[2019] KEHC 9170 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 67 OF 2015

SABATIA JACKSON ASEMBU.................................APPELLANT

-VERSUS-

PETER NYAMWANGE.....................................1ST RESPONDENT

JOSEPH QUEDEYA MWANGALE

(suing as legal representative of the estate

of the deceased Cornel Ababu)...........................2ND RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. T. Olando, Resident Magistrate, delivered on 10 June 2015 in Eldoret CMCC No. 488 of 2012)

JUDGMENT

[1]This appeal was lodged herein on 29 June 2015 by the Appellant, Sabatia Jackson Asembu, from the Judgment and Decree of the Resident Magistrate, Hon. T. Olando, in Eldoret CMCC No. 488of 2012: Peter Nyamwange vs. Rev. Evat Vandeni Ham, Nundoroto Farm & Sabatia Jackson Asembu. The 1st Respondent, Peter Nyamwange, had sued the Appellant and the other Respondents before the lower court in connection with injuries that he sustained in a road traffic accident that occurred on 3 December 2011 along the Eldoret-Kapsabet Road.

[2] It was the contention of the 1st Respondent before the lower court that he was then lawfully riding on a Motor Cycle Registration No. KBG 495N King Bird, when the Appellant, as the driver of the CAT Caterpillar Chassis Number 3KK 03260, No. B5505931, so negligently drover the said machine that he caused or permitted it to violently knock down the 1st Respondent, thereby occasioning him bodily harm. Hence, the particulars of negligence, the injuries and special damage suffered by the 1st Respondent were duly supplied in paragraphs 4 and 5 of the Plaint dated 15 June 2012.

[3] The Appellant entered appearance and filed a Defence before the lower court through the firm of M/s Omwenga & Co. Advocates. He denied the allegations set out in the 1st Respondent's Plaint. He denied that he was driving the Caterpillar in question at the material time, or even that an accident occurred as alleged. In the alternative, the Appellant averred, at paragraph 6 of the Defence dated 9 August 2012, that, if an accident occurred as alleged, then the same was wholly occasioned and/or substantially contributed to by negligence on the part of the 1st Respondent and the owner/rider of Motor Cycle Registration No. KBG 495N. The particulars of the negligence alleged were also supplied in Paragraph 6 of the said Defence.

[4] Thereafter, on the 23 September 2013, the Appellant filed an application under Order 1 Rule 15(1)of theCivil Procedure Rules, 2010, for leave to issue a Third Party Notice against the 2nd Respondent, Josephat Quedeya Mwangale, in his capacity as the legal representative of Cornel Ababu (deceased) the owner of Motor Cycle Reg. No. KBG 459N. That application was allowed on 17 January 2014 and notice given accordingly. The Third Party was served and directions given by the lower court on 29 October 2014 that the dispute between the Third Party and the Defendants be determined during the hearing of the main suit.

[5] The matter was thereafter listed for hearing in which the 1st Respondent called four witnesses. The 3rd Defendant also testified in support of his case. Thus, on the basis of that evidence and the written submissions that were filed by the parties' respective Advocates, the lower court delivered the impugned Judgment dated 10 June 2015. The Learned Trial Magistrate found as a fact that the accident occurred as alleged by the 1st Respondent and proceeded to apportion liability at 50:50 as between the Appellant and the rider of Motor Cycle Reg. No. KBG 459N,in respect of which the owners of the Caterpillar, who were the 1st and 2nd Defendants before the lower court, and the Third Party herein, were roped in, albeit in a vicarious capacity.

[6] On quantum, the lower court, having given due consideration to the evidence and the relevant authorities that were brought to its attention, considered an award of Kshs. 300,000/= to be sufficient compensation for the injuries sustained by the 1st Respondent as General Damages for pain and suffering, together with a Special Damages component of Kshs. 63,076/=, interest and costs.

[7]Being dissatisfied with the award, the Appellant filed this appeal on 29 June 2015 against the said Judgment and Decree on quantum on the following grounds:

[a] That the Learned Trial Magistrate erred in law and in fact in failing to dismiss the 1st Respondent's suit with costs as he had not proved his case on a balance of probability against the Appellant as required by law.

