[2024] KEHC 10628 (KLR)

Okirigiti & another v Okumu (Civil Appeal E009 of 2023) [2024] KEHC 10628 (KLR) (12 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10628 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E009 of 2023

RE Aburili, J

September 12, 2024

Between

Joice Kemunto Okirigiti

1st Appellant

Charles Ouma Omondi

2nd Appellant

and

Partson Odhiambo Okumu

Respondent

(An appeal arising out of the Judgment & Decree of the Honourable E.A. Obina in the Chief Magistrate’s Court at Kisumu delivered on the 19th December 2022 in Kisumu CMCC No. 364 of 2021)

Judgment

Introduction 1. The appellants were the defendants sued by the respondent plaintiff in the lower court vide a plaint dated 24th August 2021 in which the respondent sought for general damages and special damages of Kshs. 140,130 for injuries that he sustained following a road traffic accident that occurred on or about the 5th February 2021.

2. The respondent’s case was that on the material date, he was lawfully riding his motorcycle registration no. KMCJ 343D along Kisian – Kisumu road moving towards Kisumu direction when near Skylark area the appellants’ motor vehicle registration number KAP 733N which was approaching from the opposite direction approaching the respondent was driven so carelessly, negligently and/or recklessly that it rammed into the respondent’s motorcycle leading to the respondent sustaining injuries.

3. The appellants filed their statement of defence dated 13th September 2021 denying all the averments by the respondent and putting him to strict proof whilst attributing contributory negligence on the part of the respondent.

4. In his judgement herein impugned, the trial magistrate found the appellants 90% liable for causing the accident whereas he held the respondent 10% liable. He proceeded to award the respondent Kshs. 1,000,000 in general damages which he added to the special damages claimed and lessened by 10% to arrive at a cumulative award of Kshs. 1,026,117 in favour of the respondent.

5. Aggrieved by the trial court’s judgment, the appellants filed their appeal dated 17th January 2023 on 18th January, 2023 in which they raised the following grounds of appeal:1. The learned trial magistrate grossly misdirected himself in treating the evidence and submissions on liability before him superficially and consequently coming to a wrong conclusion on the same.2. The learned trial magistrate erred in fact and law in awarding general damages for pain and suffering in a purely material damage claim.3. The learned trial magistrate erred in awarding damages for loss of user in the absence of evidence and/or sufficient evidence to support the same thereby arrived at a decision unsustainable in law.4. The learned trial magistrate grossly misdirected himself in treating the evidence and submissions on quantum before him superficially and consequently coming to a wrong conclusion on the same.5. The learned trial magistrate misdirected himself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the appellant.6. The learned trial magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellants.7. The learned trial magistrate erred in failing to hold that the respondent had failed to prove negligence on the part of the appellants while the onus of proof lay on the respondent.8. The learned trial magistrate proceeded on wrong principles (if any) when assessing the damages to be awarded to the respondent and failed to apply precedents and tenets of law applicable.9. The learned trial magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstance that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.10. The learned trial magistrate failed to apply judicially and to adequately evaluate th evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.11. The learned magistrate erred in finding the defendant 90% liable and the plaintiff only 10% liable since the plaintiff failed to avoid our insured motor vehicle causing the accident.12. The award of Kshs. 1,000,000 considering the plaintiff’s injuries is on the higher side.

6. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 7. The appellant submitted that throughout the trial process at the subordinate court, the respondent never established and proved to the required standard a single act of negligence by the appellants that caused the accident and further that he never called any medical doctor to testify in court and confirm the nature and degree of injuries suffered as a result of the alleged accident.

8. It was the appellants’ submission that there were contradictions and inconsistencies in the respondent’s case like how he listed six witnesses he intended to call in support of his case but only ended up calling one, that he never called a single eye witness to testify in court and neither did he produce a sketch plan of the scene of the accident in an effort to prove his case.

9. It was thus submitted that the glaring myriad of contradictions in eyewitness’ testimony and the witness statement filed before court ought to accord the appellants some benefit of doubt and find the respondent equally contributory negligent in the said accident.

10. The appellants submitted that the trial magistrate did not demonstrate proper analysis of the facts and the law and as such the conclusion reached therein was unsustainable in law.

11. It was submitted that the respondent in his own statement adopted by the court admitted that he was reckless and riding without any prior training and/or expertise and thus caused the accident by riding unlawfully and riding the said motorcycle in a zig-zag manner right in front of the suit motor vehicle.

