[2023] KEHC 25886 (KLR)

Njenga v Yellowline Logistics (Civil Appeal 183 of 2022) [2023] KEHC 25886 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25886 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 183 of 2022

DKN Magare, J

November 21, 2023

Between

Elizabeth Nyambura Njenga

Appellant

and

Yellowline Logistics

Respondent

(This is an appeal from the decision of Hon. Sandra Ogoti, SRM given on 7/10/22 in Msambweni SRMCC E070 of 2021. )

Judgment

1. This is an appeal from the decision of Hon. Sandra Ogoti, SRM given on 7/10/22 in Msambweni SRMCC E070 of 2021. The Appellant was. The Court is said to have awarded Kshs. 7375 and dismissed the suit in limine with costs.

2. The Appellant filed a 7 paragraph memo of Appeal.

3. The 7 grounds basically are a dispute ona.Liabilityb.Quantumc.Prefabricating Judgment

Duty of the first Appellate court 4. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

5. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

6. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

7. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

8. The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

9. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of ……is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

10. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

11. The High Court, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

12. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

13. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

14. So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

15. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

16. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

17. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

18. For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

Pleading 19. The plaintiff sued 2 defendants over an accident along Likoni – Ukunda Road at Naivas Station involving Motor Vehicle KCZ 566W. She set out particulars of negligence. She suffered subluxation of left ankle joint with post traumatic arthritis. She claimed special damages, damages for pain and differing, future medical expense.

20. The plaint was amended on 4/5/2022 and filed on 9/5/2022. The Amendment removed the 2nd defendant and changed the motor vehicle to KCZ 566N.

21. The 2nd defendant filed an Amended defence on 26/5/22 and attributed the accident to the negligence of the plaintiff. The plaintiff testified on 4/8/2023. She was a waitress in a hotel. She stated that she was walking when the motor vehicle Registration KCZ 556W lost control and hit her from behind and as a result she suffered the pleaded injuries. She was treated and discharged. She said she had alighted from a Tuk Tuk and was knocked down as she waited for change. She fell and was taken to hospital. On cross examination she stated she was on the right side.

22. Dr. Kiema Darius Wambua testified that she examined the plaintiff. She would require physiotherapy for a year and Joint medication at 3,000 per month for a year. He gave 4% permanent disability.

23. PW3 DC Dominic Asumwa stated that KCZ 566N Probox driver toward Nawas and hit a pedestrian Elizabeth as she was standing. The police abstract was given. There were no recommendations to change. The vehicles lost control and came off the main road.

24. DW1 Mohsin Said. They stated that the lady jumped from a tuk tuk. He stated that he did not cause the accident.

25. He confirmed that the accident occurred at a petrol station. He stated that she fell form a Tuk tuk.

26. The court found the defendant not liable. The explanation by the court is very logical and is to be lauded. However, this can only be in another cause, another time. The story of fathering off the Tuk tuk, is a good story, to sell the young ones to sleep. A nice lullaby. However, in an adversarial system the Defendant is supposed to plead facts which they intend to rely on.

27. Departure from pleadings is anathema to good practice. In their particulars of negligence given, do not including falling off a Tuktuk. She was blamed for crossing the road without regard to her own safety.

28. Parties are bound by their pleadings. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, justice A c Mrima stated as doth: -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

12. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

29. In the circumstances I am unable to agree that a narrative can be developed at defence level. In her statement he stated that she had jumped form the Tuk Tuk. This line is not provided in the Defence. A party cannot be allowed to depart from their pleadings.

30. Before tendering evidence on certain aspects, the same must first be pleaded. In tendering evidence at variance with the pleadings, the Respondent was not helping his case. Pray, how did the Appellant fall from the Tuk tuk? Which registration number.?I do not believe the evidence of the Respondent’s witness.

31. On the other hand, the Appellant did not cast doubt on the speed of the motor vehicle. The Respondent reported an accident he was involved in. The Appellant may have as well been negligent in standing aimlessly in a petrol station without regard to her own safety. All circumstances considered both parties were equally to blame for the accident. In the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2004] eKLR, while considering collissoin between two negligent vehicles, the court of Appeal, O’Kubasu, Githinji & Waki, JJ.A, held as doth: -“We have considered the submissions of both counsel, the authorities cited before us and we are persuaded by Mr. Mwangi learned counsel for the appellant that we must interfere with the judgment of the superior court. There is no doubt that an accident occurred between the two vehicles on the Nyeri - Mweiga road at the time stated by the two witnesses. In our assessment of the scanty evidence on record however both the lorry driver and the motorcyclist failed to exercise the degree of care and skill reasonably to be expected of a person driving a vehicle on a public highway. They were in our view equally to blame. We therefore apportion liability for the accident at 50/50. ”

32. The Appellant was equally to blame for having less regard to er safety in a petrol station. In the circumstances I find both the Appellant and Respondent 50:50 liable for the accident. I set aside the award of 100% against the Appellant and in lieu thereof enter 50:50 between the appellant and the Respondent.

Quantum 33. The court awarded 190,000/= for General damages for pain and suffering. There is no Appeal on this. The same are usually at said to be at large. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019)eKLR , Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

34. The damages were pleaded and proved. This court cannot interfere with the same. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

35. In this matter they were pleaded. Dr. Kiema stated that she will need physiotherapy at 50,000/=. I allow the same. She stated she will need 3,000 per month or a year making 36,000/=. This is a reasonable amount, I allow the same. Special damages were awarded at Kshs. 7375. There were said to be proved. I cannot disturb the same. In a nutshell the appeal is allowed as aforesaid.

Determination 36. The upshot of the foregoing is that I make the following orders: -a.I set aside the judgment on liability and for future medical expenses. In lieu thereof I find parties 50:50 liable. I also enter judgment on future medical expenses as follows: -i.Physiotherapy 50,000ii.Medicine 36,000/= subtotal 86,000This works out as follows: -General damage’s 190,000/=Future Medical Expenses 86,000Less 50% - 138,000Sum due 138,000Specials 7375Total 145,375b.The special shall; attract interest from the date of filing and are not subject to contribution while the rest attract interest from the date of judgment in the lower court.c.The court be served with this judgment.d.Costs to the appellant 50,000/=e.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Okata for the RespondentMr. Zelo for the AppellantCourt Assistant - Brian