REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E076 OF 2024
BLACKSTAR VENTURES LIMITED …………………………APPELLANT
ABDIGANI AHMED …………………………………… ………APPELLANT
VERSUS
DANIEL NJOROGE KIMEMIA …………………………… RESPONDENT
And
HCCA NO. E052 OF 2023
BLACKSTAR VENTURES LIMITED …………………………APPELLANT
ABDIGANI AHMED …………………………………… ………APPELLANT
VERSUS
PETER KERRY MUTHIOMA …………………………… RESPONDENT
(Appeals from Kilungu MCCC E033 of 2022 Judgment dated 26/6/24 Hon Geno L Okwengu SRMand E032 of 2022: Judgment dated 12 TH MAY 203 Hon E Muiru PM)
JUDGMENT
(1) According to the pleadings in the lower court – Peter Kerry Muthioma and Daniel Njoroge Kimemia were, on the 14/5/2021 being lawfully driven in motor vehicle registration number KAU 261J along Mombasa Road, at Matunda area within Sultan Hamud heading towards Nairobi.
(2) The defendants and/or their agents, driver, servant and/or employee drove, managed and/or controlled motor vehicle Registration No. KBR 544M/ZE 1912 from the opposite direction so negligently that it veered off its path and into the oncoming lane where it collided with motor vehicle registration number KAU 261J. As a result, the two sustained severe injuries, suffered loss and damage.
(3) Each of them filed suit at Kilungu SPM Court – Peter Kerry Muthioma filed Kilungu SPMCC E032 of 2022, and Daniel Njoroge Kimemia filed Kilungu SPMCC E033 of 2022. They sued Blackstar Ventures Limited and Abdi Gani Ahmed described in the plaints as the registered/beneficial owners of the motor vehicle registration No. KBR 544M/ZE 1912 Mercedes Benz Prime Mover and Trailer each seeking Judgment against the defendants for:-
1) General Damages for pain, suffering and loss of amenities.
2) Special damages of Ksh. 10,550 each.
3) Costs of the suit.
4) Interest on (1), (2), & (3) at court rates.
(4) The Plaintiffs set out the injuries sustained as fracture of the left tibia fibula; tenderness swelling of and obvious deformity of the left leg; tenderness right lower chest, tenderness and reduced range of movement, left shoulder. It is noteworthy that the injuries were exactly the same.
(5) The Plaintiff set out the particulars of negligence on the part of the defendants.
(6) The defendants filed different defences in each of the cases. With respect to MCCC E032 (Peter K Muthioma the 1 st defendant denied being the registered owner/beneficial owner of motor vehicle registration number KBR 544M/ZE 1912. Both defendants denied the allegations on the driving of the motor vehicle.
It was contended that the plaintiffs’ own search had revealed that the 1 st defendant was not the registered owner of the said motor vehicle.
(7) With respect to Peter K Muthioma the 2 nd defendant admitted to being the registered owner of the said motor vehicle denied allegations about the Road Traffic Accident. He proceeded to contend as follows:-
5) The 2 nd Defendant admits that it is the registered owner of the motor vehicle registration number KBR 544M but denies the Plaintiff’s allegations at paragraph 5 of the Plaint and more particularly that on or about the 14 th day of May 2021 the Plaintiff was lawfully being driven in motor vehicle registration No. KAU 261J, along Mombasa Road as alleged or otherwise as the owner, driver and/or any other person in charge of the commercial motor vehicle was not permitted to allow the Plaintiff to travel on the vehicle whilst being used on a road otherwise than sitting on seats provided for passengers . Further and without prejudice to the foregoing, the 2 nd Defendant avers that if indeed the Plaintiff was being driven in motor vehicle registration No. KAU 261J, which is denied, the Plaintiff was not a lawful and/or authorized passenger in the said motor vehicle as alleged contrary to the mandatory provisions of Rule 88 of the Traffic Rules 1953 and the Plaintiff is put to strict proof of the allegations thereof.
6) The Defendants shall contend at the hearing that motor vehicle registration number KAU 261J was a commercial motor vehicle pursuant to the provisions of section 4(c) of the Traffic Act Cap 403 Laws of Kenya and was neither registered as a private motor vehicle nor a public service vehicle, therefore the Plaintiff was by all means not authorized and/or permitted or at all to board the said motor vehicle as a passenger or in any other capacity as is alleged .
7) Further to the above, the Defendants shall contend that motor vehicle registration number KAU 261J was designed and authorized to carry a maximum of only two (2) passengers, a driver and a loader, and the Plaintiff was an unlawful third passenger as there was a driver namely James Kioko, a passenger namely Daniel Njoroge and the Plaintiff being the third unlawful and/or unauthorized passenger.
8) The Defendants further contend that at the time of the occurrence of the alleged accident, the Plaintiff and his co-passenger namely Daniel Njoroge were neither employees of one Francis K Wamuthiani or Alfonce Paul Munguti being the previous and current owner respectively of motor vehicle registration number KAU 261J which fact has not been pleaded in the Plaintiff’s Plaint nor evidence of authority to board motor vehicle registration number KAU 261J provided.
9) In addition to the aforesaid, the Defendants aver that the Plaintiff has neither disclosed nor pleaded his relationship, contractual or otherwise with the owner or driver of motor vehicle registration number KAU 261J to warrant the Plaintiff’s occupation of the vehicle at the time of the alleged accident .
10) The Defendants aver that by the Plaintiff allowing himself to be an unlawful and/or unauthorized passenger in motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87 of the Traffic Rules 1953, he therefore deliberately compromised the safety and operation of motor vehicle registration number KAU 261J and that of other road users .
(8) Peter K Muthioma was accused of negligence as follows
(j) Failing to alight from a carelessly driven motor vehicle.
(k) Failing to alight from a motor that was being driven at an excessive speed.
(l) Failing to allow or permit the driver of motor vehicle registration number KAU 261J to effectively and safely operate the motor vehicle therefore causing the accident.
(m) Allowing himself to be carried in such a position or in such a manner contrary to the provisions of Rule 87 Traffic Rules 1953 as to occupy part of the driver of motor vehicle registration number KAU 261J’s seat or so as to obstruct his movements or view when driving motor vehicle registration number KAU 261J and as such causing and/or contributing to the accident.
