[2018] KEHC 5074 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CIVIL APPEAL NO. 49 OF 2017

ODHIAMBO DENNIS.................................................APPELLANT

VERSUS

E.O (Minor Suing through next Friend,S O A).......RESPONDENT

(Being an Appeal from the Judgment and Decree in Kisumu CMCC NO.627 of 2015

deliveredof Hon. P. L. Shinyanda (SRM) on 16. 6.17)

JUDGMENT

1. E.O (Minor Suing through next Friend, S O A )(hereinafter referred to as respondent) sued ODHIAMBO DENNIS(hereinafter referred to as appellant), in the lower court, claiming damages for injuries suffered by the minor on 16. 3.15when the minor who was crossing the road was knocked down by appellant’s motor vehicle registration number KBU 064F which was allegedly driven negligently.

2. Defendant/appellant filed a statement of Defence and denied the claim and urged the court to dismiss it with costs.

3. In a judgment delivered on16th June, 2017,the learned trial Magistrateapportioned 70:30%against appellant and awarded general damages in the sum of Kshs. 500,000/-.

The Appeal

4. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 27. 6.17 filed the Memorandum of Appeal which set out 16 grounds of appeal which I have summarized into 5 grounds to wit:

1. The learned trial magistrate erred in law and fact in finding that plaintiff had proved negligence against the defendant

2. The learned trial magistrate erred in law and fact in shifting the burden of proof to the defendant

3. The learned trial magistrate erred in law and fact in holding that defendant drove at a high or unreasonable speed

4. The learned trial magistrate erred in law and fact in finding defendant liable at 70% while the largest blame lay with the plaintiff

5. The learned trial magistrate erred in law and fact in awarding damages that is inordinately high, arbitrary and unsupported by any authority or precedent

SUBMISSIONS BY THE PARTIES

5. On 27th February, 2018, this court directed that the appeal be canvassed by way of written submission which the partiesdutifully filed.

Appellant’s submissions

6. As regards liability, appellant holds the view that he was driving slowly while overtaking a Nissan that was parked partly on the road when the minor bumped into the left side of his vehicle. Appellant urged the court to reject evidence by the next friend and find the next friend and the minor liable at 100%.In the alternative, appellant urged court to apportion liability at 50%:50%. Appellant placed reliance the following authorities: -

i. Livingstone Otundo v N M (Minor) HCC NO. 1367 of 1981, where a minor was a victim of an accident and the court observed that the degree of the driver’s obligation to the minor was that of a reasonable man and that the trial court applied the proper principles as regards the evidence of the minor; that though admissible, it did not raise the standard of duty of care owed to the minor and neither was the court under an obligation to lower the bar on the standard of proof for the appellant.

ii. Purity Wambui Murithii v Highlands Mineral Water Co. Ltd [2015] eKLRand

iii. W. K (Minor Suing Through Next Friend and Mother L. K v Ghalib Khan & another [2011] eKLR

where the court found both appellant and respondent equally to blame for the accident and apportioned liability at 50%:50%.

7. On quantum, appellant submitted that the awarded damages were not in consonance with decisions in cases with similar injuries and proposed an awarded of Kshs. 250,000/-. In support thereof, appellant relied on principles under which this Court would interfere with the award of damages as settled in the following authorities:

i. Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727

ii. DenshireMutetiWambua V Kenya Power & Lighting Co. Ltd, Civil Appeal No. 60 of 2004

Respondent’s submissions

8. Respondent holds the view that appellant did not exercise reasonable came while driving near a primary school. In this regard he relied on Tayab v Kinanu [1983] eKLRwhere the court said that in determining what was a reasonable standard of care in all the circumstances of the case the following four factors, inter alia, had to be considered:

1. The likelihood of a pedestrian crossing the road into the motorist’s path;

2. The nature of the pedestrian, whether a child or adult;

3. The degree of injury to be expected if the pedestrian was struck;

4. The adverse consequences to the public and to the defendant in taking whatever precautions were under consideration.”

9. Respondent further submitted that the circumstances of the case indicate that appellant was driving at a high speed and that is why he was unable to avoid the accident. To this end, respondent relied on Butt vs. Khan [1981] KLR 349 where the court held as follows:

“High speed can be prima facie evidence of negligence in some cases. A person travelling within or at the permitted speed limit may be immune from prosecution for traffic offence. It is another matter as far as the question of negligence is concerned. Even 15 m.p.h may not be a safe speed in the early hours of the morning when children go to school along and cross a road which known to the driver as in the instant case, serves an area with several schools in it. In the manner of speaking there would be children here, children there and children everywhere. The safe speed on an occasion like this is that which will bring the driver out of the area unscathed and free from accident. The speed limit fixed under the Traffic Act is for general good conduct on the part of the drivers. If an accident happens, in the absence of provable Circumstances Which Will Exonerate The Driver, Even Travelling At Half That Speed May Not Afford A Defence In A Case Of Negligence.”

10. Respondent Further Submitted That The Minor Was Only 7 Years Old And Cannot In View Of The Decisions In Tayab V KinanuAnd Butt Vs. Khan (Supra) Be Liable since such a child has not road sense of his own and therefore cannot be found negligent unless he or she is blameworthy.

