[2022] KEHC 16086 (KLR)

Omwoyo v Nyangira (Civil Appeal E049 of 2021) [2022] KEHC 16086 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16086 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E049 of 2021

WA Okwany, J

December 1, 2022

Between

Damaris Omwoyo

Appellant

and

Alex Kimwei Nyangira

Respondent

(Being an Appeal against the Ruling of Hon. W. C. Waswa (Mr.) – RM Nyamira dated and delivered at Nyamira on the 7th day of June 2021 in the original Nyamira Chief Magistrate’s Court Civil Case No. 174 of 2019)

Judgment

Background 1. The respondent sued and the appellant before the lower court seeking both general and special damages arising out of a road traffic accident that occurred along Nyamira – Corner T Road on October 14, 2019.

2. The respondent’s Case before the lower court was that he was riding motor cycle Registration No KMEN 801P on which he was ferrying 2 pillion passengers when the appellant’s motor vehicle Registration No KCK 530E collided with the said motor cycle thereby causing the accident wherein he sustained injuries.

3. The appellant denied the respondent’s claim and after conducting the hearing, the trial court rendered a judgment in which it awarded the respondent Kshs 400,000/= general damages and Kshs 6,500/= special damages. The trial court also found the appellant 100% liable for the accident.

4. Aggrieved by the lower court’s decision, the appellant filed the instant appeal in which she listed the following grounds of appeal in the memorandum of appeal: -“1. The learned trial magistrate erred in fact and in law by apportioning 100% liability to the defendant without considering the circumstances of the case.2. The learned trial magistrate erred in fact and in law by apportioning 100% liability to the defendant whereas the police abstract produced as plaintiff’s exhibit indicated that the matter was still pending under investigation.3. The learned trial magistrate erred in fact and in law by apportioning 100% liability to the defendant whereas DW1 and DW2 gave evidence that the rider was to blame.4. That the learned trial magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs 400,000/= that was overly in excess in the circumstances of the case.5. That the learned trial magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.6. That the learned trial magistrate’s exercise of discretion in assessment of quantum was injudicious.”

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

6. The appellant faulted the trial Magistrate for finding her 100% liable for the accident in the face of evidence showing that her driver was not charged with any traffic offence following the accident. According to the appellant, both the driver of the motor vehicle and the rider of the motor cycle should have been found equally liable for the accident. For this argument, the appellant cited the decision in the case of Lakhamshi v Attorney General (1971) EA 118, 120 as quoted in Calistus Juma Makhanu v Mumias Sugar Co Ltd & Another [2021] eKLR where it was held that: -“It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame….”

7. On quantum, the appellant submitted that the award of Kshs 400,000/= was too high and ought to be reduced in view of the fact that no party was found to blame for the accident. It was submitted that there was no proof of the alleged fracture injuries sustained by the plaintiff.

8. The appellant maintained that the award of general damages did not match the awards in other similar comparable decided cases.

9. The respondent, on his part, submitted that the court should be slow to interfere with the lower court’s award of damages as the same is discretionary. He urged this court to adhere to the principles governing the courts in considering whether or not to interfere with such awards. The respondent maintained that the trial court made the correct findings on both liability and quantum.

Analysis and Determination 10. I have considered the record of appeal and the parties’ respective submissions. As the first appellate court this court is under a duty to analyze and re-evaluate the evidence tendered before the lower court in order to reach its own conclusions bearing in mind the fact that it neither saw nor heard the witnesses testify (see Selle & Another v Associated Motor Board Company Ltd & others 1968 EA 123).

11. It was not disputed that the respondent sustained injuries in an accident involving the collision between the appellant’s motor vehicle and the motor cycle. The instant appeal basically contests the trial court’s findings on the aspects of liability and quantum.

12. On liability, PW3, Cpl Albert Mincha, the Police Officer who produced the Police File and Abstract testified as follows: -“…The investigation diary reads that the rider, Alec Kimwei was from Nyamira stage with two (2) pillion passengers namely Vane Kemunto & Nancy Kemunto. They were going towards corner ‘T’ road. On reaching public work area, the vehicle which was also heading in the same direction, tried to overtake the motor cycle & in the process it hit the motor cycle from behind causing the rider & the passengers to fall down & sustain injuries. I blame the vehicle because the driver didn’t ensure that it was clear to overtake the motorcycle. There is a notice of intended prosecution against the driver named Joshua Nyabuti Obuya with the offence of careless driving. As per the abstract, the vehicle is owned by Damaris Omwoyo.”

