[2022] KEHC 14134 (KLR)

Rotich v Mutai (Civil Appeal 15 of 2021) [2022] KEHC 14134 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14134 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 15 of 2021

RN Nyakundi, J

October 19, 2022

Between

Isaac Rotich

Appellant

and

Patrick Mutai

Respondent

Judgment

1. The appellant herein was the defendant in Eldoret CMCC No 779 of 2019 which was instituted vide a plaint dated September 28, 2019. The cause of action was that on July 7, 2018, the plaintiff was a pedestrian in Eldoret along Gulf petrol station when the appellant negligently drove motor vehicle registration number KCH 293P knocking down the respondent causing him to sustain injuries.

2. The matter was heard to its logical conclusion and the trial court held in favour of the respondent as follows;Liability 90/10Future medical expenses; Kshs500,000/-General damages; Kshs 2,500,000/-Special damages; Kshs 6,000/-

3. The appellant being dissatisfied with the decision of the court lodged the present appeal vide a memorandum of appeal filed on February 19, 2021. The grounds of the appeal are;a.That the learned trial magistrate erred in law and fact in holding the appellant 90% liable in view of the evidence on record.b.That the learned trial magistrate erred in law and fact in adopting the wrong principles in making a determination on general damages payable to the respondent and thereby arriving at an award that was excessive.c.That the learned trial magistrate erred in law and fact in awarding general damages which were manifestly excessive having regard to the injuries sustained by the respondent.d.That the learned trial magistrate erred in law and in fact in failing to take into account relevant factors / issues in reaching a determination on the general damages payable.e.That the learned trial magistrate erred in law and fact in failing to take into account the appellant’s submissions on quantum thereby awarding excessive damages in the circumstances.

Appellant’s Case 3. There are no submissions on record for the appellant.

Respondent’s Case 4. The respondent filed submissions on January 29, 2022. He submitted that he was candid in his evidence that motor vehicle registration KCH 239 P knocked him whilst at high speed when it was swerving. Motor vehicle KCH 239 P was at a high speed and knocked him down whilst swerving and avoiding to knock down some pedestrian thus ramming into the respondent. In cross examination that is found at page 57 of the record of appeal the respondent stated that he was on the pedestrian walk when the motor vehicle came from the opposite direction and rammed into him. The respondent stated that the vehicle was avoiding to knock down other pedestrians and that he was lawfully on the pedestrian walk.

5. The evidence of the police officer PW4 found at page 59 of the record of appeal was also relevant. PW4 was candid that the pedestrian (the respondent) was from coming to town from the Moi Teaching and Referral direction whilst the motor vehicle was coming from town headed towards the Moi Teaching and Referral hospital direction. The respondent was walking on the pedestrian path when the accident occurred. The vehicle lost control and knock down the respondent who was walking along the road on the pedestrian path. The respondents testimony was supported and corroborated by PW4 the police officer. The appellant did not call any other independent witness to support his assertions on the circumstance of the accident.

6. From the medical documents the respondent sustained the following injuries: -(a)Severe blunt injury to the back resulting to prolapsed intervertebral discs and muscle spasms.(b)Blunt injury to the left ankle which sprained.

7. In view of the injuries sustained the award of Kshs 2,500,000 as general damages subjected to 10% liability sufficed as just and adequate compensation to the respondent for the injuries sustained. The respondent submitted that he was guided by the following authorities; Embu Civil Petition 3 of 2015 – Kennedy Mwangi Murithi v Attorney General, Nairobi HCCCNo 541 of 2009 David Nzioka Nthenge v De La Rue Currency Print Limited and Kakamega HCCA no 14 of 2016 Mumias Sugar & Company Ltd v Mohammed Kweyu Shaban.

8. The respondents’ case is that the award given was a reasonable compensation considering inflation and effluxion of time. The award of Kshs 6,000 as special damages was supported by a receipt and it was specifically pleaded and proved.He prayed that the court dismiss the appeal with costs.

Issues For Determination 9. Whether the trial court erred in its finding on liability

10. Whether the award for damages was excessive

Whether The Trial Court Erred In Its Finding On Liability 11. This being a first appeal, it is the duty of the court to review the evidence adduced before the trial court and satisfy itself that the decision was well-founded. In Selle &another v Associated Motor Boat Co Ltd &others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."

12. It was the evidence of the plaintiff that he was walking along Nandi road on the material date when he was knocked down by a motor vehicle. The motor vehicle registration no KCH 293 P which was proved to belong to the appellant was the car that knocked him down.

13. The test often employed on negligent conduct is clearly spelt out in Joan Clements, by her litigation guardian, Donna Jardine v Joseph Clements [2012] 2 RCS, 181, at page 187, paragraphs 8-10, 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 (H L), 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, ie that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.”

14. On perusal of the evidence admitted before the trial court and in overall I find in this regard reliance placed on the burden of proof upon the plaintiff was discharged on a balance of probabilities. I however take issue with the evidence of PC Cheserek, PW4. He appeared in court to produce the police abstract but he did not have the police file and he was not the investigating officer. The abstract is dated September 4, 2019 whereas the accident occurred on July 7, 2018. Compounded by the fact that he was not the investigating officer, it brings into question the veracity of the evidence he adduced in court.

15. Notwithstanding that caveat, the appellant, in his witness statement dated September 16, 2020 admitted the occurrence of the accident and that he reported the same to Eldoret Central police station. It is therefore clear that the accident occurred and it occasioned the respondent injuries.

16. In the premises, I find that the trial court did not err on its finding on liability.

Whether The Award For Damages Was Excessive 17. The principles which primarily guide this court are herein illustrated as follows; “the appellate court only interferes with the trial court’s findings of fact if it is shown that he took into account facts or factors which he should have taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.

18. See Mwangi v Wambugu (1982-1988) 1KAR 278; Mwanasokoni v Kenya Bus Services and others (1982-1988) 1KAR 870. See 9-255, 9-39, 9-44, 36-11. ” (See also Odunga Digest on Civil Case law and Procedure.) Vol 5 Page 3649 para D

19. It is trite that when awarding damages, courts are to consider awards for similar injuries awarded in past cases. The respondent suffered the following injuries;(a)Severe blunt injury to the back resulting to prolapsed intervertebral discs and muscle spasms.(b)Blunt injury to the left ankle which sprained.

20. The court in Southern Engineering Company Ltd v Musingi Mutia(1985) KLR 730 observed as follows “It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated. See 57-1, 57-3, 57-12.

21. From this brief exposition it is understandable on how an appellate court should go about evaluating the record and evidence subject matter of the appeal. The learned author Zuckerman (1989), The Principles of Criminal Evidence, at 104-109 had this to say “If the party bearing an evidential burden on an issue manages to discharge it this is said to place on his opponent a ‘tactical’ or ‘provisional’ burden to adduce evidence in rebuttal. The tribunal of law’s ruling means that sufficient evidence has been proved. If the opponent fails to adduce evidence to show the contrary it is quite possible that the issue will be proved against him. It would therefore be to the opponent’s advantage to adduce evidence in rebuttal rather than simply hope the tribunal of fact does not find in the proponent’s favour; he is obliged, in a tactical sense, to adduce evidence of his own. If the prosecution (has) established a prima faciecase against the accused it is not incumbent on him to adduce evidence of his own, for the jury may decide in his favour anyway.”

22. This court also found the case of Britich Transport Commission v Gourley (1956) AC 185 on page 206 from England to be relevant where Lord Goddard expressly stated as follows; “In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. the basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far - 14 - as can be done by an award of money, as he would have been had the accident not happened.”

23. The practical realities on assessment of damages may it be at the trial court or on appeal revolve around the guiding principles in the above authorities. Consequently, they will mirror in the decision I am asked to evaluate and ascertain whether the impugned judgment was tainted with errors or omissions to provide grounds for interference.

24. In Mumias Sugar & Company Limited v Mohammed Kweyu Shaban [2018] eKLR the court cited with approval the case of Sammy Machoka Oira v Josphat Mwangi Kihuro & Another (2008) eKLR where the plaintiff had sustained multiple soft tissue injuries on the head, neck, abdomen right wrist, tenderness over the cervical spine and disc prolapse at level L4/L5/S1. the plaintiff in the case experienced backache, had spasm of muscle of his back, numbness over right thigh and calf, not able to bed or lift heavy loads and could not travel in vehicles especially on brumby roads. Permanent disability was assessed at 12%. Nambuye J (as she then was) awarded Kshs 1,750,000/= in general damages.

25. In James Nyaboga Masogo v Kipkebe Ltd [2007] eKLR the nature of the injuries were; compression injuries to the spinal cord, prolapsed inter vertebral disc, dislocation and spraining of the vertebral bones and soft tissue and back muscle contusion. The court awarded damages of Kshs1,700,000/-. I find that the award was not excessive considering the award for future medical expenses was Kshs500,000/- .

26. In the present appeal I could see no legitimate objection by the appellant on matters discussed by the trial court and the formulation of the claim for damages awarded at the conclusion of the cause of action.The appeal is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 19TH DAY OF OCTOBER, 2022. .............................R. NYAKUNDIJUDGE