[2024] KEHC 8763 (KLR)

Njoroge v Said (Civil Appeal 157A of 2020) [2024] KEHC 8763 (KLR) (Civ) (12 July 2024) (Judgment)

Neutral citation: [2024] KEHC 8763 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 157A of 2020

JN Njagi, J

July 12, 2024

Between

John Kinuthia Njoroge

Appellant

and

Marjorie Murigu Said

Respondent

(Being an appeal from the judgment and decree of Hon .B.J. Ofisi (Mrs), Resident Magistrate, in Nairobi MCC Civil Case No.7611 of 2004 delivered on 13/3/2020)

Judgment

1. The respondent herein brought suit against the appellant after she was injured in a road traffic accident while travelling as a passenger in a motor vehicle owned by the appellant and which at the time of the accident was being driven by the appellant. The respondent blamed the appellant for driving the motor vehicle recklessly as a result of which it collided with another motor vehicle whose driver died in hospital while undergoing treatment.

2. The appellant filed a defence and denied the claim. After a full hearing the trial court could not find evidence as to which of the two drivers was to blame for causing the accident. She consequently apportioned liability equally between the two drivers. She awarded the respondent ksh.3,500,000/= in general damages and Ksh.127,000/= in special damages. The appellant was aggrieved by the finding on liability and on amount of quantum on general and special damages and filed the instant appeal.

3. The grounds of appeal are that:a.That the trial Court erred in law and fact in failing to find and hold that the plaintiff failed to prove her case against the appellant to the required standard and more specifically the element of liability which was a critical factor;b.That the trial court erred in law and fact in failing to hold and find that the suit and evidence tendered did not disclose a reasonable cause of action against the appellant by virtue of the testimonies adduced;c.That the learned magistrate erred in law and fact in failing to consider the defendant's evidence on record and the witness submissions, the same having been admitted in the court file on 12th March 2020 and judgment delivered on 13th March 2020 and which judgment is devoid of the arguments made by the appellants;d.That the learned magistrate erred in law and fact by misdirecting herself on the wrong principles of law applicable in all the circumstances of the case and thereby failed to exercise her discretion judiciously and to find that the appellant was not to blame for the accident subject matter;(e)That the trial magistrate totally misconstrued the law and misdirected herself by awarding damages of up to Kshs. 3,500,000/= without any legal basis and even apportioning liability on the respondent who was a passenger in the car without legal basis;e.That the trial magistrate totally misconstrued the law and misdirected herself by awarding special damages of up to Kshs. 127,034/=, a sum that was not specifically proved as by law required; andf.That the trial magistrate erred in law by departing from the pleadings as filed, evidence tendered and documents as produced and filed to consider the issues as pleaded by the appellant and thereby arriving at a wrong decision entirely.

4. The appellant is in the appeal seeking that the appeal be allowed, that the judgment and decree of the trial court be set aside and that he be awarded costs.

5. The appeal was disposed of by way of written submissions.

Appellant’s submissions 6. On the trial court`s finding on liability, the appellant submitted that the respondent was unable to explain to the court how the accident occurred. It was submitted that he police abstract produced in court indicated that the matter was pending under investigation and as such no party was charged over the accident.

7. The appellant submitted that the police abstract was not produced in court and no police officer was called to prove how the accident occurred. Therefore, that the respondent did not prove her case to the required standard of a balance of probabilities. Counsel relied on the case of Jennifer Nyambura Kamau vs. Humphrey Nandi (2013) eKLR and Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & another (2015) eKLR where it was held that where it was necessary to call an expert witness, the evidential burden was on the plaintiff to call the witness.

8. The appellant submitted that he testified at the trial court that it is the driver of motor vehicle KAH 071S that charged at his car at high speed and crashed into his car. That it is the said driver who was to blame for causing the accident which fact was confirmed by a court inquest. It was submitted that the respondent ought to have sued the estate of the deceased driver and enjoin the estate in the suit which was not done. Therefore, that the trial court erred in apportioning liability in the matter. The appellant urged the court to set aside the lower court`s finding on liability and hold the deceased driver to have been solely liable for causing the accident.

