[2022] KEHC 1366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CIVIL APPEAL NO. E031 OF 2021

SYLVESTER ONYANGO LIRE…………………………...APPELLANT

VERSUS

ISACK OUMA SHIKUKU……....………….….………....RESPONDENT

(An appeal from the Judgement and decree of Hon. C.N. Sindani rincipal Magistrate in Ukwala P.M.C.C. No. 57 of 2020 delivered on 21/7/2021)

JUDGMENT

1. The respondent by way of a plaint dated 17. 8.2020 and filed on the 19. 8.2020 sued the appellant seeking among others general damages together with special damages arising from a road traffic accident that occurred on the 24. 6.2020 along Magoya Tigwani road involving motor vehicle registration number KCF 589N driven and or managed/owned by the appellant.

2. In his defence dated 8. 9.2020 and filed on the same date, the appellant denied liability towards the respondent. In its judgement delivered on the 21. 7.2021, the trial court found the appellant 100% liable for the accident and proceeded to award the respondent general damages of Kshs. 850,000 and special damages of Kshs. 82,065.

3. Aggrieved by the trial court’s decision, the appellant filed his memorandum of appeal dated 20. 8.2021 on the same date setting out the following grounds of appeal:

a) That the Honourable Magistrate erred in law and fact when he failed to apportion liability when there is evidence on record that the respondent herein attempted to hang on a moving lorry from behind.

b) The decision is against the weight of evidence.

c) The Honourable Magistrate erred in law when he awarded Kshs. 850,000 which was manifestly excessive considering the nature of injuries sustained by the plaintiff in the case before him.

4. The parties agreed to canvass the appeal by way of written submissions.

The Appellant’s Submissions

5. On liability, the appellant submitted that the accident was caused by the respondent’s mistake of hanging on the back of his vehicle and as such the trial magistrate erred in failing to apportion liability against him as the negligence of the driver was not established.

6. The appellant submitted that the court ought to re-evaluate the evidence afresh and arrive at the proper conclusion with regard to causation of the accident and how liability was apportioned by the trial court. Reliance was placed on the case of Oluoch Erick Gogo v Universal Corporation Limited [2015] eKLR where the court restated the duty of the first appellate court to evaluate and re-examine the evidence adduced in the trial court in order to reach its own conclusion acknowledging that it had no opportunity of hearing or seeing the parties.

7. The appellant submitted that the burden to prove negligence was on the respondent as provided in sections 107, 108 and 109 of the Evidence Act. The appellant also relied on the case of East Produce Kenya Limited v Christopher Osiro Civil Appeal No. 43/01 where the court emphasised that he who alleges must prove the same.

8. The appellant further submitted that the trial magistrate erred by relying on wrong principles to arrive at such high award as general damages for the injuries sustained. They submitted the award of damages should have been between Kshs. 300,000 and Kshs. 450,000.

The Respondent’s Submissions

9. On the issue of liability, the respondent submitted that the evidence adduced before the trial court was that the appellant drove without due care and attention. It was his submission that apportionment of liability was an exercise of judicial discretion and as such an appellate court would only disturb the finding on liability where it was clear that the finding was wrong or that the trial court misdirected itself or acted on extraneous matters.

10. On quantum of damages, the respondent submitted that the award made by the trial court was within range and that a case had not been made by the appellant to justify interference by this court.

11. Reliance was placed on the cases of Angela Katunge Musau v China Wu Yi Ltd & Another Machakos HCCA No. 23 of 2018 where the court awarded the appellant Kshs. 1,000,000 as general damages for a cut wound on the forehead, lower lip and left small an d right fingers, fracture of the radius acetabulum and left femur and the case of James Mbugua & Anor v John Mbugua Mburu Nakuru HCCA No. 135 of 2015 where the respondent sustained a fracture of the right inferior ramus of the pelvis, right acetabulum, left femur, loss of 2 upper incisor teeth and soft tissue injuries and the High Court sustained an award of Kshs. 2, 300, 000 awarded by the trial court.

