[2023] KEHC 24461 (KLR)

Rono v Matasi & another (Civil Appeal 21 of 2017) [2023] KEHC 24461 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24461 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 21 of 2017

RL Korir, J

October 19, 2023

Between

David Kipyegon Rono

Appellant

and

Zainabu Namukunda Matasi

1st Respondent

Nyamira Luxury Express Co. Ltd

2nd Respondent

(Being an Appeal from the Judgment of the Resident Magistrate, Kiage G. in the Magistrate’s Court at Bomet, Civil Suit Number 65 of 2014 delivered on 3{{^rd}} April 2017)

Judgment

1. The Plaintiff (now 1st Respondent) sued the Defendant (now 2nd Respondent) for General and Special Damages arising out of an accident that occurred on 23rd December 2013 that involved Motor Vehicle Registration Number KBW 512P in which she was a fare paying passenger.

2. The Defendant (now 2nd Respondent) issued a Third Party Notice to David Kipyegon Rono (now the Appellant) claiming indemnity and contribution from him.

3. In its Judgment delivered on 3rd April 2017, the trial court found the Appellant (then 3rd party) and the 2nd Respondent (then Defendant) wholly liable (100%) for the accident and further awarded the Plaintiff (now 1st Respondent) General and Special Damages of Kshs 874, 323/=.

4. Being dissatisfied with the Judgment of the trial court, the 3rd Party/Appellant appealed to this court through the Memorandum of Appeal dated 7th November 2017 and relied on the following grounds:-I.That the Honourable Magistrate erred in fact and in law in finding the Appellant liable.II.That the Honourable Magistrate erred in fact and in law in finding the Appellant negligent for the alleged accident without any evidence placed before her.III.That the Honourable Magistrate erred in fact and in law in finding the Defendant entirely and primarily liable or responsible for the accident.IV.That the Honourable Magistrate erred in fact and in law in taking the 1st Respondent’s evidence against the 2nd Respondent as evidence against the Appellant.V.That the Honourable Magistrate erred in fact and in law in making an award for damages against the Appellant without any evidence against the Appellant.VI.That the Honourable Magistrate erred in fact and in law by failing to appreciate that the 1st Respondent failed to prove its case against the Appellant.VII.That the Honourable Magistrate erred in fact and in law by failing to appreciate that the Appellant and the 2nd Respondent face each other in the relationship of Plaintiff and Defendant.VIII.That the Honourable Magistrate erred in fact and in law by condemning the Appellant based on pleadings by the 2nd Respondent without any evidence and/or justification.IX.That the Honourable Magistrate misdirected himself by arriving at conclusions based on assumptions as opposed to evidence.X.That the Honourable Magistrate erred in fact and in law in apportioning liability against the Appellant without any evidence whatsoever.XI.In the alternative and without prejudice to the foregoing, the Honourable Magistrate erred in fact and in law by failing to clearly apportion liability between the 2nd Respondent but apportioned liability in a blanket manner.XII.The Honourable Magistrate erred in fact and in law by failing to apply or applying wrong principles in finding and apportioning liability and assessment of damages thus awarding damages that were excessive.XIII.The Honourable Magistrate erred in law and in fact by taking into account irrelevant and extraneous factors leading to an apportionment of liability as against the Appellant and award to the 1st Respondent.XIV.The Honourable Magistrate erred in fact and in law by proceeding to pronounce judgment in favour of the 1st Respondent in total disregard of the Appellant’s submissions.

The 1stRespondent’s/Plaintiff’s Case 5. Through her Plaint dated 14th July 2014, the 1st Respondent stated that she was involved in a road accident on 23rd November 2013 aboard Motor Vehicle Registration Number KBW 512P. It was her case that the 2nd Respondent was the registered owner of the said motor vehicle or the same was under its care, management and control.

6. It was the 1st Respondent’s case that the 2nd Respondent was negligent in the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint.

