(Appeal from the Judgment of Hon. C. Mayamba (PM) in the Principal Magistrate’s Court at Kilungu, Civil Case No.224 of 2018, delivered on 23rd July 2021)
JUDGMENT
1. WILKISTER ACHIENG filed Kilungu MCCC 224 of 2018 seeking general damages for pain, suffering and loss of amenities from injuries sustained from a road accident on 14/01/2018 at Kautandini area along the Nairobi-Mombasa Road. She also sought special damages, costs of the suit and interest. It was her case that she was a lawful a passenger in motor vehicle registration No. KCF 674U which was so negligently driven that it collided with motor vehicle registration No.UAS 636D..
2. The Appellant filed a statement of defence and denied all the allegations in the plaint putting the respondent to strict proof thereof.. It averred that if the accident occurred as alleged, it was solely caused by the Respondent’s negligence as well as the negligence of the driver of motor vehicle registration No.UAS 636D.
3. The Respondent replied to the defence where she joined issues with the defendant/Appellant and reiterated the contents of her plaint.
4. The Appellant enjoined the driver of motor vehicle registration No.UAS 636D as a third party in the suit he never participated in the suit and an interlocutory judgment was entered against the Third Party.
5. After the preliminaries, the matter proceeded to trial and judgment was eventually delivered in favor of the Respondent. On liability the learned trial magistrate found the Appellant and third party equally to blame i.e 50% & 50% and awarded general damages of Kshs 180,000/= and special damages of Kshs 3,550/=.
6. Aggrieved, , the Appellant filed this appeal on the following grounds;
a) THAT the learned trial magistrate erred in law and fact by disregarding established legal precedent and thereby erroneously arriving at a wrong conclusion on liability.
b) THAT the learned trial magistrate erred in law and fact by disregarding established legal precedent and thereby erroneously arriving at a wrong conclusion on quantum.
c) THAT the learned trial magistrate erred in law and fact in not making an award which was within limits of already decided cases of similar nature.
d) THAT the learned trial magistrate erred in law and fact in awarding judgment on liability at the ratio of 50:50 as against the Defendant and Third Party.
e) THAT the learned trial magistrate erred in law and fact in awarding judgment on general damages of kshs 180,000/= without showing how he arrived at that figure and in total disregard of the submissions of the defendant on the issue of quantum.
The appeal was canvassed by way of written submissions.
The Appellant’s Submissions
7. Onliability, the Appellant submitted that according to the police abstract, charges would be preferred against Michael Hitiyise, the driver of UAS 636D, for careless driving and as such, it was the said driver who was to blame for the accident and not motor vehicle KCF 674U. The Appellant contended that the abstract corroborated the testimony of DW1 who stated that KCF 674U was on the proper lane and UAS 636D was to blame for the accident. It was also the Appellant’s submission that the Respondent did not prove negligence on a balance of probability. The Appellant relied on Catherine Mbithe Ngina–vs- Silker Agencies Ltd [2021] eKLR where it was stated that;
“Similarly, the fact that an accident is not reported does not necessarily mean that no such accident occurred. Proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigating officer or report of the accident to the police though such report may corroborate the other available evidence.”
8. The Appellant submitted that based on the evidence of DW1 and the abstract, this Court should dismiss the finding of liability in its entirety with costs in its favor.
9. With regard to quantum, the Appellant submitted that the Respondent sustained soft tissue injuries and as such, the award of Ksh 180,000/= is on the higher side. It was submitted that an award of kshs 80,000/= would have sufficed as reasonable compensation. Relying on Power Lighting Co. Ltd & Anor -vs- Zakayo Saitoti Naingola & Anor [2008] eKLR, it was submitted that in assessment of damages, the Court has to bear in mind the following principles;
a) Damages should not be inordinately too high or too low.
b) They are meant to compensate a party for the loss suffered but not to enrich a party and as such, they should be commensurate to the injuries suffered.
c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.
d) Where past awards are taken into consideration as guides, an element of inflation should be taken into account as well as the purchasing power of the Kenyan shilling at the time of the judgment.
