1. This Appeal is against a finding on liability and also the quantum of damages awarded to the Respondents in Eldoret Chief Magistrate’s Civil Case No. 126 Of 2016 as compensation for the injuries sustained by the minor plaintiff as a result of a road accident. In the trial Court, the Appellants were the Defendants while the Respondent was the Plaintiff. The Appellant now seeks a review of the finding on liability and also reduction of the amount of compensation awarded claiming that the same was manifestly excessive.
2. The background of the case is that by way of Plaint filed on 18/02/2016 through Messrs Douglas Ombati & Co. Advocates, the Respondent sued the Appellant seeking general damages, special damages, costs of the suit and interest.
3. The Respondent pleaded that the Defendants were at all material times the owner of the motor vehicle registration number KAP 455M (hereinafter referred to as “the Van”). That on 26/11/2015, the minor was lawfully cycling along the Eldoret-Iten road when the Appellant’s said van was so negligently, carelessly and/or recklessly driven, managed and/or controlled that it veered off the road thereby knocking down the minor plaintiff and as a result he sustained severe bodily injuries as follows;
a) A head injury with loss of consciousness for two weeks/fractured skull
b) Fracture of the two upper incisor teeth.
c) Multiple cut wounds on the right side of the face.
d) Fracture, dislocation of the left elbow (fracture of the left olecranon process).
e) Fracture of the left radius/ulna distal
f) Fracture of the right radius with dislocation of the wrist joint.
g) Right radial nerve injury
h) Fracture of the right femur
4. The Defendant filed its Defence on 15/04/2016 through Messrs Omwenga & Co. Advocates denying the claim and the particulars alleged.
5. After the close of pleadings, the suit proceeded to trial.
6. PW1 was Dr Rono of Moi Teaching and Referral Hospital who produced the following exhibits relating to the minor; documents for Patrick Chebor as PExh1, the discharge summary as PExh2, inpatient invoices as PExh 4, 5 & 6, consultation request form as PExh7, receipts for the patient as PExh8, cardiology report as PEXh9 radiology report as PExh10. And the attendance card as PExh11. The Appellants did not object to the production of the documents.
7. PW2 was Dr. Sokobe who also produced the following documents relating to the minor; the medical report as PExh1 (sic) receipts of Ks. 6000/- as PExh2 and P3 form as PExh3. In cross examination, he testified that the minors’ palm dislocated and he had permanent scars. with a permanent disability assessed at 30%.
8. PW3 was PC Chesiki who stated that he was stationed at Eldoret Police Station Crime office. He produced the police abstract as PExh5. In cross examination, he stated that he participated in the investigation and that the sketch plan was at Langas.
9. PW4 was Monicah Kiserich, the minor’s mother. She adopted her witness statement as evidence in chief and produced the Birth Certificate of the minor which indicated that the he was born on 15th November 2003 as PExh6. She stated that the minor was admitted at the MTRH from 26th November 2015 to 18th December 2015 and again re admitted at the same hospital from 22nd January 2016 to 1st February 2016 “when the metal plate got broken”. That she paid hospital bills amounting to Ks. 13,760/- and Ks. 6,000/- for the Medical Report by Dr. Saoke. In cross examination, she stated that she did not witness the accident.
10. The plaintiff closed its case and the defendant called one witness in its defence. DW1 was Phillip Ngumi. He adopted his witness statement and produced his drivers’ license as evidence. In the said witness statement, he stated that he was driving at a speed of 50 KPH along the Eldoret Iten road when the minor tried to enter into the road abruptly while trying to cross from the left to right side of the road. That he tried to apply emergency brakes but he was not able to avoid the minor due to the proximity of the minor with his car. That he hit the minor on the left front side of his motor vehicle and the minor fell in front of the car.
11. In cross examination he testified that he was employed by the 1st appellant and that he was the one driving the car on the material date. that the child riding the bicycle emerged from behind 2 motor vehicles that were off the road and the front light of the van hit him. He applied brakes and swerved to avoid hitting him. He then took the child to the hospital.
12. By its Judgment delivered on 5/11/2021, the Trial Court entered Judgment in favour of the Respondents as follows:
a) Liability at 100%
b) General Damages at Kshs. 3, 500,000/-
c) Special Damages at Kshs. 13,760
d) Costs and interest
13. Dissatisfied with the Judgment, the Appellant filed this Appeal on 16/07/2017. In the Memorandum of Appeal, the following grounds were preferred:
i) That the learned trial magistrate erred in law and fact in holding the appellants 100% liable for the accident when there was no sufficient evidence to support that finding.
ii) That the learned trial magistrate erred in law and fact in failing to hold the Respondent wholly and/or substantially liable for the accident.
iii) That the learned trial magistrate erred in law and fact in awarding the Respondent a sum of Kshs. 13,760/= as special damages that were not proved to the required standard in law.
iv) That the learned trial magistrate erred in law and fact by awarding the Respondent a sum of Kshs 3,500,000/= as general damages that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the Respondent.
v) That the learned trial magistrate erred in law and fact in over relying on the Respondent’s evidence most of which was speculative in nature in awarding damages.
vi) That the learned trial magistrate erred in law and fact in failing to consider the appellants' submissions and legal authorities relied upon in support to the Defence thereof
vii) That the learned trial magistrate erred in law and fact by overly relying on Respondent's submissions and legal authorities which were not relevant and without addressing his mind to the circumstances of the case.
viii) That the learned trial magistrate’s decision albeit, a discretionary one was plainly wrong.
Hearing of the Appeal
14. The Appeal was canvassed by way of written Submissions. Pursuant thereto, the Appellant filed his submissions on 02/11/2022 while the Respondents, despite having been given ample time to file submissions did not file any.
Appellant’s Submissions
15. Counsel submitted that the Respondent alleged in the plaint that the appellants’ motor vehicle was negligently driven and further, that as she listed the particulars of negligence, it was incumbent upon the Respondent to prove the particulars of negligence. Counsel cited the provisions of Section 107 and 108 of the Evidence Act on burden of proof and additionally, Section 112 of the Evidence Act on the same. He cited the case of Evans Mogire Omwansa v Bernard Otieno Omolo & anor (2016) eKLR to buttress this submission. He further submitted that the Respondent, being a cyclist, owed a duty of care to himself and other road users while using the road. In support of this submission, he relied on the case of Peter Okello Omedi vs Clement Ochieng (2006) eKLR
16. Counsel analysed the evidence of PW3 and urged that the only document he produced was a police abstract which is not conclusive proof for causation of the accident. He relied on the decision in Kennedy Nyagoya vs Bash Hauliers (2016) eKLR to this end. Further, he submitted that the abstract did not indicate any reason why the driver of the motor vehicle registration no. KAP 455M was to be blamed for the accident. Counsel posited that a sketch plan would have helped in pointing out the exact point of impact, whether it was on the road or off the road so as to assist the court know exactly who was responsible for the accident. To this end, he relied on the case of Postal Corporation of Kenya vs Dickens Munayi (2016) eKLR. He therefore urged that the trial court erred in law and fact by not taking into account all the facts.
17. On liability, counsel urged that the trial court erred in its apportionment and further, that this court should set aside the finding of the trial court and apportion liability at 50:50. He once more relied on the case of Postal Corporation of Kenya vs Dickens Munayi (2016) eKLR in support of this submission.
18. On Quantum, counsel submitted that courts should be guided by the principles that guide assessment of damages and are required to give sums that must be seen as reasonable compensation. That in the process, the ultimate goal is in securing uniformity in the general method of approach. Further, that it is desirable that the awards be comparable and conventional. He buttressed this submission on the holding in the case of Brian Keiya Mokua vs Christopher Komen (2015) eKLR.
19. Counsel highlighted the injuries pleaded by the respondent and urged that the medical report by Dr. Sokobe is not sufficient proof that the respondent sustained the said injuries as it was not supported by treatment notes from Moi teaching and referral Hospital. That additionally, that it was not enough for PW2 to rely on the discharge summary from Moi Teaching and Referral Hospital. In this regard, he cited the case of Timsales vs Wilson Linuywa (2008) eKLR. Counsel urged that the report by Dr Sokobe indicated that the respondent had fractures yet no x-rays films or CT scans report was produced to prove the same. He maintained that the Respondent failed to prove the injuries on a balance of probabilities. He urged that the Respondent had sustained multiple severe soft tissue and bony injuries which had healed and further assessed permanent disability at 30%.
20. Counsel submitted that at the time the respondent was examined the injuries were still fresh and therefore, at the time of the hearing they must have healed thus the assessment of permanent disability is technically wrong.
