[2022] KEHC 13653 (KLR)

Rift Valley Bottlers Ltd & another v JC (Minor suing through mother and next friend ICB) (Civil Appeal 153 of 2019) [2022] KEHC 13653 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13653 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 153 of 2019

RN Nyakundi, J

October 12, 2022

Between

Rift Valley Bottlers Ltd

1st Appellant

George Kariuki Thuo

2nd Appellant

and

JC

Respondent

Minor suing through mother and next friend ICB

(Being an Appeal from the Judgment and Decree of the Chief Magistrate Court at Eldoret in Eldoret CMCC No. 71 0f 2017 on the 4th day of October, 2019 by Honourable C. Obulutsa)

Judgment

1. The plaintiff/respondent sued the defendant/appellants for general and special damages arising out of a road traffic accident involving motor vehicle registration number KBH 902Q owned by the 1st defendant and driven by the 2nd defendant, when on or about October 31, 2016, the plaintiff minor was a lawful pedestrian along Eldoret- Kapsabet road Race Course when the said motor vehicle was so negligently, carelessly/or recklessly driven /oversped by the 2nd defendant, the driver of the 1st defendant , that it overtook, veered off the road and knocked down the plaintiff thereby occasioning her severe injuries, loss and damages.

2. In a judgment delivered on October 4, 2018, the court found the defendants 100% liable for the accident that occurred on October 31, 2016 . On quantum, the plaintiff was awarded by the trial court as follows:-- General damages Kshs 4,000,000-Special damages Kshs 6,500The plaintiff was also awarded costs of the suit and interest at court rates.

3. Being aggrieved with the decision of the trial court, the appellants filed their memorandum of appeal dated October 24, 2019 on the following grounds:-i.That the learned magistrate erred both in law and fact in basing his findings on irrelevant matters.ii.That the learned magistrate erred in law and in fact in failing to appreciate or take into account the appellant submissions or at all.iii.The finding on liability was erroneous vis-a vis the issues entailediii.That the learned magistrate award on damages was inordinately high, improper, unrealistic and inappropriate under all circumstances of the case.iv.The learned trial magistrate erred on all points of fact and law in as far as award of damages is concerned.

4. The appellants filed their record of appeal on November 17, 2021 and on May 10, 2022, parties took directions to canvass the appeal by way of written submissions.

5. The appellants filed their submissions on May 25, 2022 whereas the respondent filed hers on June 7, 2022.

Appellants’ Submissions 6. The appellants submitted that on grounds number 1, 2 and 3 in the memorandum of appeal which are on liability, the trial magistrate erred in apportioning liability at 100% against the appellants as the respondent‘s case was not supported by sufficient evidence neither was it proved on a balance of probability as required by law. It was argued that the burden of proof is always on whoever alleges and reliance was placed in the cases of Statpack Industries v James Mbithi Munyao, Nairobi HCCCA No 152 of 2003 and LWK (A minor suing through father and next friend SKD) V Kirigu Stanley & another (2019) eKLR , where the court quoted the case of Evans Nyakwana v Cleophas Bwana Ongaro(2015)eKLR . According to the appellants, PW1 and PW2 who are the alleged parents of the minors were said to be the eye witnesses and being the parents of the minor, they could have been biased in their testimony. It was submitted that an eye witness should have been called to corroborate the respondent’s claim. The case of Nairobi CACA No 195 of 1995 Mary Wamboi v Kenya Bus Services was cited.

7. It was also submitted that the main evidence linking the appellants to the said accident was a police abstract produced by PW1 and the testimony by PW5, PC Cheserek, who was not the investigating officer and neither did he witness the alleged accident. Counsel for the appellants also submitted that PW5 was charged but no one had been convicted from the same and as such, the evidence adduced is not sufficient to proof liability in a civil case.

8. According to the appellants, the respondent did not prove negligence on the part of the appellants and that the respondent should be found wholly and /or largely liable as the parents of the minor were also to blame for their negligence towards the minor.

9. On the issue of quantum, it was submitted that the trial court’s award of Kshs 4,000,000 as general damages was inordinately high. According to the appellants, the respondent in her plaint pleaded that the minor had suffered 100% disability as a result of the alleged accident supported by a medical report by Dr Sokobe and that additionally, they claimed that the minor had developed downs syndrome as a result of the accident and blamed the appellants for that. The appellant’s in response submitted that 2nd medical report by Dr Z. Gaya largely contradicted the medical report by Dr Sokobe and treatment notes produced by the respondent. According to the appellants, the medical report reduced the reduced the percentage on disability to 60% noting that the minor was active and could understand things when talked to. It was further submitted that the appellants’ medical report confirmed that the minor had downs syndrome before the alleged accident which is a genetic condition that incapacitated the minor even before the alleged accident. The appellants maintained that the respondent’s witness PW3 Dr Rono testified that the minor had downs syndrome and stated that one of the effects of downs syndrome is disability and that the permanent disability of 100% was not wholly due to the accident but rather because the minor was already suffering the effects of downs syndrome even before the accident.

