[2022] KEHC 14173 (KLR)

Njeru v Munyi (Civil Appeal E046 of 2021) [2022] KEHC 14173 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14173 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E046 of 2021

LM Njuguna, J

October 19, 2022

Between

Peterson Kariuki Njeru

Appellant

and

Bernard Munyi

Respondent

(Being an appeal against the judgment of Hon. H. Nyakweba SPM in Embu CMCC No. 63 of 2017 delivered on 13. 07. 2021)

Judgment

1. The appellant herein has lodged this appeal wherein he has challenged the judgment of the trial court. He has sought to have the said judgment set aside and his prayers as enumerated in this appeal be granted. His memorandum of enumerated the following grounds;i.The learned trial magistrate erred in law and fact in ignoring the evidence of the appellant and his witness.ii.The learned trial magistrate erred in law and fact in dismissing the appellant’s evidence despite the fact that there was no evidence tendered by the respondent to controvert it.iii.The learned trial magistrate erred in law and fact in failing to find that the evidence and medical report produced by PW1 proved the injuries sustained by the appellant.iv.The learned trial magistrate erred in law and fact by failing to consider the appellant’s submissions on liability and quantum.v.The learned trial magistrate erred in law and fact by failing to award the appellant general damages, special damages and loss of future earnings despite the appellant having proved his case to the required degree.vi.The judgment of the learned trial magistrate was against the weight of the evidence.

2. Reasons wherefore, the appellant prayed that this appeal be allowed and judgment delivered on July 13, 2021 be set aside.

3. At the hearing of the suit, it was the appellant’s evidence that on September 13, 2016 while travelling as a passenger in motor vehicle registration number KAQ 154 A at Kangima along the Embu – Meru Road, the respondent and/or his driver/employee/ servant and/or agent so negligently drove/managed and/or controlled the said motor vehicle that, he caused an accident thereby occasioning serious bodily injuries to the appellant herein.

4. The particulars of negligence were particularized in paragraph four (4) of the plaint and the appellant sought for orders as enumerated in the plaint.

5. The respondent filed a defence in which, he denied liability; he denied that he was the owner of motor vehicle KAQ 154A and that the appellant was lawfully travelling as a passenger in the said motor vehicle along Embu – Meru Highway on the material date. Further, all the particulars of negligence were denied.

6. In the alternative and without prejudice, the respondent averred that, if the alleged accident occurred, but which was denied, the same was solely caused and/or substantially contributed to, by negligence on the part of the appellant. The particulars of such negligence were set out in paragraph 6 of the defence.

7. The respondent also contended that the alleged accident was inevitable and that the same occurred despite the exercise of reasonable skill and due care on the part of his driver. He denied that the doctrine of res ipsa loquitor is applicable. He also denied that the appellant suffered bodily injuries which caused him pain and suffering and loss. All the particulars of special damages were denied. It was also denied that the appellant lost his employment as a driver as a result of the accident.

8. The appellant filed a reply to defence wherein he reiterated all the contents of the plaint in its ordinary and natural meaning and proceeded to put the respondent to strict proof thereof. Further, he went on to deny any negligence on his part and urged this court to grant the prayers in the plaint against the respondent.

9. The trial court after considering the facts, the evidence of the case and the law applicable, by a judgment delivered on July 13, 2021, reached a determination that the appellant herein did not prove his case against the respondent on a balance of probabilities and consequently, dismissed the suit with costs to the respondent.

10. It is the said judgment by the trial court that is the subject of the appeal herein.

11. At the hearing of the appeal, directions were taken that the appeal be canvassed by way of written submissions but only the appellant complied with the said directions.

12. The appellant argued the first to the third grounds of appeal together, the fourth and fifth together while the sixth one was argued on its own under the following sub headings.

13. That the learned trial magistrate erred in law and fact in ignoring the evidence of the appellant and his witness despite the fact that there was no evidence tendered by the defendant to controvert the same; it was submitted that the trial court erred in ignoring the evidence of the appellant and his witness while in real sense, there was sufficient evidence of the injuries sustained; that indeed, the appellant underwent treatment after sustaining injuries in the said accident. That the appellant’s witness, Dr Elijah Thion’go testified that on October 27, 2020, he examined the appellant and prepared his medical report upon referral by the appellant’s advocates on record.

