[2022] KEHC 13953 (KLR)

Onsase v Omosa (Civil Appeal 11 of 2017) [2022] KEHC 13953 (KLR) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13953 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 11 of 2017

RL Korir, J

October 14, 2022

Between

Daniel Onsase

Appellant

and

Charles Nyamweya Omosa

Respondent

(Being an Appeal from the Judgment of Hon. Omwansa B. Principal Magistrate in PMCC Number 57 of 2010 - Sotik delivered on 27th April 2017)

Judgment

1. The appellant (then plaintiff) sued the respondent herein for special and general damages as a result of an assault. judgment in the trial court was delivered on April 27, 2017 where the court dismissed the suit. It further ordered that each party bear their own costs.

2. Being dissatisfied with the judgment of the trial court, the appellant via a memorandum of appeal dated May 25, 2017 appealed to this court on the following grounds:i.That the learned magistrate erred in law and in fact by determining issues that were not presented for his determination and by failing to determine the issues before him from the pleadings, evidence and submissions.ii.That the learned magistrate erred in law and in fact by disregarding the weighty evidence of the plaintiff’s case, the plaintiff’s submissions and authorities cited.iii.That the learned magistrate erred in law and in fact by applying the wrong principles to a suit of damages and thus disregarding the evidence adduced by the plaintiff and instead took into consideration criminal proceedings that were prosecuted earlier.iv.That the learned magistrate erred in law and in fact by putting more weight to the defendant’s evidence while totally disregarding the plaintiff’s/appellant’s evidence and submissions, thus arriving at a wrong decision.v.That the learned trial magistrate erred in fact and law by failing to award damages as compensation for the injuries suffered by the plaintiff despite having made a finding that the plaintiff had proved that he had been unlawfully assaulted by the defendant.vi.That the learned magistrate’s decision was against the weight of evidence adduced, erroneous and untenable in law.

3. The appellant therefore prayed that the aforesaid judgment and decree be set aside and that this court makes orders that were just and expedient.

4. Being the first appellate court, this court has a duty to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the case of Selle & another v Associated Motor Boat Co Ltd and others (1968) EA 123.

The Plaintiff’s/Appellant’s Case 5. It was the appellant’s case that on November 23, 2007 while working as a watchman in Sotik Tea Company, he was assaulted by the defendant/respondent and two other people not before the trial court. That the respondent hit him with a stone on his cheek at which point he fell down and lost consciousness. It was his further case that as a result of the assault, he suffered multiple bruises to his face, had a swelling on the shoulder and had lost two teeth.

6. The appellant prayed for special and general damages for the injuries he suffered.

The Plaintiff’s/Appellant’s Submissions. 7. The appellant submitted that he was assaulted by the respondent and his two colleagues as he drove the respondent’s animals out of the tea farm. That the matter was reported to the police station and the respondent was arrested. It was his further submission that PW2 corroborated his testimony which confirmed how the assault happened.

8. It was the appellant’s submission that the trial magistrate determined issues that were not brought up for his determination. He relied on the case of Aga Wanjiru Mwaniki v Jane Wanjiru Mwaniki(1997) eKLR to support this submission.

9. The appellant submitted that his case was never challenged in the trial court since the respondent failed to adduce any evidence. That without a rebuttal or contrary evidence being produced, the preponderance of probabilities lay on his side. It was his further submission that the trial magistrate usurped powers that he did not possess and that the trial court defended the respondent who had chosen not to defend his suit.

10. It was the appellant’s submission that the trial magistrate misdirected himself by dismissing his case on the basis of a criminal case while disregarding the prayers sought in the plaint. That the trial court misinterpreted section 175 of the Criminal Procedure Code. It was his further submission that the aforementioned section used the word may which gave the court the choice to either order a convicted person to make such payment or not. He submitted that an acquittal or conviction of an accused person did not affect a civil court’s decision against the same person.

11. The appellant submitted that the judgment of the trial court contradicted its holding. That the trial court stated that the appellant had proved the issue of liability and that his claim stood the test of law but thereafter dismissed the case. It was his further submission that the judgment delivered was against the weight of the evidence adduced and was therefore erroneous and untenable in law.

The Defendant’s/Respondent’s Case. 12. The respondent denied assaulting the appellant and further stated that the appellant maliciously and unlawfully injured his reputation by causing his arrest, detention and charging in Nyamira criminal case number 933 of 2007. It was his further case that he was acquitted in the aforementioned criminal matter.

13. I have considered the record of appeal dated May 9, 2018, the appellant’s written submissions dated March 11, 2019 and I find that the appeal raises two issue for my determination as follows:i.Whether the appellant was entitled to the orders sought.ii.Whether the appellant proved his case to the required legal standards

i. Whether the appellant was entitled to the orders sought. 14. The Black’s Law Dictionary, 10th Edition at page 137 defines assault under two headings:-1. Criminal and tort law- the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear of apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery2. Criminal law- an attempt to commit battery, requiring the specific intent to cause physical injury.

