1. The Appellant is aggrieved by the judgment of the Small Claims Court dated 17.12.2023, where it found him fully liable for causing the accident resulting in injuries to the Respondent. The court awarded the Respondent Kshs. 700,000.00 and Kshs. 16,650.00 as general and special damages respectively. The thrust of the Appellant’s appeal against the judgment is that the trial court erred in finding the Appellant fully liable and without evidence and that the general damages awarded were inordinately high.
2. The Respondent’s claim as set out in the Subordinate Court was that on 03.07.2023 at around 10.00pm, he was alighting from motor vehicle registration number KAT 202G along Kangundo Road, Chokaa area when the Respondent’s driver negligently managed or controlled motor vehicle registration number KCJ 178J causing it to collide with another motor vehicle registration number KAT 202G. The Respondent avers that he was caught up in the collision and as result sustained serious injuries.
3. In its Statement of Defence, the Appellant averred that the Respondent was negligent in the manner in which he managed and or controlled motor vehicle registration number KCJ 178. In the particulars of negligence, he claimed that the Respondent was to blame for failing to take care of his own safety by jumping off the road.
4. At hearing the Appellant and Respondent testified. The Respondent also called Dr G. K Mwaura (PW 1) and PC Samuel Shauri (PW 2) as his witnesses. The Adjudicator considered the evidence and held that Appellant was fully liable as he admitted that a collision took place and that a person was injured as a result. The court believed the Respondent’s testimony and rejected the Appellant’s defence that the Respondent was to blame for his own misfortune.
5. The court’s jurisdiction in dealing with appeals from the Small Claims Court is limited by section 38(1) of the Small Claims Court Act, 2016 which provides that ‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ A court limited to matters of law is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR).
6. Going through the record, I cannot fault the Adjudicator’s conclusions. The Appellant admitted that there was collision. He stated as follows in his witness statement:
On reaching Chokaa stage slightly past milango stage, there was a vehicle boarding passengers so I had to slightly step on the yellow line to pass through which I successfully did. From the opposite direction there was an oncoming Nissan Matutu, and I had assessed well it should have gone past the white line since a passenger was alighting but it came back to the road immediately and that is how we were involved in the accident.
7. From his own narration, the Appellant is clear that a collision took place. His own version corroborates the Respondent’s version of events that he was alighting from the vehicle when the collision took place. The only issue then is whether the Respondent could be blamed for the accident. The trial magistrate held that he could not be found liable as he was not in control of either vehicle. He also discounted the fact that the Respondent’s case was inconsistent with his pleading as the reference to a ‘passenger’ was in respect of the vehicle he was alighting from. From the totality of evidence, the Adjudicator came to a conclusion that could be supported by the evidence on record. It is not a perverse decision hence I decline to intervene.
8. Turning to the issue of quantum of damages, the Respondent was awarded Kshs. 700,000.00 as general damages. Dr G. K. Mwaura produced his report dated 03.08.2021. He noted that the Respondent suffered a fracture of the right tibia and fibula and a swollen, painful and tender left ankle which he classified as grievous harm. He observed that at the time of examination, the Respondent was still on crutches and that the healing was expected although the Respondent would not be able to run or walk for a long time. He assessed permanent disability of the right lower limb at 5%.
9. In order to assist the court make an award, the Respondent proposed Kshs. 1,000.000.00 as general damages based on Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR where the court upheld an award of Kshs. 700,000.00 where the claimant suffered a compound fracture of the right distal tibia and fibula and cut wounds on the scalp, chest and lower lip. It also cited Stephen Mutisya Muumbi v Peter Mutuku Katuli [2008] eKLR where the claimant was awarded Kshs. 600,000.00 for sustaining a compound fracture of the left tibia/fibula, injuries to the lower limb with persistent pain at the ankle joint, he was unable to walk for a long time for long distances. The Appellant did not cite any decisions to assist the Adjudicator.
10. In coming to the conclusion that the Kshs. 700,000.00 was sufficient to compensate the Appellant, Adjudicator considered several cases: Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR where the claimant sustained a fracture of the right tibia leg bone malleolus and right fibula and a blunt injury to the right ankle. His disability was assessed at 3% and was awarded Kshs. 500,000.00, Paul Otieno Obuya and Another v Joshua Atuti and Another [2016]eKLR where initial award of Kshs. 900,000.00 was reduced to Kshs. 700,000.00 on account of a compound fracture of the right tibia and fibula while in Moses Karimi and Another v GKJ (suing as the next friend of JK minor) [2019] eKLR the court awarded Kshs. 800,000.00 on appeal the claimant who suffered a fracture of the right upper 1/3 tibia and fibula and bruises on the chin.
11. Considering the nature of the injuries and the cases cited before the trial court, the Appellant has not demonstrated that the court should interfere with the award in accordance with the principle set out in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows:
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was inordinately high or low.
12. For the reasons I have outlined, I hold that the Appellant’s appeal fails and is dismissed. The Appellant shall pay the Respondent costs of Kshs. 40,000.000.
