[2022] KEHC 13761 (KLR)

Ruto v Maru (Civil Appeal E100 of 2021) [2022] KEHC 13761 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13761 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E100 of 2021

RN Nyakundi, J

October 12, 2022

Between

Vincent Kibiwott Ruto

Applicant

and

Dickson Kipleting Maru

Respondent

Judgment

1. The appellant herein was the defendant in in ITEN SPMCCC NO. 10 of 2019 whereby the defendant was held 100% liable and an award of Kshs. 800,000 for general damages, Kshs. 6,000/- for special damages and future medical expenses of Kshs. 150,000/-. The plaintiff allegedly suffered injuries as a result of an alleged traffic road accident that took place along Eldoret-Eldama Ravine Road wherein he was a passenger in motor vehicle KBG 035L when the vehicle rolled resulting in said injuries.

2. The appellant being dissatisfied with the decision of the trial court instituted the present appeal vide a Memorandum of Appeal on the following grounds;1)The learned magistrate in law and misdirected himself when he failed to consider the appellants’ submissions both on matters of law and fact.2)The learned trial magistrate erred in fact and in law in failing to consider the defendants’ evidence, submissions and authorities supplied on the issue of quantum.3)The learned trial magistrate erred in fact and in law in awarding quantum based on injuries that were not pleaded nor proven4)The learned trial magistrate erred in fact and in law for failing to consider the evidence that was tendered on quantum during the hearing of the suit especially the defendants’ evidence tendered with regard to injuries suffered by the plaintiff and therefore an excessive award on quantum.5)That the learned magistrates’ decision was unjust, against the weight of evidence and was based on misguided points of law and has occasioned a miscarriage of justice.6)That learned trial magistrates’ exercise of discretion in assessment of liability was injudicious.7)The learned magistrate erred in assessing an award hereunder, which was wholly erroneous estimate of the loss and damages suffered by the plaintiff;a)Liability 100%b.General Damages – Kshs. 800,000/-c)Future Medical Expenses – Kshs. 150,000/-d)Special Damages – Kshs. 6,000/-e)Net award ----- Kshs. 956,000Plus, costs and interests of the suit.

Appellant’s Case 3. The appellant filed submissions on July 27, 2022 and submitted that as per the police abstract stamped May 13, 2019, the case was still under investigation and since it was not clear who was responsible for the accident between the plaintiff and the defendant the apportionment of liability should have been at 50/50. He relied on the case of Lakhamshi v Attorney General, [1971] EA 118,120 on the same. Further, he submitted that PW4 was not involved in investigations and the police file was not placed before the court to warrant full apportionment of liability to the defendant. He cited Benter Atieno Obonyo v Anne Nganga & Another [2021] eKLR and submitted that the plaintiff did not prove that the appellant was responsible for his injuries.

4. The appellant submitted that the award for damages was inordinately high in the circumstances. While stating that the general method for assessing damages is that comparable injuries should as far as possible be compensated by comparable awards, the appellant proceeded to cite cases on the different injuries sustained by the respondent and the awards therein.

5. The appellant urged the court to disturb the award of Kshs. 800,000/- as the plaintiff sustained soft tissue injuries with a single fracture. He cited the cases of George Mugo & Another v AKM (minor suing through next friend and mother of A.N.K [2018] eKLR, PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi & another [2018] eKLR and George Kinyanjui T/A Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR and submitted that the award should be substituted with Kshs. 100,000/-.

6. The appellant submitted that the injuries suffered by the Plaintiff are soft tissue in nature with no permanent incapacity assessed hence an award of Kshs. 800,000 is inordinately high and unjustified in the event especially seeing as the awards closest to what the current Plaintiff was awarded are reflective of far more serious injuries. He proposed an award of Kshs. 400,000/-.

7. The appellant opposed the award of future medical expenses on the basis that the same was only awarded based on the word of the Plaintiffs doctor and was never proved or supported by any documentation as should be. He cited the Court of Appeal case of Tracom Limited & Another -vs-Hassan Mohamed Adan [2009] eKLR in support of his submission. Further, he stated that the award on future medical expenses was awarded despite the Defendant disputing the same through the re-examination report dated March 22, 2021 which provided for a sum not exceeding Kshs. 80,000 for removal of implants.

8. With regards to costs the appellant submitted that it is trite law that costs follow the event and prayed for costs of this Appeal based on Section 27(1) of the Civil Procedure Act.

Respondent’s Case 9. The respondents filed submissions on April 13, 2022 and submitted that his testimony was supported and corroborated by PW4 the Police Officer who stated that the Respondent was merely a passenger in Motor Vehicle Registration KBG 035 L and that it was a self-involving accident as the Motor Vehicle lost control and rolled. The Police Officer confirmed that the Deceased persons and the Respondent were merely passengers in Motor Vehicle Registration KBG 035 L and that they did not in any way contribute to the accident. The appellant did not adduce any evidence challenge the testimony of the Respondent as regards the circumstances that led to the accident. This is what led to the findings on liability by the trial court. Further, he submitted that it is trite law what where the Defendant does not adduce evidence the Plaintiff's evidence is to be believed as allegations by the Defence is not evidence. The subordinate court thus properly found the Appellant and or his driver, agent, servant and or employee 100% negligent and liable for the accident.The respondent submitted that he sustained the following injuries;(a)Lacerations and blunt injury to the forehead(b)Blunt injury to the left shoulder(c)Fracture of the left humerus.(d)Blunt injury to the chest.(e)Blunt injury to the abdomen.(f)Bruises and blunt injury to both legs.

