Background
1. By way of a plaint dated 26th September 2017, the Respondent herein (then a Plaintiff) moved the court against the Appellants (then a Defendant) seeking the following reliefs;
a. General damages for pain and suffering and loss of amenities.
b. Special damages.
c. Costs of this suit.
d. Interest on (a) and (b) above.
e. Any other relief this Honurable court deems fit and just to grant.
2. The Respondent alleged that on 12th January 2017 or thereabout, the 1st Appellant was the registered owner of the motor vehicle registration number KBT 928A TATA Lorry, and the 2nd Defendant was the authorized driver of the said motor vehicle.
3. The Respondent further stated that on 12th January 2017 while she was lawfully standing on the foot path and on the correct side of the road along oginga Odinga street, the 2nd Appellant by himself as the driver, employee, servant or agent of the 1st Appellant negligently or recklessly drove, controlled and or managed motor vehicle Registration no. KBT 928A TATA Lorry on the path of the plaintiff thereby occasioning to the Respondent severe body injuries and to which injuries the Respondent held the Appellants jointly and severally liable.
4. The Appellants/Defendants entered appearance and filed a statement of defence dated 30th October 2017, which was later amended on 31st October 2017. In the said defence the 1st Appellant denied the contents of the plaint but alleged negligence and or contribution on the part of the Respondent. The Appellants prayed that the suit be dismissed with costs.
5. At the close of the hearing, the trial court delivered its judgment on 7th June 2022 in favour of the Plaintiff/Respondent in the sum of Kshs. 1, 851, 700= plus costs and interest. It is the said judgment and decree, which is now the subject of this appeal.
The Appeal
6. The appellants, being dissatisfied with the judgment and decree of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 29th April 2023, setting forth the following nine (9) grounds of appeal that;
i. The Learned Trial Magistrate erred in law and in apportioning liability of 100% against the Appellants without any basis in law or in fact.
ii. The Learned Magistrate erred in law and in fact by overlooking the evidence on record that showed that the Respondent was largely to blame for the incident under inquiry.
iii. The Learned Magistrate erred in law in relying on a traffic charge against the 2nd Appellant in respect of which there was no proof of a trial and a conviction of the 1st Appellant as evidence of negligence.
iv. The Learned Magistrate erred in law in finding that the Respondent had proved his case against the Appellants when the evidence on record could not support such a finding.
v. The Learned Magistrate erred in law and in fact in failing to consider the Appellants’ submissions on liability and quantum.
vi. The Learned Magistrate erred in and in fact in making an award in liability and quantum that was so excessive as to amount to an erroneous estimate of damage payable to the Respondent.
vii. The Learned Magistrate erred in law and in fact in awarding excessive general damages of Kshs. 1,500,000.00/=.
viii. The Learned Magistrate erred in law and in fact in awarding unwarranted Kshs. 350,000/= for future medical expenses.
ix. The learned magistrate erred in law and, in fact in failing to reply on the duly established legal principles in determining the award on liability and quantum and therefore arriving at the wrong decision in awarding damages that were against the weight of evidence adduced.
7. This appeal was canvassed by way of written submissions. The Appellants’ submissions is dated 26th September 2024, whereas that of the Respondent is dated 20th November 2024.
Appellants’ submissions
8. The appellants, in their submissions, contested the trial court’s findings, both on the issue of liability and on quantum.
9. On liability, the appellants submitted that the burden of proof lies with the Respondent to prove that the appellant’s driver was the one who contributed to the accident. According to the appellants, the Respondent failed to provide any proof that the appellant’s driver solely caused the accident. Further, it was submitted on behalf of the appellants that at the time of the accident, the Respondent had bent on the roadside and was buying shoes from hawkers on the street, a place not designated as a market. The Appellant asserts that this action by the appellant must have contributed to the accident.
10. The Appellant also attached the evidence of the Police officer – PW3 on the ground that the witness did not produce in court a police file or investigations report on the accident. According to the Appellants, PW3 only produced a police abstract, which did not assign blame or liability to any party for the accident.
