Introduction
1. This is an appeal from the Judgment delivered on 28th January 2020 in the Thika Chief Magistrate’s court civil case No. 449 of 2016 which the Respondent had instituted against the Appellants seeking compensation for injuries suffred in a road traffic accident.
2. The claim in the trial court was that on 18th September 2016, the Respondent, then a fare paying passenger travelling in motor vehicle registration No. KBA 538K, was involved in an accident at Juja-Kalimoni junction. The vehicle was then being driven by 2nd Appellant and owned by the 1st Appellant.
3. On 28th January 2020, the trial court delivered its judgment in favour of the 1st Respondent holding the Appellant 100% liable for the accident. Consequently, the court awarded the Respondent Ksh 2,000,000/- as general damages and Ksh. 3,500/- in special damages. Costs were also awarded to the Respondent.
4. Dissatisfied with the decision of the trial magistrate, the Appellant filed this appeal raising the following nine grounds in their memorandum of appeal. A review of the grounds of appeal reveals that the appeal is essentially on the issues of liability and quantum.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellants are dated 1st January 2023 while that of the Respondent is dated 23rd June 2023.
6. The first issue that the Appellants took up in their submissions is that of liability. The Appellant argued that the trial magistrate erred in fact and in law in finding the Appellants laible for the accident.
7. According to the Appellants, the Respondent had failed to prove negligence on the part of the Appellants. The Appellant submitted that the trial court failed to appreciate that the Respondent in his evidence before the trial court merely stated that the subject motor vehicle was over speeding without disclosing the speed exact speed of motor vehicle immediately before the accident.
8. It was further the Appellant’s submissions that the trial court failed to appreciate that the accident involved two vehicles, the motor vehicle registration No. KBA 538K and another, KBN 183J belonging to a 3rd party. That trial court ignored evidence of PC Mwabobe, DW1 who testified that it is the 3rd party’s motor vehicle KBN 183J which lost control and jumped into the rails on the highway thus colliding with the Appellant’s motor vehicle.
9. In support of their submissions that it is the duty of a plaintiff to prove his case, the appellant cited the case of Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR.
10. The Respondent on her part supported the finding by the trial magistrate on the issue of liability. It was her submissions that the being a fare paying passenger in the appellant’s vehicle, the Appellants owed her a duty of care and to drive carefully.
11. In support of her position the Respondent relied on among others, the case of Christine Kalama v Jane Wanja Njeru & another [2021] eKLR where the court stated that; -
“Similarly, the Traffic Act Cap. 403, the Laws of Kenya, imposes a duty of care on drivers to take necessary precautions to avoid accidents. In the event they breach the Traffic Act and the Highway Code they are liable to penal sanctions in cases of carelessness or reckless driving or causing death by dangerous driving.”
12. On quantum, Appellants submitted that the award of Kshs. 2,000,000/- in general damages was in the circumstances of the case, high and excessive. That the award did not take into account the nature of the injuries suffered by the Respondent and was not in tandem with awards in comparable injuries.
13. The Respondent on her part supported the finding by the trial court on quantum. Citing the case Ziporrah Nangila v Eldoret Express Limited & 2 others [2016] eKLR where Kshs. 3,000,000/- was awarded as general damages, the Respondent urged this court to maintain the amount of Kshs. 2,000,000/- awarded by the trial court.
14. In her submissions, the Respondent argued that this appeal is incompetent since the Appellant failed to attach a copy of the decree being appealed from, making the record of appeal is defective. On this basis, the Respondent asked this court to strike out the appeal.
Analysis and determination
15. I have carefully considered the record of appeal, the grounds of appeal and the written submissions filed by both Counsel. The issues for determination by this court in this appeal are as follows; -
i. Whether the trial court erred in law and in fact in holding the Appellants wholly liable for the accident.
ii. Whether the amount of Kshs. 2,000,000 awarded by the trial court in general damages was in the circumstances of the case high and excessive.
iii. Whether there the appeal is competent, the Appellants having failed to attach a copy of the decree appeal from.
16. Before proceeding to the merits of this appeal, it is important to first deal with the issue raised by the Respondent concerning the competence of this appeal.
17. The Respondent in her submissions took the position that the Appellants had not attached to the Record of Appeal, a certified copy the decree appealed from. According to the Respondent, this was fatal and therefore rendered the appeal incompetent.