(n) Allowing himself to be carried on the offside of the driver of motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87(3) Traffic Rules 1953 and as such causing and/or contributing to the accident.
(o) Causing the accident.
(9) The 2 nd defendant averred that both Plaintiffs had not disclosed where they were seated in the motor vehicle number KAU 261J. The defendants denied that the doctrine of res ipsa loquitur was applicable in the case. The defendants put the plaintiff to strict proof of his allegations and sought that the suit be dismissed with costs.
(10) The defendants filed the same defence in Daniel N Kimemia’s a case, and the same particulars of negligence they similarly sought the dismissal of the Daniel N Kimemia’s case.
(11) Pw1 in each matter was number 93436 PC Dennis Mugendi or Kithinji from Sultan Hamud police station. He told the court that he was the Investigating Officer in the matter. The report of the accident was received vide OB 16/14/5/2021. That there was an accident along Nairobi/Mombasa Highway at Kwa Matunda area involving three motor vehicles KAU 261J (KAU) driven by Patrick Mutiso KBR 544 M/ZE 191Z (KBR) and KDC 186 G/ZG 436C (KDC) Make Tata Nova.
That KAU and KDC were headed the same directions. KBR was coming from the opposite direction and while over taking another motor vehicle it collided with KAU, which hit KDC which it was following closely. The impact by KBR on KAU was on the differential wheels (the 1 st wheels after the front wheel).KAU & KDC were extensively damaged. KBR was damaged at the cabin and differential wheels.
(12) He testified that KAU had aboard it, the driver, conductor and a passenger. The conductor Njoroge was injured on the leg, the passenger Peter Muthioma sustained fracture of the leg, and the driver Peter Mutiso was injured on the leg – they were taken to Sultan Hamud Hospital for treatment. The driver of KDC had slight injuries, the driver of KBR escaped with no injuries. Upon his investigations he blamed the driver of KBR for the accident. He produced in court the police abstract. He said he visited the scene and drew a sketch plan.
(13) Upon cross-examination in Peter K Muthioma’s case he testified that he had not produced the OB which would contain the circumstances of the accident; that he had only produced the police abstract dated 18/5/2021. He testified that an abstract was expected to contain particulars of motor vehicles involved, date of the accident, persons injured and if the matter had been taken to court. He testified that the three drivers were at the scene. He confirmed that the name Patrick Mutiso as the driver of KAU and the name James Kioko as driver of KBC were not featured in the abstract. He also testified that the name of the driver of KBR was not featured in the abstract. He testified further that the police abstract did not require the filing of those details. He stated that KAU was authorized to carry 2 passengers – that it had the driver and the conductor. That Peter K Muthioma was the third passenger; that he was the owner of the load that was being ferried ( hay). He said the matter was under investigation as per the abstract but he still blamed the KBR. He said the injured had been taken to hospital by people he had not known and that they found the passenger at the scene whom they advised to go to hospital. On re-examination he said that his conclusions on blameworthiness for the accident were drawn from his visit to the scene, witness statements and the point of impact. He said that the number of passengers did not contribute to the accident.
(14) In Daniel Njoroge’s case – on cross-examination he confirmed that he had not indicated the name of the driver of KBR that the witnesses to the accident were the drivers of KDC and KAU, but that he had not produced their statements in court. He also confirmed that he had not produced the sketch plan, and that on one had been charged with respect to the accident.
(15) Peter Kerry Muthioma testified that he was a businessman.
He adopted his witness statement. He stated that he was a passenger in KAU. They had just over-taken KDC, when KBR came from the opposite direction and upon realizing he could not over take the other motor vehicle in good time veered toward their side (of KAU) on the passenger side. However, he hit KAU on the passenger side, causing KAU to collide with the motor vehicle KDC which they had just overtaken – that the impact was so violent, that their motor vehicle KAU turned towards the opposite direction.
That he sustained injuries to the left leg, hand and chest. That an ambulance came and ferried the others to hospital. That he remained at the scene thinking he only had slight injuries – but passed out only to find himself in hospital – he was found to have fracture of the left leg. He said he had difficulties walking.
(16) On cross-examination he said he was aboard the motor vehicle KAU 261J at the time of the accident – that he had hired the motor vehicle to ferry hay from Mtito Andei to Machakos. He said he could not recall the name of the owner of the motor vehicle. He confirmed that he had not produced any evidence before court to show that he had hired the said motor vehicle. He said he sat on the left side at the door of the motor vehicle but did not indicate that in his plaint. He said he suffered fracture of left leg and dislocation, but it was not indicated in his plaint.
(17) Daniel Njoroge Kimemia also adopted his witness statement. He testified that he was injured on the left leg which sustained a fracture. He said he was among those who were ferried to hospital by the ambulance. He blamed driver of KBR. He said he did casual jobs. He testified that on the day of the accident he was called “for squad” whereby the driver of the motor vehicle gave him work as conductor to load and offload the customer’s load. He denied being a fare paying passenger. He said he sat in the middle. He said they were ferrying hay to Masii. He stated further that he did not record in his statement that he had buckled up. He said it was not in his plaint that he had sustained a head injury and injury to Ribs. He said he did not sustain similar injuries as Peter Muthioma. He said he was treated at Sultan Hamud hospital – On re-examination he said he had buckled up when the accident happened, that there were three seats in the motor vehicle for him, Peter and the driver.
The Defence
(18) Dw1 Abdi Gani Ahmed relied on his amended witness statement dated 20/6/2022. He reiterated his statement of defence.
(19) Dw2 Derrick Muthinja Waithaka testified on behalf of the 1 st defendant and adopted his statement dated 20/6/2022. He stated that he was a manager at the 1 st defendant company – that the 1 st defendant company was not the registered owner of the motor vehicle KBR 544M/ZE 1912 that a search conducted at the NTSA by the plaintiffs revealed that the 1 st defendant was not the registered owner of the said motor vehicle – and that the 1 st defendant was sued wrongly.
(20) On cross-examination he told the court that KBR was not one of the motor vehicles owned by the 1 st defendant. That Abdi Gani was one of directors of the 1 st defendant, the 1 st defendant was a limited liability company.
(21) The testimony of DW1 & DW2 was heard much later in Daniel Njoroge’s case – and was heard by a different magistrate – Dw1 Derrick Muthinja adopted his witness statement. He proceeded to clarify that 1 st defendant had not hired KBR that was the personal business of the 2 nd defendant and there was no reason to sue the 1 st defendant.
