[2022] KEHC 13963 (KLR)

Njeru & another v Nyakundi (Civil Appeal E021 of 2021) [2022] KEHC 13963 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13963 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E021 of 2021

LM Njuguna, J

October 11, 2022

Between

Salesio Njeru

1st Appellant

Godfrey Nganga Njenga

2nd Appellant

and

Boniface Nyakundi

Respondent

(Being an appeal against the judgment of Hon. S. OUKO (R.M.) delivered on 24. 06. 2021 in Runyenjes SPMCC No. 68 of 2020)

Judgment

1. The appeal herein arises from the judgment of the trial court at Runyenjes in Senior Principal Magistrate’s Civil Suit No 68 of 2020. In the said suit the respondent who was the plaintiff moved the court vide a plaint filed on August 4, 2020, in which he sought general and special damages against the appellant following a road traffic accident that occurred on the April 11, 2020.

2. In the plaint, the respondent averred that on the material date, he was a rider on motor cycle registration number KMEX 563W Skygo make along Meru – Embu road at Ena area when the driver/servant and/or employee of the 1st appellant so recklessly drove, managed and/or controlled motor vehicle registration number KAY 083Z that he permitted the same to loose control and knock down his motor cycle as a consequence of which, he sustained serious bodily injuries. The particulars of negligence, injuries and those of special damages were set out in the plaint.

3. The respondents denied the claim vide their amended statement of defence which they filed on the October 12, 2020, the effect of the amendment being that the amended defence related only to the 1st defendant (1st appellant) which technically meant that the 2nd defendant (2nd appellant) did not file a defence to the claim.

4. The 1st appellant denied being the registered/beneficial or possessory owner of motor vehicle registration number KAY 083Z as alleged by the respondent. The occurrence of the accident was also denied. He further denied the allegations that the respondent was lawfully riding motor cycle registration number KMEX 563W along Meru - Embu road and that he was reckless in the way he managed and/or controlled motor vehicle KAY 083Z. The particulars of negligence were also denied.

5. In the alternative and without prejudice, he averred that if an accident occurred, but which was denied, the same was wholly caused and/or contributed to by negligence on the part of the respondent. He averred that the respondent is not entitled to special damages. He urged the court to dismiss the respondent’s claim.

6. The respondent filed a reply to defence on the September 16, 2020 in which he joined issues with the 1st appellant’s defence and reiterated the contents of the plaint and in particular, the particulars of negligence of the 1st appellant. He sought for judgment against the appellants jointly and severally as pleaded in the plaint.

7. The matter proceeded to full hearing and in a judgment delivered on the June 24, 2021 the learned magistrate apportioned liability on equal basis at 50%:50%. On general damages for pain and suffering, a sum of Kshs 600,000/= was awarded and special damages of Kshs 10,000/= plus costs and interests.

8. Both parties on being dissatisfied with the judgment have moved this court with the defendants filing the memorandum of appeal dated the July 21, 2021 in which they set out three (3) grounds of appeal as hereunder;1. That the learned magistrate erred in law in awarding general damages for pain and suffering at Kshs 600,000/= which amount is manifestly excessive and high considering the injuries sustained by the respondent.2. That the learned magistrate erred in law and in fact in failing to consider the written submissions of the appellants on record and the authorities annexed therein in support of the appellant’s case while arriving at the award in damages.3. That the judgment of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis.

9. On his part, the plaintiff filed a cross appeal dated the August 3, 2021 wherein he set out two (2) grounds of appeal;1. That the learned trial magistrate erred in law and facts by holding the respondent 50% liable for the accident.2. That the learned trial magistrate erred in law and facts by failing to consider the evidence on record brought forth by the respondent and holding that the respondent contributed to the accident.

10. The defendants have challenged the award of damages awarded to the plaintiff whereas the plaintiff has challenged the finding on liability at 50%:50%.

11. When the appeal and cross appeal came up for hearing, the court gave directions on filing of submissions but only the appellants in the appeal complied with the directions given by the court. In their submissions they set out two (2) issues for determination namely;1. Whether the court erred in holding the respondent 50% liable for the accident.2. Whether the award of Kshs 600,000/= on general damages for pain and suffering was excessive.