18. A perusal at the Record of Appeal clearly shows that a Decree has not been attached thereto. Order 42 Rule 2 of the Civil Procedure Rules provides as follows:
“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the Appellant shall file such certified copy as soon as possible and in any event within such a time as the court may order, and the court need not consider whether to reject the Appeal summarily under Section 79B of Act until a copy is filed.”
19. Further, Order 42, Rule 13(4)(f) of the Civil Procedure Rules,2010 provides;
“(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
(a) the memorandum of appeal;
(b) the pleadings;
(c) the notes of the trial magistrate made at the hearing;
(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
(e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:
Provided that—
(i) a translation into English shall be provided of any document not in that language;
(ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”
20. The failure by an appellant to attach a copy of a decree appealed from in the record of appeal has on a number of occasions been held to be fatal and renders the whole appeal incompetent. See Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR where the court was unequivocal that an appeal can be rendered fatally defective in the absence of a decree. The court in striking out the appeal stated that: -
“From the foregoing it is clear that an appeal can be rendered fatally defective in the absence of a decree. The Appellant herein has not attached a copy of the decree it follows therefore that his appeal is incompetent and should be and is hereby struck out with costs to the Respondent.”
21. However, in Ndwiga & another v Mukimba [2022] KEHC 11793 (KLR), which is a more recent case, the court held that the failure to annex to the Record of Appeal a certified copy of the decree being appealed against is not fatal. The court stated the following; -
“14. Whereas it is true that the appellant did not annex a certified copy of the decree being appealed against, he did attach a certified copy of the proceedings of the lower court which include the judgment of the trial court and in my view, I find that the same sufficed in the absence of a certified copy of the decree. [Also see Article 159 (1) (d)]. Further, the respondent did not allege that he suffered any prejudice for failure by the respondent to annex a copy of the said decree. I therefore find that the appellant’s failure to annex the certified copy of the decree cannot be a basis for striking out the appeal.”
22. The decision in the Ndwiga case (supra) was informed by the decision of the Court of Appeal in the case of Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata Civil Appeal No. 63 of 2016 [2017] eKLR where it was held:
“Starting with the first issue, it is true that the record of appeal before the first appellant court at the time of filing did not contain the decree appealed from. This omission brought into focus the provisions of Order 42 Rule 2 of the Civil Procedure Rules……the Respondent did not take advantage of this provision to subsequently file a certified copy of the decree so that the appeal proceeded to hearing in the absence of the decree appealed from. Was this omission fatal to the appeal? The Appellant thinks so as according to him the requirement is couched in mandatory terms. The Judge did not agree with him reasoning that:
“The word “decree” has been defined by the Civil Procedure Act Cap 21 to include judgment. In fact the Civil Procedure Act as provided at Section 2 that the judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of a judgment may not have been drawn up or may not be capable of being drawn up”.
This is the essence of the proviso to the definition of the term “decree”. According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court; consequently, he reasoned the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.
We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon court to go for substantive justice as opposed to technicalities. Further, holding otherwise would have run counter to the overriding objective as captured in section 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice the Appellant suffered with the omission of the certified copy of the decree in the record of appeal. We do not discern any.”
[Also see Kenya women Micro Finance Ltd v Martha Wangari Kamau [2020] eKLR.
23. Like in the Ndwiga case (supra), the appellant in the instant appeal, despite having failed to attach a copy of the subject decree appealed from, had included in the record of appeal, a certified copy of the proceedings of the lower court, which included the judgment.
24. I am persuaded to follow the reasoning in the Ndwiga case (supra) which I fully associate with. Consequently, I decline to strike out this appeal. I will now then proceed to the dispose this appeal on merits.
25. This being a first appeal, I am required to reconsider the evidence tendered at the trial court, reevaluate the same and draw my own conclusions, but bearing in mind that as opposed to the court below, this court did not hear the witnesses testify neither did it have the advantage of seeing the demeanour of the witnesses. See the holding in Selle vs. Associated Motor Boat Co. [1968] EA 123 where it was held that-
“The appellate court is not bound necessarily to accept the findings of fact by the court below. 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 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 demeanour of a witness is inconsistent with the evidence in the case generally.”
