[2023] KEHC 27564 (KLR)

Nzombe & another v Chenje (Civil Appeal 78 of 2022) [2023] KEHC 27564 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27564 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 78 of 2022

F Wangari, J

November 17, 2023

Between

Joel Kitavi Nzombe

1st Appellant

Judy Nzilani Nzau

2nd Appellant

and

Amon Mwatoto Chenje

Respondent

(Being an Appeal against the whole of the Judgement of Honourable D.O. Mbeja - PM dated and delivered on 13th May, 2022 in Mombasa SRMCC No. 1068 of 2020, Amon Mwatoto Chenje v Joel Kitavi Nzombe & Judy Nziilani Nzau)

Judgment

1. This is an appeal from the judgement of the Learned Principal Magistrate Hon. D.O. Mbeja in Mombasa SRMCC No. 1068 of 2020 given on 13th May, 2022.

2. The Appellant raised twelve (12) grounds of appeal which were well enumerated in the memorandum of appeal dated 3rd June, 2022 and filed on even date. Among the grounds were that the Learned Magistrate erred in law and in fact in failing to dismiss the Plaintiff’s case on liability considering that the Plaintiff/Respondent was blamed for the accident as proved by the police abstract issued top him. Another ground of dissatisfaction was that the Learned Magistrate erred in law and in fact in entering liability against the Defendants/Appellants at 100% when there was no basis for such a finding.

3. I have only reproduced just a few of the grounds of appeal as I do not think I need to rehash the grounds as set out save to state that I have considered each of the grounds upon which the Trial Court’s judgement is being impeached and I shall give due regard in the court’s determination of the appeal one way or the other.

4. The Appellant thus prayed that appeal be allowed and that this court proceed to set aside the judgement the decision of the Trial Magistrate delivered on 13th May, 2022. It was also prayed that the court does find that the Plaintiff/Respondent had not proved his case against the Appellants and thus the same be dismissed with costs. It was lastly prayed that the Appellants be awarded costs of the appeal and in the court below.

5. 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.

6. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd [1968] EA 123 and Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the 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…”

7. In Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022) (Ruling), Justice R. E. Aburili, J. held as follows;In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that: “[A]n 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 allowances in this respect”

8. I shall not reproduce the parties’ pleadings before the Trial Court as they already form part of the record suffice to summarize the genesis of the claim. As per the plaint dated 1st September, 2020 and filed on 16th September, 2020, the claim arose from a road traffic accident that occurred on 15th December, 2019 along Airport Road near Bomu corner involving the Appellants’ motor vehicle and the Respondent who was a pedal cyclist.

9. As a result of the accident, the Respondent sustained injuries which he thus sought to claim damages. The claim was strenuously opposed and instead, the Appellants shifted the blame upon the Respondent. The matter proceeded to full trial and judgement was entered in favour of the Respondent against the Appellants. General damages was assessed at Kshs. 1,000,000/= while special damages was assessed at Kshs. 6,200/=. The award was to attract costs of the suit and interest at court rates from the date of filing suit. It is this decision that precipitated the present appeal.

Summary of the Respondent’s case 10. Dr. Ajoni Adede testified as PW1. He prepared a medical report dated 30/1/2020. He confirmed that his findings and conclusions were contained in the said report. He confirmed being paid a sum of Kshs. 2,000/= to prepare the report and Kshs. 5,000/= as his court attendance fee. He produced the report and the receipts as exhibits. On cross examination, he confirmed that the Respondent suffered simple head fracture which would heal within two (2) years. When referred to a report by one Dr. Udayan Sheth, he stated that he held a different opinion. On re-exam, his stated that the 5% partial disability was due to facial scars and that the weak fracture part.

11. PC Amani Swaleh from Changamwe Police Station was PW2. He was in court on behalf of the investigating officer who was away on leave. He stated that an accident occurred on 15/12/2019 involving motor vehicle KCW 609A driven by the 1st Appellant and the Respondent cyclist. He stated that the motor vehicle hit the bicycle’s tyre when the Respondent was standing on the road holding his bicycle. He fell on the road and sustained injuries. Matter was reported at Changamwe Police Station and the Respondent was taken to hospital. According to this witness, the Respondent was blamed for the accident. On sketch plan, he confirmed that none was in the police file. On the scene, he confirmed that he knew it well and that it was a built-up area. He produced the abstract and the P3 form.