12. The appellants relied on the case of Pesa Hamisi v P.N. Mashru Limited [2020] eKLR where it was held interalia that if the possibility of danger emerging is reasonably apparent, then to take no precaution is negligence.

13. It was further submitted that the respondent who sought redress in the Trial Court did not hold a current and valid riders’ license in total affront of the law and was therefore illegally and unlawfully riding it contrary to section 68 (3) of the Traffic Act, 6 (1) of the National Transport & Safety Authority (Operation of Motorcycles) Regulations 2015.

14. The appellants submitted that the mere fact that an accident occurred does not follow that a particular person has driven negligently and negligence must be inferred as was held in the case of Jamal Ramadhan Yusuf v Ruth Achieng Onditi & Anor [2010] eKLR.

15. On quantum of damages, it was submitted that trial magistrate based his judgement on the wrong principles of law when assessing damages awarded to the respondent and that this court ought to set aside the decision by the trial court.

16. It was submitted that an award of Kshs. 300,000 in damages was sufficient compensation for the respondent. Reliance was placed on the case of Harun Muyoma Boge v Daniel Agulo [2015] eKLR where the plaintiff sustained among other injuries, a compound fracture with permanent effects and the court awarded Kshs. 300,000 as well as the case of Rayan Investment Limited v Jeremiah Mwakulegwa Kasha [2017] eKLR where the claimant had suffered a fracture in the right fibula, severe blunt trauma in the left ankle joint, bruises on the right elbow and blunt trauma on the right wrist and the court awarded the claimant Kshs. 300,000.

The Respondent’s Submissions 17. The respondent submitted that he proved his case on a balance of probabilities as required in civil cases and as set out in the cases of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR and Kirugi & Anor v Kabiya & 3 Others [1987] KLR 347.

18. On quantum, the respondent relied on his submissions before the trial court wherein he had submitted that a sum of Kshs. 1,000,000 was sufficient in general damages. The respondent had relied on the cases of Gichira Peter & Another v Jane Njura Mwangi Embu HCCA No. 23 of 2012 where the court awarded Kshs. 1,200,000 in general damages for injuries comparable to the ones sustained by the respondent as well as the case of SAO (Minor Suing Thro next Friend MOO v Registered Trustees, Anglican Church of Kenya Maseno North Parish [2017] eKLR where court awarded Kshs. 600,000 in general damages for injuries less severe to the ones sustained by the respondent.

19. On liability, it was submitted that the appellants have failed to demonstrate how the trial court failed to consider their submissions and evidence whereas he tendered sufficient evidence against the appellant on liability on a balance of probability which was satisfactory leading to the trial court’s apportioning of liability.

Analysis and Determination 20. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and reach its own conclusions. It must, however, bear in 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. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

21. Thus, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

22. Having considered the Appellant’s Grounds of Appeal and the parties’ Written Submissions, I find the issues for determination to be:1. Whether or not the apportionment of liability was fair and reasonable in the circumstances of this case.2. Whether or not the award of quantum was unjustified in the circumstances of this case so as to warrant interference by this court.

23. The above issues are resolved under the separate heads shown herein below.

Liability 24. On liability, In Khambi and Another v Mahithi and Another [1968] EA 70, it was held that:“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.”

25. That was the position in Isabella Wanjiru Karangu v Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142 and Mahendra M Malde v George M Angira Civil Appeal No. 12 of 1981, where it was held that apportionment of blame represents an exercise of a discretion with which the appellate court will interfere only when it is clearly wrong, or based on no evidence or on the application of a wrong principle.

26. On the burden of proof, the law is clear that he who alleges must proof. See section 107 and 108 of the Evidence Act. The question therefore is whether the respondent herein discharged the burden of proof that the appellants were liable in negligence to the extent stated by the trial court for the occurrence of the accident wherein he was allegedly injured.

27. The respondent was the only witness who testified in support of his case as PW2, No. 71788 P.C. Biwott testified and produced the police abstract for the said accident subject of this appeal. The respondent adopted his recorded statement filed together with his claim as his testimony in chief.

28. For avoidance of doubt, a police abstract is not evidence of negligence and neither is failure to charge any of the parties involved in a collision accident evidence that no one or both were to blame for the accident in equal measure. Each case depends on its own facts and circumstances. This is so because the standard of proof in traffic cases which are criminal cases is that of beyond reasonable doubt whereas the standard of proof in civil cases is on a balance of probabilities.