10. It was thus submitted that the trial court’s award of Kshs 4,000,000 in general damages was erroneous and that considering the respondent’s pleaded injuries, Kshs 500,000 should have sufficed as an award in general damages. Reliance was placed on the cases of Elizabeth Wamboi Gichoni v Benard Ouma Owuor(2019)eKLR, Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna(2022)eKLR and Millicent Atieno Ochuonyo v Katola Richard (2015)eKLR to buttress this position.

Respondent’s Submissions 11. The respondent opposed this appeal and supported the trial court’s decision. On liability, it was submitted that the court did not err its finding that the defendants were 100% liable for the accident. Counsel submitted that it is the duty of parties to prove the existence of facts upon which the court lays basis for its determination and that the appellants opined in the trial court’s submissions that liability ought to be apportioned to the ratio of 50:50 meaning that both parties were to blame for the accident. It was further submitted that the defendant did not rebut the testimony of the plaintiff’s witnesses. According to the respondent, the appellants did not establish existence of the facts that could assist apportioning liability to the plaintiff. The respondent maintained that the plaintiff was 4 years and could therefore not be held liable owning to her tender years. The Court of Appeal case of Bashir Ahamed Butt v Uwasis Ahamed Khan(1982-1988)IKARI;(1981)eKLR 349 was cited.

12. On quantum, it was submitted that the respondent was entitled to the award of Kshs 4,000,000 as she suffered severe injuries and had a permanent disability at 100%. Counsel for the respondent cited the case of Peris Ondusi Omondi v Tectura International Limited & another(2012)eKLR where the plaintiff was awarded Kshs 3,500,000 as general damages; Susan Waweru Njuguna v Keringet Flowers Ltd & others Nakuru HCC No 64 of 2001 where an award of Kshs 3,000,000 was made and Terry Kanyua Marangu v Wellsfargo ltd (2014)eKLR where an award of Kshs 3,000,000 was also made.

13. In the end, the court was urged to uphold the decision of the trial court and dismiss the appeal with costs to the respondent.

Determination 14. This being a first appeal, the court should analyse and re-assess the evidence on record and reach its own conclusions except bearing in mind that it neither saw nor heard the witnesses when they testified as was held inWilliamson Diamonds Ltd and another v Brown[1970] EA 1, where the court stated that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”The test on proof of negligenceI find the following persuasive jurisprudential principles worthy emulating: In the Attorney General v Phillip Granston[2011] JMCA Civ 1 . At paragraph [33] he opined as follows: - “It is trite law that the burden of proof of negligence is on a claimant and also, as a matter of law, the onus of proof of causation is on the claimant. That is, the claimant must establish on the balance of probabilities, a causal connection between his injury and the defendant’s negligence. For him to succeed he must show that the [tortious] act materially contributed to his injury…”Similarly in Joan Clements, by her litigation guardian, Donna Jardine v Joseph Clements [2012] 2 RCS, 181, at page 187, paragraphs 8-10 12 , McLachlin C J. provided a comprehensive analysis of the nature and application of the ‘but for’ test. He stated as follows: - “The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilsher v Essex Area Health Authority, [1988] AC 1074 (HL), at p 1090, per Lord Bridge;Snell v Farrell, [1990] 2 SCR 311. A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.” See also Dewshi v Kuldip’s Touring Co Civil appeal (1968) (EACA) (1969) EA 189, Msuri Muhhidin v Nazzor Bin Self (1960) EA 201 andEmbu Public Road Services v Riimi 91968) EA 22.

15. PW1 was one Irene Chepkemoi Barusei who stated that she was the plaintiff suing on behalf of the injured minor, J.C She stated that she was standing beside the road with the minor and the minor’s father on the fateful day when the 1st defendant’s motor vehicle registration No KBH 902Q being driven by the 2nd defendant lost control, veered off the road and knocked the minor into a trench. She stated that the minor was taken to MTRH then transferred to Eldoret hospital ICU and brought back to Moi Teaching & Referral Hospital ICU as an inpatient and later treated as an inpatient at Race Course Hospital. On cross examination, she conceded to not having treatment chits from Eldoret hospital and that some of the hospital bills were paid by NHIF. She maintained that the minor was still undergoing psychoscope at Race Course Hospital.

