1. This appeal emanates from the judgement and decree of Hon. V.K. Momanyi Resident Magistrate/Adjudicator delivered on 8th December, 2023 in Nairobi SCCC No. E5153 of 2023.
2. The grounds of appeal presented by the Appellant vide the Memorandum of Appeal dated 13th December, 2023 upon which he seeks to upset the trial court’s findings are as follows:
i. The learned Magistrate erred by misinterpreting the law and apportioning liability at 50%:50% where the Respondents did not adduce any evidence.
ii. The learned Magistrate erred by failing to award special damages on medical costs incurred by the Claimant and disregarded the law.
iii. The learned Magistrate erred by dismissing the Claimant’s claim against the 2nd Respondent despite the 2nd Respondent being named registered owner of suit motor vehicle per copy of records (sic).
iv. The learned Magistrate erred by making an award that was too low and did not resonate to the injuries suffered by the Claimant herein.
v. The trial court erred by failing to advert to and to apply the overriding objectives and/or Article 159 of the Constitution of Kenya, 2010.
3. The Appellant proposes that the judgement of the trial court be set aside and be substituted with judgement on liability against both Respondents at 100% and that the court makes an award on special damages and further that this court reassesses general damages on the head of pain, suffering and loss of amenities.
4. This court directed that the appeal proceeds by way of written submissions and gave the parties herein timelines for filing their submissions. Both parties filed their respective submissions. It is instructive from the Appellant’s submissions that the appeal is preferred on the both liability and quantum.
5. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the relevant evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
6. In Sielle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
7. The claim before the lower court, as per the statement of claim dated 24th August, 2023 was one based on tort whereby the Appellant herein (the Claimant before the trial court) claimed and pleaded that he sustained injuries in a road traffic accident that occurred on 3rd May, 2023, for which he held the Respondents liable.
8. The relevant evidence in so far as this appeal is pursued was that of the Claimant, who testified as CW2 and that of Dr. Washington Wokabi, who testified as CW1.
9. The Appellant testified before the trial court and adopted the contents of his statement dated 24th August, 2023 in which he stated that on 3rd May, 2023, he was riding motorcycle registration number KMFT 203L along North Airport Road when motor vehicle registration number KDL 273D that was being driven by the 1st Respondent hit the Appellant from the rear when he had slowed down to allow pedestrians to cross the road, as a result of which the Appellant sustained bodily injuries as documented in the medical report that was prepared by CW1.
10. The Appellant produced the following documents before the trial court in support of his case:
- Police abstract.
- P3 form.
- Treatment notes and invoices from Nairobi West Hospital.
- Photograph of motor vehicle registration number KDL 273D.
- Demand letter dated 31st July, 2023.
11. The Appellant further stated in his statement that following the accident, he was treated at Nairobi West Hospital. He blamed the Respondents for the accident, reiterating the particulars of negligence that he pleaded in his statement of claim. He stated that the 2nd Respondent was the registered owner of the vehicle that hit him.
12. Upon being cross examined, the Appellant stated that it is the motor vehicle that moved to his side and hit him from the rear. He admitted that he did not file any receipts for the amounts that he expended for treatment and added that the receipts and invoices that he produced were in respect of treatment amounts that were paid by NHIF and his outpatient insurers.
13. Dr. Washington Wokabi (CW1) told the trial court that he examined the Appellant on 14th June, 2023 and prepared a medical report on his findings, which he produced as CExh7. The doctor charged Ksh.3,000/- for the report and produced the receipt for the amount as CExh7b.
14. Neither of the Respondents called witnesses.
15. In its judgement rendered on 8th December, 2023, the trial court apportioned liability at 50% against the Appellant and at 50% against the 1st Respondent. The trial court absolved the 2nd Respondent of liability. The trial court went on to assess general damages for pain, suffering and loss of amenities at Ksh.500,000/- and special damages at Ksh.3,000 (both subject to apportionment).
16. The Respondent raised the issue (on appeal) that the Small Claims Court did not have jurisdiction to hear and determine the matter before it, that concerned a personal injury claim pursuant to the judgement of this court (Kizito, J) delivered in Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment), which I will very briefly deal with before delving into the other issues in this appeal.
17. To address the issue of jurisdiction, it is noteworthy that the above decision is one from a court of concurrent jurisdiction that is not binding upon me.
18. I am aware that Muchemi J in Irungu v Karanja (Civil Appeal E037 of 2024) [2024] KEHC 8162 (KLR) (4 July 2024) (Judgment) held that the Small Claims Courts have jurisdiction to hear and determine personal injury claims. I am in agreement with the reasoning and findings of Muchemi J that the Small Claims Courts have jurisdiction to entertain and determine personal injury claims.
19. Now to the other matters in the appeal, having above reanalyzed, reevaluated and reconsidered the relevant evidence adduced in the trial court and bearing in mind that I did not see or hear the witnesses when they testified (see above Sielle), and further having perused and considered the Memorandum of Appeal, the record of the trial court together with the rival submissions, I deduce the issues for determination to be as follows:
a. Whether the trial court erred in reaching the finding on liability at 50% against the Appellant, 50% against the 1st Respondent and in absolving the 2nd Respondent.
b. Whether the award of Ksh.500,000/- made on the head of general damages for pain, suffering and loss of amenities was inordinately low and whether this court should interfere with the same.
c. Whether the trial court fell afoul of the law in failing to make an award on the head of special damages and whether this court should interfere with the same.
d. Who should bear the costs of the present appeal?
20. The first issue for this court to determine is whether the trial court erred in reaching the finding on liability at 50% against the Appellant, 50% against the 1st Respondent and in absolving the 2nd Respondent. In this regard, the only evidence on how the accident occurred was that of the Appellant, who told the court that the 1st Respondent drove the vehicle negligently and that as a result rammed into the Appellant, who had slowed down to allow pedestrians to cross the road, from the rear.
21. The Respondents did not call any witnesses to discount the version given by the Appellant and the same therefore remained uncontroverted. In its judgement, in apportioning liability, the trial court faulted the Appellant for not calling an eye witness or the police officer who investigated the matter and, on that basis, found the Appellant to be liable at 50%.
22. It is to be remembered that the standard of proof in civil cases is on a balance of probabilities. The issue then is whether Appellant proved his claim on the balance of probabilities and to what extent.
23. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
24. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
25. The trial court’s duty was to consider the evidence on record and determine whether the Appellant proved the issue of liability on a balance of probabilities and the extent thereof, on the basis of the evidence that was placed before the court, and not any other extraneous matters.
26. As I have stated above, the only evidence that the record availed on how the accident occurred is that of the Appellant, whereby he stated that the 1st Respondent was wholly to blame for the accident and that it was the latter that rammed into the former from the rear.
27. There was no evidence provided by the Respondents to show that the Appellant was in any way to blame for the accident and for the trial court to apportion liability against him was a clear misapprehension of the law and the facts by the trial court. As I have stated above, the evidence of the Appellant was not challenged by the Respondents.
28. With profound respect, the trial court fell into error in reaching the finding that the Appellant was at 50% to blame as that was not based on any evidence. The application of the above passage in William Kabogo Gitau (supra) gives the clear pointer that the 1st Respondent was to blame wholly for negligence.
29. The suggestion by the trial court that the failure to call an eye witness and the investigating officer pointed to the Appellant’s blameworthiness was clearly wrong for two reasons, i.e. (i) an assumption by the trial court that there was/were eye witnesses to the accident, and (ii) the court drawing an incorrect inference (that has no basis in law) that the failure to call witnesses meant that the Appellant was equally to blame.
30. The other issue relating to liability is the finding of the trial court that the same as against the 2nd Respondent was not proved. On that, the trial court observed as follows:
“Notably however, the Claimant has not adduced anything on record to demonstrate that the subject motor vehicle was owned by the 2nd Respondent. The police abstract does not contain any such information and no copy of records from the NTSA, or any other relevant evidence in that respect was placed before the court. In the premises, I find that the Claimant has not proved his case against the 2nd Respondent.”
31. Looking at the trial court’s record, I note that the Appellant listed a copy of records and a receipt thereof as among the documents that were to be produced by the Appellant. The two documents (copies) were however not included among those filed and eventually produced. The contents of the police abstract did not address the issue of registered ownership of the said vehicle. I am therefore in agreement with the trial court that the Appellant did not tender any evidence to prove that the 2nd Respondent was the registered owner of motor vehicle registration number KDL 273D.
32. The foregoing being the position, and considering that the Respondents denied in their response that the 2nd Respondent was the registered owner of the said vehicle, my view is that the Appellant did not prove vicarious liability against the 2nd Respondent as there was no proof that he owned the vehicle or that the 1st Respondent was the 2nd Respondent’s driver, agent or servant and that he was driving in the course of such engagement.
33. The second issue for this court to determine is whether the award of Ksh.500,000/- made on the head of general damages for pain, suffering and loss of amenities was inordinately low and whether this court should interfere with the same.
34. As per Dr. Wokabi’s medical report, the Appellant sustained injuries that included a compound open fracture of the right tibia. The doctor opined that the fracture would unite within 8 – 12 months and that permanent disability would settle at 6%.
35. The Appellant proposed an award of Ksh.800,000/- while the Respondents were of the view that Ksh.350,000/- would sufficiently recompense that Appellant.
36. General damages are awarded if the party claiming establishes in principle his legal entitlement to the same, and the trial court must make its own assessment of such general damages. The law on when an appellate court can interfere with an award of damages is firmly established.
37. In order to justify interfering with the award of damages made by the court that assessed the same, this court must be convinced that the trial court acted upon some wrong principle of law, or that the amount awarded was manifestly or excessively high or low as to render the same an erroneous estimate of the compensation for the injuries sustained by the party. (See Rook v Rairre [1941] 1 ALL ER 297).
38. In Butt v Khan [1981] KLR 349 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 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”.
(See generally Southern Engineering Company Ltd v Mutia [1985] eKLR; Kenfro Africa Ltd t/a Meru Express Services v Lubia &Another (No 2) [1985] eKLR and Gicheru v Morton & Another [2002] KLR 333).
39. From the trial court’s judgement, the court took guidance from decisions of superior courts in which comparable injuries were assessed, and in my view, proceeded to properly assess general damages for pain, suffering and loss of amenities at Ksh.500,000/-. I need not say more on that.
40. The third issue for determination is whether the trial court fell afoul of the law in failing to make an award on the head of special damages as claimed of Ksh.326,948/- on account of medical costs.
41. The rule as to special damages is that the same must be specifically pleaded and proved (See Equity Bank Limited v Gerald Wang’ombe Thuni [2015] eKLR). The Appellant specifically pleaded the amount of Ksh.3,000/- (being charges for the medical report) and proved the same by production of a receipt. However, with respect to treatment costs, the Appellant stated that he did not produce the receipts for the amounts that he expended. What he produced were documents that were in respect of payments due or made by the NHIF and his outpatient insurers. To that end, I am on the same page with the trial court that the Appellant could not rightfully seek to recover amounts that were paid by third parties as he did not himself expend the same.
42. Being of the foregoing persuasion, I will allow the appeal, only to the extent that I set aside the findings on liability by the trial court (50% against the Appellant and 50% against the 1st Respondent) and substitute the same with a finding that the 1st Respondent was 100% liable for the accident.
43. Section 27 of the Civil Procedure Act, Cap 21 Laws of Kenya dictates that costs ought to follow the event. Thus then, as the Appellant is only partly successful, each party shall bear its own costs of the appeal.
DELIVERED (virtually), DATED & SIGNED this 6th day of March, 2025.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Mr. Kaburu.
FOR RESPONDENTS: Ms. Wahome for Mr. Mege.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
Ms. Wahome: I pray for 30 days stay of execution.
Ms. Kaburu: No objection.
Court: There shall be stay of execution for 30 days.
JOE M. OMIDO
JUDGE