29. It was the respondent’s case that on the said date, the 5th February 2021, he was lawfully riding his motorcycle registration No. KMCJ 343D along Kisian – Kisumu road moving towards Kisumu direction when near Skylark area, the appellants’ motor vehicle registration number KAP 733N which was approaching from the opposite direction approaching the respondent was driven so carelessly, negligently and/or recklessly driven as to ram his motorcycle leading to the respondent sustaining injuries. The respondent testified that the appellants’ motor vehicle was being driven on the wrong side of the road as it was on his lane and that there was a trailer behind him and thus despite his efforts to evade colliding with the oncoming appellants’ vehicle by slowing down, hooting and flashing his lights and even moving to the extreme left side of the road, he ended up being knocked down by the appellants’ vehicle on his left side.

30. In cross-examination, the respondent stated that he had a licence and also had a helmet on the date of the accident and also wore a reflective jacket.

31. The appellants called two witnesses in support of their defence. DW1, Alphonse Amondi Omboya, the driver of the suit vehicle adopted his recorded statement as his evidence in chief wherein he had stated that he was manoeuvring to park the said vehicle in front of Skylark when an oncoming motorcyclist at high speed grazed his front wing panel and shattered his side mirror with the impact throwing the rider behind him on the tarmac. DW1 testified that he did not get on to the tarmac. He further testified that the rider did not have a helmet and wore sandals and that he subsequently followed the rider to hospital where he saw that the rider had a broken leg.

32. In cross-examination, he reiterated his testimony and further stated that he saw the motor cyclist 30 metres away and who not concentrating and so he put hazards and full lights on.

33. DW2, Vincent Ochieng Odhiambo similarly adopted his statement of 20. 9.2021 as his evidence in chief. He reiterated DW1’s testimony and stated that they were going to park the suit vehicle at a Perch Hotel and further that the suit vehicle was not in motion when the respondent’s motorcycle crashed into them. He reiterated that the rider did not have a helmet. In his statement, DW2 had stated that when the suit vehicle was being reversed is when the accident occurred. He reiterated his testimony in cross-examination.

34. I have considered the evidence tendered before the trial court and I note that contrary to the appellants’ submissions before this court, the respondent was firm and consistent in his statement and testimony before the trial court.

35. On their part, the both appellants’ witnesses told the court that the suit vehicle was not in motion when the accident occurred, but, in their statements, they indicated that the car was moving when the accident occurred. DW1 testified that he was maneuvering his way into a parking slot when the accident occurred and similarly DW2 had stated that DW1 was reversing when the accident occurred.

36. The appellants submitted that the respondent had no helmet and was also not a licensed rider. However, this is contrary to the evidence on record. The respondent testified that he had a license and that it was on his phone. The appellants did not push him further on this and neither did they adduce any contrary evidence. Also, the respondent testified that he had a helmet when the accident occurred, a fact that was not controverted by the appellants. I hasten to add that in modern times where mobile phones play a very important role in evidence gathering, there is no reason why the appellants’ witnesses who themselves were not injured could not take photographs of the scene of accident and on how the respondent appeared allegedly without a helmet and in sandals when riding a motor cycle when he was involved in the accident.

37. There is no doubt that an accident occurred, that the respondent was riding towards Kisumu from Kisian direction; that the appellants’ driver was looking for a parking at Skylark area which was the opposite direction from where the respondent was approaching from but on the same side. In essence, my view is that the appellants’ driver was on the respondent’s side of the road and had not left the road completely when the collision took place. That being said, it is also clear that the respondent was riding at a high speed as testified by both appellants’ witnesses and as such, he could not take the necessary measures to avoid the accident. Although the respondent testified that there was a vehicle right behind him, he did not say that there was another oncoming vehicle on his right and since he was facing the direction where the appellants’ vehicle was, nothing prevented him from swerving to the right to avoid hitting the appellants’ vehicle.

38. Taking into account all the aforementioned circumstances, I find that the respondent contributed to the occurrence of the accident by riding at a high speed and failing to swerve so as to avoid the accident. It follows that his contribution to the accident was not just 10% as was apportioned by the trial court. I find that the respondent contributed to the accident in the ratio of 30%.

39. I therefore interfere with the apportionment by the trial court which I hereby set aside and substitute it with 30% contribution.

Quantum 40. The appellants submitted that the award on quantum of damages to the respondent was inordinately high considering the injuries sustained by the respondent and past comparable awards and that this court ought to reduce the same to Kshs. 300,000. On his part, the respondent submitted that the award of Kshs. 1,000,000 was sufficient and urged this court to uphold the same.

