[2022] KEHC 15464 (KLR)

Orandous & another v Olang’o (Civil Appeal 18 of 2020) [2022] KEHC 15464 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15464 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 18 of 2020

RE Aburili, J

November 15, 2022

Between

Benjamin Michura Orandous

1st Appellant

Dorothy Okumu

2nd Appellant

and

Martin Ooko Olang’o

Respondent

(An appeal arising out of the judgement and decree of the Honourable C.L. Yalwala in the Principal Magistrate’s Court at Maseno delivered on the 26th February 2020 in Maseno PMCC No. 191 of 2015)

Judgment

Introduction 1. The appellants herein Benjamin Michura Orando and Dorothy Okumu were jointly and severally sued by the respondent Martin Ooko Olang’o for general damages and costs of the suit for injuries that the respondent sustained in a road traffic accident that occurred on the 14th July 2013 along the Kisumu – Bondo road involving motor vehicle registration no. KBS 409P owned by the 2nd appellant and driven by the 1st appellant that hit the respondent who was a pedestrian.

2. The parties failed to agree on liability and therefore the trial magistrate apportioned liability at 100% against the appellants before proceeding to award the respondent general damages of Kshs. 500,000 for the injuries suffered by the respondent.

3. Aggrieved by the trial court’s judgment, the appellants filed their memorandum of appeal dated 6th April 2020, which appeal was based on the following 8 grounds:i.The learned magistrate erred in law and fact by failing to find that there was evidence to apportion liability between the appellants and the respondents.ii.The learned magistrate erred in law and fact by holding that the appellants were 100% liable for the incident.iii.The learned magistrate erred in law and fact by overlooking the evidence on record that showed that the respondent was largely to blame for the incident under inquiry.iv.The learned trial magistrate erred in fact and in law in failing to find that the circumstances of the accident was such that he plaintiff would not have been in a position to bring out evidence of liability as he narrated it and that as such his testimony was based more on assumptions rather than facts and in failing to consider the implication of the failure by the respondent to call the person with whom he was at the time of the incident.v.The learned trial magistrate erred in law in relying on a traffic charge against the 1st appellant that was not pleaded and in respect of which there was no proof of a trial and a conviction of the 1st appellant as evidence of negligence.vi.The learned magistrate erred in law in finding that the respondent had proved his case against the appellants when the evidence on record could not support such a finding.vii.The learned magistrate erred in law and in fact in making an award of damages with credible proof of the damage suffered by the respondent.viii.The award of damages by the trial court was in any case excessive in the circumstances.

4. The parties filed submissions to canvass the appeal.

The Appellants’ Submissions 5. It was submitted that the trial magistrate erred by overlooking the evidence on record that showed that the respondent was largely to blame for the accident and in holding that the appellants were 100% liable for the accident as the respondent’s testimony was based on assumptions rather than fact as the respondent failed to call the person whom he was with at the time of the accident.

6. The appellants submitted that in light of their testimony that the respondent abruptly staggered on to the road, which evidence alluded to the respondent being drunk, the trial magistrate ought to have apportioned liability at 50% to both the appellants and the respondent.

7. It was further submitted that production of an abstract showing that the 1st appellant was charged with the offence of careless driving was not sufficient to apportion liability at 100% against the appellants in the absence of proceedings and judgement against the 1st appellant. Relying on the case of Kanake Peter v David Lemba[2018] eKLR, the appellants submitted that the respondent failed to prove his case.

8. On liability being apportioned in the ratio of 50:50, the appellants relied on the case ofSalim Mbarak v Emma Nthoki [2017] eKLR where the court apportioned liability in the ratio 50:50 where the deceased was a pedestrian who had been knocked by a vehicle.

9. On general damages to be awarded, the appellants submitted that an award of Kshs. 300,000 would suffice. Reliance was placed on the cases ofJoyce Muthoni Kanga v Micheni Musa [2018] eKLR where the trial court awarded the plaintiff Kshs. 280,000 for injuries in the nature of a fractured ankle with no permanent incapacity.

10. The appellants also relied on the case of Jitan Nagra v Abidnigo Nyandusi [2018] eKLR where the court on appeal reduced an award of Kshs. 1,000,000 to Kshs. 450,000 for injuries sustained in a road traffic accident involving a deep cut wound on the back, blunt trauma to the chest, bruises to the left elbow, compound fracture of the right tibia/fibula and a compound fracture of the right femur.

11. The respondent did not file any submissions.

Analysis and Determination 12. This being a first appeal, this Court has the duty to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but bear in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact. In Abok James Oderat/aA.J Odera & Associates v John Patrick Machirat/aMachira & 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.”

13. In this appeal, I find the following issues for determination:i.Whether the Trial Court erred in apportionment of liability; andii.Whether the award of Kshs. 500,000/= in general damages was excessive in the circumstances.

Whether the Trial Court erred in apportionment of liability. 14. This Court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the appellants’ counsel as well as the authorities relied on.

15. A finding on apportionment of liability by a Trial Court calls for exercise of judicial discretion based on evaluation of the evidence adduced and an appellate Court can only interfere if the finding is not supported by the evidence on record.

16. In Isabella Wanjiru Karangu v Washington Malele [1983] KLR 142 and Mahendra M Malde v George M AngiraCivil Appeal No. 12 of 1981, it was held that apportionment of blame is an exercise of 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 or wrong principles.