7. That as a result of the accident, she suffered a right posterior hip dislocation.

8. The 1st Respondent prayed for Special and General Damages against the 2nd Respondent.

The 2ndRespondent’s/Defendant’s Case. 9. Through its statement of defence dated 6th May 2015, the 2nd Respondent denied the occurrence of the accident on 23rd December 2013 and further denied being the beneficial or registered owner of Motor Vehicle Registration Number KBW 512P. It also denied that the said motor vehicle was under its care or management.

10. It was the 2nd Respondent’s case that if the accident occurred then it was caused by the negligence and carelessness of the driver of Motor Vehicle Registration Number KAE 484W. The particulars of negligence were contained in paragraph 5 of the Defence.

11. The 2nd Respondent’s advocate filed a Chamber Summons Application dated 10th March 2015 where it sought leave to issue 3rd party proceedings against David Kipyegon Rono (now Appellant) who was the alleged owner of Motor Vehicle Registration Number KAE 484W. Leave was granted by the trial court on 11th March 2015. The Appellant entered appearance on 26th August 2015 and filed his Defence on 4th November 2015.

The Appellant’s/3rd Party’s Case. 12. Through his 3rd Party Defence dated 28th October 2015, the Appellant denied that Motor Vehicle Registration Number KAE 484W was involved in an accident with Motor Vehicle Registration Number KBE 512P. He further denied that his driver or agent carelessly drove the said motor vehicle so as to cause an accident.

13. It was the Appellant’s case that if the accident occurred then it was caused by the negligence of the driver of Motor Vehicle Registration Number KBW 512P. The particulars of negligence were contained in paragraph 6 of his Defence.

14. The duty of the 1st appellate court is to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions. This principle was espoused in the Court of Appeal case of Kiilu & Another vs. Republic (2005)1 KLR 174

15. On 11th March 2021, this court directed that the Appeal be canvassed by way of written submissions.

The Appellant’s written submissions. 16. Through his submissions dated 27th April 2021, the Appellant submitted that the 2nd Respondent was wholly liable for the accident. That the 1st Respondent stated that she was aboard the 2nd Respondent’s bus and that the bus was being driven at a high speed and was also being driven in the middle of the road. The Appellant further submitted that the 2nd Respondent did not call any witness to testify or produce any documentary evidence to prove its assertions over the Appellant’s negligence.

17. It was the Appellant’s submission that PW2 (police officer) did not state who was to blame for the accident. That the 1st Respondent proved her case against the 2nd Respondent while the 2nd Respondent failed to prove its case against him. He further submitted that liability be pinned against the 2nd Respondent. He relied on Kenya Bus Services vs Dina Kawira Humphrey (UR).

18. The Appellant submitted that the trial court disregarded the relationship that existed once third party proceedings were initiated. That the 2nd Respondent was placed in the position of a Plaintiff with the responsibility of proving its case against the 3rd Party (now Appellant). The Appellant further submitted that the trial court mistook the 1st Respondent’s evidence against the 2nd Respondent as evidence against him.

19. It was the Appellant’s submission that the 2nd Respondent did not lead any evidence against him and that the trial court only relied on assumptions as opposed to facts and evidence. He relied on Treadsetters Tyres Ltd vs John Wekesa Wepukhulu (2010) eKLR, Evans Nyakwana vs Cleophas Bwana Ongaro and Ephantus Mwangi & Geoffrey Nguyo vs Dancun Mwangi Wambugu (1982-1988) KAR 278.

20. The Appellant submitted that the trial court failed to clearly apportion liability between him and the 2nd Respondent having found both of them liable. That failure to distinctively apportion liability to the exact degree was erroneous. He relied on Masembe vs Sugar Corporation and another (2002) 2 EA 434 and Vyas Industries vs Diocese of Meru (1976-1985) EA 596.

21. It was the Appellant’s submission that the quantum awarded was inordinately high. He suggested that an award of Kshs 300,000/= would suffice and he relied on Gogni Construction Company limited vs Francis Ojuok Olewe (2015) eKLR, Bildad Onditi & another vs Rashid M. Rateng (2013) eKLR and Mwavita Jonathan vs Silvia Onunga (2017) eKLR as comparative authorities.

The 1stRespondent’s written submissions. 22. Through her submissions dated 15th February 2022, the 1st Respondent submitted that the Record of Appeal was incomplete as it did not contain the Memorandum of Appeal. That the omission rendered the Appeal defective and that there was nothing to appeal against. She relied on Order 42 Rule 13 (4) (a) of the Civil Procedure Rules, Republic vs Public Procurement Administrative Review Board Ex-parte Syner-Chemie Limited (2016) eKLR, Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 others (2014) eKLR and Ndegwa Kamau t/a Sideview Garage vs Fredrick Isika Kalumbo (2016).

23. The 1st Respondent submitted that 3rd party proceedings were taken against the Appellant and that pursuant to Order 1 Rule 15 of the Civil Procedure Rules, the 2nd Respondent expected to be indemnified by the Appellant once a Judgement had been entered in her favour. That it behoved the Appellant to adduce evidence to counter the 3rd party proceedings. She further submitted that the Appellant was wrong to suggest that since he had not tendered any evidence then it ought not to have been found liable for the occurrence of the accident. She relied on John Wambua vs Mathew Makau Mwololo & another (2020) eKLR to advance this submission.

24. The 1st Respondent submitted that her evidence was uncontroverted. That it was trite law that uncontroverted evidence was weighty and that her evidence could not be controverted by allegations in a statement of Defence. She relied on Peter Ngigi & another (suing as legal representative of the estate of Joan Wambui Ngigi) vs Thomas Ondiki Oduor & another (2019) eKLR, Janet Kaphiphe Ouma & another vs Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 and Kenya Power & Lighting Company Limited vs Nathan Karanja Gachoka & another (2016) eKLR.

25. It was the 1st Respondent’s submission that she suffered a severe injury as evidenced by the Medical Report, P3 form and Discharge Summary. That PW2’s testimony was not shaken during cross examination. It was her further submission that she had proved her case on a balance of probability and deserved the orders she got. That the trial court was right in finding the 2nd Respondent 100% liable and awarding her general damages of Kshs 600,000/=, future medical expenses of Kshs 150,000/= and special damages of Kshs 124,323/=.

26. It was the 1st Respondent’s submission that the Appellant did not call any witness in support of his case hence her evidence on the circumstances of the accident was not rebutted. That the Appellant’s allegations of negligence on the Respondent’s part were not proved. He relied on Michael Matonye Munyao & another vs JNK (suing as the legal administrator of the estate of JOA) (2019) eKLR to support this submission. It was his further submission that the trial court did not err when it found the Appellant solely liable for the accident.

27. From the court record, the 2nd Respondent did not file any written submissions.

28. I have perused and considered the Memorandum of Appeal dated 7th November 2017, the Appellant’s written submissions dated 27th April 2021 and the 1st Respondent’s written submissions dated 15th February 2022 and I have discerned four issues for my determination:-i.Whether the Appeal ought to be struck out for failure to include the Memorandum of Appeal in the Record of Appeal.ii.Whether the 1st Respondent proved her case to the required legal standard.iii.Whether the 2nd Respondent proved its case against the Appellantiv.The liability and quantum payable.

i. Whether the Appeal ought to be struck out for failure to include the Memorandum of Appeal in the Record of Appeal. 29. The 1st Respondent submitted that the Record of Appeal was incomplete as it did not contain the Memorandum of Appeal. That the Memorandum of Appeal was a crucial document in the prosecution of the Appeal as stated under Order 42 Rule 13 (4) (a) of the Civil procedure Rules. It was her further submission that the Appeal was incompetent and ought to be struck out.

30. Order 42 Rule 13(4) of the Civil Procedure Rules provided as follows:-Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—(i)a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

31. In the case of Mukenya Ndunda vs Crater Automobiles Limited (2015) eKLR the Court of Appeal emphasized that:-“The power to strike out an appeal or a notice of appeal on account of failure by an appellant to follow the rules of procedure requires to be exercised carefully and only in cases where it is shown that the party at fault flagrantly or deliberately or flippantly or recklessly failed to follow the rules.”

