[2020] KEHC 1107 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO. 127 OF 2018

POLYTANKS LIMITED.................................................................................APPELLANT/APPLICANT

-VERSUS-

EVERLYNE WANZA MUSAU AND MARY MUTHEU SILA ((Suing As The Legal Representatives

Of The Estate Of The JOSEPH MUSAU KIVELENGE)).......................................1ST RESPONDENT

MBUTHIA CHARLES.............................................................................................2ND RESPONDENT

PHILIP MUYUNGI LULU.......................................................................................3RD RESPONDENT

(Being an Appeal from a judgement of the Hon. M. Opanga, SRM delivered on 18th September, 2018 in Kangundo SPMCC No. 14 of 2016)

BETWEEN

EVERLYNE WANZA MUSAU AND MARY MUTHEU SILA (Suing as the legal representatives

of the Estate of the JOSEPH MUSAU KIVELENGE)........................................................PLAINTIFF

-VERSUS-

POLYTANKS LIMITED.............................................................................................. 1ST DEFENDANT

MBUTHIA CHARLES................................................................................................2ND DEFENDANT

PHILIP MUYUNGI LULU..........................................................................................3RD DEFENDANT

JUDGEMENT

1. By a plaint dated 25th January, 2016, the 1st respondents herein sued the Appellant, the 2nd and the 3rd Respondents claiming general and special damages, costs and interests arising from a road traffic accident that occurred on 29th July, 2013 at Joska along Kangundo-Nairobi Road in which the deceased sustained fatal injuries and died.

2. According to the plaint, the appellant herein was the registered owner of motor vehicle registration no. KAX 501S while the 2nd Respondent was the registered owner of motor vehicle registration no. KBC 996F of which the 3rd Respondent was the driver and/or either the actual but unregistered owner or otherwise had a beneficial or insurable interest in.

3. According to the plaint on the said date, the deceased was a passenger on board the 3rd Respondent’s said vehicle when at the said place motor vehicle registration no. KBC 996F and KAX 501S were so negligently driven and/or carelessly driven that the same were permitted to collide as a result of which the deceased sustained severe fatal injuries. The particulars of negligence were pleaded and reliance was also placed on the doctrine of res ipsa loquitor.

4. The said suit was brought pursuant to the provisions of the Fatal Accidents Act and the Law Reform Act and it was pleaded that at the time of the deceased’s death, he was aged 34 years and was the breadwinner of the family who particulars were pleaded. As a result, the dependants of the deceased were subjected to loss and suffering and suffered damages both general and special. The special damages were itemised in the sum of Kshs 43,010/=.

5. The appellant, the 2nd and 3rd Respondents entered appearance and filed their defences.

6. In its defence, the appellant denied the allegations pleaded in the plaint and averred that the accident was caused by the 3rd Respondent who was the driver of motor vehicle reg no. KBC 996F hence the 2nd Respondent as the registered owner thereof was vicariously liable. In the alternative it was pleaded that the accident was entirely caused by or substantially contributed to by the 3rd Respondent particulars whereof were given. It was therefore sought that the suit be dismissed with costs.

7. According to the 2nd Respondent, long before the cause of action arose, he was the registered and beneficial owner of motor vehicle registration no. KBC 996F which was involved in an accident on 25th September, 2011, was extensively damaged and was declared a write off. As a result, he was comprehensively compensated by his insurance Canon Assurance Company Limited in the sum of Kshs 310,000/- and executed a discharge voucher and forwarded the documents relating to the said vehicle to the said insurance company for the purposes of disposal of the salvage. Subsequently the said insurance company sold the said vehicle to one Fredrick Migwi Chiuri who collected the salvage together with the said documents on or about 28th February, 2012 and the actual and/or beneficial ownership of the said vehicle surrendered to the said Fredrick Migwi Chiuri. Accordingly, at the time of the accident, neither the 2nd Respondent nor the said insurance company had control over the said vehicle ad he denied knowledge of the same as well as liability and the 2nd Respondent prayed that the suit be dismissed with costs.

8. On his part the 3rd Respondent denied the allegations in the plaint and pleaded in the alternative that the accident was wholly caused and/or substantially contributed to by the negligence of the deceased and motor vehicle reg. no. KAX 501S particulars whereof were pleaded and he prayed that the suit be dismissed with costs.