9. On quantum, the appellant submitted that the respondent was last examined by Dr. Prof. Gakuo on the 2nd August 2004. That a period of 17 years had lapsed from the date of examination by Dr. Gakuo to the date the respondent testified in court. That the respondent did not allege that she had been receiving treatment and attending physiotherapy sessions during this period. Neither did she produce any documents to prove so. It was submitted that the respondent had recovered from the injuries.

10. The appellant submitted that an award of Ksh. 800,000/= would have been sufficient if the respondent had established her case. He relied on authorities set out later out later in this judgment.

11. On special damages, counsel contended that the respondent had been awarded damages that were over and above the receipts she had produced. He submitted that the amount awarded by the trial court of Ksh.127,034/= was not pleaded nor specifically proved. That no special damages should be awarded in the case but if the court is inclined to award the same, then it should be Ksh.107,034/=.

Respondent’s submissions 12. The respondent submitted through counsel that she had proved her case to the required standard. She contended that the appellant was solely to blame for the accident for careless and reckless driving.

13. It was submitted that the accident had occasioned the respondent grievous bodily harm and caused her a permanent disability of 60 %. That she was unconscious before being rushed to hospital. It was submitted that the award is commensurate to the injuries suffered by the respondent. Counsel for the respondent asked this court not to disturb the finding of the trial court.

Analysis and determination 14. This being a first appeal, this court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way. That was the pronouncement of the court in the case of Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR. The court held that a first appellate court must re-evaluate, re-assess and re-analyse the record and make its conclusions.

15. The appeal is on both liability and quantum. I will deal with the issues as hereunder.Liability

16. The appellant argues that it is the driver of the other vehicle who was to blame for causing the accident which was confirmed by a court inquest. He argued that he was not charged with any offence related to the accident and that the respondent did not call the police to shed light as to which driver was to blame for the accident. Further that the respondent should have sued the estate of the deceased driver and not him.

17. The respondent on the other hand maintained that it is the appellant who left his lane and veered into the lane of the other vehicle thereby causing the accident. The question then is as to who between the appellant and the respondent was telling the truth as to how the accident occurred

18. The trial magistrate in her judgment found that there was no sufficient evidence on which the court could determine as which of the two drivers was to blame for causing the accident. She said that the respondent did not avail a police officer and an eye witnesses to support her case. That the appellant on the other hand did not avail evidence to show that an inquest was held and he was absorbed of liability. The magistrate consequently held that both drivers were equally to blame for causing the accident.

19. I have reviewed the pleadings filed in the case and the evidence adduced before the lower court as to how the accident happened. Both parties herein adopted their witness statements as their evidence in the case. The respondent in her witness statement stated that the appellant herein negligently and recklessly drove, managed and /or controlled motor vehicle registration No.KAP 361D causing it to violently ram into motor vehicle registration No.KAH 071S. The appellant on the other hand stated in his witness statement that the driver of motor vehicle registration No.KAH 071S drove it negligently and carelessly and caused it to collide with his motor vehicle registration No.KAP 361D. In my view, the two statements were general statements that did not disclose how and in what manner the drivers were negligent. Though the respondent in her evidence in court said that the appellant left his lane and swerved into the path of the oncoming vehicle, the question is why she did not state that in her witness statement. This may therefore be something said as an afterthought.

20. The appellant on the other hand stated in his evidence in court that it is the other driver who was to blame for causing the accident. He did not state the wrongful act that the said driver did that makes him to blame for causing the accident. His advocate however made submissions that it is the other driver who charged at the appellant`s vehicle at high speed and caused the accident. This was not supported by evidence as no such evidence was adduced in court. Submissions, it has been held, do not amount to evidence – see Nancy Wambui Gatheru v Peter Wanjere Ngugi, Nairobi HCCC No. 36 of 1993. It is therefore my finding that neither the respondent nor the appellant demonstrated to the trial court as to which driver was to blame for causing the accident.

21. The appellant told the trial court that there was an inquest that had been held and the deceased driver was held liable for causing the accident. He however did not produce the proceedings and ruling of the inquest before the trial court. There was thus no evidence that the inquest ruled in favour of the respondent.

22. The appellant argued that it is the respondent who should have enjoined the estate of the other driver in the case. However, this is not the law. The law is that where a driver blames another driver who is not a party to the case for causing an accident, he is required to apply for third party proceedings against the other driver under the provisions of Order 1 rule 15 – 22 of Civil Procedure Rules, 2010. Since in this case it is the appellant who was blaming the other driver for causing the accident, it is him and not the respondent who should have sought to enjoin estate of the other driver in the suit. In the case of Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR, the Court held that;“In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.