32. I have gone through the court record and there is a Memorandum of Appeal dated 7th November 2017 that was filed on 8th November 2017 and which is the basis of this Judgment. I have gone through the two authorities that the 1st Respondent relied on and both of them contemplated that a complete Appeal must have a Memorandum of Appeal which in the present case a Memorandum of Appeal exists.

33. I note that despite the 1st Respondent asking for the Appeal to be dismissed for lack of a Memorandum of Appeal in the Record of Appeal, she went ahead and elaborately submitted against the grounds contained in the Memorandum of Appeal. The aim of courts is always and at all times deliver substantive justice. Dismissing this Appeal because of a lack of the Memorandum of Appeal in the Record of Appeal would be draconian.

34. It is my finding therefore that the Appeal is competent for determination.

ii. Whether the 1st Respondent proved her case to the required legal standard. 35. It is trite law that the burden of proof lay on the person who alleges. Section 107 of the Evidence Act describes the burden of proof as follows:-(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

36. The standard of proof in civil cases is on the balance of probabilities. In James Muniu Mucheru vs National Bank of Kenya Ltd (2019) eKLR, the Court of Appeal stated as follows: -“Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party’s version of the story is more believable.”

37. In terms of production of evidence during the trial, the Court of Appeal case of Mbuthia Macharia vs Annah Mutua Ndwiga & Another (2017) eKLR stated that:-“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”

38. The 1st Respondent stated that she got injured when the Motor Vehicle she had boarded i.e. Motor Vehicle Registration Number KBW 512P was involved in a road traffic accident. She produced a ticket that was marked as P.Exh 1. The ticket indicated that she was travelling from Nairobi to Mumias on the night of 22nd December 2013. This evidence was not challenged during cross examination. I am satisfied that the 1st Respondent was a fare paying passenger in Motor Vehicle Registration Number KBW 512P.

39. The 1st Respondent testified that on the material day, the bus (KBW 512P) was being driven at a high speed and they were involved in an accident along Bomet-Narok road. Upon cross examination, she confirmed the occurrence of the accident and further stated that after the accident she tried to get out of the bus but she could not walk.

40. The 1st Respondent averred that as a result of the accident, she suffered injuries and was taken to Longisa Hospital and later to Tenwek Hospital. A P3 form, Discharge Summary from Tenwek Hospital and a Medical Report by Dr. Chepngetich Risper were produced and marked as P.Exhibits 3, 4 and 7 respectively. The P3 Form indicated that she had suffered a right posterior hip dislocation and that although she was in a fair general condition, she had a limp gait. The Medical Report confirmed the findings contained in the P3 Form and the Discharge Summary showed that she had been admitted to Tenwek Hospital on account on the injuries she suffered.

41. It is salient to note that the authenticity of P.Exh 3, 4 and 7 were not challenged, in fact they were produced by consent. I accept them as credible exhibits.

42. No. 53370 PC Juma Nyantika (PW2) testified that the accident involved Motor Vehicles Registration Numbers KBW 512P and KAE 484W. That as a result of the accident, both drivers died on the spot while several passengers sustained various injuries. He produced a Police Abstract that was marked as P.Exh 2 and stated that he was not the investigating officer. That the previous investigating officers, Inspector Kamuti and Senior Sergeant Munyi had been transferred. Upon cross examination, PW2 stated that he could not determine who caused the accident.

43. The 2nd Respondent did not testify or tender any evidence in defence of its case. The Court of Appeal in the case Charterhouse Bank Limited (under statutory management vs. Frank N. Kamau (2016) eKLR stated that:-“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgment merely because the defendant has not testified.”

44. From my analysis of the evidence produced and the testimony of PW1 and PW2, the 1st Respondent proved the occurrence of the accident and the injury she suffered. It is my finding that the 1st Respondent proved her case to the required legal standard thereby discharging her burden of proof.

iii. Whether the 2nd Respondent proved its case against the Appellant 45. The Appellant was enjoined in the suit as a 3rd party pursuant to a Third Party Notice dated 11th March 2015 issued by the 2nd Respondent. The 2nd Respondent claimed indemnity or contribution from the Appellant on the grounds that his driver (of Motor Vehicle Registration Number KAE 484W) was negligent in the said accident with its bus (Motor Vehicle Registration Number KBW 512P).

46. The law on third party proceedings is provided under Order 1 Rule 15 of the Civil Procedure Rules to wit:-(1)Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)—(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.(2)A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.(3)The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.(4)Where a third party makes as against any person not already a party to the action such a claim as is mentioned in subrule (1), the provisions of this Order regulating the rights and procedure as between the defendant and the third party shall apply mutatis mutandis as between the third party and such person, and the court may give leave to such third party to issue a third party notice, and the preceding rules of this Order shall apply mutatis mutandis, and the expressions “third party notice” and “third party” shall respectively apply to and include every notice so issued and every person served with such notice.(5)Where a person served with a notice by a third party under subrule (4) makes such a claim as is mentioned in subrule (1) against another person not already a party to the action, such other person and any subsequent person made a party to the action shall comply mutatis mutandis with the provisions of this rule.

47. Order 1 Rule 22 of the Civil Procedure Rules provides:-If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.

48. Once the Appellant entered appearance, the 2nd Respondent was mandated to file a Chamber Summons Application for the court to give directions on whether there was a triable issue between itself and the Appellant as to the Appellant’s liability and to establish the manner in which the dispute between itself and the Appellant was to be tried. In the case of Kanake Peter vs David Lemba Mbuli & 2 others (2018) eKLR, Mutende J. held that:-“Where a third party makes an appearance under Order 1 Rule 22 of the Civil Procedure Rules as was the case of the 1st Third Party, the Defendant was supposed to apply for directions by way of summons. As it is at this point that the directions in the manner the matter may be determined is given. Prior to giving directions the Court must be satisfied that there is a proper question to be tried as to the liability of the Third Party before giving the method to be adopted by the Defendant and the Third Party whether it should be determined in the course of trial of the suit or otherwise.”

49. The Appellant entered appearance on 26th August 2015 and from the record, the 2nd Respondent did not move the court as required by the law. The question would be whether this omission by the 2nd Respondent was fatal. The Court of Appeal case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 others (2013) eKLR observed that:-“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness…”

50. Having considered the aforementioned authority, I associate myself with its sentiments and find that the non-compliance with the provisions of Order 1 Rule 22 Civil Procedure Rules by the 2nd Respondent was though an irregularity was not fatal.

51. By virtue of the 2nd Respondent issuing third party notice to the Appellant, it had the burden of proving its case against him as it sought indemnity and contribution on any adverse orders against it. In the case of Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR, Gikonyo J. persuasively held that:-“In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.”

52. The 2nd Respondent did not lead any testimony or produce any evidence in his claim against the Appellant. In the case of Mary Wambui Kabguo vs. Kenya Bus Services Limited (1997) eKLR, the Court of Appeal stated:-“The age long principle of law is that he who alleges must prove.”

53. It is my finding therefore that the 2nd Respondent’s claim against the Appellant for indemnity and contribution was not proved and it therefore fails.

iv. The liability and quantum payable. 54. For this court to interfere with an award, it must be satisfied that the trial magistrate has misdirected himself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice. In the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs Augustine Munyao Kioko (2006) eKLR, the Court of Appeal stated that:-“It is generally accepted by Courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated H. West & Son Ltd vs. Shephard [1964]AC 326 at page 353- ‘The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such the present it is natural and reasonable for any member of an Appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”

55. On the issue of liability, the trial court found both the 2nd Respondent and the Appellant jointly and severally liable and stated that they were 100% liable.

56. I respectfully disagree with the trial magistrate. As I have earlier found, the 1st Respondent (then Plaintiff) was able to successfully prove her case against the 2nd Respondent (then Defendant). The 2nd Respondent on the other hand failed to discharge its burden of proof against the Appellant whom it had enjoined as a third party in the suit. He led no evidence against him. The only evidence that was available and upon which the trial court acted, was the Police Abstract produced by No. 53370 PC Juma Nyantika (PW2) which stated that there was a head on collision between motor vehicle registration KBW 512p and motor vehicle registration number KAE 484W. Such evidence was insufficient to prove liability. This therefore meant that the 2nd Respondent had no claim against the Appellant.

