[2022] KEHC 14670 (KLR)

Rigia Investment Limited v Jones (Civil Appeal E010 of 2020) [2022] KEHC 14670 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14670 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E010 of 2020

JN Njagi, J

February 11, 2022

Between

Rigia Investment Limited

Appellant

and

Divinah Moraa Jones

Respondent

(Being an appeal from the judgment and decree of Hon. W.C.Waswa, RM, in Nyamira CM`s Court Civil Case No.121 of 2015)

Judgment

1. The respondent had sued the appellant at the lower court claiming general and special damages after she was injured while travelling as a passenger in a public service vehicle (matatu) registration No.KBJ 867N after the said vehicle was hit by motor vehicle registration No. KAL 041K lorry belonging to the appellant. It was the case for the respondent (PW1 in the case) that the matatu that she was travelling in was passing by where the appellant`s motor vehicle was parked when the appellant`s motor vehicle started to reverse backwards on its own thereby crashing into the matatu as a result of which the respondent sustained injuries. The trial magistrate found the appellant 100% liable for the accident and awarded the respondent Ksh. 200,000/= in general damages. The appellant was aggrieved by the award and filed this appeal through the firm of Asati, Anyona & Co Advocates.

2. The grounds of appeal are that:1. The learned trial magistrate misdirected himself in awarding a sum in in respect of damages which was so inordinately high and excessive in he circumstances that it represented an entirely erroneous estimate vis-a-vis the respondent’s claim resulting in a miscarriage of justice.2. The learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum presented and filed by the appellant and holding the appellant at 100% liable.3. The learned trial magistrate grossly misdirected himself in treating the evidence and submissions on quantum before him superficially and consequently came to a wrong conclusion on the same.

3. The appeal was opposed by the respondent through the written submissions of their advocates Ombuhi K.Mogire Advocates.

4. The appellant called one witness in their defence, DW1, who stated he was the manager of the appellant. That on the material day their lorry was parked at Omogonchoro market when a matatu vehicle went and parked in front of their vehicle and started to drop passengers. That there was no driver in their vehicle. That their vehicle by its own motion started to move towards the matatu and hit its passenger door. Later the owner of the matatu went to their office and they settled the repair charges for the door. It was his evidence that nobody was injured during the accident. The witness however stated in cross-examination that he was not at the scene of the accident and that he was told on how the accident occurred by the driver of the vehicle. He did not call the driver of the vehicle as a witness in the case. He admitted that he had no report to show that the vehicle was in good condition. He also stated in cross-examination that the lorry in fact reversed on its own towards the matatu thereby occasioning the accident.

Submissions– 5. The advocates for the appellant submitted that it was not clear from the evidence of the respondent as to how the appellant was negligent. That the respondent did not produce an inspection report to prove that the motor vehicle had a mechanical problem. That as it is the motor vehicle that the respondent was travelling in that was mobile, it is likely that it is the one that came into contact with the stationary vehicle and occasioned the accident. That in the circumstances, the driver of the matatu should have been held 50% liable for the accident and liability shared equally between the owners of the two vehicles. That it was wrong for the trial court to have found the appellant 100% liable for the accident.

6. On quantum, the advocates argued that the general damages awarded by the trial magistrate were inordinately high. That the medical report that was produced in the case, Pexh. 4, was prepared two years later after the accident. That the conclusion in the said report was that the injuries were severe. That the P3 form Pexh. 3, however indicated that the injuries were soft tissue injuries and the degree of injury was classified as harm. That the injuries did not warrant an award of Ksh 200,000/=. The advocates urged the court to reduce the award to Ksh. 100,000/=. They made reliance on the case of Onesmus Njenga Gachie v Hydery (P) Limited, Mombasa Civil Appeal No. 17 of 2019, where Ksh 150,000/= was awarded for cut wound on the right hand, blunt object injury on the head and ears, blunt object injury on the eye and back, and blunt object injury on the chest and abdomen.

