[2022] KEHC 17214 (KLR)

Ombura v Waseke (Civil Appeal 49 of 2021) [2022] KEHC 17214 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 17214 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 49 of 2021

SM Githinji, J

May 19, 2022

Between

James Otieno Ombura

Appellant

and

Jackline Waseke

Respondent

(An Appeal from the judgment and decree by Hon L. N. Wasige (Mrs) (PM) delivered on 18th May 2021 in PMCC No. 74 of 2020 at Kaloleni)

Judgment

1The Appellant sued the Respondent for damages following an accident caused by the appellant’s motor vehicle Registration Number KCV 561Q which was said to have been carelessly and negligently driven by the appellant’s driver on the 13th day of May, 2020.

2The respondent filed a defence denying occurrence of the accident or negligence on the part of it’s driver. She attributed negligence to the respondent and stated on a without prejudice, that if an accident ever occurred, it was inevitable. In it’s judgment dated 18th May 2021, the trial court apportioned liability in the ratio of 60%:40% in favour of the Plaintiff against the defendant for the accident and awarded the respondent general damages of Kshs 180,000 and special damages of Kshs, 8,330/-

3The appellant was aggrieved with the judgment on both liability and quantum. He filed a memorandum of appeal dated on 31st May, 2021, raising the following grounds of appeal:1. The learned Trial Magistrate erred in law and fact by applying wrong principles thereby apportioning 40% liability against the Appellant in the absence of any evidence on record.2. The learned Trial magistrate misapprehended the evidence on record on the causation of the accident and thereby held the Appellant 40% liable which was unfair and unjust in the circumstances.3. The Learned Trial Magistrate ignored and or failed to take into account the authorities provided by the Plaintiff in his submissions with regard to the issue of liability in the present case and proceeded to make an unfair and unjust decision on liability.4. The Learned trial magistrate misapprehended the authority and principles relied on liability and misapplied the same in the present case thereby arriving at a patently wrong decision.5. The learned Trial Magistrate erred in law and fact by failing to take into account the severity of the injuries hence made an award for general damages for pain, suffering and loss of amenities which was inordinately low and unjust in the circumstances of this case.6. The Learned Trial Magistrate erred in law and fact by failing to apply the basic principle that comparable injuries attract comparable awards as in other recent related decided cases thereby made an award for general damages for pain, suffering and loss of amenities which was inordinately low and incomparable to the severe injuries sustained by the Appellant which was unfair and unjust in the circumstances.

Background 4Vide a Plaint dated 01. 06. 2020, the Appellant filed Kaloleni PMCC NO. 74 of 2020, James Otieno Ombura vs Jackline Waseke seeking general and special damages arising from a road traffic accident involving motor cycle registration number KMDB 121W and Motor Vehicle Registration No. KCV 561Q which occurred along Kaloleni- Mariakani road on or about 13. 05. 2020 at Oasis Damview area.

5In the plaint its averred that the Plaintiff sustained fracture of left distal radius/ ulna bones, blunt trauma to the neck, blunt trauma to the chest, blunt trauma to the right leg, complains of pains on left forearm and the level of disability assessed at 10%. All these was blamed on negligence of both Defendant’s and/or her authorized agent, servant or employee as pleaded in paragraph 5 of the plaint.

6The Defendant filed his Defence on the 24th of November, 2020 denying the manner in which the accident occurred as alleged by the Plaintiff and as alleged in Paragraph 4, 5 and 6 of the Plaint. The Defendant alleged in his defence that the accident if at all it occurred, was wholly caused by the Plaintiff who was in control of motor cycle registration No. KMDB 121W and that the Plaintiff substantially contributed to its occurrence. He also denied each and every particular of pain, suffering and injuries sustained by the Plaintiff.

Summary of the Evidence 7PW1 Dr. Darius Kiema told the court that the Plaintiff sustained a fracture of the forearm and blunt trauma to the neck, chest and right leg and assessed the plaintiff’s disability at 10% and told the court that he would need to incur costs of purchase of painkillers and physiotherapy session for 2 years. During cross examination, he informed the court that he is not an orthopaedic surgeon and that the review was after 4 months. He also said that he did not review the Plaintiff after the plaster cast was removed.

8PW2 PC Julius Nkumum from Mariakani Police Station confirmed that the accident did occur on the 13th day of May, 2020 along Kaloleni – Mariakani road involving motor vehicle Registration Number KCV 561Q Nissan Note and motor cycle Registration Number KMDB 121W which was being ridden by the Plaintiff. He told the court that the vehicle was headed towards Kaloleni from Mariakani while the motor cycle was coming from the opposite direction. That the driver of the motor vehicle made a right turn to enter a restaurant and, in the process, collided with the motor cycle.

9According to him, the motor vehicle was to blame for failing to give the motor cycle the right of way. His testimony was that the motor cycle was on it’s rightful lane, so the driver of the motor vehicle ought to have checked whether the road was clear before making the turn.

10The motor vehicle and the motor cycle had their head lamps on and the vehicle driver and motor cycle rider saw each other.

11PW3 the Plaintiff, told the court that he was riding his motor cycle from Kaloleni to Mariakani and on reaching the scene of the accident, the vehicle which was on the opposite direction suddenly turned right and they collided. He said that he had seen the motor vehicle but he did not expect it to take the turn and according to him, the driver of the motor vehicle ought to have given him way to pass before making the turn. He also told the court that the accident occurred on his lane.

12On cross examination, he informed the court that he did not have a driving licence and his motor cycle was not insured. He stated that he was riding at 20km per hour and that he applied emergency brakes but he still collided with the motor vehicle. He also stated that he was examined by Dr. Udayan after the plaster cast on his hand had been removed.

13DW1 Francis Marugu Chege the driver of the motor vehicle told the court that he was driving the motor vehicle on the day of the accident from Mariakani towards Oasis hotel along Mariakani - Kaloleni Road and as he got to the entrance of the hotel, he slowed down and indicated he was turning right and as he was taking the turn, the motor vehicle was hit on the left rear door. He told the court that the motor cyclist had not worn a helmet or a reflector jacket.

14On cross examination, he confirmed that if he had checked on the road he would have seen the motorcycle ahead of him. That the accident occurred on the motor cycle’s lane. The appeal proceeded by way of written submissions. The appellant submissions were filed by Njoroge Mwangi & Co. Advocates while those of the respondent were filed by S. R. Shikely Advocates.

Submissions 15It was the Appellant’s submission that the learned trial magistrate fell into error by holding that the Appellant was 40% liable for a number of reasons, among them that from the evidence of the trial court the point of impact was on the lane headed towards Mariakani which was the appellant’s motor cycle’s proper lane, and that DW1 admitted that had he exercised proper look out, he would have seen the oncoming motorcycle and accord it right of way.

16He also submitted that the Appellant testified that he had been operating the motor cycle and there was no record that he was involved in any other accident and therefore according to them, it follows that he knew how to ride the motor cycle and that the trial magistrate was wrong in assuming that he did not know how to apply brakes. They relied on the case of Kerugoya HCCA No. 48 of 2017 Kennedy Macharia Njeru vs Packson Githongo Njau & Another (2019) eKLR and that of Isaac Onyango Okumu vs James Ayere & Anor (2019) eKLR

17On quantum, he submitted that assessment of damages is at the discretion of the trial court and this court in exercising it appellate jurisdiction can only interfere with the awards of the trial court if the court proceeded on wrong principles or misapprehended the evidence so as to arrive at a figure which is either inordinately high or low. According to them, the award of Kshs. 300,000/- is inordinately low and not commensurate to the serious injuries sustained by the Appellant.

18The Respondent on the other hand submitted that the motorbike was on high speed based on his testimony where he stated;“I blame the driver of the motor vehicle for the accident because he should have indicated he was about to make a turn and I would have reduced my speed”

19He also submitted that the Appellant has never possessed a driving licence nor was his motor bike insured. According to him, it was immaterial as suggested in the Plaintiff’s submissions that he has been a rider for several years. On quantum, he submitted that the Appellant’s doctor was not an orthopedic yet Dr. Udayan Sheth was, that he had examined him 8 months after the injury and he stated in his report that he was normal and that he had fully recovered with no deformity and no permanent incapacity to the wrist. He relied on the case of High Court Malindi Civil Appeal No. 13 of 2020 and HCC Malindi Civil Appeal No. 14 of 2020.

Issues for Determination 20The discretionary jurisdiction of the first appellate court being judicial is to be exercised on the basis of evidence and sound legal principles as was held in the case of Shah, Paul v E. A. Cargo Handling Services Ltd 1974 EA 75.

21On the issue of determination of liability in road traffic accident, the Court of Appeal stated that;

22The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd(2)(1953) A.C. 663 at p. 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it……………“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

23I have weighed and analyzed the evidence tendered before the trial court as well as the Judgment rendered and I note that the trial court found both the appellant and the Respondent to be at fault. In her judgment, she stated as follows;“I concur with PW2’s (police Officer) investigations in concluding that the accident vehicle being driven by DW1 is to blame for the accident for failing to give the motor cycle the right of way…it is also my finding that the Plaintiff contributed to the accident. It came out clearly during hearing that the Plaintiff does not have a driving licence. I find that the failure by the Plaintiff to have a driving licence as was submitted by the defence means that the Plaintiff was not competent to ride the motorcycle ….if indeed the Plaintiff was riding at 20km/hr as he alleged, he would have easily slowed down or applied brakes when he saw that the motor vehicle had taken the turn. He should not have rammed into it….”

24I find that the trial court was justified in finding both the Appellant and the Respondent liable for the accident but at different percentage.

25An appellate court will only interfere with an award of the trial court in general damages if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 at page 356 Law JA stated:“…an appellate court will not disturb an award of 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 a figure which was either inordinately high or low.”

26The respondent herein sustained the following injuries: a fracture of the distal radius/ ulna bones (wrist joint), blunt trauma to the neck, blunt trauma to the chest, blunt trauma on the right leg and complains of pains in left forearm.

27What is in contention is whether the evidence by PW1 that the Plaintiff suffered a 10% level of disability is sustainable. I note that the Plaintiff was examined by 2 doctors and more importantly one was an Orthopedic who examined the Plaintiff 8 months after the injury and concluded that he had fully recovered and that there was no deformity and no permanent incapacity to the wrist.

28At the trial court, the Appellant prayed for Kshs.750, 000/= for pain and suffering while the Respondent was of the opinion that an award of Khs.160, 000/= would be adequate compensation. Each party cited authorities in support of their proposal which I have considered. Based on my analysis, I find no reason to interfere with the trial court finding on quantum as well.

29The upshot is that the appeal fails and is hereby dismissed with costs to the Respondent.

30It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 19THDAY OF MAY, 2022. ...................................S.M. GITHINJIJUDGEIn the Presence of; -Njoroge Mwangi & Company Advocates for the Appellant absentS. R. Shikely & Co. Advocates for the Respondent present