(22) On cross-examination he said he was not aware of the insurance of KBR by Black ventures limited the 1 st defendant. He said they had not filed any claim/counter-claim against Abdi Gani.
(23) On re-examination he said he had not been shown any Insurance document.
(24) The 2 nd defendant was not available and the case was closed.
(25) In MCCC E032/2022 the learned magistrate delivered a judgment on 12/5/2023 and found in favour of the plaintiff.
100% liability against both defendants jointly and severally.
General Damages – Ksh. 800,000/=
Special Damages – Ksh. 10,550/=
Total - Ksh. 810,550/=
Plus, cost and interest.
In MCCC E033/22 the learned trial magistrate delivered Judgment on 26/6/2024.
In favour of the plaintiff –
100% liability against the 2 nd defendant – (dismissed suit against the 1 st defendant)
General Damages – Ksh 1,200,000
Special Damages – Ksh 10,550
Total – 1,210,550
The Appeal
These judgements provoked the two appeals herein.
In HCCA E052/2023 . The appellant filled memorandum of appeal –
1. The learned Magistrate failed to appreciate the evidence tendered showing that the 1 st Defendant was neither the registered owner of the motor vehicle nor did he have beneficial ownership of the motor vehicle KBR 544M/ZE 1912
2. The learned magistrate erred in arriving at the decision to award liability at 100% against the defendants jointly despite the plaintiff being an unlawful passenger in motor vehicle KAU 261J.
3. The learned magistrate failed to appreciate that the defendants were not responsible for the plaintiff's negligence.
4. The learned magistrate erred in arriving at the decision that was wholly against the weight of the evidence produced and awarding damages that are excessive in the circumstances and sought
a)The Appeal be allowed.
b) The judgement and order aforesaid be set aside.
c) Judgement entered be substituted with an order dismissing the entire Plaintiff case
d) The Appellants be awarded the costs of the original case and of this appeal plus the interest at Court rates.
e) Any further or other alternative order as the justice of the case may require to be made
(26) And in HCCA E076/2024 the following grounds were set out
1. The trial magistrate erred in awarding an excessive award of general damages. The Honourable magistrate in his finding held that the plaintiff had suffered soft tissue injuries, which do not warrant the awarded amount of Kshs. 1,200,000/-.
2. The trial magistrate awarded general damages that are manifestly excessive given the nature of the injuries. The award does not align with the principles of awarding damages for soft tissue injuries and is significantly higher than awards given in similar cases.
3. The trial magistrate failed to consider comparable awards in similar cases, leading to a disproportionate and unjustified award. Courts should adhere to consistency in awarding damages, and the current award deviates from established precedents.
4. The trial magistrate erred in the application of legal principles governing the assessment of general damages, resulting in an unjust award that does not reflect the actual injuries suffered by the plaintiff.
5. The trial magistrate erred in failing to find contributory negligence on the part of the plaintiff
and sought –
A)The Appeal be allowed.
b) That the Honourable Court be pleased to set aside the judgment and award of general damages of Kshs. 1,200,000/- awarded by the trial magistrate.
c) That the Honourable Court be pleased to reassess and reduce the award of general damages to an amount that is just and reasonable, considering the nature of the soft tissue injuries sustained by the plaintiff.
d) That the Honourable Court be pleased to acknowledge and rectify the trial magistrate's error in applying legal principles governing the assessment of general damages, thereby ensuring the award reflects the actual injuries suffered by the plaintiff.
e) Any further or other alternative order as the justice of the case may require to be made.
(27) Daniel Njoroge Kimemia filed a cross appeal on the following grounds:-
1 . THAT the Learned trial magistrate erred in fact and in law in finding the 2 nd Respondent without any interest in motor vehicle KBR 544M/ZE1912 despite evidence filed and availed by the 1 st Respondent proving that the 2nd Respondent was the beneficial owner thereof.
2. THAT the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite evidence being availed and produced by the Police investigations officer proving that the 2 nd Respondent was the beneficial/insured owner of motor vehicle KBR 544M/ZE1912.
3. THAT the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite its own admission that it had taken an insurance cover on motor vehicle KBR 544M/ZE1912.
4. THAT the learned trial magistrate erred in law and fact by failing to appreciate the relationship between the Appellant and the 2nd Respondent wherein the Appellant admitted being a director of the 2 nd Respondent thus missing on the fact that both the Appellant and 2 nd Respondent had vested interest on the subject motor vehicle.
5. THAT the Learned trial Magistrate erred in law and fact by failing to consider the 1 st Respondent's submissions.
6. THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice .
(28) He sought the following orders;
1. The Judgement delivered on 26th June 2024 by the Hon Geno L. Okwengu (Mr.) Senior Resident Magistrate dismissing the suit against the 2 nd Respondent be set aside and a judgment of this Court finding the Appellant and the 2 nd Respondent jointly and severally liable for the subject accident be entered in its place.
2. That the costs of this Appeal and that of the trial court be awarded to the Appellant.
3. Such further orders that this Honourable Court may deem fit to grant.
THE SUBMISSIONS
(29) In HCCA E052/2023
(30) The appellant set down the issues for determination as:-
i. Ownership of Motor vehicle registration number KBR 544M/ZE 1912
ii. Liability and negligence
iii. Quantum and damages
(31) On the 1 st issue – the appellant relies on section 8 of Traffic Act which stipulates that a person in whose name a Motor Vehicle is registered is deemed to be the owner unless proven otherwise. That since the appellant denied ownership, then the respondents had the onus as per S. 107 of the Evidence Act, to prove the same.
(32) The appellant cited Moses Ndungu vs. Elijah Ndirangu Gatia [2014] eKLR where the court stated that
“The moment the defendant denied ownership of the motor vehicle the subject matter of the suit, the burden of proof shifted to the appellant to establish proof of ownership. A police abstract form cannot be used as evidence proving ownership of a motor vehicle. The appellant was also bound to tender credible evidence to prove that the appellant was the driver at the time of the accident or that the driver at the time of the accident was the respondent’s employee, agent or was under his direction.”
(33) On liability and negligence, the appellant argues that the Respondent was an unlawful Passenger in Motor vehicle registration number KAU 261J – and that he significantly contributed to the accident. In addition, that the police did not complete the investigation to support the proposition for contributory negligence. the appellant relies on Felister Nduta Muthoni & Another Versus Attorney General [2004]eKLR
(34) It is argued that the respondent testified that they were three people in the Motor vehicle – which was designed to carry two – meaning that someone did not wear a safety belt
(35) On Quantum, i t was submitted that the respondent did not prove his injuries he did not call the doctor to testify hence did not present the best evidence as per section 68 of the Evidence Ac.
(36) On the authorities supporting quantum of damages, it was submitted that the trial court had not considered the authorities hence the excessive award.
(37) The following authorities were cited
Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR , where the plaintiff sustained multiple injuries and a fracture of the right tibia and fibula, the appellate court set aside an award of Kshs. 1,500,000 and substituted it with an award of Kshs. 300,000; demonstrating the court's approach to adjusting awards based on the extent of proven injuries and the credibility of the evidence presented.
Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where the plaintiff sustained a comminuted fracture of the tibia and fibula, and the court set aside an award of Kshs. 800,000 and substituted it with an award of Kshs. 400,000, underscoring the necessity of aligning awards with the severity of the injuries and the supporting medical evidence.
Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR , the respondent had suffered a fracture of the tibia and fibula bones of the right leg, a deep cut wound and tissue damage of the right leg, a head injury with a cut wound on the nose, blunt chest injuries, and soft tissue injury on the lower left leg. The High Court set aside the award of Kshs. 600,000 and replaced it with Kshs. 400,000, highlighting the court's discretion in adjusting awards to reflect the proven extent of injuries
The Respondents
(38) The respondent only set out 2 issues for determination:-
a. Whether the trial court erred in finding the respondent had proved its case
b. Whether the trial court erred by awarding Ksh. 800,000/= in General Damages
(39) On the 1 st issue the respondent reiterated the respondents witness statement, the testimonies of the Police Officer; That the appellant did not call any eye witness to rebut the evidence of the respondent and the respondent’s witnesses. Regarding ownership of the motor vehicle, it was submitted that the police abstract supported the claim that the Motor vehicle belonged to the appellant – That the insurance policy issued by AMACO was in the name of the 1 st Defendant – The respondent relied on the Trial Courts observation thus;
“The plaintiff produced the police abstract that indicated that the beneficial owner of the motor vehicle was Blackstar Ventures Limited and a copy of records that indicated that the registered owner of the vehicle is Abdi Gani Ahmed. Although, the defence contended that the 1st defendant had been wrongly enjoined into the suit, it is clear from the evidence that the 2nd defendant is one of the directors for the 1st defendant. I thus find that the plaintiff has substantially proven that the defendants are the owners of the subject vehicle. From the foregoing, I am of the considered view that the plaintiff has ascertained that the driver of the motor vehicle KBR 544M was to blame for the accident. Th said driver having been an agent of the defendants herein, the defendants are he vicariously liable. Therefore, I do find the defendants jointly and severally 100% liable for the accident
(40) On the issue of proof the respondent relied on Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] eKLR where the court sstated as follows:
“In Civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”
(41) On Quantum ,it was submitted that according to Dr. Mwaura, the respondent sustained a fracture of the Tibia as well as soft tissue injuries – with a 5% physical impairment. That in the lower court the respondent submitted for Ksh. 1,000,000/= and was awarded Ksh. 850,000/= In his submissions, the Respondent relied on
i. Joseph Musee Mua Vs Julius Mbogo Mugi [2013] eKLR
ii. Francis Ndungu Wambui & 2 Others Vs VK(Minor Suing through next of friend and mother MCWK) [2019]eKLR
In HCCA E076/24
The appellant’s submissions
(42) The appellant set out the issues for determination: Whether;
i. The award of General Damages was excessive and unjustified
ii. The trial Court erred in failing to consider contributory negligence by the respondents
iii. The trial Court erred in dismissing the case against the 2 nd respondent -( Response to cross appeal)
(43) On the 1 st issue the appellant submitted that the award of Ksh. 1,200,000/= for soft tissue injuries was excessive. The appellant cited from the judgment of the trial court where it had stated;
From the foregoing I find that the plaintiff suffered soft tissue injuries . Having considered the authorities relied on by the parties in respect to quantum… and having taken into account the nature of the injuries sustained herein together with the economic times, I do award Kes. 1,200,000/= in general damages.”
(44) It is submitted that the trial court failed to align the award to the established principles for the assessment of General Damages as set out in Kigaraari v Aya (1982 88) 1 KAR 768 , which was cited to the court and where the Court of Appeal held:
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
(45) That the court ignored authorities –
Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where a comparable award was reduced to Kshs. 400,00 : Daniel Otieno Owino v Elizabeth Atieno Owuor [2020] eKLR , where the High Court awarded Kshs. 400,000 for multiple fractures and head injuries.
(46) The appellant relied on Section 35 (1) of the Evidence Act – That the trial court had failed to establish the veracity of the medical reports – and admitted them without having the makers prove them ; and section 48(1) of the Evidence Act
(47) On issue of Contributory Negligence – the appellant relied on section 98 (1) of the Traffic Act – to argue that the respondent was not licensed to act as a conductor; that the respondent was the 3 rd passenger and could not have worn a safety belt -; and section 100(2) of the Traffic Act & Felister Nduta Muthoni and Another Versus Attorney General [2004]eKLR
(48) On contributory negligence, the Court was urged to find that the respondent was 30% liable
(49) Responding to the cross appeal the appellant argued there was no error in the finding that the 1 st defendant was not liable – that the trial court evaluated the evidence and found that no nexus had been established between the 1 st defendant and the accident – That the mere fact that it was alleged that the 1 st defendant had taken out insurance for the Motor Vehicle was not proof of beneficial ownership or legal responsibilities. The appellant asserts that courts have held that liability cannot emanate from the insurance policy without citing any authority for the proposition. It cites Salomon versus Salomon and Co. Limited [ 1897] AC 22 on the distinct legal entity of a Limited Liability Company. That the 2 nd defendant (appellant) is a director of the 1 st – defendant
[...truncated]
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E076 OF 2024
BLACKSTAR VENTURES LIMITED …………………………APPELLANT
ABDIGANI AHMED …………………………………… ………APPELLANT
VERSUS
DANIEL NJOROGE KIMEMIA …………………………… RESPONDENT
And
HCCA NO. E052 OF 2023
BLACKSTAR VENTURES LIMITED …………………………APPELLANT
ABDIGANI AHMED …………………………………… ………APPELLANT
VERSUS
PETER KERRY MUTHIOMA …………………………… RESPONDENT
(Appeals from Kilungu MCCC E033 of 2022 Judgment dated 26/6/24 Hon Geno L Okwengu SRMand E032 of 2022: Judgment dated 12 TH MAY 203 Hon E Muiru PM)
JUDGMENT
(1) According to the pleadings in the lower court – Peter Kerry Muthioma and Daniel Njoroge Kimemia were, on the 14/5/2021 being lawfully driven in motor vehicle registration number KAU 261J along Mombasa Road, at Matunda area within Sultan Hamud heading towards Nairobi.
(2) The defendants and/or their agents, driver, servant and/or employee drove, managed and/or controlled motor vehicle Registration No. KBR 544M/ZE 1912 from the opposite direction so negligently that it veered off its path and into the oncoming lane where it collided with motor vehicle registration number KAU 261J. As a result, the two sustained severe injuries, suffered loss and damage.
(3) Each of them filed suit at Kilungu SPM Court – Peter Kerry Muthioma filed Kilungu SPMCC E032 of 2022, and Daniel Njoroge Kimemia filed Kilungu SPMCC E033 of 2022. They sued Blackstar Ventures Limited and Abdi Gani Ahmed described in the plaints as the registered/beneficial owners of the motor vehicle registration No. KBR 544M/ZE 1912 Mercedes Benz Prime Mover and Trailer each seeking Judgment against the defendants for:-
1) General Damages for pain, suffering and loss of amenities.
2) Special damages of Ksh. 10,550 each.
3) Costs of the suit.
4) Interest on (1), (2), & (3) at court rates.
(4) The Plaintiffs set out the injuries sustained as fracture of the left tibia fibula; tenderness swelling of and obvious deformity of the left leg; tenderness right lower chest, tenderness and reduced range of movement, left shoulder. It is noteworthy that the injuries were exactly the same.
(5) The Plaintiff set out the particulars of negligence on the part of the defendants.
(6) The defendants filed different defences in each of the cases. With respect to MCCC E032 (Peter K Muthioma the 1 st defendant denied being the registered owner/beneficial owner of motor vehicle registration number KBR 544M/ZE 1912. Both defendants denied the allegations on the driving of the motor vehicle.
It was contended that the plaintiffs’ own search had revealed that the 1 st defendant was not the registered owner of the said motor vehicle.
(7) With respect to Peter K Muthioma the 2 nd defendant admitted to being the registered owner of the said motor vehicle denied allegations about the Road Traffic Accident. He proceeded to contend as follows:-
5) The 2 nd Defendant admits that it is the registered owner of the motor vehicle registration number KBR 544M but denies the Plaintiff’s allegations at paragraph 5 of the Plaint and more particularly that on or about the 14 th day of May 2021 the Plaintiff was lawfully being driven in motor vehicle registration No. KAU 261J, along Mombasa Road as alleged or otherwise as the owner, driver and/or any other person in charge of the commercial motor vehicle was not permitted to allow the Plaintiff to travel on the vehicle whilst being used on a road otherwise than sitting on seats provided for passengers . Further and without prejudice to the foregoing, the 2 nd Defendant avers that if indeed the Plaintiff was being driven in motor vehicle registration No. KAU 261J, which is denied, the Plaintiff was not a lawful and/or authorized passenger in the said motor vehicle as alleged contrary to the mandatory provisions of Rule 88 of the Traffic Rules 1953 and the Plaintiff is put to strict proof of the allegations thereof.
6) The Defendants shall contend at the hearing that motor vehicle registration number KAU 261J was a commercial motor vehicle pursuant to the provisions of section 4(c) of the Traffic Act Cap 403 Laws of Kenya and was neither registered as a private motor vehicle nor a public service vehicle, therefore the Plaintiff was by all means not authorized and/or permitted or at all to board the said motor vehicle as a passenger or in any other capacity as is alleged .
7) Further to the above, the Defendants shall contend that motor vehicle registration number KAU 261J was designed and authorized to carry a maximum of only two (2) passengers, a driver and a loader, and the Plaintiff was an unlawful third passenger as there was a driver namely James Kioko, a passenger namely Daniel Njoroge and the Plaintiff being the third unlawful and/or unauthorized passenger.
8) The Defendants further contend that at the time of the occurrence of the alleged accident, the Plaintiff and his co-passenger namely Daniel Njoroge were neither employees of one Francis K Wamuthiani or Alfonce Paul Munguti being the previous and current owner respectively of motor vehicle registration number KAU 261J which fact has not been pleaded in the Plaintiff’s Plaint nor evidence of authority to board motor vehicle registration number KAU 261J provided.
9) In addition to the aforesaid, the Defendants aver that the Plaintiff has neither disclosed nor pleaded his relationship, contractual or otherwise with the owner or driver of motor vehicle registration number KAU 261J to warrant the Plaintiff’s occupation of the vehicle at the time of the alleged accident .
10) The Defendants aver that by the Plaintiff allowing himself to be an unlawful and/or unauthorized passenger in motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87 of the Traffic Rules 1953, he therefore deliberately compromised the safety and operation of motor vehicle registration number KAU 261J and that of other road users .
(8) Peter K Muthioma was accused of negligence as follows
(j) Failing to alight from a carelessly driven motor vehicle.
(k) Failing to alight from a motor that was being driven at an excessive speed.
(l) Failing to allow or permit the driver of motor vehicle registration number KAU 261J to effectively and safely operate the motor vehicle therefore causing the accident.
(m) Allowing himself to be carried in such a position or in such a manner contrary to the provisions of Rule 87 Traffic Rules 1953 as to occupy part of the driver of motor vehicle registration number KAU 261J’s seat or so as to obstruct his movements or view when driving motor vehicle registration number KAU 261J and as such causing and/or contributing to the accident.
(n) Allowing himself to be carried on the offside of the driver of motor vehicle registration number KAU 261J contrary to the mandatory provisions of Rule 87(3) Traffic Rules 1953 and as such causing and/or contributing to the accident.
(o) Causing the accident.
(9) The 2 nd defendant averred that both Plaintiffs had not disclosed where they were seated in the motor vehicle number KAU 261J. The defendants denied that the doctrine of res ipsa loquitur was applicable in the case. The defendants put the plaintiff to strict proof of his allegations and sought that the suit be dismissed with costs.
(10) The defendants filed the same defence in Daniel N Kimemia’s a case, and the same particulars of negligence they similarly sought the dismissal of the Daniel N Kimemia’s case.
(11) Pw1 in each matter was number 93436 PC Dennis Mugendi or Kithinji from Sultan Hamud police station. He told the court that he was the Investigating Officer in the matter. The report of the accident was received vide OB 16/14/5/2021. That there was an accident along Nairobi/Mombasa Highway at Kwa Matunda area involving three motor vehicles KAU 261J (KAU) driven by Patrick Mutiso KBR 544 M/ZE 191Z (KBR) and KDC 186 G/ZG 436C (KDC) Make Tata Nova.
That KAU and KDC were headed the same directions. KBR was coming from the opposite direction and while over taking another motor vehicle it collided with KAU, which hit KDC which it was following closely. The impact by KBR on KAU was on the differential wheels (the 1 st wheels after the front wheel).KAU & KDC were extensively damaged. KBR was damaged at the cabin and differential wheels.
(12) He testified that KAU had aboard it, the driver, conductor and a passenger. The conductor Njoroge was injured on the leg, the passenger Peter Muthioma sustained fracture of the leg, and the driver Peter Mutiso was injured on the leg – they were taken to Sultan Hamud Hospital for treatment. The driver of KDC had slight injuries, the driver of KBR escaped with no injuries. Upon his investigations he blamed the driver of KBR for the accident. He produced in court the police abstract. He said he visited the scene and drew a sketch plan.
(13) Upon cross-examination in Peter K Muthioma’s case he testified that he had not produced the OB which would contain the circumstances of the accident; that he had only produced the police abstract dated 18/5/2021. He testified that an abstract was expected to contain particulars of motor vehicles involved, date of the accident, persons injured and if the matter had been taken to court. He testified that the three drivers were at the scene. He confirmed that the name Patrick Mutiso as the driver of KAU and the name James Kioko as driver of KBC were not featured in the abstract. He also testified that the name of the driver of KBR was not featured in the abstract. He testified further that the police abstract did not require the filing of those details. He stated that KAU was authorized to carry 2 passengers – that it had the driver and the conductor. That Peter K Muthioma was the third passenger; that he was the owner of the load that was being ferried ( hay). He said the matter was under investigation as per the abstract but he still blamed the KBR. He said the injured had been taken to hospital by people he had not known and that they found the passenger at the scene whom they advised to go to hospital. On re-examination he said that his conclusions on blameworthiness for the accident were drawn from his visit to the scene, witness statements and the point of impact. He said that the number of passengers did not contribute to the accident.
(14) In Daniel Njoroge’s case – on cross-examination he confirmed that he had not indicated the name of the driver of KBR that the witnesses to the accident were the drivers of KDC and KAU, but that he had not produced their statements in court. He also confirmed that he had not produced the sketch plan, and that on one had been charged with respect to the accident.
(15) Peter Kerry Muthioma testified that he was a businessman.
He adopted his witness statement. He stated that he was a passenger in KAU. They had just over-taken KDC, when KBR came from the opposite direction and upon realizing he could not over take the other motor vehicle in good time veered toward their side (of KAU) on the passenger side. However, he hit KAU on the passenger side, causing KAU to collide with the motor vehicle KDC which they had just overtaken – that the impact was so violent, that their motor vehicle KAU turned towards the opposite direction.
That he sustained injuries to the left leg, hand and chest. That an ambulance came and ferried the others to hospital. That he remained at the scene thinking he only had slight injuries – but passed out only to find himself in hospital – he was found to have fracture of the left leg. He said he had difficulties walking.
(16) On cross-examination he said he was aboard the motor vehicle KAU 261J at the time of the accident – that he had hired the motor vehicle to ferry hay from Mtito Andei to Machakos. He said he could not recall the name of the owner of the motor vehicle. He confirmed that he had not produced any evidence before court to show that he had hired the said motor vehicle. He said he sat on the left side at the door of the motor vehicle but did not indicate that in his plaint. He said he suffered fracture of left leg and dislocation, but it was not indicated in his plaint.
(17) Daniel Njoroge Kimemia also adopted his witness statement. He testified that he was injured on the left leg which sustained a fracture. He said he was among those who were ferried to hospital by the ambulance. He blamed driver of KBR. He said he did casual jobs. He testified that on the day of the accident he was called “for squad” whereby the driver of the motor vehicle gave him work as conductor to load and offload the customer’s load. He denied being a fare paying passenger. He said he sat in the middle. He said they were ferrying hay to Masii. He stated further that he did not record in his statement that he had buckled up. He said it was not in his plaint that he had sustained a head injury and injury to Ribs. He said he did not sustain similar injuries as Peter Muthioma. He said he was treated at Sultan Hamud hospital – On re-examination he said he had buckled up when the accident happened, that there were three seats in the motor vehicle for him, Peter and the driver.
The Defence
(18) Dw1 Abdi Gani Ahmed relied on his amended witness statement dated 20/6/2022. He reiterated his statement of defence.
(19) Dw2 Derrick Muthinja Waithaka testified on behalf of the 1 st defendant and adopted his statement dated 20/6/2022. He stated that he was a manager at the 1 st defendant company – that the 1 st defendant company was not the registered owner of the motor vehicle KBR 544M/ZE 1912 that a search conducted at the NTSA by the plaintiffs revealed that the 1 st defendant was not the registered owner of the said motor vehicle – and that the 1 st defendant was sued wrongly.
(20) On cross-examination he told the court that KBR was not one of the motor vehicles owned by the 1 st defendant. That Abdi Gani was one of directors of the 1 st defendant, the 1 st defendant was a limited liability company.
(21) The testimony of DW1 & DW2 was heard much later in Daniel Njoroge’s case – and was heard by a different magistrate – Dw1 Derrick Muthinja adopted his witness statement. He proceeded to clarify that 1 st defendant had not hired KBR that was the personal business of the 2 nd defendant and there was no reason to sue the 1 st defendant.
