[2023] KEHC 23455 (KLR)

Wafula v JGN (Civil Appeal 30 of 2021) [2023] KEHC 23455 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23455 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal 30 of 2021

JR Karanja, J

October 12, 2023

Between

Benard Kahuka Wafula

Appellant

and

JGN

Respondent

Judgment

1. This Appeal is from the Judgment of the Resident Magistrate at Kapsbet in SPMCC NO. 121 of 2015 delivered on November 23, 2018 in which the appellant, Benard Khauka Wafula, was the defendant sued for damages by the respondent/ plaintiff, JGN, in his capacity as the father and next friend of RW, a minor.

2. The cause of action arose from a road accident which occurred on February 5, 2015along the Nandi Hills - Kapsabet Road at Kapsiwon area involving the appellant’s Motor Vehicle Registration No. KAY 637U which hit and collided with another vehicle which in turn knocked down the minor who was lawfully walking beside the road thereby causing her bodily injuries.

3. The accident was attributed to theappellant’s manner of driving his vehicle so negligently and/or recklessly.The plaintiff/respondent therefore prayed for damages against the appellant whose statement of defence contained a denial of all allegations made against him by the respondent and a prayer that the suit be dismissed with costs. He contended that if the accident indeed occurred then the same was inevitable due to factors beyond his control or was caused and/or contributed to by Respondent letting the minor wander on the road and exposing her to the risk of harm thereby provoking and causing the alleged accident.

4. The appellant also laid blame on the driver of the other Motor Vehicle Registration No.KAB 280C contending that he drove his vehicle in a negligent and reckless manner thereby provoking and causing the accident.Thetrial court, after hearing the case ex-parte the appellant rendered a judgment in favour of the Respondent for general damages in the sum of Kshs. 200,000/- together with costs. The judgment was however, set aside on June 22, 2016 by consent of the parties. The appellant was thus allowed to defend the suit.

5. In the re-trial, a traffic police officer CPL. Peter Karimi (PW1) testified for the Plaintiff along with the minor, RW (PW2). The Defendant/ Appellant Benard Khauka Wafula (DW1) also testified.The trial court considered the entire evidence and concluded that the appellant/ defendant was fully liable to the respondent/plaintiff who was then awarded general damages in the sum of Kshs. 250,000/- and special damages in the sum of Kshs. 6,340/- together with costs of the suit.

6. Being aggrieved, the appellant preferred the eight (8) grounds of appeal set out in the memorandum of appeal dated January 10, 2019. Basically, the supporting grounds imply and suggest that the appeal is largely on the quantum of damages, specifically general damages but camouflaged as an appeal on both liability and quantum of damages.

7. Be that as it may, the appeal was canvassed by way of written submissions which were filed by the appellant through Mose, Mose & Mose Advocates and by the respondent through Mwinamo Lugonzo & Company Advocates. Due consideration having been given to the grounds of appeal in the light of the rival submissions, the duty of this court was to revisit the evidence and draw its own conclusion bearing in mind that the trial court had the opportunity of seeing and hearing the witnesses.

8. In that regard, the plaintiff/ minor (PW2) testified that on the material date of the accident she was walking off the road on the left side heading to school when the Appellants’ Motor Vehicle Registration No. KAY 637U collided with another vehicle which in turn knocked her down. She suffered a dislocation of the shoulder and contended that the Appellant’s vehicle was being driven on the wrong side of the road. She thus implied that the Appellant was responsible for the accident.

9. After being reported to the police, the accident was investigated by CPL. Peter Karimi (PW1) of the Traffic Base Nandi Hills. He visited the scene of the accident and interrogated the driver of both vehicles Registration No. KAY 637U and Registration No. KAB 280C Toyota Pick-Up. He concluded after the investigation that the appellant was responsible for the accident by driving on the wrong side of the road and hitting the other vehicle which was pushed off the road thereby knocking down and injuring the school going minor.

10. A traffic offence of careless driving was therefore preferred against the appellant whose testimony was an admission that he was involved in the said accident and that he was charged with the offence of careless driving in respect thereof. He, nonetheless, blamed the driver of the other vehicle for the accident as well as the minor/ plaintiff for failing to exercise proper lookout while walking along a busy road.

11. All the foregoing evidence in the opinion of this court, did not raise any dispute with regard to the occurrence of the accident and the ownership of the appellant’s Motor Vehicle Registration No. KAY 637U Toyota Salon.On liability, the evidence against the appellant was sufficient and credible enough to establish on a balance of probabilities that he was to blame for the accident and that the blame could not be shared between him and the driver of the other vehicle or that it was fully on the other driver.

12. On the contrary, the evidence showed that the appellant was fully to blame for the accident. He drove his vehicle carelessly and recklessly on the wrong side of the road without any regard to other road users including the driver of the other vehicle. He blamed the other driver but did not enjoin him in this case. In any event, he did not substantially dispute that he was actually the person responsible for the accident in exclusion to any other person. He did not establish and prove his case as against the other driver and even as against the plaintiff and the minor victim.

13. It may therefore be safely stated herein that on the question of liability. If at all, this appeal is lacking on merit.On the question of general damages, medical evidence indicated that the minor suffered a dislocation of the right wrist and cut wounds on the scalp. She prayed through her next friend for an award of 600,000/- general damages in that regard and cited authorities in which the victim suffered much more serious injuries than those suffered by herself in this case.

14. Theappellant, on the basis of the authorities cited by him in the trial urged the court to award the respondent general damages in the sum of Kshs. 70,000/-.The trial court considered all the cited authorities and opined that a sum of Kshs. 250,000/- would be sufficient compensation in terms of general damages for pain and suffering. In so doing, the trial court placed reliance on the decision Patel Shalisk Kesulal vPeter Logon Ekhawoi (2011) eKLR which involved a dislocation of the wrist and other injuries.

15. In this court’s opinion, the authority aforementioned compared well with the present case. However, the injuries suffered by the plaintiff therein were more extensive than the injuries suffered by the plaintiff herein.It would therefore follow that the award of Kshs. 250,000/- general damages was rather excessive in the circumstances and ought to be reduced appropriately and proportionately to a reasonable figure of Kshs. 180,000/-.

16. In awarding the plaintiff special damages in the sum of Kshs. 6,340/- the trial court was alive to the principle that special damages must not only be pleaded but also specifically proved.Although the plaintiff produced receipts which showed that he incurred expenses amounting to the sum of Kshs. 6,340/-, he was not entitled to that amount as special damages for the simply reason that he did not plead special damages in his statement of claim (Plaint). It was therefore erroneous for the trial court to award special damages to theplaintiff/ respondent.

17. In sum, this appeal fails on liability but is allowed on quantum to the extent that the award of Kshs. 250,000/-, general damages made in favour of theplaintiff/ respondent by the trial court be and is hereby set aside and substituted for an award of Kshs. 180,000/- general damages for pain and suffering .The award of Kshs. 6,340/- special damages is also set aside as the plaintiff was not entitled to it. judgment is thus entered for the respondent against the appellant for the sum of Kshs. 180,000/- being general damages for pain and suffering together with costs of the suit.Both appellant and respondent shall bear own costs of the Appeal.Ordered accordingly.

DELIVERED AND DATED THIS 12TH DAY OF OCTOBER, 2023J. R. KARANJAH,JUDGE