14. It was submitted further that, when the appellant testified on March 23, 2021, he identified himself and stated that indeed he was involved in the said accident that occurred on September 13, 2016 wherein he sustained injuries out of which he was unable to resume his duties as a driver at Bonanza School as his services had been terminated. The appellant submitted that the oral testimony by both PW1 and PW2 in its totality proved that indeed the appellant suffered injuries in the said accident and subsequently sought for treatment. Reliance was placed on section 62 of the Law of Evidence and further in the cases of Carolyne Indasi Mwonyonyo v Kenya Bus Service [2012] eKLR; Daniel Otieno Owino &anotherv Elizabeth Atieno Owuor [2020] eKLR. In the same breadth, the appellant argued that the trial magistrate did not quote the relevant laws that informed his determination in the case herein. That the appellant had a burden to call evidence to prove his claim on a balance of probabilities which in essence, he did, and there being no rebuttal of his evidence, the appellant thus proved his case to the required standards.

15. On whether the trial magistrate erred in law and fact by failing to award the appellant general damages, special damages and loss of future earnings despite the appellant having proved his case to the required degree, the appellant submitted that the learned magistrate erred in failing to award damages, under the various heads. He averred that the respondent did not challenge the extent of the injuries sustained by the appellant as he narrated in his testimony and as further confirmed by the medical report that was produced as an exhibit. It was submitted that contrary to the suggested amounts as had been made by the learned trial magistrate, a sum of Kshs 800,000/= suffices as compensation for the pain and injuries sustained by the appellant herein. He relied on the case ofGitau Peris Gerald v Njoroge Chege [2020] eKLR. In reference to special damages, an amount of Kshs53,660/= was suggested and further for the reason that the appellant is no longer in any useful employment due to the said accident, an amount of Kshs 1,823,760 – (15198x10x12) as compensation for loss of future earnings was proposed. Reliance was placed on the case of Stephen Maleve v Kenya Power & Lighting Co Ltd[2009] eKLR.

16. On whether the judgment of the learned magistrate was against the weight of evidence, it was submitted that the appellant having adduced sufficient evidence and further proved his case on a balance of probabilities, which evidence was never challenged through cross examination, the appellant had discharged the burden of proof to support his case. It was thus prayed that the appeal herein be allowed.

17. I have carefully considered the appeal and the evidence on record. I have also read the judgment by the trial court and I find that the main issue for determination is whether the appellant proved his case on a balance of probabilities.

18. Being a first Appeal, the court relies on a number of principles as set out in Selle andanotherv 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.”

19. The appellant has faulted the trial court and averred that it erred in reaching a determination that was not supported by the weight of evidence that was adduced.

20. On whether the learned trial magistrate erred in law and fact in ignoring the evidence of the appellant and his witness despite the fact that there was no evidence tendered by the respondent to controvert the same, the provisions of sections 107, 109 and 112 of the Evidence Act, on the burden of proof, were extensively dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi &another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107 (1) of the Evidence Act, cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in sections 109 and 112 of the Act.”

21. From the reading of order 11 rule 7(1) (d) of the Civil Procedure Rules there appear to be no issue when a witness who filed a statement testifies. Ordinarily, such a witness will adopt his/her statement as part of the evidence and will be cross-examined on the same. On the issue of the exhibits, under order 11 rule 7(1) (h), the parties may, with the approval of the court, agree on how the exhibits will be produced and, in its absence, then the ordinary practice on how such documents are produced as exhibits apply.

22. In the case herein, PW1’s words were to the effect that … “I pray that the court adopts” the statement. I have documents I filed, the court may adopt them as my evidence. I pray that the court allows my case; whilst that of PW2, the appellant herein stated that …..I urge the court to allow the plaint as pleaded. I wish to produce the police abstract (P Ex 2), demand notice dated December 6, 2016 (P Ex 3), receipt for medical expenses (P Ex 4), pay slip for June 2016 (P Ex 6), letter dated February 15, 2016 from Bonanza School and letter dated February 22, 2017 from the labour office, Embu addressed to the Principal Bonanza School (P Ex 7).