12. On the first issue, the appellants in the appeal submitted that the learned magistrate did not err in apportioning liability to the respondent at 50%. They averred that all road users owe a duty of care to the other road users and ought to move with due care, observe the Highway Code and take care of their own safety. They argued that the motor cycle hit the vehicle on the rear side which means that the vehicle had already joined the highway and that the respondent was riding at an excessive speed. They averred that had the respondent been riding at a safe speed, he would have spotted the motor vehicle joining the road and applied necessary measures to avoid a collision.

13. They further submitted that the police officer who testified was not the investigating officer and did not have the investigation report, sketch maps and/or photographs of the scene of the accident and that his testimony was not weighty as it was bound to the contents of the police abstract. That though the 1st appellant was charged with a traffic offence and fined Kshs 20,000/= the conviction is not conclusive evidence that he was negligent. He relied on the case of Robinson Vs Oluoch [1971] EA 376 as quoted in the case of Mutisya Muthangya Vs Paul Manundu Musili [2018] eKLR.

14. It was further submitted that since there are conflicting versions of how the accident occurred, liability should be apportioned at 50%:50%. They cited the case of Hussein Omar Farah vs lento Agencies[2016] eKLR (Court of Appeal) where the court stated in part;"….it has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame….."

15. The appellants also cited the case of Welch Vs Standard Bank Ltd[1970] EA 115 at 117 and Simon Vs Carlo[1970] EA 285 where the court observed;"It cannot be doubted that both drivers are to blame. In the ultimate analysis of the evidence in the instant case, the circumstances are such that there is no concrete evidence of distinguishing between the two drivers. The drivers should therefore be held equally to blame."

16. On the second issue, it was submitted that the amount awarded was inordinately high thus setting a bad precedent. That, going by paragraph 5 of the plaint, the respondent particularized his injuries as;1. Tender swollen arm2. Tenderness bruised kneeand are the same injuries that the respondent stated in his statement which was adopted as his evidence. That whereas the medical report by Dr Mwandiki captures an additional injury; colles fracture, the same was not pleaded in the plaint and by taking it into consideration, the trial magistrate erred, as parties are bound by their pleadings. They relied on the case of Independent Electoral and Boundaries Commission & Another Vs Stephen Mutinda Mule & 3 Others [2014] eKLR which was cited with approval in the Supreme Court of Nigeria in Adetoun Oladeji (NICR) Vs Nigeria Breweries PLC SC 91) 2002. They urged the court to set aside the award of the trial court and substitute it with an award of Kshs 150,000/= relying on the cases of Justine Nyamweya Ochoki & Another vs Jumaa Karisa Kipingwa [2020] eKLR, Maimuna Kilunwa Vs Motrex Transporters Ltd [2019] eKLR and that of Ndungu Dennis Vs Ann Wangari Ndirangu & Another [2018] eKLR.

17. The court has considered the pleadings, evidence adduced at the trial, the submissions in the lower court and on appeal in support of grounds in the main appeal.

18. As the court had earlier noted, the appellant in the cross appeal did not file any submissions. The sole issue for determination is whether the appeal has merits and in so doing the court shall be guided by the two issues as set out by the appellant in the main appeal.

19. This being a first appeal the court relies on a number of principles as set out in Selle and Another Vs Associated Motor Boat Company Limited & Others (1968) EA 12.

20. On the issue of liability, the respondent’s evidence as per his witness statement was that on the material day he was riding from Embu town towards Runyenjes when on reaching a place called GK, suddenly motor vehicle KAY 0832Z without giving way rammed into his motor cycle KMEX 563W. He stated that the vehicle was coming from a feeder road. In cross-examination, he stated that the vehicle was being driven at a high speed and blamed the driver for entering the junction and causing the accident.

21. On their part, the appellants stated that on the material day, the 2nd appellant was driving from Ena and as he was joining Embu – Meru Highway he encountered a motor cycle rider travelling at a high speed and the rider hit the rear right passenger door of his vehicle.

22. Following the accident, the respondent was injured and was treated at Embu Provincial General Hospital. Both parties blame each other for the occurrence of the accident.