15. Assault can both be classified under criminal law and civil law. In the case of Bundi Makube an infant suing by his next friend Thomas Bundi v Joseph Onkoba Nyamuro (1983) eKLR, the Court of Appeal held that:-“…………..an assault being a crime as well as a tort.”The case went on further to state that:-“while ‘assault’ is frequently the generic term used to cover both assault and battery, they are two distinct torts, the one being an overt act indicating an immediate intention to commit a battery (Clark & Lindsel14th edition para 679), and a battery being the direct application of force to the person of another without lawful justification……”

16. The trial magistrate in dismissing the suit stated that if a matter that was criminal in nature ended up in a civil court, it was incumbent for one to demonstrate that the defendant was charged and convicted in court.

17. Section 175(2) of the Criminal Procedure Codeprovides for an award of compensation in the form of damages against an injured party. It states that:-A court which—(a)convicts a person of an offence or, on appeal, revision or otherwise, confirms the conviction; and(b)finds, on the facts proven in the case, that the convicted person has, by virtue of the act constituting the offence, a civil liability to the complainant or another person (in either case referred to in this section as the “injured party”),may order the convicted person to pay to the injured party such sum as it considers could justly be recovered as damages in civil proceedings brought by the injured party against the convicted person in respect of the civil liability concerned.

18. The aforementioned section gives the power of awarding damages to a convicting court, which is achieved in a criminal case. The existence of a criminal case does not preclude one from instituting a civil case based on the same facts and parties. In the case of Geoffrey Mwangi Muya v David Mutahi Wachia( 2015) eKLR, Limo J persuasively held that:“………….a criminal court has a discretion when passing a sentence against an accused person to, in addition to any fine, order that the complainant be compensated with a specified amount in damages in accordance with section 175 (2) of theCriminal Procedure Code. However, it is incorrect to say that a criminal court must or should make a finding on the issue of damages payable. The law is clear that the conviction and sentence of an accused person does not and cannot absolve the accused of civil liability on action brought by the injured party.In the same vein, a conviction on a criminal case does not conclude or determine all the rights to the complainant or an injured party…………”

19. It is my finding that the proceedings in Nyamira PMCC number 933 of 2007 had no bearing in the civil suit. It is my further finding that the trial magistrate misdirected himself when he dismissed the appellant’s prayers for damages by relying on the acquittal of the respondent herein in the aforementioned criminal case. It is to be remembered that the standard of proof in a criminal trial is much higher than that of a civil suit and the acquittal therefore did not preclude the appellant from seeking a civil remedy.

ii. If the answer in (i) is in the affirmative whether the appellant proved his case to the required legal standards. 20. Section 107 of the Evidence Act (cap 80) Laws of Kenya provides:-Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

21. The Court of Appeal in the case Mbuthia Macharia v Annah Mutua & another (2017) eKLR discussed the burden of proof and stated thus:-“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”(See also the Court of Appeal case of Demutila Nanyama Pururmu v Salim Mohamed Salim(2021) eKLR)

22. It is trite law that a party who wishes the court to give a Judgment or to declare any legal right dependent on a particular set of facts, has a legal obligation to provide evidence to prove the existence of those facts.

23. In the present case, the appellant stated that he was assaulted by the respondent and as a result suffered multiple bruises on the face, loss of two teeth and had a swollen shoulder. It was his further case that the respondent neither controverted his evidence nor participated in the hearing. He stated that the balance of probability rests on his side.

24. It is evident from the proceedings that the respondent only filed a defence and his list of documents. He did not participate in the hearing therefore he neither cross examined the plaintiff’s witnesses nor did he adduce any evidence in support of his defence. Additionally, the respondent did not participate in the present appeal. He neither filed a response to the appeal nor did he file written submissions.

25. In the case of Charterhouse Bank Limited (under statutory management) v Frank N Kamau (2016) eKLR, the Court of Appeal held that:-“In Karugi & another v Kabiya & 3 others [1987] KLR 347, this court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof.We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant.”

26. More recently, Eboso J in Lucy Njeri v Isaac Wangoya Mwangi & another (2018) eKLR observed quite correctly:-“The appellant submitted at length that since the 1st defendant did not call any evidence, her evidence remained unchallenged and that the trial court ought therefore to have allowed her claim as sought in the plaint. This proposition is incorrect because it is trite law that even where no evidence is called in rebuttal, the plaintiff’s burden to prove her case on a balance of probabilities by adducing credible evidence remains.”(See also Gichinga Kibutha v Caroline Nduku (2018) eKLR and Godfrey Ngatia Njoroge v James Ndungu Mungai [2019] eKLR

27. It was not in dispute that the appellant was assaulted by the respondent and as a result suffered injuries. The defendant in his testimony produced a P3 form marked as PExh 1. The P3 form indicated injuries that were consistent with the ones contained in the plaint i.e he had injuries on the head, neck and upper limbs. The appellant was examined the following day meaning his wounds and/or injuries were fresh. The plaintiff also called one Isaac Ongaga who testified as PW2. He told the court that he was an eye witness to the assault. That he responded to the screams and found the defendant in the company of two others hurling stones at the defendant. They ran away and left the plaintiff injured.

