[2023] KEHC 24822 (KLR)

Wanjohi v Njamumo & another (Civil Appeal E022 of 2022) [2023] KEHC 24822 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24822 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E022 of 2022

LM Njuguna, J

November 3, 2023

Between

Christopher Joe Wanjohi

Appellant

and

Duncan Gichobi Njamumo

1st Respondent

Mwangi Mwaniki Henry

2nd Respondent

(An appeal from the Judgment of Hon. Grace Kirugumi (Mrs) PM in Kerugoya CMCC No. 158 of 2018 delivered on 02nd March 2022)

Judgment

1. Vide Memorandum of appeal dated 29th March 2022, the appellant seeks orders that the appeal be allowed and the entire judgment in Kerugoya CMCC No. 158 of 2018 delivered by Hon. Grace Kirugumi (Mrs) PM on March 2, 2022, be set aside with costs. The appeal is premised on the following grounds:a.The learned Magistrate erred in law and fact by failing to correctly apply the evidence of the appellant on record;b.The learned Magistrate erred in law and fact by failing to appreciate that the 1st respondent had a role to play in the accident and apportion him his share of liability;c.The learned Magistrate erred in law and fact by failing to consider the evidence on the intervening circumstances that led to the accident and finding the appellant 100% liable for the accident, hence arriving at an erroneous decision;d.The learned Magistrate erred in law and fact by awarding the 1st respondent herein a sum of Kshs. 1,500,000/= as general damages in total disregard of the injuries suffered by the 1st respondent that were proven, and thus awarded an excessive, unjust and unsubstantiated quantum of general damages for the nature and degree of injuries suffered;e.The learned Magistrate erred in law and fact in misapplying the principles of law with regard to quantum and departed from the binding decisions without distinguishing the same from the facts in the instant case;f.The learned Magistrate erred in law and fact as he failed to consider the entirety of circumstances of the case and only relied on the plaintiff’s account of the accident;g.The learned Magistrate erred in law and fact by failing to appreciate the intervening circumstances that led to the accident and therefore disregarded the evidence of the appellant on the same and in doing do failed to rightly and fairly apportion liability at 50%:50% between the plaintiff and defendants in the lower court;h.The learned Magistrate erred in law and fact in failing to consider the appellant’s submissions on the issue of liability;i.The learned Magistrate erred in law and fact by treating the evidence and submissions before him on quantum superficially and consequently arrived at the wrong decision;j.The learned Magistrate erred in law and fact in failing to apply the relevant pertinent judicial principles, precedent and trends regarding the award of quantum; andk.The learned Magistrate’s findings on liability and quantum of damages are not supported by facts or law hence regular and injudicious.

2. The background of the case is that the plaintiff who is the 1st respondent herein filed a plaint dated 13th November 2018 seeking award of special damages in the sum of Kshs. 154,880/=, general damages and costs with interest. The facts were that on or about 02nd November 2017, the 1st respondent was lawfully driving his motor vehicle registration number KAL 206N along Kagio-Kutus Road at Komongo area when the appellant, being the driver of motor vehicle registration number KBT 014L so negligently drove the said motor vehicle without due care that it lost control and hit the 1st respondent’s motor vehicle thereby causing an accident.

3. The 1st respondent stated that he suffered the following injuries: multiple wounds on the right cheek, outer aspect of the right eye, lower back, lateral aspect of the right arm, right knee joint and a closed comminuted (with many fragments) fracture of femur. He relied on the doctrine of res ipsa loquitor. In their defence, the appellant and 2nd respondent denied the averments made in the plaint and put the 1st respondent to strict proof thereof.

4. PW1 stated that on the fateful day he was leaving Kutus heading to Kagio in his motor vehicle KAL 206N when he saw a white car KBT 014L on his side of the road and the car hit his car at the front. That there was a cart carrying bananas ahead of the appellant’s vehicle and he swerved in order to avoid hitting the cart but instead smashed his car. That he tried to apply the brakes but it was too late and he sustained injuries. That he was taken to Kerugoya Medical Center where he was treated and discharged after 2 weeks. He produced the medical records and stated that he was still in much pain after treatment. On cross-examination he stated that the accident occurred at around 5:30am and it was foggy, drizzling and his headlights were on. That the collision happened head-on and the road was not marked. He confirmed that he had some receipts to prove special damages but did not have others. On re-examination, he stated that the appellant was charged with a traffic offence where he pleaded guilty and was fined. That the doctor recommended that he undergoes a future surgery to remove the metal plates from his right thigh.

