JUDGMENT
1. By a plaint dated 10/2/2021 and amended on 1/7/2021 the plaintiff Bonface Katambo filed suit against the defendant Samuel Omwega Aunga .
2. His claim was that on the material date he was riding as a pillion passenger motorcycle registration no. KMFG 278T when the defendant so negligently above motor vehicle registration NO. KCN 746 that he lost control and hit the motorcycle as a result of which the plaintiff sustained injuries : particulars of injuries ;
a) Fractured bimalleolus left ankle joint
b) Bruises on the right forehead
c) injuries to the right thumb
d) Soft tissues injuries to the left ankle
3. He claimed to have suffered loss and damage as follows;
i. Motor vehicle search certificate Kshs. 550
ii. Medical report fees Kshs. 2,500
iii. Medical expenses Kshs. 9,550
iv. Travelling expenses Kshs. 15,400
Total Kshs. 28,000
4. He sought the following orders;
a) General damages
b) Special damages as pleaded in paragraph 5 of the plaint
c) Interest on (a) and (b) above at court rate
d) Cost of suit
e) Any other relief which this honourable court deems fit to grant
5. The defendant denied all the allegations through the defence filed on 29/4/2021.
6. The defendant put the plaintiff to strict proof of all the allegations and claims, and blamed the plaintiff for the accident.
7. The plaintiff filed a reply to the defence and denied the said allegations and claims.
8. The matter went through a full trial. The plaintiff called 2 witnesses - and produced several documents as exhibits - the defendant testified and called one witness.
9. The learned trial court upon hearing the evidence in his judgment of 3/8/2022 made the following findings;
Who was to blame for the accident. The facts of the case is that the accident happened when the defendant was exiting the parking bay at the Ngooni supermarket that while his vehicle was halfway on the road he was hit on the front wheel area by the Plaintiff.
Ngooni area is a busy place, my view is that had the plaintiff been riding the motorcycle at a reasonable speed, he would have managed the motorcycle by braking and avoiding the accident. But due to high speed he rammed into the motor vehicle. It was also established that that the plaintiff was not a licenced driver a reason that may have contributed to the accident. The evidence by DW1 the officer who investigated the case was that both the rider and the driver were to blame for the accident.
Based on the evidence on record I find both the plaintiff and the defendant equally to blame for the accident and apportion liability at 50:50.
10. On quantum of damages he made reference to the submissions of the parties thus :-
He sought for Kshs. 650,000 as general damages relying in the case at the Malindi High Court Civil Appeal No. 32 of 2015 where the judge confirmed the award of Kshs. 500,000 for the following;
i. Fracture of the left tibia leg bone (medical malleolus)
ii. Blunt object injury to the chest and lower limb
iii. Bruises on the left forearm, right foot and right big toe.
I find injuries in the above cited case similar to those in the instant case.
On his part the defendant submitted an ward of Kshs. 250,000 for the injuries . He cited the case in the High Court of Kenya at Kisumu where justice TW Cherere set aside a dismissal order and substituted it with an award of Kshs. 200,000 for the following injuries;
a) Fracture of left tibia and fibula that healed with a 2 cm scar.
b) Tenderness on the left leg.
11. The learned trail court assessed the general damages at Kshs. 500,00 and special damages of Kshs. 28,000 less 50% it came to Kshs. 278,000.
12. He directed each party to bear its own costs.
13. Aggrieved by the judgement - the plaintiff filed this appeal on the following grounds.
1) The learned magistrate erred in law and fact by holding against the weight of the evidence presented by the plaintiff that the plaintiff was 50% to blame for the accident subject matter.
2) The learned magistrate erred in law and fact by failing to consider the plaintiffs submissions on liability thus failing to find the defendant 100% liable for the accident subject matter.
3) The learned magistrate erred in law and fact in unfairly and unjustly exercising the discretion by failing to award costs to the appellant despite the fact the appellant had proved his case on a balance of probability.
4) The learned magistrate erred in law and fact by finding that the deceased was guilty of contributory negligence against the weight of the evidence presented by the plaintiffs.
5) The learned magistrate erred in law and fact by ignoring the plaintiff’s submissions.
14. The appellant seeks that the judgement of Hon. Sagero SPM be set aside, the judgment be entered, on liability at 100% against the defendant, and the appellant to be awarded the costs of the appeal.
15. Parties filed written submission - the appellant’s dated 12/4/2024 through the firm of Motoko Wampum Associates.
16. Referring to Seller & Another Vs Associated Motor Boat Company Ltd [1968] EA 123; Peter Sunday Post Ltd [1958] EA 424 – the appellant reminded this court of its duty as a 1st appellate court.
This is a first appeal to the High Court. It is therefore an appeal on both facts and the law. The duty of a first appellate court is well settled. It entails revisiting, re-evaluating and considering a fresh the evidence presented before the trial court for the appellate court to make its own independent conclusions bearing in mind that unlike the trial court, it did not have the benefit of seeing or hearing the witnesses and give due allowance for that disadvantage.
17. It was further submitted that this court could interfere with the decision of the lower court’s finding of facts of it was clear that the court had arrived at the finding on no evidence, or based on a misrepresentation of evidence, on wrong legal principles - he relied on Sumaria & Another V Allied Industrial Limited, [2007] KLR 1: Makube V Nyamoro, (1983) KLR 403 .
18. He also relied on Khatambi & another v Mahithi & Another [1968]EA 70 where it was held that : - It is well settled that where a trial judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial.”
19. He set out issues for determination as follows;
1. Did the learned trial magistrate err in law and facts by holding the appellant 50% liable for the accident and/or in apportioning liability to the plaintiff?.
2. Did the learned magistrate err in law and fact in unfairly and unjustly exercising his discretion by failing to award costs to the appellant despite the fact the appellant had proved his case on a balance of probability?.
20. The appellant’s argument on the 1st issue was that according to all the witnesses it was the driver of the motor vehicle who exited the parking lot without care and attention and knocked the rider of the motorcycle.
That the police officer blamed the driver, and that charges were to be preferred against the defendant/respondent.
21. The appellant cited the respondent’s own testimony where he stated
“ As I exited the vehicle was facing the road, and the plaintiff was approaching me, half of the vehicle had joined the road, in my estimation I thought he had seen the vehicle could stop, unfortunately when he saw the car he accelerated.”
22. It has also been submitted that the respondent did not plead negligence on the part of the rider of the motorcycle, specifically that it was not pleaded that he accelerated when he saw the in vehicle . I was urged to find that the appellant was bound by his pleadings, and referred to , Independent Electoral and Boundaries Commission & Another Vs Stephen Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs Nigeria Breweries PLC SC 91/2002 stating
In the first, Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002, Judge Pius Aderemi JSC expressed himself, and we would readily agree, as follows;“..it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”
Other judges on the case expressed themselves in similar terms, with Judge Christopher Mitchell JSC rendering himself thus; “In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
23. It was also submitted that during the trial the respondent did not testify that the rider was speeding or and the manner of his alleged acceleration, on seeing the respondent’s motor vehicle in the road,and neither was itraised in cross-examination see; Duncan Maweu Mutiso V Edwin Owiti Owanga [2018] eKLR.
It was submitted that the fact that the rider did not have a licence has no bearing on liability see Secilina Gatavi Peter V Jasper Gitonga Mugambi [2020] eKLR where the court held as follows: “21. The fact that the appellant had not worn a helmet or a reflective jacket and that PW2 had not taken out mandatory insurance cover for the motorcycle and did not have a driving licence at the material time may be matters that would constitute traffic offences but they had no bearing on causation of the accident in question. 22. Besides, the respondent admitted in cross-examination that as a result of the accident, , he was charged and convicted of the offence of careless driving. This admission coupled by the rest of the evidence regarding how the accident occurred leaves no doubt that the respondent was wholly to blame for the accident. The learned trial magistrate therefore erred in apportioning liability on the appellant when the evidence clearly showed that the accident was solely caused by the respondent’s carelessness in driving motor vehicle registration number KBL 093W.”
24. In further submissions the court’s attention was to the trial court’s judgment to the effect that the inability to stop by the rider was an indication of speeding , yet there was on record the uncontroverted evidence of the PW3’s evidence to the effect the motor cycle rider was driving at 20km/hr. that it was not uncommon for motorcyclists and riders to panic when an accident was about to happen, and to step on the accelerator instead of the brakes, and that such confusion was a normal reaction by human beings on seeing danger and not a sign of negligence.
25. On the issue of costs the appellant relied Simon Waweru Muga v Alice Mwongeli Munyao [2020] eKLR where the lower court had apportioned liability in the ratio of 50%:50% and failed to award costs, the high court stated the following; “5. Being dissatisfied with that finding and decision, the appellant filed this appeal on 29.11.2018 vide a Memorandum of Appeal on an even date that in essence faulted the trial magistrate for …… apportioning liability in the ration of 50%:50% and failed to award costs which is unrealistic in the circumstances against the costs and damages incurred by the appellant , Page 7 of 96. The appellant prayed that the appeal be allowed and judgment against the appellant be set aside, that the order apportioning liability at 50:50 and failing to award costs be reviewed and or revised accordingly and judgment be entered in favour of the appellant; the costs of the appeal and the costs of the lower court be granted to the appellant. 25. On the evidence, the law and submissions, I find that the trial magistrate erred in allowing the parties to bear their own costs. The appellant ought to have been awarded costs of the suit since he had proved his case on balance of probabilities against the respondent. Had the converse been the case then the suit would have been dismissed.”
26. Relying on Njeru & Another Vs Nyakundi (Civil Appeal)E021/21) [2022] KEHC 1363 (KLR) –it was submitted for the appellant that the person driving on the highway had the right of way - and that the person entering the highway - had a higher duty of care.
27. The respondent’s submissions were filed on 6/5/2024.
28. The respondent set down 2 issues for determination;
1. Whether the trial court erred in finding that contributory negligence was 50:50
2. Whether the court erred in failing to award the appellant costs.
29. Relying on the Court of Appeal in Mwangi Vs Wambungu [1984]eKLR 453 the respondent urged the court not to interfere with the subordinate court judgement.
30. It was also submitted that the respondent had pleaded at para 7 of the defence dated 20/4/2021 that the plaintiff was negligence, that the rider was speeding and the motorcycle was driven by an incompetent driver.
31. It was further submitted that the appellant gave inconsistent evidence. That he said he was riding his motor cycle on the material day and he also said he was a passenger on the said motorcycle. On cross-examination he said he was the pillion passenger and he did not known the rider. That the rider jumped off the motor bike and ran away. He said he was not the rider. He said he did not visit the scene but still blamed the driver.
32. It was further submitted that the DW1 - The police officer who visited the scene testified that plaintiff was the rider of the motor cycle. He said the report he received was that the driver of the motor vehicle was entering the road from the parking lot of the supermarket where motorcycle rammed into the front of the motor vehicle. He confirmed that the plaintiff was the rider of the motorcycle but did not have a licence - that he stated that to some level the rider contributed to the accident.
33. The respondent relied on the trial courts record on the finding that the plaintiff was the rider of the motorcycle on the evidence of he police officer and DW1 and that the plaintiff did not have the training on how to ride a m/cycle and did not also have a licence.
34. The respondent also cited from the record of the trial court on the finding that the evidence on record was caer that both the rider and the driver of the m/vehicle were to blame for the accident.
35. It was submitted that the evidence on record clearly indicated that the plaintiff/ appellant contributed to the accident because he was not competent to ride the motorcycle – that is why he was unable to do anything to avoid the accident.
36. On costs - the respondent submitted - that the plaintiff caused the accident, and tried to steal a match against the defendant by claiming he was a pillion passenger - he came with dirty hands and did not deserve the costs .
37. The only issue for determination is whether the appeal has merit on the question of apportionment of liability and costs.
38. The plaintiff/appellant came to the court claiming he was a pillion passenger on the m/cycle that was involved in the accident and that the rider ran away.
39. But by his evidence he was on his own motorcycle. So, if he was not the one riding, he ought to have known the rider. The trial magistrate upon hearing the evidence including that of the police officer who visited the scene concluded that the plaintiff/appellant was the rider. One can see that the appellant had approached the court with a view of hiding this fact. I agree with the finding of the trial court and hold that the appellant was the rider.
40. It is not in dispute that there was a collision between the motor cycle and the motor vehicle. The police officer who visited the scene was of the view that even the cyclist contributed to the accident - to some level.
41. What was this level of contribution? It was submitted that the respondent had not pleaded any negligence on the part of the appellant - However a perusal of the defence shows that the defendant pleaded negligence on the part of the rider. That the rider was speeding, and that he was incompetent.
42. The circumstances of the case are such that the competence of the rider comes to question, if he was not licenced to be on the public road, then the possibility that he may not know what to do in the face of an imminent danger. Indeed, his counsel submitted that it was not strange from a rider to panic and instead of stepping on breaks, to step on the accelerator. The trial court analysed this evidence and drew the conclusion that there was contribution from each of tge parties. I have analysed the sam evidence and it draws ro the inevitable conclusion that both the appellant and the responsent contributed to the accident. One in the manner he entered the road, the other in his incompetence and being on a public road without any training on how to ride a m/bike on a public road. He did nothing to avoid the accident.
43. I am satisfied with the finding of the trial court that both the rider and the driver contributed to the accident and hold as such.
44. Was there an error to arrive at 50:50 contribution? In my consideration of the evidence - it was evident that a collision occurred and there was no clear evidence of the outright culprit. It is settled that when such evidence is not available - it is only fair that both parties bear equal responsibility, I find no error in the trial court findings.
45. Regarding costs , was there error in not awarding the winning party the costs? Costs follow the event. The trial court did not give reasons for not granting the plaintiff at least some costs because the plaintiff was successful. Whether or not it is the alleged finding that he was the rider or any other reason - I did not see any explanation and it is for that reason that I find the need to interfere with that part of the judgment.
46. The plaintiff deserved the costs plus interest in the lower court.
47. Hence the appeal is partly successful only on the issue of costs in the subordinate court.
48. In the end the Judgment of the subordinate court is upheld except on the issue of costs. The respondent will have costs and interest at court rates in the subordinate court and half the costs of this appeal.
49. Orders accordingly.
Dated, signed and delivered virtually on 28th March 2025
Mumbua T Matheka
Judge