[2022] KEHC 14275 (KLR)

Wanjala v GAB International Construction Co Ltd (Civil Appeal E004 of 2022) [2022] KEHC 14275 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14275 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E004 of 2022

LN Mutende, J

October 19, 2022

Between

Mark Nyongesa Wanjala

Appellant

and

GAB International Construction Co Ltd

Respondent

(Appeal against Judgment in Civil Suit No. 385 of 2018 at the Chief Magistrates’ Court Bungoma by Hon. J. King’ori – CM on 17th January, 2022)

Judgment

1. Mark Nyongesa Wanjala, the Appellant, was involved in an accident on the 16th December, 2016, along Musikoma-Mateka Road whereby he sustained injuries on the head, chest and upper limb. Consequently, he filed a suit seeking general and special damages.

2. The accident occurred at about 7. 30 pm when the appellant who was cycling fell into a trench along the road. He blamed GAB International Construction Co. Ltd, the Respondent, for negligence, following its operations on the road and failure to place warning signs to prevent an accident.

3. The Respondent denied allegations raised. In particular, it denied having dug the trench or injuries having been sustained by the appellant. Further, It stated that even if the accident may have occurred, it was wholly caused and/or contributed to by the recklessness and/or negligence of the Appellant, therefore, no cause of action was disclosed.

4. After full trial, the trial court dismissed the suit on grounds that the Appellant failed to adduce a Police abstract to prove the occurrence of the accident and/or that the Appellant was involved in an accident.

5. To prove the case the Appellant/Plaintiff testified that as he rode a bicycle he fell into a hole that was in the middle of the road and sustained injuries. He was treated for the injuries. PW1 Dr. Mulianga Ekesa examined him and found that he had sustained soft tissue injuries on the head, neck region, trunk, abdomen and ring finger was deformed as a result of the dislocation.

6. PW3 Chrispinus Mangoli Wamalwa who was riding a bicycle behind his colleague, the appellant(Plaintiff) stated that the Respondent’s workers had dug two trenches on the road but there were no warning signs. He witnessed as the plaintiff fell into the trench and sustained serious injuries, and, he assisted him.

7. The defence represented by Abdi Qafar Ali Aden admitted having been constructing the road in issue. He stated that in the cause of construction they should have warning signs so that road users do not cross, therefore, it was not possible that the accident occurred as alleged. But, in the alternative he stated that if the accident occurred, having been cycling at night without lights, such an accident would not have been prevented despite exercise of reasonable care.

8. The trial court considered evidence presented and was of the opinion that the plaintiff failed to prove on a balance of probabilities that the accident occurred at the alleged place and time in which the plaintiff was injured. It noted that the plaintiff failed to produce an abstract on the accident to show that a road accident in which he was a victim occurred. On quantum it dismissed what was submitted as being speculative hence did not venture into it.

9. Aggrieved, the appellant appeals on grounds that:1. The trial magistrate erred in law and fact in dismissing the appellant’s case when the appellant had proved his case on the balance of probabilities.

2. The trial magistrate erred in law and fact in holding that failure to produce police abstract was fatal on the part of appellant’s case.

3. The trial magistrate erred in law and fact for failing to appreciate that negligence is not proved by police abstract but is proved by cogent evidence.

4. The trial magistrate erred in law and fact in not appreciating that the appellant suffered severe injuries by falling in a trench that had been dug by the defendant and not through motor vehicle accident hence arriving at a wrong decision.

5. The trial magistrate erred in law and fact by failing to appreciate that production or obtainment of a police abstract in this case was not applicable and necessary.

6. The trial magistrate erred in law and fact in being biased and created the story of lack of police abstract an issue that was never raised by the Respondent in their defence.

7. The trial magistrate erred in law and fact in not holding the respondent’s defence was baseless and un-corroborated.

8. The trial magistrate erred in law and fact in holding that the appellant was not entitled to an award of earning capacity.

9. The learned magistrate erred in law and fact in holding that the appellant was not entitled to an award of future medical expenses when the doctor had clearly established so.

10. The learned magistrate erred in law and fact in stating that

he would have a warded a causal General damage of Kshs. 250,000/- when the appellant suffered severe damage. 11. The learned trial magistrate erred in law and fact,

proceeded to act with biasness and malice hence arriving at a wrong decision.

10. The appeal was canvassed through written submissions, theappellant urged that the finding of the trial court in failing to reach a determination that the defendant was 100% liable and reaching a finding that failure to produce a Police abstract absolved the respondents from liability was against the principles of practice and the law. That Police abstract was a standard Form that contains particulars of victim of accident, the owner of motor-vehicle, the insurance details and whether a traffic case was instituted against the driver.

11. That the case did not involve a motor vehicle as the Plaintiff fellinto a trench and negligence could not be determined by an abstract. He cited the case of Daniel Kuria Ng’ang’a(Suing as a legal representative of the Estate of Samson Njoroge Kuria(Deceased) vs Nairobi City Council(2013)eklr where the Court of Appeal stated that:“The issues for determination are on liability and quantum. On liability was the defendant negligent as alleged for leaving the hole open and uncovered and on quantum whether the defendant is liable for the loss and damage that was suffered by the estate of the deceased. On liability it is the plaintiff’s evidence that he found his son having drowned in a hole that had been left open. He blames the defendant for leaving the hole exposed and failing to put any signs of the open trench and exposing the defendant to a risk. The defendant did not call any evidence to challenge the plaintiff’s evidence…”

12. Further, that negligence is not proved by production of a Police abstract but evidence. That in the case of Techard Steam & Power Limited Vs. Mution Muli and Mulwa Ngao (2019) eKLR Odunga J. (As he then was) stated that:“50. 50. However, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigations officer is not necessarily fatal in accident claims. In Peter Kanithi Kimunya v. Aden Guyo Haro [2014] eKLR it was held:

“A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”

13. On general damages - he urged that the sum the trial courtwould have considered to award of Ksh 250,000/- was too little for injuries sustained. He urged the court to consider the fact of inflation and now award Ksh. 1,500,000/- instead of Ksh 900,000/- that they sought at trial.

14. On loss of earning capacity, basing on a myriad of cases including Caroline Endovelia Mugayilwa Vs. Lucas Mbae Muthara (2016) eKLR he sought an award of Ksh. 5,712,200/- In the stated case it was held thus:“It is indisputable that the Plaintiff will never be able to work again or earn her own livelihood. Although the accident did not incapacitate her mentally, our stage of development as a country is such that the opportunities for a person who is paralysed from the waist down to work and earn her own living are probably quite minimal.The Plaintiff is therefore entitled to damages for loss of earning capacity. She was 31 years old at the time of the accident. She would probably have been able to work well into her 60s. But allowance must be given to the vagaries and uncertainties of life. I will therefore apply a multiplier of 25 years.The Plaintiff was working as a data entry clerk with the Kenya Bus Services on a casual basis at the time of the accident earning KShs. 20,000/- per month. She produced a Staff Bus card as proof that she worked with the said Corporation. It is not very clear whether this sum was gross of net as no pay-slip was produced. From 1st May 2005 to 30th April 2006, pursuant to Legal Notice No. 42 of 2005, the prescribed minimum wage was Kshs 7,237/= with house allowance the amount was Kshs 8,322/=. In the absence of a payslip to prove the salary earned by the Plaintiff, the minimum wage will suffice as what she earned.I will award KShs. 2,496,600/= as general damages for loss of earning capacity calculated as follows:-KShs. 8,322/00 x 12 x 25 = KShs 2,496,600/= ’’

15. On future medical expenses, the deformity of the finger having been 5% and would require Ksh. 200,000/- for correctional surgery, he sought an award of Ksh. 500,000/-

16. The Respondent argued that the appellant alleged that he reported the accident to the Police immediately upon the occurrence but he did not produce a police abstract of police report to substantiate the occurrence of the accident.

17. It was disputed that the accident occurred on 10th December,2016. That the P3 adduced was dated 5th June, 2018, more than 2 years after the occurrence of the accident. There was no evidence that the injuries were caused by the accident. That there was no explanation why the examination was after 2 years and the reason for changes in the degree of injury from harm to maim.

18. That the Doctor tempered with the medical report and changed the date from 5th June, 2018 to 2017 which impeached the credibility of the witness. That the appellant admitted to having eye challenges and on cross examination claimed that it was caused by the accident, which was not noted on the P3 Form or medical report and the photographs of the scene were not produced. It was pointed out that it was not proved as to who dug the hole.

19. On the question of future medical expenses, it was urged that for a party to be entitled to future medical expenses, it had to be specifically proved, having been specifically pleaded. In this regard the case of Tracom Limited & another Vs. Hassan Mohamed Adan (2009) eKLR was cited where the Court of Appeal stated that:“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated:-“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”

20. This being a first appeal, this court has the duty to reassess and analyze evidence presented before the lower court and reach an independent finding on merit. In doing so the court must bear in mind the fact of not having seen or heard witnesses who testified. This was stated on the case of Kiruga Vs. Kiruga and Another (1988) KLR 348, as follows:“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

21. In the case of Makube Vs. Nyamoro (1983) KLR 403 the Court of Appeal stated that:“A court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong legal principles in reaching the findings he did ….”

22. It was the legal requirement of the appellant herein (Plaintiff) to prove the claim that he advanced. This was a critical requirement. The law is clear, in that the party who depends on particular facts must present evidence to support the allegation. This depends on circumstances of the case and the burden of proof is on a balance of preponderance of evidence.

23. On the question of liability in the instant case, the Plaintiff (Appellant) was required to prove that there existed a legal duty that the defendant (Respondent) owed him; a duty that was breached by the Respondent and as a result he suffered injury.

24. It is not denied that the defendant, a limited liability company was seized of the duty of carrying out construction work. The work was being done by its employees. In the cause of Its duties the Respondent owed a duty to members of public. It should have been foreseen that all road users on the road could not suffer any injury.

25. The appellant herein, a member of public testified that he was cycling along the stated road – Mateka-Musikoma, that he had used the previous evening as he did previously while going to his place of work. On the material day when he used the road in the morning there were no warning signs as the trench had been covered, purportedly, the road was to be used for a national event. When he returned in the evening at about 7. 30 pm, having seen no warning signs to indicate an excavation that had been done, he proceeded only to fall into the trench. The appellant’s evidence was corroborated by that of PW3 who was riding a bicycle behind him.

26. The Respondent was notified of the intention to sue following the accident. The Respondent called a witness who alleged that he was one of the directors. However, the witness did not have a certificate of incorporation or any other evidence to prove the fact of being one of the directors; a company resolution or authority allowing him to testify on behalf of the company. He admitted that the Respondent was constructing the road when the accident occurred and argued that the report following the accident, if it did happen should have been reported through KERRA. Therefore, the Respondent did not indicate the steps they took before and during the construction of the road. In the result, there was no suggestion if the duty owed to the road users was discharged.

27. The appellant testified that he reported the accident to the Police. There was no indication as to when it was done. But, there is evidence of the appellant having sought treatment at St. Damiano Medical Centre and subsequently at Musikoma Dispensary where it was indicated that injuries sustained were as a result of a road traffic accident. He was seen at St. Damiano Hospital on the date of the accident where the deep cut would he sustained was sutured and dressed; and at the point of going to Musikoma Dispensary on 19th December, 2016, the wound amongst other injuries was still bleeding. This was proof of the appellant having sustained injuries on the fateful date.

28. The case was dismissed because the trial court concluded that failure to produce a police abstract on the accident meant that it was questionable if an accident occurred and whether the appellant was a victim of the accident. Evidence adduced by the appellant proved that he was involved in an accident. In a case that is persuasive, Catherine Mbitha Ngina Vs. Silker Agencies Ltd (2021) eKLR Odunga J. (As he then was) was of the view that:“27. Similarly, the fact that an accident is not reported does not necessarily mean that no such accident occurred. Proof of negligence, being on a balance of probabilities, does not solely depend on the evidence of the investigating officer or report of the accident to the police though such report may corroborate the other available evidence. Negligence, however, can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigating officer is not necessarily fatal in accident claims.”

29. It was therefore erroneous and misdirection on the part of the trial court to conclude that no accident occurred.

30. On the question of quantum of damages; on pain and suffering and loss of amenities, ultimately the appellant was examined by Dr. Mulianga Ekesa who found him having sustained a deformed finger assessed at 5% permanent incapacity, soft tissue injuries on the shoulder and cut wound on the lower lips and nostrils.

31. The appellant prayed for an award of Ksh. 900,000/- for pain and suffering and the court was of the view that Ksh. 250,000/ would have sufficed. The trial court based the argument on the case of Veronica M. Kangala Nyapara Vs. Charles Kinanga Babu (2020) eKLR where the court awarded Ksh. 300,000/- for a deep cut on the forehead, chest contusion bruises on the face, hands dislocation on the left wrist joint, bruises on both ankle joints and dislocation on the left ankle joint; and, in Mutuku Stanley Vs. Stephen Mwongela Maweu (2017) eKLR where an award of Ksh 700,000/- was made where the Plaintiff suffered a cut wound on the occipital region, laceration of the right partum, cut wound on the right elbow, degrowing injury on the left hand with deformed fingers and blunt injury to the left shoulder.

32. For the loss of earning capacity, the appellant sought an award ofKsh 5,712,000/- which the trial court found to have been exaggerated and went on to dismiss the claim for not having been proved. Similarly the court dismissed the claim for future medical treatment for being speculative.

33. Awarding damages is discretionary and is vested with the trial court. An Appellate Court would not interfere with an award of the trial court unless it is inordinately high or low or where wrong principles have been applied. This was well stated in the case of Catholic Diocese of Kisumu Vs. Sophia Achieng the Civil Appeal No. 284 of 2001 (2004) 2KLR 55 where the court held that:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

34. Injuries sustained by the appellant included a deformed finger.A sum of Ksh 300,000/- would suffice for the pain and suffering.

35. The appellant claimed for loss of earning capacity and futuremedical expenses in is submissions. The court opined that a deformed left middle finger could not have deterred the appellant from working as a steel fixer. It is argued by the respondent that loss of earning capacity was not pleaded and proved. This having not been loss of earnings, which is like special damages, it did not call for specific pleading. This principle was well communicated in the case of SJ Vs. Francesco Di Nello & Another (2015) eKLR where Court of Appeal stated as follows:“14. Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley V John Thomson Ltd [1973] 2 Llyod’s Law Reports 40 at pg. 14 wherein Lord Denning M.R. said as follows:

“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

36. In the case of Douglas Kalafa Ombeva Vs. David Ngana (2013) eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.”

37. In the case of Cecilia W. Mwangi and Another Vs. Ruth W. Mwangi Nyeri Civil Appeal No. 251 of 19966(1997) eKLR the Court of Appeal held that:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of "loss of earning capacity" can be classified as general damages but these have also to be proved on a balance of probability. The plaintiffs cannot just "throw figures" at the judge and ask him to assess such damages”

38. The appellant stated that he was a steel fixer who worked in a construction field but he did not produce any evidence of his income. Following evidence adduced by his colleagues he may have been a casual labourer, but, he did not demonstrate how the injuries would affect his duty. It was not proved that injuries sustained as a result of the accident would limit his capacity to earn. An in-depth look at the submissions of the appellant before the trial court were on loss of future earnings. He can therefore not introduce new issues at the appellate stage.

39. On the question of future medical expenses. This should have been pleaded and proved. In the case of Simon Taveta Vs. Mary Mutitu Njeru (2014) eKLR the Court of Appeal cited the case of Kenya Bus Services Ltd vs. Gituma, (2004) EA 91, where the Court stated:“And as regards future medication (physiotherapy) the law is also well established that, although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damages and is a fact that must be pleaded, if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal rights should be pleaded.”

40. Special damages of Ksh. 3500/- being a sum for the medical report was pleaded. PW1 the medical Doctor, Dr. Mulianga Ekesa stated that he was paid Ksh. 3500/-. He adduced in evidence receipts for Ksh. 3500/-. This was specifically proved.

41. From the foregoing, I do set aside the judgment of the trial court which I substitute with a finding of liability at 100% against the Respondent. The final judgment will therefore be as follows:-General Damages Ksh. 300,000/-Special Damagees Ksh. 3,500/-Total Ksh. 303,500/-The Appellant is awarded costs of the suit both at the lower court and on appeal.

42. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. L. N. MUTENDEJUDGE