41. In in Butt v Khan [1982-88] KAR 1 it was held -“An appellate court will not disturb an award for damages unless it is 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.”

42. I have considered the submissions tendered together with the authorities cited by the parties. As the Respondent did not cross-appeal against the finding and conclusion of the trial magistrate, I think the issue is simply whether the award was too high as contended by the Appellants.

43. General damages are damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It is now settled law that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation. Further, that awards ought to be reasonable and must be assessed with moderation bearing in mind that the large and inordinate awards may injure the body politic. Furthermore, it is desirable that so far as possible, comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see Tayab v Kinanu [1983] KLR 114 and West (H) & Son Ltd v Shephard [1964] AC 326, 345).

44. The respondent pleaded that he sustained the following injuries:Displaced bimmalleolar fractures of the left ankle joint.Medical subluxation of the ankle jointDislocation of the left ankle jointSwelling of the right legInjury to the left shoulderNeck tendernessChest tendernessBackache

45. The said injuries were substantiated in the P3 form produced by the respondent as exhibit 8a wherein it was also noted that the respondent had sustained injuries in the nature of grievous harm. The said injuries were further documented in treatment notes produced as exhibits 2 – 6 and the medical legal report dated 20. 8.2021 by Professor L.W. Okombo produced as exhibit 7a. In his own testimony the respondent testified that he had sustained a fracture.

46. Taking all the aforementioned into consideration, it is my view that the respondent sustained a fracture of the left ankle joint and also suffered soft tissue injuries to the right leg, left shoulder, neck, chest and back.

47. Having considered the parties’ authorities, the trial court found those relied on by the appellants to be on the lower side and proceeded to grant the award for quantum claimed by the respondent of Kshs. 1,000,000.

48. In Rayan Investments Limited supra relied at by the appellants, the court awarded the claimant a sum of Kshs. 300,000 as general damages for a fracture of the right fibula, severe blunt trauma on the left; ankle joint, bruises on the right elbow and blunt trauma on the right wrist.

49. Contrary to submissions by the respondent, in SAO (Minor Suing Thro next Friend MOO) supra where the court awarded Kshs. 600,000 in general damages, the injuries sustained by the claimant therein were far severe than those sustained by the respondent herein as they included:Head injury with brain concussion and damage of right lower mandible jaw and left cheekBlunt chest injuryMultiple friction lacerations/bruises on right elbow jointFracture of right tibia/fibula at midshaft regionCompound fracture left tibia/fibula at distal metaphysicMultiple cut wounds on left lower limb involving thigh down to knee regionFracture left ankle joint involving malleolus bonesDislocation right ankle joint

50. In the much older case of Ambrose Micheni Kinyamu v Gilbert Bundi & Another [2012] eKLR, the appellant sustained fracture of the right leg on the ankle. The appellate court in 2012 enhanced the award given by the trial court to Kshs. 400,000.

51. In the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR, the Respondent had sustained head injuries with cut wounds, chest injuries, injuries to the right leg with cut wounds and a fracture, injuries to the left lower leg ankle joint and injuries on the left thigh. In its judgment delivered in May 2020, High Court reduced the award of Kshs. 600,000/= by the lower court to Kshs. 400,000.

52. Finally, in the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR the appellate court declined to disturb an award of Kshs. 500,000. 00 for a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe.

53. In the circumstances of this case, it is my opinion that the award of Kshs. 1,000,000 by the trial court was inordinately high and not comparable to similar cases with comparable injury. I find that an award of Kshs. 550,000 would be sufficient in the circumstances. Accordingly, I set aside the award of Kshs 1,000,000 general damages and substitute it with an award of kshs 550,000 taking into account inflation and time lapse since the decisions cited above were made.

54. As special damages were not disputed by the appellants as shown by the submissions made, I find no reason to interfere with the same.

55. I therefore allow this appeal in the following terms:a.Liability- appellants to bear 70% while the appellant shall bear 30% contribution.b.General damages ………………….. Kshs.550,000Less 30% contribution …………... Kshs. 165,000Kshs.385,000Add Special damages ………………Kshs. 140,130Grand Total ………………………Kshs. 525, 130

56. I order that each party bear their own costs of the appeal as the damages awarded have been substantially reduced following the enhancement of contributory negligence and reduction of general damages.

57. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF SEPTEMBER, 2024R.E. ABURILIJUDGE