[2023] KEHC 20392 (KLR)

Nyamwaya v Obwayo (Civil Appeal E068 of 2021) [2023] KEHC 20392 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 20392 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E068 of 2021

WA Okwany, J

June 22, 2023

Between

Anthony Nyamwaya

Appellant

and

Grace Kemuma Obwayo

Respondent

(Being an appeal from the Judgment and Decree of Hon. M. O. Wambani, Chief Magistrate dated & delivered on the 17{{^th}} day of August 2021 in the original Nyamira CMCC No. 182 of 2016)

Judgment

1. The Respondent herein, who was the Plaintiff in the trial court, filed the suit against the Appellant vide the Plaint dated 25th September 2016 seeking the following reliefs: -a.General Damages for pain and suffering.b.Special Damages for Kshs. 6,500/=c.Costs of the suitd.Interests on (a), (b) and (c) above.

2. The Respondent’s case was that she was on 2nd August 2016 travelling aboard the Appellant’s motor vehicle registration No. KAS 981N along Kisii-Nyamira road when at Ting’a area the said vehicle collided with another motor vehicle registration No. UAM 175B. The Respondent stated that she sustained serious injuries in the said accident. She blamed the Appellant’s driver/agent for the said accident.

3. The Appellant filed a statement of Defence dated 10th April 2017 wherein he denied the allegations made in the Plaint. The Appellant blamed the driver of the other motor vehicle for the said accident. The

4. The trial court heard the case in which both parties tendered the evidence of their respective witnesses and at the close of the case entered judgment in favour of the Plaintiff/Respondent as follows:Liability at 100% against the DefendantGeneral Damages – Kshs. 350,000/=Special Damages – Kshs. 6,600/=Costs of the suit and interest.

5. Aggrieved by the said decision, the Appellant instituted the present appeal through the Memorandum of Appeal dated 25th August 2021 and subsequently Amended on 17th June 2022. He listed the following grounds of appeal: -1. The Learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Defendant without considering the circumstances of the case.

2. The Learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Defendant whereas the Police Abstract produced as Plaintiff exhibit indicated that the matter was still pending investigation.

3. The Learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Defendant whereas PW3 and DW1 gave evidence that the third-party motor vehicle was to blame for the accident.

4. The Learned Trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 350,000/= that was overly in excess in the circumstances of the case.

5. The Learned Trial Magistrate erred in law and in fact in failing to pay regard to the decision filed alongside the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.

6. The Learned Trial Magistrate’s exercise of discretion in the assessment of quantum was injudicious.

6. The appeal was canvassed by way of written submissions which I have considered.

7. The first Appellate court is duty-bound to evaluate and analyze the entire evidence from a trial court in order to arrive at its own independent findings. The Court of Appeal restated this principle in Peter M. Kariuki vs. Attorney General [2014] eKLR wherein it was held that: -“We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.

8. The Respondent testified and produced exhibits, to wit, treatment documents in support of her case. PW2, No. 511024 PC Samwel Opiyo’s evidence in CMCC No. 206/2016 was adopted in the present case. He produced the Police Abstract P.Exh 3.

9. The Appellant’s witness No. 65548. Corporal Albert Micha (DW1) confirmed that the accident involving the said vehicles occurred but added that he did not know the circumstance under which the said accident happened as he was not the Investigating Officer.

Analysis and Determination 10. I have considered the Record of Appeal and the parties’ written submissions. The issues for determination revolve around the twin issues of liability and quantum, and whether the trial court arrived at the correct finding on the said issues.

11. It is trite that the standard of proof in civil matters is on a balance of probabilities. This standard was discussed in Kanyangu Njogu vs. Daniel Kimani Maingi (2001) eKLR where it was held that when the court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to show that one probability was more probable than the other. Similarly, in Siraj Din vs. Ali Mohamed Khan (1957) EA 25, it was held that:-“The quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour ofone party or the other …..”

12. It was the Appellant’s case that the evidence of DW1 demonstrated that the driver of the third-party motor vehicle was to blame for the accident. I note that, at the trial, the Appellant’s Counsel made an oral Application for leave to institute third-party proceedings in order to enjoin the owner of the other motor vehicle that allegedly collided with the Appellant’s vehicle. The said Application was allowed despite objections raised by the Respondent. It is however noteworthy, from the proceedings, that the alleged third party does not feature anywhere in the case. It is not clear to this Court if the said third party was served with the Notice to institute third party proceedings or not. It is however apparent that the Appellant herein remained the sole defendant throughout the trial.

13. In light of the above position, I find that it was not possible for the trial court to make a determination on liability with respect to a party who was not part of the proceedings. In essence, it behoved the Appellant to enjoin the third party to the suit. In the absence of the third party to whom liability could have been apportioned, if find that the trial court could only consider the case as between of the parties before it.

14. On another score, it is trite that lawful fare-paying passenger cannot be expected to be liable for an accident that results from the actions or omissions of a driver. It was therefore an exercise in futility for the Appellant to seek a different finding on liability when he was the only defendant enjoined in the suit before the trial court. Njagi J. in Paskalia Abuko Shibero vs. George Onyango Orodi [2020] eKLR held at paragraph 24 thus: -“24. The appellant was a pillion passenger. A pillion passenger cannot be held liable for the causation of an accident….”

15. My finding is that the Respondent could not be held liable for the accident and that liability squarely rested on the driver of the motor vehicle registration No. KAS 981. I uphold the finding of the trial court on liability.

16. On quantum, I find guidance in Gicheru vs. Morton and Another (2005) 2 KLR 333 wherein it was held: -“In order to justify reversing the trial judge on the of the amount of damages it was generally necessary that the Court of Appeal should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the Appellant was entitled.”

17. In Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko [2006] eKLR the court held as follows: -“It is generally accepted by Courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated H. West & Son Ltd vs. Shephard [1964] AC 326 at page 353- ‘The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an Appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”

18. The Respondent outlined the injuries that she suffered in the accident at paragraph 5 of the Plaint as follows: -1. Cut wound on the scalp

2. Bruises on the forehead

3. Loose one lower right incisor tooth

4. Contusion on the anterior chest waste

5. Bruises on the right hand

6. Bruises on the left hand

7. Cut wound the right shoulder

8. Bruises on the right leg

9. Bruises on the left leg

10. Superficial wound on the right foot

11. Superficial wound on the left foot.

19. The Respondent produced, in evidence, the Treatment Sheet (P. Exh 1), the P3 Form (P. Exh2) and the Medical Report (P.Exh4) which I have perused and I note that they confirm the Respondent’s said injuries. The Appellant did not controvert the injuries which, when considered alongside similar past cases, serve as a reference point for the Court in making an award for general damages.

20. It cannot be gainsaid that the court exercises it discretionary powers when awarding general damage which power must be exercised judiciously based on sound legal principles while taking into account similar past decisions. In this regard, it is to be noted that no two injuries can be similar but the court must make comparisons with cases where the injuries sustained by a claimant are as nearest as possible to the past cases. In Odinga Jacktone Ouma vs. Moureen Achieng Odera [2016] eKLR stated that: -“Comparable injuries should attract comparable awards.”

21. A court of law must also ensure fairness in awarding damages and must guard against unjustly enriching a claimant. This is the position that was taken in Kim Pho Choo vs. Camden & Islingtom Area Health Authority (1979) I, Aller 332 cited in the case of Nancy Oseko vs. Board of Governors Masai Girls’ High School [2011] eKLR, the court stated:-“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant.”

22. I have taken the liberty to compare the Respondent’s injuries with the injuries of the claimants in cases of a similar nature as follows: -a.HB (minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR where Nyakundi J. upheld the lower court award of Kshs. 60,000/= for blunt injury to the head, neck, thorax, abdomen and limbs.b.Ephraim Wagura Muthui 2 others vs. Toyota Kenya Limited & 2 others [2019] eKLR where Majanja J. set aside the lower court award of Kshs. 55,000/= for cut wounds on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/=.c.Nyambati Nyaswabu Erick vs. Toyota Kenya Limited & 2 others [2019] eKLR where Majanja J. set aside an award of Kshs. 55,000/= for a deep cut on the scalp extending to the maxillary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and substituted it with one of Kshs. 90,000/=.d.Francis Omari Ogaro vs. JAO (minor suing through next friend and father GOD [2021] eKLR where the Respondent suffered multiple cut wounds on the right lower limb; bruises on the right lower limb, elbows, right iliac region, the frontal and temporal regions; lacerations on the frontal region; cut wounds on the left iliac region, the frontal region and the temporal region; and blunt trauma to the abdomen. Maina J. set aside the award of Kshs. 230,000/= and substituted with one for Kshs. 180,000/=.

23. The Appellant proposed an award of Kshs. 80,000/= as fair compensation in damages while the Respondent urged the Court to uphold the trial court’s award. I have considered the above cited cases and the period when they were determined. I note that the awards range from Kshs. 50,000/= to Kshs. 180,000/= depending on the gravity of the injuries. My finding is that, in the circumstances of this case, an award of Kshs. 350,000/= general damages is on the higher side. I find that an award of Kshs. 180,000/= will be adequate compensation for the Respondent’s injuries.

24. The Respondent pleaded Special Damages in the sum of Kshs. 6,600/=. I have perused the receipts produced in evidence for the Medical Report (P.Exh5) together with two other receipts for treatment in the total sum of Kshs. 100/=. It is my finding that the Respondent specifically pleaded and proved Special damages. I uphold the award the trial court’s award under this head.

25. In the final analysis, I find that the appeal is merited, albeit partly, to the extent of quantum. I uphold the findings on liability and special damages. I set aside the award of general damages and substitute it with an award of Kshs. 180,000 and make final orders in favour of the respondent as follows:a.Liability at 100% against the Appellantb.General Damages – Kshs. 180,000/=c.Special Damages – Kshs 6,600/=d.Interest on b) and c) hereinabove at court rates from the date of judgment before the trial court.e.Each party shall bear its own costs in the appeal.

26. It is so ordered. I mark this file as closed.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 22NDDAY OF JUNE 2023. W. A. OKWANYJUDGE