[2016] KEHC 1432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER 192 OF 2012

TIMSALES LIMITED.......................................APPELLANT

VERSUS

ROBERT MUTUKU KYENGO..............1ST RESPONDENT

AUTO SELECTION (K) LIMITED........2ND RESPONDENT

JOSEPH WANGAI...............................3RD RESPONDENT

JOHN MWANGI NDERITU..................4TH RESPONDENT

(Being An appeal from Judgment/Decree and orders of Hon. Soita Principal Magistrate, Molo on 2nd October 2012 in Molo PMCC No 164 of 2009)

JUDGMENT

1. The appellant being the registered owner of motor vehicle KAL 244Z was found 80% liable in negligence in an accident that occurred on the 12th August 2008 along Elbugron/Molo road involving the second Respondent's vehicle Registration KAP 926L. The first Respondent who was a passenger in motor vehicle registration Number KBC 568 M was injured. He claimed both general and special damages from both respondents jointly and severally.

The apportionment of liability by the trial court at the ratio 80:20 against the appellant prompted filing of the appeal.

2. The appellant in its eight grounds of appeal fault the said judgment by alleging that the trial Magistrate's judgment was not based on the evidence tendered and that he totally ignoring the same and thus arrived at a wrong decision.

It is further stated that the award of damages granted to the first Respondent was excessive in view of the nature, degree and severity of the injuries.

It is sought that the entire judgment be reviewed and/or set aside.

3. This is the first appellate court. It is mandated to re-evaluate and reconsider the evidence tendered before the trial court, and to take into account that it never saw or heard the witnesses testified. It must be guided by the record of the proceedings. In the caseMwanasokoni -vs- KBS Ltd and Others (1982-88) I KAR 278 and followed in numerous decisions, it was held that a Judge on appeal will not normally interfere with a trial courts finding of fact unless it is based on no evidence or on a misapprehension of the evidence or is demonstratably to have acted on wrong principles in reaching the findings.

Likewise, in the caseButt -vs- Khan – Civil appeal No. 40 of 1997, Law JA rendered himself that:

“An appellant 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.”

Guided by the above principles, I now turn to reconsider the evidence tendered by the parties and the judgment of the trial court.

4. The pleadings

The first respondents claim as stated in his amended plaint dated 23rd July 2009 is that at the material time, the first respondent was travelling as a fare paying passenger in motor vehicle registration No. KBC 568M when the 3rd Respondent being driver of the second Respondent's vehicle KAP 926L was so negligently driven that it obstructed motor vehicle registration No.KBC 568 M as a result it violently collided with motor vehicle KAL 244Z the appellant's vehicle from which collision the first respondent sustained injuries.

All the defendants denied liability an each blamed the other for the accident.

5. The first Respondent's casewas stated by himself, Robert Mutuku Kyengo as PW1. His evidence was that he was a passenger in the vehicle registration KBC 568 M, a matatu and that another matatu registration KAP 926L was ahead and was being overtaken by the vehicle he was in. He testified that there was a tractor registration No. KAL 244Z coming from the opposite direction. He stated that the tractor KAL 244Z hit motor vehicle registration No.KBC 568M which then hit Motor vehicle KAP 926L. In his opinion, the tractor KAL 244Z should have braked to enable the matatu overtake and that motor vehicle registration No. KAP 926L ought to have given KBC 568M space to enable it finish overtaking.

Upon cross examination, the first Respondent stated that he could not honestly say which vehicle was at fault, and further stated that the matatu he was in (KBC 568M) was on its lane, then moved into the lane of KAL 244Z when it had finished overtaking. He reiterated that motor vehicle KAL 244Z should have given motor vehicle KBC 568M way and space to finalise overtaking.

6. A Police Officer, Corporal Moses Wawambwa was PW2. He produced a police abstract from the Elburgon Police Station on the accident. He was the investigating officer. He testified that at the scene of accident he found the tractor Registration Number KAL 244Z and KBC 568M(matatu).