10. The Appellant further relied on the following authorities;
a. Ndung’u Dennis –vs- Ann Wangari Ndirangu & Anor [2018] eKLR where an award of kshs 300,000/= was reduced to kshs 100,000/= on appeal. In so doing, the appellate Court stated as follows;
“If one takes into consideration the actual injuries suffered by the Respondent-to wit soft tissue injuries to the lower right leg and to the back-it becomes readily obvious that an award of kshs 300,000/= is manifestly excessive..”
b. Eva Karemi & 5 Others –vs- Koskei Kieng’ & Anor [2020] eKLR where the 1st Appellant was awarded kshs 70,000/= for injuries to her right thigh and bruises on her lower and upper limbs. The 2nd Appellant was awarded kshs 40,000/= for injuries on the right shoulder and cut wound on her mouth. The 3rd Appellant was awarded kshs 45,000/= for injuries and pain on her back and right shoulder pain. The 4th Appellant was awarded kshs 40,000/= for cuts on the chin and right shoulder tenderness. The 5th Appellant was awarded kshs 60,000/= for 2 cm cut on the forehead, cut wound on the right elbow and right limb (leg & ankle joint). The 6th Appellant was awarded kshs 65,000/= for bruising on the forehead, hip and left ankle.
11. The Appellant submitted that if this Court is less inclined to dismiss the trial Courts judgment on liability, it should substitute the award of kshs 180,000/= with kshs 80,000/=.
12. On costs, the Appellant relied on section 27(1) of the Civil Procedure Act for the submission that costs follow the event. It urged the Court to allow the appeal and award costs in its favor.
The Respondent’s Submissions
13. The Respondent set out for determination the following as the issues :
a) Whether the trial Court erred in holding the Appellant together with Third Party 50%: 50% liable for the accident.
b) Whether the trial Court erred in awarding the Respondent general damages of kshs 180,000/=.
c) What orders should be granted by this honorable Court?
14. Relying on the Court of Appeal decision in James Mukatui Mavia –vs- M.A Bayusuf & Sons Ltd (2013) eKLR the Respondent submitted that for this court to reverse the trial Court’s finding, it must be guided by the following:
a) That the trial Court failed to consider relevant factors or considered irrelevant factors and arrived at a wrong conclusion.
b) That the trial Court proceeded on wrong principles and arrived at a wrong conclusion.
c) That the trial Court misapprehended evidence adduced before it.
d) That the award by the trial Court is inordinately high or low.
15. On liability, the Respondent submitted that the trial Court was justified in holding the Appellant and Third Party 50%:50% liable for the accident. She submitted that she adduced evidence which proved that she was a passenger in the Appellant’s motor vehicle which caused the accident. That the Appellant never attributed any negligence to her and did not call the driver or investigating officer to prove its assertions. She relied on Wilter Chemutai Torongei –vs- W.E Tilley Muthaiga Ltd & Anor [2017] eKLR where it was held;
“When the evidence adduced is not clear as to which of the parties is to blame, the blame should ordinarily be apportioned equally.”
16. On quantum of damages, she submitted that the trial Court did not err by awarding the sum of kshs 180,000/= for pain and suffering. She submitted that in Robinson Njoroge –vs- Daniel Ombasa [2021] eKLR, an award of kshs 300,000/= was made for comparable injuries. She also relied Veronica Mkanjala Mnyapara –vs- Charles Kinanga Babu (2020) eKLR where the award of Ksh 300,000 as general damages was upheld on appeal.
17. As for the prayers which the Court should grant, she submitted that the appeal should be dismissed with costs.
Analysis and Determination
18. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record and to draw its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
19. I have considered the grounds of appeal, the rival submissions and entire record, and consider the issues for determination to be as follows;
a) Whether the trial Court erred by holding the Appellant 50% liable for the accident.
b) Whether the award on general damages should be disturbed.
On Liability
20. The Respondent pleaded that she was a fare paying passenger in motor vehicle registration No. KCF 674U which was driven so negligently that it collided with motor vehicle registration No.UAS 636D on the material day. The Respondent testified as PW1 and adopted her statement as evidence in chief. She also tendered the documents in her list as P. Exh 1 to 7. The statement is basically a reproduction of her plaint. In her further evidence in Court, she testified that;
“The accident happened in the year 2018. I was coming from Busia headed to Salama. Our bus was being driven at a high speed. The bus hit the trailer. It hit the trailer on its lane. I was at the front section 3rd seat. It was on the morning. I was not sleeping. I went to the police station and was issued with a police abstract. I am blaming the bus because I had boarded it.”