11. Citing the decision in the case of Stat Pack Industries vs James Mbithi Munyao [2005]eKLR, the Appellants submitted that the mere fact that an accident happened is not enough to assign liability to a party. For liability to be assigned, it must be proved that the accident/injury happened and that the accident/injury was a result of someone’s negligence. The Appellants submitted that in this case, the Respondent failed to prove the particulars of liability enumerated in the plaint.
12. According to the Appellants, the trial court erred by basing its decision on liability only on the reason that the appellant had been charged with a traffic offence in connection with the traffic case and convicted. The Appellant asserted that the court was expected to examine the evidence independently, focusing on the actions and responsibilities of both parties involved in the accident.
13. The Appellants submitted that in the unlikely event that the court is to find that the Respondent proved liability, the Appellant urged this Court to apportion liability between both parties 30:70 since the appellant had a duty to exercise reasonable care on the road and they ought to shoulder some liability.
14. On quantum, the Appellants submitted that the sum of Kshs. 1,500,000/- awarded by the trial court was exorbitant and excessive in the circumstances and was way beyond the injuries sustained by the Respondent as a result of the accident.
15. Citing the case of Butt vs Khan the Appellants urged this Court, to interfere with the trial court’s finding in quantum since the damages was inordinately high and was an erroneous estimate.
16. The Appellants proposed a sum of Kshs. 400,000 as adequate compensation in general damages for the injuries suffered in the accident and cited the decision in the case of Daniel Otieno Owino & another vs Elizabeth Atieno Owuor (2020) eKLR, in support thereof.
17. The Appellants therefore prayed that;-
i. This appeal be allowed.
ii. The judgment of the subordinate court should be set aside and substituted with a judgement apportioning liability and reducing quantum appropriately.
iii. The costs of this appeal as well as those of the subordinate court be awarded to the Appellants.
Respondent’s submissions
18. The first issue that the respondent took up was the competence of the appeal. The Respondent submitted that the instant appeal, having been filed on 17th May 2024, was filed out of time and beyond the timelines granted by the Court in the Misc. Civil application No. E119 of 2022 at the instance of the appellant.
19. It was, therefore, the Respondent's position that there is no competent appeal as envisaged under Section 79G of the Civil Procedure Act. The case of County Executive Kisumu vs County Government of Kisumu (2017)eKLR was cited by the Respondent in support of this argument.
20. On liability, the Respondent supported the trial court’s findings and maintained that the 2nd Appellant was 100% liable for the accident. The Respondent asserted that the 2nd appellant, who was the driver of the 1st appellant’s motor vehicle, veered off the main road to the pavement to where the Respondent was walking, thereby hitting her from behind. The Respondent relied on the case of Patrick Wambua Matia vs Nathan Kwava & another ( HCCA No. 3 of 2018-Machakos) in support of her argument.
21. On quantum, the Respondent submitted that the amount awarded by the trial court was low, taking into account the injuries suffered by the Respondent as a result of the accident. Citing the case of Mutua vs Muthini Civil appeal No E003 of 2022 (2022) KEHC 1482, the Respondent, however, urged the Court to maintain the award and dismiss the instant appeal, with costs.
Analysis and Determination
22. I have considered the memorandum of appeal, the grounds relied upon, the rival submissions by both parties, and the cited authorities. I find the sole issue for determination is whether the trial court erred in its finding on liability and quantum.
23. I am conscious that this being a first appellate court, I must re-evaluate and re-analyze the evidence adduced before the Trial court and arrive at my independent findings. This principle was elaborated in the case of Abok James Odera T/A A.J Odera & Associates vs John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, where the Court of Appeal held that; -
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
24. On the issue of liability, the appellants submitted that the trial court erred in finding that the 2nd Appellant was 100% liable for the accident. The appellant urged the court to apportion liability at 30:70, with 70% borne by the Respondent.
25. From the proceedings, I note that PW1-Eunice Anyango, in her evidence before the trial court, stated that while she was standing along Oginga Odinga street by the roadside on the foothpath, she was knocked by motor vehicle registration no. KBT 928A Tata Lorry and suatined serious injuries. Her evidence was corroborated by DW1-Daniel Owino Otieno who stated that the plaintiff was not on the road but by the side.
