[2022] KEHC 14200 (KLR)

Ruriga & another (Both Suing as Administrators of the Estate of Isaac Ruriga Kariuki) v Murigi (Civil Suit 115 of 2021) [2022] KEHC 14200 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14200 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Suit 115 of 2021

LM Njuguna, J

October 19, 2022

Between

Elizabeth Wambui Ruriga

1st Plaintiff

Benard Kariuki Ruriga

2nd Plaintiff

Both Suing as Administrators of the Estate of Isaac Ruriga Kariuki

and

Arthur Murigi

Defendant

Judgment

1. Vide an amended plaint amended on July 9, 2018, the plaintiffs herein instituted this suit against the defendant seeking for general damages for pain and suffering and loss of amenities; loss of diminished earning capacity; special damages and costs together with interests.

2. The plaintiffs aver that at all material times relevant to this case, the defendant was the driver and/or owner of motor vehicle registration number KAR 107Z while the deceased was riding motor cycle registration number KMCA 539U when the accident occurred.

3. It was their case that on October 1, 2010, the deceased was lawfully and carefully riding his motorcycle along Baricho - Kibirigwi road, when motor vehicle registration number KAR 107Z was so recklessly driven that the driver in an attempt to navigate a corner at a high speed, permitted the said motor vehicle to veer off its rightful lane and encroach into the deceased’s lawful lane thereby knocking the deceased and consequently occasioning him bodily injuries. That the fact that the said motor vehicle veered off its rightful lane and encroached into the deceased’s lane without warning or any indication and further knocking his motor cycle is itself an act of negligence. That the same means that the driver was not in control of the vehicle or he was negligent and oblivious of other road users and as such, it was submitted that the defendant is wholly to blame for the occurrence of the accident. The plaintiffs in supporting their case relied on the case of Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR.

4. On quantum, it was submitted that in view of the medical report produced by Dr. Wokabi dated July 27, 2011 coupled with treatment notes, it was evident that the deceased was hospitalized for a period of three months following the injuries sustained in the said accident. Reliance was placed on the case of Alex Wachira Njagua v Gathuthi Tea Factory [2010] eKLR in its quest to be awarded Kshs 5,000,000/=. In regards to special damages, an amount of Kshs 152,613/= was prayed for and the costs of the suit and interests.

5. I have carefully considered the matter herein and the two issues for determination are;i.Liability;ii.Quantum of Damages.

6. It is trite that the plaintiffs’ cause of action is based on the tort of negligence. Negligence was defined in the case of Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781 (Baron Alderson) as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendant might have been liable for negligence, if, unintentionally, it omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done (See Salmond and Heuston on the Law of Torts 9thEdition).

7. The elements of the tort of negligence which must be proved for an action in negligence to succeed are:(a)there was a duty of care owed to the plaintiff,(b)the duty has been breached, and(c)as a result of that breach the plaintiff has suffered loss and damage [See Donoghue v Stevenson [1932] A.C. 562].

8. In Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case. One may find that as a matter of history, several people have been at fault and that if anyone of them had acted properly, the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can apply generally.”

9. The legal principle established by section 107 of the Evidence Act is that whoever asserts a fact is under an obligation to prove it in order to succeed (burden of proof). In civil cases, the degree of certainty with which a fact must be proved to satisfy the court of the fact (standard of proof) is that of balance of probabilities [See Miller v Minister of Pensions [1947] 2 All ER 372]. Section 109 on the other hand captures the evidential burden. These two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

10. The suit being founded on tort of negligence, the plaintiffs have a duty to prove negligence and in doing so, prove all the elements of negligence. In Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR Ibrahim J. (as he then was) stated that;-“In an action for negligence, as in every other action, the burden of proof falls upon the Plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferred and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

11. This is because there is as yet no liability without fault and a plaintiff must prove negligence against the defendant where the claim is based on negligence. [See also Kiema Mutuku v Kenya Cargo Handling Services Ltd [1991] 1kar 258,Mount Elgon Hardware v Millers C.A. No 19 of 1996 and Mwaura Mwalo v Akamba Public Road Services Ltd HCC No 5 of 1989].