On Liability
26. Having perused the record of appeal and particularly the proceedings before the trial court. I have established that on 7th May 2019, the Respondent testified before the trial court as PW2 and gave evidence that on 13th December 2011 while from work, she was travelling in a Nissan Matatu, motor registration number KBA 538K from Thika to Ruiru. That near Juja town, the subject motor vehicle, while over speeding, knocked another motor vehicle heading the opposite direction, thereby causing the accident.
27. Further, No. 84389 PC Charles Mwadime, a police officer the based at Thika Police Station testified as PW3 and produced police abstract dated 27th September 2012. According to the abstract which was produced at trial as PExh 3, the accident happened on 13th December 2011 involving two motor vehicles, the Appellants motor vehicle registration No. KBA 538K and another motor vehicle registration No. KBN 183J. That in the accident the Respondent was injured.
28. I have also note that the submissions by the Appellants that PC Mwabobe who testified as DW1 blamed motor vehicle registration No, KBN 183J for the accident is not correct and therefore misleading to this court. My perusal of the pleadings indicates that the police officer testified on 25th June 2019 and only produced the police abstract. He told court that he did not investigate the accident. in fact, there is nowhere in the proceedings where DW1 attributed the accident to the third-party motor vehicle.
29. Further, I note from the trial court’s judgment that the court considered the Appellants argument that the accident was caused by the third-party motor vehicle and held as follows; -
“19) Indeed default judgment was on 30.7.2019 entered against the third parties who failed to file a reply on the third-party notice. The effect in law is that they would be liable to indemnify the defendants if the plaintiff obtains a decree against them. The third parties in this regard, in my view, cannot be held liable in the main suit which is the plaintiff and the defendant only.
20) The plaintiff’s negligence evidence of negligent driving of the accident vehicle is not rebutted or discredited...”
30. Based on the evidence on record, I find, as the trial court did, that the Respondent proved in evidence that the Appellants were liable for the accident. That the Respondent having led evidence pointing to the negligence on the part of the Appellants, that evidence was neither challenged nor discredited by the Appellants.
31. In reaching the above conclusion, I am guided by the decision in In Chao vs. Dhanjal Brothers Ltd & 4 Others [1990] KLR 482 where it was held that where circumstances of the accident give inference of negligence on the part of a defendant, then, for that defendant to escape liability, then he must discredit or challenge that inference. The court stated as follows; -
“Where the circumstances of the accident give rise to the inference of negligence, then the defendant, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the accident was consistent only with the absence of negligence….”
32. In the instant case, I note that the Appellants did not call the driver of the subject motor vehicle to testify in evidence. The testimony by the Respondent on how the accident happened was never challenged. Consequently, this ground of appeal must fail.
On quantum
33. The second ground taken up by the Appellants in this appeal is that of quantum. The Appellants submitted that the award of Kshs. 2,000,000/- in general damages was in the circumstances of the case, high and excessive. According to the Appellants, the only major injuries suffered by the Respondent as a result of the accident are fractures.
34. The Appellants proposed an award in general damages not exceeding Kshs. 450,000. They cited seven authorities where amounts ranging between Kshs. 300,000 and Kshs. 450,000/- were awarded for various injuries which the Appellant submitted, were substantially similar to the injuries suffered by the Respondent in the instant case.
35. The Respondent on her part supported the finding by the trial court on quantum. Citing the case Ziporrah Nangila v Eldoret Express Limited & 2 others [2016] eKLR where Kshs. 3,000,000/- was awarded as general damages, the Respondent urged this court to maintain the amount of Kshs. 2,000,000/- awarded by the trial court.
36. I take note that the assessment of damages is within the discretion of the trial court and that this court should only interfere in instances where trial court, in assessing damages, erred in principle and either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence. See Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
37. In Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 the Court of Appeal stated the following on when an appellate court may interfere with an award by the trial court:
“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.”
38. In this case, the Respondent was injured on her face and leg. According to the medical report dated 25th April 2016 by Dr. George K. Karanja which was admitted in evidence, the Respondent suffered multiple facial deep lacerations, fracture of the left tibia/fibula and fracture of right tibia/fibula. The Respondent was in admitted in hospital for seven days and operated on. Upon discharge from hospital, she was on wheelchair for one month and later on bilateral clutches for four months.
