[2022] KEHC 13865 (KLR)

Richard v Ntoiti (Civil Appeal E134 of 2021) [2022] KEHC 13865 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13865 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E134 of 2021

TW Cherere, J

October 13, 2022

Between

Joseph Kirimi Richard

Appellant

and

Cyprian Ntoiti

Respondent

(Being an appeal from the Judgment and Decree in Tigania CMCC NO. 66 OF 2019 by Hon. R.Ongíra (RM) on 31st August,2021)

Judgment

Background 1. On April 10, 2018, respondent was a pillion passenger on motor cycle KMDK 422N when it collided with appellant’s motor vehicle KCA 138 T as a result of which the respondent who was a fare paying passenger suffered bodily injuries.

The trial 2. Respondent blamed the appellant for knocking from behind the motor cycle that he was riding on thereby causing the accident in which he was injured. Charles Kobia stated that he witnessed appellant’s motor vehicle knock from behind the motor cycle that respondent was riding on. The accident was investigated by police who issued a police abstract PEXH. 1 in which appellant as blamed for knocking the rear of motor cycle that respondent was riding on.

3. Appellant conceded that there was a collision between his motor vehicle and the motor cycle that respondent was riding o. He blamed the rider for swerving while avoiding a rioting crowd and hit the bonnet of his car.

4. At the conclusion of the trial, the learned trial magistrate found the accident motor vehicle was driven negligently and found both appellant liable at 100% and proceeded to award respondent damages as follows:1. General damages KES 1,000,000/-2. Special damages KES 221,990/-

The Appeal 5. The appellants dissatisfied with the lower court’s decision preferred this appeal on both on liability and quantum.

Analysis and Determination 6. I have considered the evidence on record and written submissions filed by the parties 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).

Liability 7. From the grounds of appeal, appellant blames the respondent for allegedly boarding a motor cycle that had excess passengers which the respondent denied. The police abstract tendered as evidence confirms that respondent was the only pillion passenger. From the foregoing, I find that the contention that respondent boarded a motor cycle with excess passengers was not proved.

8. Additionally, appellant blamed the rider for swerving to his lane thereby causing the accident. The trial magistrate rejected the contention by the appellant firstly on the ground that the motor vehicle and the motor cycle were headed towards the same direction and secondly on the ground that appellant did not apply to join the rider as a party to the proceeding. Additionally, I find that the determination of the point of impact was not an issue for determination at the trial and cannot therefore form a ground of appeal.

9. From the foregoing, I find that the verdict by the trial magistrate that the appellant was liable at 100% was well grounded and it is upheld.

Quantum 10. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that its decision is clearly wrong, because it 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 MbogovShah (1968) EA 93 and KemfroAfrica Limited t/a Meru Express Services (1976) & anor vs Lubia &anor, No 2 [1987] KLR 30).

11. The respondent medical report prepared by Dr Kimathi Kioga on June 1, 2019 reveals that he suffered comminuted fracture right tibia , fracture proximal 1/3 right fibula, fracture 1st right metatarsal and degloving injury dorsal aspect of right foot. At the time of examination, 1 year and 2 months after the accident, the doctor noted shortening of right leg and unhealed wound oozing pus on dorsal aspect of right foot.

12. At the hearing, the respondent prayed for KES 2. 000,000 and cited James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another [2015] eKLR, where the court awarded general damages at KES 1,500,000/- on February 13, 2015, for compound comminuted fracture of the right tibia, compound comminuted fracture of the right fibula, Fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands multiple facial cuts and lacerations and Pathological /re-fracture of the right leg.

13. Appellant offered KES 200,000/- and placed reliance on Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR where the court on appeal set aside an award for KES 800,000/- and substituted it with an award for KES 500,000/- for fracture right tibia leg bone malleolus and right fibular bone and a blunt injury to the right ankle.

14. The learned trial magistrate considered other cases with comparable injuries and awarded KES. 1,000,000. The Court of Appeal in Stanley Maore 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. The authority cited by respondent relates to more serious injuries and the one cited by the appellant to less serious injuries than those suffered by respondent. The trial court also considered the decisions in Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR where the plaintiff suffered injuries of fractured right femur, compound fracture (r) tibia and fibula, shortening right led and episodic pain (r) thigh with inability to walk without support and the court awarded KES 700,000 as general damages and George William Awuor v Beryl Awuor Ochieng [2020] eKLR where appellant was awarded KES 1,200,000/- for fractures of the right femur and left tibia fibula

16. After considering the extent of the injuries suffered by the respondent and the cited cases, I find that the award on quantum was well founded and is not excessive.

17. In conclusion, I find that the appeal has no merit and it is dismissed with costs to the respondent.

DATED AT MERU THIS 13th DAY OF October 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor the Appellant - Mr. Kirimi for Mithega & Kariuki AdvocatesFor the Respondent - Mrs. Muthomi for Leonard K. Ondari & Co Advocates