12. On cross examination, he confirmed that he did not participate in the investigations of the accident. He confirmed not to have the occurrence book. The pedal cyclist was blamed by the investigating officer. Though he confirmed that the Respondent recorded his statement, it was not dated while the 1st Appellant’s was dated. He also confirmed that the police abstract was filled and issued after the 1st Appellant had already recorded his statement. Asked if the Respondent was joining the highway, he stated that the Respondent ought to have given way to the motor vehicle already on the highway. He maintained that the Respondent was to blame for the accident. On re-exam, he stated that there were documents not in the police file.

13. PW3 was the Respondent. He adopted his witness statement as his testimony. He stated that he was pushing a bicycle in a pavement along the road when the Appellants’ motor vehicle knocked him. Due to the injuries, he was taken to Bomu and then Coast Provincial General Hospital. He stated that he met his medical expenses. He was still experiencing pain and that he was not working. He recorded his statement on 27/1/2020 and was issued with police abstract on the same day. He added that though police recorded his statement, they failed to conduct investigations. He denied that he was riding the bicycle. Having produced his documents, he prayed for damages as pleaded.

14. On cross examination, he confirmed that he had crossed the road from left to right and that he was on the right-side pavement. He stated that the 1st Appellant was from the Airport heading to Changamwe. Though he had no helmet, he had a reflector. He confirmed that the helmet would have protected him. He was a long-time cyclist thus he was aware of the traffic rules. He confirmed seeing the vehicle before it hit him. He was hit from behind. Referred to the medical report from Bomu, he confirmed that the report noted that he was hypertensive on medication. He equally confirmed that the good Samaritans who took him to hospital gave a history that he was riding the bicycle. He confirmed that he was not admitted though it took him to heal. He added that he was no longer on medication. On re-exam, he stated that he neither participated in making of the report by Bomu nor visited the scene with the investigating officer.

15. Cosmas Nyamai Songo was PW4. He adopted his witness statement as his testimony. He stated that on the material day, the Respondent had crossed the road and while on the 2nd pavement, a motor vehicle from the airport hit him. He was among those who took the Respondent to Bomu Hospital. He confirmed that there were no police at the scene. He blamed the motor vehicle’s driver for the reason that he lost control. He confirmed that the Respondent was injured following the accident.

16. On cross examination, he confirmed that the Respondent was pushing the bicycle and that the motor vehicle was from the airport direction. He reiterated that he took the Respondent to hospital using other vehicles. He confirmed that the Respondent was wearing normal clothes. He never recorded a statement at the police station. On re-exam, he confirmed that he never participated in writing the report at Bomu Hospital. That marked the close of the Respondent’s case.

Summary of the Appellants’ Case 17. Joel Kitavi Nzombe testified as DW1. He adopted his witness statement as his testimony. He stated that police investigated the case and they blamed the pedal cyclist for the accident. He confirmed that the cyclist was cycling when the accident occurred.

18. On cross examination, he confirmed that he did not bring his driving licence to court. He stated that it is the cyclist that hit him though he did not claim any money from the Respondent. He did not have an investigation report. He affirmed his knowledge of the road having used it before. He stated that the accident was abrupt from the left side and that the vehicle was hit from the front side. He confirmed that the Respondent had placed himself on the road already. He reiterated that it is the Respondent that hit him. He confirmed that the accident occurred at a residential area where people are expected to use between 40 and 60 kph. He added that he was using moderate speed. He confirmed seeing the Respondent but that he never avoided him. He equally confirmed that there are people who witnessed the accident. He concluded that it was 6pm and he was able to see but there was no time to hoot.

19. On re-exam, he stated that it was not good to use money thus no need for an assessment report. He confirmed that he was not charged with a traffic offence. He stated that the front left side of the car was hit and that the cyclist joined the road from the left side. Since he was on the highway, he had the right of way. Though there was mention of a medical report, it appeared that the same was not produced. That marked the close of the defence case.

20. When the appeal came before this court, directions were taken that the same be canvassed by way of written submissions. Both parties duly complied by filing detailed submissions and cited various authorities in support of their rival positions. The Appellant’s submissions are dated 16th June, 2023 while the Respondents submissions are dated 29th June, 2023.

Appellants’ Submissions 21. The Appellants submitted that grounds 1 to 10 were related in that they were all addressing the issue of liability. The Appellants laid a lot of emphasis on the police abstract which blamed the pedal cyclist. The Appellants equally took issue with the Trial Court’s comments at page 127 of the Record of Appeal. It was submitted that the Trial Court’s comments was a blanket condemnation for all motorists yet there are those who are careful, competent and law abiding drivers and that accidents can be caused by careless pedal cyclists or other road users who fail to obey the rules of the Highway Code. On this limb, the Trial Court was said to have misdirected itself totally.

22. Further, the Trial Court’s holding that the 1st Appellant was to blame for the accident because he ought to have taken reasonable measures to avoid the accident by slowing down, the Appellants took issue that despite the fact that the 1st Appellant had stated that the Respondent had appeared abruptly, no blame had been apportioned against it. The consistency of pleadings was equally questioned. On this limb, the Appellants submitted that the Respondent had pleaded that he was pedal cycling but the version changed on trial. It was submitted that PW4 contradicted the Respondent’s evidence on the issue of whether he had crossed the road or not.

23. The Appellants submitted that the truth of how the accident occurred was as captured in the history of the treatment note from Bomu Hospital. Lastly, on liability, it was submitted that the Trial Court failed to consider their submissions. They cited various authorities among them the Court of Appeal’s in Joyce Gathoni Wathena & Another v Mbugua David & Another [2020] eKLR which they felt the Trial Court failed to consider. According to the Appellants, these decisions fortified their position that where the Plaintiff is blamed, his case ought to fail.

24. On quantum, the Appellants submitted that the award of Kshs. 1,000,000/= was inordinately high considering that the fracture suffered by the Appellant was a simple one. It had been treated without hospitalization and had recovered well. The Appellants proposed a sum of Kshs. 400,000/= and for this proposition, they placed reliance on the case of G.A (Minor) v Paul Muthiku [2020] eKLR.

25. Lastly, on interest from the date of filing suit, it was submitted that the Trial Court erred in law and in fact in awarding the Respondent interest from the date of filing suit. The Appellant contended that the Respondent’s claim was not a liquidated one to deserve such an order on interest. It was their submissions that general damages ought to attract interest from the date of judgement and not filing.

Respondent’s Submissions 26. The Respondent condensed the twelve (12) grounds of appeal into three (3) broad categories which he submitted on. Grounds 1 – 9 were urged together, 10 and 11 together while 12 was urged alone. The Respondent cited the case of Abok James Odera T/A A.J Odera v John Patrick Machira T/A Machira and Company Advocates [2013] eKLR to restate the role of this court on appeal which is to re-evaluate, re-assess and re-analyse the record and draw its own conclusions but giving allowance to the fact that it neither saw nor heard the witnesses.

27. Submitting on grounds 1 – 9, the Respondent placed reliance on the Court of Appeal decision in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR which decision restated the burden of proof as enacted at section 107 to 109 of the Evidence Act. On this limb, the Respondent submitted that PW2’s testimony that the Appellant was standing holding his bicycle when he was hit was not challenged on cross examination. DW1’s evidence that he did see the Respondent but did nothing to avoid the accident was said to have greatly attributed to the Trial Court’s finding the Appellants wholly liable.

28. It was further submitted that the Respondent being blamed for the accident solely arose from the contents of the police abstract. The Respondent added that contents of a police abstract are rebuttable. The fact that the police decide to blame a party without any additional proof from their own investigations cannot be taken as conclusive evidence of liability against the party so blamed. Several decided cases in support of this position amongst them Masembe v Sugar Corporation & Another [2002] 2 EA 434 were cited.

29. It was further submitted that proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer or the contents of the police abstract. Negligence could still be proved notwithstanding the fact that the accident in question was not reported since there is no nexus between report of an accident to the police and proof of negligence. The Respondent also submitted that the police abstract only proves the occurrence of the accident was reported to the police but not the occurrence of the accident itself.

30. The evidence of PW4, the eyewitness as well as that of DW1 was quoted in extenso to buttress the argument that the Appellants were negligently responsible for the accident. The Respondent on this part concluded that he had discharged the burden of proving liability against the Appellants and had attained the standard of proof so required.

