1. On 21 March 2024, the mmagistrate’s court in Mombasa Chief Magistrate’s Court Civil Case No. 188 of 2023 (Hon. Lucy Khaendi Sindani, (Senior Resident Magistrate), awarded the respondent the sum of Kshs. 550, 000/= as general damages and future medical expenses of Kshs. 38,000/= in a running down claim against the appellants. The accident in which the respondent is said to have sustained personal injuries occurred on 31 January 2023 on Mtongwe Road, in Mombasa. It involved the appellants’ motor vehicle registration no. KCB 634Z (Toyota Succeed) which is said to have veered off the road and struck the respondent who, at the material time was on a pedestrian walk.
2. The accident was attributed to the negligence of the appellants or their driver. In fact, the magistrate found them to have been solely responsible of the accident.
3. Aggrieved by the court’s decision, the appellants have appealed to this Honourable Court. They have raised the following grounds of appeal in their memorandum of appeal dated 2 April 2024:
“a. That the Honourable Learned Magistrate erred in law and fact in finding the Appellant liable to the tune of 100%.
b. That the Honorable Learned Magistrate erred in law and in fact in disregarding the overwhelming evidence tendered by the Defence in assessment of general damages and awarding damages under future medical expenses.
c. That the learned Magistrate misdirected herself by failing to consider and apply some weight on the submissions filed by the Appellant while apportioning liability and arriving at the amounts awarded under general damages and future medical expenses.
d. That the Honourable Learned Magistrate erred in law and facts in relying on extraneous evidence in arriving at his decision on both quantum and liability.”
4. Based on these grounds, the appellants seek that the appeal be allowed and the judgment in the magistrate’s court be set aside or varied. They also want the award on damages reviewed downwards and costs of the appeal awarded to them.
5. The court record shows that only the respondent and a police officer testified. The officer testified as the respondent’s only witness. He introduced himself as constable Taliyo Omar and that he was based at Likoni police station where he performed traffic duties. It was his evidence that the accident occurred on 31 January 2023 at 10 PM along Mtongwe Road and that it involved motor vehicle registration no. KCB 634Z and the respondent. The respondent was a pedestrian at the material time.
6. It was the police officer’s evidence that the vehicle was from Mtongwe heading towards Likoni when it veered off the left side of the road and knocked down the respondent. The accident was reported at Likoni police station after which a police abstract and a P3 form were issued to the respondent. The officer admitted that he personally did not investigate the accident but according to the report in the occurrence book, the motor vehicle was to blame for the accident.
7. The respondent testified after the police officer’s testimony was taken. He testified that he was a carpenter earning Kshs. 1,500/= per day. His left big toe was fractured as a result of the accident. He was attended to in hospital but was discharged immediately. He was advised to attend physiotherapy sessions and at the time he testified, he had attended four sessions for which he was charged Kshs. 1,000 per session. Upon cross-examination, he stated that he had attended ten sessions of physiotherapy.
8. It was also his evidence that the accident had affected his capacity to work in the sense that he could not work as he used to before the accident. He could also not walk long distances because of pains as a result of the injury on his big toe. He reiterated that he was off the road when the appellants’ vehicle veered off the road and knocked him.
That was all there was to evidence.
9. As far as the question of apportionment of liability is concerned, I must begin by stating what the Court of Appeal for East African stated in Railways Corporation versus E.A. Road Services (1975) EA 128, that it is a well-settled principle that the appellate court will not interfere with an apportionment of liability assessed by a trial court, except where it can be shown that there is some error in principle, or that the apportionment is manifestly erroneous.
10. In so stating, the court cited its earlier decisions in Khambi and Another v. Mahithi and Another, (1969)1E.A. 70; Zarina Akbarali Shariff & Another versus Noshir Prosesha Sethna and Others (1963) E.A.239 and the unreported case of William Bumba versus Phillip Okech Civil Appeal No. 53 of 1974. In this latter unreported case, the court held that it would interfere with apportionment of liability if, in its opinion, the assessment was based on a wrongful appreciation of the evidence.
11. In the case out of which this appeal arose, the learned magistrate held the appellants to be solely responsible for the accident. She established, as a fact, that the respondent was a pedestrian who was standing off the road, on a pedestrian walk when he was knocked down.
