[2024] KEHC 3405 (KLR)

Simon Mbugua t/a Eldoret Express v Aleyo (Civil Appeal E127 of 2023) [2024] KEHC 3405 (KLR) (3 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3405 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E127 of 2023

RE Aburili, J

April 3, 2024

Between

Simon Mbugua t/a Eldoret Express

Appellant

and

Whitney Aleyo

Respondent

(An appeal arising out of the Judgement of the Honourable G.C. Serem in the Small Claim’s Court at Kisumu delivered on the 11th July 2023 in Kisumu SCC No. E066 of 2023)

Judgment

(An appeal arising out of the Judgement of the Honourable G.C. Serem in the Small Claim’s Court at Kisumu delivered on the 11th July 2023 in Kisumu SCC No. E066 of 2023)JUDGMENTIntroduction 1. The appellant herein Simon Mbugua t/a Eldoret Express was sued by the respondent Whitney Aleyo for general and special damages for injuries sustained by the respondent following a road traffic accident that occurred on the 30th October 2022 along the Kisumu – Busia road involving the appellant’s motor vehicle registration No. KBY 628F Isuzu Bus and the respondent’s motor vehicle registration No. KCA 324D TOYOTA VITZ. It was the respondent’s case that the accident was caused by the appellant’s and/or his agent’s negligence.

2. In his defence, the defendant/ appellant denied liability and attributed the occurrence of the accident to the negligence of the respondent.

3. The Adjudicator in her judgement found liability in favour of the respondent at 100% against the appellant and proceeded to award the respondent general damages of Kshs. 300,000.

4. Aggrieved by the said judgment and decree, the appellant filed a memorandum of appeal dated 24th July 2023 raising the following three grounds of appeal:1. That the learned trial magistrate erred in law and in fact in awarding general damages of Kshs. 300,000 which award was excessive and not commensurate to the nature of injuries sustained by the plaintiff.

2. That the learned trial magistrate erred in law and in fact in holding that the claimant sustained dislocated shoulder joint.

3. That the learned trial magistrate erred in law and in fact in failing to pay regard to authorities in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case she was deciding.

5. The parties filed written submissions to canvass the appeal.

The Appellant’s Submissions 6. The appellant submitted that he disputed the respondent’s alleged dislocation of the shoulder joint as an initial x-ray confirming the dislocation was not provided in evidence, which was evidence that the respondent did not sustain this injury but only sustained soft tissue injuries.

7. The appellant further submitted that the award of Kshs. 300,000 in general damages was so high so as to be an erroneous estimate as the respondent only sustained soft tissue injuries. It was submitted that an award of Kshs. 80,000 would be sufficient. Reliance was placed on the cases cited in the case of Blue Horizon Travel Co. Ltd v Kenneth Njoroge [2020] eKLR.

8. The appellant submitted that their appeal be allowed and be granted costs of the appeal.

The Respondent’s Submissions 9. On behalf of the respondent, counsel submitted reiterating the respondent’s pleadings and testimony on the injuries sustained as corroborated by the medical report produced by Mr. Mwita a Clinical Orthopaedic Surgeon who testified that on examining the respondent two days after the accident, he noticed a painful right shoulder joint which he found was dislocated and he reduced it himself. Further, that from experience of Mr Mwita, he could see the dislocation or fracture even without carrying out an xray.

10. The respondent’s counsel submitted that although Dr Kahuthu for the appellant testified that a dislocation could only be determined by way of an xray, in cross examination, he conceded that one could see and suspect such injury before referring for xray.

11. Counsel for the respondent maintained that the respondent had a dislocation and that in any event, Dr Kahuthu was a general practitioner who examined the respondent six months after the accident by which time the respondent had been treated and the dislocated site could already have healed, unlike Mr Mwita who had a speciality in Clinical medicine and orthopaedic Surgery and who examined the respondent only two days after the accident hence his diagnosis cannot be faulted.

12. In addition, counsel submitted that the case of Pitalis Opiyo Ager v Daniel Otieno Owino & another [2020] eKLR decided by this court, as relied on by the appellant was distinguishable from this case because in this case, Mr Mwita who examined the respondent and authored the medical report testified unlike in the cited case where the doctor did not testify.

13. On quantum of damages awarded, Counsel for the respondent maintained that the award was commensurate with the injuries suffered adding that should the court find that the respondent suffered only soft tissue injuries, then it should award him kshs 250,000 general damages taking into account inflation and the decisions in the cases of Lake Naivasha Growers v Muigai Thuka [2020] e KLR, James Nyanga Kimani & Another v Nathan Kivava & Another [2021] eKLR, Patrick Wambua Matia v Nathan Kivava & Another [2021]e KLR.

14. Counsel for the respondent urged this Court to dismiss the appellant’s appeal with costs.

Analysis and Determination 15. As the first appellate Court, my role is to revisit the evidence on record, evaluate it and reach my own conclusion in the matter. This si what section 78 of the Civil Procedure Act mandates this Court to do. This principle and mandate has been espoused in many cases among them, the age old often cited case of Selle & Anor. v Associated Motor Boat Co. Ltd (1968) EA 123). This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless those findings were based on no evidence at all, or on a misapprehension of evidence or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni v Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga v Kiruga & Another (1988) KLR 348).

16. In addition, this being an appeal arising from the Small Claims Court, this court can only determine the appeal on points of law and not facts.

17. I have carefully considered the pleadings, evidence, grounds of appeal and written submissions by both parties’ counsel. The appellant has not raised any grievance against the liability and as such the only issue for determination is whether the trial court erred in its award of the general damages of Kshs. 300,000 in favour of the respondent.