31. On grounds 10 and 11, the Respondent cited the Court of Appeal decision in Southern Engineering Company Ltd v Musingi Mutia [1975] KLR 730 on the principles which ought to guide a court in awarding damages. It was submitted that the Trial Court considered the principles and was guided accordingly in making the award it made.

32. On ground 12, section 27 of the Civil Procedure Act was quoted verbatim and the Respondent reiterated that costs follow the event. The Supreme Court’s decision in Baridi Felix Mbevo v Musee Mati & 2 Others [2021] eKLR which cited the case of Tarlochan Singh Rai was quoted in support of award of costs. It was submitted that this being an exercise of discretion, the Trial Court was at liberty to order costs in the manner it did. It was thus concluded that there is no lawful or viable reason why this court should interfere with the issue of costs.

Analysis and Determination 33. I have considered the appeal lodged, the submissions filed both for and against which I have summarized as above, the authorities cited as well as the law. In this appeal, the Appellants have challenged both liability and quantum of damages awarded by the Trial Court. The issue for determination will therefore be whether the Respondent proved his case on a balance of probabilities against the Appellants and the other peripheral considerations would be the award of costs and interests from the date of filing as well as the costs of this appeal.

34. It is trite that the legal burden of proof lies with the person who alleges. The Plaintiff(s) bear the legal burden of proof to prove the claim against the Defendant(s). Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows: -“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

35. Once the Plaintiff(s) discharges the legal burden of proof, the burden is then shifted to the Defendant(s) to adduce evidence against the Plaintiff(s) claims. This burden is well captured under Sections 109 and 112 of the same Act as follows:Section 109The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.Section 112In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

36. The above legal provisions are well captured in Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 and Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR.

Liability 37. It is not in dispute that an accident occurred on 15/12/2019 involving motor vehicle registration number KCW 609A driven by the 1st Appellant and the Respondent who was a pedal cyclist. It is also not in contest that the Respondent sustained injuries as a result of the said accident. What is in dispute was who to blame. In support of his case, the Respondent fronted (3) other witnesses other than himself. For the Appellants, the 1st Appellant was the only witness.

38. As held in various authorities, this court will now embark on its duty as an appellate court re-evaluate, re-assess and re-analyze the evidence before the Trial Court’s with a view to satisfy itself on its correctness. The Appellants assert that the Trial Court should have dismissed the suit since the Respondent had been blamed by the police and in the alternative, apportion liability between the Appellants and Respondent. The Respondent support the 100% liability apportioned as against the Appellants.

39. The court in Khambi & Another v Mahithi and Another [1968] EA 70 held as follow: -“…It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge…”

40. I note that the Trial Court was quick to shift the blame on the drivers without saying much as to why it deemed the 1st Appellant to blame. Be that as it may, it is not in contest that the 1st Appellant was driving from the Airport towards the junction leading to Changamwe Round-about.

41. Though there was an attempt to create a conflict in terms of the Respondent’s positioning, I have no doubt in my mind that the Respondent was crossing from the left side of the road to the right and that his position as at the time of the accident was on the pavement separating the roads. This evidence was led by PW4 who was at the scene and witnessed the accident. His account corroborated the Respondent’s account. Though PW2 was not at the scene and never participated in the investigation, his evidence was consistent with that of PW3 and PW4.

42. The Appellants made heavy weather of the fact that the police abstract attributed the blame on the Respondent. However, even if that was so, does this fact of itself impact on finding of negligence? In Florence Mutheu Musembi and Geoffrey Mutunga Kimiti v Francis Karenge [2021] eKLR, Odunga, J (as he then was) commenting on this aspect observed as follows: -“…A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents…”

43. Unlike in the above cited case, the police abstract indicates that the investigations were complete and the Respondent was to blame. However, the investigations carried out are not known. The witnesses interviewed are not disclosed. Can this court close its eyes on the evidence of PW4 and which evidence was not shaken on cross – examination? Of course not.

44. Further, the Appellants took a beating when they chose not to undertake a vehicle inspection because with an inspection report, the place of impact would have easily been resolved. I take judicial notice of section 74 of the Traffic Act which provides as follows: -Where an accident arises out of the presence of a motor vehicle on a road, any police officer may inspect any vehicle in connection with which the accident arose, and for that purpose, may enter at any reasonable time any premises where the vehicle is, and if any person obstructs such police officer in the performance of his duty under this section, he shall be guilty of an offence.

