Damaris Muthoka Onduso VS City Star Shuttle Limited AND Enock Nchaga Ongaga

(Being an Appeal from the judgment and decree of Honourable Edgar Kagoni (PM) in Milimani Magistrates Courts CMCC No. 3014 of 2019 delivered on 18/8/2021)

Pleadings

1. The appellant has filed this appeal through a memorandum of appeal dated 16/9/2021. This appeal relates only to the issue of quantum of damages.
2. The appellant was the plaintiff before the trial court. Her claim through her plaint amended on 27/4/2021 was that she was injured following a road traffic accident that occurred on 2/5/2018. The accident occurred while she was boarding a motor vehicle registration number KCC 939E owned by the 1^st respondent and driven by the 2^nd respondent along Mombasa road near shell petrol station. It was the appellant’s case that in the process of boarding the said vehicle, the 2^nd respondent carelessly drove off thereby causing the appellant to slip and was run over by the vehicle and as a result she sustained severe injuries, loss and damage.
3. The appellant claimed for general damages for pain and suffering, special damages of KShs 1,054,978.57, future medical expenses of KShs 500,000/=, loss of earning capacity, costs of the suit and interest.
4. Liability was settled by consent of the parties in the ratio 90:10 in favour of the appellant. After trial the learned magistrate in his judgment awarded the appellant general damages Kshs 500,000/= less 10%, special damages KShs 1,006,073/= together with costs and interest and dismissed the claims for future medical expenses and loss of earning capacity.
5. The appellant was dissatisfied with that decision and has filed the present appeal based on two grounds that the learned trial magistrate erred in law and in fact by:
   1. making an inordinately low award of general damages of KShs 500,000/= for pain and suffering.
   2. dismissing the appellant’s claim for loss of earning capacity.
6. The appellant avers that in arriving at the impugned decision the learned trial magistrate failed to judiciously analyze the appellant’s evidence, submissions and authorities resulting in a decision that was manifestly unjust and untenable and tantamount to a miscarriage of justice.
7. The appellant therefore prays for this court to enhance the award of general damages and make an award for loss of future earning capacity together with costs both of the appeal and in the lower court.
8. Despite service, the respondent did not respond to the appeal. The appeal was canvassed by way of written submissions. Only the appellant’s counsel filed written submissions dated 12/4/2024.
9. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.  Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.  In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

Analysis and Determination

1. In this case, there was no hearing at all. When the matter came up for hearing on 20/5/2021, in the presence of counsels for the parties, the court recorded that “by consent submissions on quotation (I believe quantum) be filed within 21 days. The next date was for mention to confirm filing of submissions and fixing a date for judgment after which the judgment was delivered. So that there was no taking of evidence at all. In the later consent to file submissions, there was no indication that by consent, the statements recorded by the parties be adopted as their evidence for the court’s consideration or even that the documents filed in support of each party’s case be adopted as evidence to be considered by the court in assessing quantum.
2. There being no evidence tendered to support the appellant’s claim in the trial court, I find that there was no basis upon which the learned trial magistrate proceeded to assess the quantum of damages. It follows that this court has no basis upon which to reconsider, re-evaluate and re-analyse the case and arrive at its own findings and conclusions as is required under section 78 of the Civil Procedure Act and expounded in the cases of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
3. In a situation such as the present one, in the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR the High Court, Odunga, J. (as he then was) upon reviewing several authorities on the subject ordered that the file be remitted to the trial court for hearing.
4. I am persuaded to follow this decision and the others cited therein which I commend to all magistrates courts through the Office of the Registrar Magistrates Courts all over the country to read and internalize how to proceed in cases of this nature. It is disturbing to imagine what challenge of backlog of cases the courts will be thrown into, if this is the practice in some magistrates courts all over the country and the High Court has to remit all cases handled in such a manner for hearing.
5. The case to be mentioned before the head of station or any other magistrate sitting in that capacity for that matter to be assigned a magistrate to handle at the earliest. Mention on 22/7/2024 for directions on further hearing. Mention notice to issue from the Milimani Commercial Magistrates Court.
6. There will be no order for costs.

Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 10^th day of July, 2024.

In the presence of:

Muthiani (Ms) for Appellant.

N/A for the Respondent.

Eutropia Court Assistant.