12. So, did the plaintiffs herein discharge the burden of proof and have they proved the elements of the tort of negligence?

13. The facts speak for themselves that an accident indeed occurred on October 1, 2010 involving motor vehicle Registration No KAR 107 Z driven by the defendant and a motor cycle Registration No KMCA 539U ridden by the deceased.

14. The defendant testified that the road not only had sharp corners but also loose chips on both sides and therefore visibility was obstructed. He further stated that when he negotiated the corner, he saw a loaded motor bike with no headlights heading towards him and upon the rider realizing the oncoming vehicle, he tried to go back to his lane and with the presence of the chips on the road and the heavy weight of the load that he was carrying, the rider veered back to his right and lost control. That the collision was on his lane and that they were only the two of them and there was no other person. It was his case that the vehicle was written off and that he was not charged with any traffic offence.

15. According to the police officer who testified as PW3, the motor cycle and the motor vehicle were involved in the said accident which occurred on October 1, 2010 at around 8. 00 p.m. and that the deceased suffered injuries which were described as grievous harm. It was his evidence that the matter was pending investigations and as such, he did not know the status of the file during the time of the hearing and further that, he did not know how the accident occurred. He confirmed that he was not the investigating officer as the officer previously handling the matter had proceeded on retirement.

16. The first issue that I have to deal with is whether the defendant owed the deceased a duty of care and whether that duty was breached.

17. The Traffic Act (Cap 403 Laws of Kenya) provides for the law relating to traffic on the road. Section 68(3) of the Traffic Act provides;“(3)A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negate any liability which is in question in those proceedings.”

18. The Act further creates offences relating to the manner of driving the motor vehicles on the road. These are provided under Sections 46, 47 and 49. These Sections require motorists to drive with due care and attention. In this case, PW2 testified that the defendant lost control of the vehicle and veered off the road thus hitting the motor cycle.

19. Having perused the police abstract, I note that no party was blamed for the occurrence of the said accident and further, the police officer testified that no investigations were conclusively carried out and therefore could not tell how the accident occurred or who was to blame for the same.

20. The court of Appeal in Fred Ben Okoth v Equator Bottlers Ltd [2015] eKLR held in the relevant part as follows:-‘‘Proof of causation is crucial to the success of most of the actions in tort, except in instances where the doctrine of ‘‘res ipsa’’ is applicable.’’

21. In the case of Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR the court regretted having to dismiss some two cases because the plaintiff failed to prove their case to the required standard. In that case, the plaintiff was unable to prove that the defendant caused the accident because she did not witness the accident and the police officer who was called to testify was not the investigating officer and there was no credible evidence on which negligence could be inferred.

22. However, in this instance, there is the evidence tendered by PW2 wherein he stated that it was the defendant who veered off the road and hit the deceased’s motor cycle and that the collision happened on the lane of the boda boda rider; in the same breadth, the defendant during cross examination stated that prior to the collision, he saw the headlights from the rider’s bike while previously he had denied that the motor cycle had its headlights on. In the same breadth, the defendant had stated that after the accident, his motor vehicle was inspected but he did not have the said report in court and that notwithstanding, it was his evidence that the deceased was to blame for the occurrence of the accident. Upon being asked if he had the evidence to prove the same, he rode on the fact that the police did not charge either of them.

23. From the amended plaint and the doctor’s (Dr. Wokabi) report, it is outright that the deceased sustained double fractures of right femur, compound fracture right tibia, compound fracture right fibula, multiple blunt injuries to the chest and pelvis and a fracture of the left femur. The plaintiffs thus submitted that an amount of Kshs 5,000,000/= will be sufficient to compensate the estate of the deceased.

24. Lord Jamieson dealt with the doctrine of duty to take reasonable care not to cause injury or damage to other road users in Hay or Bourhill v James Young [1943] AC 92:“No doubt the duty of a driver is to use proper care to cause injury to persons on the highway or in the premises adjourning the highway, but it appears to me that his duty is limited to persons so placed that they may reasonably be expected to be injured by the omission to take such care.”