39. I have considered the authorities relied upon by the respective parties. The injuries in the Ziporrah Nangila (supra) case cited by the Respondent were more severe and therefore not comparable to those suffered in the instant case. In the same breadth, I find the injuries in the cases seven cases cited by the Appellants to be less severe to those suffered by the Respondent in the instant case. I therefore find the authorities cited not very helpful.
40. I note that the trial magistrate after reviewing the authorities cited by the respective parties concluded that the authorities were not relevant. The magistrate however proceeded to award a sum of Kshs. 2,000,000/- in general damages for pain and suffering without disclosing the basis of that award.
41. In my view, the case with injuries more comparable to those in the instant case is that of Mwangi v Siloma & another [2023] KEHC 26140 (KLR) where the injuries included fracture distal end of the right tibia and fibula, fracture left lateral malleolus of the left ankle joint, fracture left medial malleolus of the left ankle join, blunt injury to the lower back leading to soft tissue injuries, blunt injury to the left hand leading to post traumatic radial nerve palsy, fracture proximal end of the left humerus, soft tissue injury of the right leg and soft tissue injuries of the left ankle joint. The court (Majanja J) awarded Kshs. 1,200,000/- in general damages.
42. In the premises, I award a sum of Kshs. 1,200,000/- in this appeal as well. This ground of appeal therefore succeeds.
Disposition
43. For the reasons set out above, the appeal herein partially succeeds and the trial court’s Judgment of 28th January 2020 is hereby varied with the order of this court as follows; -
i. The award of Kshs. 2,000,000/- in general damages for pain and suffering is set aside and substituted by an order of this court awarding a sum of Kshs. 1,200,000 under the same heading.
ii. Liability shall remain 100% in favour of the Respondent as assessed by the trial court
iii. Special damages shall remain Kshs. 3,500 as assessed by the trial court.
iv. The general and special damages shall attract interest at courts rates from the date of the lower court’s judgement till payment in full.
44. The appeal having partially succeeded, I direct that each party to bear their owns costs of this appeal.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 30TH DAY OF JULY 2024
ADO MOSES
JUDGE
Moses – Court Assistant
………………… for the Appellant.
…….……………for the Respondent
1. This is an appeal from the Judgment delivered on 28th January 2020 in the Thika Chief Magistrate’s court civil case No. 449 of 2016 which the Respondent had instituted against the Appellants seeking compensation for injuries suffred in a road traffic accident.
2. The claim in the trial court was that on 18th September 2016, the Respondent, then a fare paying passenger travelling in motor vehicle registration No. KBA 538K, was involved in an accident at Juja-Kalimoni junction. The vehicle was then being driven by 2nd Appellant and owned by the 1st Appellant.
3. On 28th January 2020, the trial court delivered its judgment in favour of the 1st Respondent holding the Appellant 100% liable for the accident. Consequently, the court awarded the Respondent Ksh 2,000,000/- as general damages and Ksh. 3,500/- in special damages. Costs were also awarded to the Respondent.
4. Dissatisfied with the decision of the trial magistrate, the Appellant filed this appeal raising the following nine grounds in their memorandum of appeal. A review of the grounds of appeal reveals that the appeal is essentially on the issues of liability and quantum.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellants are dated 1st January 2023 while that of the Respondent is dated 23rd June 2023.
6. The first issue that the Appellants took up in their submissions is that of liability. The Appellant argued that the trial magistrate erred in fact and in law in finding the Appellants laible for the accident.
7. According to the Appellants, the Respondent had failed to prove negligence on the part of the Appellants. The Appellant submitted that the trial court failed to appreciate that the Respondent in his evidence before the trial court merely stated that the subject motor vehicle was over speeding without disclosing the speed exact speed of motor vehicle immediately before the accident.
8. It was further the Appellant’s submissions that the trial court failed to appreciate that the accident involved two vehicles, the motor vehicle registration No. KBA 538K and another, KBN 183J belonging to a 3rd party. That trial court ignored evidence of PC Mwabobe, DW1 who testified that it is the 3rd party’s motor vehicle KBN 183J which lost control and jumped into the rails on the highway thus colliding with the Appellant’s motor vehicle.
9. In support of their submissions that it is the duty of a plaintiff to prove his case, the appellant cited the case of Benter Atieno Obonyo v Anne Nganga & another [2021] eKLR.
