[2022] KEHC 14067 (KLR)

Robert & another v Koigi (Civil Appeal E015 of 2020) [2022] KEHC 14067 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14067 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E015 of 2020

MW Muigai, J

October 11, 2022

Appeal From the Judgment Of Hon.D.Orimba (SPM) In Kangundo Spmcc No 185 Of 2018

VICTOR MWANZIA ROBERT ROSE NJERI WAMBUI………………................APPELLANTS VERSUS AGNES WAMBUI KOIGI …………………...…..RESPONDENT

Between

Victor Mwanzia Robert

1st Appellant

Rose Njeri Wambui

2nd Appellant

and

Agnes Wambui Koigi

Respondent

(Appeal From the Judgment Of Hon.D.Orimba (SPM) In Kangundo Spmcc No 185 Of 2018)

Judgment

Trial Court Record 1. The plaintiff filed a plaint dated August 2, 2018 praying for judgment to be entered in her favour as follows;a.Special damages of Kshs 5,550b.General damages for pain, suffering and loss of amenitiesc.Costs of the suitd.Interest on a, b and c abovee.Any other/ further relief this court may deem fit and just to grant

2. The cause of action arose on or about November 14, 2017 at about 1230 hours along Kangundo- Nairobi road at Kantafu area , the 1st defendant is alleged to have so carelessly and or negligently drove , managed and or controlled motor vehicle registration number KCD 110R Toyota S Wagon such that it lost control of it, left his lane and went to that of motor vehicle registration number KAM 487E Toyota Pick Up which was coming from the opposite direction and rammed into the same. The 2nd defendant is said to be vicariously liable.

3. As a consequence of which the plaintiff who was lawfully travelling as a passenger in motor vehicle registration number KAM 487E Toyota pickup sustained the following injuries;a.Pain and tenderness on the right shoulderb.Right shoulder joint anterior dislocationc.Cut wound on the left anterior forearmd.Bruises, swelling and tenderness in the legse.Lacerations on the knees bilaterallyf.Cut wound on the right ankle joint.

4. The negligence and or carelessness of the 1st defendant were particularized as driving at a speed that was dangerous and excessive in the circumstances, failing to slow down, brake , swerve and/or stop so as to avoid the accident, failing to exercise due and reasonable care so as to avoid the accident, driving the motor vehicle carelessly and dangerously without due regard to the presence of other motor vehicles on the road especially motor vehicle registration number KAM 487E Toyota pick up, leaving his lane and going to that of motor vehicle registration number failing to give way and ramming into KAM 487E Toyota pick up, failing to exercise due care and skills reasonably expected of a driver in the circumstances, failing to take proper look out and causing the accident.

5. The plaintiff avers that the 1st defendant was charged with the offence of careless driving in Kangundo Traffic case number 221 of 2017, convicted on November 22, 2017 and fined Kshs 10,000 or in default serve six months in jail.

6. The plaintiff averred that the present complaints were persistent pains on the right shoulder, forearm, both lower limbs and is unable to lift heavy objects using the right hand.

Statement Of Defence 7. The defendants filed a defence on June 4, 2019 denying the contents of the plaint and asked the court to dismiss the suit. the 1st defendant denied being the owner of motor vehicle KCD 110R Toyota S Wagon and averred that if the accident occurred then the same was caused solely and substantially by the plaintiff.

8. The particulars of the negligence of the driver of motor vehicle registration number KBT 479E was driving at a speed that was excessive in the circumstances, driving without due care and attention, failing to give way to motor vehicle registration KCD 110R, overtaking dangerously when it was unsafe to do so, driving in the lane of motor vehicle KCD 110R, failing to stop, brake or swerve to avoid the accident, driving defective or unroadworthy vehicle and causing the accident.

9. The particulars of negligence of the plaintiff were particularized as failing to observe due care by fastening the seat belt as provided or required, failing to take precautionary measures to ensure that he remained on the seat, being generally careless by failing to remain seated on his seat and standing on a moving vehicle knowing well it was unsafe to do so, refusing to heed to road traffic rules, the highway code at a point where and when it was dangerous to do so, failing to take the necessary precautions to ensure his own safety.

Reply To Defence 10. The plaintiff filed a reply to defence dated August 28, 2019 essentially reiterating the contents of the plaint and sought to have the statement of defence struck out and judgement entered in her favour.

Hearing 11. At the hearing, the plaintiff testified and called one witness. The defendant did not call any witness.

