[2022] KEHC 349 (KLR)

Nyaberi v Onyango & another (Civil Appeal 2 of 2020) [2022] KEHC 349 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 349 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 2 of 2020

JK Sergon, J

May 6, 2022

Between

Justry J Lumumba Nyaberi

Appellant

and

Eunice Aketch Onyango

1st Respondent

Dickson Ombati

2nd Respondent

(Being an appeal from the whole of the judgment and Order of the Honourable Chief Magistrate L. L Gicheha (Ms.) delivered on 6th December, 2019 in CMCC No.10388 of 1999)

Judgment

1. At the onset, the 1st respondent herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 19th March, 2001 pursuant to a road accident on 12th October 1998 along Waiyaki Way and sought for reliefs against the appellant and 2nd respondent in the nature of general and special damages plus costs of the suit and interest thereon.

2. The 1st respondent pleaded in his plaint that on or about October 12, 1998, that she was a fare paying passenger in the appellant’s Nissan driven by the 2nd respondent who, in the course of his employment and or agency with the appellant and with the appellant's authority, negligently drove, managed and or controlled that veered off the road and into a ditch, causing the 1st respondent to sustain serious bodily injuries.

3. The appellant filed its statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondent in the sum of Kshs.610, 011. 05/=.

4. The appellants being aggrieved preferred this appeal and put forward the following grounds:a.That the learned magistrate erred in law and in fact by finding that the appellant was liable for the accident.b.That the learned magistrate erred in law and in fact by finding that the 1st respondent was a passenger in motor vehicle KAH 663Y contrary to documentary evidence availed to the court.c.That the learned magistrate erred in law and in fact by holding that the 1st respondent had proved her case on a balance of probabilities.d.That the learned magistrate erred in law and in fact by holding that the 1st respondent suffered a fracture of the pelvis as a consequence of the alleged accident contrary to the evidence adduced during trial.e.That the learned magistrate erred in law and in fact by awarding the 1st respondent the sum of Kshs.610,011. 05/= on account of alleged accident and/or alleged injuries.f.That the learned magistrate erred in law and in fact by not properly reviewing the evidence placed on record by the parties and/or by overly favouring the evidence by the 1st respondent.g.That the learned magistrate erred in law and in fact by absolving the 1st respondent from any liability including any form of contributory negligence.h.That the learned magistrate erred in law and in fact and awarded excessive amounts of damages in the circumstances of the case.

5. Directions were given that the appeal be canvassed by way of written submissions. At the time of writing this judgment the appellant and 2nd respondent had not filed their submissions.

6. The 1st respondent in its submissions dated 3rd March 2022 gave brief background of the matter and submitted that she vehemently opposes this appeal and in doing so proceeded to argue the grounds set out in the Memorandum of Appeal.

7. On ground 1 and 3 the 1st respondent submitted that the 2nd respondent was carelessly driving the motor vehicle in the course of his employment and/or agency with the appellant, the appellant was vicariously liable for the 2nd respondent's actions, which resulted in the 1st respondent suffering severe bodily harm.

8. On this the 1st respondent relied on the case of Paul Muthui Mwavu v Whitestone (k)Ltd (2015) eKLR cited the case of Morgans v Launchbury & Others (1972) 2 ALL E R 607 in which it was stated that;-“In order to fix liability on the owner of a car for the negligence of a driver, it is necessary to show either that the driver was owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner…”

9. On ground 2, 4 and 6, the 1st respondent submitted that the appellant claimed that the 1st respondent was not a passenger in Motor Vehicle KAH 663 Y and that she did not suffer any injuries as a result of the collision, but she did not offer any evidence to the trial court to refute the 1st respondent's documentary evidence.

10. On grounds 5 and 8, the 1st respondent submitted The appellant claimed that the trial court erred in law and fact by awarding the respondent Kshs.610,011/=, which was excessive in the circumstances, but the 1st respondent believes that the court was reasonable in awarding her that amount because it was specifically proved and the trial court took into account the cost of inflation and economic times.

11. This is a first appeal and this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. It should also bear in mind that it did not see nor hear the witnesses and give an allowance for that. See: Selle v Associated Motor Boat Company Limited, [1968] EA 123.

12. I have considered the 1st respondent’s submissions and authorities cited on appeal. I have likewise re evaluated the material placed before the trial court. I find two issues falling for determination namely;a.Whether the appellant was 100% liable for the accident.b.The issue of quantum

13. It is not in dispute that an accident did occur on 12/10/98 involving motor vehicle KAH 663 and it was proved that the 1st respondent was a fare paying passenger in the motor vehicle registration number KAH 663Y .

14. At the trial court, PW2 acknowledged that the P3 form was filled out by a doctor, and that he had to rely on medical documentation to determine that the 1st respondent had really been sent from the police station where the accident report was lodged.

15. The 1st respondent being the a passenger in the motor vehicle, she could not reasonably foresee the accident because she was not in control of the vehicle; therefore, there can be no claim of contributory negligence on her part, and the appellant did not present any evidence to the trial court to attribute contributory negligence to the 1st respondent.

16. The 1st respondent's evidence is that the driver drove at a high speed and lost control of the car was not rebutted, and the fact that the driver was charged with dangerous driving corroborates this.

17. After considering the evidence, the trial court was satisfied that the 1st appellant was wholly liable for causing the accident at 100% and I am in agreement with the trial court’s decision on the same.

18. On the issue of quantum, the 1st respondent had a fractured pelvis and a broken molar tooth, according to the doctor's medical report, but the appellant contested the injuries as stated in the discharge summary, but the doctor validated the fracture from the X-ray.

19. It is worth noting that the appellant did not present any evidence before the trial court to controvert the 1st respondent’s documentary evidence including the police abstract that the appellant alleged was manufactured.

20. At the lower court, on the issue of quantum, the 1st respondent in the trial court had proposed the sum of Kshs.1,500,000/= while the appellant had proposed Kshs 300,000/=.The trial magistrate awarded Kshs.600,000/=

21. The assessment of General damages is discretionary and in the case of Butt v Khan [1981] KLR 349 Law, JA held as follows:“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 at a figure which was either inordinately high or low.”

22. Also, the Court of Appeal in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR similarly held:“As a general principle, assessment of damages lies in the discretion of the trial court and 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 at a figure which was either inordinately high or low. The Court must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, 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 the damage

23. After careful review of all the evidence presented to this court as well as the authorities, I believe the award for damages of Kshs.610,011/= and Kshs.10,000/= for witness expenses, is justified and reasonable in light of the facts and the rate of inflation.

24. Accordingly, I find no basis to interfere with the trial Magistrate’s decision on being satisfied that the 1st respondent suffered loss as a result of the accident and established a prima facie case against the appellant and the 2nd respondent on a balance of probabilities and awarding them the damages of Kshs.620,011/= which is reasonable in my view.

25. The upshot is that the awards made by the trial magistrate should not be disturbed.

26. The Appeal has no merit, the same is dismissed with costs to the 1st respondent.

DATED SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. ..................J. K. SERGONJUDGEIn the presence of:……………………………… for the Appellant……………………………… for the Respondent