23. In the case of Jemimmah Wambui Njoroge v Philip Mwangi (2020) eKLR where the defendant failed to take out third party proceedings against the defendant, it was held that:As failure to take out third party proceedings was not so done by the Defendant, he must bear the blame for the accident. He may perhaps later claim for the alleged third parties not joined subject to the limitation of actions. I compute liability at 100%.

24. The trial court in this case found the appellant 50% liable for causing the accident. The appellant never adduced evidence as to how the accident happened and did not enjoin a third party in the suit. The respondent has not appealed against the finding of the trial court on liability. The position of the law is that where the court is not in a position to determine as to which of the drivers was to blame for causing an accident, then liability should be apportioned equally between the two drivers. This was the position taken by the Court of Appeal in Hussein Omar Farar v Lento Agencies C.A Nairobi, Civil Appeal No.34/2005 [2006] eKLR where the court stated that-“In our view it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. 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.”

25. In view of my finding that the appellant did not adduce evidence as to how the accident happened, I find no reason to interfere with the finding of the trial court on liability. The finding on liability by the trial court is therefore upheld.

Quantum 26. The guiding principles under which an appellate court can interfere with an award of quantum of damages made by a subordinate court are well settled. In Butt vs. Khan [1981] KLR 349 at page 356 Law JA stated that:…an appellate court will not disturb an award of 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 a figure which was either inordinately high or low.

27. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

28. It is also a principal of law in assessing damages that comparable injuries must be compensated by comparable awards. The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR stated that:Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

29. The respondent herein was examined by Prof. Gakuu who prepared a medical report dated 16/1/2003. The report indicates that respondent sustained the following injuries:a.Crush fracture of the right femur with severe communication and numerous bone fragments;b.Fractured tibia condoles leg;c.Fractured pelvis schial tuberosity;d.Fracture right calcaneum;e.Loss of consciousness due to brain concussion;f.Multiple cut wounds on the face;g.Loosening of the teeth with breaking.

30. The report indicates that the respondent underwent plating of the right femur fracture with 20 hole L plate; T. plating of tibia condyle fracture; casting of the whole leg in a plaster cylinder and mobilization on elbow crutches non weight bearing. That the respondent was discharged from hospital after 18 days and was followed up with check-up and physiotherapy at Menelik Medical Centre. That at the time of examination on 16/1/2003, she complained of pains at the fracture site right thigh, painful right knee, stiff right knee, limping on right leg and painful right heel and numbness in the toes. On examination, the doctor found her with a stiff right knee with crepitus and range of movement limited to about 80 degrees. X-ray showed the metal plates and screws to be in situ in the femur and tibia. There was evidence of early posttraumatic osteoarthritis of the right knee joint. The doctor observed that the later was permanent and progressive that was expected to worsen with time. That the injuries were serious which had greatly affected the career of the respondent as a flight attendant. He assessed the degree of permanent incapacity at 60%.

31. The same doctor examined the respondent on 2nd August 2004 and found her to be disabled with shortening of the left leg, knee stiffness, and foot pains. He still assessed the degree of permanent disability at 60%.

32. The respondent gave her evidence in court on 6th November 2019. She told the court that at the time of the accident she was working with Kenya Airways as an air hostess. That after the accident, she was given light duties at the company offices. That she was in clutches from the year 2002 to the year 2008. That she had not recovered and she had to quit her job. That she has been attending physiotherapy sessions which she does up to date.

33. The trial magistrate in awarding the sum of Ksh. 3,500,000/= in general damages said that she had considered the authorities cited by counsels for the parties.

34. In this appeal the appellant argued that the award made by the trial magistrate was excessive. He urged the court to reduce the award Ksh.800,000/= and relied on the following cases: Zachary Kariithi v Jashon Otieno Ocholla (2016) eKLR where the respondent sustained chest pains, injuries to the waist, compound fractures of the right tibia/fibula, compound fracture of the left femur bone mid shaft, fracture of the right femur bone, fracture of the 3rd, 4th 5th ribs of the right side, injuries to the forehead, injuries to the hip joint, injuries to the big left toe. The court reduced an award of Ksh.2,000,000/= to Ksh.1,500,000/=.

