He blamed the child for attempting to cross the road when it was not safe to do so.

14. In cross examination, he admitted that the child was 5 years old at the time. He admitted that he saw the child early but did not expect her to cross the road. Lastly, he stated that he blames the child’s mother because she knew the dangers of the road.

15. The general rule is that a trial court’s finding on apportionment of liability should not be interfered with save in exceptional cases as it is an exercise of discretion. In Khambi and Another v Mahithi and Another [1968] EA 70, it was held thus:'It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.'

16. In the judgment of the trial court, the learned magistrate took note of the well settled principle of law that a child of tender years cannot be held contributorily negligent unless it is proved that the child knew or ought to have known that he should not do the act or make the omission. See G M T v Board of Trusteee Arch – Diocese of Nyeri & another (supra). Indeed, the testimony of PW4 is quite telling that the accident occurred on a straight road and at 4. 00pm which means that the 1st Appellant was able to see the road clearly, a fact which he clearly admitted in his testimony before the trial court. It was therefore his duty to exercise due caution and care. From the foregoing, it is my considered view that the trial magistrate’s discretion in apportionment of liability was based on sound reasoning and I thus, I see no reason to interfere with it.'Whether the learned trial magistrate awarded general damages that were manifestly excessive in the circumstances of the case.'

17. On quantum, the Appellants reiterated that the learned trial magistrate’s finding on general damages was manifestly excessive in the circumstances of the case since the minor only sustained fracture of the right femur and tibia. In the Appellants’ view, a modest award of Kshs 350,000/= in general damages would be commensurate with the nature and/or extent of the injuries. They cited the following cases:a.DG (minor suing through her next friend MOR v Richard Otieno Onyisi [2021] eKLR, where the appellate court awarded Kshs 400,000/= as general damages for a minor who suffered a chest contusion, left tibia fracture, bruises on the left foot and bruises on the left leg;b.Eldoret Steel Mills Limited v Elphas Victor Espila[2013] eKLR where the plaintiff was awarded Kshs 300,000/- in 2013 for a sub-trochanteric fracture of the right femur, fracture of the metatarsal bones of the right foot and soft tissue injuries to the right arm, right hip, right thigh and right foot. Permanent disability was assessed at 35%;c.Paul Kithinji Kirimi & Another v Gatwiri Murithi [2018] eKLR in which an award of Kshs 700,000/- was substituted with Kshs 450,000/- on appeal where the plaintiff sustained two fractures of the mandible and femur;d.Ibrahim Kalema Lewa v Esteel Company Limited [2016] eKLR in which the High Court upheld an award of Kshs 300,000/- on appeal in 2016 where the plaintiff sustained an inter trochanteric fracture of the left femur, was admitted to hospital for two months and his physical disability assessed at 25%; and,e.Kenyatta University v Isaac Karumba Nyuthe [2014] eKLR where the Plaintiff was awarded Kshs 350,000/- in 2014 for a fracture of the right femur and soft tissue injuries to the head and bruises on the right knee.

18. On the Respondent’s part however, it was submitted that the trial court’s award of general damages was commensurate with the injuries suffered and comparable with past precedents. She relied on Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] eKLR where the court awarded a sum of Kshs 1,400,000/- for a commuted fracture of the left acetabulum, deep cut wound on the right knee, cut wound on the left forearm and soft tissue injuries on left shoulder joint.

19. PW1 testified that the child got a fracture on her right leg and a metal plate was affixed thereon. PW2, Tabitha Ndungu, a clinical officer at Naivasha County Referral Hospital testified that the child had degloving injury to her right leg with an open tibia fracture and a closed femur fracture. PW2 opined that a degloving injury is not comparable to soft tissue injury. She stated that she filled the P3 Form and assessed the injuries as grievous harm due to the two fractures.

20. PW3. Dr Obed Omuyoma examined the child on February 19, 2015. He testified that the child sustained a compound fracture of the right tibia, a closed fracture of the right femur and degloving injury of the right leg. He stated that the fracture was managed by external fixation of metal plates, surgical toileting and skin grafting. He noted that the child’s right leg was shorter than the left and she walks with a limp. He assessed a permanent disability of 30% since in his view, the shortened leg will never improve. He prepared a medical report which he tendered in evidence.

21. An award of damages for personal bodily injuries must be commensurate to the injuries suffered. In Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR, Majanja J stated:'The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.'

22. It is also well settled that an award of damages is at the discretion of the trial court and hence an appellate court should be slow to interfere unless the trial court misdirected itself in arriving at the award in question. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR the Court of Appeal stated thus:'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.'

23. According to the evidence on record, it is clear that the nature and extent of injuries sustained by the minor as a result of the accident was not in dispute. The injuries are: compound fracture of the right tibia, a closed fracture of the right femur and degloving injury of the right leg and permanent disability assessed at 30%. It is my view that the injuries cited in the authorities relied on by the Appellants are minor compared to the injuries suffered by the minor while the one cited by the Respondent is a bit more serious.

24. In George William Awuor v Beryl Awuor Ochieng [2020] eKLR, the Respondent suffered a simple fracture of the right femur and compound fracture of the left tibia fibula. His right thigh had surgical scars and some bruising which had since healed. The court set aside an award of Kshs 2,000,000/- and substituted the same with Kshs 1,200,000/- in 2020.

25. In the premises, I am of the view that the trial court’s award of Kshs 1,500,000/- for general damages was rather excessive. I am therefore persuaded that this is a suitable case for interfering with the trial court’s finding on general damages. In my considered view, an award of Kshs 1,200,000/= would be sufficient compensation as general damages to the Respondent.

26. As for special damages, the I find no reason to interfere with it as the same was not challenged.

Conclusion 27. Accordingly, the Appellants’ appeal succeeds on quantum only to the extent that the trial court’s award of general damages in the sum of Kshs 1,500,000/- is hereby set aside and substituted with an award of Kshs 1,200,000. Each party shall bear its own costs of the appeal. It is so ordered.

Dated and Delivered at Naivasha this 15thDecember, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:Mr. Alusa h/b for Ms. Cheloti for the Appellants.Mr. Ochieng Owuor for the Respondents.