7. The advocates for the respondent on the other hand submitted that it was clear from the evidence of the appellant, PW1, that the motor vehicle of the appellant developed a mechanical problem and started to reverse on its own. That the witness for the appellant, DW1, was not present when the accident took place and only relied on what he was told by the driver of the motor vehicle. That the said driver did not testify in the case. That the witness did not produce an inspection report to prove that the motor vehicle was in good mechanical condition.

8. It was further submitted that the respondent was a passenger in the public service vehicle. That she had no moderation over the hiring of a competent driver nor regular servicing or maintenance of the appellant`s motor vehicle in a roadworthy condition. That the appellant was vicariously liable for the actions of their driver at 100%. Consequently, the advocates urged the court to find that there is no merit in the appeal and proceed to dismiss the appeal with costs to the respondent.

Analysis and Determination – 9. This being a first appeal this court is reminded that it has the duty to analyze and re-evaluate afresh the evidence adduced at the lower court and draw its own conclusions. In doing so the court has to bear in mind that the trial court had the advantage of seeing and hearing the witnesses testify -see Selle &anor v Associated Motor Boat Co. Limited (1968) EA 123 and Abok James Odera T/a A. J. Odera & Associates v John Patrick Machira T/a Machira & Co. Advocates(2013) eKLR.

10. The issues for determination in this appeal are –1. Whether the appellant was liable for the accident.2. Whether the respondent contributed to the occurrence of the accident.3. In case the appellant was liable, whether the award for general damages was inordinately high.

11. The evidence adduced by the respondent was that the appellant`s motor vehicle reversed on its own and occasioned the accident as a result of which she was injured. The witness for the appellant, DW1, admitted in his evidence that the vehicle in fact reversed on its own and thereby crashed into the matatu.

12. In his judgment the trial magistrate held that the appellant`s motor vehicle had stalled. That the fact that the motor vehicle reversed on its own demonstrated that the appellant did not park the stalled motor vehicle in a safe manner and was therefore negligent.

13. I have reviewed the evidence adduced at the lower court. There was no evidence that the appellant`s motor vehicle had stalled on the road as held by the trial magistrate. DW1 in his evidence said that the vehicle was parked at the market and never stated that the vehicle had stalled. The appellant in her evidence similarly did not say that the vehicle had stalled. She only stated that the vehicle reversed on its own and hit the vehicle she was travelling in. DW1 admitted that there was no driver in the vehicle when it reversed.

14. It is clear that the respondent witnessed the occurrence of the accident while the appellant`s witness DW1 was not at the scene of the accident occurred. The evidence of the respondent was therefore not controverted as to how the accident occurred. In the premises, the inevitable conclusion is that the accident occurred as testified by the respondent. Her evidence that the vehicle reversed on its own was supported by DW1 who confirmed that the vehicle indeed reversed on its own from where it was parked. The fact that the motor vehicle reversed on its own from its parking can only invite a conclusion that the vehicle had a mechanical problem that caused it to reverse on its own. It was the duty of the appellant to rebut this inference as vehicles which have no mechanical problem cannot reverse on their own from where they are parked. The appellant did not give an explanation as to why the vehicle reversed on its own. It can only mean that the vehicle was poorly maintained that caused it reverse on its own. The appellant was therefore negligent and was wholly liable for occasioning the accident. The respondent was a passenger in the public service vehicle and did not in any way contribute to the occurrence of the accident. The trial court came to the right conclusion in finding that the appellants were 100% liable for the accident.

Quantum 15. The principles upon which an appellate court may interfere with an award of damages made by a lower court are well settled. The Court of Appeal in Bashir Ahmed ButtvUwais Ahmed Khan[1982-88] KAR 5 held that;“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

16. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v AM. Lubia & Olive Lubia(1982-88) I KAR 727 at page 730, 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 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. See Ilango v Manyoka [1967] EA 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited v Kalovoto [1970]E.A. 414, 418, 419. This court follows the same principles.”

17. It must however be remembered that the assessment of general damages is a discretion of the trial court. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No 284 of 2001 [2004] 2 KLR 55 set 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.”

18. According to a medical report that was prepared by Dr Morebu, the respondent had sustained the following injuries:(a)Brain concussion(b)Blunt injury to the forehead(c)Blunt injury to the eyelids(d)Blunt injury on the anterior chest wall(e)Blunt injury on the abdomen; and(f)Tenderness on the left thigh.

19. The injuries as noted in the P3 form were:a.Tender foreheadb.Painful eyesc.Swollen tender eyelids of both eyes.d.Tender anterior chest walle.Tender abdomen: andf.Swollen, tender left thigh.

20. The trial magistrate awarded Ksh. 200,000/= in general damages while making reliance on the case ofMaimuna Kilungya v Motrex Transporters Limited(2020)eKLR where Ong`undi J. awarded Ksh. 125,000/= for blunt neck injury, blunt injury left shoulder and bruises on the left ear.

21. I have studied the injuries as reflected in the P3 form and in the medical report. The medical report was prepared on the 1/11/2015 which was about 8 months after the accident. The P3 form was completed on the 26/3/2015 which was 6 days after the accident. The doctor who completed the P3 form observed that the respondent had sustained tenderness on the forehead. He did not make note of any brain concussion. Dr. Morebu did not explain why he concluded that the respondent had sustained a brain concussion when the same was not reflected in the documents that he relied on to prepare the report yet he saw the patient several months later when the same would not have been evident. It is my finding that there was no evidence that the respondent had sustained a brain concussion. Though the trial magistrate set out the injuries noted in both the P3 form and in the medical report he did not examine in his judgment whether the respondent had actually suffered a brain concussion. The magistrate made an award for brain concussion when there was no evidence that the same was sustained. It is my conclusion that the magistrate made an excessive award by considering injuries in form of brain concussion which was not sustained.The respondent only sustained injuries as stated in the P3 form. The brain concussion injury should therefore be excluded.

22. The injuries noted in the P3 form were soft tissue injuries. I have considered the injuries sustained in the case of Onesmus Njenga Gachie v Hydery (P) Limited(supra) relied on by the advocates for the appellant where Ksh.150,000/= was awarded. The injuries therein were cut wound on the right hand, blunt object injury on the head and ears, blunt object injury on the eye and back, and blunt object injury on the chest and abdomen. These injuries compared relatively well with those suffered by the respondent in this matter, safe for cut would on the right hand. The case of Maimuna Kilungya v Motrex Transporters Limited(supra) that was cited by the trial magistrate contained injuries that also compared well with those sustained by the respondent herein.

23. I have considered other comparative authorities where general damages for soft tissue injuries were made. InDaniel Gatana Ndungu &anor v Harrison Angore Katana (2020)eKLR where the respondent had suffered non-skeletal injuries to the head, right knee and upper limbs, Nyakundi J. found that the award of Ksh. 350,000/= made by the trial court was excessive and reduced it to Ksh.140,000. In Jyoti Structures Limited & another v Truphena Chepkoech Too &another (2020(eKLR) where one of the respondents had suffered blunt injury to the head, neck, chest, back and both thighs Matheka J. found the award of Ksh 250,000/= was excessive and reduced it to Ksh 125,000/=.

24. Having regard to the fact that the respondent herein suffered soft tissue injuries, I find the award of Ksh 200,000/= to have been excessive and I reduce it Ksh.130,000/=.

24. The upshot is that the appeal on liability is dismissed. The finding by the trial court that the appellant was 100% liable for the accident is confirmed. The appeal on quantum is successful. The award of the lower court is consequently set aside and substituted with an award of Ksh130,000/=. Each party to bear its costs to the appeal.Orders accordingly

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY,2022. J. N. NJAGIJUDGEIn the presence of:..............N/A..............................for AppellantMiss Shilwacho H/B Miss sakwa.......for Respondent virtuallyCourt Assistant: ...........................................