12. In the absence of any evidence to the contrary, the learned magistrate rightly reached the conclusion that the respondent’s evidence, that the driver of the motor vehicle was careless in controlling motor-vehicle registration no. KCB 634Z, was not controverted. The learned magistrate correctly applied section 107 of the Evidence Act, cap. 80 on the question of burden of proof. This section reads as follows:
107. Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
13. The respondent gave his version of facts leading to the accident and, as noted, blamed the driver of the motor vehicle for the accident. The appellants did not call any evidence and, therefore, did not present any facts alternative to those given by the respondent. According to section 107(2) of the Evidence Act, the burden of proof that the accident occurred in any other manner than that presented by the respondent, shifted to the appellants; that is, it was incumbent upon the appellants to rebut the respondent’s evidence. This section reads as follows:
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
14. Without a rebuttal, the learned magistrate was entitled to accept as true the evidence of the respondent on the occurrence of the accident and, in particular, that the appellant’s driver was careless or reckless in driving, managing or controlling the appellants’ vehicle. The appellants were properly held to be solely vicariously liable for their driver’s negligence.
15. The respondent pleaded the doctrine of res ipsa loquitor in pursuit of his claim. The essence of this doctrine is that once a claimant invokes it, the burden is on the respondent to explain that he was not negligent for the accident in issue and regardless of whatever he may have done to avoid it, it did happen anyway.
16. In the English case of Barkway versus South Wales Transport Co. Ltd (1950) 1ALL ER; a tyre of an omnibus burst, causing it to veer off the road and fall over an embankment as a result of which a passenger died. Several hypotheses were put forth but none of them was attributable to the tyre burst with any measure of certainty. It could not be explained in categorical terms how the defendant company, the omnibus owner, may have been negligent. The claimant pleaded res ipsa loquitur because, she urged, 'omnibuses which are properly serviced do not burst their tyres without cause nor do they leave the road along which they are being driven.'
17. The case escalated to the House of Lords. In the leading judgment, Lord Porter cited Erle CJ in Scott versus London Dock Co (3H&C 601) where he said of this doctrine as follows:
"... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care"
18. The learned judge went further to explain that "the doctrine is dependent on the absence of explanation and although it is the duty of the defendants if they decide to protect themselves to give an adequate explanation of the cause of the accident yet if the facts are sufficiently known the question ceases to be one where the facts speak for themselves and the solution is to be found by determining whether on the facts as established negligence is to be inferred or not."
19. On his part, Lord Normand spoke of the doctrine as follows:
"The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient foundation for a finding of liability against him. It can rarely happen when a road accident occurs that there is no other evidence, and, if the cause of the accident is proved, the maximum res ipsa loquitur is of little moment. The question then comes to be whether the owner has performed the duty of care incumbent on him, or whether he is by reason of his negligence responsible for the injury. The maxim is no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant." (Emphasis added).
20. Based on these decisions, I hold that the learned magistrate was right in finding the appellants negligent and solely responsible for the accident. There is no evidence that in holding the appellants solely culpable, the learned magistrate committed some error in principle, or that the apportionment of liability was manifestly erroneous. In the ultimate, I find no merit in the appellant’s appeal on liability.
21. As for the question of quantum of general damages, the starting point, as always in this sort of cases, is the injuries established to have been sustained by the claimant; the extent of personal injuries sustained invariably determines the quantum of damages under this head. Crucial in determination of the extent of injuries sustained is the claimant’s own evidence and the medical evidence. When he testified on 8 November 2023, the respondent’s evidence in this regard was as follows:
“I was injured on my left big toe. It was fractured. I was taken to hospital. The doctor told me….(illegible) therapies and use painkillers. I use 3,000/= per pain killers. Physiotherapies is 1000 per session.
I have gone for four sessions.
The accident has affected because my work involved so much involvement going up and down to build roofs. We use ladders so right now I can’t work as I used to.
I cannot walk long distance because of pains.”
22. In answer to questions asked during cross-examination, the respondent testified as follows:
“I got injured on the toe and right eye.
I have been going to hospital.
I do not remember when I last went to hospital, but it is two months ago.
I am still on painkillers.
I use Kshs. 3000 per month
I have gone for 10 sessions of physiotherapy.
I have been going for physiotherapy at Savana.”
23. Two medical reports on the respondent’s medical examination were produced and admitted in evidence without calling the doctors who prepared them; the medical evidence was thus admitted by consent of the parties.
24. The respondent’s doctor’s report does not appear to be complete though. The report is dated 8 February 2023 and in its pertinent part, it reads as follows:
“EXEXUTIVE SUMMARY;
Partial permanent disability/incapacity and in consideration of prognostic outcome of this injury is rated at two percent {2%) due to post traumatic arthritis and stiffness left big toe, a life time of recurring post traumatic pains left big toe and diminished capacity to work and undertake further activities of daily living. Re-evaluation is recommended in six months' time after sufficient
healing has occurred.
History:
Mgunya informed me that he was involved in road traffic accident on 31st January, 2023 at 2200 hours, sustaining the following injuries.
1. Fracture distal phalanx left bigtoe- Fig 1.
2. Blunt trauma to the right eye.
3. Bruises and abrasions right eye/nasal area and right forearm.
TREATMENT: At Savani Healthcare orthopaedic department. Given analgesics. X-ray done showed above fracture. Done closed reduction and application of POP boot cast. _
RESENT POSITION:
complains of red painful right eye and pains right foot.
I examined Mgunya approximately 9 days after his injuries. He was on crutches. He had no palor, jaundice or oedema. His blood pressure and vital signs, were
essentially normal. Further examination revealed the following;
1.Red right eye with bruises/abrasion right eye area and nasal area-fig2”
25. The respondent was subjected to a second medical examination by the appellants’ doctor. The doctor, Dr. Udayan R. Sheth examined the respondent on 4 May 2023 and made the following report:
“Present condition: no complaint
On examination: There is no visible scar around right eye. There is no tenderness
no deformity of left big toe. Movement of left big toe is full and painless.
Rest of the physical examination is normal.
Opinion:
Mr. Vunga sustained above injury due to road traffic accident on
31/1/23. At present, he has fully recovered there is no deformity and no permanent incapacity.”
26. There are variations in the two reports the most conspicuous being the doctors’ opinions on the disability of the respondent. According to the respondent’s doctor, the disability was assessed at 2% percent while the appellants’ doctor was of the opinion that the respondent’s movement of the left big toe was normal and without any pain. The respondent was found to be normal and without any sort of complaints.
27. The respondent’s injuries can properly be described as soft tissue or superficial injuries. On whether he suffered any permanent disability, it is more probable that he did not. His own doctor was of the opinion that the respondent needed further evaluation; a little over a month after the initial examination. It can only be assumed that it is after this further evaluation that the doctor would have concluded, with any conviction, whether there was any degree of permanent disability as result of the respondent’s injuries, more particularly to his left big toe.
28. In the absence of such further evaluation and, looking at the respondent’s doctor’s report, there does not appear to be any basis for the conclusion that the respondent was likely to be permanently disabled to any degree.
29. The appellants’ doctor examined the respondent more than three months after the respondent sustained the injuries. His findings were that as at the time of examination of the respondent, the respondent was completely normal in every respect. No contrary evidence was presented controverting the appellant’s doctor’s opinion on the status of the respondent’s physical health as at 4 May 2023 when he was examined.
30. Yet in her judgment, the learned magistrate held, inter alia, that:
“Basing on the initial reports from the first hospital the plaintiff was seen, I find that the plaintiff suffered a fracture as opposed to what was stated by Dr. Udayan Sheth who indicated no fracture as an opinion without doing an X-ray.”
31. Dr. Udayan did not indicate in his report that the respondent had not suffered any fracture. Upon examination of the respondent, his opinion was that:
“There is no tenderness no deformity of left big toe. Movement of left big toe is full and painless.”
32. I understand the doctor’s findings to be that irrespective of the injuries the respondent had sustained, which would, of course, include the fracture of the left big toe, the respondent had completely healed, at the time of examination.
33. In making her award, the learned magistrate relied on two cases to which the respondent’s learned counsel referred in his written submission; these cases are Modern Coast Coaches Limited versus Ouya Violet Ongachi, Civil Appeal No. E073 of 2021 (2022) KEHC 13482 (KLR) and Dickson Ciuri Wanjiru versus Municipal Council of Nakuru and Another (2020) eKLR.
34. In the former case, the amount awarded was Kshs. 540,000/= but the nature and extent of the claimant’s injuries have not been specified in the judgment. As for the latter case, the claimant was awarded Kshs. 800,000 as general damages for what was described in the judgment as “fractures of the phalanx on the big toe plus multiple tissue injuries”.
35. Although the learned magistrate stated in her judgment that the appellants did not file any written submissions, there are submissions in the record of appeal dated 7 December 2023; however, it is not clear, on their face, when they were filed in the magistrate’s court.
36. In those submissions, the appellants urged that the sum of Kshs. 200,000/= would be an adequate award in general damages. They cited the case of Peter Bernard Makau versus Prime Steel Limited (2018) eklr where the claimant is said to have been awarded the sum of Kshs. 100,000/= in general damages for a fracture on his toe and soft tissue injuries. The other decision which the appellants cited was Peter Opiyo Ager versus David Otieno Owino & Another (2020) eklr where the claimant was awarded the sum of Kshs. 200,000/= for a stiff neck, injuries on the shoulder, left arm, chest and on the small left toe.
37. It is trite that assessment of damages is always the discretion of the trial court and, for that reason, the appellate court would normally be reluctant to interfere with such an exercise unless it can be demonstrated that the assessment was erroneous in certain respects. This was so held by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). In that case, it was held that:
“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 that 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 Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K).”
38. Speaking of principles to be considered in award of damages, the Court of Appeal outlined them in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR) where Kneller JA, held as follows:
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge:
1. each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards;
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award…”.
39. In Modern Coast Coaches Limited versus Ouya Violet Ongachi (supra) this Honourable Court (Kemei, J.) upheld the magistrate’s court award of Kshs. 540,000/= in general damages for “moderate bone injury in the mishap i.e. fracture of the proximal phalanx of the right big toe”. The injury was said to be in the process of healing and that it was expected to heal within one year of the making of the doctor’s report. A second medical report showed that the injuries were “fully healed with no complications or permanent disability”.
40. And in Dickson Ciuri Wanjiru v Municipal Council of Nakuru & another (supra) the injuries were particularised as:
“a. Crush injury to the foot with compound fractures of the metatarsals resulting into amputation of the 2nd, 3rd and toes and 3rd metatarsals.
b. Fracture of the 4th and 5th metatarsals.
c. Fracture of the proximal phalanx left big toe.
d. Cut wound on the left thigh.
e. Bruises on the left knee.”
41. The award of Kshs. 800,000/= as general damages for pain and suffering was upheld by this Honourable Court (Ngetich, J. as she then was)
42. In Peter Bernard Makau versus Prime Steel Limited (supra) the injuries were described as “soft tissue injuries and fractured bone” which, according to the medical examination, were bound to heal with “no residual permanent disability”. This Court (Nyakundi, J.) upheld the learned magistrates award of Kshs. 100,000/= as damages for pain and suffering. Finally, in Pitalis Opiyo Ager v Daniel Otieno Owino & another [2020] eKLR Aburili, J. upheld the award of Kshs. 200,000/= as general damages where the claimant was found to have sustained a swollen tender left elbow joint; a swollen tender left shoulder joint; a cut wound on the right parietal region of the scalp and multiple bruises metatarsals.
43. The learned magistrate gave no consideration to the appellants’ submissions and, in particular, the submissions on the extent of general damages that could possibly be awarded. Coupled with the learned magistrate’s misdirection on the evidence of Dr. Udayan, this omission led to an award that can be said to have ignored the proper principle to be applied and based on the misunderstanding of the relevant evidence.
44. The consequences of this misstep was that the award made was inordinately high. Based on the decisions with which the learned magistrate was presented and bearing in mind the principle that comparable injuries should attract comparable awards, an award of Kshs. 300,000/= would have been an appropriate award as a near adequate compensation under the head of general damages for pain and suffering.
45. The learned magistrate awarded future medical expenses; in making the award under this head, the learned magistrate held as follows:
“The plaintiff pleaded for future medical and produced a medical report in which the doctor indicated that the plaintiff will need pain killers and joint bone medication at 3000/- per month for six months and physiotherapy at ksh 1000/- for 20 sessions making a total of ksh 20,000/- . I therefore a ward a sum of ksh 38,000/- as future medical expenses.”
46. The report, the basis upon which the learned magistrate made her award was made 9 days after the respondent sustained the injuries. More than three months down the line, there was no evidence that the respondent had taken any of the medications ostensibly prescribed as a component of future medical expenses. At the time of giving his evidence, the respondent testified that he had attended at least four or ten sessions of the recommended physiotherapy sessions and that he had paid Kshs. 1000 for each session; He also testified that he had spent Kshs. 3000 on medication. However, he neither provided proof of attendance of the physiotherapy sessions nor proof of payment for any of those sessions. He also did not provide any proof of expenses incurred on the medication prescribed by his doctor as “future medical expenses”.
47. More importantly, the respondent was certified to have been completely healed as at 4 May 2023, when he was examined. In short, there was no basis for the award of future medical expenses. The Court of Appeal defined the circumstances under which the award for future medical expenses may be made in Forwarding Company Limited & another v Kisilu; Gladwell (Third party) (Civil Appeal 344 of 2018) [2022] KECA 96 (KLR) (4 February 2022) (Judgment); the Court held as follows:
“62. In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances.”
48. With the latest report on the respondent’s condition saying that the respondent was fully healed, there was no possibility that the respondent was going to spend any money to cover from future medical expenses. The respondent testified after a medical report which opined that he would need medical expenses had been made. However, there was no evidence that the respondent incurred any medical expenses subsequent to this report. Under these circumstances, the award of future medical expenses was not supported by any evidence.
49. For the reasons I have given, I allow the appeal to the extent that the general damages are scaled downwards to Kshs. 300,000/= and the award on future medical expenses set aside. No appeal was made against the award on special damages and, therefore the award made under that head shall remain undisturbed.
50. Considering that the appeal has partially succeeded, parties will bear their respective costs. However, the respondent shall have costs in the lower court. Interest on the award on general, special damages and costs shall accrue from the date of judgment in the lower court. Orders accordingly.
2. The accident was attributed to the negligence of the appellants or their driver. In fact, the magistrate found them to have been solely responsible of the accident.
3. Aggrieved by the court’s decision, the appellants have appealed to this Honourable Court. They have raised the following grounds of appeal in their memorandum of appeal dated 2 April 2024:
“a. That the Honourable Learned Magistrate erred in law and fact in finding the Appellant liable to the tune of 100%.
b. That the Honorable Learned Magistrate erred in law and in fact in disregarding the overwhelming evidence tendered by the Defence in assessment of general damages and awarding damages under future medical expenses.
c. That the learned Magistrate misdirected herself by failing to consider and apply some weight on the submissions filed by the Appellant while apportioning liability and arriving at the amounts awarded under general damages and future medical expenses.
d. That the Honourable Learned Magistrate erred in law and facts in relying on extraneous evidence in arriving at his decision on both quantum and liability.”
4. Based on these grounds, the appellants seek that the appeal be allowed and the judgment in the magistrate’s court be set aside or varied. They also want the award on damages reviewed downwards and costs of the appeal awarded to them.
5. The court record shows that only the respondent and a police officer testified. The officer testified as the respondent’s only witness. He introduced himself as constable Taliyo Omar and that he was based at Likoni police station where he performed traffic duties. It was his evidence that the accident occurred on 31 January 2023 at 10 PM along Mtongwe Road and that it involved motor vehicle registration no. KCB 634Z and the respondent. The respondent was a pedestrian at the material time.
6. It was the police officer’s evidence that the vehicle was from Mtongwe heading towards Likoni when it veered off the left side of the road and knocked down the respondent. The accident was reported at Likoni police station after which a police abstract and a P3 form were issued to the respondent. The officer admitted that he personally did not investigate the accident but according to the report in the occurrence book, the motor vehicle was to blame for the accident.
7. The respondent testified after the police officer’s testimony was taken. He testified that he was a carpenter earning Kshs. 1,500/= per day. His left big toe was fractured as a result of the accident. He was attended to in hospital but was discharged immediately. He was advised to attend physiotherapy sessions and at the time he testified, he had attended four sessions for which he was charged Kshs. 1,000 per session. Upon cross-examination, he stated that he had attended ten sessions of physiotherapy.
8. It was also his evidence that the accident had affected his capacity to work in the sense that he could not work as he used to before the accident. He could also not walk long distances because of pains as a result of the injury on his big toe. He reiterated that he was off the road when the appellants’ vehicle veered off the road and knocked him.
That was all there was to evidence.
9. As far as the question of apportionment of liability is concerned, I must begin by stating what the Court of Appeal for East African stated in Railways Corporation versus E.A. Road Services (1975) EA 128, that it is a well-settled principle that the appellate court will not interfere with an apportionment of liability assessed by a trial court, except where it can be shown that there is some error in principle, or that the apportionment is manifestly erroneous.
10. In so stating, the court cited its earlier decisions in Khambi and Another v. Mahithi and Another, (1969)1E.A. 70; Zarina Akbarali Shariff & Another versus Noshir Prosesha Sethna and Others (1963) E.A.239 and the unreported case of William Bumba versus Phillip Okech Civil Appeal No. 53 of 1974. In this latter unreported case, the court held that it would interfere with apportionment of liability if, in its opinion, the assessment was based on a wrongful appreciation of the evidence.
11. In the case out of which this appeal arose, the learned magistrate held the appellants to be solely responsible for the accident. She established, as a fact, that the respondent was a pedestrian who was standing off the road, on a pedestrian walk when he was knocked down.
12. In the absence of any evidence to the contrary, the learned magistrate rightly reached the conclusion that the respondent’s evidence, that the driver of the motor vehicle was careless in controlling motor-vehicle registration no. KCB 634Z, was not controverted. The learned magistrate correctly applied section 107 of the Evidence Act, cap. 80 on the question of burden of proof. This section reads as follows:
107. Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
13. The respondent gave his version of facts leading to the accident and, as noted, blamed the driver of the motor vehicle for the accident. The appellants did not call any evidence and, therefore, did not present any facts alternative to those given by the respondent. According to section 107(2) of the Evidence Act, the burden of proof that the accident occurred in any other manner than that presented by the respondent, shifted to the appellants; that is, it was incumbent upon the appellants to rebut the respondent’s evidence. This section reads as follows:
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
14. Without a rebuttal, the learned magistrate was entitled to accept as true the evidence of the respondent on the occurrence of the accident and, in particular, that the appellant’s driver was careless or reckless in driving, managing or controlling the appellants’ vehicle. The appellants were properly held to be solely vicariously liable for their driver’s negligence.
15. The respondent pleaded the doctrine of res ipsa loquitor in pursuit of his claim. The essence of this doctrine is that once a claimant invokes it, the burden is on the respondent to explain that he was not negligent for the accident in issue and regardless of whatever he may have done to avoid it, it did happen anyway.
16. In the English case of Barkway versus South Wales Transport Co. Ltd (1950) 1ALL ER; a tyre of an omnibus burst, causing it to veer off the road and fall over an embankment as a result of which a passenger died. Several hypotheses were put forth but none of them was attributable to the tyre burst with any measure of certainty. It could not be explained in categorical terms how the defendant company, the omnibus owner, may have been negligent. The claimant pleaded res ipsa loquitur because, she urged, 'omnibuses which are properly serviced do not burst their tyres without cause nor do they leave the road along which they are being driven.'
17. The case escalated to the House of Lords. In the leading judgment, Lord Porter cited Erle CJ in Scott versus London Dock Co (3H&C 601) where he said of this doctrine as follows:
"... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care"
18. The learned judge went further to explain that "the doctrine is dependent on the absence of explanation and although it is the duty of the defendants if they decide to protect themselves to give an adequate explanation of the cause of the accident yet if the facts are sufficiently known the question ceases to be one where the facts speak for themselves and the solution is to be found by determining whether on the facts as established negligence is to be inferred or not."
19. On his part, Lord Normand spoke of the doctrine as follows:
"The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient foundation for a finding of liability against him. It can rarely happen when a road accident occurs that there is no other evidence, and, if the cause of the accident is proved, the maximum res ipsa loquitur is of little moment. The question then comes to be whether the owner has performed the duty of care incumbent on him, or whether he is by reason of his negligence responsible for the injury. The maxim is no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant." (Emphasis added).
20. Based on these decisions, I hold that the learned magistrate was right in finding the appellants negligent and solely responsible for the accident. There is no evidence that in holding the appellants solely culpable, the learned magistrate committed some error in principle, or that the apportionment of liability was manifestly erroneous. In the ultimate, I find no merit in the appellant’s appeal on liability.
21. As for the question of quantum of general damages, the starting point, as always in this sort of cases, is the injuries established to have been sustained by the claimant; the extent of personal injuries sustained invariably determines the quantum of damages under this head. Crucial in determination of the extent of injuries sustained is the claimant’s own evidence and the medical evidence. When he testified on 8 November 2023, the respondent’s evidence in this regard was as follows:
“I was injured on my left big toe. It was fractured. I was taken to hospital. The doctor told me….(illegible) therapies and use painkillers. I use 3,000/= per pain killers. Physiotherapies is 1000 per session.
I have gone for four sessions.
The accident has affected because my work involved so much involvement going up and down to build roofs. We use ladders so right now I can’t work as I used to.
I cannot walk long distance because of pains.”
22. In answer to questions asked during cross-examination, the respondent testified as follows:
“I got injured on the toe and right eye.
I have been going to hospital.
I do not remember when I last went to hospital, but it is two months ago.
I am still on painkillers.
I use Kshs. 3000 per month
I have gone for 10 sessions of physiotherapy.
I have been going for physiotherapy at Savana.”
23. Two medical reports on the respondent’s medical examination were produced and admitted in evidence without calling the doctors who prepared them; the medical evidence was thus admitted by consent of the parties.
24. The respondent’s doctor’s report does not appear to be complete though. The report is dated 8 February 2023 and in its pertinent part, it reads as follows:
“EXEXUTIVE SUMMARY;
Partial permanent disability/incapacity and in consideration of prognostic outcome of this injury is rated at two percent {2%) due to post traumatic arthritis and stiffness left big toe, a life time of recurring post traumatic pains left big toe and diminished capacity to work and undertake further activities of daily living. Re-evaluation is recommended in six months' time after sufficient
healing has occurred.
History:
Mgunya informed me that he was involved in road traffic accident on 31st January, 2023 at 2200 hours, sustaining the following injuries.
1. Fracture distal phalanx left bigtoe- Fig 1.
2. Blunt trauma to the right eye.
3. Bruises and abrasions right eye/nasal area and right forearm.
TREATMENT: At Savani Healthcare orthopaedic department. Given analgesics. X-ray done showed above fracture. Done closed reduction and application of POP boot cast. _
RESENT POSITION:
complains of red painful right eye and pains right foot.
I examined Mgunya approximately 9 days after his injuries. He was on crutches. He had no palor, jaundice or oedema. His blood pressure and vital signs, were
essentially normal. Further examination revealed the following;
1.Red right eye with bruises/abrasion right eye area and nasal area-fig2”
25. The respondent was subjected to a second medical examination by the appellants’ doctor. The doctor, Dr. Udayan R. Sheth examined the respondent on 4 May 2023 and made the following report:
“Present condition: no complaint
On examination: There is no visible scar around right eye. There is no tenderness
no deformity of left big toe. Movement of left big toe is full and painless.
Rest of the physical examination is normal.
Opinion:
Mr. Vunga sustained above injury due to road traffic accident on
31/1/23. At present, he has fully recovered there is no deformity and no permanent incapacity.”
26. There are variations in the two reports the most conspicuous being the doctors’ opinions on the disability of the respondent. According to the respondent’s doctor, the disability was assessed at 2% percent while the appellants’ doctor was of the opinion that the respondent’s movement of the left big toe was normal and without any pain. The respondent was found to be normal and without any sort of complaints.
27. The respondent’s injuries can properly be described as soft tissue or superficial injuries. On whether he suffered any permanent disability, it is more probable that he did not. His own doctor was of the opinion that the respondent needed further evaluation; a little over a month after the initial examination. It can only be assumed that it is after this further evaluation that the doctor would have concluded, with any conviction, whether there was any degree of permanent disability as result of the respondent’s injuries, more particularly to his left big toe.
28. In the absence of such further evaluation and, looking at the respondent’s doctor’s report, there does not appear to be any basis for the conclusion that the respondent was likely to be permanently disabled to any degree.
29. The appellants’ doctor examined the respondent more than three months after the respondent sustained the injuries. His findings were that as at the time of examination of the respondent, the respondent was completely normal in every respect. No contrary evidence was presented controverting the appellant’s doctor’s opinion on the status of the respondent’s physical health as at 4 May 2023 when he was examined.
30. Yet in her judgment, the learned magistrate held, inter alia, that:
“Basing on the initial reports from the first hospital the plaintiff was seen, I find that the plaintiff suffered a fracture as opposed to what was stated by Dr. Udayan Sheth who indicated no fracture as an opinion without doing an X-ray.”
31. Dr. Udayan did not indicate in his report that the respondent had not suffered any fracture. Upon examination of the respondent, his opinion was that:
“There is no tenderness no deformity of left big toe. Movement of left big toe is full and painless.”
32. I understand the doctor’s findings to be that irrespective of the injuries the respondent had sustained, which would, of course, include the fracture of the left big toe, the respondent had completely healed, at the time of examination.
33. In making her award, the learned magistrate relied on two cases to which the respondent’s learned counsel referred in his written submission; these cases are Modern Coast Coaches Limited versus Ouya Violet Ongachi, Civil Appeal No. E073 of 2021 (2022) KEHC 13482 (KLR) and Dickson Ciuri Wanjiru versus Municipal Council of Nakuru and Another (2020) eKLR.
34. In the former case, the amount awarded was Kshs. 540,000/= but the nature and extent of the claimant’s injuries have not been specified in the judgment. As for the latter case, the claimant was awarded Kshs. 800,000 as general damages for what was described in the judgment as “fractures of the phalanx on the big toe plus multiple tissue injuries”.
35. Although the learned magistrate stated in her judgment that the appellants did not file any written submissions, there are submissions in the record of appeal dated 7 December 2023; however, it is not clear, on their face, when they were filed in the magistrate’s court.
36. In those submissions, the appellants urged that the sum of Kshs. 200,000/= would be an adequate award in general damages. They cited the case of Peter Bernard Makau versus Prime Steel Limited (2018) eklr where the claimant is said to have been awarded the sum of Kshs. 100,000/= in general damages for a fracture on his toe and soft tissue injuries. The other decision which the appellants cited was Peter Opiyo Ager versus David Otieno Owino & Another (2020) eklr where the claimant was awarded the sum of Kshs. 200,000/= for a stiff neck, injuries on the shoulder, left arm, chest and on the small left toe.
37. It is trite that assessment of damages is always the discretion of the trial court and, for that reason, the appellate court would normally be reluctant to interfere with such an exercise unless it can be demonstrated that the assessment was erroneous in certain respects. This was so held by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). In that case, it was held that:
“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 that 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 Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K).”
38. Speaking of principles to be considered in award of damages, the Court of Appeal outlined them in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR) where Kneller JA, held as follows:
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge:
1. each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards;
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award…”.
39. In Modern Coast Coaches Limited versus Ouya Violet Ongachi (supra) this Honourable Court (Kemei, J.) upheld the magistrate’s court award of Kshs. 540,000/= in general damages for “moderate bone injury in the mishap i.e. fracture of the proximal phalanx of the right big toe”. The injury was said to be in the process of healing and that it was expected to heal within one year of the making of the doctor’s report. A second medical report showed that the injuries were “fully healed with no complications or permanent disability”.
40. And in Dickson Ciuri Wanjiru v Municipal Council of Nakuru & another (supra) the injuries were particularised as:
“a. Crush injury to the foot with compound fractures of the metatarsals resulting into amputation of the 2nd, 3rd and toes and 3rd metatarsals.
b. Fracture of the 4th and 5th metatarsals.
c. Fracture of the proximal phalanx left big toe.
d. Cut wound on the left thigh.
e. Bruises on the left knee.”
41. The award of Kshs. 800,000/= as general damages for pain and suffering was upheld by this Honourable Court (Ngetich, J. as she then was)
42. In Peter Bernard Makau versus Prime Steel Limited (supra) the injuries were described as “soft tissue injuries and fractured bone” which, according to the medical examination, were bound to heal with “no residual permanent disability”. This Court (Nyakundi, J.) upheld the learned magistrates award of Kshs. 100,000/= as damages for pain and suffering. Finally, in Pitalis Opiyo Ager v Daniel Otieno Owino & another [2020] eKLR Aburili, J. upheld the award of Kshs. 200,000/= as general damages where the claimant was found to have sustained a swollen tender left elbow joint; a swollen tender left shoulder joint; a cut wound on the right parietal region of the scalp and multiple bruises metatarsals.
43. The learned magistrate gave no consideration to the appellants’ submissions and, in particular, the submissions on the extent of general damages that could possibly be awarded. Coupled with the learned magistrate’s misdirection on the evidence of Dr. Udayan, this omission led to an award that can be said to have ignored the proper principle to be applied and based on the misunderstanding of the relevant evidence.
44. The consequences of this misstep was that the award made was inordinately high. Based on the decisions with which the learned magistrate was presented and bearing in mind the principle that comparable injuries should attract comparable awards, an award of Kshs. 300,000/= would have been an appropriate award as a near adequate compensation under the head of general damages for pain and suffering.
45. The learned magistrate awarded future medical expenses; in making the award under this head, the learned magistrate held as follows:
“The plaintiff pleaded for future medical and produced a medical report in which the doctor indicated that the plaintiff will need pain killers and joint bone medication at 3000/- per month for six months and physiotherapy at ksh 1000/- for 20 sessions making a total of ksh 20,000/- . I therefore a ward a sum of ksh 38,000/- as future medical expenses.”
46. The report, the basis upon which the learned magistrate made her award was made 9 days after the respondent sustained the injuries. More than three months down the line, there was no evidence that the respondent had taken any of the medications ostensibly prescribed as a component of future medical expenses. At the time of giving his evidence, the respondent testified that he had attended at least four or ten sessions of the recommended physiotherapy sessions and that he had paid Kshs. 1000 for each session; He also testified that he had spent Kshs. 3000 on medication. However, he neither provided proof of attendance of the physiotherapy sessions nor proof of payment for any of those sessions. He also did not provide any proof of expenses incurred on the medication prescribed by his doctor as “future medical expenses”.
47. More importantly, the respondent was certified to have been completely healed as at 4 May 2023, when he was examined. In short, there was no basis for the award of future medical expenses. The Court of Appeal defined the circumstances under which the award for future medical expenses may be made in Forwarding Company Limited & another v Kisilu; Gladwell (Third party) (Civil Appeal 344 of 2018) [2022] KECA 96 (KLR) (4 February 2022) (Judgment); the Court held as follows:
“62. In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances.”
48. With the latest report on the respondent’s condition saying that the respondent was fully healed, there was no possibility that the respondent was going to spend any money to cover from future medical expenses. The respondent testified after a medical report which opined that he would need medical expenses had been made. However, there was no evidence that the respondent incurred any medical expenses subsequent to this report. Under these circumstances, the award of future medical expenses was not supported by any evidence.
49. For the reasons I have given, I allow the appeal to the extent that the general damages are scaled downwards to Kshs. 300,000/= and the award on future medical expenses set aside. No appeal was made against the award on special damages and, therefore the award made under that head shall remain undisturbed.
50. Considering that the appeal has partially succeeded, parties will bear their respective costs. However, the respondent shall have costs in the lower court. Interest on the award on general, special damages and costs shall accrue from the date of judgment in the lower court. Orders accordingly.