[2023] KEHC 23322 (KLR)

S.S Mehta & Sons Limited v Mwangi & another (Civil Appeal E067 of 2021) [2023] KEHC 23322 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23322 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal E067 of 2021

J Wakiaga, J

October 12, 2023

Between

S.S Mehta & Sons Limited

Appellant

and

Alex Kimani Mwangi

1st Respondent

Samuel Nyoike Gatuhi

2nd Respondent

(Being an appeal from the judgement in Kandara PMCC NO 260 of 2019 delivered on 28th October 2021 by Hon M. Karumbu SRM)

Judgment

1. By a plaint dated 19th December 2019, the 1st Respondent sued the Appellant for general and special damages arising out of a road traffic accident on 27th April 2019 involving motor vehicle registration number KAQ 631K owned by the 2nd Respondent in which the 1st Respondent was travelling as a passenger and KBR 153K owned by the Appellant.

2. It was pleaded that the driver of motor vehicle registration number KBQ 631D suddenly saw motor vehicle registration number KBR 153K parked on the road and tried to swerve but violently collided with the same thereby occasioning severe injuries to the 1st Respondent particulars of which were pleaded. It was contended that the accident was caused by the negligence of the 2nd Respondent and the Appellant’s driver.

3. By a defence dated 3rd March 2020, the 2nd Respondent denied the content of the plaint and attributed the said accident to the negligence of the 1st Respondent and the Appellant’s driver.

4. By a defence dated 15th July 2020, the Appellant denied the content of the plaint and in the alternative attributed the accident to the 1st Respondent and the 2nd Respondent’s driver.

5. Based upon the said pleadings the matter proceeded for full hearing and by a judgement thereon dated 28th October 2021 the Court found as a fact that the Appellant’s motor vehicle was stationed and part of its body was on the road without due care and diligence and found the same liable at 70% against the 2nd Respondent at 30% and awarded general damages of Kshs.1,800,000, future medical expenses of Kshs.200,000 and special damages of Kshs.500,000.

6. Being dissatisfied by the said determination, the Appellant filed this appeal and raised the following grounds of appeal: -(a)The Court erred in law and in fact by failing to appreciate and consider the evidence adduced by the Appellant and finding the Appellant 70% liable for the accident.(b)The Court erred in law and in fact by failing to appreciate the evidence of PW2 and the Appellant and thereby failing to find the 2nd Respondent 100% liable for the accident.(c)The Court erred in law and in fact in failing to consider the Appellant’s submissions and authorities attached thereto while assessing general damages.(d)The Court erred in law and in fact by making an award for general damages that was inordinately high in the circumstances.(e)The Court proceeded on the wrong principles thereby arriving at an erroneous estimate of damages.(f)The Court erred in law and in fact in awarding special damages which were not proven.

Submissions 7. Directions were issued that the appeal be determined by way of written submissions. On behalf of the Appellant it was contended that four witnesses testified on liability and that the issue before the Court was where the Appellant’s motor vehicle had been parked and whether there was warning sign placed. It was submitted that the Court did not consider the evidence of the second Respondent that he saw tree branches on the road which he did not act upon and must have therefore been driving too fast and therefore solely caused the accident.

8. It was therefore submitted that the trial Court proceeded on wrong principles when it found that the Appellant’s driver was negligent because they took shelter in a stalled vehicle instead of standing vigilant outside and warning other road users.

9. On quantum it was submitted that the 1st Respondent suffered severe head injury with loss of consciousness, fracture right radius /ulna, fracture left femur and fracture right tibia/fibular and that his permanent incapacitation was assessed at 20% by Dr. G. K. Mwaura, 30% by Maina Ruga, and 10% by Dr. Ashwin Madhuiwala and that the Court settled on 20% but ended upon assessing general damages at Kshs.1,800,000 which was inordinately very high and therefore should be interfered with by the Appellate Court as was stated in the case of Butt v Khan [1978] eKLR and Kenya Breweries Ltd v Saro [1991] eKLR .

10. It was contended that an award of Kshs.450,000 would have been adequate as supported by the cases of Goigni Rajope Construction Company Ltd v Francis Ojuok Olewe [2015] eKLR where an award of Kshs.350,000 was given in respect to the fracture of the left distal radius and ulna, Kenya Power & lighting Co. Ltd & Another v Kathuo Muthangya [2018] eKLR where the Court awarded Kshs.600,000 for fracture of left tibia and fracture of left fibula.

11. On behalf of the first Respondent, it was submitted that the police abstract and record are mere proof of the occurrence of accident and the finding on liability is not conclusive as was stated in Cathrene Mbithe Ngina v Silker Agencies Ltd [2021] eKLR and that the Court had a duty to consider all the evidence before it leading her to a finding that there was no sketch map and arrived to the correct determination on liability.

12. On quantum it was submitted that the Appellant had not demonstrated that the same was inordinate high based on the injuries sustained by the 1st Respondent. It was submitted that the cases relied upon by the Appellant cannot be compared with the injuries sustained by the 1st Respondent who was confined to the ICU for 34 days. It was submitted that the Court in reaching the award relied in the case of James Thiongo Gichiri v Nduati Njuguna Ngugi [2012] eKLR and PW v Peter Murithi Ngari [2017] eKLR where the Court enhanced the award from Kshs.600,000 to Kshs.1,600,000 in the year 2016.

13. It was contended that the Court also considered the impact of the injuries on the 1st Respondent to continue earning income and the Court should consider the same as was stated in Kenblest Kenya Ltd v Musyoka Kitema [2020] eKLR where the Court stated that loss of earning capacity need not be pleaded as it is in the nature of general damages and in Mumias Sugar Company Ltd v Francis Wansalo [2007] eKLR where the Court stated that the justification for the award when the Plaintiff is employed is to compensate for risk that the disability has exposed him of either losing his job or diminution of chances of getting alternative job.

14. On behalf of the 2nd Respondent it was submitted that the Appellant was 100% vicariously liable for the negligence of its driver and that the Respondent testified that the 2nd Respondent took all the necessary precautions to avoid the accident including swerving and therefore the trial Court did not err in finding the same liable at 70%. On special damages it was submitted that the same was pleaded and at the trial the 1st Respondent produced receipts to support only Kshs.105,200 which was the only one proven and which should be awarded by the Court as was sited in African Line Transport Company & Another v Sylester Keitanyi [2017] eKLR.

15. On quantum it was submitted that the same is at the discretion of trial Court. It was contended that the injuries suffered by the 1st Respondent were confirmed through the medical reports submitted and that he had fairly recovered. It was contended that the award was inordinately high compared to similar awards in respect to like injuries in support of which the cases of Martin Ireri Namu & Another v Alicalinda Igoki Kiringa [2019] eKLR where an award of Kshs.2,500,000 was substituted with Kshs.800,000. In respect of dislocation left shoulder, fracture of the right tibia fibula and left radios ulna. In Joseph Mwangi Thuita v Joyce Mwole [2018] eKLR the Court awarded Kshs.700,000 in respect of fracture of the right femur, compound fracture right fibula, shortening right leg and episodic pain right thigh .

16. It was contended that an award of Kshs.800,000 would be adequate.

17. This being a first appeal, the Court is under a duty to re-evaluate the evidence tendered before the trial Court afresh to come to its own determination as was stated in Ratilal Gova Sumaria & Another v Allied Industries Limited [2007] eKLR submitted by the Appellant and I hereby proceed to do so.

18. The 1st Respondent testified as PW1 and stated that he was heading to Nairobi in motor vehicle registration number KAQ 631K and on reaching Delmonte, they found a lorry which had stalled with no signs and the driver hit the tyre of the said lorry. In cross examination he stated that he did not see any life savers and the lorry had no hazards on while the motor vehicle he was in was being driven at 80 kmp and that the driver tried to move away from it but there were on coming motor vehicles.

19. PW2 PC Charles Mwadime produced the police abstract and the injury was classified as grievous harm. He did not visit the scene and the matter was marked as pending investigations. He stated that the investiugating officer blamed the driver of KAQ 631K for driving without due care and the lorry was not blamed.

20. The second Respondent testified as DW1 and stated that he was driving at a speed of 80kmp on the left lane when he noticed the Appellants motor vehicle stationary with its half being on his lane and without warning signs and it was dark green in colour. He tried to brake but ended up hitting it. In cross examination he confirmed that the 1st Respondent was a passenger in his motor vehicle and that it was at night and noticed abruptly that the Appellants motor vehicle was not moving.

21. On behalf of the Appellant DW2 Evans Mutiso stated that he had parked the motor vehicle completely outside the road and had placed life saver and leaves and it was next to the matatu stage. He was seated in the vehicle when it was hit at about 10-11 pm.

Determination 22. From the proceedings and submissions herein, the following issues are identified for determination: -a.Whether the trial Court was right in apportioning liability at 70%: 30% between the Appellant and the 2nd Respondent.b.Whether special damages as pleaded was proved.c.Whether the award in general damages was inordinately high.

23. On the issue of liability, the same is a matter of evidence. The Respondents’ evidence was that the Appellants’ driver had parked the motor vehicle on the road and that by the emergency created the 2nd Respondent it could not avoid the accident. The Appellant’s driver on the other had testified that he had parked off the road and put in warning signs.

24. This evidence should have been contrasted by that of the only independent witness PW2 whose evidence was that the 2nd Respondent was blamed for causing the accident for driving without care and attention. In finding that the Appellant’s driver should have kept vigil outside the motor vehicle to warn other road user at night, the Court fell into error as it was speculation not supported by any evidence on record. Whereas there is dispute as to whether the Appellant’s diver had put warning signs the Court should have taken into account the fact that the same sat inside the same lorry to confirm that the same had safely parked it and that as righty testified by the Police Officer the 2nd Respondent was expected to be attentive while driving on the road and the fact that he was unable to control the motor vehicle was in itself evidence of negligence.

25. There being a dispute as how the accident occurred and having considered the evidence of the only independent witnesses I have concluded that the 2nd Respondent ought to have shouldered greater degree of liability. I would therefore substitute the trial Court’s finding on liability with a finding at 40%: 60% between the Appellant and the 2nd Respondent.

26. On quantum, the injuries sustained by the 1st Respondent were confirmed through the three medical reports produced before the trial Court and the principles to govern the assessment of general damages is that similar injuries should as far as possible attract similar awards keeping in mind the correct level of award in similar cases as was stated in Cecilia W. Mwangi v Ruth W. Mwangi [1997] eKLR.

27. The Appellate Court on the other hand will only interfere with the award of damages only if it is satisfied that the trial Court applied wrong principles or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent entirely erroneous estimate as was stated in Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2KLR 55.

28. The 1st Respondent sustained the following injuries as per the three medical reports: -(a)Head injury with loss of consciousness.(b)Fracture of right radius/ulna(c)Fracture of left femur proximital third(d)Fracture of right tibia/fibula

29. I have looked at the authorities submitted by both the Appellant and the Respondent and in exercise of my powers as the first Appellant Court looked at the following comparable cases Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR where the Court of Appeal reduced general damages of Kshs.1,400,000 to Kshs.800,000. In Martin Ireri Namu & Another v Alicalinda Igoki Kiringa[2019] eKLR the Court of Appeal reduced general damages to Kshs.800,000.

30. It logically follows that the award herein was on the higher side and is therefore amenable to interference by this Court on appeal which I hereby do and having taken into account the specific injuries sustained by the 1st Respondent reduce the award to the sum of Kshs.1,000,000 (One million)

31. On the issue of special damages, the proved amount as per the receipts tendered in evidence is Kshs.105,200 – As supported by the 2nd Respondent which has not been disputed by the Appellant and the 1st Respondent which I hereby award.

32. On the issues of medical expenses of Kshs.200,000/=, the same was no contested and I therefore confirm the award of Kshs.200,000/-.

33. In the final analysis I allow the appeal and substitute the lower Courts award with the following award: -a.Liability 40% : 60% between the Appellant and the 2nd Respondentb.General damages for pain and suffering - Kshs.1,000,000c.Special damages - Kshs.105,200. d.Future Medical expenses - Kshs.200,000e.The Appellant is entitled to cost of the appeal while the 1st Respondent is entitled to cost of the lower Court.

34. And it is ordered

DATED, SIGNED AND DELIVERED AT MURANGA THIS 12TH DAY OF OCTOBER 2023J. WAKIAGAJUDGEIn the presence of:-Mr. Muchoki for Muchiri for AppellantMs Waititu for Mr. Mugo for 1st RespondentNo Appearance for 2nd RespondentJackline – Court Assistant