Background
1. This is an appeal from the decision of the lower court in the Winam PMCC No. E158 of 2021, 2nd November 2023, in which the trial court dismissed the Appellant’s application dated 27th July 2023, seeking review of the court’s judgment of 6th July 2023.
2. The background of the dispute is that the Appellant (then a Defendant) filed a Notice of Motion application dated 27th July 2023 seeking review of the trial court’s judgment delivered on 14th July 2023. The Appellant sought, among others, the following orders:
i. THAT the court be pleased to review and or set aside its judgment dated 6th July 2023 and delivered on 14th July 2023.
ii. THAT the court be pleased to find and hold that the plaintiff was the rider of the motorcycle registration number KMDV 719A, subject of this suit.
iii. THAT the court be pleased to review its finding on liability herein and find that the plaintiff/Respondent was the sole cause of the subject accident herein.
iv. THAT the costs of this application be borne by the Plaintiff/Respondent.
3. The judgment made the subject of the review application was entered by the court in favour of the Respondent in a claim by the Respondent against the Appellant following a road traffic accident on 20th August 2021 involving the Appellant’s motor vehicle registration No. KDB 293F, Toyota Wish, and motorcycle registration number KMDV 791A, on which the Respondent was then riding.
4. The application for review was premised on the grounds that there was an error apparent on the face of record regarding the trial court’s judgment. According to the Appellant, the trial court erroneously held that the Respondent was a pillion passenger on the subject motorcycle, contrary to the evidence on record, which indicated that the Respondent was in fact the rider of the said motorcycle at the time of the accident. The Appellant therefore urged the trial court to correct all the errors arising therefrom, including the court’s apportionment of liability and the resultant quantum.
5. On 2nd November 2023, the trial court delivered its ruling on the application for review, dismissing the same and upholding the Respondent’s argument that the court, having delivered its judgment on the main matter, lacked jurisdiction to deal with the application and was now functus officio.
The Appeal & Cross-Appeal
6. Aggrieved by the decision of the trial court, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 7th November, 2023, setting forth eleven (11) grounds of appeal, which I need not reproduce here. The main grounds of appeal include that:
i. The trial magistrate erred in law and in fact in dismissing the Appellant’s application dated 27th July 2023 for review of the Court’s judgment of 6th July 2023, despite the Appellant having demonstrated that there was an error apparent on the face of the Judgment.
ii. That the trial magistrate, in its final finding, erroneously/mistakenly held that the Respondent was a pillion passenger aboard motor cycle registration number KMDV 719A, despite the court having earlier in the same judgment acknowledged that the Respondent was in fact the rider of the subject motor cycle registration number KMDV 719A, leading to an erroneous finding by the court on the issue of liability.
7. The Appellant therefore urged this Court to allow the appeal and set aside the trial court’s ruling of 2nd November 2023, and to review the trial Court’s judgment dated 6th July 2023 and delivered on 14th July 2023 to rectify the error or mistake apparent on the face of record and to rectify any additional errors arising therefrom.
8. The Respondent on its part filed a cross-appeal vide a memorandum of cross-appeal against the trial court’s judgment of 6th July 2023 (the main judgment), raising the following as the main grounds of appeal:
i. That the trial court erred in law and in fact in awarding the Respondent Kshs. 100,000/- as general damages, which is extraordinarily low.
ii. That the trial court erred in law and in fact in failing to analyze the Respondents' submissions to the Application for review and hence upholding the award of Kshs 100,000/- for General damages
9. The Respondent therefore urged this court to allow the Cross-Appeal, set aside the judgment of the trial court on quantum and replace it with a quantum award that is appropriate in the circumstances of the case, taking into account the nature of the injuries and past awards in similar cases.
10. This matter proceeded by way of written submissions. The Appellant’s submissions are dated 9th April 2024, whereas the Respondent’s submissions are dated 13th March 2024.
Analysis and Determination
11. This being a first appeal, the duty of this court is to re-evaluate and assess the evidence and make its own conclusions, keeping in mind that, unlike the appellate court, it did not have the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In Peters vs Sunday Post Limited [1958] EA 424, the Court of Appeal stated that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
12. In the case of Mbogo and Another vs. Shah [1968] EA 93, the Court of Appeal stated that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
13. I have considered the grounds of appeal, the memoranda and record of appeal, and submissions by both parties, together with cited authorities. The issues emerging for determination are;-
i. Whether the trial court erred in dismissing the Appellant’s application for review
ii. Whether the trial court made the correct finding on liability and quantum?
14. The legal basis for review in civil matters is anchored under Section 80 of the Civil Procedure Act. The said Section grants this court the power to review and provides as follows:-
“Any person who considers himself aggrieved—
a) By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
15. Further, Order 45, Rule 1 of the Civil Procedure Rules provides for the grounds for review of a decree or order in the following terms:
“Any person considering himself aggrieved—
a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.”
16. From the above, it is clear that while Section 80 of the Civil Procedure Act grants the power of review, Order 45 of the Civil Procedure Rules sets out the grounds for review. The grounds are listed as follows:-
a. Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or;
b. On account of some mistake or error apparent on the face of the record, or; and
c. Any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.
17. In the case of Republic vs Advocates Disciplinary Tribunal-Ex parte Apollo Mboya (2019)eKLR, Mativo J. (as he then was) laid down the principles for review as follows;
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression “any other sufficient reason” appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record, justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.
x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. (Emphasis mine)
18. In the instant appeal, the Appellant’s appeal relates to an alleged error by the learned trial magistrate in the judgment where the court indicated that the Appellant was a Pillion passenger, yet the evidence adduced at trial proved that he was the rider of the motorcycle. The impugned judgment of the trial court read in part that: -
“Being a Pillion passenger aboard the motor cycle the plaintiff had no control over the motorcycle registration number KMDV 791A and could do nothing within his control to avoid the accident.
The Defendant never enjoined the rider of the motorcycle registration number KMDV 791A as a third party to the suit in order for the court to determine the issue of liability between the two.
It’s for the said reasons that I find the Defendant 100% liable for the accident.”
19. I have carefully reviwed the record of appeal and note that from the evidence adduced, it was cleaer that the Respondent was a Rider of the motorcycle and not a Pillion passenger as held by the trial court in its judgment. Consequently, I am therefore satisfied that the Appellant has met the threshold for review orders on account of some mistake or error apparent on the face of the record.
20. In National Bank of Kenya Ltd. v. Ndungu Njau - Civil Appeal No.211 of 1996 (unreported), the Court of Appeal had the following to say on the question of review:-
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
21. Bearing the above in mind and taking into account the Appellant’s submissions, I find merit in his appeal and hold that the trial court erred in finding that it lacked jurisdiction to deal with the Appellant’s application for review dated 27th July 2023. This was an error on the face of the record, which was identifiable without elaborate arguments.
22. On the question whether the trial court erred in apportioning liability and quantum, I note that the trial court found the Appellant 100% liable for the accident despite evidence on record indicating that the Appellant’s motor vehicle registration number KDB 293F was hift from behind by motorcycle registration number KMDV 791A driven by the Respondent at the time.
23. From the proceedings, it is clear that the investigating officer No. 81420 PC Wesley Menza, who testified on 16th February 2023 as DW2, stated that he was on duty on the material day. That he visited the scene on the date of the accident, and from his investigations, he established that the motor vehicle registration No. KDB 293F was hit from behind by the motorcycle registration No. KMDV 791A, and that it was the motorcycle that was to blame for the accident.
24. Having established from evidence that the subject motor vehicle was then being driven/ridden by the Respondent, it was, in the circumstances, equally erroneous on the part of the trial court to find the Appellant 100% liable in the manner that it did.
25. In the circumstances, it is again the finding of this Court that the trial court’s liability was equally erroneous. Consequently, I set aside the trial court’s finding on liability and substitute it with a finding of this court holding the Respondent 100% liable for the accident.
26. On quantum of damages, the applicable principles are well settled. In Mbogo & another vs Shah (1968) EA 93 the Court of Appeal stated that;-
“The Appellate Court should not interfere with exercise of discretion of a Judge unless it is satisfied that he misdirected himself in some matter and as a result, arrived at a wrong decision or unless it is manifestly clear from the case as a whole that the Judge was clearly wrong in the exercise of discretion and that and as a result, has been a miscarriage of Justice.”
27. It is trite law that comparable injuries should attract comparable award of damages. In the case of Odinga Jactone Ouma vs Moureen Achieng Odera (2016) KEHC 2922 (KLR) the court stated that in assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards.
28. In this case, the Respondent sustained (a) head injuries involving swollen and tenderness of the head, temparal head hematoma, multiple bruises on the right forehead, swollen left cheek, swollen bruises and tenderness on the nostril, tenderness on the neck (b) tenderness on the chest and lumbar region, (c) tenderness on the left shoulder joint, (d) multiple bruises and tenderness of the left hand, (e) swollen left wrist joint, (f) fracture of the left distal ulna bone, (g) deformation of the left hand at distal region, (h) bruise and tenderness on the right hand, (i) swollen, tenderness and bruises on the left knee joint, (j) swollen and tenderness on the knee ankle joint and (k) swollen bruises tenderness on the left kneejoint.
29. I have considered the authorities submitted by the Respondent in support of the cross-appeal appeal together with the authority they relied on at the lower court. The Appellant did not file authorities in this appeal on quantum of damages.
30. In the authorities cited by the Respondent in this appeal, courts awarded damages ranging between Ksh.. 500,000/= to Kshs. 800,000/= . In the case of Civicon Limited vs Richard Njomo Omwancha & 2 others (2019) KEHC 8373 (KLR), a sum of Kshs. 450,000/- was awarded for the following injuries were sustained: swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures.
31. In the case of S A O (minor suing through next friend MOO) vs The Registered Trustees of the Anglican Church of Kenya Maseno North Parish KSM HCCA No. 95 of 2014 (2017) eKLR a sum of Kshs. 600,000/- was awarded for head injury with brain concussion and damage of the right lower mandible jaw and left cheek, blunt chest injury, multiple frictions lacerations/bruised on the right elbow joint, fracture of the right/tibia at the midshaft region, compound fracture of the left tibia/fibula at the distal metaphysic, multiple cut wounds on the left ankle joint involving thigh down to knee region, fracture left ankle joint involving malleolus bones and discolation right ankle joint. The court set aside the trial court judgment and entered a judgment in the sum of Kshs. 600,000/=.
32. Having considered the cited authorities, I am of the view that an award of Kshs. 300,000/= would have been adequate compensation for general damages if I were to find the Appellant laible in negligence for the accident. However, in view of my finding on liability, no damages is payable in the instant case.
33. In the end, I find that the award of Kshs. 100,000/- in damages in favour of the Respondent by the trial court erroneous.
34. Accordingly, I proceed and make the following orders;
a. THAT the ruling of the learned trial magistrate dated and delivered on 2nd November 2023 is hereby set aside and replaced with a decision of this Court allowing the Appellant’s Notice of Motion Application dated 27th July 2023 in the following terms:-
i. The Judgment of the trial court is hereby reviewed on account of the error apparent on the face of record regarding liability. consequently, the trial court’s finding on liability is hereby set aside and substituted with an order of this court finding the Respondent 100% liable for the accident.
ii. Owing to this court’s finding on liability, the trial court’s award of 100,000/- in general damages in favour of the Respondent is equally set aside and substituted with an award of NIL.
35. On costs, I direct that each party to bear their own costs in view of the fact that the application for review was necessitated by an error on the part of the court.
36. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 15TH DAY OF MAY 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.