'(Being an appeal from the Judgment delivered by Hon. P.K. MUTAI ( PM )
on 6TH December 2023 in KISII CMCC NO E470 of 2022)
BACKGROUND
1. This Appeal arises from the Judgment delivered on 6th December 2023 in Kisii CMCC NO 154 of 2023 whereby the Appellant was found to have been 100% liable for the injuries sustained by the Respondent, in whose favor an award of General damages of Ksh 350,000/= and Ksh 11,850 Special damages
2. Aggrieved by the decision of the trial court, the Appellants filed this appeal based on the grounds that;
a) The learned Magistrate erred in law and fact by apportioning 100% liability to the Appellant despite the Respondent herein not proving the Negligence on the part of the Appellant.
b) The learned magistrate erred in law and in Fact in finding in favour of the Respondent against the Appellant when there was no credible evidence or proof of Negligence on the part of the Appellant.
c) The learned Magistrate erred in law and fact in the assessment of quantum by awarding Kshs 350 000/= for general damages, an award which was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the plaintiff
d) The learned magistrate erred in law and Fact in failing to pay regard to the quantum that is appropriate and applicable in similar cases as the case he was deciding.
e) The learned Magistrate’s exercise of discretion in the assessment of quantum was injudicious
f) The learned magistrate erred in law and Fact in failing to consider the Appellants'' submissions on quantum by completely disregarding the submissions and authority of the Appellants and as a result, he arrived at an unjustified decision on quantum.
3. The background of the matter is that the Respondent filed a suit against the Appellant, vide a plaint dated 6th May 2022, seeking Special damages of Kshs 14,170, general damages for pain and suffering, and the costs of the suit, as well as interest. To support his claim, the Respondent alleged that on or about 28th December 2021, he was lawfully travelling as a pillion passenger aboard a motorcycle KMDX 051W along Kisii Kilgoris Road at Getare area the driver, agent/employee so negligently drove, managed and/controlled or vehicle number KCW 109X that he permitted the same to lose control and violently hit the said Motorcycle from behind and pushed them to the far right side of the road thus causing accident and as a result the Respondent sustained severe bodily injuries and thus prayed that the Appellants to be held liable for the tortious acts and ommisions committed on him.
4. In its Defense, the Appellant denied allegations against it and averred that the accident was not in any way due to the negligence of the defendant, and if it had occurred and it was substantially contributed to by the negligence of the Respondent herein.
Analysis and Determination
5. This a first appellate court and it is the duty of this court is to re-evaluate the evidence on record and come to its own conclusion bearing in mind that it did not have an opportunity to see the witnesses as was held in the case of as was held in the case of Gitobu Imanyara & 2 others V Attorney General (2016) eKLR, to wit;‘’…….. 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 allowances in this respect”.
Whether the trial court erred in its finding that the Applicant was 100% liable for the offense.
6. According to the Appellant, the trial court erred in finding that he was 100% liable to the accident that led to the injuries suffered by the Respondent. The appellant’s case as per its pleadings is that the Motor cycle veered off it’s lane and hit the motor vehicle on it’s path. In the alternative it was pleaded that the motor cycle contributed to the accident. The appellant did not call any witness The case of the respondent is that the motor cycle had indicated to turn to the to the right when the vehicle hit it from behind. This is Supported by the evidence of PW1 and PW4. PW4 said that the case was pending investigations. The said witnesses adduce cogent evidence which was not shaken on cross-examination and was not displaced by way of evidence as the appellant called no witness. . It is clear that the proximate cause of the accident was that the appellant or his driver failed to control the vehicle as a result of which it hit the motor cycle from behind . It is trite law that hitting anther vehicle from behind is prima facie evidence of negligence as vehicles are supposed to keep safe distance behind others as per the high way code . No liability can be apportioned to the rider in the circumstances .
7. I have considered the two positions held by the two parties as well as the findings of trial magistrate that I have summarized herein above and in my view, the learned trial magistrate did not err when he apportioned 100% liability on the Respondent for reasons that there was negligence on the Appellants'' part.
Whether the learned trial magistrate erred in law in the assessment of quantum damages was high inordinately in the circumstances of the case.
8. It is trite law that this court has the solemn duty to examine and re-evaluate the evidence on record so as to arrive at its own conclusion, the court has to take into consideration that it did not have the opportunity to observe the demeanor of the witnesses – Peter –Vs- Sunday pest (1958) EA 249.
9. The Appellant argues that the award is inordinately high and that the court should reduce it to Kshs. 100,000. Assessment of damages is at the discretion of the trial court, and the appellate court will only disturb the discretion where the trial court committed an error in principle or the award is completely erroneous estimate of damages. The Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987)KLR 30 stated that: -
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
See also; Gabriel Maina Mungai v Jane Wanjiku Mwaura [2019] eKLR
10. Also in the case of Butt vs Khan (1977) 1 KAR it was stated that:-
“An Appellate court will not disturb an award for damages unless it is 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.”
According to the Plaint, the Respondent herein sustained the following injuries;
1. Deep cut wounds on the scalp.
2. Blunt trauma to the chest.
3. Bruises on the face.
4. Blunt trauma to the abdomen.
5. Blunt trauma to the right hip.
11. In deciding whether to disturb quantum given by the lower court, this court is aware of its limits, that in exercise of its discretion, the exercise should be done judiciously to ensure that the award is not too high or too low as to be an erroneous estimate of damages.
12. In reaching the award , the . trial court relied on the case of on the case of John Mendwa Kuti Vs Ibrahim Kunyaga [2020] eKLR where the Respondent had sustained serious head injuries, multiple bruises on the scalp, injuries on the shoulder among other injuries. The Court made an award of Ksh 350,000/= as general damages. The appellantsubmitted that the general damages were excessive and suggested an awanrd of ksh. Under this head while citing the case of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [20211 eKLR where the court upheld an award of Kshs. 60,000/ = to the Plaintiff who suffered blunt object injury to the head and neck, thorax, abdomen and limbs.
12. The respondent supported the award an relied on the case In Francis Ochieng & another v Alice Kajimba [2015] eKLR The respondent sustained multiple soft tissue injuries which included head injuries, sub-conjunctival hemorrhage and periorbital sycosis on both eye which are more or less similar to those sustained by the plaintiff herein. The court awarded a sum of Ksh.350, 000/= as compensation for the injuries, pain and suffering. Dr Morebu (Pw2) testified that the respondent sustained which he classified as harm .
13. Though the Appellant claimed that the trial court erred in ignoring the Authorities in the Appellants Submissions that were guiding in the amount of quantum, I find no merit in this submission as the learned trial magistrate in his judgment clearly indicated that he had considered the Authorities cited by both parties.
14. Having evaluated the evidence on record I am satisfied that the award of Ksh.350,000/= is not so high or so low as to attract the intervention of this court also considering the inflation rate in the country. The upshot is that the appellant is 100% liable in negligence,
Conclusion
15. I find no merit in the Appeal and thus I proceed to dismiss the same with costs to the Respondents
T.A ODERA
JUDGE
25.7.25
DELIVERED VIRTUALLY IN THE PRESENCE OF MISS MUNI FOR THE APPELLANT N/A FOR RESPONDENT CA -KIPCHIRCHIR
'
on 6TH December 2023 in KISII CMCC NO E470 of 2022)
BACKGROUND
1. This Appeal arises from the Judgment delivered on 6th December 2023 in Kisii CMCC NO 154 of 2023 whereby the Appellant was found to have been 100% liable for the injuries sustained by the Respondent, in whose favor an award of General damages of Ksh 350,000/= and Ksh 11,850 Special damages
2. Aggrieved by the decision of the trial court, the Appellants filed this appeal based on the grounds that;
a) The learned Magistrate erred in law and fact by apportioning 100% liability to the Appellant despite the Respondent herein not proving the Negligence on the part of the Appellant.
b) The learned magistrate erred in law and in Fact in finding in favour of the Respondent against the Appellant when there was no credible evidence or proof of Negligence on the part of the Appellant.
c) The learned Magistrate erred in law and fact in the assessment of quantum by awarding Kshs 350 000/= for general damages, an award which was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the plaintiff
d) The learned magistrate erred in law and Fact in failing to pay regard to the quantum that is appropriate and applicable in similar cases as the case he was deciding.
e) The learned Magistrate’s exercise of discretion in the assessment of quantum was injudicious
f) The learned magistrate erred in law and Fact in failing to consider the Appellants'' submissions on quantum by completely disregarding the submissions and authority of the Appellants and as a result, he arrived at an unjustified decision on quantum.
3. The background of the matter is that the Respondent filed a suit against the Appellant, vide a plaint dated 6th May 2022, seeking Special damages of Kshs 14,170, general damages for pain and suffering, and the costs of the suit, as well as interest. To support his claim, the Respondent alleged that on or about 28th December 2021, he was lawfully travelling as a pillion passenger aboard a motorcycle KMDX 051W along Kisii Kilgoris Road at Getare area the driver, agent/employee so negligently drove, managed and/controlled or vehicle number KCW 109X that he permitted the same to lose control and violently hit the said Motorcycle from behind and pushed them to the far right side of the road thus causing accident and as a result the Respondent sustained severe bodily injuries and thus prayed that the Appellants to be held liable for the tortious acts and ommisions committed on him.
4. In its Defense, the Appellant denied allegations against it and averred that the accident was not in any way due to the negligence of the defendant, and if it had occurred and it was substantially contributed to by the negligence of the Respondent herein.
Analysis and Determination
5. This a first appellate court and it is the duty of this court is to re-evaluate the evidence on record and come to its own conclusion bearing in mind that it did not have an opportunity to see the witnesses as was held in the case of as was held in the case of Gitobu Imanyara & 2 others V Attorney General (2016) eKLR, to wit;‘’…….. 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 allowances in this respect”.
Whether the trial court erred in its finding that the Applicant was 100% liable for the offense.
6. According to the Appellant, the trial court erred in finding that he was 100% liable to the accident that led to the injuries suffered by the Respondent. The appellant’s case as per its pleadings is that the Motor cycle veered off it’s lane and hit the motor vehicle on it’s path. In the alternative it was pleaded that the motor cycle contributed to the accident. The appellant did not call any witness The case of the respondent is that the motor cycle had indicated to turn to the to the right when the vehicle hit it from behind. This is Supported by the evidence of PW1 and PW4. PW4 said that the case was pending investigations. The said witnesses adduce cogent evidence which was not shaken on cross-examination and was not displaced by way of evidence as the appellant called no witness. . It is clear that the proximate cause of the accident was that the appellant or his driver failed to control the vehicle as a result of which it hit the motor cycle from behind . It is trite law that hitting anther vehicle from behind is prima facie evidence of negligence as vehicles are supposed to keep safe distance behind others as per the high way code . No liability can be apportioned to the rider in the circumstances .
7. I have considered the two positions held by the two parties as well as the findings of trial magistrate that I have summarized herein above and in my view, the learned trial magistrate did not err when he apportioned 100% liability on the Respondent for reasons that there was negligence on the Appellants'' part.
Whether the learned trial magistrate erred in law in the assessment of quantum damages was high inordinately in the circumstances of the case.
8. It is trite law that this court has the solemn duty to examine and re-evaluate the evidence on record so as to arrive at its own conclusion, the court has to take into consideration that it did not have the opportunity to observe the demeanor of the witnesses – Peter –Vs- Sunday pest (1958) EA 249.
9. The Appellant argues that the award is inordinately high and that the court should reduce it to Kshs. 100,000. Assessment of damages is at the discretion of the trial court, and the appellate court will only disturb the discretion where the trial court committed an error in principle or the award is completely erroneous estimate of damages. The Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987)KLR 30 stated that: -
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
See also; Gabriel Maina Mungai v Jane Wanjiku Mwaura [2019] eKLR
10. Also in the case of Butt vs Khan (1977) 1 KAR it was stated that:-
“An Appellate court will not disturb an award for damages unless it is 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.”
According to the Plaint, the Respondent herein sustained the following injuries;
1. Deep cut wounds on the scalp.
2. Blunt trauma to the chest.
3. Bruises on the face.
4. Blunt trauma to the abdomen.
5. Blunt trauma to the right hip.
11. In deciding whether to disturb quantum given by the lower court, this court is aware of its limits, that in exercise of its discretion, the exercise should be done judiciously to ensure that the award is not too high or too low as to be an erroneous estimate of damages.
12. In reaching the award , the . trial court relied on the case of on the case of John Mendwa Kuti Vs Ibrahim Kunyaga [2020] eKLR where the Respondent had sustained serious head injuries, multiple bruises on the scalp, injuries on the shoulder among other injuries. The Court made an award of Ksh 350,000/= as general damages. The appellantsubmitted that the general damages were excessive and suggested an awanrd of ksh. Under this head while citing the case of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [20211 eKLR where the court upheld an award of Kshs. 60,000/ = to the Plaintiff who suffered blunt object injury to the head and neck, thorax, abdomen and limbs.
12. The respondent supported the award an relied on the case In Francis Ochieng & another v Alice Kajimba [2015] eKLR The respondent sustained multiple soft tissue injuries which included head injuries, sub-conjunctival hemorrhage and periorbital sycosis on both eye which are more or less similar to those sustained by the plaintiff herein. The court awarded a sum of Ksh.350, 000/= as compensation for the injuries, pain and suffering. Dr Morebu (Pw2) testified that the respondent sustained which he classified as harm .
13. Though the Appellant claimed that the trial court erred in ignoring the Authorities in the Appellants Submissions that were guiding in the amount of quantum, I find no merit in this submission as the learned trial magistrate in his judgment clearly indicated that he had considered the Authorities cited by both parties.
14. Having evaluated the evidence on record I am satisfied that the award of Ksh.350,000/= is not so high or so low as to attract the intervention of this court also considering the inflation rate in the country. The upshot is that the appellant is 100% liable in negligence,
Conclusion
15. I find no merit in the Appeal and thus I proceed to dismiss the same with costs to the Respondents
T.A ODERA
JUDGE
25.7.25
DELIVERED VIRTUALLY IN THE PRESENCE OF MISS MUNI FOR THE APPELLANT N/A FOR RESPONDENT CA -KIPCHIRCHIR
'