[2017] KEHC 9458 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL DIVISION

CIVIL APPEAL NO. 67 OF 2014

BETWEEN

PETER MAINA GITHINJI……...APPELLANT

AND

MICHAEL ODWOMA………..RESPONDENT

(Being an appeal from the judgment delivered on 10. 06. 2014 in Kakamega CMCC No. 308 of 2007 by Hon. C. Kendagor, SRM)

J U D G M E N T

Introduction

1. The appellant was the plaintiff in Kakamega CMCC No. 308 of 2007. In the suit, the appellant sought both special and general damages costs of the suit and interest on the amounts awarded. The appellant’s claim was anchored in alleged negligence on the part of the respondent arising out of a road traffic accident involving the appellant and the respondent’s motor vehicle registration Number KAJ 905B. The accident is alleged to have occurred along the Kakamega-Webuye road when the appellant who was a pillion passenger on a motor cycle was violently knocked down and as a result thereof, he suffered commuted fractures of the right tibia fibula which did not unite dislocation of the right hip joint and sever blunt injury to the right leg.

2. The respondent denied the appellant’s allegations vide the statement of defence dated 03. 12. 2009 and filed in court on the same date. The respondent denied that the alleged accident occurred at all and also denied the particulars of negligence attributed to him and further denied that the appellant suffered any injuries. The respondent urged the court to dismiss the appellant’s suit.

Judgment of the learned trial court

3. After an analysis of the evidence adduced by the appellant during the trial, the learned trial Magistrate reached the conclusion that the appellant had failed to prove liability on the part of the respondent and that being the case, the appellant’s suit was dismissed. As to damages, the learned trial magistrate stated that if liability had been proved, she would have made an award of kshs.600,000/= as general damages and kshs.3,500/= as special damages . Of course if the appellant’s suit had succeeded, he would have been entitled to costs and interest.

The Appeal

4. Being aggrieved by the judgment of the learned trial Magistrate, he filed this appeal through the firm of M/S Akwala & Co Advocates, the Memorandum of appeal comprises 5 grounds of appeal, details of which shall emerge during the analysis of evidence and determination of the appeal. It is the appellate prayer that the appeal be allowed, with costs to himself. He also prays that the judgment of the learned trial Magistrate and all the orders emanating therefrom be set aside and the same be substituted with a finding that he respondent is wholly or substantially liable to the appellant in negligence and an order be made directing the respondent to pay to the appellant the damages assessed by the subordinate court plus interest and costs.

5. As this is a first appeal, this court is under a duty to reconsider and evaluate the evidence afresh with a view of teaching its own conclusions on the matter and only remember that it is only the trial court which had the privilege of seeing and hearing the witnesses give evidence before it. As it were this court can only deal with recorded evidence, and in the circumstances, it has to be cautions when considering whether or not to overturn the findings of the learned trial magistrate. For this and related propositions see the case of Peters – vs – Sunday Post Limited [1958] EA 424 where the Court of Appeal for Eastern African held inter alia, that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide. Watt- vs – Thomas [1947] ALL ER 582,[1947]AC 484 applied.

The Appellant’s Case

6. The appellant testified asPW1. His testimony was that; that on 01. 08. 2004, he boarded a bicycle from Kakamega town towards Sichirvai on the Kakamega Webuye road where he lived. There was traffic (probably meaning traffic jam) when he saw an oncoming vehicle moving in a zigzag manner and at high speed. The bicycle was moving on the murram. There was a bump on the road, and the vehicle veered off the tarmac and hit him on the right leg. He fell down thereafter he was taken to Kakamega provincial Hospital for treatment. He produced documents to support his admission and treatment on the said hospital.

7. During cross examination, PW1 testified that the motor vehicle that knocked him down was registration No. KAJ 905B and that at the material time it was being driven by a lady driver. He also testified that the accident happened suddenly and that at the time he and his bicycle rider were off the tarmac. He denied that he was crossing the road at the material time.

8. PW2 was Musa Shem who was carrying the appellant on his (PW2’s) bicycle when the accident occurred. He stated that he was riding the bicycle from the direction of Kakamega town towards Webuye on the Kakamega – Webuye road. He then saw a vehicle coming from the opposite direction. It zigzagged on the road, left its lane and went towards where he was riding his bicycle. On seeing the vehicle, he swerved but the vehicle hit the appellant and both of them fell down. He got up quickly and noted the registration number of the motor vehicle which and stopped some distance behind them. It was motor vehicle registration No.KAJ 905B Maroon Subaru Saloon car. Good Samaritans took the appellant to hospital. He asserted that they were not on the tarmac.

9. When cross examined by the respondent’s counsel, Musa stated that he was riding on the left side off the road; although he was not riding in the designated lane for bicycles.

10. Dr. Charles Andai testified as PW3 (though the typed proceedings have recorded him as PW2). He examined the appellant and produced the medical report and the payment receipt for kshs.3,500/=. These were produced as PExhibit 2(a) and 2(b). The treatment notes were produced as PExhibit 1. PW3 testified that as at the time of the hearing, the appellant’s injuries had completely healed, and the fractures reunited. That was as at 25. 01. 2010 when Dr. Andai examined the appellant.

11. PW4 No. 4551 PC Owino Asin testified as to the ownership of the subject motor vehicle which he said belonged to Micahel Oduoma. The respondent in this appeal PW4 produced the police abstract as PExhibit 4. He also testified that at the scene of the accident, there was a lane specifically designated for bicycles. He confirmed that the police did not take any further action on the file after they were unable to find the driver of the motor vehicle although the driving licence and insurance certificate were on the file.

