[2022] KEHC 1300 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO. E116 OF 2021

BETWEEN

REGINA MPINDA....................................APPELLANT

AND

REUBEN MUTHIORA JOHNY...........RESPONDENT

(Being an appeal from the Judgment in Nkubu PMCC NO. 35 OF 2019 by Hon. J.Irura (PM) on 17th February, 2021)

JUDGMENT

Background

1. On 17th October, 2018 at about 13. 00 hrs, an accident involving motor vehicle KCD 465J (accident motor vehicle) and motor cycle KMCE 494K (motor cycle)occurred along Meru-Nkubu road as a result of which the Respondent who was a rider suffered bodily injuries.

2. At the conclusion of the trial, the learned trial magistrate found the accident motor vehicle was driven negligently and found Appellant liable at 100% and proceeded to award damages as follows:

1) General damages Kshs. 3,000,000/-

2) Special damages Kshs. 11,645/-

The Appeal

3. The Appellant dissatisfied with the lower court’s decision preferred this appeal on both on liability and quantum.

Analysis and Determination

4. I have considered the evidence on record and written submissions filed on behalf of the Respondent and the authorities cited. This is a first appeal and this Court is empowered to review and analyze the evidence on record and arrive at its independent conclusions. (See Selle & another vs. Associated Motor Boat Co.Ltd. & others (1968) EA 123). Sir Kenneth O’Connor of the Court of Appeal for Eastern Africa in Peters vs. Sunday Post Limited [1958] EA 424stated as follows:

“An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

Liability

5. In their testimony, Respondent and his witness stated that Appellant was overtaking on a bend without due care and attention and thereby drove on the lawful lane of the motor cycle thereby causing the accident. Appellant did not call any evidence.

6. In Embu Public Road Services Ltd. v.Riimi (1968) EA 22, the Court of Appeal held that:

“…where an accident occurs and no explanation is given by the defendant which could exonerate him from liability, then the court would be at liberty to apply the doctrine of res ipsa loquitur and hold the defendant liable in negligence.”

7. And also the finding in Nandwa v. Kenya Kazi Ltd (1988) KLR, 488 , the Court of Appeal stated that:

“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides some answer adequate to displace that inference.”

8. From the evidence on record, I find that the learned trial magistrate’s finding that the evidence by the Respondent and his witness concerning the manner in which the accident occurred was not rebutted and that Appellant was 100% liable was well founded.

Quantum

9. Respondent was treated as an inpatient for 10 days. A medical report by Dr. Wendo Jackline Kubai dated 27th March, 2019 reveals that Respondent suffered oblique fracture on mid third ulna, nerve injury and wounds on both knees. As at the time of examination which was 5 months after the accident, the wounds had healed, right upper limb was painful, right shoulder frozen with reduced motor power and sensation on right upper limb. A second medical report by Dr. Mwiti M.K dated 23rd July, 2020 reveals that Respondent suffered 100% loss of function of the right upper limb.

10. At the hearing, the Respondent prayed for Kshs. 3. 000,000 and cited H.K.N v Kenafric Bakery Ltd & another [2010] eKLR where the Court awarded general damages at Kshs. 2,500, 000/- for the following injuries;

a) Severe brain concussion leading to edema and loss of consciousness

b) Fracture of left mandible (chewing bone).

c) Fracture of left fore-arm bones (ulna and radius) at distal third zone.

d) Fracture of left collar bone (claricle) between middle and outer third.

e) Traction injury of left brachial plexus.

f) Laceration wound on the left check.

g) Severe contusion of right thigh quadriceps muscles (upper third).

h) De-gloving injury of the skin that covered the right thigh muscle.

i) Laceration of right saphenous and anterior cutaneous vein of the thigh compromising the venous return of lower limb.

11. The injuries healed with:

a) Weakness left upper limb.

b) Swollen right lower limb

c) Unappealing scar on the face and right thigh.

d) Pain left upper arm.

e) Long standing wound on the left dorsum of the hand.

f) Deformity of the upper limb.

12. Appellant offered Kshs. 500,000/- and placed reliance on Mwavita Jonathan v Silivia Onunga [2017] eKLR where the court on appeal reduced the damages to Kshs. 400,000/- for Left hip commuted intertrochanteric fracture, Blunt chest injury, dislocated right knee joint, Sprains at the cervical spine of the neck and the lumbar-sacral spine of the back and Deep wound on the left lower leg which cause lot of blood and CiviconLimited v Richard Njomo Omwancha & 2 others [2019] eKLR where the court on appeal reduced damages for 1st Respondent who suffered swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures and the 2nd Respondent who suffered deep cut wound on the left ear lobe, tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, bruises on the left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation on the left hip joint to to Kshs. 450,000/-.

13. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that the court’s decision is clearly wrong, because the court has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo V Shah (1968) EaA93 and Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30).

14. The Court of Appeal in StanleyMaore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and 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. (Emphasis added).

15. Looking at the cases considered in the trial court, the one that most closely compares to the present case is H.K.N v Kenafric Bakery Ltd & another (Supra) where Respondent suffered deformity of the upper limb with other serious injuries.

16. For reasons I have set out above, I allow the appeal in the following terms:

1)Liability is confirmed at 100% against the Appellant

2)The award of general damages isset aside and substituted with Kshs. 1,000,000/-.

3)Appellant shall bear ½ the costs of this appeal

DATED AT MERU THIS17thDAY OFMarch2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant -Morris Kinoti

For Appellant - N/A for Kimondo Gachoka & Co Advocates

For Respondent - Ms. Karimi for Mutembei Kimathi Advocates