[2017] KEHC 2465 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 321 OF 2013

SAMMY MBOGO…..................................................................APPELLANT

VERSUS

ANDREW ABUYEKA ANGATIA...................................1ST RESPONDENT

DIANA WAINAINA........................................................2ND RESPONDENT

(Appeal from the judgment of Hon. C. Obulutsa (Mr) in Milimani CMCC No. 7729 of 2010 delivered on 10/05/2013)

JUDGMENT

The 1st Respondent was the Plaintiff in the Lower Court and by virtue of an Amended Plaint dated 16th June, 2011, he claimed that on or about 18/09/2010, he was travelling as a passenger in motor vehicle registration number KAN 911Y at the junction of Kindaruma and Ring Road, Nairobi when the Appellant so negligently drove, managed or controlled motor vehicle registration number KAR 974 U that it collided with motor vehicle KAN 911 Y and he sustained injuries and has suffered loss and damage. He averred that his injuries were occasioned as a result of the Appellant’s negligence, the particulars whereof were stated in the amended plaint. He has claimed general damages for pain, suffering and loss of amenities, special damages of Kshs. 2,450/= plus costs and interest.

The Appellant denied the claim and filed a Third Party Notice dated 27th September, 2011 against the 2nd Respondent and an Amended Statement of Defence of even date. In the Third Party Notice, the Appellant claimed that the 2nd Respondent or her agent negligently and carelessly drove motor vehicle registration number KBG 625V that it veered into Defendant’s Motor Vehicle KAR 974 U designated lane which was stationery and the Appellant holds the 2nd Respondent vicariously liable for the accident.

In the Amended Statement of Defence, the Appellant as well attributed the accident to the 1st Respondent’s negligence. In the alternative, he averred that the accident was caused solely and/ or substantially contributed to by the negligence of the driver of motor vehicle KAN 911Y in which the first Respondent was a passenger..

The 2nd Respondent filed a Defence dated 5th September, 2012 and denied the Appellants claim in which he averred that the same was caused by the Appellant’s negligence.

The trial Magistrate noted that based on the evidence of the 1st Respondent, that of PW2 and the police abstract, negligence was established in full against the Appellant and found the Appellant to be wholly liable. On the quantum of damages, the Appellant had proposed the sum of Kshs. 150,000/= in the lower Court whereas the 1st Respondent had submitted on an amount of Kshs. 300,000/=. The trial Court .awarded the 1st Respondent Kshs. 250,000/= in general damages and Kshs. 2,450/= in special damages.

Aggrieved by the decision, the Appellant filed this Appeal on six grounds in which he stated that the trial Magistrate erred in law and in fact in finding liability against the Appellant and erroneously assessing damages without evidence establishing liability.

From the grounds of appeal as well as the submissions of the Appellant, the issue which this court will seek to determine is whether the 1st Respondent proved his case against the Appellant.

This being a first appeal, the role of this court is to re-evaluate the evidence that was tendered before the lower court and determine whether the appeal is to stand or not. In the case of Ephantus Mwangi and Geoffrey Ngugi Ngatia v. Duncan Mwangi Wambugu [1982]-88 1KLR 278the principle is that a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or its demonstrated that the judge acted on wrong principles.

In the case of Mbogo & Another -v- Shah (1968) EA 93 at 96, it was stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

The 1st Respondent who was the Plaintiff called 3 witnesses, while the Appellant called 2 but the 2nd Defendant did not call any.

The 1st Respondent Andrew Angatia (PW1) testified that on 18/9/2010 he was a passenger in a matatu registration number KAN 911J which left Ngong Road to Ring Road at 10. 00 am. He was seated next to the door. That motor vehicle KAR 974 U which was being driven from the side of Kaunda road hit their vehicle causing it to roll as a consequence of which he was injured. He produced a P3 form, police abstract, attendance card, receipts and a medical report.

Timothy Angasi (PW2), an eye witness who was at the scene testified that on the material day at around 10 am motor vehicle KAR 974U crossed from the left side and hit a matatu causing it to roll. Though he erroneously described the matatu as KAW 911J. Dr. Wokabi (PW3) produced a medical report, he charged 2,000/= for preparation of the same and Ksh. 5,000/= for court attendance. His examination of the 1st Respondent revealed the presence of a septic wound on the back of the right hand overlying the 2nd and 3rd metacarpals, back of the right hand is very swollen, stiff right hand fingers and fracture of the 2nd metacarpal bone.

The Appellant (DW1) testified that he was driving from Ngong to Nairobi along Kindaruma road and on reaching ring road, he stopped to give way when motor vehicle registration number KBG 625V a dark Toyota emerged from the right side, failed to give way and hit a matatu KAN 911 J which was on Ring Road. DW2, Reuben Osuko testified that they do accident investigations and having been contracted by Jubilee Insurance, he visited the scene and got statements from witnesses. He testified that there was a stop sign at the cross road where KBG 625V overturned and hit a matatu.

The court has considered the grounds of appeal and the submissions by the respective parties. The standard of proof in a civil suit is on a balance of probability. The burden herein was on the 1st Respondent to prove that the said accident happened and it was occasioned by the negligence on the part of the Appellant. From the evidence tendered in the Lower Court, the 1st Respondent blames the Appellant for the accident. His testimony is collaborated by that of PW2, an eye witness who was at the scene of the accident. In the Appellants’ submissions, he casts doubt on the ability of PW2 to have properly witnessed the events leading to the accident since he was about 10 meters away. It’s worthy nothing that the said accident occurred at 10 am in broad daylight, with a clear visibility and therefore 10 meters is not a long distance to have affected a clear view of the accident scene. In the police abstract produced by the 1st Respondent, it is noted that the Appellant’s motor vehicle was to blame for the accident even though investigations were still ongoing. The Appellant on the other hand had his own abstract of a later date showing that investigations were in process which is amongst the documents in the Appellant’s pleadings but the same was not produced in court during the hearing. The Appellant’s DW1, blamed the accident on motor vehicle KBG 625V in that it emerged from the right, failed to give way and hit the 1st Respondent’s vehicle. The appellant’s testimony on how the accident occurred differs from that of his second witness DW2 who testifies that motor vehicle KBG 625V overturned and hit a matatu. It is not clear from the Appellant’s witnesses whether motor vehicle KBG 625V failed to give way and hit KAN 911J or whether it overturned and hit KAR 974U. His evidence did not assist the court.

Considering the evidence adduced in the lower court, I find that the 1st Respondent adduced sufficient evidence on a balance of probability to prove that the accident was occasioned by negligence on the part of the Appellant and the lower court was right on its finding on liability.

That said, I will address the issue of damages. It is a well-settled principle that the assessment of damages is a discretionary exercise. It is not a mathematical exercise and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. In Denshire Muteti Wambua vs KPLC Ltd (2013) e KLR the Court of Appeal observed that

“ further we observe that the learned trial judge failed to appreciate that in assessment of damages for personal injuries the general method of approach is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases (see Arrow Car Ltd vs Bimomo & 2 Others (2004) 2 KLR 101)”

The Respondent was examined by PW3 which examination revealed presence of a septic wound on the back of the right hand which was also swollen, stiffness of the right hand fingers, and fracture of the 2nd metacarpal bone.

In the case of Isaac Katambani Iminya v Firestone East Africa (1969) Limited [2015] eKLRthe Appellant suffered a fracture of the 5th metacarpal in the year 2002 and the court awarded Kshs. 250,000/= in general damages.

Similarly in the case ofSilphanus Kumbe Murondo v Lamek Mbaka Motegi & another [2013]eKLR, the Appellant had a fracture of the “5th metacarpal bone of the right hand and soft tissue injuries to the chest, right thigh and blunt injury to the right hip-joint, the court awarded Kshs. 220,000/= in general damages.

The award made by the trial magistrate of Kshs. 250,000/= was not excessive so as to necessitate intervention by this court. I find that the same was commensurate with the nature of injuries sustained.

In the result, I find no merits in this Appeal and the same is dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rd Day of October, 2017.

…………........

L. NJUGUNA

JUDGE

In the Presence of

………………………..for the Appellant

………………………. for the Respondent