' (Being an Appeal from the Judgement and Decree at the Chief Magistrate’s Court in Keroka PMCC No. E039 of 2023 delivered by Hon. C.A. Ombija, Senior Resident Magistrate on 10 th July 2024.)
Background
The appeal arises from the decision of the Chief Magistrate’s Court at Keroka in PMCC No. E039 of 2023, where the Appellant, a passenger in motor vehicle KCS 552H, sued the Respondent for injuries sustained in a road traffic accident involving motor vehicle KBX 266U. The trial court apportioned liability at 90:10 in favour of the Plaintiff and awarded Kshs. 339,730/= in total damages. Dissatisfied with the trial court’s decision, the Appellant filed the present appeal challenging both the quantum and apportionment of liability.
Duty of a First Appellate Court
This being a first appellate court, I am reminded of my duty to re-evaluate and reconsider the evidence on record and draw my own conclusions, while bearing in mind the fact that I did not see or hear the witnesses. In Sembuya vs. Alports Services Uganda Limited [1999] LLR 109 (SCU) , Tsekooko JSC held that:
“There is really no set format to which the re-evaluation should conform. A first appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the trial court.”
The appeal was canvassed by way of written submissions which I have considered,
3. Issues for Determination
Having considered the record of appeal and the parties’ submissions, I find that the following issues arise for my determination: -
Liability; and
Quantum of damages – general, special, and future medical expenses.
Liability
It was uncontested that an accident occurred on 5th October 2022 along the Keroka–Sotik road, involving motor vehicles KCS 552H and KBX 266U, and that the Appellant was a passenger in the former vehicle. The trial court apportioned liability at 90% against the Respondent and 10% against the Appellant but gave no reasons for this apportionment.
I find that the trial court erred in apportioning liability against the Appellant as he was a passenger and therefore had no control over either vehicle and could not be held contributorily negligent. In Baro Ngo Sevelius Yophen vs. Jared Ndemo [2020] KEHC 3253 (KLR) , the court held:
“There is no contention that the respondent was a pillion passenger. It was not shown how his failure to wear a helmet or how the fact that there were two pillion passengers on the motorcycle would have contributed to the occurrence of the accident. As a pillion passenger, the respondent had no control of the motor cycle and could not have done anything to cause or avoid the accident.”
Applying the above principle, I find that the Appellant cannot bear any portion of liability. The Respondent, having failed to institute third-party proceedings against the driver of KCS 552H, remains wholly liable for the accident. Liability is set at 100% against the Respondent.
Quantum of Damages
(a) General Principles
The law is settled that an appellate court will only interfere with a trial court’s award of damages if the same was based on wrong principles or is inordinately high or low.
In Gicheru vs. Morton & Another (2005) 2 KLR 333 , the Court of Appeal stated:
“In order to justify reversing the trial judge on the question of the amount of damages, it is generally necessary that the Court of Appeal 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 an entirely erroneous estimate of the damage to which the Appellant was entitled.”
Further, in Simon Taveta vs, Mercy Mutitu Njeru [2014] eKLR (Civil Appeal No. 26 of 2013) , the Court of Appeal emphasized that: -
“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
(b) Nature of Injuries
The Appellant sustained the following injuries in the accident: =
Fracture of the right radius and ulna
Head injury with loss of consciousness
Deep cut wounds on the face
Sub-conjunctival haemorrhage of the right eye
Chest contusion
Bruises on the head and blunt trauma to the right eye.
(c) Comparable Awards
I have considered the following comparable precedents: -
Jitan Nagra vs. Abednego Nyandusi Oigo [2018] eKLR – Kshs. 450,000/= awarded on appeal for multiple fractures and soft-tissue injuries.
Naomi Momanyi vs. G4S Security Services Kenya Limited [2018] eKLR – Kshs. 300,000/= awarded for fracture and blunt injuries.
Wakim Sodas Limited vs. Sammy Aritos [2017] eKLR – Kshs. 400,000/= awarded and upheld for rib and leg fractures.
Vincent Mbogholi vs. Harrison Tunje Chilyalya [2017] eKLR – Kshs. 500,000/= awarded for leg fracture and soft-tissue injuries.
Gladys Lyaka Mwombe vs. Francis Namatsi & 2 Others [2019] KEHC 4800 (KLR) – Kshs. 300,000/= upheld for head, spinal, and limb injuries.
Considering the nature of the Appellant’s injuries and inflation trends, I find the trial court’s award of Kshs. 300,000/= inordinately low and reassess general damages at Kshs. 500,000/= .
(d) Future Medical Expenses
The Appellant pleaded and proved the need for surgery at an estimated cost of Kshs. 200,000/=. In Tracom Limited & Another vs. Hassan Mohamed Adan [2009] KECA 48 (KLR) , the Court of Appeal explained: -
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.”
In Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91 (CAK) , it was held: -
“Although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and must be pleaded and proved before the court can make an award.”
I find that the medical report by Dr. Morebu sufficiently established the need for corrective surgery at an estimated cost of Kshs. 200,000/= which is find to be reasonable. I therefore award future medical expenses at Kshs. 200,000/=.
(e) Special Damages
The Appellant proved special damages of Kshs. 19,730/= through receipts tendered in evidence.
6. Disposition
In the end, the appeal succeeds. The judgment of the trial court is hereby set aside and substituted with the following: -
Liability: 100% against the Respondent
General Damages: Kshs. 500,000/=
Special Damages: Kshs. 19,730/=
Future Medical Expenses: Kshs. 200,000/=
Total Award: Kshs. 719,730/=
The Appellant shall have costs in both the trial court and this appeal, and interest on the award from the date of judgment until payment in full.
'
Background
The appeal arises from the decision of the Chief Magistrate’s Court at Keroka in PMCC No. E039 of 2023, where the Appellant, a passenger in motor vehicle KCS 552H, sued the Respondent for injuries sustained in a road traffic accident involving motor vehicle KBX 266U. The trial court apportioned liability at 90:10 in favour of the Plaintiff and awarded Kshs. 339,730/= in total damages. Dissatisfied with the trial court’s decision, the Appellant filed the present appeal challenging both the quantum and apportionment of liability.
Duty of a First Appellate Court
This being a first appellate court, I am reminded of my duty to re-evaluate and reconsider the evidence on record and draw my own conclusions, while bearing in mind the fact that I did not see or hear the witnesses. In Sembuya vs. Alports Services Uganda Limited [1999] LLR 109 (SCU) , Tsekooko JSC held that:
“There is really no set format to which the re-evaluation should conform. A first appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the trial court.”
The appeal was canvassed by way of written submissions which I have considered,
3. Issues for Determination
Having considered the record of appeal and the parties’ submissions, I find that the following issues arise for my determination: -
Liability; and
Quantum of damages – general, special, and future medical expenses.
Liability
It was uncontested that an accident occurred on 5th October 2022 along the Keroka–Sotik road, involving motor vehicles KCS 552H and KBX 266U, and that the Appellant was a passenger in the former vehicle. The trial court apportioned liability at 90% against the Respondent and 10% against the Appellant but gave no reasons for this apportionment.
I find that the trial court erred in apportioning liability against the Appellant as he was a passenger and therefore had no control over either vehicle and could not be held contributorily negligent. In Baro Ngo Sevelius Yophen vs. Jared Ndemo [2020] KEHC 3253 (KLR) , the court held:
“There is no contention that the respondent was a pillion passenger. It was not shown how his failure to wear a helmet or how the fact that there were two pillion passengers on the motorcycle would have contributed to the occurrence of the accident. As a pillion passenger, the respondent had no control of the motor cycle and could not have done anything to cause or avoid the accident.”
Applying the above principle, I find that the Appellant cannot bear any portion of liability. The Respondent, having failed to institute third-party proceedings against the driver of KCS 552H, remains wholly liable for the accident. Liability is set at 100% against the Respondent.
Quantum of Damages
(a) General Principles
The law is settled that an appellate court will only interfere with a trial court’s award of damages if the same was based on wrong principles or is inordinately high or low.
In Gicheru vs. Morton & Another (2005) 2 KLR 333 , the Court of Appeal stated:
“In order to justify reversing the trial judge on the question of the amount of damages, it is generally necessary that the Court of Appeal 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 an entirely erroneous estimate of the damage to which the Appellant was entitled.”
Further, in Simon Taveta vs, Mercy Mutitu Njeru [2014] eKLR (Civil Appeal No. 26 of 2013) , the Court of Appeal emphasized that: -
“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
(b) Nature of Injuries
The Appellant sustained the following injuries in the accident: =
Fracture of the right radius and ulna
Head injury with loss of consciousness
Deep cut wounds on the face
Sub-conjunctival haemorrhage of the right eye
Chest contusion
Bruises on the head and blunt trauma to the right eye.
(c) Comparable Awards
I have considered the following comparable precedents: -
Jitan Nagra vs. Abednego Nyandusi Oigo [2018] eKLR – Kshs. 450,000/= awarded on appeal for multiple fractures and soft-tissue injuries.
Naomi Momanyi vs. G4S Security Services Kenya Limited [2018] eKLR – Kshs. 300,000/= awarded for fracture and blunt injuries.
Wakim Sodas Limited vs. Sammy Aritos [2017] eKLR – Kshs. 400,000/= awarded and upheld for rib and leg fractures.
Vincent Mbogholi vs. Harrison Tunje Chilyalya [2017] eKLR – Kshs. 500,000/= awarded for leg fracture and soft-tissue injuries.
Gladys Lyaka Mwombe vs. Francis Namatsi & 2 Others [2019] KEHC 4800 (KLR) – Kshs. 300,000/= upheld for head, spinal, and limb injuries.
Considering the nature of the Appellant’s injuries and inflation trends, I find the trial court’s award of Kshs. 300,000/= inordinately low and reassess general damages at Kshs. 500,000/= .
(d) Future Medical Expenses
The Appellant pleaded and proved the need for surgery at an estimated cost of Kshs. 200,000/=. In Tracom Limited & Another vs. Hassan Mohamed Adan [2009] KECA 48 (KLR) , the Court of Appeal explained: -
“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.”
In Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91 (CAK) , it was held: -
“Although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and must be pleaded and proved before the court can make an award.”
I find that the medical report by Dr. Morebu sufficiently established the need for corrective surgery at an estimated cost of Kshs. 200,000/= which is find to be reasonable. I therefore award future medical expenses at Kshs. 200,000/=.
(e) Special Damages
The Appellant proved special damages of Kshs. 19,730/= through receipts tendered in evidence.
6. Disposition
In the end, the appeal succeeds. The judgment of the trial court is hereby set aside and substituted with the following: -
Liability: 100% against the Respondent
General Damages: Kshs. 500,000/=
Special Damages: Kshs. 19,730/=
Future Medical Expenses: Kshs. 200,000/=
Total Award: Kshs. 719,730/=
The Appellant shall have costs in both the trial court and this appeal, and interest on the award from the date of judgment until payment in full.
'