23. Looking at the evidence on record, the respondent was driving on the main road while the 2nd appellant was joining the main road from a junction. The 2nd appellant states that before he joined the highway, he stopped and when he was certain that there was no oncoming traffic, he joined the highway.

24. He avers that all road users owe a duty of care to other road users and they ought to move with due care and observe the Highway Code. According to him, the fact that the motor cycle hit the vehicle on the rear right door connotes negligence on the part of the respondent. In this regard, the court has taken note of the authorities relied on by the appellants being that of Hussein Omar Farah and Welch Vs standard Bank Ltd (supra). However, it is clear that the respondent was driving on the highway while the 1st appellant was joining the highway from a feeder road. The respondent had a right of way. This is not to say that he did not owe the 1st appellant a duty of care but the 1st appellant owed the respondent a higher duty of care.

25. It is also not in dispute that the 1st appellant was charged with a traffic offence and fined Kshs 20,000/=. I agree with the submission by the appellants that a conviction in a traffic case is not conclusive evidence that one party was negligent and the other party was not. As the court held in the case of Robinson (supra);"….it is quite proper for a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead, in subsequent court proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident."

26. In the circumstances of this case, I find that the 2nd appellant was more to blame and I hereby apportion liability at 80%:20% in favour of the respondent because he also ought to have been driving his motor cycle with due care and attention. For avoidance of doubt, the respondent to bear 20%.

27. On quantum of damages, the circumstances under which this court can upset the award of damages have been previously laid down in the case of Mbogo & Another Vs Shah(1968) EA where it was held;“….this court will not interfere with the exercise of 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 which it should not have taken into consideration and in doing so, arrived at a wrong conclusion”.(See also the case of United India Insurance Co Limited Vs East African Underwriters (Kenya) Ltd (1985) EA.)

28. According to the medical report by Dr Wandiki, the respondent suffered the following injuries; tender swollen left forearm, tenderness bruised knees and left arm colle’s fracture. However, the particulars of injuries as pleaded in the plaint are tender swollen left forearm and tenderness/bruised knees. The learned magistrate awarded Kshs 600,000/= as general damages. The appellants have faulted the trial court arguing that the award was excessive and for taking into account an injury that was not pleaded being that of colle’s fracture of the left arm they have asked the court to reduce the award to Kshs 150,000/=.

29. The court has perused the plaint; the medical and the P3 which were produced as exhibits in this case. I note that though the said injury is reflected in the medical report, unfortunately the same was not pleaded in the plaint. As submitted by the appellants, a party is bound by their pleadings. (See the case of Independent Electoral and Boundaries Commission(supra) where the court held;“….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 averment 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 the parties to prepare their evidence on the issues as joined and avoid surprises by which no opportunity is given to the other party to meet the new situation.”I wholly concur.

30. In the premises, it is therefore clear that in considering the award, the court will be guided by the injuries as set out in the plaint.

31. It is trite that assessment of 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 courts in similar cases. The principles governing the assessment of damages are espoused in the case of West (H) and Sons LimitedvsShepherd (1964) as cited with approval in the case ofCecila Mwangi & Another Vs Ruth MwangiCA 251 of 1996. (See also the case of Kim Phochoo Vs Camden & Islington Area Health Authority (1979) 1 All ER 332.

32. Bearing those principles in mind, the court has looked at the cases cited by the appellants and more particularly the case of Justine Nyamweya Ochoki & another Vs Jumaa Karisa Kipingwa (2020) eKLR where a sum of Kshs 150,000/= was awarded. This was in the year 2020. Taking into account the inflation, I am of the considered view that a sum of Kshs 200,000/= is reasonable compensation to the respondent for the injuries.

33. The other aspects of the judgment were not challenged.

34. In the end, the appeal and the cross appeal partially succeeds. The judgment of the trial court on both liability and quantum is hereby set aside. In its place, the court substitutes an assessment of quantum for general damages for Kshs 200,000/= and liability at 80%:20% in favour of the respondent in the appeal.

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

36. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE…………………………………..……for the Appellant………………………………………..for the Respondent