9. Suffice it to say that the 1st Respondent filed replies to the said defences in which they denied the allegations made by the appellant and the other respondents. The Appellant also filed a notice of claim against co-defendant directed against the 3rd Respondent.

10. A consent was however recorded which was translated into a court order issued on 4th November, 2016 by which the 2nd Respondent was struck out of the suit with no order as to costs.

11. PW1, Everlyne Wanja Musau, relied on her witness statement filed herein according to which she stated that on 29th July, 2013 she was called by one Kitheka, a friend of the deceased husband who informed her of the accident and the death of the deceased. The following day, she travelled from upcountry and went to the Hospital where the body had been taken and identified the same after which the body was buried. According to her they spent approximately Kshs 100,000. 00.

12. In her oral evidence she testified that the deceased was taken to Mama Lucy Kibaki Hospital before he died and that the deceased was earning Kshs 15,000/- per month. The deceased left her with four children. Upon reporting the accident, she was issued with a police abstract which she exhibited as well as the records from the registrar of motor vehicles. She also testified that she obtained leave to file the suit as well as letters of administration ad litem which she exhibited. She also exhibited a copy of the certificate of insurance for the 3rd Respondent, the death certificate, her children’s’ birth certificates and receipts for the expenses incurred.

13. In cross examination, she admitted that she did not produce evidence of the deceased’s earnings but stated he worked as an office messenger. He similarly had no evidence that the deceased used to send her Kshs 12,000/-. According to her they lived at Kasarani and she operated a shop opened for her by the deceased. She was however not at the scene of the accident and did not know how it occurred.

14. PW2, Alphonse Keyene Mongo, similarly relied on his statement in which he stated that on 29th July, 2013 an accident occurred along Kangundo-Nairobi Road at Joska between motor vehicle registration nos. KBC 996F and KAX 501S. According to him both vehicles were to blame.

15. He stated in his oral evidence that he was a boda boda operator and on 29th July, 2013 an accident occurred involving two motor vehicles registration nos. KBC 996F and KAX 501S which were coming from the opposite directions. According to him the road had potholes and each of the said vehicles served to avoid them and they collided in the middle of the road. According to him the deceased was in motor vehicle KBC. In cross-examination he insisted that he witnessed the accident and that there were potholes on the road. He could not however tell if there was a dog on the road. According to him, he parked his motor cycle on the side of the road and went and saw the deceased and even helped in removing the injured from the said vehicle. Though the police took his particulars he was not called to record a statement.

16. The Appellant called Peter Ndiritu, who testified as DW1. According to him, he was an insurance investigator and in that capacity he compiled a report of an accident involving the two vehicles which he exhibited. From his investigations, motor vehicle reg. no. KBC 996F was to blame for the accident. It was his evidence that motor vehicle KAX 501S encroached onto the lane of motor vehicle reg. no. KBC 996F. It was his evidence that motor vehicle KAX 501S was insured and the driver was licensed. In cross-examination he confirmed that motor vehicle KAX 501S was to blame for the accident and the police also blamed motor vehicle KAX 501S though the matter was indicated as pending under investigations in the abstract report. He was however unaware of the driver of the said vehicle was charged though he was also injured. In re-examination, he stated that motor vehicle reg. no. KBC 996F encroached onto the lane of motor vehicle reg. no. KAX 501S.

18. DW2, Samuel Nyagaka, the Appellant’s driver, relied on his statement in which he stated that he was employed by the appellant as a driver and on the material day he was assigned motor vehicle reg. no. KAX 501S. According to him, at the time of the accident he was driving at a speed of about 45-50kmph when he saw two dogs crossing from right to left as well as an oncoming motor vehicle reg. no. KBC 996F which upon noticing the dogs veered onto his lane in a bid to avoid the dogs at a relatively high speed. In order to avoid a head-on collision, he went to his extreme left but the said vehicle rammed onto the side of his vehicle. He was later issued with a Notice of Intended Prosecution.

18. According to him, he was a licensed driver and after the accident the inspection report revealed no pre-accident defects. It was his evidence that motor vehicle reg. no. KBC 996F was to blame for the accident. According to him, he was from Tala heading to Nairobi driving motor vehicle KAX 501S at a speed of 30kmph when he saw two dogs crossing the road from left to right. However, motor vehicle reg. no. KBC 996F which was coming at a high speed was unable to slow down and veered off to his lane colliding with him.