Analysis & Determination

12. The duty of this court as a first appellate court was reiterated by the Court of Appeal in the case of Gitobu Imanyara & 2 others v Attorney General[2016] eKLR as that of re-evaluating the evidence in the subordinate court both on points of law and facts and coming up with its own findings.

13. In proceedings before the trial court, the respondent pleaded particulars of negligence on the part of the Defendant/1st appellant herein as follows: that his driver, agent or servant drove the accident motor vehicle at a speed which was excessive in the circumstances; that he failed to have any regard to the safety of other road users; that he drove the accident motor vehicle without due care and attention; that he failed to stop, slow down, swerve and in any other way avoid the accident; that he failed to have sufficient control of the aforesaid motor vehicle; that he failed to heed the presence of the plaintiff/ respondent herein along the said road; that he drove the accident motor vehicle in a zigzag manner; that he drove a defective motor vehicle; and that he caused or permitted the accident to occur.

14. The plaintiff/ Respondent adopted his witness statement dated 17. 8.2020 on oath and testified that he was walking besides the Magoya-Tingwani road on the 24. 6.2020 when he was hit from behind and run over by the appellant’s motor vehicle registration no. KCF 589N after which he was taken to hospital at Ambira sub-county hospital where he was admitted and treated before being discharged on the 15. 7.2020. He stated that the driver of the vehicle did not hoot, drove too close to the edge of the road which was narrow and that he drove carelessly and with speed and failed to heed the presence of the appellant on the road.

15. The respondent pleaded that he suffered the following injuries as aresult of the accident:

i. Multiple bruises on the head

ii. Blunt injury to the chest

iii. Bruises on the right elbow

iv. Fractured pelvis

v. Fractured left femur

16. In cross-examination, it was his testimony that the road was narrow so he could not evade the motor vehicle.

17. The respondent also called one PC Eugene Wanjala Masika attached to Ugunja Traffic Base in support of his case. The police officer testified that he investigated the case and established that both the respondent and the lorry driven by the 2nd appellant herein was heading in the same direction when the lorry hit and knocked down the respondent.

18. PC Masika testified that there was an eye-witness at the scene, one Felix Omondi who confirmed the facts as stated. He testified that he recommended that the driver of the appellant’s motor vehicle be charged with the offence of careless driving but that at the time the said driver had not been traced. It was his testimony that the suit motor vehicle belonged to the appellant herein.

19. On their part, the 1st appellant who was the defendant filed a defence on 8th September 2020 admitting that an accident did occur along Magoya-Tigwani road on 24/6/2020 involving Motoor vehicle registration No. KCF 589N and stated that the accident occurred when a man who was walking along the said road suddenly and instinctively entered the road suddenly and when he was to cross to avoid a collision. That he 2was the author of his own misfortune. The particulars of negligence attributed to the plaintiff are that he entered the road suddenly when he had all along been walking on the verge of it; that he had no regard to any road users present on the road; that he failed to give any warning or indication on his intention to cross the road; that he entered the road suddenly and that he used the road without due care and attention.

20. The defendant in his defence called one witness Tobias Ochieng Ndaya, the driver of the subject motor vehicle and who adopted his witness statement dated 12. 2.2021 in which he testified that he was alerted to the respondent’s presence by his co-driver who informed him that there was someone hanging on the left side of the vehicle but who suddenly fell and was driven over by the lorry.

21. On cross-examination, Tobias admitted that the vehicle belonged to the appellant and further that he did not see the respondent but was only alerted to his presence by his passenger who told him to stop as he had heard noises.

22. The respondent’s evidence was that he was walking on the side of the road, a road which both he and the appellant’s driver testified was narrow and approached a corner and that he was knocked from behind whereas the appellant’s driver testified that he was alerted about the respondent hanging on the left side of the lorry. However, on cross-examination it was his testimony that he was alerted by his passenger who had heard some noises forcing him to stop after which they discovered the respondent.

23. The testimony of PC Kungu, who was the investigating officer of the incident was that the respondent was hit from behind. He testified that both the respondent and the lorry were moving towards the same direction and further that the lorry was behind the respondent. It was his testimony that at the time he was in court, the case was pending arrest of the appellant’s driver so as to charge him with the traffic offence of careless driving.