12. PW1 was PC Samuel Irungu who testified that he is stationed at Kangundo performing traffic duties. He stated that he was not the Investigating officer but had the police file, the accident was booked under OB No 5 of November 14, 2017 at 1230hours issued to Agnes Wambui. It was his testimony that the accident occurred at Kwa Kuku area and PC Samoei and CPI Mohammed Yusuf visited the scene of the accident along Kangundo-Nairobi road. He said the accident involved two motor vehicles registration number KCD 110R and KAM 487E.

13. It was his testimony that both vehicles were moving on the opposite direction and on reaching the scene motor vehicle KCD 110R was from Tala to Nairobi, it left its lane and hit the other motor vehicle on its lane as a result of which two occupants of the pick up namely Chrispers M.nguma and Agnes Wambui sustained injuries on the left leg and on the shoulder with bruises on both legs respectively. The driver Patrick Kyalo sustained injuries on the left leg.

14. PW1 told the court that both vehicles were extensively damaged on the front bumper and were towed to the station awaiting inspection. The driver Victor Robert Mwanzia was charged under Traffic Case number 221 of 2017, he pleaded guilty and was fined Kshs 10,000/- He produced the police abstract and he said he was paid Kshs 5,000 to which he produced a petty cash voucher.

15. Upon cross-examination, he stated that the two investigating officers had been transferred to other stations and that the accident was reported by members of the public. It was his testimony that he did not have a sketch map and could not tell why it was not taken. He also stated that the type of road was not indicated.

16. It was stated that according to the report, there was no other motor vehicles. He indicated that he had statements of the driver and passenger of motor vehicle KAM 487E, it was a pick up whose capacity depends on the model. Further, it was indicated whether the pick up had a seat belt, whether the passenger had a seat belt on and that there was no statement from the passengers of Traffic Case number 221 of 2017.

17. It was his testimony that from the report, the point of impact was on the lane used by the pick up and KAM 487E had a valid insurance from Orient Insurance . The license of the driver was valid. He also said that the injury was slight.

18. In re- examination, he said that he got the comment that the injury was slight from the assessment of the Investigation officer. He said the report comes at the tail end and one cannot be charged unless investigations are finalized.

19. PW2, Agnes Koigi, the plaintiff relied on her statement dated July 13, 2018 wherein she stated that on November 14, 2017 at about 1230 hours she was travelling frim Tala to Nairobi as a passenger in motor vehicle registration number KAM 487E Toyota pick up along Kangundo- Nairobi road and on reaching Kantafu area, motor vehicle registration number KCD 110R Toyota S Wagon was coming in the opposite direction at high speed. The driver suddenly lost control, left its lane and went to the lane of motor vehicle registration number KAM 487E Toyota pick up and rammed it.

20. As a result she sustained serious injuries of pain and tenderness on the right shoulder, right shoulder joint anterior dislocation, cut wound on the left anterior forearm, bruises, swelling and tenderness in the legs, lacerations on the knees bilaterally and cut wound on the right ankle joint.

21. The plaintiff blamed the driver of motor vehicle registration KCD 110R, he was on high speed, left its side into their lane. She testified that she was taken to Bahati Hospital Joska where she was treated as an outpatient and the following day she was taken to Mama Lucy Hospital where she was treated and issued with treatment notes. She said she was not admitted in any of the hospital. She reported the matter to the police and was issued with a P3 form. Later she saw Dr Muoki who prepared a medical report and she paid Kshs 3,000.

22. It was her testimony that the 1st defendant was the driver, he was charged with a traffic case TR 221 of 2017, pleaded guilty and was fined Kshs 10,000. That the 2nd defendant is the owner of the motor vehicle, a search was conducted and she paid Kshs 550. She produced the demand notice that was served upon the defendants by post.

23. The plaintiff stated that she had not fully recovered, that she was in pain, could not lift heavy objects and could not stand for long. She said she still uses pain killers. In her statement, she indicated that she experiences persistent pains on the right shoulder, forearm and both lower limbs. She indicated that she saw Dr Wambugu and produced a medical report dated November 14, 2019.

24. Upon cross examination, the plaintiff stated that she is 57years old and she was doing business. She testified that she was seen at Bahati and discharged, she sustained injury on the left hand which was bandaged. She indicated that the stamp is dated March 15, 2018 and that she did not bring treatment notes from Mama Lucy dated November 15, 2011. She had a copy of the X-ray and her cards. It was her testimony that the motor vehicle was hired for the day and they were three people in it, the driver was an employee of the motor vehicle owner. She indicated that the root is tarmacked and it had not rained. She indicated that she reported the matter to the police and the accident had earlier been reported by members of the public.