18. The principles upon which an appellate court will interfere with the findings of the trial court were explained in the case of Kemfro Africa Ltd t/a Meru Express Services Gathogo Kanini v A.M. Lubia & another (1982-88) I KAR 777:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of Appeal of Eastern Africa to be that it 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 low or so inordinately high that it must be wholly erroneous estimate of the damages.”

19. From the trial court record, the respondent pleaded and testified that following the pleaded accident, she sustained the following injuries:i.Tender and dislocated shoulder joint.ii.Backache.iii.Chest pain.iv.Swollen and bruised forehead.v.Swollen and bruised knee joints.vi.Tenderness on the neck

20. The burden of proof lies with he who alleges. This is the stipulation in Sections 107-109 of the Evidence Act. CW3, George Mwita, testified that when he saw the respondent, she had a displaced shoulder dislocation which he reduced it himself.

21. In the P3 form annexed to the respondent’s statement of claim, the injuries listed therein are the same as those which were pleaded in the plaint and stated in the medical report by Mr Mwita as follows:i.Swollen bruises in the forehead.ii.Neck tenderness.iii.Chest tendernessiv.Backachev.Tenderness and dislocated right shouldervi.Bruises on the knee joints

22. CW3 testified that a clinician can see a dislocation or fracture without the help of an x-ray.

23. On the part of the appellant, he called RW1, Dr. Jenifer Kahuthu, who also had the opportunity to examine the respondent six months after the accident and she testified, albeit more than a year after the accident had occurred, that the respondent sustained soft tissue injuries on her shoulder. It was her testimony that one cannot confirm dislocation through looking unless it’s an open fracture. She however stated in cross examination that one can suspect it and confirm it. In further cross-examination, she admitted that she was not an orthopedic surgeon but a general practitioner. Further that a dislocation heals after 3-4 months. She reiterated that the respondent failed to produce an x-ray showing the dislocation.

24. I have considered the evidence and submissions by both parties. In my opinion, the respondent proved on a balance of probabilities that she sustained the soft tissue injuries listed in the medical report as pleaded and in the P3 form. these injuries are as reproduced above. On the injury involving dislocation of the right shoulder, I will reiterate my decision in the Pitalis Opiyo (supra) that a party who truly believes that they suffered injuries of such serious nature and want the court to award them damages based on those injuries, they are duty bound to prove the existence of those injuries. I say so because from the evidence of Mr Mwita, he sent the respondent for an xray and the respondent too stated that she had an xray done although she had left it in Luanda, at her home. The question is, since a dislocation can clearly be seen in an xray, why did the respondent exclude it in her documentary evidence? Calling a doctor to say that one sustained a dislocation is not sufficient. In the Pitalis Opiyo case, I further cited decisions that speak to what weight courts should give to expert opinion which is not supported by evidence.

25. In this case, there was no evidence of loss of the xray film and if it was lost, then there must have been an xray report which the respondent did not tell the court where it was and why she did not produce it.

26. In addition, a party whose evidence was not produced at the trial has an opportunity on appeal to seek leave for adduction of additional evidence. The respondent did not utilize the opportunity available to seek leave to adduce additional evidence in the form of an xray report or film to show that indeed she sustained a dislocation on her right shoulder.

27. The principle espoused in the case of Bukenya v Republic [1972] EA 549, (Lutta Ag. Vice President) is still relevant today. In that case, the Court made it clear that:“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”

28. It is my finding that even if Dr Kahuthu examined the respondent over one year after the accident by which time the dislocation could have been healed, noting prevented the respondent from producing an xray report which Mr Mwita had sent her for. In my view, therefore, failure to adduce that evidence of a dislocation of the shoulder joint, which was the most serious injury allegedly sustained, leave this court with no option but to find that there was no such injury proceed and that infer that had the said xray report been produced in evidence, it would have shown that in fact, there was no such dislocation.

29. Accordingly, it is my finding that the respondent failed to prove that she sustained a dislocation of the right shoulder and that therefore the only injuries sustained and proved are the soft tissue injuries to the knee, back, chest, neck, forehead as well as tenderness on the right shoulder.

30. I now turn to consider whether the general damages awarded by the trial court were excessive in the circumstances. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR where the Court of Appeal held:“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.”

31. In this case, the trial court awarded the respondent general damages of Kshs. 300,000 while the appellant in his submissions proposed that an award of Kshs. 80,000 would be sufficient.

32. I have considered comparable awards for similar injuries. In the case of Coast Broadway Co. Ltd v Elizabeth Alaka Achebi [2015] eKLR the court affirmed an award of Kshs 300,000/- for a plaintiff who had suffered a dislocation of the shoulder. In the case of Patrick Kinoti Miguna v Peter Mburunga G. Muthamia [2014] eKLR the plaintiff was awarded Kshs 300,000/- after he proved that he had sustained dislocation of the shoulder resulting to post traumatic arthritis and also had loose teeth.

33. Taking into consideration the injuries sustained by the respondent, the awards by courts on similar injuries and the issue of inflation, I find the award of Kshs. 300,000 was on the higher side and based on the claimed dislocation of the shoulder which I have found, was not proved on a balance of probabilities. The injuries sustained by the respondent as proved were only soft tissue injuries. I thus find reason to interfere with the trial court’s discretion in awarding the respondent Kshs 300,000 general damages. The award is hereby set aside and substituted with an award of Kshs 200,000 general damages taking into account inflation and time lapse since the awards in the cases cited by the appellant’s counsel were made.

34. In the end, I find and hold that this appeal has merit the same is hereby allowed partially as stated above with an order that each party bear their own costs of the appeal.

35. This file is closed. I so order.

Dated, Signed and Delivered at Kisumu this 3rdday of April, 2024R.E. ABURILIJUDGEPage 11 of 11