[2023] KEHC 26375 (KLR)

Nyakwaka v Nyakabete (Civil Appeal E373 of 2020) [2023] KEHC 26375 (KLR) (Civ) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26375 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E373 of 2020

AN Ongeri, J

December 7, 2023

Between

Paul Odhiambo Nyakwaka

Appellant

and

Rose Nyakabete

Respondent

(Being an appeal from the judgment and decree of Hon. T. W. Nchoe (RM) in Milimani CMCC No. 7287 of 2009 delivered on 11/2/2013)

Judgment

1. The appellant was the plaintiff in Milimani CMCC No. 7287 of 2009 where he sued the respondent seeking general damages for pain and suffering and special damages for injuries sustained on 10/4/2009 when he was knocked by motor vehicle registration no. KAR 676C which was being driven by the respondent along Langata road.

2. The appellant was cycling along Langata road when he was knocked by the motor vehicle driven by the respondent from the rear.

3. The appellant said his bicycle was completely damaged. The respondent took him to Kenyatta National Hospital.

4. The respondent said it was the appellant who knocked her vehicle and broke the right indicator which got broken.

5. The trial court found that the appellant failed to prove his case to the required standard and further that the appellant did not have a helmet.

6. The appellant’s case was dismissed and each party ordered to bear their own costs.

7. The appellant has appealed to this court on the following grounds;i.The learned trial magistrate erred both in law and fact by failing to consider the appellants’ documentary and oral evidence and further erred in finding against the appellant despite the weight of evidence against the respondent.ii.The honourable magistrate erred both in law and in fact by failing to take into account the whole of the evidence tendered by the appellant’s witnesses.iii.The learned trial magistrate erred in law by failing to properly evaluate the evidence on record, in particular the plaintiff’s’ exhibits and the defendant’s evidence and finding against the appellant.iv.The honourable magistrate erred both in law and in fact by dismissing the suit in its entirety.v.The honourable magistrate erred both in law and in fact by disregarding the authorities relied upon by the appellant.vi.The learned trial magistrate erred in law in finding in favour of the respondent and awarding interest and costs to the respondent.vii.The learned trial magistrate generally misdirected himself and failed to give due and proper consideration to submissions of counsel for the appellants.

8. The parties filed written submissions as follows; the appellant submitted that he proved his case on a balance of probabilities that the Respondent through her negligence and by driving without due care of him as a road user, was liable for the injuries he sustained.

9. It was the Appellant's testimony that as he was heading to work on 10/4/2009 on his bicycle, the Respondent's vehicle hit him from the rear causing an accident that led to him sustaining severe bodily injuries. The Police Abstract confirms the occurrence of the accident. The Respondent should not have been completely absolved from liability by the Trial Court because as a driver of a motorized vehicle, the Respondent had a higher duty to exercise care and attention so as to avoid injuring other road users.

10. The appellant argued that he should have been awarded both general and special damages. The appellant was examined by Dr. Mwaura whose Medical Report dated 20/1/2010 confirmed his injuries. At the time of the hearing the Appellant complained of pain in the lumbar spinal region and persistent headaches. In Dr. Mwaura's prognosis, the Appellant sustained severe internal and soft tissue injuries involving blunt traumatic injuries of the head, spine, both knee joints, right shoulder and right foot, which injuries had healed leaving residual, persistent headache which may in future complicate to post traumatic epilepsy that would make the Appellant permanently disabled and life dependent on anti-convulsion drugs.

11. The appellant proposed Kshs. 350,000 as general damages and in support cited Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR where the Respondent, who was the Plaintiff in the trial Court suffered multiple soft tissue injuries to wit: blunt injury to the chest, bruises of the lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee. The Appellate Court, while upholding the Trial Court's award of general damages of Kshs. 350,000 stated that the award was fair bearing in mind the inflation tendencies that had affected the economy and that it struck a balance between the parties' proposed amounts.

12. On special damages the appellant submitted that he produced receipts in the trial court that amounted to Kshs. 10,430.

13. The respondent on the other hand submitted that the trial court properly evaluated all the evidence tendered om the record and arrived at a correct decision. The evidence that was produced by the respondent was more compelling, factual and consistent. The court in its judgment noted that 'DWI testified that she was hit from the right side by the appellant a cyclist and her evidence was corroborated by DW2. They were on their rightful lane. The evidence that their vehicle was damaged on the front side near the indicators was unrebutted. It was also noted that on cross examination that the appellant admitted that he had no helmet.

14. The police abstract tendered as evidence stated that the respondent was not blamed for the accident or found liable for committing any traffic offence in relation to the accident.

15. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the finding of the trial court. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

16. The issues for determination in this appeal are as follows:i.Whether the appellant proved his case to the required standard.ii.Whether the trial court was right in dismissing the appellant’s case.

17. On the issue as to whether the appellant proved its case, I find that the evidence before the trial court was the word of the appellant against that of the respondent.

18. I find that the Police Abstract confirmed the occurrence of the accident.

19. In the circumstances the Respondent should not have been completely absolved from liability by the Trial Court.

20. I find that the trial court ought to have apportioned liability at 50:50%.

21. On the issue as to whether the trial court was right in dismissing the appellant’s case, I find that the answer is in the negative.

22. The reason being that the trial court did not give reasons for relying on the testimony of the respondent while dismissing that of the appellant.

23. I set aside the trial court’s dismissal and I apportion liability at 50:50%.

24. I direct the parties to file submissions to enable this court to assess damages.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. .......................................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent