[2023] KEHC 3575 (KLR)

Semsum Construction Company Limited v Thomas & another (Civil Appeal 45 of 2020) [2023] KEHC 3575 (KLR) (24 April 2023) (Judgment)

Neutral citation: [2023] KEHC 3575 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 45 of 2020

G Mutai, J

April 24, 2023

Between

Semsum Construction Company Limited

Appellant

and

Jane Mutio Thomas

1st Respondent

Thomas Mbite Muoka

2nd Respondent

(Being an appeal from the judgment of the Honourable Desderias Orimba Senior Principal Magistrate delivered on 25{{^th}} November 2020 in Kangundo SPMCC No 290 of 2018; Jane Mutio Thomas versus Semsum Construction Limited & Thomas Mbithi Muoka)

Judgment

1. The Appellant herein filed a series of appeals, to wit Machakos High Court Civil Appeal Nos. E040 to E045 all of 2020. The files were not consolidated. That being being the case I shall deliver separate judgments in each of the said matters, adopting the judgment on liability in this matter and but assessing quantum separately.

2. This is an appeal from the judgment of the Honourable Desderias Orimba, Senior Principal Magistrate delivered on 25th November 2020 in Kangundo SPMCC No 290 of 2018; Jane Mutio Thomas & Thomas Mbithi Muoka. The appeal was urged by way of written submissions and I reserved judgment for 7th March, 2023.

3. I underestimated the amount of time it would take me to write the judgments I accumulated during the Rapid Results Initiative the newly appointed judges, of whom as I was one, engaged in January, 2023. During the said exercise I was based in Machakos and Kajiado High Court stations. My very sincere apologies for the delay.

Background 4. This case involved two motor vehicles Motor Vehicle Registration KAU 174 N Toyota Matatu and KCK 854D Nissan Pickup. The 1st Respondent was the Plaintiff while the 2nd Respondent was enjoined as the Third Party by the Appellant.

5. The lower court found the Appellant 100% liable for the accident and awarded the 1st Respondent a sum of Kes.757,575. 00 made up as hereunder;a.General damages Kes.650,000. 00b.Special damages Kes.107,575. 00Total Ksh 757,575/=

Duty of the appellate court 6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

7. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd[1968] EA 123 and Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

Pleadings 8. By a plaint dated 19th November, the 1st Respondent pleaded that she was lawfully a passenger in Motor Vehicle Registration No. No, KAU 174N, when motor vehicle Registration No. KCD 845 D Nissan pickup reversed in the middle of the road without ascertaining that it was safe to do so.

9. According to the plaint, this resulted in motor vehicle Registration No. KAU 174 N Toyota Matatu ramming into its rear. The 1st Respondent was seriously injured and as a result sought medical treatment and subsequently filed the suit in the court below.

10. The Appellant filed defence on 22nd May, 2019 and denied occurrence of the accident and possession of Motor Vehicle Registration No. KCD 845 D. In a rather circumlocutory way, the Appellant denied the occurrence of the accident and at the same time blames the accident on motor vehicle Registration No. KAU 174 N. They also blamed the 1st Respondent for failing to have regard to Motor Vehicle Registration No. KCD 845 D and to her safety.

11. It is a waste of judicial time to prove whether the accident occurred or not. Whichever way the matter goes the extra costs of proving unnecessary facts should be borne by the Appellant. In the case of Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR, the court of appeal stated as follows: -“I will also add that the crucial deficiency of a general denial which I have already described, also applies to the evasive, inconsistent and contradictory alternative general traverse in the Appellant’s defence. This was that if the Respondent had extended any overdraft facilities without stating the amount involved, to the appellant which was moreover, denied, then the same and here again, without stating how and when, had been paid. Such a spurious pleading in the alternative cannot give any merit to the defence and so also makes it one which discloses no reasonable defence for all purposes including that of Order 6 rule 13(1)(a).”

12. By an order of the court on 7th August 2019 the appellant was granted leave to join a Third Party to the proceedings. They entered appearance and filed defence. No directions were given before the matter was heard. However, the Third Party filed a Defence dated 9th September, 2019 (pages 50-55) of the record.

13. Black's Law Dictionary, at 1410 (5th ed. 1979) defines force majeure as: -“greater or superior force; an irresistible force.”

14. In other words, a party cannot be liable because of a superior force that is irresistible and naturally occurring which is not caused by man nor preventable by humans in spite of use of utmost skill, care, diligence, or prudence. In the normal lingua, it is an act of God.

15. The effect of the defences by both the Appellant and 2nd Respondent, is that it uproots the evidentiary burden of proof of negligence from the 1st Respondent. For the 1st Respondent the actions of both drivers could only be explained by them in terms of sections 112 of the Evidence Act which provides as follows;112. Proof of special knowledge in civil proceedingsIn civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.

16. The drivers of two vehicles knew or ought to know how the accident occurred. The duty of the 1st Respondent was to turn up in court and show that the accident occurred due to negligence. The apportionment thereof is the work of the evidence from the drivers.

Appellant submissions 17. The Appellant filed submission on 12th October, 2020. It was argued that the Respondents were to blame.

18. The Appellant relied on the evidence of the police. The Appellant further states that the fact that the Appellant’s driver was convicted, does not shield the Third Party from liability.

19. The Appellant relies on the authorities of Donoghue versus Stevenson [1932] AC 562, Meshack Omari Monyoro versus David Kinyanjui & 2 Others [1998] eKLR. They also rely on the case of Mbugu David & Another versus Joyce Gatthoni Wathena & Another [2016] eKLR where the court held as follows: -“The Court of Appeal in the case of Abbay Abubakar & Fatuma Ali v Marair Freight Agencies CA No. 67 of 1983 held as follows on the principle of apportionment of negligence equally:“The trial judge rightly applied to the facts before him the relevant law enunciated by Spry, VP in Lakhamishi versus the AG [1971] EA 118 for such cases which it is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases, as for example, where vehicles collide near the middle of a wide, straight, road, in conditions of good visibility, with no obstructions or other traffic affecting their courses, there is, in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the centre of the road, the other must have been negligent in failing to take evasive action. I think that it is usually possible, although often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, but I accept where it is not possible, it is proper to divide the blame equally between them. Where however there is lack of evidence, as opposed to a conflict of evidence, I am inclined to think that the position is different. I personally find it difficult to see how a party can be found guilty of negligence if there is no evidence that he was in fact negligence and if negligence on his part cannot properly be inferred from the circumstances of the accident.”

20. In Kiema Mutuku versus Kenya Cargo Handling Services Ltd [1991] I KAR 258, David Kinyanjui & 2 others versus Meshel Omar Monyo HCCA 125 of 1993 and Statpack Industries versus James Mbithi Munyao [2005]eKLR. In the latter case the cause stated as follows: -“In any event, the Respondent had not pleaded in his Plaint that the Applicant was negligent by providing a dust coat instead of overalls. And this allegation should not have been the basis of a Judgment on liability”.Coming now to the more important issue of “causation”, it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same.

21. In my respectful view I need not consider Donoghue versus Stevenson [1932] AC 562. There no dearth of local jurisprudence on exactly the same point the court considered in the said case.

1st Respondent’s submissions 22. The 1s Respondent filed submissions where she stated that the Appellant was to blame for the accident and as such should be held liable.

2nd Respondent submissions 23. I have not seen the second Respondent’s submissions. If they were filed the submissions, were not transmitted to the court.

Analysis 24. Ground one is on liability while the other grounds are on quantum of general or special damages. My take is that these are only 3 issues in this appeal to wit that:-a.Who is liable for the accident?b.Whether the quantum of damages granted were so high as to amount to an erroneous estimate of damages?c.Whether special damages were particularly pleaded and specifically proved?

Liability. 25. It is not necessarily true the burden of proof lies the plaintiff at all times. Section 107 of the Evidence Act places the burden on a party depending on the circumstances. The said section reads as follows: -“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

26. This is supplemented by section 108 of the evidence Act which state as follows:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

27. Given that this is a collision or accident involving two moving vehicles the burden of proof lies on the plaintiff to show that she was seated in the vehicle that was involved in the accident and that the said motor vehicle was involved in an accident with another without the plaintiff’s hand in the accident.

28. All parties confirmed that the 1st Respondent was involved in the said accident. Her involvement has not been contested. Any vehicle properly driven on a road could be involved in an accident. Occurrence of an accident may be due to negligence or an act of God. Whoever wishes to proof that an occurrence of an accident is attributable to God must prove it.