16. PW2 was Rodgers Korir the minor’s father and he reiterated the testimony of PW1.

17. Dr Rono from Moi Teaching & Referral Hospital testified as PW3 who confirmed that the minor was treated at the facility as an inpatient. It was his testimony that the minor had serious head injuries and was attended to at different levels. Although he admitted on cross examination that the minor had downs syndrome even before the accident, he reiterated on re-examination that head injury can cause other serious conditions such as epilepsy.

18. PW4 was Dr Sokobe who examined the minor and issued her medico-legal report which was produced as PExb 13(a). He confirmed the injuries sustained by the minor as a result of the accident and that the minor had 100% disability as a result of the said accident. Fe further stated that the pneumonia as developed by the minor was from aspiration. According to PW4, head injuries often leads to convulsions disorder.

19. PC Cheserek testified as PW5 and confirmed that indeed an accident occurred on the fateful day and the minor J.C was seriously injured as a result.

20. The defence did not call any witnesses and closed their case.

21. I have carefully considered the evidence before the trial’s court and the grounds of appeal and the submissions on the appeal.

22. From the grounds of appeal, the appellants faulted the trial court for holding that the appellants were wholly to blame for the accident and failed to attribute some contributory negligence to the respondent and particularly the parents who were with the minor on the fateful day. The respondent on the other hand submitted that the minor cannot be blamed for the accident.

23. On the issue of quantum, as discussed earlier, the appellants argued that the award of damages was inordinately high and opined that an award of Kshs 500,000 would suffice. The respondent on her part supported the trial court’s finding on liability and quantum.

24. The main issues that arise for my determination in this appeal is whether the trial court fell into error in holding the appellants 100% liable for the accident and whether the award on quantum was inordinately high.

25. On the 1st issue, the trial court at page 4 of the judgment stated;“The two parents were eye witnesses. The defendants by failing to call witnesses, have not laid any basis as to why the court should apportion liability between the parties. The court is satisfied that negligence has been established against the driver and liability is found in full against the 1st defendant as owner on a balance of probability.”

26. I have analysed the record and re-evaluated the evidence. It is true that the 2nd appellant was driving motor vehicle registration number KBH 902Q owned by the 1st appellant on the material time and said vehicle was involved in an accident where the minor sustained serious injuries. The appellants blamed the parents of the minor for contributing to the accident. From the evidence on record, I do not agree that the minor nor her parents were in any way to blame for the accident. I am therefore unable to fault the trial court on its finding on liability.

27. On quantum, the appellants have argued that the award was inordinately high compared to the injuries the respondent suffered. The respondent on the other hand has argued that the minor suffered severe injuries and had a permanent incapacity of 100% as a result of the accident and therefore the award of damages was appropriate.In cases of these nature; “the burden is upon the claimant to show the extent of his or her hurt. If his arm or his leg has been amputated the task is simple. He can present his person in court. If it is a question of impaired mental faculties, ill health due to the injury, and especially some nervous disorder, his problem of proof is more difficult. Expert testimony will be required in all but the clearest cases. The plaintiff must establish with sufficient evidence the extent of his hurt as he alleges it to be, and that the same has been brought about by the defendant's wrongful act.2 The problem of assessing damages is the problem of evaluating the hurt or injury which the plaintiff has demonstrated. The data which the plaintiff may introduce to aid the jury in the process of evaluating the hurt are such as these: the value of the time he has lost by reason of the injury, the expenses he has been put to in effecting a cure, the physical disability he has suffered, either temporary or permanent, the impairment of his earning capacity, the inconvenience and humiliation he may have undergone, and will continue to undergo, as a result of the hurt. Any one or more of these will normally be considered in evaluating the injury.” See Assessment of Damages in Personal Injury Actions Venon X Miller Minnesota Law Review (1930).

28. I have considered respective parties’ arguments on this issue. I have also noted that the two medico-legal reports are in conflict as regard the extent of the degree of permanent incapacity. The appellants’ doctor assessed permanent incapacity at 60% while the respondent’s doctor placed permanent incapacity at 100%.

29. On the issue as to whether the award of damages was inordinately high, courts have held that an appellate court should not interfere with exercise of discretion by a trial court unless it acted on a wrong principle, took into account irrelevant factors or failed to take into account relevant factors.

30. InKemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m Lubia and Olive Lubia [1985] Kneller. J.A, stated:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

31. In this appeal, the trial court considered the injuries the minor suffered as well as the decisions the opposing parties had relied on. The trial court in its judgment at page 83 of the record of appeal stated,“The court has considered the injuries and the defendants authority which gives injuries less serious than what the plaintiff suffered. The plaintiff’s proposal has been seen. The injuries in the authority are more comparable and taking into account inflation, the court finds that an amount of Kshs 4,000,000 is adequate as general damages. ….”

32. It is worth noting that assessment of damages involves exercise of discretion, and as already pointed out, the principles on which this court, sitting on appeal may interfere with exercise of that discretion are clear. Judge D.S Majanja further held in Mwavita Jonathan v Silivia Onunga HCCA No 17 of 2017 as here below;- In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Stanley Maore v Geoffrey Mwenda Nyr CA civil appeal No 147 of 2002 [2004]eKLR 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.In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards which must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Serivice v Gachoka Nku CA civil appeal No 66 of 1981 (1982) eklr andJabane v Olenja (1986) KLR 661)”What constitutes compelling and substantial circumstances to be considered in assessing the level of the award in this kind of cases.(i)Age;(ii)Extent of residual movement;(iii)Pain;(iv)Effect on other senses;(v)Psychological sequelae including depression;(vi)Effect on familial and other relationships;(vii)Level of independence.(viii)Prognosis to include any future vulnerability(ix)The extent and or nature of any associated physical injuries( See Kelly v Hennessy(1995) 3 IR 253 and Knowles v Minister for defence 92002) IEHC 39)

33. The plaintiff in her plaint pleaded that she sustained severe head injury with loss of consciousness, blunt injury to the chest, lung aspiration with pneumonia and developed convulsive disorder (epilepsy). These injuries were confirmed by Dr Sokobe’s medical report dated November 23, 2016. Present complaints were; She is using a tracheostomy to breath, She is not talking but can recognize objects, Has left sided paralysis, She is not able to feed and is using a nasogastric tube; and that she cannot control her back. Dr Sokobe assessed permanent incapacity at 100%.

34. The appellants produced a 2nd medical report by Dr Z Gaya dated June 30, 2019. The injuries according to the doctor was head injury on a patient with downs syndrome and delayed milestones, small temporal haematoma with unconsciousness and pulmonary oedema. The present complaints according to Dr Z Gaya were inability to balance her body, she tiptoes on the left leg and she falls down from time to time while walking because of instability, she has recurrent throat infections because of tracheostomy, NG tube pressure mark on the right side of the mouth, snorous breathing when asleep and delayed learning after the accident. He assessed permanent disability at 60%.

35. The trial court in its judgment was silent on the discrepancy in the medical reports on the permanent disability. In the case of China Road and Bridge Corporation(Kenya) v Job Mburu Ndungu[2021] eKLR, Justice Mwita while dealing with a case similar to the instant case on the discrepancy of the medical report stated,“45. The two medical reports disagreed on the assessment of permanent incapacity. Whereas the respondent’s doctor who had seen the respondent six months after the accident and put permanent incapacity at 50%, the appellant’s doctor saw the respondent seven months later and put permanent incapacity at 15%. It would have been important for the trial court to state whether to accept the assessment of 50% by the respondent’s doctor, or 15% by the appellant’s doctor. In my view, to reconcile this discrepancy it is appropriate to take the average of the two assessments which would put disability at 32. 5%.46. Further, whereas the respondent’s doctor opined that the respondent walked with a limp, the appellant’s doctor stated that all the fractures had healed well and the respondent worked and walked normally with no limp. would that significantly change the position regarding the award…”

36. Being persuaded by the above authority on the issue of the discrepancy in the degree of permanent disability, in order to reconcile the discrepancy, the average of the two medical assessments would put the disability at 80%.

37. In the case Denshire Muteti Wambua v Kenya Power and Lighting Co Ltd [2013] eKLR, the Court of Appeal that:“[M]onetary awards can never adequately compensate a litigant for what they have lost in terms of bodily function especially where this is permanent. But awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness.”

38. After carefully considering the circumstances of this case, the injuries sustained by the minor who was aged 4 years at the time of the accident, the level of permanent incapacity as a result of the accident and the decisions stated above, I do not find any good reason to interfere with the trial court’s award.

39. The upshot of the above is that the appeal is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF OCTOBER, 2022. .............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiDaisy Chepkurui & CO. Adv for respondentM/S Kibichy & CO. Adv for appellant