21. On the other hand, the Appellant called Corporal Agnes Kinya of Salama Police as its witness (DW1). She testified that;
“On 14/1/2018 at around 6.40 hours there was a serious road traffic along Nairobi-Mombasa road. It was attended to by Corporal Chris and P.C Murubu. It involved motor vehicle no UAY 105V/LP30300 make Mercedes Benz Actros and KCD 487 P/ZF 1534, Make Mercedes Benz Actros and UAS 636d/UAP 682W. There was KCF 674U make Scania Bus Dreamline. Motor vehicle UAS 636d/UAP 682W overtook other motor vehicles headed to Nairobi direction. It hit motor vehicle registration KCF 674U which swerved on the right side of the road and hit other motor vehicles. Several passengers sustained serious and slight injuries. I was not investigating officer. Motor vehicle UAS 636d/UAP 682W was blamed. The bus was hit by the motor vehicle which was overtaking.”
22. On cross examination, DW1 confirmed that she was not the investigating officer and did not have the investigation file and the sketch plan in court. She also confirmed that the OB is just the initial report and could not confirm the outcome of investigations from the OB.
23. The police abstract produced as P.Exh 3 indicates that there was an intention to prefer charges against the driver of UAS 636D for careless driving. There is no indication on record as to whether the said charges were ever preferred and at the time of testifying, DW1 confirmed that she was not aware of the outcome of investigations. Be that as it may, the Appellant is aggrieved for being held 50% liable and its position is that motor vehicle UAS 636D was wholly to blame.
24. From the foregoing it is not in dispute that the Respondent was a passenger in motor vehicle KCF 674U and that she sustained injuries when the bus was involved in an accident. The occurrence of the accident is prima facie evidence that the duty of care owed to the Respondent by the bus company was breached because ordinarily, no liability is attached to her as a passenger as she had no control of the vehicle.
25. Flowing from the evidence of PW1, DW1 and information in the abstract, it is not in dispute that there was an accident involving the bus and motor vehicle registration number UAS 636D/UAP on the material day. It is nt disputed that the Respondent, was seated at the front section of the bus as a passenger, and witnessed how the accident happened, That the bus was driven at high speed and it hit the trailer from the back. According to her the trailer was in its lane and it was the bus that hit it..The view of the police upon arrival at the scene eas that it was the trailer that was overtaking the bus and hit it, and this was the basis for the proposed charges against the driver of the trailer. .. These two views lead to one clear conclusion that there was a collusion between the two m/vehicles, the respondent was a passenger in the bus. She saw the collision happen. The Police found that there were events that led to that collision which they blamed on the trailer.
26. There are numerous decisions from our Courts to the effect that where the blameworthiness of two drivers/vehicles cannot be distinguished, the solution to hold both of them equally liable. In Lakhamshi -vs- Attorney General, (1971) E A 118, 120, Spry V P rendered himself thus:
“It is now settled law in East Africa that where the evidence relating to a traffic accident is insufficient to establish the negligence of any party, the Court must find the parties equally to blame. A judge is under a duty when confronted by conflicting evidence to reach a decision on it. In the case of most traffic accidents, it is possible on a balance of probabilities to conclude that one other party was guilty or both parties were guilty of negligence. In many cases as for example where vehicles collide near the middle of a wide straight road in conditions of good visibility with no courses, there is in the absence of any explanation, an irresistible inference of negligence on the part of both drivers, because if one was negligent in driving over the center of the road, the other must have been negligent in failing to take evasive action. Although it is usually possible, but nevertheless often extremely difficult, to apportion the degree of blame between two drivers both guilty of negligence, yet where it is not possible it is proper to divide the blame equally between them.”
27. From the Judgment of the learned trial court it is evident that it appreciated the concept of equal liability and relied on a relevant authority to support the same. The Appellant did not highlight the established legal precedent that was disregarded by the trial magistrate as stated in the Memorandum of Appeal.
28. The standard of proof is one of a balance of probabilities.
29. In this case I find that negligence was established on the part of both m/vehicles and the trail court did not err in its finding on liablity.