[b] That the Learned Trial Magistrate erred in law and fact in holding the Appellant 50% liable for the alleged accident when there was no sufficient evidence to that effect.

[c] That the Learned Trial Magistrate erred in law and in fact in failing to hold the Respondents wholly liable for the accident.

[d] That the Learned Trial Magistrate erred in law and in fact in failing to hold the 2nd Respondent wholly liable for the accident.

[e] That the Learned Trial Magistrate erred in law and in fact in awarding the 1st Respondent Special Damages of Kshs. 63,076/= that were not proved to the required standard in law.

[f] That the Learned Trial Magistrate erred in law and in fact by failing to evaluate the injuries sustained by the 1st Respondent as evidenced on the medical chits and/or reports.

[g] That the Learned Trial Magistrate erred in law and in fact in making an award in General Damages of Kshs. 300,000/= that was so excessive as to amount to an erroneous estimate of the loss or damage suffered by the 1st Respondent.

[h] That the Learned Trial Magistrate erred in law and in fact in disregarding relevant evidence on record hence resulting in a wrong decision.

[i] That the Learned Trial Magistrate erred in law and in fact in awarding the costs of the suit to the 1st Respondent.

[j] That the Learned Trial Magistrate's decision albeit, a discretionary one, was plainly wrong.

[8]Accordingly, it was the Appellant's prayer that the appeal be allowed; that the Judgment of the lower court delivered on 10 June 2015 be set aside, and the same be substituted with a proper finding/judgment; and that the Respondent be ordered to pay the costs of this appeal.

[9] The appeal was canvassed by way of written submissions pursuant to the directions issued by the Court on 27 June 2017. Accordingly, the Appellant's written submissions were filed on 8 November 2017 by M/s Omwenga & Company Advocates; while the written submissions of the 1st Respondent were filed by M/s Chepkwony & Company Advocates on 18 September 2017. Counsel for the Appellant formulated five issues from the ten Grounds of Appeal raised in the Memorandum of Appeal dated 29 June 2015, namely:

[a] Whether the Learned Trial Magistrate erred in law and in fact in holding the Appellant 50% liable for the subject accident;

[b] Whether the award of Kshs. 300,000/= as General Damages is so excessive as to amount to an erroneous estimate of the loss or damage suffered by the 1st Respondent;

[c] Whether the Special Damage award of Kshs. 63,076/= was based on strict proof as required by the law;

[d] Whether the Learned Trial Magistrate erred in law and fact in awarding costs of the suit to the 1st Respondent; and,

[e] Whether the decision of the Learned Trial Magistrate was plainly wrong on the basis of the evidence adduced before the lower court.

[10] On liability, Counsel for the Appellant cited the provisions of Section 107, Section 108 and Section 109 of the Evidence Act, Chapter 80 of the Laws of Kenya, in urging the Court to find that the 1st Respondent failed to discharge the burden of proving his case on a balance of probabilities; and therefore that there was no basis for holding the him 50% liable. It was further argued that, based on the injuries suffered by the 1st Respondent, namely, a cut wound on the left leg and an ankle that was swollen and tender, as well as fractures on the left tibia and fibula, an award of Kshs. 300,000/= was inordinately high, granted that the 1st Respondent had fully healed by the time he testified before the lower court. The case of Garton Limited vs. Nancy Njeri Nyoike [2016] eKLR was cited in support of the argument that an appellate court can interfere with an award of damages if satisfied that the lower court acted on wrong principles of law, or misapprehended the facts. Counsel further urged the Court to take into consideration authorities in which lesser awards were made for comparable injuries; such as JMN (Minor suing through next friend and father WWN) vs. Petroleum & Industrial Services Ltd [2014] eKLR in which Kshs. 180,000/= was awarded for soft tissue injuries as well as fracture of the right tibia and fibula bones.