23. As already stated, the documents must be produced as exhibits either by consent of the parties or under the rules of evidence. On this issue, I adopt the view of Mrima J in Migori High Court Civil Case No. 13 of 2015 County Government of Homa Bay v Oasis Group International & Another [2017] eKLR thus: -47. In this case all parties filed various documents and entered into two pre-trial consents on the September 16, 2015 and September 29, 2015. Since the twin consents did not expressly state how the documents filed through the parties’ lists of documents were to be transformed into exhibits, I hold that the documents were hence left to the prevailing rules of evidence. It therefore means that despite the currency of the so many documents on the record, this court would only deal with those 16 documents that were taken through the rigors of identification and were eventually produced as exhibits thereby becoming part of the judicial record.

24. The foregoing position has been fortified by the Court of Appeal in the case ofKenneth Nyaga Mwige v Austin Kiguta & 2 others[2015] eKLR which decision I substantially reproduce herein on what my Lordships rightly held on the issue: -16. The fundamental issue for our determination is the evidential effect of a document marked for identification that is neither formally produced in evidence nor marked as an exhibit. Is a document marked for identification part of evidence? What weight should be placed on a document not marked as an exhibit?17. …………..18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents- this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone but it would take into consideration all facts and evidence on record.19. ……The marking of the document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.20. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation or it authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the documents produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would be hearsay, untested and unauthenticated account. [See also Des Raj Sharma v Reginam(1953) 19 EACA 310; South Nyanza Sugar Co. Ltd v Mary A. Mwita & another [2018] eKLR].22. Guided by the decision cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production o the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.23. In the instant case, we are of the view that the failure or omission by the respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondent’s case. The documents did not become exhibits before the trial court; they have simply been marked for identification and they have no evidentiary weight. We are persuaded by the dicta in the Nigerian case of Michael Hausa –vs- The state (1994) 7-8-SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.

25. In view of the above, it therefore means that the documents referred to by PW1 were never indeed produced as required by the law and as such, the same ought not to form the evidentiary record of the case. In reference to the above, does it therefore mean that the appellant’s case remains hollow and unproved? To answer that, I will equally proceed to analyze the effect of the same in reference to the documents that were produced by the PW2, the appellant herein.

26. The appellant produced the following documents to support his case during the trial: police abstract (P Ex 2), demand notice dated December 6, 2016 (P Ex 3), receipt for medical expenses (P Ex 4), pay slip for June 2016 (P Ex 6), letter dated 15. 02. 2016 from Bonanza School and letter dated February 22, 2017 from the labour office, Embu addressed to the Principal Bonanza School (P Ex 7).

27. As to whether the appellant was involved in the alleged accident as enumerated in his pleadings and the receipts for medical expenses (P Ex 4), the trial magistrate in dismissing the appellant’s case stated that the appellant did not prove his case against the respondent on a balance of probabilities. [Section 107, 108 and 109 of the Evidence Act; Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR].

28. Among the documents that were produced by the appellant herein is the police abstract which clearly showed that it was reported to the police that the appellant was involved in the said accident. I must point out, however, that the contents of the police abstract as extracted from the records held by the police is merely evidence that a report of an accident was made. It is prima facie evidence of the occurrence of the accident and the particulars of those involved but the same can always be rebutted. It was therefore held in Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR:“A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”

29. Similarly, the fact that an accident has not been reported does not necessarily mean that no such accident occurred. In the case herein, proof of negligence, being on a balance of probabilities, does not solely depend on the evidence of the doctor or report of the accident to the police though such report may corroborate the other available evidence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure by the doctor to produce a report in my view is not necessarily fatal to warrant dismissal of a plaintiff’s case.