His version of the accident from his investigations was that motor vehicle registration No. KAP 926L stopped suddenly and motor vehicle Registration No. KBC 568M which was following it avoided hitting it by veering to the right where it met with the tractor KAL 244Z and a collision occurred. He charged the driver of KAP 926L in Traffic case No. 969/08 for the offence of obstruction.

Upon cross examination, he stated that motor vehicle registration No. KAP 926L was not at the scene as it had left and that motor vehicle registration No. KBC 568M was not overtaking KAP 926L.

He stated that as a police officer in traffic duties for fifteen years, the traffic rules are that, if a vehicle stops suddenly and another hits it from behind, it is at fault.

He further stated that the driver of the tractor, motor vehicle registration No.KAL 244Z could not be blamed for the accident.

7. Defence Evidence was tendered by the third Respondent, Joseph Wangai. He is described as the beneficial owner of motor vehicle registration KAL 244Z, registered in the name of the second Respondent Auto Selection(K) Ltd. His testimony was that he was not the owner of the vehicle and that it was not involved in the accident as no evidence was tendered touching on it.

Upon cross examination, he stated that the tractor KAL 244Z could not be blamed and that driver of motor vehicle KAP 926L was charged with the offence of obstruction and was fined.

8. DW2 was Cheban Lembele, the driver of Timsales tractor Registration No. KAL 244Z, and the appellant in this appeal. His evidence was that as he drove towards Molo, he saw two matatus from the opposite direction, that vehicle KBC 568M was behind KAP 926L and both were speeding, that KAP 926L stopped and the other KBC 568M veered into his vehicle's path and hit his vehicle, the tractor. He stated that he was driving uphill at a speed of 10 kilometres per hour and that there was a depression on the extreme left so he could do move further left to avoid the accident. He blamed the drivers of the two matatus for the accident.

On cross examination, he stated that motor vehicle registration No.KBC. 568M was overtaking, that KAP 926L was moving off the road but had not completed and according to him, the vehicle behind KAP 926L should have kept a safe distance. He blamed motor vehicle registration Number KAP 926L and KBC 586M.

Upon further cross examination he stated that motor vehicle KAP 926L stopped suddenly. As his tractor was higher than the two vehicles, could see clearly how the accident occurred, and that it was a head collision between his vehicle KAL 244Z and vehicle KBC 568M.

9. The issue of ownership of the three vehicles was confirmed by production of copy of records of the said vehicles from the Kenya Revenue Authority. There is no dispute as to the ownership.

10. From the above evidence, the issues that arise for determination in my view are whether any one vehicle could be wholly liable for the accident and/or whether there was contributory negligence by either of the vehicles.

In analysis of the evidence , the trial Magistrate in his judgment made the following findings, that:

1. Motor vehicle Registration No. KBC 568M in which the first Respondent was travelling in, was being driven behind motor vehicle registration No. KAP 926L when it stopped suddenly causing vehicle KBC 569 M to swerve into the lane of tractor No. KAL 244Z – when a collision occurred between KAL 244Z and KBC 568M.

2. The driver of motor vehicle registration No. KAP 926L was charged, convicted and fined for the offence of obstruction.

3. The trial Magistrate made an observation that he could not understand why the driver and owner of motor vehicle Registration No. KBC 568M was not sued.

4. It was a further finding that the third Defendant did not testify to either deny or confirm that he had caused an obstruction.

5. Upon the above evidence, the trial Magistrate found no evidence to blame the second defendant, Joseph Wangai. The case against him was dismissed.

6. The court further made a finding that motor vehicle Registration No. KAP 926L registered in name of Auto Selection Kenya Ltd, second Respondent was not directly involved in the accident but the obstruction contributed to the accident.

7. He therefore apportioned liability at 20% against the second Respondents motor vehicle registration No. KAP 926L and 80% against the Appellants vehicle registration No. KAL 244Z.

11. Analysis of evidence, Submissions and determination.

I have carefully considered the sequence of events leading to the subject accident.

It is not in dispute that the root cause of the accident was the obstruction by stopping suddenly of motor vehicle registration No KAP 926L which forced Motor vehicle Registration No. KBC 568M to veer off its lane and in the process moved onto the path of the tractor Registration No. KAL 244Z which was coming from the opposite direction.

