[2023] KEHC 26524 (KLR)

Scarce Commodities Limited & another v Nthakyo (Civil Appeal 285 of 2019) [2023] KEHC 26524 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26524 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 285 of 2019

DAS Majanja, J

December 8, 2023

Between

Scarce Commodities Limited

1st Appellant

Justus Muoki Mwangangi

2nd Appellant

and

Maurice Mulei Nthakyo

Respondent

(eing an appeal from the Judgment and Decree of Hon. G. A. Mmasi, SPM dated 29{{^th}} April 2019 at the Nairobi Magistrates Court, Milimani in Civil Case No. 6982 of 2017)

Judgment

1. Before the trial court, the Respondent sued the Appellants for general and special damages for injuries sustained following a road traffic accident which occurred on 02. 08. 2016 along Mombasa Road involving the Respondent who was riding motor cycle number KMDD 988T and the Appellants motor vehicle KCD 604N. The trial court apportioned liability at the ratio of 90:10 against the Appellants and awarded the Respondent Kshs. 900,000. 00 and Kshs. 492,598. 00 as general and special damages respectively.

2. The Appellants have preferred this appeal on the basis of the Memorandum of Appeal dated 29. 05. 2019. The appeal raises three issues; whether the trial court erred in apportioning liability at 90:10 against the Appellants, whether the award of Kshs. 900,000. 00 as general damages is excessive in light of the injuries sustained and comparable authorities and whether special damages were specifically pleaded and strictly proved. The appeal was canvassed by written submissions.

3. On the issue of liability, the Appellants fault the trial court on holding them 90% liable for the accident contrary to the evidence. They argue that the trial court failed to give her reasoning on how she arrived at the decision. They submit that the Respondent’s version on how the accident occurred as pleaded in the plaint differs with the version given during hearing. That in the Plaint, the Respondent averred that his motor cycle was hit from behind by the Appellants’ motor vehicle but at the hearing he testified that he was hit from the side.

4. Whether the Appellants are liable is a question of fact. Thus, the first appellate court is called upon to reconsider the evidence, evaluate and draw its own findings keeping in mind that the trial court interacted first hand with the parties thus had the advantage of observing their demeanor and general conduct during the trial (see Selle v Associated Motor Boat Co. Ltd (1968) EA 123).

5. In the Plaint and witness statement, the Respondent stated that the 2nd Appellant veered of his lane to the Respondent’s lane and knocked him from behind. In his testimony he further explained that as he was headed toward the CBD, the lorry came to his side, hit him and pushed him five metres. The 2nd Appellant explained that while driving along the highway, he saw the motorcycle rider moving close to the vehicle whereupon he heard a loud bang. When he was stopped by police, he found the rider on the ground under his mudguard. He claimed that it is the rider who hit the motor vehicle and that he was not the one to blame for the accident

6. There is no dispute that the accident occurred. The question is who is to blame for the accident. I do not consider the Respondent’s testimony inconsistent with the pleadings or for that reason contradictory. The Respondent’s case was that the Appellants’ motor vehicle moved from its side of the road and hit him from behind. The Appellant’s take a different view. Neither party called an independent witness hence I have to consider the circumstances and reach a conclusion as to who is to bear liability.

7. From an assessment of the evidence, the parties were headed in the same direction. They were on different lanes and one of the parties encroached on the lane of another. The Respondent stated in his oral testimony that he was moving at the speed of about 60Km/hr yet he also stated that there was traffic gridlock. At that speed, he might as well have collided with the lorry from the side which the 2nd Appellant stated was moving at the speed of about 10Km/hr because of the traffic jam. My evaluation of the circumstances of the case indicates that the Respondent was not hit from behind but rather the collision was on the side of the lorry. The 2nd Appellant was obligated to keep a look out, but so was the Respondent. This is a case which imputes liability on both parties and thus I vary the trial court’s finding and hold that both parties were equally liable.

8. Turning to the issue of damages, the general principle upon which an appellate court can interfere with an award of damages was summarised by the Court of Appeal in Bashir Ahmed Butt v. Uwais Ahmed Khan. [1982-88] KAR 5 as follows:An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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 inordinately high or low.

9. The Appellant has decried the award of Kshs. 900,000. 00 as general damages as inordinately high and that special damages were not specifically proved. According to the report prepared by Mr. Wokabi dated 11. 04. 2017, the Respondent suffered extensive degloving injury on the left thigh and knee; very extensive fractures of the lower third of the femur involving condyles; extensive skin loss necessitating grafting surgery. He assessed permanent disability at 18% and noted that that the Respondent would be rehabilitated once the fractures have united.

10. Before the trial court, the Respondent urged the court to award Kshs. 1,300,000. 00 as general damages. He cited Tononoka Rolling Mills Ltd v James To Boso Were [2015] eKLR where the plaintiff in sustained segmented fracture of the left femur, degloving injury on the left thigh, pain, loss of blood and soft tissue injuries. The court affirmed an award of Kshs. 850,000. 00 by the trial court.

11. The Appellants proposed Kshs. 400,000. 00 as general damages by citing two cases. Mwavita Jonathan v Silvia Onunga [2017] eKLR where the court affirmed an award of Kshs. 400,000. 00 where the plaintiff suffered a left hip commuted intertrochanteric fracture, blunt chest injury, dislocated right knee joint, sprains of the neck and the lumbar sacral spine of the back and a deep wound on the left lower leg leading to loss of blood. In the other case cited, Kenyatta University v Isaac Karumba Nyuthe [2014] eKLR, the plaintiff suffered a fracture of the right femur which was treated by internal fixation, soft tissue injuries to the head and bruises on the right knee with temporary incapacity assessed at 10-20%. The court affirmed an award of Kshs. 350,000. 00 as general damages.

12. Considering the authorities cited by the parties, I do not consider that award by the trial magistrate excessive to warrant interference. The award was lower than that proposed by the Respondent although the injuries were somewhat similar while the cases cited by the Appellants were for less serious injuries. As the court is guided by the parties, I do not find fault in the award of Kshs. 900,000. 00 by the trial court.

13. Regarding special damages, the principle is that they have to be specifically pleaded and strictly proved (see Hahn v Singh (1985) KLR 716). The Respondent pleaded the special damages and attached payment receipts to prove the same. The Respondent explained that some of the receipts for purchase of medicine were issued in the name of his brother because he sent him to purchase them for him. The receipts issued by Kenyatta hospital relate to his treatment while admitted at the hospital. I find no reason to disallow the award for special damages.

14. In the final analysis, I vary the trial court’s judgment only of liability. I therefore make the following orders:a.The judgment of the Subordinate Court dated 29. 04. 2019 is set aside only to the extent of liability and substituted with judgment apportioning liability equally as between the Appellants and the Respondent.b.Each party shall bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D. S. MAJANJAJUDGEMr Thuo instructed by A. Thuo Kanai Advocates for the Appellants.No appearance by Oloo & Oloo Advocates for the Respondent.