30. PW1 confirmed in evidence that the appellant sustained injuries to the left eye and left leg which had a fracture which was immobilized by fixing ORIF. This oral evidence by PW1 was relevant. PW1 also produced the medial report as exhibit 1. Further, the appellant produced medical receipts which showed that indeed he suffered injuries which bear dates that almost coincide with the date when the alleged accident occurred. In my view, therefore, the appellant proved on the balance of probabilities the allegations made against the respondent regarding the occurrence of the accident and further that he sustained injuries as a result of the said accident. [See Kirugi &anotherv Kabiya & 3 others [1987] KLR 347].

31. On quantum, the learned magistrate was of the view that had the injuries been proven, he would have awarded an amount of Kshs 300,000/= for pain and suffering having relied on the case of Reuben Mongare Keba v LPN (2016) eKLR; on loss of future earnings, he held that the same must not only be pleaded but also be proven and that despite the appellant having shown that in deed he was a driver at Bonanza School, he failed to produce a termination letter showing the cause of his dismissal and as such, the court could not just assume that the termination was as a result of the alleged accident. Guiding his view, was the case of Kenblest Kenya Limited v Musyoka Kiema [2020] eKLR. On specials, he held the view that he could have awarded an amount of Kshs 53,660/=.

32. From the plaint and the oral testimony of the appellant, it was pleaded that he sustained a fracture and tenderness of the left lower limb and swelling and redness of the left eye.

33. In Loice Wanjiku Kagunda v Julius Gachau MwangiCA 142/2003 the Court of Appeal held:‘We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles. (See Mariga V Musila [1984] KLR 257).’

34. In the case ofDaniel Otieno Owino & another v Elizabeth Atieno Owuor[2020] eKLR where the appellant had sustained a fracture on the right leg, chest injuries, injuries on the eye bridge, injury on the left leg and injury on the left eye, the court on appeal awarded Kshs 320,000/=.

35. In the case ofHarun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR where the plaintiff sustained multiple injuries and fracture of right tibia and fibula the appellate court set aside an award of Kshs 1,500,000/= and substituted it with an award of Kshs 300,000/=.

36. In the case of Amritlal S. Shah Wholesalers Ltd & another v Joshua Ekeno[2012] eKLR where the plaintiff sustained compound fractures of the tibia and fibula and the appellate court upheld an award of Kshs 350,000/=.

37. In the case ofCivicon Limited v Richard Njomo Omwancha & 2 Others[2019] eKLR, wherein the 2nd Respondent was awarded Kshs 450,000/= for deep cut wound on the left earlobe, tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation of the left hip joint with 30% permanent disability while the 3rd Respondent was awarded Kshs 500,000/= for fracture of four upper teeth, cut wound on the upper and lower lips, swollen and tender upper lip, bruises on the chin, dislocation of the left shoulder, bruises on right knee, fracture of the right tibia and fibula with 30% permanent disability.

38. In reference to the loss of future earnings, I concur with the trial magistrate given that there were no documents that were produced before this court to show the causal link between the appellant’s termination and the alleged accident herein. As such, I see no reason to interfere with the finding in reference to this head. Further, a claim under loss of future earnings must be pleaded and proved as they are in the nature of special damages. [See Mumias sugar Company Limited v Francis Wanalo[2007] eKLR where it was held that:……Compensation for loss of future earnings are awarded for real assessable loss proved by evidence. The claim for loss of future earnings is assessed on the ordinary multiplier/multiplicand bases. In contrast where there is a substantial risk that a plaintiff at some future date before the end of his working life will lose his job and be thrown into the labour market, the assessment of risk and damages may be difficult more so where no proof is provided by the litigant and facts generally left to court to make a determination on its own…. [Emphasis mine].

39. As regards special damages, based on my finding, it is my view that the appellant is entitled to the same as they were not only pleaded but equally proved.

40. In view of the foregoing, the appeal partially succeeds in the following terms: -General damages - Kshs 300,000. 00Specials - Kshs 53,660. 00Total - Kshs 353,660. 00

41. Each party to bear its own costs of the appeal.

42. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………………for the Appellant…………………………………………for the Respondent