10. The Respondent on her part supported the finding by the trial magistrate on the issue of liability. It was her submissions that the being a fare paying passenger in the appellant’s vehicle, the Appellants owed her a duty of care and to drive carefully.
11. In support of her position the Respondent relied on among others, the case of Christine Kalama v Jane Wanja Njeru & another [2021] eKLR where the court stated that; -
“Similarly, the Traffic Act Cap. 403, the Laws of Kenya, imposes a duty of care on drivers to take necessary precautions to avoid accidents. In the event they breach the Traffic Act and the Highway Code they are liable to penal sanctions in cases of carelessness or reckless driving or causing death by dangerous driving.”
12. On quantum, Appellants submitted that the award of Kshs. 2,000,000/- in general damages was in the circumstances of the case, high and excessive. That the award did not take into account the nature of the injuries suffered by the Respondent and was not in tandem with awards in comparable injuries.
13. The Respondent on her part supported the finding by the trial court on quantum. Citing the case Ziporrah Nangila v Eldoret Express Limited & 2 others [2016] eKLR where Kshs. 3,000,000/- was awarded as general damages, the Respondent urged this court to maintain the amount of Kshs. 2,000,000/- awarded by the trial court.
14. In her submissions, the Respondent argued that this appeal is incompetent since the Appellant failed to attach a copy of the decree being appealed from, making the record of appeal is defective. On this basis, the Respondent asked this court to strike out the appeal.
Analysis and determination
15. I have carefully considered the record of appeal, the grounds of appeal and the written submissions filed by both Counsel. The issues for determination by this court in this appeal are as follows; -
i. Whether the trial court erred in law and in fact in holding the Appellants wholly liable for the accident.
ii. Whether the amount of Kshs. 2,000,000 awarded by the trial court in general damages was in the circumstances of the case high and excessive.
iii. Whether there the appeal is competent, the Appellants having failed to attach a copy of the decree appeal from.
16. Before proceeding to the merits of this appeal, it is important to first deal with the issue raised by the Respondent concerning the competence of this appeal.
17. The Respondent in her submissions took the position that the Appellants had not attached to the Record of Appeal, a certified copy the decree appealed from. According to the Respondent, this was fatal and therefore rendered the appeal incompetent.
18. A perusal at the Record of Appeal clearly shows that a Decree has not been attached thereto. Order 42 Rule 2 of the Civil Procedure Rules provides as follows:
“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the Appellant shall file such certified copy as soon as possible and in any event within such a time as the court may order, and the court need not consider whether to reject the Appeal summarily under Section 79B of Act until a copy is filed.”
19. Further, Order 42, Rule 13(4)(f) of the Civil Procedure Rules,2010 provides;
“(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
(a) the memorandum of appeal;
(b) the pleadings;
(c) the notes of the trial magistrate made at the hearing;
(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
(e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:
Provided that—
(i) a translation into English shall be provided of any document not in that language;
(ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”
20. The failure by an appellant to attach a copy of a decree appealed from in the record of appeal has on a number of occasions been held to be fatal and renders the whole appeal incompetent. See Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR where the court was unequivocal that an appeal can be rendered fatally defective in the absence of a decree. The court in striking out the appeal stated that: -
“From the foregoing it is clear that an appeal can be rendered fatally defective in the absence of a decree. The Appellant herein has not attached a copy of the decree it follows therefore that his appeal is incompetent and should be and is hereby struck out with costs to the Respondent.”
21. However, in Ndwiga & another v Mukimba [2022] KEHC 11793 (KLR), which is a more recent case, the court held that the failure to annex to the Record of Appeal a certified copy of the decree being appealed against is not fatal. The court stated the following; -
“14. Whereas it is true that the appellant did not annex a certified copy of the decree being appealed against, he did attach a certified copy of the proceedings of the lower court which include the judgment of the trial court and in my view, I find that the same sufficed in the absence of a certified copy of the decree. [Also see Article 159 (1) (d)]. Further, the respondent did not allege that he suffered any prejudice for failure by the respondent to annex a copy of the said decree. I therefore find that the appellant’s failure to annex the certified copy of the decree cannot be a basis for striking out the appeal.”