Testimony tendered is that the tractor KAL 244Z could not move further left as it was going uphill and on the left was a depression so a head-on collision occurred.

It is submitted by the appellant that its vehicle tractor KAL 244Z was hit by motor vehicle KBC 568M on its correct lane, and therefore could not be blamed in the circumstances.

12. It is not disputed that the driver of the tractor was not charged with any traffic offence but the driver of motor vehicle KAP 926L who was the originator of the events was charged and convicted for the offence of obstruction. It is its conviction that its driver did not cause the accident, and based on the evidence on record, the trial Magistrate erred in holding the appellant 80% liable.

The first Respondent's submissions are that he proved his case on a balance of probability that the drivers of the two vehicles that collided did not take any evasive action so as to avoid the accident and therefore both ought to be held liable. I do not agree with the first respondents evidence that DW2, the driver of the tractor was not the driver on the material time as no evidence was adduced to that effect by any party.

The police officer who visited the scene of accident immediately after the accident could not have missed to indicate in his report the drivers of the three vehicles.

Looking at the police abstract produced as exhibit, it is only the name of the driver of motor vehicle Registration KAP 926L that is indicated. No question was put to the said investigating officer by the parties Advocates why the name of the driver of tractor KAL 244Z was not stated. It cannot now be a ground of appeal. The drivers of motor vehicle Registration NO. KAP 926L and KBC 568M failed to testify. That leaves the driver of the tractor as the only eye witness. It is noted that upon investigations the driver of motor vehicle Registration No. KAP 926L was charged and convicted for the offence of obstruction. This fact was not disputed by any of the parties.

13. What is before this court is a multiple collision of three vehicles. The trial Magistrate appreciated that the drivers of the two vehicles were liable for the accident at different rations in his own estimation and analysis.

I have re-evaluated the evidence of the investigating officer. He did not produce any sketch maps at least to indicate where the point of impact was. It is however not in dispute that the collision was on the path and lane of tractor Registration No. KAL 244Z, property of the appellant.

It is trite that an accident does not just happen.

In Baker -vs- Market Haiborough Industrial Co-op Society Ltd. (1953) I WLR 1472, Lord Dennin,as he then was, observed that:

“Everyday proof of collision is held to be sufficient to call on the defendant for an answer. Never do they both escape liability. One or the other is held to blame and sometimes both---”

I wholly associate myself with that wise observation.

14. Section 107, 108 and 109 of the Evidence Act places the burden of proof of a fact on the person who wishes the court to believe in the existence of such fact. He who asserts must prove.

All parties blamed each other for the occurrence of the accident.

As much as the appellant had a duty to prove its case against the respondents, the respondents too were under a similar obligation. The evidence of the driver of tractor registration No. KAL 244Z remains unchallenged and it is buttressed by the charges brought against the driver of motor vehicle KAP 926L.

I share the same observation and finding of the trial Magistrate that it is not clear why the owner and driver of motor vehicle Registration No. KBC 568M was not brought on board in the trial case as a defendant having hit motor vehicle registration NO. KAP 926L from behind. Nevertheless, I do not subscribe to the notion held by the traffic police officer, that when a vehicle knocks another from behind, it is to blame for the accident. Circumstances of each case must be considered separately.

I do not agree with the trial Magistrate's finding that even after concluding that motor vehicle registration No. KAP 926L contributed to the cause of the accident, proceeded to place 80% contributory negligence on the tractor Registration No. KAL 244Z. He gave no reasons for such finding.

15. In my own assessment of the evidence, stated above, it is my finding that all the three vehicles contributed to the accident but at different ratios.

First, motor vehicle registration No. KAP 926L must bear the greatest responsibility. Analysis above supports my finding.