[11] With regard to the Special Damages award of Kshs. 63,076/= Counsel for the Appellant relied on Agnes Wanjiku Ndegwa vs. Kenya Power & Lighting Company Ltd [2014] eKLR and Leonard Nyongesa vs. Derrick Ngula Righa [2008] eKLR to augment his submission that special damages must not only be specifically pleaded but also proved by production of payment receipts for which stamp duty had been paid. the Court was therefore urged to set aside that award as no such receipts were produced before the lower court. Thus, the contention of the Appellant was that, on the whole, the 1st Respondent did not prove his case on a balance of probabilities and was therefore not entitled to costs of the suit; and therefore that the Learned Magistrate committed an error of principle warranting the intervention of this Court.

[12] On behalf of the 1st Respondent, it was submitted that sufficient evidence was laid before the lower court to demonstrate that the accident in question did occur and that the 1st Respondent was injured as a result of that accident. Counsel drew the Court's attention to the medical documents produced before the lower court, including the Discharge Summary, the In Patient Invoice, Dr. Lelei's letter dated 19 Augsut 2012, as well as the Medical Report prepared by Dr. Aluda, all of which went to buttress the evidence of the 1st Respondent and his claim. It was therefore the contention of Counsel for the 1st Respondent that the appeal was brought in bad faith, granted that liability was apportioned at 50:50 between the Appellant and the Third Party.

[13] This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded, while bearing in mind that the Court did not have the benefit of seeing or hearing the witnesses. In Selle & Another vs. 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..."

[14] The 1st Respondent testified before the lower court as PW1 on 15 March 2013 and thereafter called three witnesses, namely, Dr. Paul Kipkurui Rono of Moi Teaching and Referral Hospital (PW2), PC George Omoro (PW3) and Dr. Samwel Aluda (PW4). According to the 1st Respondent, on 3 December 2011, he had been picked from church by the deceased, Cornelius Ababu, using his motor cycle. That as the deceased was riding his motor cycle along the Eldoret-Kabsabet Road at about 7. 00 p.m., there came a Caterpillar from the direction of Kapsabet Town heading towards Eldoret direction whose driver was so negligent that he caused it to collide with the motor cycle on the left side of the road.

[15] The 1st Respondent further told the lower court that, as a result of the collision, he suffered a fracture on the left leg below the knee. He was taken to hospital where he was admitted for treatment till 15 December 2011. Upon his discharge, he reported the accident to Eldoret Central Police Station and had his statement recorded. He was then issued with a Police Abstract and a P3 Form which he took to Moi Teaching and Referral Hospital for completion. He thereafter saw Dr. Aluda (PW4) for a second examination. He identified, before the lower court, the Discharge Summary and the Invoice issued to him at Moi Teaching and Referral Hospital. He also produced the receipts for the expenses he incurred in connection with his treatment. They were marked the Plaintiff's Exhibits No. 2(a), 2(b) and 2(c). He also identified the Police Abstract and the search conducted by his Advocates at the Motor Vehicles Registry along with a receipt for Kshs. 1,000/= issued by the Kenya Revenue Authority for the search. They were marked the Plaintiff's Exhibits 3 and 6(a) and 6(c) before the lower court. The 1st Respondent blamed the Appellant for the accident in that he caused the Caterpillar to collide with the motor cycle on the left lane where the motor cycle was rightfully on.

[16] Dr. Rono (PW2) confirmed to the lower court that the 1st Respondent was admitted at Moi Teaching and Referral Hospital on 3 December 2011 after having been involved in a road traffic accident; and that he sustained fractures of the tibia/fibula bones of the left lower limb. He further confirmed that the Plaintiff was taken to theatre for internal treatment of the fractures and stayed in the hospital until his discharge on 15 December 2011 as shown in the Discharge Summary and Invoice issued by Moi Teaching and Referral Hospital, which he produced as the Plaintiff's Exhibit No. 1(a) and 1(b). PW2also produced the P3 Form that he filled and signed in respect of the 1st Respondent.

[17] PW3 similarly confirmed that a report was made to the Police Station of the fatal accident that involved Motor Cycle Registration No. KBG 459W, King Bird and a Caterpillar Chassis No. 3KK03260 next to National Petrol Station along Eldoret-Kapsabet Road. He further stated that the occurrence was investigated by PC Richard Okuku, who had been transferred to Nakuru, and that the Investigating Officer's recommendation was that the file be heard by way of inquest. He produced the Police Abstract as the Plaintiff's Exhibit No. 3 before the lower court.

[18] Dr. Samwel Aluda (PW4) told the lower court that he examined the 1st Respondent on 18 April 2012 and compiled a Medical Report to that effect which he produced as the Plaintiff's Exhibit No. 5(a). That, for his services, he charged and was paid Kshs. 1,500/=, for which he issued a receipt marked the Plaintiff's Exhibit No. 5(b). He confirmed that the 1st Respondent had presented to him a history of having been involved in a road traffic accident on 3 December 2011 and that he examined him after about 4 months and that the major injuries were the fractures of the left tibia and fibula of the left lower limb. He also confirmed that the injuries had healed by the time of examination.

[19] In his defence, the Appellant conceded that on 3 December 2011, he was driving a Caterpillar from Kapsabetto Eldoret Town; but contended that on reaching Teleview, a motor bike rider came from the right side and that in the process of overtaking a Nissan motor vehicle, the motorcycle collided with the Caterpillar on the left side of the road, facing Eldoret direction. He blamed the rider of the motor cycle for the accident for not having kept his distance from the Nissan motor vehicle and for not being watchful.

[20]Having given due consideration to the entire body of evidence adduced before it, the lower court came to the conclusion that:

"Considering the defence given by DW1 I find that both the driver and the rider equally contributed to the accident and as such I would apportion liability between them at 50%:50%...The 1st and 2nd defendants were the owners of the caterpillar as stated by the 3rd defendant and the police abstract as such they are vicariously liable for the actions of the driver. The 3rd party was the owner of the motor cycle as such he is vicariously liable for the actions of the rider..."

[21] Having carefully considered and re-evaluated the evidence adduced before the lower court, there is no disputation that the accident in question did occur as alleged by the 1st Respondent between the Caterpillar Chassis No. 3KK03260that was being driven by the Appellant at the time, and the Motor Cycle Registration No. KBG 459W, King Bird.The Appellant conceded as much in his evidence before the lower court. Likewise, it is not contested that the rider of the motor cycle died as a result of the injuries he sustained in the accident; and that is why his personal representative was enjoined herein as a Third Party to represent his estate.

[22] That the 1st Respondent was a pillion passenger on the motor cycle aforementioned is also not in dispute. He similarly sustained injuries that were not the subject of controversy before the lower court. At any rate the same were proved on a balance of probabilities by the evidence adduced by the 1st Respondent and his three witnesses. Accordingly, and as was rightly pointed out by Counsel for the Appellant, the issues that present themselves for re-evaluation before this Court are:

[a] Whether the Learned Trial Magistrate conclusions on liability are tenable;

[b] Whether or not the award of General and Special Damages was hinged on the correct principles given the evidence adduced by the parties;

[c] What order ought to be made on costs.

[23]On liability, it was imperative for the Plaintiff before the lower court to demonstrate culpability, or blameworthiness. Needless to say that the burden was on the 1st Respondent to prove the particulars of negligence set out in Paragraph 4 of the Plaint filed on 21 June 2012. Those particulars included allegations that the Caterpillar was being driven on the wrong side of the road; and that it was being driven in a meandering manner as alleged. The 1st Respondent also pleaded the doctrine of Res Ipsa Loquitor. In similar vein, the Appellant pleaded negligence and provided particulars thereof. While not all of the particulars were proved before the lower court, the evidence presented shows that the Appellant was at fault for driving the Caterpillar on a public road at night without sufficient indication of its presence on the road. The 1st Respondent told the lower court that he just saw the Caterpillar when the two motor vehicles collided; and that the accident occurred on the left lane where the motor cycle had right of way.

[24] Since the Appellant also maintained that the accident occurred on the right lane facing Kapsabet direction on the lawful path of the Caterpillar, it was for the Learned Trial Magistrate to determine who between the Appellant and the 1st Respondent was telling the truth; noting that the police investigations were unable to ascertain who, between the two parties, was responsible for the accident. The Learned Trial Magistrate sought guidance from the cases of Re B [2008] UKHL 35 and Peter Okello Omedi vs. Clement Ochieng [2006] eKLR to come to the conclusion that, since there was no clear proof as to who exactly was to blame for the accident, both the motorbike rider and the Appellant were equally blameworthy, hence the apportionment of liability at 50%:50%. I find no reason to disagree with that conclusion or to find that there was an error of principle in that finding. Indeed, in Barclays Steward Limited & Another vs. Waiyaki [1982-88] 1 KAR 1118 it was held thus:

"The bare narrative of the accident gives rise to a number of possibilities. Either Waiyaki was driving on his correct side and the Datsun hit his vehicle on its correct side or Mr. Cottle was driving on his correct side where the Ranger Rover crushed it...Collision is a fact. It is however not reasonably possible to decide on the evidence of Waiyaki and Gitau who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame.

[25] Hence, I find instructive the words of Sir Kenneth O'Connor in Peters vs. Sunday Post Limited [1958] EA 424that:

"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."

[26]I would accordingly uphold the decision of the lower court on liability. On quantum of damages, I am mindful that assessment of damages is a matter of discretion and that an appellate court ought not to interfere with the decision of the trial court just because it would have itself made a different award. Hence, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. 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."

[27]Likewise, in H. West & Son Ltd vs. Shephard [1964] AC 326, it was acknowledged that:

"...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 as 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."

[28] Accordingly, to determine whether or not that assessment was reasonable I have given due consideration to the authorities that were drawn to the attention of the lower court by Learned Counsel for the parties and note that:

[a] In Clement Gitau vs. GKK [2016] eKLR wherein a minor suffered a fracture of the left distal tibia and fibula as well as minor bruises, the lower court's award of Kshs. 600,000/= was upheld by the High Court.

[b] In Akamba Public Road Services vs. Abdikadir Adan Galgalo [2016] eKLR, the Plaintiff suffered a fracture of the right tibialeg bone and a blunt injury to the ankle, the lower court's award of Kshs. 800,000/= was reduced to Kshs. 500,000/= on appeal.

[c] Similarly, in Stephen Mutisya Muumbi vs. Peter Mutuku Katuli [2008] eKLR an award of Kshs. 600,000/= was made as General Damages for a fracture of the tibia/fibula.

[29] In the light of the foregoing comparable awards, I would find no reason to disturb the award made by the Learned Trial Magistrate. Moreover, it was not shown by the Appellant that there was an error in principle committed by the Learned Trial Magistrate to warrant interference by this Court. Similarly there was no demonstration that an error of principle was committed by the lower court in determining the Special Damages due to the 1st Respondent herein. An amount of Kshs. 88,276 was pleaded, but only Kshs. 63,076/= was awarded by the lower court on the basis of strict proof by way of receipts.

[30] Regarding the argument that the receipts produced were not admissible for failure to comply with the provisions of Section 19 and 20 of the Stamp Duty Act,I was referred to Agnes Wanjiku Ndegwa vs. Kenya Power & Lighting Company Ltd [2014] eKLR and Leonard Nyongesa vs. Derrick Ngula Righa [2008] eKLR for the proposition that a party wishing to claim expenses paid to him under the special damages claim and on proof of such claim must have complied with the Stamp Duty Act. However, the Court of Appeal, in Paul N. Njoroge vs. Abdul Sabuni Sabuni [2015] eKLR was of a contrary view. It held that:

"The finding is often made by lower courts that documents which do not comply with theStamp Duty Act,Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case ofStallion Insurance Company Limited v. IgnazzioMessina & Co S.P.A [2007] eKLR..."

[31]The Court proceeded to reiterate its position on the matter by emphasizingthe position earlier adopted by Law J. (as he then was) in Suderji Nanji Limited vs. Bhaloo [1958] EA 762 that:

"...before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ... The appellant has never been given the opportunity to pay the requisite stamp and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd Defendant/Respondent and he must be given the opportunity...We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof..."

[32] Accordingly, I would uphold the lower court Judgment and dismiss this appeal with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 21ST DAY OF FEBRUARY 2019

OLGA SEWE

JUDGE