22. The decision in the Ndwiga case (supra) was informed by the decision of the Court of Appeal in the case of Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata Civil Appeal No. 63 of 2016 [2017] eKLR where it was held:
“Starting with the first issue, it is true that the record of appeal before the first appellant court at the time of filing did not contain the decree appealed from. This omission brought into focus the provisions of Order 42 Rule 2 of the Civil Procedure Rules……the Respondent did not take advantage of this provision to subsequently file a certified copy of the decree so that the appeal proceeded to hearing in the absence of the decree appealed from. Was this omission fatal to the appeal? The Appellant thinks so as according to him the requirement is couched in mandatory terms. The Judge did not agree with him reasoning that:
“The word “decree” has been defined by the Civil Procedure Act Cap 21 to include judgment. In fact the Civil Procedure Act as provided at Section 2 that the judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of a judgment may not have been drawn up or may not be capable of being drawn up”.
This is the essence of the proviso to the definition of the term “decree”. According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court; consequently, he reasoned the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.
We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon court to go for substantive justice as opposed to technicalities. Further, holding otherwise would have run counter to the overriding objective as captured in section 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice the Appellant suffered with the omission of the certified copy of the decree in the record of appeal. We do not discern any.”
[Also see Kenya women Micro Finance Ltd v Martha Wangari Kamau [2020] eKLR.
23. Like in the Ndwiga case (supra), the appellant in the instant appeal, despite having failed to attach a copy of the subject decree appealed from, had included in the record of appeal, a certified copy of the proceedings of the lower court, which included the judgment.
24. I am persuaded to follow the reasoning in the Ndwiga case (supra) which I fully associate with. Consequently, I decline to strike out this appeal. I will now then proceed to the dispose this appeal on merits.
25. This being a first appeal, I am required to reconsider the evidence tendered at the trial court, reevaluate the same and draw my own conclusions, but bearing in mind that as opposed to the court below, this court did not hear the witnesses testify neither did it have the advantage of seeing the demeanour of the witnesses. See the holding in Selle vs. Associated Motor Boat Co. [1968] EA 123 where it was held that-
“The appellate court is not bound necessarily to accept the findings of fact by the court below. 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 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 demeanour of a witness is inconsistent with the evidence in the case generally.”
On Liability
26. Having perused the record of appeal and particularly the proceedings before the trial court. I have established that on 7th May 2019, the Respondent testified before the trial court as PW2 and gave evidence that on 13th December 2011 while from work, she was travelling in a Nissan Matatu, motor registration number KBA 538K from Thika to Ruiru. That near Juja town, the subject motor vehicle, while over speeding, knocked another motor vehicle heading the opposite direction, thereby causing the accident.
27. Further, No. 84389 PC Charles Mwadime, a police officer the based at Thika Police Station testified as PW3 and produced police abstract dated 27th September 2012. According to the abstract which was produced at trial as PExh 3, the accident happened on 13th December 2011 involving two motor vehicles, the Appellants motor vehicle registration No. KBA 538K and another motor vehicle registration No. KBN 183J. That in the accident the Respondent was injured.
28. I have also note that the submissions by the Appellants that PC Mwabobe who testified as DW1 blamed motor vehicle registration No, KBN 183J for the accident is not correct and therefore misleading to this court. My perusal of the pleadings indicates that the police officer testified on 25th June 2019 and only produced the police abstract. He told court that he did not investigate the accident. in fact, there is nowhere in the proceedings where DW1 attributed the accident to the third-party motor vehicle.
29. Further, I note from the trial court’s judgment that the court considered the Appellants argument that the accident was caused by the third-party motor vehicle and held as follows; -
“19) Indeed default judgment was on 30.7.2019 entered against the third parties who failed to file a reply on the third-party notice. The effect in law is that they would be liable to indemnify the defendants if the plaintiff obtains a decree against them. The third parties in this regard, in my view, cannot be held liable in the main suit which is the plaintiff and the defendant only.
20) The plaintiff’s negligence evidence of negligent driving of the accident vehicle is not rebutted or discredited...”
30. Based on the evidence on record, I find, as the trial court did, that the Respondent proved in evidence that the Appellants were liable for the accident. That the Respondent having led evidence pointing to the negligence on the part of the Appellants, that evidence was neither challenged nor discredited by the Appellants.