57. It is my finding therefore that the 2nd Respondent was 100% liable for the accident.

58. On the issue of General Damages, the 1st Respondent stated that she had suffered a right posterior hip dislocation. The trial court awarded Kshs 600,000/=. The Appellant submitted that the award was fair compensation for the injuries she suffered while the Appellant stated that an amount of Kshs 300,000/= would be sufficient.

59. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. In the case of Kigaragari vs. Aya (1982 - 1988) I KAR 768, it was stated:-“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees.”

60. The 1st Respondent suffered a right posterior hip dislocation. I have found the following cases quite helpful in terms of comparison:-I.Peter Githua Karanja & 2 others vs Thomas Kabuti Muchori (2019) eKLR where the court upheld an award of Kshs 700,000/= for a closed posterior hip fracture dislocation with posterior acetabulum wall fracture, laceration of the right heel and a right leg abrasion.II.David Kimathi Kaburu vs Dionisius Mburungu (2017) eKLR where the court awarded Kshs 630,000/= for a plated fracture midshaft femur, intertrochanteric fracture, wobbly gait, severe pain on the right hip and entire hip with injuries.III.Peter Gakere Ndiangui vs Sarah Wangari Maina (2021) eKLR the court made an award of Kshs 500,000/= for a pelvic fracture, soft tissue injury to the right thigh and chest.IV.Joseph Njeru Luke & 3 others vs Stellah Muki Kioko (2020) eKLR the court awarded Kshs 750,000/= for pelvic fractures and soft tissue injuries.V.Nguku Joseph & another vs Gerald Kihiu Maina [2020] eKLR awarded Kshs 500,000/= after sustaining soft tissue injuries and a fracture of the right humerus.

61. I have considered the authorities above and the nature of the injury suffered by the 1st Respondent and I find that the Kshs 600,000/= awarded as General Damages by the trial court as a fair compensation for the injury she suffered. It was comparable to decided cases that had almost similar injuries.

62. With regards to the Special Damages, the 1st Respondent particularized them as follows:-Medical Report Kshs 6,000/=Medical Treatment and Expenses Kshs 140,000/=Copy of records Kshs 500/=

63. The Respondent produced a bundle of receipts marked as P.Exh 5 from Tenwek Hospital indicating that she had paid a total of Kshs 128,743/= for her medical treatment, a receipt for the Motor Vehicle Search marked as P. Exh 6 (c) indicating that she had paid Kshs 1,000/=. The 1st Respondent also produced a receipt for the issuance of the Medical Report marked as P. Exh 7 (b) which indicated that she had paid Kshs 6,000/=. I am satisfied that the Respondent pleaded and proved part of her claim for special damages and the same is awarded at Kshs 135,743/=.

64. I have noted that the trial magistrate awarded Kshs 150,000/= as future medical expenses when the same had not been specifically pleaded by the 1st Respondent. A prayer for future medical expense is not an ordinary prayer that a court can grant in its discretion but it is a special award that must be pleaded specifically and proved. In the case of Tracom Limited & another vs Hassan Mohamed Adan (2009) eKLR, the Court of Appeal stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -““And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

65. It is my finding that the trial magistrate erred in awarding Kshs 150,000/= as future medical expenses and the same is therefore struck out leaving the total summation of the general and special damages is Kshs 735,743/=

66. In the final analysis, the trial court’s award of Kshs 874,323 is substituted with Kshs 735,743/=.

67. In the end, the Appeal dated 7th November 2017 is merited. The Award of Kshs 735,243/= is payable to the 1st Respondent by the 2nd Respondent.

68. The case against the Appellant is dismissed with no order on costs both in the lower court and in this Appeal. The 2nd Respondent shall meet the 1st Respondent’s (Plaintiff’s)

69. Costs in the trial court while each party shall bear their costs in this Appeal.Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 19TH DAY OF OCTOBER , 2023. R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Atundo for the Appellant, Mr.Koko for the Respondent and Siele (Court Assistant)