45. Though I note the use of the term “may,” it has been held in a plethora of authorities that a provision in a statute is mandatory if the omission to follow it renders the proceeding to which it relates illegal and void while a provision is directory if its observance is not necessary to the validity of the proceeding, and a statute may be mandatory in some respects and directory in others. In Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [2018] eKLR, Mativo, J (as he then was) while commenting on the use of the terms “shall” and “may” in statutory construction had the following to say: -“…One of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, then the court would say that, the provision must be complied with and that it is obligatory in its character…”

46. In the case of section 74 above, failure to comply attract penal consequences as indicated at section 75 of the Traffic Act. In the present case, the 1st Appellant confirmed that he reported the accident first and that he accompanied the police to the accident scene about an hour later. I find it absurd that no inspection was done yet that would have informed the point of impact. It is at this juncture that I find the conclusion by the investigating officer that the Respondent was to be blamed to carry no weight to tilt the finding on liability.

47. Without casting aspersions, it is on record that the 1st Appellant recorded his statement on the very day of the accident while the Respondent recorded his over two (2) months later when he came to collect the abstract and the P3 form. Another issue that captured the court’s attention is failure to issue a notice of intended prosecution on both parties as is the norm. The purpose of issuing a notice of intended prosecution is to show that investigations are ongoing and if any of the parties served is found culpable, prosecution would ensue. Having found the Respondent culpable, there is no explanation why no prosecution ensued.

48. This court opines that the speedy attachment of blame against the Respondent by the police was due to the fact that he was not present to assert his position immediately after the accident to enjoy equality of arms with the 1st Appellant. As a court of justice guided by evidence and the law, we cannot countenance such. PW4 who was at the scene confirmed that there were no police officers when the accident occurred. This explains why no sketch map was even availed. The fact that a fellow police officer overruled his own colleague who was investigating the accident confirms this court’s position.

49. The other aspect which I have considered is the admission by DW1 that the area is a residential area and in his own estimation, his speed was between 40 and 60kph. This speed though not in consonance with a residential area is manageable if something or someone appears suddenly on the road. Simple emergency breaks as long as the vehicle is well maintained can bring a car at this speed to an immediate halt. However, DW1 in his own words confirmed that he could see the Respondent but did nothing to avoid the accident. In Keith Mukolwe Keya v Fredrick O. Were [2020] eKLR, the court citing the decision in Teresia Sebastian Massawe (suing as the legal Administratix of the estate of the late Silvia Sebastian Massawe –Vs- Solidarity Islamic (Kenya Office) & Another (2018) eKLR held as follows: -“…A person driving a motor vehicle on the road is under a duty of care to other road users…”

50. I take the cognizance that the trial court had the advantage of evaluating and hearing witnesses testify on oath as to the circumstances of the accident. I have no such advantage as to the demeanor and velocity of the witnesses as the trial court. As such, it would be foolhardy for me to overturn such a finding on liability and I thus proceed to uphold the finding on liability.

51. Before concluding this part, the Appellants contended that their submissions were not considered. In support of this assertion, the Appellants cited four (4) decided cases which supported their position. These are Robert Murithi Njeru v Diocese of Embu [2015] eKLR, Keith Mukolwe Keya v Fredrick O. Were [2020] eKLR, Joyce Gathoni Wathena & Another v Mbugua David & Another [2020] eKLR and V O W (Minor) Suing through uncle and Next Friend E O W v Private Safaris (E.A) Limited [2017] eKLR. I have no quarrel with the holdings in the above cases as it is trite that every case is decided on their own peculiar circumstances.

52. It is settled law that a case is only an authority for what it decides. Mativo, J (as he then was) in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24 January 2022) (Judgment) espousing on this position quipped as follows: -“…The ratio of any decision must be understood in the background of the facts of the particular case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision… Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but one must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches…”

53. Therefore, in consonance with the above illumination, the fact that the decisions cited led to dismissal of the said cases does not ipso facto make those decisions to be copy and paste of the present case. I thus find no merit on the aspect that the Appellants submissions were not considered. In conclusion thus, I find no error on apportionment of liability.

