[2017] KEHC 3974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 482 OF 2011

SUSAN KALEKYE MBUVI ................................................APPELLANT

V E R S U S

ANDREW NZOMO MALADI............................................RESPONDENT

(Being an appeal gains the judgment of Hoh. S. A. Okato, Principal Magistrate delivered in Nairobi CMCC No.10538 of 2007 on 1/9/2011)

JUDGEMENT

1. Andrew Nzomo Maladi, the respondent herein, filed compensatory suit before the Principal Magistrate Court, Milimani Law Courts, Nairobi, against Susan Kalekye Mbuvi the appellant herein, for the injuries he sustained in a road traffic accident he was involved on 11/4/2007. It is said that on the aforementioned date, the respondent was a pedestrian along Desai Road, which he crossed when motor vehicle registration no. KAJ 577P emerged, being driven off the road and hit him. As a result of the accident, the appellant suffered serious injuries. The suit was heard and determined in favour of the respondent by Hon. S. A. Okato (Mr), learned Senior Principal Magistrate.

2. On quantum, counsel for the respondent proposed ksh.650,000/= as general damages and relied on the case of Robert Kamau Muchina vs Esther Wangui Munyiri & another HCCC No. 594 of 1998 at Nairobi. wherein the plaintiff(respondent) who sustained fractures on the tibia/fibula and soft tissue injuries was awarded kshs.450,000/= in 2002 while counsel for the appellant proposed kshs.150,000/= and cited the case of Samuel Lawrence Edudi vs G. K. Karutiri and another HCCC No. 1557 of 1990 in which the plaintiff who sustained a fracture of the tibia bimalleolar at the left ankle joint was awarded ksh.100,000/= in 1990. In the end the learned Senior Principal Magistrate awarded the respondent ksh.511,255/= all inclusive.

3. Being aggrieved by the decision, the appellant preferred this appeal.On appeal, the appellant put forward the following grounds:

1. That the learned magistrate erred in law and in fact in assessing liability at 100% as against the appellant.

2. That the learned magistrate’s award of kshs.350,000/= by way of general damages for pain and suffering and loss of amenities is so excessive in the circumstances as to amount to an erroneous estimate of the damages suffered by the respondent.

4. When the appeal came up for hearing, learned counsels recorded a consent order to have the appeal disposed of by written submissions. I have considered the rival submissions. I have further re-evaluated the case that was before the trial court. It is important to set out the particulars of injuries the respondent suffered as shown in the medical report prepared by the two doctors namely: Dr. Moses Kinuthia and Dr. R. P. Shah. The respondent is said to have sustained the following injuries:

i. Bimalleolar fractures left ankle joint

ii. Fracture distal fibula

iii. Cut would right foot

5. The trial magistrate also identified the above stated injuries as those the respondent suffered. He formed the opinion that an award of kshs.350,000/= was sufficient as general damages for pain, suffering and loss of amenities, ksh.21,255/= special damages and ksh.140,000/= future medical expenses.

6. The issues to be addressed here are therefore two namely;

1. Liability – was the trial magistrate right in apportioning 100% liability to the appellant?

2. Quantum – was the award by the trial magistrate on quantum excessive?

7. It is the appellant’s submission that the respondent was materially to blame for the accident, in that he entered into the path of the respondent’s vehicle without ascertaining that it was safe to do so. He further said he saw the vehicle when he was on the ground after being hit by it. How then did the respondent conclude that the car was being driven at an excessive speed as it was shown in the particulars of negligence pleaded in the amended plaint? And how could it have been at an excessive speed if there was a traffic jam as testified by the respondent?

8. In the judgement, the magistrate while addressing the issue of liability stated thus:

“What is in dispute is whether the defendant is to blame for the injuries the plaintiff sustained and whether the plaintiff is entitled to the damages he is seeking. Although the defendant denied causing the accident and insisted that her vehicle never had any contact with the plaintiff, the fact that she stopped and took the plaintiff to hospital and paid for his initial bill and even bought crutches, leaves no doubt in my mind that she is the one who hit the plaintiff as she was driving off the road to avoid jam. I therefore find and hold the defendant 100% liable.”

9. It is the appellant’s submission that the trial magistrate erred in law and in fact in failing to make specific findings into whether the plaintiff was walking off the road nor whether the defendant’s vehicle was being driven at a high speed, which would have been crucial in determining the issue of liability. The magistrate, having been faced with two conflicting accounts of how the accident occurred, ought to have apportioned liability equally as against the plaintiff and the defendant.

10. The appellant relied on the case of Hussein Omar Farah –vs-Lento Agencies – CA at Nairobi Civil Appeal no. 34 of 2005, where the justices of appeal stated:

“The trial court as we have said, had two conflicting versions on how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident would be equally on both the drivers. We therefore hold each driver equally to blame.”

11. The appellant is of the view that although in this case, the court was dealing with two drivers their finding would equally apply to the appellants case as both the appellant and the respondent ought to have been on look out to avoid the accident.

12. With regard to quantum, the appellant submits that the magistrate erred in awarding a sum of ksh.350,000/= in general damages which is so excessive. She urged this to interfere on appeal with the award which and give an award which is commensurate with the injuries sustained by the respondent.

13. The principles to be considered by an appellate court before interfering with the trial court’s decision on quantum are well settled. That is to say that the appellate court will interfere with the exercise of discretion of the lower court where the latter court has failed to take into account a relevant factor or has taken into account an irrelevant factor or the award is inordinately low or high that the award is wholly erroneous.

14. There is no dispute that the learned Principal Magistrate indicated in his judgment that he considered the medical reports witness evidence, cited authorities and the submissions. I have on my part re-evaluated the evidence presented and the authorities cited and I have come to the conclusion that the award on damages is commensurate with the injuries the respondent sustained. The issue on apportioning liability has to be looked into given the rival evidence of the respondent and that of the appellant adduced in the trial court. After re-evaluating the case that was before the trial court I am convinced that the appeal on liability has merit. As far as liability is concerned, the appellants testimony coincides with that of the respondent as to the speed of the car and whether the respondent was walking on the road. This is a case of conflicting evidence. This being so, I reiterate the finding in Haji –vs- Marair Freight Agencies Ltd (1984) KLR 139 where this court held interalia: that where it is proved by evidence that both parties are to blame and there are no means of making a reasonable contribution between them, then blame can be apportioned equally on each.

15. After taking into account past decisions cited herein,I am convinced a sum of kshs.350,000/= represents an award which is commensurate with the injuries the respondent sustained.

16. In the absence of clear evidence of the contribution of each party to the accident, justice calls for equal apportionment. It is therefore my considered view that liability should have been apportioned equally. The learned trial magistrate therefore erred fixing liability at 100% as against the appellant.

17. In the end this appeal partially succeeds and is allowed as

follows:

1. The order apportioning liability at 100% is set aside and is substituted with an order apportioning liability at 50:50.

2. The appeal as against quantum is dismissed.

3. The judgement sum to be subjected to 50% reduction.

4. Costs of the appeal based on the reduced figure is awarded to the respondent.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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