DATED and DELIVERED at NAIROBI this 22nd day of DECEMBER 2023.
D.S. MAJANJA
JUDGE
2. The Respondent’s claim as set out in the Subordinate Court was that on 03.07.2023 at around 10.00pm, he was alighting from motor vehicle registration number KAT 202G along Kangundo Road, Chokaa area when the Respondent’s driver negligently managed or controlled motor vehicle registration number KCJ 178J causing it to collide with another motor vehicle registration number KAT 202G. The Respondent avers that he was caught up in the collision and as result sustained serious injuries.
3. In its Statement of Defence, the Appellant averred that the Respondent was negligent in the manner in which he managed and or controlled motor vehicle registration number KCJ 178. In the particulars of negligence, he claimed that the Respondent was to blame for failing to take care of his own safety by jumping off the road.
4. At hearing the Appellant and Respondent testified. The Respondent also called Dr G. K Mwaura (PW 1) and PC Samuel Shauri (PW 2) as his witnesses. The Adjudicator considered the evidence and held that Appellant was fully liable as he admitted that a collision took place and that a person was injured as a result. The court believed the Respondent’s testimony and rejected the Appellant’s defence that the Respondent was to blame for his own misfortune.
5. The court’s jurisdiction in dealing with appeals from the Small Claims Court is limited by section 38(1) of the Small Claims Court Act, 2016 which provides that ‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ A court limited to matters of law is not permitted to substitute the subordinate court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR).
6. Going through the record, I cannot fault the Adjudicator’s conclusions. The Appellant admitted that there was collision. He stated as follows in his witness statement:
On reaching Chokaa stage slightly past milango stage, there was a vehicle boarding passengers so I had to slightly step on the yellow line to pass through which I successfully did. From the opposite direction there was an oncoming Nissan Matutu, and I had assessed well it should have gone past the white line since a passenger was alighting but it came back to the road immediately and that is how we were involved in the accident.
7. From his own narration, the Appellant is clear that a collision took place. His own version corroborates the Respondent’s version of events that he was alighting from the vehicle when the collision took place. The only issue then is whether the Respondent could be blamed for the accident. The trial magistrate held that he could not be found liable as he was not in control of either vehicle. He also discounted the fact that the Respondent’s case was inconsistent with his pleading as the reference to a ‘passenger’ was in respect of the vehicle he was alighting from. From the totality of evidence, the Adjudicator came to a conclusion that could be supported by the evidence on record. It is not a perverse decision hence I decline to intervene.
8. Turning to the issue of quantum of damages, the Respondent was awarded Kshs. 700,000.00 as general damages. Dr G. K. Mwaura produced his report dated 03.08.2021. He noted that the Respondent suffered a fracture of the right tibia and fibula and a swollen, painful and tender left ankle which he classified as grievous harm. He observed that at the time of examination, the Respondent was still on crutches and that the healing was expected although the Respondent would not be able to run or walk for a long time. He assessed permanent disability of the right lower limb at 5%.
9. In order to assist the court make an award, the Respondent proposed Kshs. 1,000.000.00 as general damages based on Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR where the court upheld an award of Kshs. 700,000.00 where the claimant suffered a compound fracture of the right distal tibia and fibula and cut wounds on the scalp, chest and lower lip. It also cited Stephen Mutisya Muumbi v Peter Mutuku Katuli [2008] eKLR where the claimant was awarded Kshs. 600,000.00 for sustaining a compound fracture of the left tibia/fibula, injuries to the lower limb with persistent pain at the ankle joint, he was unable to walk for a long time for long distances. The Appellant did not cite any decisions to assist the Adjudicator.
10. In coming to the conclusion that the Kshs. 700,000.00 was sufficient to compensate the Appellant, Adjudicator considered several cases: Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR where the claimant sustained a fracture of the right tibia leg bone malleolus and right fibula and a blunt injury to the right ankle. His disability was assessed at 3% and was awarded Kshs. 500,000.00, Paul Otieno Obuya and Another v Joshua Atuti and Another [2016]eKLR where initial award of Kshs. 900,000.00 was reduced to Kshs. 700,000.00 on account of a compound fracture of the right tibia and fibula while in Moses Karimi and Another v GKJ (suing as the next friend of JK minor) [2019] eKLR the court awarded Kshs. 800,000.00 on appeal the claimant who suffered a fracture of the right upper 1/3 tibia and fibula and bruises on the chin.
11. Considering the nature of the injuries and the cases cited before the trial court, the Appellant has not demonstrated that the court should interfere with the award in accordance with the principle set out in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 as follows:
An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was inordinately high or low.
12. For the reasons I have outlined, I hold that the Appellant’s appeal fails and is dismissed. The Appellant shall pay the Respondent costs of Kshs. 40,000.000.
DATED and DELIVERED at NAIROBI this 22nd day of DECEMBER 2023.
D.S. MAJANJA
JUDGE