Julius Thiongo Ngugi VS Damaris Wangui Gitonga, Peter Muthe Kamau, Huruma Sacco & Martin Gathoni Mwea

Preliminary

1. The appellant has filed this appeal through a memorandum of appeal dated 22/9/2022. This appeal is on both liability and quantum from a judgment of the trial court which found the appellant together with the 2^nd, 3^rd and 4^th respondents wholly liable to the 1^st appellant for injuries arising out of a road traffic accident. In the impugned judgment the trial court awarded the 1^st respondent KShs 200,000/= general damages for pain, suffering and loss of amenities, KShs 13,700/= special damages plus costs of the suit and interest.
2. The 1^st respondent was the plaintiff in the trial court. Through her plaint dated 29/8/2018 her claim was that she was injured following a road traffic accident that occurred on 25/12/2017 involving two motor vehicles. The first was registration number KBK 218U owned by the appellant and in which she was a passenger. The second was KCC 342C owned by the 2^nd respondent as registered owner, the 3^rd respondent as the actual but unregistered owner of the vehicle with beneficial or insurable interest therein and the 4^th defendant as the driver and/or the actual but unregistered owner of the vehicle with beneficial or insurable interest therein. The two vehicles collided along Juja road as a result of which she was injured and has suffered loss and damage.
3. The 1^st respondent sustained the following injuries:
   1. blunt head injury with frontal haematoma.
   2. bruise on the left shoulder.
   3. abrasions on the right lower leg.
   4. recurrent headaches.
4. The 4^th respondent entered appearance and filed defence dated 12/3/2019. He conceded that the accident did occur as alleged by the 1^st respondent but denied that the 4^th respondent was to blame for the same or that the 1^st respondent was injured as a result thereof. He instead laid blame for the accident upon the driver of motor vehicle registration number KBK 218U Nissan matatu for negligence in his manner of driving. He further pleaded in the alternative that the accident was inevitable and could not be reasonable avoided and so the 4^th respondent could not take blame for the same.
5. The appellant entered appearance and filed defence dated 25/7/2019. He denied the 1^st respondent’s claim in toto. In the alternative it blamed the 1^st respondent for being negligent and failing to take precautions for her own safety while travelling abode the appellant’s motor vehicle. He also blamed the driver of motor vehicle registration number KCC 432C for the accident. 
6. The 2^nd and 3^rd respondents did not enter appearance nor file defence and judgment in default of appearance and defence was entered against them on 30/8/2021.
7. The appellant alternatively blamed the 2^nd, 3^rd and 4^th respondents as the authors of the accident. He took out a co-defendant’s notice of indemnity under Order 1 Rule 21 of the Civil Procedure Rules against them. The indemnity was sought on the ground that the 4^th respondent as the driver and servant of the 2^nd and 3^rd respondents was negligent and therefore to blame for the accident. However, there was no evidence of service of the notice against any of the respondents it was taken out against and the issue was not canvassed further.
8. The 1^st respondent’s case was heard on 19/1/2021. Only the counsel for the appellant attended on the defence side. The 4^th respondent’s counsel did not attend at that hearing or any subsequent court proceedings. The 1^st respondent testified as PW 3 and called two other witnesses PW 1 and PW 2. PW 1 Dr. Cyprianus Okoth Okere who examined her and produced her medical report dated 6/2/2018 which he produced in evidence. PW 2PC Julius Kimathi produced the police abstract dated 28/12/2017 where it was indicated that motor vehicle registration number KCC 432C was blamed for the accident.
9. After requesting for adjournment to call witnesses, the appellant closed his case without tendering any evidence.
10. The learned trial magistrate delivered his judgment on 26/11/2021. He allowed the 1^st respondent’s suit against all the defendants jointly and severally.
11. The appellant was dissatisfied with that decision and has filed the present appeal based on four grounds that:
    1. the learned trial magistrate erred in law and in fact when he failed to consider the appellant’s evidence and submissions on points of law and fact in finding that the appellant and the 2^nd, 3^rd and 4^th respondents were jointly and severally liable for the accident.  
    2. the learned trial magistrate erred in law and in fact when he failed to consider the appellant’s submissions on points of law and fact on damages payable as quantum to the 1^st respondent of KShs 200,000/= for a blunt injury.
    3. that the learned trial magistrate’s decision was unjust, against the weight of the evidence presented by the 1^st respondent at the trial.
    4. the learned trial magistrate erred in law and in fact in unduly disregarding the submissions and judicial authorities cited by the appellant and instead relied on the authorities cited by the 1^st respondent.
12. The appellant therefore prays for this court to allow the appeal, set aside the judgment of the trial court and award the appellant costs of the appeal.
13. The appeal was directed to be canvassed by way of written submissions. Only the respondent’s counsel filed written submissions dated 17/9/2023.
14. This being a first appeal, the duty of the 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 where it was held as follows:

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.  Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.  In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

1. See similar holding in Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.

Analysis and Determination

1. The appellant’s 1^st, 2^nd and 4^th grounds of appeal fault the learned magistrate’s findings for failing to consider the evidence, submissions and authorities tendered by the appellant at trial. It turns out that the appellant never tendered any evidence at trial and his advocate never filed any submissions and/or authorities. It follows that those three grounds of appeal are baseless and are consequently dismissed as lacking in merit.
2. The only ground remaining is that the decision was unjust and against the weight of the evidence presented by the 1^st respondent during trial.
3. The 1^st respondent’s evidence through her witness statement dated 29/8/2018 and her testimony in court on 19/1/2021 was that she was a passenger aboard motor vehicle registration number KBK 218U. In her recorded witness statement, she only said that the two vehicles collided along Juja road. In her evidence in chief, she said that the other motor vehicle KCC 432C knocked the one in which she was and that it was to blame for the accident. Twice in cross-examination she said the driver of KCC 432C was to blame for the accident. Pressed further she said both drivers were to blame. The issue was not put to her in cross-examination. The police abstract indicates that motor vehicle KCC 432C Isuzu mini bus was to blame for the accident.
4. The only evidence available to the learned trial magistrate was that of the 1^st respondent and the police abstract. Neither of the two drivers nor the investigating officer testified at the hearing. PW 2 said he was not the investigating officer who had since been transferred.
5. Upon that evidence the learned trial magistrate found that both drivers were to blame for the accident for failing to take reasonable measures to avoid the accident. He appears to have attributed equal blame to each of them. However, the evidence from the 1^st respondent herself, as the eye witness as well as from the investigations was that the driver of motor vehicle KCC 432C was to blame for the accident. However, the 1^st respondent also said that there was a collision between the two vehicles on the road. There is no indication of the circumstances under which the collision occurred. The 1^st respondent said she was seated on the second seat from the back. She did not say whether she was in a position to see how the accident occurred. All the same her evidence that there was a collision between the two vehicles and that their vehicle was hit by motor vehicle KCC 432C is supported by the contents of the police abstract.
6. The issues for this courts determination are:
   1. whether the learned trial magistrate applied the correct principles of law and available facts in finding the appellant 100% liable for the accident.
   2. whether the learned trial magistrate applied the correct principles of law and available facts in assessment of damages payable to the 1^st respondent.
   3. whether the damages awarded were inordinately high as to present and erroneous estimate of compensation.
7. As stated, the appellant 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 1^st 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 this case, the 1^st respondent testified that there was a collision between the two vehicles and the vehicle in which she travelling was hit by the other vehicle.
2. The only evidence on record by an eye witness was from the 1^st respondent which evidence I reiterate was not challenged by any other evidence from the appellant. The evidence of PW 2 was from a police officer who did not investigate the accident but all the same produced the police abstract which summarizes the case with a finding that motor vehicle KCC 432C was to blame for the accident. This corroborates the 1^st respondent’s evidence that this vehicle was on the wrong.
3. There is no doubt that the driver of the vehicle in which the 1^st responded was travelling owed the her a duty of care as his passenger to ensure that she safely reached her destination. Indeed an accident happened along the way. The 1^st respondent sued him as well as the driver of the other accident vehicle. The driver of her vehicle failed to attend court to explain why he could not avoid the collision or any other measure he took to avert the accident. In that case, he cannot escape blame entirely. I will thereofe aooprtion liability between the two drivers of the vehicles at 30% for KBK 218U and 70% for KCC 432C. Consequently, the findings of the learned trial magistrate failing to apportion liability and holding the two drivers equally to blame is set aside. The appellant being the owner of motor vehicle registration number KBK 218U as well as the 2^nd and 3^rd respondents being owners of KCC 432C are respectively vicariously liable in the same degree as their respective drivers. 