26. It was, therefore, not in dispute that the Respondent was standing on the pavement. This fact is confirmed by the evidence of DW1, the driver of the motor vehicle, that the plaintiff was not on the road but by the side. The Respondent cannot therefore be faulted for contributing to the occurrence of the accident since she was knocked on the side of the road.
27. In the circumstances, I find no material warranting my interference with the finding of the trial court on the issue of liability.
28. Consequently, based on the evidence tendered by the parties at trial, I do find, as the trial court did, that the 2nd Appellant was 100% liable for the accident, and the 1st Appellant, being the registered owner of the subject vehicle, vicariously liable.
29. On the issue of quantum, I am guided by the case of John Evan Gicheru vs Andrew Morton another (2005) KECA 81 KLR, where it was held that;
“It is trite that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
30. In the case of Bashir Ahmed Butt vs Uwais Ahmed Khan (1982-88) KAR the court held that:
“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 either inordinately high or low.”
31. From the record of appeal, I note that the Respondent tendered evidence before the trial court that she sustained the following injuries:
i. Severe injury on the right hand with cut wounds;
ii. Severe injury on the back;
iii. Severe injury on the left leg ankle, joint neck, with cut wounds; and
iv. Serious fracture on the left tibia.
32. The injuries were confirmed by the Doctor’s report dated 16th May 2018, where it is indicated that the Respondent sustained a left tibia fracture, lower back injury, and multiple bruises, especially on both knees.
33. It is trite law that comparable injuries should attract comparable was of damages. This was the position held by the Court of Appeal in Odinga Jacktone Ouma vs Moureen Achieng Odera (2016) eKLR, where it stated that:
“General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR.”
34. This court has had the opportunity to consider several decisions on this subject for instance, the decision in the case of in Dennis Matagaro vs NKO (Minor suing through next friend and father WOO) (2021) eKLR, where the court upheld an award Kshs. 700,000/= where it had been established that the plaintiff sustained a mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms, and a fracture of the left tibia and fibula.
35. In the case of Daniel Mutembei vs Maurice Ochieng Odoyo (2019) eKLR, the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia. On appeal an award of Ksh 1, 600, 000/= was reduced to Ksh 800, 000/=.
36. In the case of Joseph Mwangi Thuita vs Joyce Mwole (2018) eKLR, the plaintiff suffered injuries of fractured right femur, compound fracture of right tibia and fibula, shortening of the right leg, and episodic pain on the right thigh with inability to walk without support. The court awarded Ksh 700,000/= in general damages.
37. Having considered the aforementioned authorities as well as those cited by parties, I am of the considered view that an award of Kshs. 1,500,000/= by the trial court was excessively high in the circumstances. It is my finding that a sum of Kshs. 800,000/= would be adequate compensation for the injuries suatained by the Respondent bearing in mind the decisions were delivered in 2021 and 2018.
38. As regards the award of special damages and future medical expenses, since the same were never challenged in this appeal this court will not interfere with the award by the trial court.
39. Before I pen off, it is critical that I address the Respondent’s submissions that the appeal was incompetent for having been filed late and without the leave of the court. While it is my finding that the instant appeal was indeed filed outside the timelines directed by the Court in the Kisumu HC Misc. Civil application No. E119 of 2022, I am of the considered view that it is critical that disputes are best resolved by having them determined on merits as opposed to procedural technicalities.
40. Further, Article 159 of the Constitution of Kenya 2010 requires the Court to be more concerned with substance justice where possible instead of giving undue regard to technicalities, and if this Appeal was not heard on merit, the Appellants would have been denied the benefit of substantive justice.
Final Orders
41. The upshot of the foregoing is that this appeal succeeds as follows:-
a. The trial court's finding on liability is upheld.
b. The award of general damages of Kshs. 1, 500,000/= is set aside and substituted with an award of Kshs. 800,000/=.
c. Special damages and future medical expenses of Kshs. 350,000/= is left undisturbed.
42. The Appeal having partially succeeded, I direct that each party is to bear their own costs.
43. It is so ordered.
DATED and DELIVERED IN VIRTUAL COURT
THIS 13TH DAY OF MARCH 2025
ADO MOSES
JUDGE
In the presence of:-
Moses – Court Assistant
………………for the Appellant
…………………for the Respondent