On Quantum
30. The respondent pleaded that she sustained the following injuries:
a) Blunt injury (tender) right hip
b) Swollen bruised face.
31. She produced a medical report by Dr. G.K Mwaura (P.Ex 7) which particularized the injuries as above as soft tissue injuries, moderate in degree.. The doctor stated that her healing was fair but she complained of bouts of headaches.
32. It goes without saying that no two cases can be completely similar.
The appellant argued that the trail court did not consider ist submissions. However in his judgment, the trial magistrate stated that ; “The defendant has also proposed a figure of kshs 60,000/= which was quite low considering the fact, even at the time of hearing of this case after almost two years after the accident, the plaintiff was still living under its effects.” This is a clear indication that the Appellant’s submissions were considered hence that ground of appeal has no basis. Further, the trial magistrate court several authorities in making his determination hence showing how he arrived at the figure of Kshs 180,000/= contrary to the Appellant’s assertion in the Memorandum of Appeal.
33. Be that as it may the respondent relied on Robinson Njoroge –vs- Daniel Ombasa (supra), where the Respondent sustained a deep cut wound on the head leading to soft tissue injuries, soft tissue injuries to both hands and a blunt injury to right hip joint leading to severe soft tissue injuries. Further, the appellate Court found that in addition to the deep cut wound, there were restrictions in movement. The award of kshs 300,000/= as general damages was upheld.
34. In tVeronica Mkanjala –vs- Charles Kinanga Babu (supra), the Respondent sustained; a deep cut wound on the forehead, chest contusion, bruises on the face, bruises on both hands, dislocation of the left wrist joint, bruises on both ankle joints, dislocation of the left ankle joint. The award of kshs 300,000/= as general damages was upheld.
35. It is evident that the Respondents in the two cases above sustained deep cut wounds that would justify the awards given. Their injuries were not purely soft tissue hence more serious than the ones sustained by the Respondent herein.
36. On the other hand, the Appellant relied on the case of Ndung’u Dennis –vs- Ann Wangari (supra) where the Respondent therein sustained soft tissue injuries to the lower right leg and to the back. An award of kshs 300,000/= general damages was reviewed downwards to Kshs 100,000/=.
37. It is trite that the appellate Court will not disturb the trial Court’s award of damages unless the said award is so inordinately high or so inordinately low as to represent an entirely erroneous assessment.
38. I have also taken the liberty to look at other cases like Channan Agricultural Contractors Ltd –vs- Fred Barasa Mutayo [2013] eKLR where an award of kshs 250,000/= was reviewed downwards o kshs 150,000/= for ‘moderate soft tissue injuries that were expected to heal in eight months’ time.’ There is also the case of Purity Wambui Muriithi –vs- Highlands Mineral Water Company Ltd [2015] eKLR where an award of kshs 700,000/= was reviewed downwards o kshs 150,000/= for injuries to the left elbow, pelvic region, lower back and left knee. It is noteworthy that these two cases were decided over seven years ago. Further, there is the case of Justine Nyamweya Ochoki & Anor –vs- Jumaa Karisa Kipingwa [2020] eKLR where the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. An award of Kshs 300,000/= was reduced to Kshs 150,000/= on appeal.
39. Going by the preceding authorities, it appears to me that the award of general damages was slightly high comparing the injuries sustained by the respondent Blunt injury (tender) right hip, swollen bruised face. Taking into consideration the vagaries of inflation the sum of Ksh 150,000 appears reasonable.
40. The appeal therefor succeeds only to that extent.
41. In the event the Judgment of the trial court is set aside and substituted with the following award:
Liability at 50:50 between the appellant and the 3rd party
General damages at Ksh 150,000 plus costs and interest from the date of the judgment in the subordinate court.
Considering the slight change in the award, I make no orders as to the costs of the appeal.
Dated signed and delivered via CTS this 26th February 2025
Mumbua T Matheka
Judge
CA Nelima
Appellant’s Advocates
Kimondo Gachoka & Co. Advocates
info@kglaw.co.ke
Respondent’s Advocates
Waiganjo Wachira & Co. Advocates
waiganjowachiraadvocates@gmail.com