Quantum 54. The Trial Court awarded the Respondent a sum of Kshs. 1,000,000/= under the head of general damages. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“…An appellate court will not disturb an award for general 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...”

55. Later in Power & Lighting Company Limited & Another v Zakayo Saitoti Naingola & Another [2008] eKLR, the court held as follows: -“…On quantum, the court in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages (1) Damages should not be inordinately too high or too low; (2) They are meant to compensate a party, for the loss suffered but not to enrich a party, and a such they should be commensurate to the injuries suffered; (3) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts; (4) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment …”

56. The Appellants’ contention in this appeal is that the award of Kshs. 1,000,000/= as general damages is inordinately high. They proposed a sum of Kshs. 400,000/= on the strength of the decision in G A (Minor suing her Father and Next Friend BZ) v Paul Muthiku [2020] eKLR. The injuries as per Dr. Ajoni Adede’s medical report dated 30/1/2020 were indicated as follows: - Fracture of the skull (right supraorbital);

Bleeding in the skull airspaces (right frontal and ethmoid haemoarthrosis);

Collection of air in the right eye socket (right peri-orbital emphysema);

Cut on the forehead (scalp);

Lacerations on the face; and

Blunt object injury to the head and chest.

57. Permanent partial disability was assessed at 5% and the reasons for the percentage were among others the fracture site remain weak points for life and can re-fracture. The other injuries were indicated that they would heal with time. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”. The only caution is that no two injuries are the same. Though I note that the Appellants had filed a medical report by Dr. Udayan Sheth, the same appears not to have been produced and as such, the only medical report on record is the one by Dr. Ajoni Adede. The court shall thus only limit itself to the said report.

58. The case of G A cited by the Appellants bears comparable injuries as the present case. The court made an award of Kshs. 300,000/= to Kshs. 500,000/= in the year 2020. Of note are the doctor’s observations which appear at the end of paragraph 13 of the said judgement. The doctor observed that the Appellant in that case would satisfactorily recover since she was of tender age. Is that the position in the present case? The medical report confirms that at the time of examination, the Respondent was fifty-six (56) years of age. It is common sense that chances of fully recovering may not be 100%.

59. In Gerald Ireri Harrison & 2 others v Danson Ngari [2018] eKLR, the court reduced an award of Kshs. 2,061,360/= to Kshs. 800,000/= in 2018. In the case, the Respondent had sustained depressed fracture of the right frontal bone at the supra orbital region with hemorrhagic contusion under the frontal lobe under soft tissue injuries – swelling on the frontal scalp and right periorbital region. I find the injuries herein to be comparable. Taking into account the current inflation, I see no reason to disturb the Trial Court’s award under this head. I find the sum of Kshs. 1,000,000/= to be commensurate.

Costs of the suit 60. On the issue of costs, a careful reading of Section 27 of the Civil Procedure Act indicates that it is trite law that they follow the cause or event as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540. It is that costs must follow the event unless the court, for some good reasons, orders otherwise. The import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exist some other good reasons and or cause for not awarding costs to the successful party.

61. However, the court retains discretion whether to grant them or not. Furthermore, this discretion must be exercised judiciously and courts should not deprive a plaintiff/defendant of his or her costs unless it can be shown that they acted unreasonably. The Halsbury’s Laws of England, 4th Edition (Re-issue), [2010], Vol.10. para 16, notes as follows: -“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”

62. Any departure from this trite law can only be for good reasons which the Supreme Court in Jasbir Singh Rai & Others vs Tarlochan Rai & Others [2014] eKLR noted includes public interest litigation since in such a case, the litigant is pursuing public interest as opposed to personal gain. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In Morgan Air Cargo Limited v Everest Enterprises Limited [2014] eKLR the court noted as follows:“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Costs follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”

63. I have said enough to show that award of costs is intertwined with the court’s exercise of discretion. In the absence of any evidence that the same was not exercised judiciously or in the converse, exercised capriciously, I see no reason to interfere with the Trial Court’s exercise on its discretion on award of costs. It is obvious that costs can be determined from the award and I see no dispute on this aspect. In fact, the Appellants appear not to be contesting the issue of costs but rather, award of interest from the date of filing.

