(Being an Appeal from the Homa Bay Chief Magistrate’s CMCC No. 74 of 2019 judgment by Hon. T.M. Olando–Principal Magistrate).
- Joshua Ouma Odera, the appellant, was the defendant in Homa Bay Chief Magistrate’s CMCC No. 74 of 2019. This was a claim from a road traffic accident involving motor vehicle registration number KBZ 839K and the respondent. The respondent sustained injuries. In the judgment delivered dated the 2nd day of February 2022, the learned trial magistrate apportioned liability at 80:20 in favour of the respondent and awarded Kshs 800 000.00 general damages, Kshs. 800,000.00 cost of future surgery and Kshs. 193, 459.00 special damages before factoring in contributory negligence.
- The appellant was aggrieved by the judgment and filed this appeal. He was represented by Kimondo Gachoka & Company Advocates. He raised grounds of appeal as follows:
- That the learned trial magistrate erred in law and, in fact, in basing his findings on irrelevant issues not supported by any evidence adduced or applicable law.
- That the learned trial magistrate erred in law and fact in failing to attach due weight to the appellant’s evidence and submissions and authorities.
- That the learned trial magistrate erred in law and, in fact, in assessing and awarding general and special damages wherein the respondent failed to prove her case.
- That the learned trial magistrate erred in law and, in fact, in apportioning liability at 80%:20% against the defendant despite overwhelming evidence.
- That the learned magistrate erred in law and, in fact, by holding the appellant strictly liable despite overwhelming evidence that the motorcyclist was entirely to blame.
- That the learned magistrate erred in law and, in fact, by failing to consider and/or record the testimonies of the defence witnesses, thus arriving at an erroneous finding.
- That the learned trial magistrate erred in law and, in fact, in finding the KBZ 839K was to blame despite the fact the motor vehicle was hit at the rear by the motorcycle, which had failed to keep a proper distance.
- That the learned trial magistrate erred in law and, in fact, by observing that this was a case of the plaintiff’s word against that of the defendant’s driver and still apportioning liability at 80:20 against the defendant and in favour of the plaintiff.
- That the learned trial magistrate erred in law and, in fact, by applying strict liability in a tort of negligence.
- That the learned magistrate erred in fact and law injudiciously, arbitrarily and exorbitantly awarding the respondent a sum of Kenya Shillings Eight Hundred thousand (800,000) as general damages, which amount was manifestly excessive and high in the circumstances and connotes an erroneous estimate.
- Geoffrey S. Okoth & Company, Advocates, represented the respondent. No grounds of opposition or submissions were filed.
- This Court is the first appellate court. I am aware of my duty to evaluate all the evidence on record, bearing in mind that I had no advantage of seeing the witnesses testify and watching their demeanour. I will be guided by the pronouncements in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its conclusions in the matter.
- According to the evidence of Jenifer Achieng Opudo (PW1), the accident occurred while she was a pillion passenger on a motorcycle. Her evidence was that the appellant’s motor vehicle left its lane and collided with the motorcycle she was a passenger. However, this was contradicted by CPL. Nicholas Muthama who testified that the motor vehicle was hit from behind by the tuk-tuk motorcycle. He was categorical that the two vehicles that collided were travelling from the same direction. When there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame. The Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] stated:
In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame… The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We, therefore, hold each driver equally to blame.
In the circumstances of this case and the evidence on record, I find that the motor vehicle registration number KBZ 839K and the motorcyclist were to blame in equal proportion. I, therefore, set aside the learned trial magistrate's finding of liability and substitute it with 50:50.
- The appellant contends that the judgment on general damages was excessive. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs Khan [1981] KLR 349 on page 356, Law JA stated:
…an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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 a figure which was either inordinately high or low.
- The respondent sustained the following injuries:
- Loss of consciousness for three hours.
- Penetrating wounds from the left knee joint and heel.
- Transverse complete fracture of the thigh bone.
- In the trial court, the respondent contended that Kshs. 950,000.00 would be adequate compensation. She relied on John Kipkemboi & another vs Morris Kedolo [2019] eKLR. The respondent in this case sustained the following injuries: amputation of the left leg below the knee, chest injury, bruises on the shoulder, back injury and crush injury. The doctor assessed incapacitation at 50 per cent due to the amputation. He was awarded Kshs 2,500,000.00 general damages.
- She also relied on Rentworks East Africa Limited vs Coley Njeru Bildad [2021] eKLR. In this case, the respondent sustained a closed head injury, and all tests returned a result that all was normal. The respondent did not suffer loss of consciousness and has never sustained epileptic seizures. An award of Kshs. 600,000.00 for general damages was given.
- The appellant in the trial court proposed an award of not more than Kshs.200,000.00. He cited Simon Mutisya Kavii vs Simon Kigutu Mwangi [2013] eKLR, where an award of Kshs. 200,000.00 was given. The doctor who examined the appellant indicated that he found:
“...extensive scar mark over the medial aspect of left thigh knee area and left leg up to lower 3rd... Movement of left knee and ankle are full. There is no limp and no shortening of the left leg. Rest of physical examination is normal.”
- He also relied on the decision in Brooke Bond (K) Ltd vs John Mwangi Ng’ang’a [2011] eKLR. The respondent who sustained the fracture of the femur was awarded Kshs.200,000.00.
- After considering the injuries suffered by the respondent herein, the passage of time since the above-cited decisions were made, and factoring in the inflation, I find no reason to interfere with the award. The appeal on general damages is dismissed. Since the appeal on liability was allowed, the appellant will be entitled to half the costs of this appeal.
Delivered and signed at Homa Bay this 9th day of April 2024