5. PW2 was the doctor who examined PW1 following the accident. He stated that PW1 sustained soft and skeletal tissue injuries and underwent cleaning and stitching of the wounds on the abdomen and an open reduction surgery which is major surgery. He stated that he examined PW1 and billed him for the service. He was categorical that he only examined him clinically and did not carry out any tests as PW1 had been treated at a different facility. That his examination is based on clinical history, documents and physical examination. He stated that PW1 will be requiring medication and physiotherapy in the future for an ascertainable period of time, in his opinion, and in comparison to other patients in similar circumstances.

6. PW3 was the head of accounts and billing at Kerugoya Medical Center who testified that PW1 was admitted at the hospital and upon payment of the hospital bill, was issued with a computer generated receipt. The appellant’s counsel argued that the receipt was inadmissible as it does not fall within the purview of the Evidence Act. The 1st Respondent’s counsel stated that the document is being produced by the maker thereof. The same was allowed into evidence. PW3 confirmed the receipt was issued to PW1 as he was being discharged from the hospital.

7. This marked the close of the plaintiff’s case. The defense did not call any witnesses. The parties filed their written submissions which were considered by the trial court in making its findings. The court found the appellant and the 2nd respondent jointly and severally liable. The trial court awarded special damages as prayed and general damages of Kshs. 1,500,000/= plus costs of the suit and interests at court rates until full settlement.

8. In this appeal, the parties were directed to file their written submissions and both sides complied.

9. The appellant relied on the case of Dharmagma Patel &another v TA (Minor suing through his mother and next friend) (2014) eKLR where it was held that there cannot be liability without fault. It was his argument that the 1st respondent had plenty of distance and time for him to take necessary action to avert the accident but he failed to do so. He suggested a liability ratio of 60%:40% and cited the case of Ndatho v Chebet (Civil Appeal 8 of 2020) (2022) eKLR. He stated that the special damages as pleaded were not proved and so the same should not have been awarded. As regards the particulars of injuries sustained, the appellant submitted that the award of general damages was excessive in comparison to other similar cases. He relied on the cases of Simon Taveta v Mercy Mutitu Njeru (2014) eKLR, Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd (2013) eKLR and James Gathirwa Ngungi v Multiple Hauliers (EA) Limited &another (2015) eKLR and suggested that a cumulative award of Kshs. 800,000/= would be sufficient for special and general damages.

10. The 1st respondent argued that the facts in the case of Ndatho v Chebet (Civil Appeal 8 of 2020) (2022) eKLR as relied upon by the appellant, are not similar to this case and that the court should disregard this authority. That the appellate court should not interfere with the trial court’s award unless the award of general damages is inordinately high, or based on an irrelevant factor or the trial court disregarded a relevant factor as in the case of Kemfro Africa Ltd T/A Meru Express Services 1976 &another v Lubia &another (No. 2) (1985) eKLR. That in the opinion of the doctor, the 1st respondent would suffer 1% permanent disability, neuritis of the right thigh at 2% and right knee osteoarthritis at 5%.

11. That the trial court considered all the evidence and submissions at trial before awarding general damages of Kshs. 1,500,000/= and was guided by the decisions of the courts in the cases of Patrick Kinyanjui Njama v Evans Juma Mukwenyi (2017) eKLR, Zachary Kariithi v Jashon Otieno Ogola (2016) eKLR and James Gathirwa Ngungi v Multiple Hauliers (EA) Limited &another (2015) eKLR. He contended that the amount of Kshs. 800,000/= for special and general damages as suggested by the appellant is untenable and that the court should order release of the amount paid by the appellant as security for costs.

12. I have considered the grounds of appeal and the competing arguments made by the parties herein both at the trial court and on appeal and in my view, the issues for determination are:a.Whether the finding of the trial court on liability is sound; andb.Whether the trial court’s award of general and special damages is justified.

13. While sitting as an appellate court, it is expected that I re-evaluate the evidence and make a finding vis-a-vis the finding of the trial court. In the case of David Njuguna Wairimu v Republic (2010) eKLR the Court of Appeal held thus:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

14. On the first issue for determination, liability is to be established based on the evidence adduced at the trial. It is worth noting that the appellant did not testify neither did he call any witnesses at the trial. PW1, on the other hand, stated that he was driving along Kagio-Kutus road when the appellant’s vehicle came onto his lane and collided with PW1’s vehicle head-on. The trial court, when determining liability stated:“…..the defendants tendered no evidence in rebuttal. The oral testimony of the plaintiff on how the accident occurred together with the entries on the police abstract and lack of rebuttal by the defendants are sufficient to prove that the defendants are 100% liable for the occurrence of the accident. The defendants are 100% liable jointly and severally.”

15. Through the plaint, it was the 1st respondent’s case that the appellant and 2nd respondent caused the accident. Onus was on him to prove that this was the case, in other words, section 107 and 109 of the Evidence Act lay the burden of proof on the 1st respondent to prove on a balance of probabilities, that indeed the appellant was liable for the accident. The trial court considered the evidence placed before it and determined liability at 100% against the defendants. In their defense, the appellant and 2nd respondent merely denied the 1st respondent’s averments but no evidence was tendered to challenge the position. I agree with the findings of the trial court on liability and will not interfere with the same as I am not convinced otherwise.

16. In the case of Palace Investment Ltd v Geoffrey Kariuki Mwenda &another (2015) eKLR, it was held that:“Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

17. On the second issue of quantum, the trial court was guided by the case of Ugenya Bus Service v Gachiki (1976-1985) EA 575 at pg. 579 and the submissions of the parties in its determination of general damages. In the case of Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] eKLR where the court considered the appellant’s submissions and allowed the appeal based on the following cases:a)Ahmed Mohamed v Abdulhafidh Mohamed Banragah HCCC No.319 OF 2001. Plaintiff suffered fracture of left femur sub trochanteric and comminuted compound fracture left tibia and fibula. The court awarded him Kshs.750,000/= for pain, suffering and loss of amenities.b)Joseph Musee Mua v Julius Mbogo Mugi & 3others [2013] eKLR. The Plaintiff sustained fractures of the right tibia and fibula, 2 broken upper jaw teeth and a chest injury. The injury left the Plaintiff with a permanent injury of 5% and the court awarded Kshs.1,300,000/= general damages for pain, suffering and loss of amenities.c)Mwaura Muiruri v Suera Flowers Limited &another [2014] eKLR wherein the Plaintiff sustained compound fractures of the right tibia and fibula, comminuted fractures of the right humerus, and soft tissue injuries. The court awarded him Kshs.1,450,000. 00/= for pain and suffering and Kshs. 300,000/= for loss of amenities.d)Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLR wherein the court maintained an award for Kshs. 800,000/= for a compound comminuted fracture of the tibia and fibula and degloving injury on the medical aspect of the right leg and foot.

18. The above-cited authorities can be considered in light of the injuries sustained by the 1st respondent, which are: multiple wounds on the right cheek, outer aspect of the right eye, lower back, lateral aspect of the right arm, right knee joint and a closed comminuted (with many fragments) fracture of femur. Considering the years when these awards were made and economic inflation, I do not think that the award of the trial court is excessive.

19. As regards special damages, the trial court awarded Kshs. 152,680/= being costs incurred for treatment, Kshs. 3,000/= court attendance fees, Kshs. 550/= for copy of records and Kshs. 200/= for the police abstract. From the proceedings, the 1st respondent did not produce a receipt for payment for the police abstract and so the same cannot be awarded. The court attendance fees do not form part of special damages and therefore will not be awarded under this head. The only special damages that can be awarded are medical expenses and cost of obtaining copies of motor vehicle records.

20. Therefore, I find that the appeal partially succeeds with respect to quantum. The trial court’s finding on liability is hereby upheld. For the avoidance of doubt, the court finds as follows:Liability 100%General damages forpain and suffering and loss of amenities Kshs. 1,500,000/=Proven special damages Kshs. 153,230/=Grand Total Kshs. 1,653,230/=a.The 1st respondent is awarded the costs of the appeal.b.Interest on all general damages shall accrue from the date of the trial court’s judgment until payment in full. Special damages will attract interest from the date of filing of plaint.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………for the Appellant**…………………………………………….for the Respondents**