[2023] KEHC 25327 (KLR)

Nzaka v Odipo & another (Civil Appeal 19 of 2022) [2023] KEHC 25327 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25327 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 19 of 2022

DKN Magare, J

November 7, 2023

Between

Peris Jumwa Nzaka

Appellant

and

George Odipo

1st Respondent

Maya Enterprises Limited

2nd Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. Stephen Ngii – PM dated 9/3/2022 arising from Mariakani SPMCC No. 243 of 2018.

2. The Appeal is on quantum.

3. The Memorandum of Appeal raises only one, that is, the quantum of damages

4. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time.

5. The Plaint dated 6th June 2018 claimed damages for an accident on 14/12/2017 involving Motorcycle Registration No KMDU 998X on which the Appellant was a pillion passenger and Motor Vehicle Registration No KCD 361C owned by the 2nd Respondent. The Plaintiff set forth particulars of negligence for each of the vehicles.

6. The Plaintiff pleaded Ksh. 6,030/= as Special Damages and injuries as follows: comminuted fractures of the right tibia and fibula bornes.to the back and bruises on the left knee.

7. The Respondents entered appearance and filed Defence on 19th September 2018 denying the particulars of negligence and injuries pleaded in the Plaint.

8. The Trial Court heard the parties and proceeded to render judgement on 9th March 2022. In the Judgement, the Court found 100% liability against the 2nd Defendant and dismissed the case against the 1st Defendant. The court also awarded the Plaintiff Kshs. 250,000/- in General Damages and Special Damages of Kshs. 2,000/-.

9. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal.

The Appellants’ case 10. The Appellants called PW1, Peris Jumwa Nzara. She relied on her witness statement and documents dated 6th June 2018 in her testimony in chief. It was her testimony that she was a pillion passenger on the motorcycle when the 2nd Defendant’s motor vehicle knocked them. It was her case that the rider the motorcycle was riding carefully and it is the motor vehicle that caused the accident.

11. She testified that she suffered injuries and was treated per the produced medical documents.

12. PW2, PC Ann Wambui testified relying on his abstract from the police. He testified that the driver of the Motor vehicle was to blamed and was even charged with careless driving, convicted and fined Kshs. 10,000/=.

13. It was his case that the motor vehicle abruptly turned to its left and knocked the motorcycle. On cross examination, it was his case that the he was not the investigating officer and did not visit the scene.

14. PW3, Dr. Adede testified relying on his medical report dated 15th March 2018.

15. He stated that the Plaintiff suffered fracture of the tibia and fibula bones and inflicting 7% disability.

The Respondent’s Case 16. The Respondent called DW1, Mbui Mwatela Lewa who relied on his witness statement to testify that he had indicated to signify left turn but the motorcycle rider still overtook him on the left side thus causing the accident.

17. DW1 testified that it is the Plaintiff who caused the accident and that he only admitted to the charge of dangerous driving so for convenience so that he pays the fine and goes his way and also so that the vehicle insurance cover could apply.

18. DW2, Dr. Udayan Seth testified relying on his medical report dated 18th January 2018 that the Plaintiff suffered multiple fractures of right tibia borne. He testified that there was no stiffness and deformity. He also disagreed with 7% disability.

Analysis 19. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy.

20. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

21. In the case of Selle & Another v Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

22. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

23. In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial 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 on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

24. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another v Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

25. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

26. In the case of Peters v Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

27. The issue in this case is whether the court should set aside the Judgement and Decree of the Trial Court.

Quantum 28. The Appellant submitted that an award of Kshs. 250,000/- for general damages was inordinately low. They proposed an award of Ksh. 1,000,000/= as commensurate compensation in the circumstances of this case. The Respondents on the other hand proposed a sum of Ksh. 300,000/=. It is clear that both parties agree that the award is inordinately low but do not agree on the amount.

29. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure.

30. Damages must be commensurate with similar injuries.

31. I note that the Respondent suffered a fracture of the fibia and fibula. This was correlated by the evidence of both medical doctors called by the Appellant and the Respondents. The only disagreement was on the percentage of disability.

32. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held inJob Obanda v Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.

33. Regarding the question of experts, the courts have held the view that exert evidence must be considered alongside other evidence. n Parvin Singh Dhalay v Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo v George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-“The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

34. There is no dispute that the Respondent suffered a comminuted fracture of the tibia and fibula.

35. The Trial Court did not cite comparable authorities in its determination. This was in error. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal inOdinga Jacktone OumavMoureen Achieng Odera[2016] eKLR stated that “comparable injuries should attract comparable awards”

36. The principle on the award of damages is settled. In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another[2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high.

37. In EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School[2018] eKLR the Plaintiff sustained a fracture of the right mid shaft femur with tibia fibular fracture and facial injuries with bruises. The court upheld the award of Kshs. 800,000/= in general damages in 2018.

38. In Justine Daniel Owino & Another v Elizabeth Atieno [2020] eKLR, the Plaintiff suffered compound fracture of the tibia and fibula, deep cut on the right leg and soft tissue injuries. The trial court awarded Ksh 600,000/=, but on appeal the same was reduced to Ksh 400,000/=.

39. In the case of Francis Ndungu Wambui & 2 others v VK (a minor suing through next friend and mother MCWK) [2019] eKLR, justice F. Muchemi found 1,000,000/= not excessive for a claimant who suffered soft tissue injuries to the upper limbs, compound fracture of distal tibia fibula shaft as well as loss of consciousness.

40. In the case ofJoseph Mwangi Thuita v Joyce Mwole (2018) eKLR the plaintiff suffered injuries of fractured right femur, compound fracture (r) tibia and fibula, shortening right led and episodic pain (r) thigh with inability to walk without support and the court awarded Kshs. 700,000 as general damages.b)Pauline Gesare Onami v Samuel Changamure & Another (2017) eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs. 600,000

41. An award of Ksh. 250,000/= for a comminuted fracture is not only low but inordinately low. It amounts to an erroneous estimate of damages.

42. In the Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Servcie v A.M Lubia & Another1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.

43. The court has no difficulties setting the award aside. In lieu thereof, the court substitutes with an award of Ksh. 700,000 being the most appropriate in the circumstances. I note the differences in the two doctors at 7% permanent disability is consistent with the injuries suffered.

Determination 44. In the upshot, I make the following orders: -a.The Judgement on quantum is set aside and in lieu there I substitute with a sum of Kshs. 700,000/= in general damages.b.The appellant shall accordingly have commensurate costs in the lower courtc.The appellant to have costs of Kshs. 108,000/= for the Appeal.

DELIVERED, DATED AND SIGNED AT VIRTUALLY ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr Adede for the RespondentNo appearance for AppellantCourt Assistant- Brian