ISAAC LUKA SHIKUSANE AND MARTIN NANGOLE AND 1 Others VS JANET MOKEIRA NYAGWOKA

(Being an Appeal against the judgment delivered by Hon. G. Sogomo (Mr.) Principal Magistrate on 22^nd April 2022 in Nairobi Milimani Magistrates Civil Case CMCC No. 3185 of 2020)

1. The appellants have filed this appeal through a memorandum of appeal dated 28/4/2023. This appeal relates two issues, liability and quantum in a claim for general and special damages for personal injuries arising out of a road traffic accident.
2. The appellants were the defendants while the respondent was the plaintiff before the trial court.
3. The claim by the respondent in the trial court through her plaint dated 4/6/2020 was that she was injured in a road traffic accident on 27/12/2019. The accident occurred while she was alighting from a motor vehicle registration number KCP 120A, Isuzu bus owned by the 3^rd appellant as registered owner and the 2^nd appellant as the beneficial owner in whose name the insurance cover for the vehicle was taken and with the 1^st appellant as the driver, authorized agent and/or servant of the 1^st and 2^nd appellants, for the said vehicle.
4. The respondent prayed for general damages for pain, suffering and loss of amenities, special damages of KShs 6,050/=, costs of the suit and interest thereon.
5. The 1^st and 2^nd appellants entered appearance and filed a common statement of defence dated 7/12/2020 and denied the respondent’s claim in toto. They also denied that they or either of them was in any vicarious relationship with the 3^rd appellant. In the alternative they blamed the respondent for the accident claiming that she was solely or substantially to blame.
6. After trial the learned trial magistrate in his judgment awarded the respondent general damages KShs 400,000/=, special damages KShs 6,050/= together with costs and interest.
7. The appellant was dissatisfied with that decision and has filed the present appeal based on nine grounds which can be condensed into five as follows:
   1. that the learned trial magistrate erred in law and in fact in finding the appellants liable for the accident which was against the weight of the evidence which showed that in fact the respondent was solely to blame (grounds 1, 2, 3, 4 and 7).
   2. the learned trial magistrate denied the appellants an opportunity to adduce evidence by declining an adjournment to accord them an opportunity to conduct and second medical examination of the respondent, file a medical report and call their doctor to adduce evidence and thus breached their constitutional right to a fair hearing under Article 50(2) of the Constitution (ground 5).
   3. the learned trial magistrate failed to consider the appellants’ submissions and authorities and hence arrived at an erroneous decision (ground 6).
   4. the learned trial magistrate erred and misdirected himself by proceeding on wrong principles by failing to apply precedent and the applicable law when assessing general damages (ground 8).
   5. the learned trial magistrate failed to capture and/or record all the evidence and/or testimonies adduced in court and thereby omitted important material which was necessary for the determination of the issues in the matter.
8. The appellants therefore pray for this court to allow the appeal, set aside the judgment of the trial court delivered on 22/4/2022 and dismiss the respondent’s suit in the trial court with costs to the appellants and award costs of this appeal to the appellants.
9. The appeal was canvassed by way of written submissions. Only the respondent’s counsel filed written submissions dated 18/6/2024 on the court’s e-filing system.
10. This being a first appeal, the duty of this 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 and Peters vs. Sunday Post Limited (1958) E.A page 424.

