[2022] KEHC 2322 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 25 OF 2020

SAMUEL MURIUKI MUGO...............................................1ST APPELLANT

DOMINIC MURIITHI JAMLECK....................................2ND APPELLANT

VERSUS

DAVID KARIUKI MIGUA.................................................... RESPONDENT

JUDGMENT

1. The appellant herein being dissatisfied with the judgment of the trial court delivered by Hon. T. Kwambai SRM on 15. 07. 2020 in Embu Chief Magistrate’s Court Civil Case No. 137 of 2017 filed the instant appeal vide a memorandum of appeal dated 10. 08. 2020 and wherein he raised twelve (12) grounds of appeal. From the perusal of the said memorandum of appeal, it is clear that the appeal is on both liability and quantum of damages that were awarded to the respondent. The appellants thus prayed that the appeal herein be allowed, the trial court’s judgment be set aside and in its place an award in their favour be made. They also prayed for the costs of the appeal.

2. When the appeal came up for hearing, directions were taken that the same be canvassed by way of written submissions which both parties complied with.

3. In their submissions, the appellants submitted that the trial court erred in finding them liable for the accident when the particulars of negligence were never proven during the hearing. It was their case that the respondent willingly assumed risk by boarding an unauthorized motor vehicle that was overloaded and in that regard, he authored his own misfortunes. They averred that having established that the respondent had completely healed and had not suffered any form of incapacitation and taking into account the fact that an award of damages is meant to compensate a party but not enrich him or her, an award of Kshs.250,000. 00 would suffice. As such, the appellants prayed that the appeal be allowed as prayed.

4. The respondent on the other hand submitted that he holds the 1st and 2nd appellants liable for the occurrence of subject accident and the injuries that he sustained contending that the accident was caused by negligence and carelessness on the part of the appellants, their driver, servants and or agents and as such, they are vicariously liable for the negligent act of their driver, servant or agent. That given that the appellants chose not to call any witness to testify during the trial, makes the respondent’s testimony unchallenged. That the respondent herein suffered serious bodily injuries as pleaded and further as corroborated by the doctors; reliance was made inter alia on the case Charles Mwaniki Muchiri v Coastal Kenya Enterprises Ltd [2016] eKLRandWilliam Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR. He therefore urged this court to dismiss the appeal herein.

5. In the lower court, the respondent herein sued the appellants claiming general damages, special damages (Kshs.3, 550. 00), and costs of the suit and interest amongst other reliefs. His case was that on 24. 07. 2016, he was lawfully travelling as a passenger on board motor vehicle registration number KBB 846 G along Kivaa – Kiritiri road, when the aforesaid motor vehicle was so negligently and/or carelessly driven, controlled that the same lost control, violently wavered on the road and consequently overturned and as a result, he sustained severe bodily injuries and loss. The respondent based the said claim on negligence and blamed the 1st and 2nd appellants for the injuries and the damages that he suffered. The particulars of the said negligence and the particulars of the injuries are particularized in his plaint.

6. The appellants herein filed their joint statement of defense wherein they denied all the allegations of loss, damages and injuries as alleged and further that, if indeed the respondent got injured while travelling as a passenger, the respondent wholly and/or substantially contributed to the occurrence of the subject accident. They averred that if an accident occurred, the same was caused by circumstances beyond the driver’s control in that in an attempt to control the motor vehicle, he was unable, notwithstanding the exercise of reasonable care and skill on his part to avoid the accident. They prayed that the suit be dismissed with costs.

7. At the hearing, the respondent adopted his witness statement as his evidence in chief and further blamed the driver of the KBB 846 G for being careless. He called PW2 who testified that they received a report of a road accident involving Motor Vehicles Registration No. KBB 846G Isuzu Demax Pick Up which was driven by the 2nd appellant whereby 3 passengers on board lost their lives. His evidence was that the motor vehicle in question had a tyre burst and it veered off the road and thus causing the death of two passengers who died on the spot and another one who died at Embu Level 5 Hospital while the rest sustained severe injuries.

8. The appellants herein proceeded to close their case without calling any witness. In its judgment, the court awarded the plaintiff/respondent an amount of Kshs.1000,000. 00 as general damages; Kshs.3,550. 00 as special damages and costs of the suit. It is this judgment which is the subject of the appeal herein.

9. I have considered the memorandum of appeal and the submissions by the parties herein and I wish to restate that this being a first appeal, the duty of this court is to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, before drawing a conclusion from that analysis. The court has, however, to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand.[See Court of Appeal in the case of Peter M. Kariuki v Attorney General [2014] eKLR]. The appellatecourt further ought not to interfere with the exercise of discretion of an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so, arrived at a wrong conclusion (SeeMwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348).

10. In furtherance of the above duty, I have certainly perused and understood the contents of the pleadings, proceedings, grounds of appeal, submissions and the decisions referred to by the appellants. I have indeed re-evaluated the evidence tendered before the trial court and I find that the main issues for determination are:

i.Liability.

ii.Quantum/Damages.

11. As I have already noted, the respondent’s case (as was before the trial court) was premised on the tort of negligence. That being the case, the respondent herein had a duty to prove that the accident was caused by the negligence of the appellants herein. In so doing, the respondent had a duty to prove the elements of negligence. 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 him or her, (b) the duty has been breached, and (c) as a result of that breach he or she has suffered loss and damage [See Donoghue v Stevenson [1932] A.C. 562. ]

12. This burden of proof was on the respondent by virtue of Sections 109 and 112 of the Evidence Act Cap 80 Laws of Kenya. [See also the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334]. The standard of proof which was required of the respondent is that of balance of probabilities [See Miller v Minister of Pensions [1947] 2 All ER 372 ;also Court of Appeal inKirugi & Anor v Kabiya & 3 Others [1987] KLR 347].

13. Further, it was incumbent upon the respondent to prove negligence on the part of the appellants, the Court of Appeal held in East Produce (K) Limited v Christopher Astiado Osiro Civil Appeal No. 43 Of 2001that: -

“It is trite law that the onus of proof is on he who alleges and in matters where negligence is alleged the position was well laid in the case of Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 where it was held that “there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”[See 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].

14. It is trite that a driver owes a duty of care to his passengers. [Ben Mengesa v Edith Makungu Lande (2013) KLR].As such, we could also safely say that the 2nd appellant herein owed the respondent a duty of care. The respondent testified on how he had boarded the motor vehicle registration number KBB 846G on 24. 07. 2016 in which he was seated in the driver’s cabin; It is not in dispute that the respondent was aboard the motor vehicle in question and that, the 2nd appellant owed him a duty of care; that the duty was breached when the 2nd appellant caused an accident which occurred on the material date involving the suit motor vehicle; that the motor vehicle was driven carelessly and recklessly since the driver (2nd appellant herein) was over speeding when at some point, he lost control of the motor vehicle causing it to violently waver on the road and thereafter overturn thus causing the respondent bodily injuries. The same was corroborated by PW2 who produced a police abstract which did show that the respondent was a passenger in the motor vehicle in question on the material date. To that end, the finding of the trial court that the appellants were liable for the injuries sustained by the respondent can thus not be faulted.

15. In regard to quantum, it is evident from Dr. Okere’s report that the respondent suffered the listed injuries:

i. Compound fracture of the skull.

ii. Friction burn on the right shoulder.

iii. Scalp would with brain tissues exposed.

iv. Laceration on the right hand.

v. Headaches.

vi. Poor memory.

16. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” [See also Law JA, Kneller & Hancox Ag JJA in Nkube v Nyamuro [1983] KLR, 403-415, at 403].

17. The Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLRreasoned 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.”

18. The question therefore, is whether I have grounds to interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is so inordinately high that it must be a wholly erroneous estimate of the damages or that it was inordinately low. I am guided by the decision by the Court of Appeal in Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that :

Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

19. The respondent had indicated that an amount Kshs.4,500,000. 00 would be commensurate to the injuries suffered while the appellants had suggested an amount of Kshs. 300,000. 00 as reasonable for the injuries suffered by the respondent.

20. It is trite that, money cannot renew a physical frame that has been shattered or battered, the respondent is only entitled to what in the circumstances a fair compensation on the principle that comparable injuries should be compensated by comparable awards.[SeeWest & Sons Ltd v Stephard (1964) AC 326 andRahima Tayah and Another v Another v Ann Mary Kinaru [1987] 1 KAR 90]. Further guidance is found in the decision by Lord Denning in Kim PhoChoo v Camden & Islignton Area Health Authority [1979] 1 ALL EER 332 cited with approval by Wendoh J in Nancy Oseko v BOGMaasai Girls High School [2011] eKLR that:

“In assessing damages the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant...the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should punish the defendant.”

21. Upon examining the authorities relied on by the respondent in this appeal, I find that those authorities do not provide comparable injuries to those he sustained. In each of the cases cited in the lower court by the Respondent’s counsel, the plaintiffs were assessed to have some percentage of permanent disability, which is not the case with the present respondent.

22. In the case of Elizaphen Mokaya Bogonko v Fredirck Omondi Ouna [2022] eKLR, where the injuries sustained were almost similar to the one at hand, the court awarded an amount of Kshs.800,000. 00 to be within the comparable awards for comparable injuries

23. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar and further, time and inflation, and also as pleaded, the respondent suffered compound fracture of the skull, friction burn on the right shoulder, scalp wound with brain tissues exposed, laceration on the right hand, headaches and poor memory. It is of equal importance to note that the respondent’s doctor (Dr. Okere) in his report did not assess any disability on the part of the respondent or foresee any future complications arising from the injuries sustained.

24. In the circumstances, I am inclined to find that the trial court made an award which was excessive in comparison to the injuries suffered by the respondent. This calls for interference by this court.

25. The upshot of the above is that the instant appeal succeeds substantially on the award of general damages. The lower court’s award of general damages in the sum of Kshs. 1000,000. 00 is hereby set aside and substituted with the award of Kshs 700,000. 00 general damages.

26. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence.

27. The respondent will have costs of the suit in the lower court and half the costs of this appeal.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

.........................................for the Appellant

.........................................for the Respondent