Secondly, motor vehicle Registration No. KBC 568M whose owner and drivers are not parties to the primary suit and this appeal suit too must be held also to blame to a large extent to have contributed to the accident and as they are not parties to the suit, then the parties, who ought to have enjoined them to the suit shall share the blame. Indeed, the first respondent blames all vehicles for the accident as he stated he could not say which of them was to blame, and further that it is this vehicle that came onto the path and lane of the tractor KAL 244Z which was being driven uphill at a speed of 10Kph and on its correct lane. There having been a depression to the left, the driver could not possibly veer off and into the ditch. For taking no evasive action like slowing down a percentage of blame shall be burdened on it.

Consequently, I find the second Respondent and its driver the fourth defendant to have contributed to the accident to the extent of 80% while the appellant shall shoulder 20%.

To that extent, the appeal succeeds as far as contributory negligence is concerned. The trial Magistrates finding on liability is thus reversed.

16. Quantum of damages

The first Respondent sustained injuries that are not contested as appears in the medical Report of Dr. Wellington K. Kiamba dated 19th August 2008.

These are:

Loss of two lower incisors teeth and two upper incisors teeth and two canines (No.6)

Deep cut wound on the right side of forehead and nasal septum

Confusion right eye resulting into sub-conjuctival haemorrage.

At the time of examination, the first respondent complained of persistent headache. I have looked at the treatment notes from the Nakuru Provincial General Hospital. They confirm the above injuries as estated by the doctor.

The trial Magistrate awarded the first Respondent Kshs.500,000/= damages for pain and suffering.

The appellant submits that this sum is inordinately high as to be a correct estimate and assessment of damages.

The first Respondent submits that the said sum is not inordinately high, and that the appellant has not demonstrated in what manner the trial magistrate erred in arriving at the said sum.

In Kemfro Africa Ltd t/a Meru Express Service & Another -vs- A.M. LUBIA (1982-88) l KAR, the court held that for an appellate court to overturn a trial courts assessment of damages, it must be shown that it took into account an irrelevant factor or left out a relevant one and thus arrived at an erroneous estimate of the damages.

As much as it is trite that money can not renew a physical frame that has been battered, a court must nevertheless endeavour to secure some uniformity in the assessment. SeeWest (H) & Son Ltd -vs- Shepherds (1964) AC 326.

17. I have considered decisions cited by both counsel in the trial court and in this court.

The first Respondent lost in total six teeth and sustained deep cuts to the forehead and haemorrhage from the eyes.

The appellant has urged that the damages be reduced to Kshs.200,000/= and cited the following decisions.

Kenya Power & Lighting Co Ltd -vs- Zakayo Saitoti Naigola & Another (2008) e KLR,

Margaret Muthoni -vs David Namu Muthoni & Another HCCC No. 148/2999 and Zachary Kirachi Karanja -vs- Samuel G. Njeri Nbi HCCC No. 5890 of 1993.

The injuries sustained by the plaintiffs in the said cases were less serious, with loss of one to four teeth and other soft tissue injuries.

Awards therein range between Kshs.150,000 to Kshs.300,000/=

In particular, the case of Kenya Power and Lighting Company Limited above, the plaintiff was awarded Kshs.300,000/= in December 20 as for:

Fracture of left clavicle

head injury

loss of upper left molars

sprain of left ankle joint

deep cut on superior aspect of left eye brow and anterior occipital region.

Painful left inner ear.

This authority compares well with the first Respondents injuries. The trial courts judgment is dated October 2012, four years after the above decision. Having considered all relevant factors, I am of the opinion that the sum of Kshs.500,000/= awarded for general damages was slightly on the higher side, this being informed by comparable decisions. I am persuaded that a sum of Kshs.400,000/= would have been more reasonable.

18. Accordingly, the appeal succeeds and the trial Magistrate's judgment dated 2nd December 2012 is set aside, and varied as follows:

1. Liability is apportioned as hereunder:

The appellant - 20%

Second and fourth respondents jointly and severally - 80%

General Damages for pain and suffering - Kshs.400,000/=

Costs of the appeal shall be borne by both the second and fourth Respondents and the Appellant at their respective ratios of contributory negligence.

Dated, signed and delivered in open court this 27th Day of October 2016.

JANET MULWA

JUDGE