25. Upon re examination, she stated that she was given first aid at Bahati Hospital and was issued with documents at Mama Lucy. She said their driver tried to avoid the accident but it was late and blamed the driver of KCD 110R who caused the accident.

26. The submissions of the plaintiff are on record. She sought to be awarded Kshs 400,000

Trial Court Judgment 27. The trial court delivered judgement in favor of the plaintiff awarding liability at 100%, general damages at Kshs 360,000 and special damages of Kshs 8550. In arriving at its decision, the trial court found that the plaintiff had proven its case on a balance of probability. It found that since the defence did not call any witness, the evidence of the plaintiff remained uncontroverted.

28. The trial court noted that there was no doubt that the accident occurred on the material date and the plaintiff sustained injuries as a result. It was found that the motor vehicle was registered in the name of the 2nd defendant and was being driven by the 1st defendant.

29. The trial court in awarding general damages considered the injuries sustained,t he authority cited in the submissions of Jaldessa Dida T/a Dikus Transporters And another v Joseph Mbithi Isika , HCCA No 96 of 2011 Machakos, the rate of inflation of Kenya shilling and the fact that no amount of money can adequately compensate the injuries sustained.

Memorandum of Appeal 30. Dissatisfied by this judgement, the appellant filed a memorandum of appeal dated July 16, 2020 on October 27, 2020 on liability and quantum of damages seeking the following orders, That;a.Spentb.The judgment of the Hon trial magistrate be set aside and the suit be dismissedc.In the alternative, the judgment of the Hon trial magistrate be set aside and/or substituted with an apportionment on liability and a lower award on quantum of damagesd.Costs of the appeal and that of the trial court be awarded to the appellant

31. The appeal is founded on the grounds that;a.The trial magistrate erred in law and in fact by apportioning 100% liability against the defendant’s /appellants and failing to take into account evidence on record that the plaintiff/ respondent was negligent and careless and contributed to the occurrence of the accident.b.The trial magistrate erred in law and in fact in awarding general damages and special damages that were inordinately too highc.The trial magistrate erred in law and in fact in failing to consider the nature of the injuries sustained by the respondent and awarding general damages that were inordinately too high and incomparable to the injuries sustained.d.The trial magistrate erred in law and in fact in awarding special damages that aware not proved and inordinately too highe.The trial magistrate erred in law and in fact in failing to consider the appellant’s evidence on record on liability and quantum of damagesf.The trial magistrate erred in law and in fact in considering evidence that was never on record and issuing judgment on presumptions and issues not established in evidenceg.The trial magistrate’s judgement was thus unjust, against the weight of evidence relied upon by the defendants and was based upon misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice

32. The appeal was disposed of by way of written submissions.

Appellant Submissions 33. The appellants filed submissions on January 31, 2022 and submitted that the court has a duty to reconsider, re - evaluate the evidence and draw its own conclusions as stated in the case of Abok James Odera T/A Odera & Associates v John Patrick Machira T/A Machira & Co Advocates[2013] EKLR.

34. On liability, while relying on the case of Kenya Power & Lighting Company v Nathan Karanja Gachoka &another [2016] eKLR, it was submitted that the respondent did not prove its case on a balance of probability. It was submitted that the police officers’ evidence should be taken with caution as he was not the investigating officer and was only called to produce a police abstract. The appellant submitted that failure to call the investigation officer left a serious vacuum on liability yet the burden of proof rests upon the plaintiff. He did not produce sketch plans yet they are important in explaining how the accident occurred. He relied on the case of Postal Corporation of Kenya & another v Dickens Munyai [2014] eKLR.

35. It was further submitted that a conviction does not exonerate the plaintiff from blame by way of contributory negligence. He referred to the case of Robinson v Oluoch [1971] eKLR. He contended that the respondent confirmed that she was not wearing a safety belt and the police officer confirmed that it is not indicated whether the vehicle had any. He therefore submitted that the respondent neglected her own safety and should be held 40% liable for the same.