29. The defence of act of God is absolute. A party asserting that there was an act of God is denying negligence. Therefore without proof of an act of God, there is a presumption that either of the two vehicles was negligent. The 1st Respondent was not driving of the either vehicles. The drivers knew what happened. That is their special knowledge. Section 112 of the evidence Act provides that such possessor of special knowledge has the burden of proof. The section provides that: -“Proof of special knowledge in civil proceedings.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

30. In Anne Wambui Ndiritu versus Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 the Court of Appeal held that:“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”In Susan Kanini Mwangangi & Another versus Patrick Mbithi Kavita [2019] eKLR the Court, with reference to the East African Court of Appeal’s decision in Embu Public Road Services Ltd versus Riimi [1968] EA 22 stated thus: -“The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant…The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence on his part; or that the accident was due to the circumstances not within his control.”33 In Mureithi versus Wambui & 2 others [1994] eKLR, the Court of Appeal stated:-“It is against this apportionment of blame that the owner of the matatu, has appealed to this Court on the grounds that the learned judge erred in apportioning blame the way he did, that he had misapplied the principles laid down in Oluoch v Robinson [1973] EA 108 and that no evidence was given to establish negligence on the part of the matatu driver.It is clear to us that the accident occurred on the highway and that it was caused by the lorry being driven into the path of the matatu, but was there any evidence to show that the matatu driver had on his part, been negligent in any way? There is no evidence that he was driving at a speed or in a manner which, taking the surrounding circumstances into account, can be said to be negligent. If he was driving at a speed or in a manner which was safe in the circumstances, should he then have hooted or applied his brakes? We would say no! It has to be shown on a balance of probabilities, and this was not shown in this case, that he saw the lorry being driven in such a manner towards the junction that it was or must have been, reasonably apparent to him that danger was imminent. The evidence of the only eye witness, and who has never driven in her life, the lady passenger in the matatu, does not support this proposition. And indeed, the only other person who could have given evidence on this, namely the driver of the lorry who was the third defendant in the suit before the High Court, did not give evidence. The inference that can reasonably be drawn from this is that he was to blame.Lastly, it being undisputed that the accident occurred on the highway upon the lorry being driven along a minor road unto the highway where the matatu was, and also that there was no evidence to show that the matatu driver should have taken precautionary steps as he approached the junction or that it must have been reasonably apparent to him that there was a possibility of an accident, the inescapable conclusion to our minds must be that, the accident was entirely due to the negligence of the lorry driver.”

Evidence 31. The 1st Respondent testified on 19th August, 2020. She adopted her statement and blamed KCD 845D. On cross emanation she said that motor vehicle Registration No. KCD 845D was to blame as it reversed and caused the accident.

32. The Respondents closed their cases without calling any witness. The reference to statement filed are useless as they have absolutely not probative value. The evidence of the 1st Respondent is uncontested. The cause of the accident was the reversing of Motor Vehicle Registration No. No. KCK 845 D.

33. Upon closure of the defence case the particulars of negligence against the third party now 2nd Respondent because mere allegations of no probative value. It could have been different if they were co-defendants.

34. Without evidence, the court Cannot apportion liability. Without defence the Third Party’s case was foreclosed. Consequently, the finding of 100% liability was the only available option. I therefore dismiss the appeal on liability.

35. Given that this is the end of the road for the 2nd Respondent, the 2nd Respondent shall have NO costs as they did not participate in the appeal herein. They also did not testify in the court below.

Quantum 36. The injuries according to Dr. James Muoki were:-a.Deep cut wound to the left ankle joint;b.Pain and tenderness of the right knee; andc.Pain and tenderness of the left knee.

37. Regarding general damages, the duty of this court is set out succinctly in various decisions of the court of appeal in Butt v Khan [1981] KLR 470 and Kitavi v Coastal Bottlers Ltd [1985] KLR 470. “Although one would expect that in the normal course of things, the claimant to the accident might get well and restored to his or her original health status prior to the accident sometimes that is not the case in most instances. It is necessary to find the correct bearing which seldom alludes the Judges with expertise and knowledge on this areas of specialization. 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 either inordinately high or low.”

38. In Kilda Osbourne versus George Barnes and Metropolitan Management Transport Holdings Ltd & Another Claim No. 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd V Shephard [1963] 2 ALL ER 625, Sykes J stated as follows:“The principles are that assessment of damages in personal injury cases has objective and subjective elements which must be taken into account. The actual injury suffered is the objective part of the assessment. The awareness of the claimant and the knowledge that he or she will have to live with this injury for quite sometime is part of the subjective portion of the assessment. The interaction between the subjective and the objective elements in light of other awards for similar injuries determines the actual award made to a particular claimant.”

39. In Francis Omari Ogaro versus JAO [2021] eKLR, the court stated that a sum of Kes.180,000. 00 is sufficient for far more serious soft tissue injuries.

40. In Elizabeth Wamboi Gichoni v Benard Ouma Owuor [2019] eKLR, on 2nd day of December, 2019, the court found an award of Kes.300,000. 00 excessive and reduced it to Kes.175,000. 00 for serious soft tissue injuries.

41. In Mbati John & Another versus China Zhogxing Construction Company Limited and Another [2016] eKLR decided in February 2016, the Plaintiff was awarded Kes.75,000. 00 for injuries involving blunt trauma to the occipital region of the head, bruises of the right shoulder girdle, blunt trauma to the anterior chest, cut wounds on the lumber region of the back and bruises of the knuckles of the left hand. This decision is however, slightly older than the others I have referred to.

42. Elizabeth Wamboi Gichoni versus JOO [2019] eKLR, the court awarded Kes.180,000. 00 for more severe soft tissue injuries.

43. In Daniel Gatana Ndungu & Another versus Harrison Angore Katana [2020] eKLR, the Honourable Mr. Justice Nyakundi found a sum of Kes. 140,000. 00 sufficient in respect of cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee.

44. The injuries suffer by the 1st Respondent were not severe. She was treated as an outpatient. She was thereafter admitted in Shalom Hospital for 11 days. The degree of injury was classified as harm. These injuries were not as serious as the court thought them to be. I do not think that it was justified for the Court below to award the 1st Respondent such amount of damages in respect of soft tissue injuries.

45. Doing the best I can, I find that a sum of Kes250,000. 00 is sufficient in this case. I therefore set aside the award of Kes.650,000. 00 as general damages and substitute the same with and an award of Kes.250,000. 00

Special damages 46. The 1st Respondent pleaded special damages as follows;a.Medical report Kes.3,000. 00b.Copy of records Kes.550. 00c.Treatment expenses Kes.75,000. 00

47. The court awarded Kes.79,575. 00, an additional Kes.20,000. 00 as Doctor’s attendance for medical report plus Kes.500. 00 and Kes.107, 575. 00 for special damages. In my opinion the award in respect of this head of claim was erroneously granted. It must not stand. Special damages must be specifically pleaded and proved.

48. In this case the special damages were particularly pleaded and proved. However, Kes.20,000. 00 for medical report and Kes.5,000. 00 for the police officer were never pleaded. Even if they were to be pleaded, they are not payable. A sum of Kes.3,000. 00 for medical report is already part of Kes.79,575. 00 hence it is duplicated. The court was only bound to see whether the pleaded Ksh. 79,575 was proved.

49. Further an amount of Kes.29,000. 00 was paid by the NHIF. Giving the 1st Respondent amount paid by NHIF is not justified. I disallow the same.

50. Receipts for special use produced as exhibit 11. They consisted the following: -a.Receipt dated 9th October 2018 Kes.3,000. 00b.Receipt dated 10th February 2018 Kes.1,000. 00c.Receipt dated 13th June 2018 Kes.2,660. 00d.Receipt dated 6th June 2018 Kes.2,095. 00e.Receipt dated 3rd June 2018 Kes.330. 00f.invoice dated 9th July 2018 Kes.65,940. 00Less paid by NHIF Kes.29,000. 00Coping of recordsTotal 46,025

51. The 1st Respondent only proved Kes.46,025. 00

52. I therefore set aside an award of special damages of Ksh 107,575 and in lieu thereof award a sum of Kes. 46,025. 00 as special damages. This is to attract interest from the date of filing suit in the lower court.

Costs 53. Section 26 of the Civil Procedure Act Cap 21 Laws of Kenya states as follows:-“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.

54. Section 27 of the civil procedure act provides as follows: -“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order”.

55. The parties awarded costs in this case, shall have the costs awarded with the decree.

56. The 1st Respondent will have costs of the lower court, based on the amounts awarded herein.

Determination 57. In the circumstance I make the following orders:a.Appeal on liability is dismissed;b.I set aside the general damages of Kes.650,000. 00 and in lieu thereof I award Kes.250,000. 00 to the 1st Respondent;c.I set aside the award of special damages of Kes.107,575. 00 and substitute thereof with the amounts pleaded and proved of Kes.46,025. 00;d.Given that the Appellant partly succeeded in reducing the amount of general damages each party to this appeal shall bear own costs. The 1st Respondent shall have costs based on the award herein in the court below; ande.The file is closed.

DATED SIGNED AND DELIVERED AT MOMBASA VIRTUALLY ON 24TH DAY APRIL, 2023. ......................GREGORY MUTAIJUDGEIn the presence of:No appearance for the AppellantMr. Mutinda holding brief for Mrs. Mutunga for the 1st Respondent.No appearance for the 2nd Respondent.