24. The question is whether the trial court erred in law and fact in finding the appellants herein 100% liable for the accident and whether the award of damages of Kshs. 850,000made in favour of the respondent was excessive in the circumstances, considering the injuries sustained by the respondent.

25. The evidence that the driver was only alerted by his co-driver clearly points to a driver who was not alert and attentive on the road. There was no evidence adduced by the appellants to show that the respondent contributed in any way to the accident. Furthermore, the evidence adduced by the driver of the accident motor vehicle was totally at variance with the pleaded facts in the sense that the defendant in the lower court pleaded that the plaintiff was walking along the said road and then he suddenly entered the road with the intention of crossing the road and without due care and attention when he was knocked. However, in his testimony on oath in court, the driver stated that he was alerted by his co-driver that someone was hanging on the side of the vehicle on the right side. This co driver who allegedly saw the respondent hanging on the vehicle was not called as a witness. In the case of Linus Nganga Kiongo & 3 others v Town Council of Kikuyu [2012] eKLR on the consequences s of a party failing to call a crucial evidence it was stated:

“………..in the case of Motex Knitwear Mills Limited Milimani HCC 834/2002 Honourable Lessit J citing Autar Singh Bahra & Another Vs Raju Govindji HCC 548 of 1998stated:

“Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated, in the circumstances the counterclaim must fail………….” Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in co doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged……..”

26. I am in agreement with the above persuasive exposition that indeed, it is not sufficient for a party and more specifically the appellants in this case to have made strong statements of defence on paper blaming the respondent for the accident by trying cross the road without ensuring that it was safe to do so, but fail to adduce any evidence to prove those serious facts. That defence on paper therefore remained mere allegations not proved by evidence as required under Sections 107 and 108 of the Evidence act.

27. The burden of proof lies with the person who alleges and the standard of proof is on a balance of probabilities. The picture painted above points to a driver who was not alert on the road. Furthermore, the evidence adduced by both the appellant and respondent before the trial court pointed to the road being narrow and it being a corner where the accident occurred. A person who is driving a vehicle on such a road and following other road users from behind is under a duty of care to those other road users.

28. As was pleaded and testified by the respondent, the appellant’s driver never hooted or alerted the respondent of his approach. It is not true that the trial court merely found that the vehicle is a lethal weapon and due care is expected of the driver who is in control thereof. Indeed, a vehicle is a lethal weapon and it coming into contact with a human being can be fatal. For the trial court and this court to find liability or contributory negligence eon the part of the respondent road user, the appellants were under a duty to prove any of the allegations levelled against the respondent. They failed to do so. They failed to demonstrate that the respondent attempted to hang on the accident motor vehicle and that he was the author of his own misfortune.

29. There is evidence from the investigating officer of the accident, PW2 that the 1st appellant’s driver was driving behind the respondent. That being the case, the driver was under a heavier duty to drive carefully and to warn the respondent of his approach. There is no evidence that the appellant’s driver saw the respondent on the road and tried to avoid him or to warn him of his approach so that the respondent could give way. There is also no evidence that the respondent attempted to hang on the vehicle or that he was attempting to cross the road when he was hit. The allegation that the driver was alerted by the co-driver of the presence of a person is a clear indication of a driver who was not alert on the road. If the respondent hung on the vehicle, nothing prevented the driver from seeing him from the side mirror if the co-driver allegedly saw the respondent.

30. In the circumstances I find that the trial magistrate did not err when he found the driver of the motor vehicle 100% liable for the accident. It cannot be that any time a person is found on the road and they are knocked then they contributed to that accident by virtue of merely being found using the road. The defendant having pleaded contributory negligence on the part of the plaintiff, was under a duty to prove how the plaintiff contributed to the occurrence of the accident, before the court can apportion that contribution. The defendant should have called the co-driver who allegedly saw the respondent hung on the vehicle and how or at what moment and angle he saw the respondent. That aside, parties are bound by their pleadings. The 1st appellant should therefore have adduced evidence to support his defence that the respondent was trying to cross the road when he was knocked. In my view, the driver was therefore giving hearsay evidence which was not supported by any material evidence. I am inclined to dismiss the defence proffered by the appellant and accept the testimony by the respondent and his witness, the investigating officer of the accident. I uphold the trial court’s findings on liability.

