[2022] KEHC 10753 (KLR)

Wanjiku v Onyango & another (Civil Appeal 585 of 2015) [2022] KEHC 10753 (KLR) (Civ) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10753 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 585 of 2015

CW Meoli, J

June 7, 2022

Between

Ng’ang’a Lucy Wanjiku

Appellant

and

Jane Akinyi Onyango

1st Respondent

Bite Manufacturers

2nd Respondent

((Being an appeal from the judgment of M. Chesang, RM, delivered on 5th November 2015 in Nairobi Milimani CMCC No. 7007 of 2012))

Judgment

1. This appeal emanates from the judgment delivered on November 5, 2015 in Nairobi Milimani CMCC No. 7007 of 2012. The suit was commenced by a plaint filed on 27th November 2012 by Jane Akinyi Onyango the plaintiff in the lower court (hereafter the 1st Respondent) against Ng’ang’a Lucy Wanjiku (hereafter the Appellant) and Bite Manufacturers (hereafter the 2nd Respondent) who were the 1st and 2nd defendants respectively in the lower court. The 1st Respondent’s claim was for damages on account injuries sustained in a road traffic accident that occurred on 22nd April 2012. It was averred that the Appellant was the owner of motor vehicle registration no. KAU 912F while the 2nd Respondent was the registered owner of motor vehicle registration no. KAJ 149K. It was further averred that the 1st Respondent was a lawful fare paying passenger in the Appellant’s motor vehicle registration no. KAU 912F which was being driven along Uhuru Highway- Kenyatta Avenue Roundabout, within Nairobi, when the said motor vehicle was involved in collision with the 2nd Respondent’s motor vehicle registration no. KAJ 149K. The 1st Respondent attributed the accident to the negligence and recklessness of the respective drivers of the Appellant and 2nd Respondent motor vehicles.

2. The Appellant filed a statement of defence on January 31, 2013which was later amended on 17th October 2013, denying the key averments in the plaint and liability, instead alleging negligence on the part of the 1st Respondent and the driver of motor vehicle registration no. KAJ 149K. The 2nd Respondent despite being served with summons, failed to enter appearance or file defence and judgment in default was entered as against it on 11th April 2013. The suit proceeded to full hearing during which both the Appellant and 1st Respondent adduced evidence. In its judgment, the trial court found in favour of the 1st Respondent thus proceeded to hold the Appellant wholly liable and awarded damages to the 1st Respondent as hereunder:a.General damages Kshs. 450,000/-;b.Special Damages: Kshs. 1,000/-.

3. Aggrieved with the outcome, the Appellant preferred this appeal which is based on the following grounds: -“1. The learned trial magistrate’s judgment was unjust, against the weight of evidence and relied on the wrong principles of law and thereby occasioning a miscarriage of justice upon the Appellant.2. The learned honorable magistrate erred in law and fact in finding the 1st Defendant/Appellant liable in view of the evidence produced before the trial court and in particular the following;a.That the driver of motor vehicle registration KAJ 149K was blamed for the accident in the OB Extract and Police Abstract dated 25/7/12 produced in court.b.That the Plaintiff failed to prove her case on liability against the 1st Defendant.3. The learned magistrate erred in law and in fact in awarding general damages of Kshs. 450,000/= that was excessive and unjust in the circumstances considering the nature of injuries and the conventional awards in relation to such injuries.4. The learned trial magistrate erred in law and misdirected herself when she failed to consider the Appellants submissions on quantum.5. The learned magistrate erred in law and in fact in unduly disregarding the judicial authorities cited by the Appellant and by instead relying on the authorities cited by the Respondent which were unrelated to the actual injuries sustained by the Respondent.6. The learned trial magistrate erred in fact and in law in finding that the Respondent was entitled to general damages that were too high and without considering the provisions set out in the Insurance (Motor vehicle Thrid party Risks) (Amendment) Act, 2013 cap 405 which gives a guideline on how to compensation ought to be compensated and the available authorities on similar cases.” (sic)

4. The appeal was canvassed by way of written submissions. Counsel for the Appellant condensed the grounds of appeal into key issues relating to iability and quantum of damages. Submitting on the issue of liability it was argued that the trial magistrate erred in law and fact in finding the Appellant 100% liable and failing to apportion liability against the 2nd Respondent despite the evidence on record faulting the driver of the 2nd Respondent. That on the evidence on record no negligence was attributed to the Appellants’ driver as he was lawfully driving on his lane when the 2nd Respondent motor vehicle lost control and hit the Appellant’s motor vehicle in which the 1st Respondent was travelling in.

5. While calling to aid the dicta of Denning J. in Miller v Minister of Persons(1947) 2 ALL ER 372 as cited in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR, and other cases including, V.O.W v Private Safaris (E.A) Ltd [2010] eKLR, Statpack Industries v James Mbithi Munyao Civil Appeal No. 152 of 2003 and the provisions of section 107, 108 and 109 of the Evidence Act it was submitted that the 1st Respondent failed to prove her allegations of negligence against the Appellant on a balance of probabilities. It was further argued that the accident involved multiple motor vehicles and that the driver or the 2nd Respondent’s motor vehicle was found by and large to blame for the accident, a fact the trial court ignored. Counsel asserted that the finding on liability erroneous, and ought to be set aside.

6. Concerning the award on damages it was contended that the trial court made a finding on quantum without due consideration of the injuries suffered by the Respondent, relevant authorities submitted by the Appellant on injuries comparable to the 1st Respondent’s. As to the principles to be considered by a court in awarding damages, the Appellant anchored his submissions on decisions in Kigaragari v Aya (1982-88) 1 KAR, Chege v Vesters(1982-88) KAR 1021, Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR and George Kinyanjui t/a Climax Coaches & Another v Hassan Musa Agoi [2016] eKLR among others. He emphasized that from the evidence tendered, the 1st Respondent sustained a single fracture of the clavicle without permanent sequela and therefore the award of Kshs. 450,000/- in general damages was inordinately high and based on misapprehension of the law and facts. Citing several decisions including Maina Onesmus v Charles Wanjohi Githome [2019] eKLR, Jaldessa Diba t/a Dikus Transporters & Anor v Joseph Mbithi Isika [2013] eKLR, counsel urged the court to interfere and review the award downwards to a sum between Kshs 200,000/- to 300,000/- which he asserted to be fair, reasonable, and adequate compensation. The court was urged to allow the appeal.

7. As a preamble to the 1st Respondent’s submissions, counsel raised objection concerning the Appellant’s failure to extract the decree appealed from, which omission rendered the appeal fatally defective and liable for striking out. Counsel cited the decisions in Nedgwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo [2016] eKLR, Salama Beach Hotel Limited & 4 Others v Kenyariri & Associates Advocates & 4 Others[2016] eKLR and Mary Rono v Ben Gathongo & Another[2019] eKLR in that regard. The 1st Respondent further took issue with contents of the record of appeal, citing the omission of certain key documents and irregular inclusion of others. The court was urged to peruse and go by the original court proceedings in the determination of the appeal, while also expunging documents irregularly included into the record of appeal.

8. The 1st Respondent defended the trial court’s findings. Concerning the issue of liability, counsel relied on the decision in Jackline A. Obondo v Kenya Bus Services Ltd [2007] eKLR. Counsel pointed out that neither of the drivers of the respective accident vehicles was called as a witness to controvert the 1st Respondent’s evidence; that the only eyewitness to the accident was the 1st Respondent; and that the evidence by the two police officers was of no assistance to the court on the question which of driver was to blame for the accident. Counsel asserted that the police abstract, and occurrence book could not serve as substitutes for oral evidence of a witnesses concerning how the accident occurred. Further that the doctrine of res ipsa loquitor was applicable in the instant matter and that the police abstract confirmed the occurrence of the accident. Counsel reiterated that the 1st Respondent was fare paying passenger in the Appellant’s motor vehicle.

9. Concerning the award on general damages, counsel recalled medical evidence adduced at the trial and urged the court not to interfere with trial court’s award. Further referring to submissions before the trial court, counsel asserted that the learned magistrate’s award was not excessive in the circumstance. In conclusion counsel restated the dicta in Mwangi v Wambugu (1984) KLR 453 concerning the principles that an Appellate court should consider when determining a first appeal. This court was urged to dismiss the appeal.

10. The 2nd Respondent did not to participate either in the proceedings before the lower court or before this court.

11. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

12. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.

13. First, it is important to state that the 1st Respondent’s complaints on the completeness of or irregularity in the record of appeal ought to have been raised at the time of directions. However, some of the complaints appear valid, especially regarding omission of key parts of the record. It is deplorable that a party while ensuring inclusion of all its documents and material in the record of appeal would leave out certain key documents or material relied on by the adverse party. In order that no party is prejudiced, the court will rely on the record of appeal together with the original record for the purposes of this appeal.

14. Upon review of the memorandum of appeal and submissions by the respective parties before this court, it is the court’s view that the appeal turns primarily on the one issue, namely, whether the finding of the trial court on liability was well founded. But before considering these matters, it is necessary to address the objection raised by the 1st Respondent concerning the competency of the appeal before the court. The crux of the objection is that the Appellant has not complied with the requirements of order 42 rule 13 (4) of the Civil Procedure Rulesand as result of the said omission, it renders the appeal fatally defective and thus ought to be struck out.

15. Order 42rule 13(4) of the Civil Procedure Rulesprovides that: -“Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say:(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—(i)a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f)”.

16. The court having perused the Record of Appeal dated December 14, 2017has confirmed that indeed no copy of the certified decree of the lower court is therein included. However, the record contains certified copies of the proceedings and judgment of the lower court. On December 14, 2018 a Judge certified the appeal ready for hearing and gave directions. As earlier observed, the 1st Respondent did not raise any objection regarding the contents of the record of appeal. The objection as raised at the time of submissions touches on the jurisdiction of the court and ought to have been raised at the time of directions pursuant to the provisions of order 42 rule 13 (2) which states:“Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.”

17. It is my considered view however that in this case, the inclusion of the copy of the judgment of the lower court satisfies the requirements of sub-rule 4 (f) of rule 13 of order 42 of the Civil Procedure Rules, and that the Judge who certified the appeal ready for hearing and gave directions on December 14, 2018 in presence of counsel for the 1st Respondent was so satisfied. Further, the definition of decree in Section 2 of the Civil Procedure Act and the proviso thereto inter alia states that “for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up.” It is too late in the day for the 1st Respondent to raise the objection which is hereby rejected.

18. Moving on to the issues identified by this court for determination a review of the pleadings, which formed the basis of the parties’ respective cases before the trial court is apposite. In Wareham t/a A.F. Wareham & 2others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

19. The 1st Respondent by her plaint averred at paragraphs 6, 7 and 8 that:“6. On or about 22nd day of April 2012 the Plaintiff was a lawful fare-paying passenger in the 1st Defendant’s said motor vehicle registration number KAU 912F which was being driven along the Uhuru Highway/Kenyatta Avenue Round about, within Nairobi, when the said vehicle was involved in an accident with the 2nd Defendant’s said motor vehicle registration number KAJ 149K.7. The said accident was solely caused by the negligence and recklessness of the respective drivers of the 1st and 2nd Defendant’s said motor vehicles.Particulars ofNegligence of the driver of The 1St Defendant’s Said Motor Vehicle Registration No. KAU 912Fi.Failing to act as a prudent driver while joining and/or while inside and/or while exiting a roundabout.ii.Driving without care and attention and failing to keep any or any sufficient look out.iii.Failing to have any regard for other road users.iv.Failing to observe the Traffic Rules.v.Failing to stop, slow down, swerve on in any other way to manage or control the said vehicle so as to avoid the accident.vi.Failing to properly manage the said vehicle as would a reasonable driver.vii.Recklessly attempting to overtake or overtaking other vehicles.viii.Failing to observe Traffic lights.ix.Recklessly allowing or causing his said vehicle to be collided into by the 2nd Defendant’s said vehicle.x.Driving at a speed that was excessive in the circumstance.Particulars of negligence of the driver of the 2nd defendant’s said motor vehicle registration No. KAJ 149Ki.Colliding into by the 1st Defendant’s said vehicle.ii.Failing to act as a prudent driver while joining and/or while inside and/or while exiting a roundabout.iii.Driving without care and attention and failing to keep any and or any sufficient look out.iv.Failing to have any regard for other road users.v.Failing to observe the Traffic Rules.vi.Failing to stop, slow down, swerve or in any other way to manage or control the said vehicle so as to avoid the accident.vii.Failing to properly manage the said vehicle as would a reasonable driver.viii.Recklessly attempting to overtake or overtaking other vehicles.ix.Failing to observe Traffic lights.x.Driving at a speed that was excessive in the circumstance.8. By reason of the matters aforesaid, the Plaintiff suffered serious injuries, loss and damage and had to undergo and till undergoes substantial medical treatment and care and for which the Plaintiff seeks compensation from the Defendants jointly and severally.” (Sic)

20. As earlier noted, the Appellant filed an amended statement of defence denying the key averments in the plaint or liability thus attributed negligence on the part of the 1st Respondent and the driver of motor vehicle registration no. KAJ 149K by stating at paragraphs 4, 5 and 6 that:“4. The 1st Defendant further denies the occurrence referred to in paragraph 6 of the plaint and further deny the particulars of negligence as enumerated there under and the Plaintiff is put to strict proof thereof.5. Further and in the alternative and without prejudice to the foregoing the 1st Defendant avers that any such occurrence as the Plaintiff may prove was caused solely and or substantially contributed to by the negligence of the Plaintiff.Particulars of the Plaintiff’s negligenceThe Plaintiff was negligent in:a)Failing to take any or any adequate precaution for her own safety.b)Failing to heed the instructions on safety precautions when travelling in motor vehicle registration number KAU 912F.c)Failing to heed the traffic rules and regulations when travelling.And the Defendant pleads volenti non fit injuria.6. Further and without prejudice, the 1st Defendant avers that any such occurrence as the Plaintiff may prove occurred without any negligence on his part or that of his driver or agent and the said collision was solely caused and or substantially contributed to by the negligence of the driver of motor vehicle registration number KAJ 149K who was recklessly and or carelessly managed the said motor vehicle causing it to lose control and hit motor vehicle registration number KBD 067U. Due to the impact motor vehicle registration number KBD 067U rammed into motor vehicle registration number KAU 912F causing it to roll. In the premises, the said accident occurred without the negligence on the part of the Defendants, their drivers, servant, agent and or employee.Particulars of negligence of the driver of motor vehilce reg. No. KAJ 149K.a.Driving a defective motor vehicle.b.Losing control of motor vehicle registration number KAJ 149K forcing it to hit motor vehicle registration number KBD 067U and KAU 912F.c.Failing to have any or nay sufficient regard for the safety of other road users by driving without due care and attention.d.Failing to keep any or any proper look out for other vehicles that might be using the said especially motor vehicle registration numbers KBD 067U and KAU 912F.e.Endangering (the lives of) other road users with his manner of driving.f.Having total disregard for the traffic rules.g.Failing to stop, slow down, swerve or in any other way so to avoid the collision.h.Causing the said accident.i.Res ipsa loquitor.” (sic)

21. It is not disputed that the 1st Respondent was a passenger in the Appellant’s motor vehicle and that an accident occurred involving the Appellant’s motor vehicle and the 2nd Respondent’s motor vehicle. That notwithstanding, the trial court after restating and examining the said evidence in its judgment merely stated concerning liability that:“As the Plaintiff was a fare paying passenger, I hold the defendant 100% liable for the accident.” (Sic).

22. As rightly argued by counsel for the Appellant, the applicable law as to the burden of proof is found in section 107, 108 and 109 of the Evidence Act. The duty of proving the averments contained in the plaint lay squarely on the 1st Respondent. In Karugi & Another V. Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

23. The mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant. The court in that case cited the famous decision of Kiema Mutuku V. Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

24. In Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

25. Although the 1st Respondent’s witness statement adopted as her evidence in chief merely blamed the drivers of the two vehicles, under cross-examination the witness (PW2) stated that while the vehicle KAU 912 F was keeping to its lane at the time of the accident, the 2nd Respondent’s vehicle KAJ 149 K encroached onto the former vehicle’s lane and collided into the said vehicle. The 2nd Respondent did not participate in the trial, and interlocutory judgment had been entered against it. Equally, the Appellant did not call any eyewitness to the accident.

26. Further, neither PC. Moses Wamalwa nor PC. Benjamin Ego who testified as (PW1) and (DW1) respectively, witnessed the material accident. PW1’s evidence was with respect to the Police Abstract (PExh.1) whereas DW1’s evidence was with respect to the Occurrence Book (DExh.1). PW1 testified that that motor vehicle KAJ 149K caused the accident when it lost brakes and hit motor vehicle KAU 912F. But neither PW1 nor DW1 were involved in the investigations concerning the accident. Book. The contents of (DExh.1) comprise an entry made after the fact. The trial court did not attempt any analysis of the evidence on liability. Had it done so, the court would have found that both (PW1) and (DW1) gave hearsay evidence derived from reading of (PExh.2) and (DExh.1) and that beyond confirming occurrence of the accident, their accounts did not contain admissible and credible evidence as to how the accident occurred.

27. The 1st Respondent was the sole eyewitness to the accident, and her evidence was not controverted. Her evidence while absolving the driver of the Appellant’s vehicle established on a balance of probabilities that the driver of the 2nd Respondent’s vehicle was largely responsible for the accident. The trial court misdirected itself in proceeding to hold the Appellant liable in the circumstances. There was no evidential material to support the lower court’s conclusion that the driver of motor vehicle KAU 912F was negligent and that the Appellant was liable for the accident. The finding was contrary to weight of evidence led by the 1st Respondent to the effect that the motor vehicle KAJ 149K caused the accident and that the negligence of its driver was the proximate cause of the Respondent’s injuries.

28. The Court of Appeal in Timsales Limited v Stanley Njihia Macharia [2016] eKLR discussing the principles of ‘causation’ cited with approval the decision by Musinga J (as he then was) in South Nyanza Sugar Co. Ltd vs. Wilson Ongumo Nyakwemba [2008] eKLR quoting Statpack Industries Limited vs. James Mbithi Munyao HCCA No. 152 of 2003 (UR) where it was held that:“It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence and his injury. The plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence.”

29. The finding on liability cannot stand and is hereby set aside. The appeal on liability has therefore succeeded, in which event, so far as the Appellant is concerned, no purpose will be served by delving into the matter of quantum. The court hereby sets aside the judgment of the lower court on liability as against the Appellant and substitutes therefor an order dismissing the 1st Respondent’s case against the Appellant, while finding the 2nd Respondent wholly liable for the accident. Judgment is accordingly entered for the 1st Respondent against the 2nd Respondent in the sums awarded in the lower court and costs therein. The parties to the appeal will bear their own costs in the appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 7TH DAY OF JUNE 2022. C.MEOLIJUDGEIn the presence of:Ms. Chichi h/b for Mr. Ng’ang’a for the AppellantMr. Wananda for the 1st RespondentC/A: Carol