Background
1. This is an appeal from the judgment of the lower court (Kisumu CMCC No. 50 of 2018) delivered on 10th June 2021 in which the trial court partially (50%) allowed the Appellant’s claim for compensation for injuries suffred in a road traffic accident which occured along the Mamboleo Kisumu road on 18th June 2018 involving the Respondent’s motor vehicle registration number KAS 236F Toyota Sprinter.
2. The background of the dispute is that the appellant initiated a claim before the trial court vide a plaint dated 15th September 2018. The appellant sought the following prayers against;
a. General damages
b. Costs of this suit and interest on a, b, and c thereon at court rates
c. Any other relief this court may deem fit to grant.
3. The appellant averred that on 18th June 2017 while he was travelling as a fare paying passenger aboard motor cycle along Mamboleo-Miwani road when at Obuor Junction area, the Respondent and or his servant, driver or agent acting in the ordinary course of his employment so negligently, recklessly drove, managed and or controlled moor vehicle registration number KAS 236F Toyota Sprinter thereby causing an accident to occur occassioing multiple severe injuries to the appellant.
4. The appellant stated that the accident was solely caused by the negligence of the Respondent and or his driver, servant, or agent while acting in the ordinary course of his employment fr which the appellant is vicariously liable.
5. On 10th June 2021, the trial court delivered its judgment and apportioned liability in the ratio of 50:50. The court also awarded a sum of Kshs. 120,000/= in general damages, and upon being subjected to 50% liability, the appellant was awarded Kshs. 60,000/=. It is the said judgment and decree which is now the subject of this appeal herein.
The Appeal
6. Aggrieved with the judgement and decree of the trial court preferred an appeal before this court vide a Memorandum of Appeal dated 11th June, 2021, setting forth the following grounds of appeal that:
i. The Learned Trial Magistrate erred in law and fact in apportioning liability as against the appellant.
ii. The Learned Trial Magistrate failed to consider the appellant’s submissions on liability, thus reaching a wrong conclusion.
iii. The Learned Trial Magistrate erred in fact and in law in disregarding the evidence tendered by the appellant as regards the Respondent’s liability in the suit.
iv. The apportionment of liability against the appellant is erroneous, oppressive, and punitive and amounts to a miscarriage of justice.
v. The Learned Trial Magistrate erred in fact and in law in failing to appreciate the principles governing the award of general damages, namely that like cases attract similar awards, and ignoring completely the appellant’s cited authorities in his submissions thereon.
vi. The award for general damages is inordinately low, erroneous, oppressive, and punitive, and amounts to a miscarriage of justice.
7. This appeal proceeded by way of written submissions. The appellant’s submissions are dated 19th October 2024. The Respondent did not file any submissions.
Appellant’s submissions
8. On liability, the appellant submitted that the trial court erred in apportioning liability in the ratio of 50:50 between him and the Respondent. According to the Appellant, the finding of the court went against the evidence on record, which was clear that he was simply a pillion passenger on a motorcycle, which was hit by the appellant’s vehicle.
9. The Appellant asserted that his pleadings and the evidence adduced by the witnesses at trial were clear that he was a pillion passenger aboard a motorcycle. He testified that while at the main road, a motor vehicle registration number KAS 236F Toyota Sprinter joined the main road from a T-junction and, as if without brakes, recklessly knocked their motorcycle.
10. Consequently, it was the Appellant’s prayer that this ground of appeal be allowed and liability be wholly (100%) assigned to the Respondent.
11. On quantum, the appellant submitted that the amount of Kshs. 120,000/- (subject to liability) awarded by the trial court as general damages for pain and suffering for the injuries sustained in the accident was so much on the lower side. Citing the case of James Nganga Kimani & another vs Giachagi Njoroge & 2 others (2019)eKLR, and that of Lake Naivasha Growers vs Muigai Thuka (2020)eKLR, where a sum of between Kshs. 200,000 and Kshs 250,000 were awarded.
12. The Appellant therefore urged this court to award him a sum of Kshs. 200,000/- under this heading.
Analysis and Determination
13. This being the first appellate court, it has a duty to re-evaluate the evidence afresh and draw its own conclusion, bearing in mind that it did not have the advantage of observing the witnesses testify firsthand. This duty was espoused in Selle vs Associated Motor Boat Co. (1968) EA 123 that:
“An appeal to the court of appeal from a trial by the High court is by way of a retrial and the principles upon which the Court of appeal acts are that the 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 the court is not bound necessarily to follow the trial judge’s findings of that 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.”
14. This court will not normally interfere with a finding of the lower court unless it is demonstrated that it misdirected itself or it acted on matters on which it should not have acted, thus arriving at a wrong conclusion. The principles upon which this court can interfere with a judgment of a trial court were pronounced in the case of Mbogo & Another vs Shah (1968) EA 94;
“I think it is well settled that this Court will not interfere which an appellate court should interfere in the exercise of the discretion of a judge with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself, or because it has acted on matters on which it should not have acted, or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
15. Having carefully perused the memorandum of appeal, the record of appeal, and the submissions filed herein, I find the following issues emerging for this Court’s determination;
i. Whether the trial court erred in apportioning liability in the ratio of 50:50?
ii. Whether the trial court erred in awarding quantum on general damages?
16. On the issue of liability, the appellant submitted that the trial court erred in finding the Appellant 50% liable despite the fact that he was merely a pillion passenger in the motorcycle that was hit by the respondent’s vehicle.
17. The question of liability in road traffic cases was discussed by the Court of Appeal in the case of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR, thus;
The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:-
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it...
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
18. In the present case, I note that on 9th May 2019, when the matter came up for hearing, the Appellant herein testified as PW1 and told the court that the accident happened on 18th June 2027. That he was hit by the Respondent’s vehicle registration number KAS 236F Toyota Sprinter while he was a board a motorcycle as a pillion passenger. According to the Appellant, the Respondent, while driving the said vehicle, joined a T-junction without due regard to the other road users, the Appellant herein particular. He did not know the motor cyclists, and also did not know whether he had a licence. The driver (the Respondent) was forced by other motorists to take him to the hospital. He was admitted on 18th June 2017 and discharged on 21st June 2017. He reported the accident after being discharged.
19. PW2-Eric Onyango Otieno corroborated the Appellant’s testimony that the accident occurred on 18th June 2017. He told the trial court that he saw the accident happen and that the Respondent joined a T-Junction and hit the Appellant, who was a pillion passenger on a motorcycle. Following the accident, the Respondent attempted to escape, but they forced him to take the Appellant to Oasis hospital, Milimani. He followed them to the hospital.
20. PW4- No. 50109 PC Geoffrey Ndiema, attached to Kiondele Police Station, in his evidence stated that on 18th June 2017, a serious accident was reported along the Mamboleo-Miwani road. He visited the scene and found that it involved a motor vehicle registration no. KAS 236F Toyota Splinter driven by the Respondent from Obwolo towards miwani junction. It collided with an unknown motorcycle ridden by an unknown rider. He escorted the vehicle to Kondele Police Station. The motorcycle and its rider were never traced. On the motorcycle was a pillion passenger, Maurice Peter Oduor, the Appellant herein, who sustained a serious fractured leg and was rushed to Oasis Hospital, where he was admitted for about four days. The Appellant reported the accident at Kondele Police Station, and he recorded his statement, and was issued with a P3 form followed by an abstract, which PW4 produced in court. According to the police, the Appellant never contributed to the accident.
21. On his part, the Respondent in his evidence before the trial court denied that his vehicle was involved in the accident. It was his testimony that on the material day, while on the mamboleo-miwani road, he saw a motorcycle being ridden at a high speed and in a zig-zag manner. The rider lost control and landed on the right side of the road. The Respondent maintained that his vehicle never had any contact with the motorcycle or the Appellant, who was a pillion passenger on the motorcycle. According to him, he only volunteered to take the appellant to the hospital.
22. On the liability of the appellant being a pillion passenger, I associate myself with the decision in the case of China Henan International Co-operation v Nyaboro (Civil Appeal E041 of 2021) [2023] KEHC 842 (KLR) (10 February 2023) (Judgment) where the Court stated that: -
“12. The appellant now argues that the respondent was liable for reasons that the motor cycle carried excess passengers [see Rosemary Kaari Murithi v Benson Njeru Muthitu (supra)]. In my view, I agree with the decision of Viviane Anyango Onyango & another v Charity Wanjiku [2017] eKLR that held that passengers cannot be held liable for accidents. The court stated:“
“It is my very strong view, and supported in numerous court decisions, that a passenger cannot be held liable when a vehicle he is travelling in is involved in an accident. See Rosemary Wanjiru Kungu v Francis Mutua Mbuvi & Another [2014]. Unlike in the Court of Appeal decision in Civil Appeal No. 11 of 2014. The Chairman St. Teresa's Nyangusu Girls Secondary School v Jackline Monari, the deceased, cannot be said to have had a hand in the occurrence of the accident.”
23. In the present case, I note that while the Respondent denied being involved in or being responsible for the accident, the evidence of PW1, PW2, and PW4 are consistent that it is the Respondent who caused the accident. In fact, PW4, No. 50109 PC Geoffrey Ndiema, who visited the scene, blamed the Respondent for the accident. The same applies to the evidence by PW2, who was an eyewitness to the accident.
24. From the Judgment of the trial court, I note that the court apportioned liability between the Appellant and the Respondent at the rate of 50:50 on the basis that it was difficult for the court to make a determination on who was to blame for the accident. This finding by the trial court, in my view, cannot be correct. Ordinarily, no liability can attach to a pillion passenger. Contribution, if any, can only, in the circumstances of this case, be between the driver of the subject motor vehicle and the motorcycle rider.
25. From the evidence tendered, there is no doubt that the appellant was a pillion passenger on a motorcycle. There was no evidence provided by the Respondent at trial that suggested that the Appellant may have contributed to the accident. The Appellant was not in control of the motorcycle in question, but was just a pillion passenger. I am persuaded by the evidence on record that the finding on liability by the trial court was an error, and this court makes a finding on liability at 100% against the Respondent.
26. The second issue for this Court’s determination is that of the damages awarded by the trial court and whether the damages awarded were inordinately high. The parameters under which an appellate court will interfere with an award in general damages were stated by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan [1982-88] KAR as follows:
“An appellate court will not disturb an award for general 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...”
27. In Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] KECA 154, the Court emphasized that the principle of assessment of damages is a discretion of the trial court and stated that:-
“It is trite law that the assessment of general damages is at the discretion of the trial court, and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
28. In the instant appeal, the Appellant sustained injuries to the chest, a deep cut injury left ankle, injury to the left ankle joint, injury to the right leg, and injury to the lower abdomen. It is also not disputed that the Appellant was hospitalised for three days following the injuries sustained in the accident.
29. The Appellant in his submissions herein argued that the quantum of the damages awarded by the trial court was much on the lower side. No submissions have been made by the Respondent on this issue.
30. I have reviewed the injuries sustained by the Appellant as a result of the accident and find that the damages awarded by the trial court was on the lower side. The court, in its judgment, did not refer to the medical reports and treatment noted detailing the nature of the Appellant’s injuries. The court simply remarked that the Appellant suffred multiple soft tissue injuries, without particularizing the nature of the injuries. This approach, in my view, is an indication that the trial court did not attach due regard to the nature of the Appellant’s injuries when assessing damages payable. PW3 testified on the nature of the Appellant’s injuries. Referring to the P3, the witness told the court that the Appellant had “generalized tenderness on the chest along T5, T6, and T7. The right leg was swollen and tender. There was swelling on the left ankle joint with deep lacerations and a cut wound on the medial malleolus.”
31. I have reviewed the two authorities cited above on the issue of quantum. James Nganga Kimani & Another vs. Giachagi Njoroge & 2 Others [2019] eKLR, where the plaintiff suffered injuries on the forehead, chest, left hand, and legs, THE Court awarded Kshs. 200,000/-. Further, in Lake Naivasha Growers Vs. Muigai Thuka [2020] eKLR, severe soft tissue injuries were suffered, and a sum of Kshs. 250,000/- awarded by the trial was upheld on appeal.
32. It has long been held that an appellate court should not normally interfere with an award of a trial court unless the award is inordinately high or low as to represent an erroneous assessment. It is also the position in law that an award of damages should be proportionate to the injuries sustained and that similar injuries should attract comparable awards
33. In the present appeal, the injuries suffered by the Appellant were substantially similar those suffred in the case of James Nganga Kimani & Another (supra). That being the case, I find the award of Kshs. 1,20,000 inordinately low as to amount to an erroneous estimate.
34. Taking into account the nature of the injury the Appellant sustained and the recovery progress made, an award of Kshs. 200,000 is reasonable in the circumstances of this case.
35. Accordingly, I find that this appeal is merited and the same is allowed, and the trial court judgment on both liability and quantum is hereby set aside. I proceed to make the following orders;
a. Judgment on liability is entered at 100% against the Respondent.
b. The Appellant is awarded general damages of Kshs 200,000/=.
c. The Appellant will have the costs of this appeal.
36. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 3RD DAY OF APRIL 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.