36. On the issue of quantum, while relying on the case of Butt v Khan [1982-88] 1 KAR 1, it was submitted that the trial court acted on the wrong principles of law thus awarding an award that was too high in the circumstances. That upon re examination by Dr Wambugu, he found that the plaintiff sustained multiple cut wounds left forearm and both knees and a bunt trauma on the right shoulder. And in the plaintiff medical report, the injuries are particularized as those pleaded in the plaint. It was submitted that these were soft tissue injuries and the injuries sustained in the case of Jaldessa Dida T/a Dikus Transporters and another v Joseph Mbithi Isika, HCCA No 96 of 2011 are different from the injuries sustained in this case. The respondent opined that in that case, the plaintiff had serious injuries involving a fracture and dislocation and in this case, the nature of the injuries is soft tissue. The respondent asked the court to substitute the award of Ksh 360,000 with that of Kshs 150,000. Reliance was placed on the case of Lamu Bus Services & another v Caren Adhiambo Okello[2018]eKLR where the court awarded Kshs 130000 for dislocation of the left shoulder joint, a deep cut wound on the left chin, a deep cut wound on the left thigh and a blunt injury to the left thigh, the case of Daniel Odhiambo Ngoosa v Daniel Otieno Owino & another[2020] eKLR where the court awarded Kshs 150,000 for blunt chest injuries, sprain on the neck, dislocation of the right shoulder joint, blunt abdominal injuries, dislocation of the ankle joint and the case of Godwin Ireri v Franklin Gitonga [2018] eKLR where on appeal, the court awarded Kshs 90,000 to a claimant who had sustained soft tissue injuries to the left shoulder, blunt chest interior, bruises of the left wrist region and blunt injury left arm.

37. On the issue of special damages, it was submitted that the plaintiff pleaded for Kshs 3550 and produced the same. The court was asked to set aside the award of Kshs 8550 and substitute it with Kshs 3550.

38. The appellant prays for liability to be apportioned at 70: 40 in favour of the plaintiff against the defendant, general damages of Kshs 150,000 less contribution of Kshs 60,000, and special damages of Kshs 3,550. He further praters for costs and interest at court rates.

Respondent Submissions 39. The respondent filed submissions dated January 20, 2021 and submitted that the trial court did not make an error in its judgement and stated that the respondent was travelling as a passenger at the time of the accident and did not in any way contribute to the occurrence of the accident. The appellant was charged with the offence of careless driving and convicted on his own plea of guilty and that the defence never called any witness to rebut the plaintiff’s evidence so it remains uncontroverted.

40. It was submitted that the award was reasonable and commensurate with the current court awards for similar injuries and the case law she provided in the lower court plus the evidence tendered in court. further, that the learned magistrate took into consideration the appellants submissions, the conventional awards and the seriousness of the respondent’s injuries in arriving at its award.

41. It was submitted that the injuries sustained were serious and the award of Kshs 368,550 is reasonable.

Determination 42. I have considered the lower court record, the memorandum of appeal and the submissions of the parties and find that the issues for determination are whether the liability, quantum and special damages as awarded, should be interfered with.

43. This court that did not have the opportunity to see, listen to the witnesses and has to re-evaluate and reconsider the evidence on record.

44. In the case of Selle v Associated Motor Boat Co [1968] EA 123 the court stated that:“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 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.”

Liability 45. It is not in dispute that the respondent was a passenger in KAM 487E Toyota pick-up and at Kantafu area motor vehicle registration number KCD 110R Toyota S Wagon that was coming in the opposite direction at high speed rammed into the pick up causing an accident that lead to the accident. The respondent has not denied pleading guilty to the offence of careless driving and to being convicted of the same. The nature of the injuries sustained as per the respondent being; pain and tenderness on the right shoulder, right shoulder joint anterior dislocation, cut wound on the left anterior forearm, bruises, swelling and tenderness in the legs, lacerations on the knees bilaterally and cut wound on the right ankle joint. This is corroborated by the medical report dated April 11, 2018 by Dr Muoki James, the police surgeon medical report dated March 15, 2018 and the P3 form. That is not in dispute. The medical report dated November 14, 2019 by Dr Wambugu states that the injuries sustained are consistent with blunt trauma. That she sustained soft tissue injuries.

46. On the issue of liability, it was submitted that the court should award 70: 40 in favour of the respondent against the plaintiff. A ratio ought to add up to 100% but in this case it is adding up to 110%. PW1 and PW2 confirm that the accident was caused by the 1st appellant who swerved and caused the accident on the respondent’s side of the road. The respondent was a lawful passenger seated in the car and could not have done anything to prevent the occurrence of the accident.

47. The 2nd appellant was charged and convicted of careless driving. In the case of Robinson v Oluoch[1971] EA 376 it was held that:“Careless driving necessarily connotes some degree of negligence and in those circumstance it may not be open to the respondent to deny that his driving, in relation to the accident, was negligent; but that is a very different matter from saying that a conviction for an offence involving negligence driving in conclusive evidence that the convicted person was the only person whose negligence caused the accident, and that he is precluded from alleging contributory negligence on the part of another person in the subsequent civil proceedings. That is not what section 47A states. It is quite proper from a person who has been convicted of an offence involving negligence, in relation to a particular accident, to plead in subsequent civil proceedings arising out of the same accident that the plaintiff, or any other person, was also guilty of negligence which caused or contributed to the accident. Accordingly, the Judge was right in not striking out the defence as a whole.”

48. The issue of the safety belt , PW1 stated that it is not indicated whether the motor vehicle had a safety belt and PW2 stated that there were safety belts but has not indicated whether she had or had not tied it as alleged by the appellants in their submission. It is trite law that he who alleges must prove. It is therefore evident that this allegation has not been proven and I find no reason to disturb the liability of 100% as found by the trial court.

Quantum 49. On the issue of whether the general damages were inordinately high. There are parameters well settled as when an award for general damages may be interfered with. In the case ofButt v Khan [1981]KLR, 349 where the court held as follows:-The appellate court cannot interfere with the decision of trial court unless it is shown that the judge proceeded on the wrong principle of law and arrived at misconceived estimates.

50. In Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal restated this principle as follows:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The court 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 high that it must be a wholly erroneous estimate of the damages."

51. The Court of Appeal in the case of in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, held that –“…it is firmly established that this court will be disinclined to disturb the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297.

52. The appellants have relied on various authorities seeking to have the quantum reduced to Kshs 150,000. From the record, the appellants did not file any submissions before the trial court. The respondent in this case sustained the following injuries;a.Pain and tenderness on the right shoulderb.Right shoulder joint anterior dislocationc.Cut wound on the left anterior forearmd.Bruises, swelling and tenderness in the legse.Lacerations on the knees bilaterallyf.Cut wound on the right ankle joint.

53. The degree of injury according to Dr Muoki is Maim and according to Dr Wambugu, they are soft tissue injuries with no total incapacitation further, Dr Wambugu noted that there was no fracture or dislocation from his observation of the X-Rays. The trial court relied on an authority where the injuries were said to be bone and soft tissue injuries. To that extent, I agree with the appellants that the authority relied upon of Jaldessa Dida T/a Dikus Transporters and another v Joseph Mbithi Isika, HCCA No 96 of 2011 has slightly different injuries from those sustained in the case herein.

54. From the re-evaluation of the evidence, I find that the trial court made reference to the relevant evidence and authorities on record. That said, it is for the court to determine whether the award was consistent with comparable awards made. However, this court will interfere with the award in the circumstances as persuaded by the case ofDaniel Odhiambo Ngoosa v Daniel Otieno Owino & another [2020] eKLR on soft tissue injuries where the court awarded Kshs 150,000 for blunt chest injuries, sprain on the neck, dislocation of the right shoulder joint, blunt abdominal injuries, dislocation of the ankle joint . I therefor substitute the award of general damages of Kshs 350,000 to Kshs 250,000 taking into account inflation and the circumstances of the case.

55. As regards special damages, the Court of Appeal in Capital Fish Limited v The Kenya Power and Lighting Company Limited [2016] eKLR opined while relying on the case of Provincial Insurance Company East Africa Limited v Mordekai Mwanga Nandwa, Ksm CACA 179 of 1995 (Ur)that;“… It is now well settled that special damages need to be specifically pleaded before they can be awarded”

56. According to the plaint, the appellant pleaded for Kshs 3,550/- which was proved by receipt for payment of the medical report dated April 11, 2018 and a copy of records receipts dated April 4, 2018. That is what the respondent is entitled to. I therefore award Kshs 3,550/- as special damages.

57. Since the appeal has been partly successful, there shall be no orders as to costs and interest.

Disposition 58. In the circumstances, I issue the following orders;a.Liability is 100% against the appellant/defendantb.General damages of Kshs 250,000 is awarded.c.Special damages awarded at Kshs 3,550/-.d.Costs of the trial court are awarded to the respondent /plaintiff.e.Each party to bear its own costs.

Orders accordingly.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 11th OCTOBER 2022 (VIRTUAL/PHYSICAL HEARING)M.W. MUIGAIJUDGE