[2022] KEHC 11714 (KLR)

West Kenya Sugar Co Limited v Namakwa alias Amid Wandera (Civil Appeal 149 of 2018) [2022] KEHC 11714 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11714 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 149 of 2018

WM Musyoka, J

June 10, 2022

Between

West Kenya Sugar Co Limited

Appellant

and

Amida Bakari Namakwa alias Amid Wandera

Respondent

(Appeal from judgment and decree of Hon F Makoyo, Senior Principal Magistrate in Butere PMCCC no 160 of 2013 of October 16 2018)

Judgment

1. The appellant had sued the respondent, at the primary court, seeking compensation for injuries that he had suffered, following a traffic road accident on April 9, 2013, along Bungoma-Mumias road. She was a pillion passenger aboard a motorcycle registration mark and number KMCK 504K, when it got involved in a collision with a motor vehicle registration mark and number KBT 673Y, hauling a trailer registration mark and number ZE 1817, said to have belonged to the respondent, and liability was attributed to the respondent on account of negligence. The respondent filed a defence, denying the accident, and everything else pleaded in the plaint. In the alternative, the respondent pleaded that if any accident occurred, it must have been due to negligence on the part of the respondent, or on account of the rider of motorcycle KMCK 504K, on which she was a pillion passenger. A trial was conducted, and the court found in favour of the respondent, apportioned liability at 100% and awarded damages totaling Kshs 1, 421, 030. 00.

2. The appellant was aggrieved, hence the appeal. It has raised several grounds: that the trial court treated its evidence superficially, ignored the principles of awarding damages, erred in finding that the case had been proved on balance of probability, erred in failing to dismiss the case with costs, ignored the pleadings and submissions of the defence, erred in failing to find that the case by the respondent had been rebutted sufficiently by the evidence adduced by the appellant, and that the award was excessive.

3. Directions were given on September 28, 2021, for written submissions.

4. I have only seen written submissions by the appellant. On liability, it adopts a three-pronged case. One, that the evidence tendered by the respondent was contradictory. Two, the circumstances and manner of occurrence of the accident was inexplicable. Three, there was no independent eyewitness to the accident. Four, the trial court should have apportioned liability. Five, the respondent had not pleaded res ipsa loquitor. On the contradictions, the appellant has pointed at the testimonies of the respondent and her police witness, whereas the respondent testified that appellant’s vehicle hit her off the road, the police witness said the collision was on the road given that the motorcycle landed on the road. The appellant has also pointed at various other bits of contradictions and inconsistencies. The police witness said the point of impact was the front of the lorry, and then again the point of impact was on the trailer side. He also stated that the lorry and the motorcycle were side by side. On there being no independent eyewitness, it is submitted that the testimony of the police officer was largely hearsay evidence, as he was not the investigating officer, and he was relying on a report by the investigating officer who had allegedly talked to an eyewitness, who was to called as a witness. On apportioning liability 50:50, it is submitted that the trial court should have considered that if its finding was that there was no concrete evidence to determine who was to blame between the two drivers the both should have been found equal liable. On res ipsa loquitor, it is submitted that the respondent did not plead it, and, therefore, it should not apply. On quantum of damages, it is submitted that on general damages, the court should have awarded a sum in the region of kshs 800, 000. 00. It has cited Harun Muyoma Boge vs Daniel Otieno Agulo [2015] eKLR (Majanja J), Wakim Sodas Ltd vs Sammy Aritos[2017] eKLR (J Ngugi J), Tabro Transporters Ltd vs Absalom Dova Lumbasi [2015] eKLR (Aroni J), Civicon Limited vs Richard Njomo Omwancha & 2 others [2019] eKLR (Majanja J), Kenya Power & Lighting Company Ltd & another vs Kathuo Muthangya [2018] eKLR (Kamau J) and Zachary Kariithi vs Jashon Otieno Ochola[2016] eKLR (Majanja J). On special damages, it is submitted that the respondent had only strictly proved kshs 6, 000. 00. It is submitted that future medical expenses, being a special damage, must be pleaded. It cites South Nyanza Sugar Co Ltd vs Hezron Ndarera Mogwasi [2010] eKLR (Makhandia J) and Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR (Visram Koome & Otieno-Odek JJA).

5. The appeal herein turns largely on the issue of liability. The principal argument, by the appellant, is that the respondent did not prove negligence against it. For one, the evidence tendered, on what transpired, was contradictory. The appellant was a pillion passenger on the motorcycle. She testified that she saw the lorry approach them from behind at speed, and she advised the rider of her motorcycle to stop so as to give way to it. He complied, rode off the road and stopped. It was her evidence that it was while they were off the road that the lorry hit her. Her witness was a police officer who came to present the evidence gathered from police investigations, although he was himself not the officer who investigated the case. He presented the evidence in a rather nonchalant manner. He stated that the lorry hit the motorcycle from behind, and the point of impact was at the front. He then changed and said it was on the trailer side, as the collision probably occurred while the trailer and the motorcycle were side by side. He said that the motorcycle fell on the road, which he concluded indicated that motorcycle was being ridden on the side of the road. The appellant did not call a single witness.

6. There is no contest that a collision happened between the lorry and the motorcycle, the dispute is no whether there was negligence of the part of the appellant. The respondent had only sued the appellant, she was under a duty to establish the allegations of negligence that she was attributing on the appellant. According to her plaint, the accident happened when the lorry lost control and knocked her down. She particularizes the negligence to be driving at high speed, without due care and attention, too close to the motorcycle, dangerously and failing to manage the lorry to avoid the accident. She relies on the doctrine of res ipsa loquitor.

7. The question is, did she discharge her burden of proving that the accident was occasioned by negligence on the part of the lorry driver? Her case was that the motorcycle she was riding on was ahead of the lorry, and the accident occurred in the course of the lorry overtaking. The police evidence is not clear on the point of impact, but what matters is that the lorry came into contact with the motorcycle and the same fell, hence the injuries suffered by the appellant. The driver of the vehicle overtaking carries a heavier duty than the driver whose vehicle is being overtaken. It has to be demonstrated that it would be safe to overtake, before the effort to overtaken is made. The appellant did not tender evidence and, therefore, there is no counter-evidence as to whether the lorry was overtaking, and that it had ensured that it was safe for it to do so, and that it had given indication to the motorcycle that it was overtaking for the motorcycle to give way. The testimony of the respondent was clear that the lorry was being driven at speed, and the rider of the motorcycle took evasive action, by riding off the road, and stopping. The police witness supported that testimony by stating that, according to the sketch plan, which was not put in evidence, the motorcycle fell off the road. The police evidence did not at all point to fault on the part of the rider, but largely on the lorry, for knocking the other vehicle down. To counter that evidence, the appellant did not present a witness. The trial court concluded that the case presented by the respondent was not controverted. I agree. The respondent discharged her burden. She proved that the motorcycle was ahead of the lorry, the lorry caught up with it and started to overtake it, it came too close to motorcycle and knocked it off the road. She established negligence against the appellant.

8. The appellant points at contradictions in the case for the respondent, by pointing at her testimony as against that of the police witness. I agree, the evidence by the police witness was not well presented. However, whatever problems there might have been with it, the same did not, overall, take away from the fact that the collision happened on the side of the motorcycle, while the lorry was overtaking, and the motorcycle was knocked off the road. All that pointed to negligence on the part of the lorry driver. A collision that happens when one vehicle catches up with another, and, in the course of the one behind overtaking the one in front, the one overtaking hits the other, the safe conclusion should be that the one behind would be to blame, for either being at high speed or overtaking while too close, unless there is some evidence pointing to contribution. In this case the appellant did not adduce evidence, so there was no evidence presented of contribution by the rider of the motorcycle.