(22) On cross-examination he said he was not aware of the insurance of KBR by Black ventures limited the 1 st defendant. He said they had not filed any claim/counter-claim against Abdi Gani.
(23) On re-examination he said he had not been shown any Insurance document.
(24) The 2 nd defendant was not available and the case was closed.
(25) In MCCC E032/2022 the learned magistrate delivered a judgment on 12/5/2023 and found in favour of the plaintiff.
100% liability against both defendants jointly and severally.
General Damages – Ksh. 800,000/=
Special Damages – Ksh. 10,550/=
Total - Ksh. 810,550/=
Plus, cost and interest.
In MCCC E033/22 the learned trial magistrate delivered Judgment on 26/6/2024.
In favour of the plaintiff –
100% liability against the 2 nd defendant – (dismissed suit against the 1 st defendant)
General Damages – Ksh 1,200,000
Special Damages – Ksh 10,550
Total – 1,210,550
The Appeal
These judgements provoked the two appeals herein.
In HCCA E052/2023 . The appellant filled memorandum of appeal –
1. The learned Magistrate failed to appreciate the evidence tendered showing that the 1 st Defendant was neither the registered owner of the motor vehicle nor did he have beneficial ownership of the motor vehicle KBR 544M/ZE 1912
2. The learned magistrate erred in arriving at the decision to award liability at 100% against the defendants jointly despite the plaintiff being an unlawful passenger in motor vehicle KAU 261J.
3. The learned magistrate failed to appreciate that the defendants were not responsible for the plaintiff's negligence.
4. The learned magistrate erred in arriving at the decision that was wholly against the weight of the evidence produced and awarding damages that are excessive in the circumstances and sought
a)The Appeal be allowed.
b) The judgement and order aforesaid be set aside.
c) Judgement entered be substituted with an order dismissing the entire Plaintiff case
d) The Appellants be awarded the costs of the original case and of this appeal plus the interest at Court rates.
e) Any further or other alternative order as the justice of the case may require to be made
(26) And in HCCA E076/2024 the following grounds were set out
1. The trial magistrate erred in awarding an excessive award of general damages. The Honourable magistrate in his finding held that the plaintiff had suffered soft tissue injuries, which do not warrant the awarded amount of Kshs. 1,200,000/-.
2. The trial magistrate awarded general damages that are manifestly excessive given the nature of the injuries. The award does not align with the principles of awarding damages for soft tissue injuries and is significantly higher than awards given in similar cases.
3. The trial magistrate failed to consider comparable awards in similar cases, leading to a disproportionate and unjustified award. Courts should adhere to consistency in awarding damages, and the current award deviates from established precedents.
4. The trial magistrate erred in the application of legal principles governing the assessment of general damages, resulting in an unjust award that does not reflect the actual injuries suffered by the plaintiff.
5. The trial magistrate erred in failing to find contributory negligence on the part of the plaintiff
and sought –
A)The Appeal be allowed.
b) That the Honourable Court be pleased to set aside the judgment and award of general damages of Kshs. 1,200,000/- awarded by the trial magistrate.
c) That the Honourable Court be pleased to reassess and reduce the award of general damages to an amount that is just and reasonable, considering the nature of the soft tissue injuries sustained by the plaintiff.
d) That the Honourable Court be pleased to acknowledge and rectify the trial magistrate's error in applying legal principles governing the assessment of general damages, thereby ensuring the award reflects the actual injuries suffered by the plaintiff.
e) Any further or other alternative order as the justice of the case may require to be made.
(27) Daniel Njoroge Kimemia filed a cross appeal on the following grounds:-
1 . THAT the Learned trial magistrate erred in fact and in law in finding the 2 nd Respondent without any interest in motor vehicle KBR 544M/ZE1912 despite evidence filed and availed by the 1 st Respondent proving that the 2nd Respondent was the beneficial owner thereof.
2. THAT the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite evidence being availed and produced by the Police investigations officer proving that the 2 nd Respondent was the beneficial/insured owner of motor vehicle KBR 544M/ZE1912.
3. THAT the Learned trial Magistrate erred in law and fact by dismissing the suit against the 2nd Respondent despite its own admission that it had taken an insurance cover on motor vehicle KBR 544M/ZE1912.
4. THAT the learned trial magistrate erred in law and fact by failing to appreciate the relationship between the Appellant and the 2nd Respondent wherein the Appellant admitted being a director of the 2 nd Respondent thus missing on the fact that both the Appellant and 2 nd Respondent had vested interest on the subject motor vehicle.
5. THAT the Learned trial Magistrate erred in law and fact by failing to consider the 1 st Respondent's submissions.
6. THAT the learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice .
(28) He sought the following orders;
1. The Judgement delivered on 26th June 2024 by the Hon Geno L. Okwengu (Mr.) Senior Resident Magistrate dismissing the suit against the 2 nd Respondent be set aside and a judgment of this Court finding the Appellant and the 2 nd Respondent jointly and severally liable for the subject accident be entered in its place.
2. That the costs of this Appeal and that of the trial court be awarded to the Appellant.
3. Such further orders that this Honourable Court may deem fit to grant.
THE SUBMISSIONS
(29) In HCCA E052/2023
(30) The appellant set down the issues for determination as:-
i. Ownership of Motor vehicle registration number KBR 544M/ZE 1912
ii. Liability and negligence
iii. Quantum and damages
(31) On the 1 st issue – the appellant relies on section 8 of Traffic Act which stipulates that a person in whose name a Motor Vehicle is registered is deemed to be the owner unless proven otherwise. That since the appellant denied ownership, then the respondents had the onus as per S. 107 of the Evidence Act, to prove the same.
(32) The appellant cited Moses Ndungu vs. Elijah Ndirangu Gatia [2014] eKLR where the court stated that
“The moment the defendant denied ownership of the motor vehicle the subject matter of the suit, the burden of proof shifted to the appellant to establish proof of ownership. A police abstract form cannot be used as evidence proving ownership of a motor vehicle. The appellant was also bound to tender credible evidence to prove that the appellant was the driver at the time of the accident or that the driver at the time of the accident was the respondent’s employee, agent or was under his direction.”