31. In reaching the above conclusion, I am guided by the decision in In Chao vs. Dhanjal Brothers Ltd & 4 Others [1990] KLR 482 where it was held that where circumstances of the accident give inference of negligence on the part of a defendant, then, for that defendant to escape liability, then he must discredit or challenge that inference. The court stated as follows; -
“Where the circumstances of the accident give rise to the inference of negligence, then the defendant, in order to escape liability, has to show that there was a probable cause of the accident which does not connote negligence or that the accident was consistent only with the absence of negligence….”
32. In the instant case, I note that the Appellants did not call the driver of the subject motor vehicle to testify in evidence. The testimony by the Respondent on how the accident happened was never challenged. Consequently, this ground of appeal must fail.
On quantum
33. The second ground taken up by the Appellants in this appeal is that of quantum. The Appellants submitted that the award of Kshs. 2,000,000/- in general damages was in the circumstances of the case, high and excessive. According to the Appellants, the only major injuries suffered by the Respondent as a result of the accident are fractures.
34. The Appellants proposed an award in general damages not exceeding Kshs. 450,000. They cited seven authorities where amounts ranging between Kshs. 300,000 and Kshs. 450,000/- were awarded for various injuries which the Appellant submitted, were substantially similar to the injuries suffered by the Respondent in the instant case.
35. The Respondent on her part supported the finding by the trial court on quantum. Citing the case Ziporrah Nangila v Eldoret Express Limited & 2 others [2016] eKLR where Kshs. 3,000,000/- was awarded as general damages, the Respondent urged this court to maintain the amount of Kshs. 2,000,000/- awarded by the trial court.
36. I take note that the assessment of damages is within the discretion of the trial court and that this court should only interfere in instances where trial court, in assessing damages, erred in principle and either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence. See Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
37. In Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 the Court of Appeal stated the following on when an appellate court may interfere with an award by the trial court:
“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.”
38. In this case, the Respondent was injured on her face and leg. According to the medical report dated 25th April 2016 by Dr. George K. Karanja which was admitted in evidence, the Respondent suffered multiple facial deep lacerations, fracture of the left tibia/fibula and fracture of right tibia/fibula. The Respondent was in admitted in hospital for seven days and operated on. Upon discharge from hospital, she was on wheelchair for one month and later on bilateral clutches for four months.
39. I have considered the authorities relied upon by the respective parties. The injuries in the Ziporrah Nangila (supra) case cited by the Respondent were more severe and therefore not comparable to those suffered in the instant case. In the same breadth, I find the injuries in the cases seven cases cited by the Appellants to be less severe to those suffered by the Respondent in the instant case. I therefore find the authorities cited not very helpful.
40. I note that the trial magistrate after reviewing the authorities cited by the respective parties concluded that the authorities were not relevant. The magistrate however proceeded to award a sum of Kshs. 2,000,000/- in general damages for pain and suffering without disclosing the basis of that award.
41. In my view, the case with injuries more comparable to those in the instant case is that of Mwangi v Siloma & another [2023] KEHC 26140 (KLR) where the injuries included fracture distal end of the right tibia and fibula, fracture left lateral malleolus of the left ankle joint, fracture left medial malleolus of the left ankle join, blunt injury to the lower back leading to soft tissue injuries, blunt injury to the left hand leading to post traumatic radial nerve palsy, fracture proximal end of the left humerus, soft tissue injury of the right leg and soft tissue injuries of the left ankle joint. The court (Majanja J) awarded Kshs. 1,200,000/- in general damages.
42. In the premises, I award a sum of Kshs. 1,200,000/- in this appeal as well. This ground of appeal therefore succeeds.
Disposition
43. For the reasons set out above, the appeal herein partially succeeds and the trial court’s Judgment of 28th January 2020 is hereby varied with the order of this court as follows; -
i. The award of Kshs. 2,000,000/- in general damages for pain and suffering is set aside and substituted by an order of this court awarding a sum of Kshs. 1,200,000 under the same heading.
ii. Liability shall remain 100% in favour of the Respondent as assessed by the trial court
iii. Special damages shall remain Kshs. 3,500 as assessed by the trial court.
iv. The general and special damages shall attract interest at courts rates from the date of the lower court’s judgement till payment in full.
44. The appeal having partially succeeded, I direct that each party to bear their owns costs of this appeal.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 30TH DAY OF JULY 2024
ADO MOSES
JUDGE
Moses – Court Assistant
………………… for the Appellant.
…….……………for the Respondent