17. That the burden of proof was on the respondent to prove his case before the trial court is not in doubt. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

18. The question then is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

19. reassessing the evidence presented by the respondent before the trial court, the respondent testified that on the material date he was walking 2 metres off the tarmac along the Kisumu Bondo road. He testified that he was on the left side when the 1st appellant, who was driving the suit motor vehicle veered off the road and knocked the respondent on his left leg which got broken twice. The respondent testified that he cracked his upper tooth and that his forehead sustained cut wounds. The respondent further testified that his left leg also shortened and this was observed by the trial court. It was his testimony that he was treated at Kombewa sub-county Hospital and subsequently referred to Jaramogi Oginga Odinga Teaching and Referral Hospital.

20. On his part, the 1st appellant testified that on the 14/7/2013 he was driving the suit motor vehicle then suddenly, two people appeared and one staggered and entered the road and hit himself on the left side mirror of the vehicle. He admitted that he did not stop and proceeded to the police station and reported the accident. The 1st appellant testified that he was driving between 60 – 70km/hr and that the person he hit had not put on a reflector jacket.

21. In cross-examination, the 1st appellant stated that he saw the two persons at a distance of about 100 metres and that when the respondent staggered onto the road he could not swerve to the right as there could have been a head on collision. He restated that the respondent did not run onto the road but staggered and that it was abrupt.

22. On whether the respondent should shoulder any blame, the evidence on record and as adduced by the 1st appellant is that the respondent staggered on to the road from the edge of the road where he was walking. The 1st appellant further testified that he saw the respondent from a distance of 100 metres. However, the 1st appellant then testifies that the respondent abruptly staggered on the road. He states that he was driving at between 60 – 70 km/hr.

23. The 1st appellant’s evidence in my view does not add up. If at all he saw the respondent from 100 metres staggering, he should have reduced his speed. Further, he initially states that the respondent was staggering on the edge of the road then staggers abruptly onto the road. The 1st appellant being in full sight of the respondent’s behaviour should have been able to slow down and avoided hitting him. I agree with the trial magistrate that this demonstrated negligence on the part of the 1st appellant. Although the appellant’s claim that the respondent failed to call the person he was with during the accident, I find no credible evidence to support that submission that the respondent was in the company of another person and that he failed to call that other person to corroborate his testimony, for this court to reach an adverse finding.

24. 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. From the evidence on record as set out herein, I find no manifest error or error in principle considered by the trial magistrate to warrant this court’s interference with the apportionment of liability

26. In the circumstances, I find both appellants jointly and severally liable for the accident. I hold that the finding by the Trial Magistrate on the issue of liability was sound and the same is hereby upheld.

Whether the award of Kshs. 500,000/= in general damages was excessive in the circumstances 27. It is now well settled principle of law that an appellate Court can only interfere with the sum awarded where an appellant demonstrates that the award is too high or so low as to amount to an outright error in assessment of damages, or that in coming to that assessment, the Court took into account an irrelevant matter or that it failed to take into account a relevant matter. The Court of Appeal in Ken Odondi & two others v James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] eKLR held as follows:“We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled… This principle was adopted with approval by this Court inButt v Khan [1981] KLR 349 where it was held per Law, JA:“... 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 at a figure which was either inordinately high or low...”

28. It is the appellants’ case and submission that the trial court awarded the respondent a manifestly high award considering the injuries sustained. They submit that that an award of Kshs. 300,000 would suffice and rely on the cases of Joyce Muthoni supra where the trial court awarded the plaintiff Kshs. 280,000 for injuries in the nature of a fractured ankle with no permanent incapacity and that of Jitan Nagra supra where the court on appeal reduced an award of Kshs. 1,000,000 to Kshs. 450,000 for similar injuries.

29. In Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR, the court expressed the following view:“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”

30. In this case, the respondent pleaded and produced a medical report showing that he sustained the following injuries:a.Fracture of the tibia and fibula of the left legb.Head injury with the following: - Cut wounds on the forehead, Damage of the lower mandible with loss of teeth, cut wound on the mouthc.Blunt chest injuryd.Blunt injury of the left upper limb with dislocated fingerse.Blunt soft tissue injuries with superficial bruises

31. The aforementioned injuries were agreed by the parties as those suffered by the respondent. In awarding damages in the sum of Kshs. 500,000/=, the Trial Court relied on the case of Jitan Nagra supra where the trial court awarded quantum of Kshs. 450,000. In the said case, the plaintiff sustained the following injuries:a.lacerations on the occipital area,b.deep cut wound on the back, right knee and lateral lane,c.bruises at the back extending to the right side of the lumbar region,d.blunt trauma to the chest,e.bruises on the left elbow,f.compound fracture of the right tibia/fibula,g.segmental distal fracture of the right femur.

32. It is my opinion that the injuries sustained by the respondent are somehow comparable to those sustained by the plaintiff in the Jitan case. Th erespondent suffered a fracture that shortened his leg as observed by the trial court and that is a permanent disability.

33. In the case of BK Suing Thro’ His Mother and Next friend EM v Wilson Gitari Mburugu [2020] eKLR where the Plaintiff suffered multiple injuries to the face; soft tissue injury to the thorax, abdomen as well as on his upper and lower limbs; severe injuries to the maxilla and mandible resulting to loss of five (5) teeth with cut on the lip. The injuries left him with cosmetic damage to the mouth. The Court made an award of Kshs. 400,000/- in February 2020.

34. I have re-evaluated the evidence tendered on quantum, and going by the principles in the cited Court of Appeal case, I do not find the award to be manifestly high to warrant my interference with the learned trial magistrate's exercise of her discretion in arriving at the award made on damages.

35. In the premises I find no merit in this appeal. I dismiss the appeal herein and uphold the judgment on liability and award of damages by the trial court. The respondent did not file written submissions despite this court granting more time to avail the same by close of business on the date that the court reserved this appeal for judgment. I order that each party bear their own costs of this appeal.

36. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE