[2023] KEHC 24432 (KLR)

Pascal v Jacob (Civil Appeal E004 of 2022) [2023] KEHC 24432 (KLR) (18 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24432 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E004 of 2022

RL Korir, J

October 18, 2023

Between

Amoke Otieno Pascal

Appellant

and

Dinnah Akoth Jacob

Respondent

(Being an Appeal from the Judgment of the Principal Magistrate, Muleka E. at the Principal Magistrate’s Court at Sotik, Civil Suit Number 167 of 2019)

Judgment

1. The respondent (then plaintiff) sued the appellant (then defendant) for general and special damages that arose from a road traffic accident that involved the Motor Vehicle Registration Number KCS 022Q which allegedly belonged to the Appellant.

2. The trial court conducted a hearing where four witnesses testified on behalf of the Respondent (then Plaintiff) while none testified on behalf of the Appellant (then Defendant).

3. In its Judgement dated 21st December 2021, the trial court awarded Kshs 200,000/= as General Damages and Kshs 11,550/= as Special Damages to the Respondent (then Plaintiff).

4. Being aggrieved with the Judgment of the trial court, Amoke Otieno Pascal through his Memorandum of Appeal dated 5th January 2022 appealed against the quantum of damages on the following grounds:-I.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 200,000/= that was overly excess in the circumstances of the case.II.That the learned trial Magistrate erred in law and in fact in failing to pay regard to the 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. Sic!III.That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.

5. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to my own findings and conclusions. The Supreme Court of India in Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs (2001) 3 SCC 179 stated that:-“A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it”.

The Plaintiff’s/Respondent’s case. 6. Through her Plaint dated 17th December 2019, the Respondent stated that, she was involved in a road accident on 21st August 2019 when the Motor Vehicle Registration Number KCS 022Q she was riding in lost control and overturned at Mokomoni area along Chepilat-Ikonge road.

7. The Respondent stated that the Appellant being the owner or proprietor of Motor Vehicle Registration Number KCS 022Q, was negligent in causing the accident and particularized the negligence in paragraph 4 of the Plaint.

8. That as a result of the accident, she suffered the following injuries: -i.Chest contusion.ii.Blunt trauma to the back.iii.Blunt trauma to the left hip.iv.Blunt trauma to the lower limbs.

9. The Respondent prayed for Special and General Damages against the Appellant

The Appellant’s/Defendant’s case 10. Through his statement of defence dated 17th February 2020, the Defendant/Appellant denied that he was the registered owner of Motor Vehicle Registration Number KCS 022Q and further denied the occurrence of the accident.

11. The Appellant denied the particulars of negligence levelled against it. That if any accident happened, it was contributed to by the Respondent’s negligence. He particularized the Respondent’s negligence in paragraph 6 of his statement of his Defence.

12. Pursuant to the directions of this court on 7th March 2023, the Appeal was canvassed by way of written submissions.

The Appellant’s Submissions. 13. In his submissions dated 15th April 2023 filed by his counsels Kimondo Gachoka & Co. Advocates, the Appellant submitted that the injuries suffered by the Respondent were soft tissue in nature and the award of Kshs 200,000/= was inordinately high. He submitted that an award of Kshs 50,000/= would be adequate compensation for the injuries suffered. He relied on the following authorities: -i.HB (minor suing through mother & next friend DKM) vs jasper Nchonga Magari & another(2021) eKLR where the court upheld the award of Kshs 60,000/= for soft tissue injuriesii.Eva Karemi & 5 others vs Koskei Kieng & another(2020) eKLRiii.Homabay Civil Appeal No. E113 of 2021-James Kwanya Rege vs Loice Mbone Cweya where the court reduced the award of Kshs 300,000/= to Kshs 80,000/= for blunt trauma to the neck and chest areasiv.Homabay Civil Appeal No. E111 of 2021- James Kwanya Rege vs Lizzy Awuor (minor suing through the father & next friend George Adhiambo Arao).

14. In regards to costs, the Appellant submitted that costs followed the event and prayed for costs of this Appeal based on section 27(1) of the Civil Procedure Act.

The Respondent’s Submissions. 15. Through her submissions dated 24th March 2023 and filed by his counsels Khan & Associates Advocates, the Respondent submitted that Dr. Peter Morebu opined that she sustained multiple injuries which were in the process of healing and that she needed analgesics when she was in pain. That the award of Kshs 200,000/= was not too high to warrant interference by this court. She relied on Charles Gichuki vs Emily Kawira Mbuba & another(2018) eKLR where the court awarded Kshs 300,000/= for blunt injuries to the right side of the face, shoulders and left thigh.

16. It was the Respondents’ submission that the award by the trial court was based on evidence and supported by recent authorities and that there was no basis to fault the same. That the fact that the trial court failed to adopt the Appellant’s submissions did not mean that they were not considered. It was her further submissions that parties’ submissions were not binding upon the court.

17. I note that this is a sister file to Bomet High Court Civil Appeal Number E005 of 2022 – Amoke Otieno Pascal vs Elizabeth Awino Ouko. These two matters arise from the same accident where the two Respondents suffered injuries when Motor Vehicle Registration Number KCS 022Q lost control and overturned.

18. The two Respondents filed similar suits at the Sotik Law Courts seeking damages from the Appellant. From my perusal of the trial court proceedings, they were awarded similar damages as they suffered similar injuries.

19. I have considered the Record of Appeal filed on 25th January 2023, the Supplementary Record of Appeal dated 3rd February 2023, the Appellant’s written submissions dated 15th April 2023, the Respondent’s written submissions dated 24th March 2023 and the only issue for my determination was whether the award of Kshs 211,550/= was excessive.

20. In regards to liability, I concur with the trial court’s decision to find the Appellant 100% liable. The Appellant did not testify as to the circumstances of the accident and therefore the Respondent’s testimony was uncontroverted. Further, the Respondent was a passenger and therefore had no control of the motor vehicle or circumstances surrounding the accident.

21. It is also salient to note that the Appellant’s appeal was to the extent of the assessment of damages and not liability.

General Damages 22. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Section 107 of the Evidence Act provide as follows:-(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

23. In determining general damages, the court has to examine the extent and gravity of the injuries suffered by the Respondent. The Respondent stated that she had suffered the injuries listed in the Plaint. The Medical Report by Dr. Morebu marked as P.Exh 5 stated that the Respondent was examined on 14th November 2019 and was found to have tenderness on her chest and back.

24. The treatment notes marked as P.Exh 2 indicated that the Respondent was treated on the material day at Kendu Bay sub-county hospital for road traffic accident injuries. There was no challenge by the Appellant during cross examination as to the type of injuries the Respondent suffered. In fact when he cross examined Juma Magora (PW4) who was a nursing officer at Kendu Bay sub-county hospital, PW4 confirmed that the Respondent complained of chest pain.

25. Flowing from the above, I am satisfied the Respondent suffered a chest contusion, blunt trauma to the back, blunt trauma to the left hip and blunt trauma to the lower limbs.

26. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. In the case of Stanley Maore vs Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 (2004)eKLR, the Court of Appeal stated that:-“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

27. The injuries suffered by the Respondent were soft tissue injuries. As the Respondent suffered the same injuries as the Elizabeth Awino Ouko in sister file Civil Appeal Number E005 of 2022, I have found the same cases quite helpful in terms of comparison: -I.In Daniel Gatana Ndungu & another vs Harrison Angore Katana (2020) eKLR the Respondent sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The court set aside the finding by the subordinate court that awarded Kshs 350,000/-on general damages and substituted it with an award of Kshs 140,000/-II.In Justine Nyamweya Ochoki & another vs Jumaa Karisa Kipingwa (2020) eKLR, the Respondent suffered a blunt object injury to the lower lip, blunt object injury to the chest and blunt object injury to the left wrist and was awarded Kshs 300,000/=. On appeal Nyakundi J. set aside that amount and awarded Kshs 150,000/=.III.In John Wambua vs Mathew Makau Mwololo & another (2020) eKLR, the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000/= and this was affirmed by the High Court.IV.In Charles Gichuki vs Emily Kawira Mbuba & another (2018) eKLR, the Respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. substituted the trial court’s award of Kshs 400,000/= with Kshs 300,000/=

28. I have reminded myself of the applicable principles when reconsidering an award made by a trial court. These principles were set out by the Court of Appeal in the case of Fredrick Masaghwe Mukasa vs Director of Public Prosecutions & 3 others (2019) eKLR where it stated: -“In doing so, we shall be guided by the well-established principles as set out in Mbogo & another -v- Shah (1968) EA 93, where the predecessor of this Court stated that an appellate Court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the trial court misdirected itself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.In order for this appeal to succeed, the appellant must bring himself within the ambit of the principles set out in Mbogo Vs Shah (supra). He must demonstrate to the satisfaction of this Court that the trial court exercised its discretion wrongly in making the conclusions that it did.”

29. Guided by the comparable cases above, it is my finding that the award of Kshs 200,000/= for the injuries sustained by the Respondent was too high. It is my further finding that an award of Kshs 150,000/= was sufficient and just. I hereby set aside the award of Kshs 200,000/= and substitute with Kshs 150,000/=.

Special Damages 30. It is trite law that Special Damages ought to be specifically pleaded. The Court of Appeal In Caltex Oil (Kenya) Limited v Rono Limited (2016) eKLRheld that:-“………………If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. The pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. Where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant those orders.”

31. The Respondent particularized the Special Damages as follows: -Medical Report Kshs 5,000/=Registration of demand Kshs 100/=Doctor’s attendance Kshs 6,000/=Charges for the 2nd Medical Report Kshs 3,000/=

32. The Respondent produced a receipt marked as P.Exh 6 which indicated that he had paid Kshs 5,000/= for the Medical Report. There was no evidence that the Respondent incurred costs for the postage fee for the demand letter and procuring the doctor’s attendance in court. The amount awarded under this head is Kshs 5,000/=

33. In the final calculation, the summation of the General and Special Damages awarded is Kshs 155,000/=.

34. In the end, the Memorandum of Appeal dated 5th January 2022 succeeds as the Damages awarded to the Respondent are reduced from Kshs 211,550/= to Kshs 155,000/=.

35. Each party shall bear their costs in this Appeal and the costs of the suit remain as awarded by the trial court.

36. Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 18TH DAY OF OCTOBER , 2023. ......................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Ms. Kusa for the Respondents and in the absence of the Appellants