13. DW1, PC Peter Kariuki testified as follows: -“…. Alex was the rider of the motor cycle. Alex reported that while he was riding his motor cycle from Nyamira stage at about 9:00a.m. heading to Tente area carrying two (2) passengers, Vane Kemunto & Nancy Kwamboka. On reaching near corner shop, they knocked down a motor vehicle reg No KCK 530E Toyota Matatu. It is Alex who reported the accident. Alex said that he knocked the vehicle. It is Alex who is to blame for causing the accident. I was not the investigating officer.”

14. On cross examination, DW1 testified that:“…. Personally I don’t know how the accident occurred. The matter is still pending under investigations. I don’t have the investigation diary. I don’t have the original OB in court to testify. The OB is at the station & it is being used. I have no document to that effect from the police station. My duties involve traffic duties. It’s possible for a motor cycle to knock down a motor vehicle. However, it is not practical. I wasn’t present when the said Alex recorded the statement.”

15. DW2, Joshua Nyabuti Otinye, the owner of the appellant’s motor vehicle testified that: -“…. The rider hit me from behind. I was driving motor vehicle KCK 530E. It was at around 3:00p.m. I didn’t knock the cyclist. My vehicle was knocked from behind.”

16. The trial magistrate held as follows on the issue of liability: -“…. This court is also not persuaded by DW2’s evidence that his vehicle was knocked from behind by the motor cycle. Reasons being that if that was the case, the investigating officer would not have issued him with a notice of intended prosecution for the offence of careless driving. DW2 confirmed that he was released on a police cash bail of Kshs 10,000. 00. Due to the foregoing reasons, this court finds that DW2 100% liable for the accident. He ought to have ensured and maintained a safe distance from the motor cycle before overtaking it. Since it is undisputed that the defendant herein was the owner of the motor vehicle, this court holds the defendant 100% vicariously liable for the accident.”

17. I note that both Police Officers who testified in the case (i.e. PW3 and DW1) were not eye witnesses to the accident but merely testified on the report they received at the station. They gave conflicting evidence on the party to blame for the accident. It is also instructive to note that neither the driver of the motor vehicle nor the respondent (cyclist) was charged with the offence of careless driving/riding. I am of the view that in the circumstances of the case and on weighing the evidence presented by the parties, the court should have apportioned liability between the driver and the rider. I find that the suitable apportionment should be 70%:30% in favour of the respondent. I therefore allow the appeal on the aspect of liability.

18. Turning to the award of damages on quantum, I note that it is a well-established principle that the award of damages is an exercise of discretion by the court which the appellate court should be slow to interfere with except in isolated circumstances as was held in the case of Kemfro Africa Ltd T/A Meru Express Services & Gathongo Kanini v AM Lubia & Olive Lubia (1982 – 88) 1 KAR where the court held: -“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 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. See Ilango v Manyoka [1967] EA 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited v Kalovoto [1970] EA 414, 418, 419. This court follows the same principles.”

19. In the present case, I note that the respondent tendered evidence to show that he sustained the following injuries in the accident: -a.Headacheb.Chest pain on exertionc.4th & 5th right ribs cracked mediallyd.Cut wounds bilaterally on the elbow jointse.Painful swelling on the right wrist jointf.Bruises with swelling on the right forearmg.Dislocation of the right wrist joint; andh.Tenderness on the right thigh laterally.

20. I note that the trial court considered several authorities wherein the claimants sustained similar injuries before arriving at the award of Kshs 400,000/= general damages. I find that the said award is reasonable and commensurate with the type of injuries the respondent sustained in the accident. I find no reason to interfere with the said award.

21. In conclusion, the appeal succeeds, albeit partly to the extent of liability which I hereby apportion at 70:30% in favour of the respondent. This means that the respondent shall be paid Kshs 400,000 + 6,500 special damages less 30% contribution which comes to Kshs 284,550/=.

22. The respondent is also awarded the costs of the lower court together with interest therein.

23. Since the appeal is partly successful, I award ½ of the costs of appeal to the appellant.

DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 1ST DAY OF DECEMBER 2022. W A OKWANYJUDGEIn the presence of:Chichi for Ng’ang’a for the appellantN/A for the respondentAnita – Court Assistant