Analysis and Determination

1. The trial was conducted on 10/2/2022. At the trial the respondent testified as PW 2 and called two other witnesses; PW 1 PC Joseph Wachira who produced the police abstract and PW 3 Dr. George Mwaura who had examined the respondent and he produced the medical report he had prepared dated 10/1/2020 on the injuries sustained by the respondent. 
2. The defence case was closed without calling any witness. After close of the respondent’s case, learned counsel for the appellants asked for adjournment to call the investigating officer. The application was objected to by learned counsel for the respondent for reasons that the appellants had not filed a list of witnesses. The learned trial magistrate agreed with learned counsel for the respondent and declined the adjournment and thus the defence case was closed.
3. I have not found any instance in the proceedings where the appellants asked the trial court for an opportunity to have the respondent presented for a second medical examination by the appellants’ doctor or for adjournment to make available such a doctor to adduce evidence. That ground of appeal is unfounded and consequently dismissed as without merit.
4. In her evidence, the respondent adopted her undated witness statement filed alongside the plaint in which she said that as she was alighting from the vehicle at her destination, she had barely stepped out of the vehicle when the driver started driving off without paying attention to the fact that she had not completely alighted. She was injured as a result and has suffered loss and damage. She blamed the driver of the vehicle for the accident.
5. Her evidence is that she was taken to Mbagathi hospital where first aid was administered to her and was injected with a tetanus toxoid and given pain killers. She was referred to Kenyatta National hospital the same day. She was treated by stitching and dressing of the wounds, an X-ray done and given a prescription. She was then discharged the same day with further medical review appointments.
6. She outlined the injuries sustained as:
   1. lower part of mouth.
   2. loss of teeth.
   3. soft tissue injuries on both legs.
   4. bruises on both hands.
   5. bruises around waistline.
7. The respondent subsequently made a report at Industrial Area police station where she was issued with a P3 form and a police abstract.
8. The respondent at the time of giving her testimony said that she had not fully healed because during chewing of tough food she feels as though the other tooth would fall out and she also feels pain around the pelvis.
9. The appellants as defendants did not offer evidence at the trial.
10. Learned counsel for the respondent in his submissions supports the findings and conclusions of the learned trial magistrate.
11. In this case, the respondent testified that she was in the process of alighting from the vehicle when it was set in motion and this caused her to fall.
12. The only evidence on record by an eye witness was from the respondent. Which evidence I reiterate was not challenged by other evidence from the appellants. That evidence was supported by the evidence in the police abstract which showed the results of investigations to be that motor vehicle registration No. KCP 120 120A was to blame for the accident. The police abstract was produced by PW 1 and even though he was not the investigating officer the appellants had no objection to it being produced by him. Neither did the appellants indicate that they were opposed to the contents therein being relied upon by the respondent. The learned trial magistrate relied on the case of Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR, where the Court of Appeal cited the case of Joel Muga Opinja v East Africa Sea Food Ltd [2013] eKLR which considered reliance on the contents of a police abstract and said:

“We agree that the best way to prove ownership would be to produce to the court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in court without any objection, the contents cannot later be denied” (emphasis by underlining mine).

1. Although the Court of Appeal was referring to the issue of ownership, I believe the holding applies to all the contents in the police abstract including the findings of the investigating officer on who was to blame for the accident. I therefore find that the respondent’s evidence was supported by the evidence of the police abstract that the driver of the vehicle was to blame for the accident and therefore negligent.
2. As stated, the appellants did not tender any evidence at the trial. The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 cited by learned counsel for the respondent where it was held that:

“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1^st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”

1. The evidence of the respondent thus remained unchallenged as was held by the Court of Appeal in the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, follows: -

“The Respondent never called any witness(es) with regard to the occurrence of the accident.  Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations.  The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof.  It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability.  It was thus substantially to blame for the accident….”

1. In evaluating that evidence, the learned trial magistrate found that since the respondent’s evidence had remained uncontroverted then she was entitled to succeed in her claim. He therefore found the driver wholly liable for the accident and the owners of the vehicle vicariously liable.
2. Based on the law as enunciated in the above decisions, I find no reason to fault the learned magistrate’s finding on liability and the same is affirmed.
3. The appellants also allege in this appeal that the learned trial magistrate failed to capture or record all evidence or testimonies adduced in court. Again, having gone through the entire record I find that ground of appeal baseless and the same is dismissed as lacking in merit.
4. The injuries sustained by the plaintiff are captured in her evidence and supported by the medical report of Dr. G. K. Mwaura dated 10/1/2020 where the doctor outlined the injuries sustained as:
   1. deep cut wound – chin.
   2. bruises – frontal scalp.
   3. loss of upper right incisor.
   4. broken upper central incisor tooth.
   5. bruises hands and waistline.
   6. blunt injuries – both legs.
   7. pain and bleeding
5. At the time of physical examination, the doctor described her physical health as borderline, systematic physical health as normal and local physical examination as not fully healed/pain/tenderness/scar. The doctor’s findings, prognosis and opinion were that healing was incomplete evidenced by pain and tenderness – frontal gum and she was unable to chew hard food; suffered pain and blood loss; had a scar on the chin. He indicated that she sustained grievous harm (loss of tooth) and soft tissue injuries. He assessed future medical expenses - denture application at KShs 10,000/=
6. In their submissions at the trial court, the appellants proposed an award of KShs 150,000/=. They did not cite any authority with comparable injuries  while the respondent proposed an ward of KShs 800,000/= general damages for pain, suffering and loss of amenities.
7. On the evidence tendered, the learned trial magistrate awarded the plaintiff KShs 400,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellants to disturb that award.
8. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”

1. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded 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.”

1. Learned counsel for the respondents cited the following two decisions in support of their proposal at the lower court:
   1. Patrick Kamuya & Another v Asaph Gatundu Wanjiku [2016] eKLR where the court upheld an award of Kshs. 500,000/=. The respondent in that case had sustained a closed fracture; lost the 1^st and 2^nd incisor teeth on the lower right jaw and broke the 1^st and 2^nd incisor teeth on the lower left jaw; and also sustained a blunt injury to the 1^st and 2^nd incisor teeth on the upper right jaw. 
   2. Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] eKLR in which the High Court sitting on appeal upheld the sum of Kshs.300,000/= awarded on general damages to a plaintiff with swelling of upper part of mouth, alveolar fracture of both incisor teeth, soft tissue injuries on right leg and a superficial wound.
2. I have considered the decisions cited by the respondent before the trial court. A comparison of the injuries sustained by the respondent with the injuries sustained in the case of Patrick Kamuya (supra) shows that the respondent in that case sustained more serious injuries than the respondent in this case. The injuries sustained in the case of Washingtone Mukunya Karanja (supra) were fairly comparable to the injuries the respondent herein sustained and the decision is more recent.
3. I have read through the judgment of the learned trial magistrate and I note that there is no reference to any previous decision. In fact, there is no indication at all at how the court arrived at the general damages awarded. The learned trial magistrate simply stated that he had anxiously considered the decisions on quantum cited and annexed to the submissions by the parties and then awarded the sum of KShs 400,000/= general damages.
4. In considering whether the learned trial magistrate was in error in his assessment of damages, I have in mind the position in law that in assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable awards but recalling that no two cases are exactly alike as held by the Court of Appeal in the case of Stanley Maore –vs- Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

1. In setting aside, an award of damages made in like manner as the learned trial magistrate in this case, the Court of Appeal, in the case of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR, said thus:

“There was no authority cited on quantum, no discussion, no justification and no comparable that would have led to that sum. Essentially, as Mr. Musyoka complains, the learned Judge whimsically and capriciously imposed that figure, literally plucking it out of the air. That cannot be a proper way to arrive at damages because it is a judicial exercise not an oracular pronouncement. The sum, even were it awardable would have been, with respect, impossible to comprehend, less still defend.”

1. I therefore find that in failing to indicate how he arrived at the award of KShs 400,000/= general damages, the trial court fell in error.
2. Accordingly, I am persuaded that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on general damages for the reason that the quantum that was awarded was so manifestly high in view of similar injuries in the cases cited above.
3. I am persuaded to follow the Washingtone Mukunya Karanja (supra) decision. Considering the injuries sustained by the respondent herein as compared with the cited cases and noting the effluxion of time and the incidence of inflation as well as the fact that no two cases can ever be the same, I consider that an award of Kshs. 300,000/= is adequate compensation for the injuries sustained by the respondent herein.
4. Consequently, the trial court’s award of Kshs. 400,000/= in general damages is set aside and substituted with an award of Kshs. 300,000/=. For clarity the special damages shall remain as awarded KShs 6,050/=.
5. The total award to the respondent is therefore KShs 306,050/=.
6. Considering the extend to which the appellants have succeeded in the appeal but given that they never went beyond filing the appeal to participate in the proceedings, I order that each party shall bear their costs of the appeal.

Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 25^th day of July, 2024.

In the presence of:

N/A for Appellants.

Machira (Ms) for the Respondent.

Eutropia Court Assistant.

30 days Right of Appeal and stay of execution granted.