25. In Lang v London Transporters Executive [1959] WLR Ps Havers J expressed the view on the doctrine as follows:“If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence, but if the possibility of danger emerging is only a mere possibility, which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extra ordinary precautions.”

26. When taken as a whole G V Odunga Digest on Civil Case Law and Procedure Vol 3 2nd Edition Law Africa Publishing Ltd {2006} the Learned Judge observed thus at Pg 2964 para (6):“the Law imposes a duty on a person who drives a vehicle on a road to use reasonable care to avoid colliding with other motor vehicles using the road, and the degree of obligation by much negligence ought to be adjudged in a traffic accident case is what sort of action could a reasonable man have taken to ensure that no accident occurred.”

27. Having considered the testimony of the police officer (PW3) in the instant case, it is clear that his evidence is not useful to this court as he was not the investigating officer.

28. In the present case to prove negligence, one has to assess and evaluate the testimony of PW2 who was the only alleged eye witness to the said accident. He blamed the defendant for the accident.

29. On the part of the defendant, he admitted the occurrence of the accident, he denied negligence and blamed the deceased for the misfortune that befell him.

30. The paucity of the principles of liability and the exposition of the Law in this field sometimes has made it so difficult for the Courts to comprehend the appropriate scope of causation, proximate cause, breach of duty of care, negligent acts as they relate to liability and loss to adequately rationalize their Judgments.

31. Based on the evidence and authorities referred to in the foregoing paragraphs I am minded to find the dictum made by the Court of Appeal in Abbay Abbubakar Haji & Another v Marair Freight Agencies Ltd CA No {1984} KLR 139 Vol 1 KAR 474 where the Court held:“A Judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most accidents, it is possible on a balance of probabilities to conclude that one or the other was guilty or both parties were guilty of negligence. In many cases, for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no obstruction or other traffic affecting their courses, there is, in absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible, it is proper to divide the blame equally between them. Where however, there is lack of evidence the position is different.”

32. In view of the foregoing, it is safe to state that the plaintiffs have brought themselves within the principles in Bundi Marube v Joseph Onkoba Nyamuro [1983] KLR 403 and to bring the matter herein to rest; and as such, the only order that comes to my mind is that of a shared liability.

33. On quantum the Court of Appeal in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR reasoned that:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

34. In the case of Pauline Gesare Onami v Samuel Changamure & Another [2017] eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs 600,000/=.

35. In the case of Reuben Mongare Keba v LPN [2016] eKLR where the respondent suffered fracture of the tibia-fibula bones of right leg, dislocation of the right hip joint, bruises on the chin, fracture of the right femur and degloving injury of the right leg and was awarded general damages of Kshs 800,000/=.

36. In the case of Sammy Mugo Kinyanjui & Another v Kairo Thuo [2017] eKLR where the respondent had slight tenderness in the forehead, neck, chest, abdomen, right knee and both legs; fracture of the right tibia; fracture of the left tibia and fibula. His conclusion was that the injuries were very severe but had healed the court lowered the award of general damages from Kshs 1,000,000/= to 600,000/=.

37. In the case of Daniel Otieno Owino [2020] eKLR the court awarded the respondent a sum of Kshs 600,000/= as compensation for a compound fracture of the tibia/fibula bones on the right leg, deep cut wound on the right leg, head injury with cut wound on the nose, blunt chest injury, soft tissue injury on the left lower limb involving the high and ankle region.

38. Considering the injuries sustained by the deceased herein and keeping in mind that no injuries can be completely similar, time and inflation, I find that an amount of Kshs 700,000/= would thus suffice in the case herein together with costs and interests of the suit.

39. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence to the tune of Kshs 69,000/=. In view of the foregoing, I apportion liability at the ratio of 50:50.

40. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L NJUGUNAJUDGE……………………………………….…..for the Plaintiffs……………………………………..….for the Defendant