19. After considering the evidence, the Learned Trial Magistrate found that there was no dispute that an accident occurred on the 29th July, 2013 involving the Appellant’s vehicle and the 3rd Respondent’s vehicle aforesaid. According to the Learned Trial Magistrate, based on the evidence on record it was prudent to apportion liability equally between the Appellant and the 3rd Defendant since there was no evidence indicating the point of impact on the road and having treated the evidence of DW1 with caution in the absence of the evidence of the investigating officer to corroborate it, more so as the matter was pending under investigation.

20. On quantum, she awarded Kshs 100,000/- since the evidence was that the deceased did not die immediately. She also awarded Kshs 200,000/-for loss of expectation of life. As for dependency, she adopted the minimum wage approach and computed the deceased’s earning at Kshs 10,00/- per month and applied a dependency ratio of 2/3rds and multiplicand of 35 years hence arriving at an award of Kshs 2,800,000/- under that head. She also awarded Kshs 43,010/- in special damages. In total she awarded Kshs 3,143,010/- with interest and costs.

21. Aggrieved by the said decision the appellant lodged this appeal against both liability and quantum.

22. Apart from the appeal, the 1st Respondent has filed a cross-appeal seeking to have the awards by the learned Trial Magistrate set aside and a fresh award be made by this Court on the ground that the trial court did not consider the submissions made by the 1st Respondent.

Determination

23. I have considered the foregoing. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123that:

“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

24. Therefore, this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.

25. In this case, it is clear from the judgement that the court relied on the evidence of PW2 who stated that he witnessed the accident taking place and that both vehicles were attempting to avoid hitting potholes. In his evidence the accident was caused by both vehicles. The only factual evidence that contradicted his testimony was that of the driver of the appellant, dw2. According to him, the 3rd Respondent’s vehicle in attempting to avoid hitting the two dogs which were crossing the road veered off onto his lane causing the collision. According to the said witness he attempted to go to his extreme left but the driver of the 3rd Respondent’s vehicle followed him there and collided with him. In his witness statement, he stated that the dogs came from the right side of the road to the left while in his evidence in court he stated that they were in fact from the left to the right. In light of this inconsistent and contradictory positions, I agree with the Learned Trial Magistrate that would have been prudent to call the investigating officer to produce the plans taken if any to show the point of impact. Without that evidence, I do not see how the finding by the learned trial magistrate apportioning liability equally can be faulted. The question that arises is therefore whether this Court ought to interfere with this finding of fact.

26. In Petersvs. Sunday Post Limited [1958] EA 424, it was held that:

“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”

27. Nevertheless, in Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 the Court of Appeal held that:

“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

28. In this case this court is being called upon to interfere with the trial court’s apportionment of liability. In Khambi and Another vs. 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.”

29. That seems to have been the position in Isabella Wanjiru Karangu vs. Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142and Mahendra M Malde vs. George M Angira Civil Appeal No. 12 of 1981, where it was held that apportionment of blame represents an exercise of a 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.

30. According to Zarina Akbarali Shariff and Another vs. Noshir Pirosesha Sethna and Others [1963] EA 239:

“The findings of a trial Judge as to degrees of blame to be attributed to two or more tortfeasors involves an individual choice or discretion and will not be interfered with on appeal save in exceptional circumstances.”

31. Similarly, in Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, it was held that an apportionment of liability made by a trial Court will not be interfered with on appeal save in exceptional cases as where there is some error of principle or the apportionment is manifestly erroneous.

32. The question that arises is whether based on the evidence before the court, the trial court could properly arrive at the decision he did. From the evidence of PW2, the only independent witness of fact, both the drivers of the two vehicles were attempting to avoid the potholes when they collided in the middle of the road. There was no other credible evidence regarding the point of impact. The Learned Trial Magistrate was at liberty to believe PW2 who was an independent witness and whose evidence was unshaken in corss-examiantion as opposed to that of DW1 which was based on opinion and whose sources of information were not availed for cross-examination. Similarly, the evidence of DW2 was not consistent as it contradicted his witness statement which he adopted as part of his evidence. Without the evidence of the investigation officer, one cannot find with certainty what action DW2 took to avoid the accident. In Zarina Akbarali Shariff and Another vs. Noshir Pirosesha Sethna and Others [1963] EA 239, it was held that:

“A driver on the main road...is bound to exercise the right of being on the main road in a reasonable way. He has to watch and conform to the movement of other traffic which is in the offing, and he must take due care to avoid collision with it. The answer as to whether the court is entitled to think that the driver, despite his prima facieright of way, should surrender that right in anticipation of possible failure on the part of the driver on the side road to note the safe course, must turn on the conduct of the driver on the side road and on the opportunities which the driver on the main road has of observing it. There must be something in the conduct of the driver on the side road which the driver on the main road ought to have seen and which would have certiorated him, had he been taking proper care, that the driver on the side road was not going to pass behind but was going to try to pass in front of the driver on the main road. There is no doubt that anyone driving on the main road is entitled to keep his proper place on the road, and to do so in reliance on the side traffic heaving itself as the rules of the road desires, until it may be the very last moment observation of a gross infringement by others calls for a special attempt to deal with it…If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions…A driver is never entitled to assume that people will not do what experience and common sense teach him that they are, in fact, likely to do…It is not correct that drivers are entitled to drive on the assumption that other road users whether drivers or pedestrians, would behave with reasonable care. It is common experience that many do not. A driver is not, of course, bound to anticipate folly in all forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take…He cannot be expected to cope with every form of recklessness or outrageous conduct on the part of other road users, but ordinary prudence would require him to approach at a speed which, combined with a proper look-out, would leave him able to take reasonable avoiding action if the need became apparent. What is reasonable is a question of degree depending on the particular circumstances. If he did not do so, or deprived himself of his opportunity to take avoiding action by not keeping a proper lookout, that could be negligence contributing to an accident…This does not mean that the driver on the major road can disregard the existence of the cross-roads: it is his duty to keep a proper look-out of all the vehicles or pedestrians who are using or may come upon the road from any direction and if he fails to do so and as a result an accident happens, then he is negligent even though there has been greater negligence on the other party. It is the duty of every driver to guard against the possibility of any danger which is reasonably apparent, but it is not his duty to proceed in such a way that he could avoid an accident no matter how reckless the other party may be.”

33. Similarly, in Masembe vs. Sugar Corporation and Another [2002] 2 EA 434 it was held that:

“When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it…There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct…Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.”

34. According to Aganyanya, J (as he then was) in Merali & 2 Others vs. Pattani [1986] KLR 735:

“That one is driving on major road does not mean that she is entitled to ignore traffic approaching the junction from the minor road and assume, which the plaintiff here did, that such traffic would always conform to the “yield” sign…The plaintiff was thus negligent in failing to slow down. The possibility of danger emerging at that junction on either side of the minor road was reasonably apparent in view of the fact that visibility was obstructed by high hedges and it was incumbent upon the plaintiff to take extra precautions. This was not a case where the plaintiff should have taken that it was a mere possibility that danger would emerge, which would never occur to the mind of a reasonable man…Anyone driving on a major road is entitled to go on that road in a proper position and is entitled to keep his proper place on that road and to do so in reliance on side road traffic behaving himself as the rules of the road desires until it may be at the very last moment some observations of a gross – infringement by other calls for special attempt to deal with it. The driver on a major road as the plaintiff was is not expected, say, to slow down to a pace of 15 miles an hour in broad daylight, when approaching a side road or otherwise share the blame for any collision, which may occur. But here the plaintiff omitted to take due care for the safety of the defendant and as a prudent driver, she ought to have guarded against possible negligence of drivers on the minor road, defendant included, as experience shows negligence to be common…Though therefore the defendant was mainly to blame for the accident and ought to compensate the plaintiff therefor; the plaintiff contributed in some measure to it and her contributory negligence put at 30%.”

35. According to the decision inMwanza vs. Matheka [1982] KLR 258:

“Speed Itself is not necessarily negligence. But it is probable that the driver of the bus took no action at all, according to the evidence, to avoid this violent meeting. He did not ease further to his near side or slow down. He was not, of course, required to steer his bus with its passengers over to his near side straight into the culvert. He must have seen the tanker approaching long enough to rule out any decision having to be made in the agony of the moment…On the evidence, the plaintiffs have proved the defendants were negligent, but it is not possible to apportion the blame and so the defendants are equally to blame.”

36. What comes out from the said decisions is that there is no hard and fast rule when it comes to apportionment of liability where one driver is prima facie on the right. In other words, a driver on the road must always keep at the back of his mind that some road users are likely to be negligent give allowance for that and ought not to adopt an attitude that as long as he is driving properly on the road, he ought not to take action which a reasonable driver is expected to take when there appears to a possibility of danger posed by other roadusers. If he fails to do so, he could be liable in negligence if not wholly to a certain extent.

37. In light of the conflicting evidence on record as regards the manner in which the accident occurred, there is no basis upon which I can find that that apportionment of liability was clearly wrong, or based on no evidence or on the application of a wrong principle or that it was manifestly erroneous. As was held by Madan, J (as he then was) in Welch vs. Standard Bank Limited [1970] EA 115 expressed himself as hereunder:

“When there is no material to generate actual persuasion in the court’s mind, still the court cannot unconcernedly refuse to perform its allotted task of reaching a determination. The collision is a fact. Any one of the alternatives mentioned may provide the right answer as to how it happened. The court’s sense of impartiality prevents the choosing of the alternatives of individual blame against either driver. It would be just to say, and it is as likely the explanation that both drivers were to blame equally as that only one of them was wholly to blame. Accidents do not happen but they are caused. It is an explanation which offers a solution of impartial practicability. Everyday, proof of collision is held to be sufficient to call on the two defendants to answer. Never do they both escape liability. One or the other is held to blame. They would not escape simply because the court had nothing by which to draw any distinction between them. So, also, if they are both dead and cannot give evidence enabling the Court to draw a distinction between them, they must both be held to blame, and equally to blame…Justice must not be denied because the proceedings before the court fail to conform to conventional rules provided, in its judgement, the court is able to discern that which is right owing to it being fair and just in the circumstances, without jeopardising the vital task of doing justice. Provided there is no transgression of this sacred duty, the court will act justly in coming to a decision even if there is no evidence capable of procreating actual persuasion…There being nothing to enable the court to draw a distinction between the two drivers, it is consonant with probabilities, and it is not repugnant aesthetically to a logical judicial mind, to hold that both were to blame, and equally to blame. The court does hold so in this case.”

38. Similarly, in Lakhamshi vs. Attorney-General [1971 EA 118 it was held that:

“A judge is under a duty when confronted with conflicting evidence to reach a decision on it and in most traffic accidents it is possible on a balance of probability to conclude that one or other party was guilty, or that both parties were guilty, of negligence. In many cases, as for example, where vehicles collide near the middle of a wide straight road, in conditions of good visibility, with no obstruction or other traffic affecting their courses, there is, in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. It is usually possible, although often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence but where it is not possible, it is proper to divide the blame equally between them.”

39. As regards the award of damages, the Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:

“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

40. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:

“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…”

41. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:

“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff...”

42. In these submissions I am not satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. In Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:

“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

43. On my part I have considered the award and even if I was to find that sitting as the trial court, I would have awarded a different figure, that per se is not a justification for interfering with the award.

44. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:

“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

45. As was held in Mariga vs. Musila (1984) KLR 251:

“The assessment of damages is more like an exercise of discretion and the appellate court is slow to reverse a lower court’s decision on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has for this or other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court judge acted on wrong principles.”

46. Having considered the authorities relied upon, it is my finding that there is no basis for interfering with the award. The Learned Trial Magistrate’s decision was well reasoned and in my view based on sound and solid legal principles. The learned trial magistrate was not bound to align herself with the submissions of either party. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions. As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:

“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”

47. The same Judge in Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:

“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

48. Similarly, in Ngang’a & Anothervs.Owiti & Another[2008] 1KLR (EP) 749, the Court held that:

“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”

49. As stated by the Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:

“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

50. In the premises, both the appeal and the cross-appeal fail and are dismissed with no order as to costs.

51. Orders accordingly.

Judgement read, signed and delivered in open Court at Machakos this 14th December, 2020.

G. V. ODUNGA

JUDGE

In the presence of:

Miss Nyakundi for Mr Juma the Appellant

Mr Muia for Mr Musili Mbiti for the Respondent

CA Geoffrey