(33) On liability and negligence, the appellant argues that the Respondent was an unlawful Passenger in Motor vehicle registration number KAU 261J – and that he significantly contributed to the accident. In addition, that the police did not complete the investigation to support the proposition for contributory negligence. the appellant relies on Felister Nduta Muthoni & Another Versus Attorney General [2004]eKLR
(34) It is argued that the respondent testified that they were three people in the Motor vehicle – which was designed to carry two – meaning that someone did not wear a safety belt
(35) On Quantum, i t was submitted that the respondent did not prove his injuries he did not call the doctor to testify hence did not present the best evidence as per section 68 of the Evidence Ac.
(36) On the authorities supporting quantum of damages, it was submitted that the trial court had not considered the authorities hence the excessive award.
(37) The following authorities were cited
Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR , where the plaintiff sustained multiple injuries and a fracture of the right tibia and fibula, the appellate court set aside an award of Kshs. 1,500,000 and substituted it with an award of Kshs. 300,000; demonstrating the court's approach to adjusting awards based on the extent of proven injuries and the credibility of the evidence presented.
Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where the plaintiff sustained a comminuted fracture of the tibia and fibula, and the court set aside an award of Kshs. 800,000 and substituted it with an award of Kshs. 400,000, underscoring the necessity of aligning awards with the severity of the injuries and the supporting medical evidence.
Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR , the respondent had suffered a fracture of the tibia and fibula bones of the right leg, a deep cut wound and tissue damage of the right leg, a head injury with a cut wound on the nose, blunt chest injuries, and soft tissue injury on the lower left leg. The High Court set aside the award of Kshs. 600,000 and replaced it with Kshs. 400,000, highlighting the court's discretion in adjusting awards to reflect the proven extent of injuries
The Respondents
(38) The respondent only set out 2 issues for determination:-
a. Whether the trial court erred in finding the respondent had proved its case
b. Whether the trial court erred by awarding Ksh. 800,000/= in General Damages
(39) On the 1 st issue the respondent reiterated the respondents witness statement, the testimonies of the Police Officer; That the appellant did not call any eye witness to rebut the evidence of the respondent and the respondent’s witnesses. Regarding ownership of the motor vehicle, it was submitted that the police abstract supported the claim that the Motor vehicle belonged to the appellant – That the insurance policy issued by AMACO was in the name of the 1 st Defendant – The respondent relied on the Trial Courts observation thus;
“The plaintiff produced the police abstract that indicated that the beneficial owner of the motor vehicle was Blackstar Ventures Limited and a copy of records that indicated that the registered owner of the vehicle is Abdi Gani Ahmed. Although, the defence contended that the 1st defendant had been wrongly enjoined into the suit, it is clear from the evidence that the 2nd defendant is one of the directors for the 1st defendant. I thus find that the plaintiff has substantially proven that the defendants are the owners of the subject vehicle. From the foregoing, I am of the considered view that the plaintiff has ascertained that the driver of the motor vehicle KBR 544M was to blame for the accident. Th said driver having been an agent of the defendants herein, the defendants are he vicariously liable. Therefore, I do find the defendants jointly and severally 100% liable for the accident
(40) On the issue of proof the respondent relied on Civil Appeal 15 of 2016, Samuel Ndegwa Waithaka v Agnes Wangui Mathenge & 2 others [2017] eKLR where the court sstated as follows:
“In Civil cases such as this case, the standard of proof is on the balance of probabilities. This standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.”
(41) On Quantum ,it was submitted that according to Dr. Mwaura, the respondent sustained a fracture of the Tibia as well as soft tissue injuries – with a 5% physical impairment. That in the lower court the respondent submitted for Ksh. 1,000,000/= and was awarded Ksh. 850,000/= In his submissions, the Respondent relied on
i. Joseph Musee Mua Vs Julius Mbogo Mugi [2013] eKLR
ii. Francis Ndungu Wambui & 2 Others Vs VK(Minor Suing through next of friend and mother MCWK) [2019]eKLR
In HCCA E076/24
The appellant’s submissions
(42) The appellant set out the issues for determination: Whether;
i. The award of General Damages was excessive and unjustified
ii. The trial Court erred in failing to consider contributory negligence by the respondents
iii. The trial Court erred in dismissing the case against the 2 nd respondent -( Response to cross appeal)
(43) On the 1 st issue the appellant submitted that the award of Ksh. 1,200,000/= for soft tissue injuries was excessive. The appellant cited from the judgment of the trial court where it had stated;
From the foregoing I find that the plaintiff suffered soft tissue injuries . Having considered the authorities relied on by the parties in respect to quantum… and having taken into account the nature of the injuries sustained herein together with the economic times, I do award Kes. 1,200,000/= in general damages.”
(44) It is submitted that the trial court failed to align the award to the established principles for the assessment of General Damages as set out in Kigaraari v Aya (1982 88) 1 KAR 768 , which was cited to the court and where the Court of Appeal held:
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
(45) That the court ignored authorities –
Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR, where a comparable award was reduced to Kshs. 400,00 : Daniel Otieno Owino v Elizabeth Atieno Owuor [2020] eKLR , where the High Court awarded Kshs. 400,000 for multiple fractures and head injuries.
(46) The appellant relied on Section 35 (1) of the Evidence Act – That the trial court had failed to establish the veracity of the medical reports – and admitted them without having the makers prove them ; and section 48(1) of the Evidence Act
(47) On issue of Contributory Negligence – the appellant relied on section 98 (1) of the Traffic Act – to argue that the respondent was not licensed to act as a conductor; that the respondent was the 3 rd passenger and could not have worn a safety belt -; and section 100(2) of the Traffic Act & Felister Nduta Muthoni and Another Versus Attorney General [2004]eKLR
(48) On contributory negligence, the Court was urged to find that the respondent was 30% liable
(49) Responding to the cross appeal the appellant argued there was no error in the finding that the 1 st defendant was not liable – that the trial court evaluated the evidence and found that no nexus had been established between the 1 st defendant and the accident – That the mere fact that it was alleged that the 1 st defendant had taken out insurance for the Motor Vehicle was not proof of beneficial ownership or legal responsibilities. The appellant asserts that courts have held that liability cannot emanate from the insurance policy without citing any authority for the proposition. It cites Salomon versus Salomon and Co. Limited [ 1897] AC 22 on the distinct legal entity of a Limited Liability Company. That the 2 nd defendant (appellant) is a director of the 1 st – defendant
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