10. It was the respondents’ submission that the trial magistrate followed the proper principles in assessing quantum of damages. He cited the following authorities as the basis of the submissions; Nairobi HCCC NO. 4819 OF 1987 - Agnes Gachigi v George Kimani Wangairu & Anor, ) Nairobi HCCC NO. 472 of 1988 Dr. Wolfgang Garrugia v The AG where the courts awarded Kshs. 500,000/- as general damages in both cases.

11. He submitted that the award for special damages was specifically pleaded and proved by way of receipt. Further, that the issue of future medical expenses was specifically pleaded in the Amended Plaint and supported by Dr. Sokobe's Medical Report found at page 017 of the Record of Appeal. The Doctor had estimated cost of removal of implants at an estimated costs of Kshs 200,000 but the subordinate court reduced the same to Kshs 150,000. Therefore, the sum of Kshs 150,000 is justifiable to remove the implants.He asked that the appeal be dismissed with costs.

Issues For Determinationa. Whether the trial court erred in its determination of liabilityb. Whether the award for damages was excessive Whether The Trial Court Erred In Its Determination Of Liability 12. The ownership of the said motor vehicle was proven by way of oral and documentary evidence. A production of a copy of the police abstract dated May 13, 2019 proved that the vehicle settled the issue of ownership. The same was uncontroverted. In respect to evidentiary value of a police abstract as regards proof of ownership of a motor vehicle, in the case of Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another,[2010] eKLR the Court of Appeal held as follows:-“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases. However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”

13. There was no evidence adduced with regards to the assertion that the plaintiff contributed to the accident in any way. It is trite that he who alleges must prove and to this extent the appellant failed miserably.I find that the trial court was correct in its determination as to liability.

Whether The Award For Damages Was Excessive 14. It is trite that comparable injuries ought to be compensated by an award of comparable injuries. The respondent sustained the following injuries;(a)Lacerations and blunt injury to the forehead(b)Blunt injury to the left shoulder(c)Fracture of the left humerus.(d)Blunt injury to the chest.(e)Blunt injury to the abdomen.(f)Bruises and blunt injury to both legs.

15. The trial court awarded general damages of Kshs. 800,000/-. Future medical expenses were awarded at Kshs. 150,000/-, a sum disputed by the appellants. In awarding damages for injuries, the same being discretionary, the court is also invited to direct itself on the appropriateness and reasonableness of the award for injuries basically described as soft tissue with no residual permanent disability. The same was addressed in Lim v Camden HA [1980] AC 174 as follows:“Even in assessing compensatory damages, the Law seeks at most to indemnify the victim for the loss suffered, not to mulct the tortfeasor for the injury he has caused.”The principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:But money cannot renew a physical frame that has been battered and shuttered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

16. In Nguku Joseph & another v Gerald Kihiu Maina [2020] eKLR the respondent had sustained the following injuries;a)Mild head injury.b)Lacerated wound on the left supra orbital region of the face.c)Blunt injury to the anterior abdominal wall leading to gall bladder laceration and liver laceration.d)Fracture right humerus.e)Lacerated wound on the scalp about four (4) cm long.

17. The court reduced an award of Kshs. 2,500,000/- to Kshs. 500,000/- on appeal.

18. In John Mwendwa Kuti & 2 others v Ibrahim Kunyaga [2020] eKLR the court awarded the respondent an award of Kshs. 350,000/- in general damages, costs and interest down from Kshs. 500,000/- where the plaintiff had sustained soft tissue injuries.

19. In Francis Ochieng & another v Alice Kajimba [2015] eKLR the plaintiff suffered multiple soft tissue injuries which included head injuries, sub-conjunctival haemorrhage and periorbital scymosis on both eyes. The appellate court substituted an award of Kshs. 500,000/= issued by the trial court and granted as sum of Kshs 350,000/= on account of general damages.

20. Upon considering the said authorities I find that the award of Kshs. 800,000/- was excessive and hereby substitute the same with an award of Kshs. 500,000/-

21. With regards to future medical expenses, the respondent specifically pleaded the same in his amended plaint. The medical report by Dr. Sokobe found on page 16 of the record of the appeal stated that the cost of removing the implants is Kshs. 200,000/-. I find no reason to disturb the award for future medical expenses.

22. In the premises the appeal only succeeds insofar as the award for general damages is set aside and substituted with one for Kshs. 500,000/-. As a consequence, the rest of the awards remain affirmed as per the judgment of the trial court. The appellant and the respondent shall shoulder the costs of the appeal equally.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGE