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JudgmentDREAMLINE EXPRESS LIMITED VS DOROTHY AWINO8 min read

DREAMLINE EXPRESS LIMITED VS DOROTHY AWINO

High Court at Makueni High Court · · Matheka, Teresia Mumbua


JUDGMENT 

  1. On 30/4/2021 the trial court in Kilungu PMCC 305/2018 delivered its judgment in favour of the plaintiff in the following terms:
  2. Liability 100%
  3. General damages awarded at Ksh. 180,000/=
  4. Special damages Ksh. 3,550/=
  5. Costs and interests as above
  6. The suit arose out of the circumstances described by the witness as summed up by the appellant in its submissions: -

The appellant was the defendant in the lower court and the respondent was the plaintiff in the lower court. During the hearing the respondent called one witness: Dorothy Awino PW1 and the appellants one witness: a police officer, Dw1. Pw1 testified that she was travelling in motor vehicle KCF 647U from Busia and on reaching Salama, they were involved in an accident with motor vehicle registration number UAS 636D. According to her, the vehicle she was travelling in was moving very fast and while overtaking another, it collided with motor vehicle UAS 636D. She stated that she was injured on the face, chest and left leg. She further testified that the driver of the trailer was taken KCF 674U was to blame for the accident.Dw1 on the other hand stated that an accident occurred involving motor vehicle registration UAY 105V/LB30300 and KCD 587P/Zf1534 and UAS 636D/UAP 682W and bus registration number KCF 674U. according to him, UAS/UAP 682W was being driven from Mombasa to Nairobi was overtaking motor vehicle registration number KCD 487P/ZF 1534 when it hit an oncoming bus registration KCF 674U which further hit motor vehicle registration number UAY 105V/LP30300 and KCV 47P/ZF 1534. He stated that motor vehicle registration number KCF 764U was maintaining its lane and that motor vehicle UAS 636D was to blame as it was being driven carelessly. He further denied a confirmation of any traffic case being registered.

  1. Aggrieved the appellant filed this appeal on the grounds:
  2. That the learned trial magistrate erred in law and fact by deliberately failing to consider the submissions of the appellant that were dated 26th March, 2021 and filed on 19th April, 2021 thereby erroneously arriving at a wrong decision.
  3. That the learned trial magistrate erred in law and fact in awarding judgment on General damages of kshs.180,000/= for soft tissue injuries without showing how he arrived at the figure and in total disregard of the submissions of the defendant on the issue of quantum.
  4. That the learned trial magistrate further erred in law and fact in awarding liability at 100% in total disregard of the evidence adduced and the appellant’s submissions.
  5. That as a result of the wrong computation, Honourable trial magistrate awarded the plaintiff/respondent an award that was too high.
  6. It is proposed to ask the court for the following orders:
  7. That the whole judgment of the Honourable C.A Mayamba principal Magistrate delivered on 30th April 2021 be set aside the same be assessed afresh.
  8. That this appeal be allowed.
  9. That the costs of this appeal and that of the trial court be awarded to the appellant.
  10. That such further orders may be made by this Honourable court may deem fit to grant.
  11. Parties agreed to proceed by way of written submissions which I have considered.
  12. Being a first appeal the appellant is entitled to re-evaluation of the evidence on record.
  13. In addition, the court in determining whether or not to the judgment of the subordinate court must be guided by the following principles as set out in James Mukatui Mavia v M.A Bayusuf & Sons Limited [2013) e KLR
  14. That the trial court failed to consider relevant factors or considered irrelevant factors and arrived at a wrong conclusion.
  15. That the trial court proceeded on wrong principles and arrived at a wrong conclusion.
  16. That the trial court misapprehended evidence adduced before it.
  17. That the award by the trial court is inordinately high or low.
  18. The issues for determination are whether the court erred in apportioning liability at 100% against the appellant and whether or not the sum of Kshs. 180,000/-   General damages was excessive in the circumstances of this case.
  19. On liability – the complaint by the appellant is that the accident in which the respondent sustained injuries was a multiple motor vehicle accident . That the respondent was travelling in m/v registration No. KCF 6744 – belonging to the appellant – and that according to evidence on record – the KCF 674U was hit by motor vehicle registration No. UAS 636D/UAP 682W - that upon being hit the bus hit motor vehicle registration No. UAY 105V/LP30300 & KCV 47P/ZF 153U. According to the appellant the motor vehicle to blame for all this was motor vehicle registration No. UAS 636D/UAP 682W.
  20. From the record the respondent clearly told the court how the accident happened. She was a passenger in the bus KCF 6744 which was being “driven very fast”. The bus overtook some other motor vehicle before it collided with the trailer.
  21. The police officer who was called by the appellant testified to documents he produced. He confirmed that he was not the investigating officer and could not confirm whether any traffic charges were preferred against anyone – His testimony as to who was to blame for the accident would not contradict that of the plaintiff who was at the scene and travelling in one of the motor vehicles.
  22. The appellant filed an application to serve 3rd party notice to one Yasani Rangira of P.O Box 1538 – 80100 Mombasa stating that the person was the registered owner of motor vehicle registered No. UAS 636D. In the application is annexed a police abstract dated 16/1/2008 that name and address of the owner of UAS 636D/UAB 682W as Yasani Rangira C/o Kampala – there is another police abstract dated 20/1/2018 saying the same thing. I noted that  in both abstracts the issue whether or not  to charge one Michael Hitiyise is Pending Under Investigations.
  23. In the record there is a request for judgment against the 3rd party dated 14/10/2019.
  24. On 18/12/2020 the record shows that interlocutory judgment was entered against the 3rd party.
  25. The trial court had this to say about the liability of the 3rd party:

“Having said that, the defendant was not blaming the plaintiff for the accident, but a third party. In the case of Loyce Anyona Olum v Benjamin Kimondo; Kisumu High Court Civil Case Number 105 of 1993 (Wambilyangah J on 11 November 1996) held that “ A defendant should apply for a third party notice if allegations of are made against the third party”. In the case of Nairobi City Council V Cooperative Bank of Kenya Civil Appeal No. 226 of 200 (Tunoi, Shah and Keiwua JJA on 25th May 2001) held that “a defendant who makes allegations against a third party should take out third proceedings”

In the instant case, the defendant while making allegations against the driver of motor vehicle registration number UAS 636D failed to enjoin them in the present suit, thus denying this court a chance to delve into the issues between them and the third party. I do hold them 100% liable in favour of the plaintiff.

  1. I have carefully considered the evidence on record.
  2. It is not in doubt that the plaintiff was travelling in KCF 674U. It is not disputed that there was a collision between the motor vehicle she was travelling in and the motor vehicle registration No. UAS 636D. however, it was the uncontroverted evidence of the plaintiff that the bus was driven at a high speed, and was overtaking just before the collision happened and she blamed the driver of the motor vehicle she was travelling in for the accident. The appellant other than seeking leave to take out 3rd party proceedings filed an affidavit of service to establish that the notice was served upon the intended 3rd party.
  3. I have perused the Notice and the affidavit of service and it is evident to me that the trial court did not examine the affidavit of service to satisfy itself that there was proper service upon the intended 3rd party. First – the police abstract clearly stated that the address of the 3rd party was C/o Kampala.  No other information about the contacts of the 3rd party were indicated in the Police Abstract. It was not clear from the record how the appellant arrived at an address in Mombasa as the address for the intended 3rd party – and why they served through the post office without leave of court.
  4. Order 5 rule 8 CPR 2010 provides for service in person or agent.
  5. Nothing in the affidavit of service shows that that any attempt was made to serve the intended 3rd party in person, or how the process server arrived at that address as it was not provided in the police abstract or in any other document supplied to court.
  6. On the basis of no service , it is my view the entry of the judgment against the 3rd party was erroneous.
  7. That said I found that the evidence on record placed blame squarely on the appellant’s driver and it was upon the appellant to call a witness to rebut that or have the 3rd or any other party properly joined to the suit to enable the court determine liability.
  8. On the evidence before court between the respondent and the appellant – the appellant was 100% liable for the accident.
  9. On damages the respondent sustained injuries: -
  • Swollen bruised face
  • Bruises chest wall
  • Bruises on lower limbs and left foot.
  • The defendant submitted for Ksh. 50,000 and cited authorities inter alia Nyambati Nyaswabu Eric V Toyota Kenya Limited and 2 others [2019] e KLR, where the appellant sustained the following injuries;
  • A deep cut on the scalp extending to the maxillary area,
  • Blunt injury to the left side of the chest,
  • Contusion on the back and contusion on both legs.
  1. The plaintiff submitted for Ksh. 600,000/= citing:
  2. Lucy Ntibuka V Bernard Mutwiri & Others [2007] e KLR where the plaintiff was awarded Ksh. 500,000/= where the plaintiff sustained head injuries lacerations to lateral side of right eye. Lacerations and wound on left arm. The head injury was serious as plaintiff was admitted in hospital unconscious due to brain concussion. ; Vincent Cheruiyot Rono V Mombasa Maize Millers Ltd [2006] eKLR where plaintiff sustained soft tissue injuries to cervical and lumbosacral spine, right above right knee, chest resultant 20% permanent disability and was awarded 400,000/= where there was permanent loss of function in right knee
  3. Evidently, counsel for plaintiff relied on authorities for far more serious injuries.
  4. The authority cited that is closest to the injuries sustained by plaintiff was Nyambati Nyaswabu Eric above.
  5. I am persuaded that the award of Ksh. 180,000/= general damages was on the higher side when compared to awards for similar injuries.
  6. In the circumstances the appeal succeeds partially.
  7. The award on liability, and special damages remains undisturbed.
  8. On the award on general damages, the judgment of the subordinate court be and is hereby set aside and substituted with an award of Ksh 100,000/= plus costs and interest here and below from the date of the Judgment in the subordinate court.
  9. Right of Appeal 30 days

Dated signed and delivered on 17th My 2024

……………………………….

MUMBUA T. MATHEKA

JUDGE

    DREAMLINE EXPRESS LIMITED VS DOROTHY AWINO DREAMLINE EXPRESS LIMITED VS DOROTHY AWINO