The Respondent’s case

12. The respondent testified as DW1. He admitted that the subject motor vehicle belonged to him but stated that on the material day, the motor vehicle was parked and that he did not authorize anyone to drive it, and that he was not aware of any accident. He also stated that he knows the Kakamega Webuye road well and that the road has provided a path for pedestrians and bicycles.

13. During cross examination, the respondent admitted that the subject motor vehicle belonged to him though he sold it later. He also stated that on the material day, he was in Nairobi while his vehicle was in Kakamega. He also alleged that the road at the accident scene had pedestrian and bicycle riders. The respondent did not call any other evidence.

Submissions

14. Parties filed and exchanged their respective written submissions. In the written submissions counsel for the appellant condensed the five grounds of appeal into one and submitted that the learned trial court fell into error in failing to appreciate that the appellant’s evidence was sufficient to prove his case on a balance of probabilities. Counsel urged the court to make such a finding counsel also submitted that the worst scenario would have been for the learned trial court to apportion liability instead of dismissing the appellant’s claim all together. On quantum, counsel urged the court to enhance the award from Ksh.600,000/= to a more reasonable figure.

15. On his part, counsel for the respondent submitted that the learned trial Magistrate properly framed and determined the issues after which she came to the conclusion that the particulars of negligence against the respondent were not proved. Counsel also submitted that the appellant having admitted that the bicycle was not being ridden on the path meant for bicycles meant that he was in the wrong and the trial court should therefore not be blamed for the appellant’s own wrong doing. He urged the court to dismiss the appeal.

Analysis and Determination

16. From all the submissions by counsel, and after carefully considering the rival submissions by counsel, the only issue that arises is whether the learned trial court’s finding on liability was sound. In other words, does the evidence show that the appellant did not prove his case against the respondent on a balance of probability.

17. The judgment of the learned trial court on liability is to the effect that the same was not proved because first, the cyclist was cycling on the tarmac instead of cycling on the designated path for bicycles and further that the police file indicated confusion on the file.

18. It is my considered opinion that though the trial court properly framed the issues, the trial’s court’s conclusion that the appellant did not prove his claim for the above stated reasons was not well founded. There is no evidence from the respondent that cyclist “ swerved to the far near side hence placing him in the wrong side of the road.” If indeed that happened, the more reasonable thing for the trial court to have done was to apportion blame. Secondly, the fact alone that the appellant and his cyclist did not wear reflector jackets is not a reason for dismissal of the suit but for apportionment of liability. In any event and as correctly submitted on behalf of the appellant, no evidence wad adduced by the defence showing that the cyclist was never ever meant to ride on the tarmac. In any event, a vehicle that is properly and carefully driven “does not lose control swerve out of the road and knock down a pillion passenger.” The respondent’s agent owed a duty of care to the appellant by ensuring that the vehicle was properly and carefully driven. It is worth noting that the respondent did not avail the driver of his vehicle to testify. This may have been informed by his denial in the written statement of defence that the vehicle did not belong to him. However, in his evidence during the trial, he admitted that the vehicle belonged to him and it be……… him to avail the driver to counteract the allegations of particulars made against him. I have also had a look at the respondent statements, and all that he said in that statement are mere denials. He needed oral evidence to rebut those bare denials and to also put some flesh on the denials contained in his statement of defence.

19. Upon consideration of the appellant’s case, it is clear that the appellant proved that the respondent’s vehicle was driven at a speed that was excessive in the circumstances’ that the vehicle was also driven without due care and attention and that is why he knocked down the appellant and his motorcyclist.

20. I also find that from the evidence the driver of the respondent’s car drove in a zigzag manner and suddenly and dangerously swerved the vehicle thereby failing to maintain any or any proper control of the vehicle and as result thereof he abruptly drove away from its lane and hit the appellant and the cyclist. My above findings are anchored in the appellant’s own testimony and in the testimony by the cyclist, Muse Shem who testified as PW2. The respondent did not rebut those testimonies.

21. Having said the above, I make a finding that the respondent was liable in negligence for the accident in which the appellant was injured. I also make a finding that since the appellant was not a passenger in the subject motor vehicle, he did contribute to the accident and I put his contribution to the accident at 30%(thirty percent) as against the respondent’s 70% (seventy ) percent

22. What about the quantum of damages? Should this court interfere with the same” the general principle is that an appellate court can only interfere with the quantum of damages where such award is either so low or so high as to give an erroneous impression of the purpose for which general damages are awarded. In the instant case, I do agree with the assessment by the learned trial Magistrate. The award is commensurate with the injuries sustained by the appellant.

Conclusion

23. In light of the above, I set aside the judgment on liability by the learned trial Magistrate and enter judgment on the same in the ratio of 30%:70% in favour of the appellant. Both general and special damages remain the same. The final judgment on this appeal is therefore the appeal is allowed. Judgment of the learned trial Magistrate is set aside and substituted as follows;

a. Liability 30%:70% in favour of the appellant

b. General damages –600,000/= subject to 30% liability = Kshs.420,000/=

c. Special damages ----------------------------=Kshs. 3,500/=

Total……..Kshs. 423,500/=

24. The appellant shall also have costs of the suit in the court below as well as costs of this appeal plus interest.

It is so ordered.

Judgment delivered, dated and signed in open court at Kakamega this 12th day of October 2017

RUTH N. SITATI

JUDGE

In the presence of:

Mr. Akwala (absent)………………….……for Appellant

Mr. Ombaye(present)…………………For Respondent

Polycap……………………………..……Court Assistant