11. Respondent additionally relied onEliud MwaleLewa& Another v Paka Tours Limited & another [2009] eKLR and A M (Minor Suing Through His Next Friend M A M) v Mohamud Kahiye [2014] eKLRwhere the courts held that a child of 5 years and 8 years respectively did not have the capacity to exercise good judgment for and no negligence could be attributed to them.

Analysis and Determination

12. This being the first appellate court, its duty is to reevaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Mbogo v Shah& Another (1968) EA 93 andSelle& Another v Associated Motor Boat Co. Ltd. & Others 91968) EA, 123. It then behooves this court to summarize the evidence that was tendered before the trial court. This appeal revolves both around liability and quantum.

i. Liability

13. It is not disputed that the minor was crossing the road in front of a Nissan that was parked partly on the road when the accident occurred. It is also not disputed that the accident occurred near a primary school where children normally cross the road to and from the school. What is in dispute is whether the minor was crossing the road in company of respondent as stated by the respondent or alone as stated by the appellant.

14. In whatever circumstance, appellant had a duty to exercise reasonable standard of care in all the circumstances of the case considering the likelihood of childrencrossing the road into the path.The minor was 7 years and negligence cannot be attributed to him in view of the holding in Eliud Mwale Lewa& Another V Paka Tours Limited & Anorand A M (Minor Suing Through His Next Friend M A M) v Mohamud Kahiye (Supra). That does not however exonerate the next friend from blame considering that he also had a duty to ensure that the minor crossed the road only when it was safe to do so and this he failed to do. Consequently, I find that the trial court’s decision apportioning liability at 70:30% against the appellant was well considered and find no reason to interfere with it.

ii. Quantum

15. The minor sustained:

- Soft tissue injuries with traumatic edema of the occiput

- Soft tissue injuries on neck, left shoulder joint and lower back

- Lacerations left elbow, right elbow, left knee and right knee

- Oblique fractures of distal 1/3 of the right tibia and fibula

The injuries healed with scars on left shoulder, left elbow, right elbow, right knee and left knee.

16. At the lower court, respondent asked for Kshs. 900,000/- and cited KorneliusKweyaEbichet V C & P Shoe Industries Ltd [2008] eKLRwhere plaintiff was awardedKshs. 1,000,000/- forBlunt trauma forehead and compound fracture left tibia and fibula bones. Plaintiff still walked aided with elbow crutches and there was wasting of the leg muscles; and he had a sinus measuring about 10cm with foul smelling seropurulent discharge; MKS HCCC 12 OF 2005 Savco Stores Ltd Vs David Mwangi Kimotho in which plaintiff was awarded Kshs. 800,000/- for fracture of left tibia and fibula and fracture on left elbow with a 20% permanent incapacity and Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLRwhere plaintiff was awarded Kshs.800,000/- forCompound comminuted fracture right tibia and fibula and Degloving injury medial aspect of right leg and foot. He underwent three operations and was hospitalized for 42 days. He had an implant that required removal in a future operation.

17. Appellant offered Kshs. 250,000/- and Harun MuyomaBoge v Daniel Otieno Agulo [2015] eKLR where plaintiff was awardedKshs. 300,000/- for blunt chest injuries, cut wound right wrist, deep cut wound on the right foot, fracture right tibia and fibula and soft tissue injuries; Maselus Eric Atienov United Services Limited [2017] eKLR where court on appeal upheld an award of Kshs. 250,000/- for Fractures of the right leg tibia/fibula bones, Bruises on the right elbow joint, Tenderness and swelling on the right knee, Injury on the pelvic region, Injury on the right thigh, Injury on the right elbow joint and Pain on the abdomen and Alice Nyawira Miano v Dr. Moses Mburu Mwaura [2015] eKLR where plaintiff was awarded Kshs. 350,000/- for compound fractures on the right leg; SDV Transami K. Ltd v Scholastica Nyambura[2012] eKLR where the respondent suffered compound fracture of the right tibia and fibula, cut wound on the left leg and multiple cut wounds on the right leg.An award of Kshs.350,000/- was reduced to Kshs.250,000/- on appeal and Simon Mutisya Kavii V Simon Kigutu Mwangi [2013] eKLR where the court on appeal confirmed an award of Kshs. 200,000/- for extensive scar mark over medical aspect of left thigh, knee area and left leg up to lower 3rd.

18. It is the duty of the advocates to avail relevant authorities to guide the court in arriving at a fair award for the injuries suffered. No doubt the authorities cited by respondent relate to more serious injuries than those suffered by the minor in this case. Those cited by appellant relate to injuries which are more or less similar to the ones suffered by plaintiff herein except that the injuries were suffered between 7 to19 years old.

19. The principle of law on whether a court on appeal can disturb the quantum of damages was well settled in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini .v. A.M. Lubia and Olive Lubia (1985) 1KAR 727 .At page 730 Kneller J.A. said: -

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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.

20. I have considered the record of appeal and the submission by both parties and there is no evidence that in assessing the damages, the trial court took into account an irrelevant factor, or left out of account a relevant one, or that the amount awarded is so inordinately high to be considered an erroneous estimate of the damage.

DISPOSITION

21. Accordingly, I uphold the award of the trial court both on liability and quantum and dismiss the appeal with costs.

DATED, DELIVERED AND SIGNED THIS 26thDAY OF July, 2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Felix

Appellant- Ms. Barasa

Respondent -Mr. Okoth