Award of interests from the date of filing 64. From Trial Court’s judgement, the award on both general and special damages appears to have been ordered to attract interest at court rates from the date of filing suit. Was this correct? The operative provision on interest is section 26 of the Civil Procedure Act. It stipulates as follows: -1. Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.2. Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.

65. There is no dispute that the Trial Court pronounced itself as to when interest would accrue. Therefore, section 26 (2) above does not apply. Prior to the Court of Appeal decisions in Shariff Salim & Another v Malundu Kikava [1989] eKLR and Royal Media Services Ltd & Another v Hon Jakoyo Midiwo [2018] eKLR there existed two schools of thought on award of interest on general and special damages from the date of filing suit. However, in Shariff Salim & Another (supra), the Court of Appeal settled this issue as follows: -“…There is no gainsaying the fact under Section 26 of the Civil Procedure Act, the award of interest on a decree for the payment of money for the period from the date of the suit to the date of the decree is a matter entirely within the discretion of the court. But this discretion being a judicial one must be exercised judicially. The whole idea at the end of the day is to do justice to both parties. In the case of Prema Lata vs Peter Musa Mbiyu [1965] EA 592, the appellant, in a suit for damages for personal injuries, was awarded Kshs 24,000, as general damages and Kshs 1,742. 80 as special damages but the judge refused an application to award interest on these two sums from the date of filing suit until judgment. On appeal, the Court of Appeal for East Africa held that in personal injury cases, interest on general damages should not be awarded for the period between the date of filing suit and judgment but that interest should normally be awarded on special damages if the amount claimed has been actually expended or incurred at the date of filing the suit…The judge gave no reason for ordering that interest even on general damages was to be paid from the date of filing the suit. According to the authorities, interest on general damages should be paid from the date of assessment which of course is the date of judgment. That is the earliest date when the defendant’s liability to pay does arise. That order even in relation to payment of interest on special damages is, in our view, unsupportable. Quite apart from the fact that the claim for special damages was not proved by any evidence beyond being itemised in the plaint, except for Kshs. 100, paid for police abstract, the remaining items had not been paid for at the date of the filing of the suit on August 19, 1983. As a result, it is impossible to ascertain the reasons which compelled the judge to award interest from the date of filing suit and this leads us to the inevitable conclusion that the learned judge wrongly exercised his discretion. This ground of appeal accordingly succeeds…” (Underlining for emphasis)

66. The court reiterating the above position in Heinz Broer v Buscar (K) Ltd & others [2019] eKLR rendered itself as follows: -“…The basis of awarding interest on general damages from the date of judgment is premised on the ground that a plaintiff will not have been kept away from his monies because none would have been ascertainable at the time of institution of the suit. Interest on special damages would, however, accrue from date of filing suit as a plaintiff will have incurred expenses from the date suit is filed and he will have been kept away from his monies until judgment is delivered…”

67. This court is bound by the Court of Appeal decisions and I am inclined to disturb the award of interest on the head of general damages to run from the date of judgement while on special damages, it shall run from the date of filing suit. In the circumstances, the Appellants have only succeeded on this limb.

68. On the costs of this appeal, the Respondent has succeeded save on the last issue and I thus exercise my discretion by awarding it 75% costs of this appeal.

69. Flowing from the above, I proceed to make the following disposition: -a.The appeal herein lacks merit and is hereby dismissed save on the issue of interest which I order as follows: -i.The Trial Court’s order directing that general damages shall attract interest from the date of filing suit is hereby set aside and reviewed and, in its place, an order is hereby issued directing that general damages shall attract interest from the date of judgement and for avoidance of doubt, the date is 13th May, 2022. ii.The interest on special damages awarded of Kshs. 6,200/= remains undisturbed and it shall accrue interest from the date of filing suit. allowed on terms that the judgement delivered on 13th May, 2020 is set aside and or reviewed and that the further further amended plaint dated 19th July, 2016 is struck out for being filed out of time and without leave;b.The Respondent shall have costs of this appeal fixed at 75% and the full costs of the court below.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 17TH DAY OF NOVEMBER, 2023. ................................F. WANGARIJUDGEIn the presence of;Ms. Vanani Advocate for the AppellantsMr. Omburo Advocate for the RespondentBarille, Court Assistant