4. The injuries sustained by the plaintiff are captured in her evidence and supported by the medical report of Dr. Cyprianus Okoth Okere dated 6/2/2018 as follows:
   1. blunt head injury with frontal haematoma.
   2. bruise on the left shoulder.
   3. abrasions on the right lower leg.
5. At the time of examination, she complained of recurrent headaches. The doctor found bruised scars on the left shoulder and abrasional scars on the lower leg. His opinion and diagnosis were that the injuries can be classified as severe harm.
6. In their submissions at the trial court, the appellants did not file submissions and therefore made no proposal on the award of general damages for pain, suffering and loss of amenities while. The respondent proposed an ward of KShs 500,000/=.
7. Learned counsel for the respondent submits that the trial court was not bound to follow the submissions and authorities cited. She submits further that it is within the discretion of the court to find a relevant authority among them, if any and if there is none, to rely on any other that may be appropriate for that case.
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. I now turn to consider whether the general damages awarded by the trial court were excessive.
2. Learned counsel for the respondents cited the following decisions in support of their proposal at the lower court:
   1. Duncan Mwenda & 2 others v Silas Kinyua Kithela [2018] eKLR, the respondent sustained severe blunt head injury with intracerebral hematoma, damage to the extensor tendon of the left middle finger and soft tissue injuries on the chest wall. After the accident, the respondent was referred to Kenyatta National Hospital where he was admitted for 5 months in an unconscious state for that period. At the time of examination, he was complaining of headache and chest pain and inability to extend the left middle finger. The doctor’s prognosis stated that the respondent was not able to hold anything tightly with the left hand. He noted that the respondent suffered recurrent headaches as a result of the head injury. He concluded that the injuries were treated well and healed well without permanent incapacity. Majanja J, on appeal set aside the lower court award of KShs 600,000/= and substituted it with an award of Kshs 350,000/= general damages.
   2. Joseph Wambura v Joseph Mwangi Obai [2018] eKLR. The Respondent sustained a cut wound on the left orbit side, deep laceration on the left gluteal area, multiple laceration left elbow, deep laceration on the left hand, cut wound on the right-hand palm, multiple cut wounds on both knees with stitches in place, deep cut on the left leg, deep cut wound on the ankle left and cut on the right toe. At the examination, the injuries were in the process of healing with resultant ugly scars. The High Court on appeal upheld the trial court award of KShs 300,000/= general damages for pain, suffering and loss of amenities, observing that although they were soft tissue injuries, they were multiple and resulted into ugly scars on the lower limbs, upper limb, orbit and the hands.
   3. Kitale Hauliers Limited v Emmanuel Soita Simiyu [2013] eKLR Civil Appeal 107 of 2010, where the claimant suffered; painful shoulders, bruises on right forearm and left upper arms, bruises on the knee, painful back and the High Court awarded Kshs. 200,000.
3. On the evidence tendered, the learned trial magistrate awarded the 1^st respondent KShs 200,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellant to disturb that award terming it inordinately high.
4. 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 damages awarded.
5. 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 award but recalling that no two cases are exactly alike. This was held so 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 200,000/= general damages, the trial court fell in error. However, the said award is not so inordinately high as to cause this court to interfere with the same.
2. Consequently, the trial court’s award of Kshs. 200,000/= in general damages is sustained. For clarity the special damages shall remain as awarded KShs 13,700/=.
3. The total award to the respondent is therefore KShs 213,700/=.
4. Other than the issues the court has pointed out above, I find the appeal to be without merit and the same is dismissed with costs to the 1^st respondent.

Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 17^th day of September 2024.