Joyce Moraa Oyaro v Hussein Fairy ltd (2016) eKLR where the plaintiff sustained numerous soft tissue injuries and comminuted fractures of the right humerus and right leg leading to the amputation of the leg. The plaintiff was awarded Ksh.1,30,000/= in general damages.

Boniface Njiiru v Tohel Agencies and another NRB HCC No. 555 of 2007 (2011) eKLR where the plaintiff sustained a blunt head injury with loss of consciousness for 24 hours, loss of four upper incisor teeth, fracture of the shaft of the right femur and a compound fracture of the right tibia with soft tissue injuries and was awarded Ksh. 1,000,000/= in 2011.

Pamela Oyioma v Yess Holdings Ltd (2011) eKLR where an award Ksh. 900,000/- was made or a comminuted fracture of the right femur, compound fracture of the of the left tibia, soft tissue injuries of the right shoulder and multiple cuts wounds all over the body.

35. The respondent`s submissions did not cite any authority on quantum of damages.

36. I have considered the injuries sustained by the respondent. I find that the respondent suffered serious injuries that included four fractures that left her disabled with shortening of the left leg. She was in clutches for a period of about 6 years. She developed early posttraumatic osteoarthritis of the right knee. She has in total 60% bodily disability and she had to quit her job of a flight attendant due to the injuries.

37. I have considered the authorities cited by counsel for the appellant. None of those authorities had as serious injuries as those sustained by the respondent herein where there was a disability of 60%.

38. I have considered other authorities where comparative awards were made. In Sabina Nyakenya Mwanga v Patrick Kigro & another, Embu HCCC No 9 of 2012, the plaintiff sustained injuries which included fracture of the right upper arm (humerus), fracture of the distal femur, fracture of right knee, fracture of the pelvis and fracture of distal radial-wrist. General damages for pain, suffering and loss of amenities were assessed at Kshs3,000,000/=.

39. In James Njau Kariuki v Mary Goreti Wakwibubi & Joseph Wafula Ndieyira, Eldoret HCCC No 2 of 2005, the plaintiff sustained a dislocation of the left hip involving fracture of the femur, fracture of the femoral head, total replacement of the hip, laceration on the forehead of 7cm, cut wound over the right nostril, deep cut wound on the left knee, soft tissue injuries on the chest and loss of libido and inability to perform conjugal rights. The court awarded Kshs3,000,000/= in general damages for pain, suffering and loss of amenities.

40. In Irene Wambugi Nthiga v Stage Coach Bus Company Ltd, Embu HCCC No 1 of 2002, the plaintiff sustained injuries on her right leg toe, fractured pelvis, right hand, fracture at the right elbow, abdomen. The plaintiff was predisposed to post-traumatic arthritis which has already set in and also required a limb replacement of the knee. The court awarded Kshs 2,500,000/= in general damages for pain suffering and loss of amenities.

41. In Hussein Ali Shariff alias Hussein Ali v A L L (minor suing through F T L) [2018] eKLR, the court reduced an award of Ksh.3. 7 million to 2. 7 million where the plaintiff had sustained closed left humerus mid-shaft fracture, right clavicle medial end fracture, left calcaneal fracture, right superior and left inferior pelvic rami fracture and left fourth toe middle phalanx injury.

42. Considering that the injuries left the respondent herein with 60% disability and she had to quit her job of a flight attendant, I find an award of Ksh.3,000,000/= to be reasonable. I find the award of Ksh.3,500,000/= made by the trial court to have been on the higher side.

43. The trial magistrate awarded a sum of Ksh.127,034/= in special damages. The trial court stated that that was sum backed by receipts. The respondent submitted that the sum proved was Ksh.104,034/=. I find the award of Ksh.127,034/= was supported by receipts. I find no basis of interfering with the award.

44. The upshot is that the findings of the trial court on liability and special damages are upheld. However, the award on general damages in the sum of Ksh.3,500,000/= is set aside and substituted with a sum of Ks.3,000,000/=.

45. The respondent to have the costs of the appeal.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 12TH JULY 2024J. N. NJAGI..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:Miss Wangari HB for Mr Mwanzia for AppellantMiss Kamau HB for Mr. Swaka for RespondentCourt Assistant – Mokeira