28. There was no controverting evidence, to the plaintiff’s evidence which I find credible. It is my finding that the appellant provided sufficient evidence to prove the soft tissue injuries he suffered on a balance of probabilities.

29. The appellant also produced a medical report dated March 21, 2011 marked as PExh 3. The said report was from Kapkatet district hospital and it indicated the appellant sustained facial injuries from as assault that occurred in 2007. That the appellant also lost two lower incisor teeth and that loss was permanent and disfiguring.

30. While I am persuaded that the appellant suffered facial injury and bruises as above, I am not convinced on the claim for loss of two teeth. The P3 form indicated that the appellant had loose incisor teeth. In my view, the appellant has not provided sufficient evidence to prove that the loss of the teeth was directly linked to the assault. It is worth noting that the medical report was procured 4 years later and there was the possibility that the loss of teeth may have been occasioned by any other cause.

31. I now consider the damages awarded by the trial court. The appellant stated that he suffered from multiple bruises to the face and a swelling to the shoulder. In the case ofKigaragari v Aya(1982 - 1988) I KAR 768, it was stated:-“damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees.”(See case of Spin Knit Limited v Benard Kiplangat Cheruiyot(2022) eKLR)

32. Further, the Court of Appeal in Charles Oriwo Odeyo v Appollo Justus Andabwa & another (2017) eKLR observed that:-“The assessment of damages in personal injury case by court is guided by the following principles: -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high (SeeBoniface Waiti & another v Michael Kariuki Kamau(2007) eKLR.”(See also the Court of Appeal case of Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730)

33. The two authorities above concern insured risk. However, the principles are applicable to assessing damages even in claims brought against a defendant in cases such as this one. According to the P3 form, the injuries sustained by the appellant were classified as body harm which meant any bodily hurt, disease or disorder whether permanent or temporary. The injuries sustained were soft tissue injuries which heal rather quickly. The medical report indicated that the appellant’s facial swelling had subsided.

34. I have found the following comparative cases quite helpful and persuasive:-i.Ndungu Dennis v Ann Wangari Ndirangu &another (2018) eKLR where Ngugi Joel J reduced general damages for soft tissue injuries from Kshs 300,000/= to Kshs 100,000/=ii.Channan Agricultural Contractors ltd v Fred Barasa Mutayo (2013) eKLR where the High Court reviewed downwards an award of Kshs 250,000 to Kshs 150,000 for “moderate soft tissue injuries that were expected to heal in eight months’ time.”iii.In Hantex Garments (EPZ) ltd v Haron Mwasala Mwakawa (2017) eKLR, Njoki Mwangi J upheld an award of Kshs 100,000/= in a case where the respondent had sustained bruises, blunt trauma, swelling and tenderness on the right leg.iv.George Mugo &another v Akm (minor suing through next friend and mother of A.N.K (2018) where Kemei J awarded Kshs 90,000/= for soft tissue injuries (blunt injury on the left shoulder, blunt chest injury interior, bruises of left wrist region and blunt injury on the left arm.)

35. Considering that the present case arose in 2010 I find an award of Kshs 70,000/= for soft tissue injuries to be reasonable. Regarding special damages, the appellant prayed for medical expenses and money for the medical report. It is trite that special damages ought to be pleaded specifically and proved. (See Swalleh C Kariuki & another v Viloet Owiso Okuyu [2021] eKLR). The appellant pleaded the same in his plaint but failed to include the amounts he sought. During his testimony, the appellant produced a receipt dated March 21, 2011 where one Dr Kenneth K Sigilai charged him Kshs 5,000/= for the medical report. The same was produced as PExh 2.

36. In his plaint dated April 28, 2010, the appellant did not specifically plead the medical expenses. Though he produced a medical report and a receipt for Kshs 5,000/= there is no evidence that he amended his pleadings to include the expenses which he must have incurred way after filing of suit. The same is therefore disallowed. I therefore find that the appellant did not plead and prove the amount of money he used in medical expenses. His claim for the reimbursement of medical expenses therefore fails.

37. In the final analysis, the appeal dated May 25, 2017 is merited and allowed. The appellant is awarded he is awarded Kshs 70,000/= (seventy thousand) as general damages for soft tissue injuries. His claim for special damages is dismissed.

38. As the appellant has partially succeeded, each party to bear their costs both in the trial court and on this appeal.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 14THDAY OF OCTOBER, 2022. .........................R. LAGAT-KORIRJUDGEJudgment delivered electronically to the parties at their email addresses below: in the presence of Mrs. Bett for the AppellantMr. Motanya for the Respondent