9. It is submitted that there was no independent eyewitness account. I am not aware of any law that posits that liability or negligence should only be assessed on the basis of independent eyewitness account. What should happen where there is no independent eyewitness account? The court, no doubt, has to work with the available evidence. In this case the evidence tendered came from the respondent and her police witness. Her case cannot be dismissed merely for lack of independent eyewitness account. The respondent pleaded res ipsa loquitor. The facts of the case speak for themselves. The lorry, which was being driven at speed, caught up with a motorcycle which was slower, and while overtaking it, knocked it off the road, causing injury to the pillion passenger, the respondent herein.

10. It was submitted that where it is not possible to apportion blame between two drivers, the court should rule on liability at 50:50. The motorcycle was on its side of the road, and was knocked off the road in the course of being overtaken. The evidence on record is that it took some evasive action, by it was still hit. The appellant did not adduce any evidence that the motorcycle either obstructed the way of its driver or did not give way or rode in the middle of the road or turned to the lane it was using to overtake, etc. In any event, the owner or rider of the motorcycle was not a party in the suit, and naturally liability should not be attributed to a party who is not privy to the suit, for issues about fair hearing and natural justice would arise. The appellant should have brought the rider, or the owner, of the motorcycle into the suit, by way of third party proceedings, if it felt that there was a chance that the trial court would find it liable in negligence, so that it could seek to persuade the court to apportion the liability between it and the motorcycle rider. Without the principals handling the motorcycle being in the suit, the appellant was bound to bear the full brunt of the liability.

11. On the issue of liability, therefore, I am not persuaded that the trial court made any error, in the conclusions that it arrived at, based on the evidence that was placed before it.

12. On the quantum of general damages, the injuries proved were comminuted fracture of the right tibia, fractured fracture of the right fibula and a large laceration wound on the right leg. She spent more than six months admitted in hospital. The authorities that the appellant has cited to me, being Harun Muyoma Boge vs Daniel Otieno Agulo [2015] eKLR (Majanja J), Wakim Sodas Ltd vs Sammy Aritos [2017] eKLR (J. Ngugi J), Tabro Transporters Ltd vs Absalom Dova Lumbasi [2015] eKLR (Aroni J), Civicon Limited vs Richard Njomo Omwancha & 2 others [2019] eKLR (Majanja J) and Kenya Power & Lighting Company Ltd & another vs Kathuo Muthangya [2018] eKLR (Kamau J), are in respect of far lesser injuries, and it would not do justice to rely on them to assess damages. The decision in Zachary Kariithi vs Jashon Otieno Ochola [2016] eKLR (Majanja J) is much closer, in terms of injuries, to what the respondent suffered, and the award is closer to that awarded by the trial court. I am, therefore, not persuaded that the award was excessive. If anything, it would appear to be on the lower side, given the injuries sustained by the respondent.

13. On special damages, the main contention relates to the future medical expenses. The appellant submits that that ought not to have been awarded as they had not been pleaded, yet they should have, for they fall under special damages. That is trite law, according to Mbaka Nguru & Another vs James George Rakwar [1998] eKLR (Omolo, Tunoi & Shah JJA), Kenya Bus Services Ltd vs Gituma [2004] EA 91 and Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR (Visram Koome & Otieno-Odek JJA). The future medical expenses in this case were not pleaded and should not have been awarded. Curiously, the trial court cited Mbaka Nguru & Another vs James George Rakwar [1998] eKLR (Omolo, Tunoi & Shah JJA), but still awarded the unpleaded future medical expenses, despite the principle stated in that case. I am, however, satisfied that the rest of the special damages were specifically pleaded and specifically proved. The figure of kshs 60, 000. 00, for future medical expenses, ought to be deducted from the total award of kshs 1, 421, 030. 00, reducing it to kshs 1, 361, 030. 00

14. Overall, I find no merit in the appeal, save on future medical expenses. I hereby dismiss the appeal on liability, and on general damages, but I shall allow it to the extent of future medical expenses. The total judgment amount shall be that set out here above at paragraph 13. Each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE 2022W MUSYOKAJUDGEMr Erick Zalo, Court assistant.Mr Olendo, instructed by Ogejo Olendo & Company, Advocates for the appellant.Mr Mukisu, instructed by Mukisu & Company, Advocates for the respondent.