31. On quantum, the respondent pleaded that he sustained the following injuries:

i. Multiple bruises on the head

ii. Blunt injury to the chest

iii. Bruises on the right elbow

iv. Fractured pelvis

v. Fractured left femur

32. The injuries as pleaded were corroborated by the medical report prepared by Dr. Joseph C. Sokobe dated 28. 7.2020 as well as the treatment notes and discharge summary from Siaya County Referral Hospital produced as exhibits.

33. The respondent was subjected to another medical examination as was evidenced by the medical report by Dr. James Obondi Otieno dated 28. 4.2021 which indicated that the respondent had suffered the following injuries.

i. Fracture to midshaft left femur

ii. Fracture pelvis

iii. Laceration on the right inguinal region

iv. Laceration of the scrotum

34. Dr. Otieno noted that the respondent had healed with no permanent disabilities.

35. I have perused the authorities relied on by the parties herein both in the trial court and before this court. Before the trial court, the appellant relied on the case of Civicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLRwhere the respondent suffered injuries of swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures and was awarded Kshs. 450,000.

36. The respondent on his part relied on the case of James Mbugua & Another v John Mbugua Mburu [2020] eKLRwhere the plaintiff suffered injuries of loss of 2 upper incisors teeth with fracture of the teeth, ddeep cut wound on the lower lip and chin, comminuted fracture of the left femur, comminuted fracture of the right acetabulum and dislocation of the right hip joint and fracture of the right inferior ramus of pelvis. The plaintiff underwent surgery and was exposed to future medical procedures. The High Court upheld an award of Kshs. 2,263,693 by the trial court.

37. The respondent also relied on the case of Angela Katunde Musau v China WuYi Ltd & Anor [2020]e KLRwhere the plaintiff suffered multiple fractures to the ribs, fracture of the right ulna bone, displaced and comminuted fracture of the right mandible, fracture of the right superior and inferior pubic ramus of the pelvic bone fracture of the left scapula among other injuries and was awarded Kshs. 1,000,000 general damages.

38. In this case, I find the authorities cited by the appellant before the trial court to be more persuasive in comparison to those cited by the respondent which in my mind contain much more serious injuries.

39. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” Further, the principles upon which the Appellate Court will interfere with an award of damages are set out in the case Khambi & Another v Mahithi & Another v Nashir Sethna & Others {1963} EA 239. The Court of Appeal in the case Coast Bus Service Ltd v Sisco E. Muranga Ndanyi & 2 Others Civil Appeal Case No. 192 Of 1992 stated:

“Those principles were well stated by Law, J.A in Bashir Ahmed Butt vs. Uwais Ahmed Khan, By M. Akmal Khan [1982-88]I KAR 1 at pg 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 either inordinately high or low ….”

40. I am further guided by the case Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR where the Court of Appeal stated that:

“It is generally accepted by Courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated H. West & Son Ltd vs. Shephard [1964]AC 326 at page 353- ‘The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such the present it is natural and reasonable for any member of an Appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”

41. Accordingly, it is my opinion that the trial court awarded the respondent general damages that were inordinately high and which were not based on comparable awards for comparable injuries. The report by Dr Obondi dated 28th April 2021 is clear that the injuries sustained were surgically managed, they have healed with no permanent disability.

42. For the above reasons, I hereby interfere with the award of general damages of Kshs. 850,000, set it aside and substitute it with an award of Kshs 650,000 at 100% liability. Accordingly, this appeal succeeds partially. The appeal against liability fails and is dismissed. The appeal against quantum succeeds to the extent that the award of Kshs 850,000 general damages is hereby set aside and substituted with an award of Kshs 650,000. This amount shall earn interest at court rates from the date of judgment in the lower court until payment in full.

43. Each party shall bear their own costs of this appeal.

Dated, Signed and Delivered at Siaya this 14th Day of March, 2022

R.E. ABURILI

JUDGE