21. Counsel submitted that the award of Kshs. 3, 500,000/- was erroneous considering the fact that there was no initial treatment notes and evidence by an orthopaedic specialist adduced in support of said injuries. Counsel submitted that the trial magistrate has not tendered any sufficient explanation for awarding the respondent that amount in damages while disregarding the appellants’ proposed award. He cited the case of Hassan Noor Mahmoud vs Tae Youn Ann (2001) eKLR in support of this submission. He urged the court to set aside the award for general damages and substitute it with an award of Kshs. 450,000/-. He relied on the case of George Kinyanjui & Anor T/A Climax Coaches & Another vs Hassan Musa Agoi (2016) eKLR in support of this submission.
22. On special damages, he urged that the same must be specifically pleaded and proved, citing the case of Francis Muchee Nthiga vs David N Waweru (2013) eKLR where the court emphasised the same. He urged that the special damages of Kshs. 13,760/- ought not to have been awarded for failure to comply with Sections 19 and 20 of the Stamp Duty Act. In this regard, he cited the case of Embu HCCC No. 119 of 2008 Agnes Wanjiku Ndegwa v Kenya Power & Lighting Company (2014) eKLR.
23. Further, He stated that from the framing of the issues, the court had already made a decision that the appellant motor vehicle was to blame for the accident and thus the court was biased. Citing Order 21 rule 4 of the Civil Procedure Rules, he urged that it is upon a judicial officer to give a basis of how he or she arrived at a particular decision and therefore, the failure by the magistrate to give sufficient reasons for his decision was a fatal error as it contravened the said provisions. He submitted that the respondent prejudiced by this award. He relied on the case of SAJ Ceramics Limited vs Robinson Mongare (2015) eKLR in support of this submission
24. In conclusion, the appellant urged the court to set aside the decision by the trial court and make orders that will ensure that justice is rendered fairly. He reiterated that the respondent failed to prove her case on a balance of probabilities and urged the court to allow the appeal
Determination
25. Being a first appeal, the Court is guided by principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
“… 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 into account of particular circumstances or probabilities materially to estimate the evidence.
26. In light of the Grounds of Appeal and the submissions by Counsel as herein summarised, it is my considered opinion that the issues that arise for determination are as follows;
i) Whether the trial magistrate erred in apportioning liability at 100% against the appellant
ii) Whether the award in General damages was manifestly excessive
iii) Whether the documents availed by the respondent are defective for want of stamp duty
27. In the case of Mwangi V. Wambugu (1984) KLR 453, the Court of Appeal laid out the circumstances under which the court can interfere with a finding of fact as follows:
“A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
28. It is not denied that the defendant hit the minor. The only account on how the accident occurred is that of DW1 in which he stated that it is the minor got into the road and onto his path suddenly and he could not avoid hitting him. Pw2 who testified that she was part of the investigation simply produced the Police Abstract and there was also no eye witness evidence. The trial court found in his judgement, even though not so elegantly and clearly stated that because the respondent was a minor, then the appellant was held 100% liable and the question the court needs to answer is whether the Hon Magistrate erred in this holding.
29. There is no dispute that the respondent herein was a minor. The mother produced his Birth Certificate which indicated that he was born on 15th November 2003. The accident occurred on 26th November 2015. The minor therefore had just turned 12 years at the time of the accident. It has been submitted that the minor owed himself and other road users the duty to ride hi bicycle safely on the road. That may very well be so but the more important question the court needs to answer is who as between the minor aged twelve and the adult appellant owed themselves and other road users a greater duty of care. The appellant testified that he was driving at a speed of 50KPH. That is a very sedate speed by any standard. There is no evidence that the minor emerged onto the road at a high speed.
30. From the Medical Report by Dr. Joseph Sokobe, it is stated that as a result of the collision, the minor apart from other relatively serious injuries sustained fractures on the skull, fractures of two upper teeth, fracture of left elbow (with dislocation), fracture of the left radius, fracture of the right radius (with dislocation at the wrist) and fracture of the right femur. These in my view are very serious injuries and are not the kind of injuries that would be caused in a collision with a vehicle being driven at 50KPH.
31. In light of the above, it is my very well considered opinion, the accident vehicle must have been at a very high speed which only goes to show that the same was being driven negligently, recklessly and carelessly and without due care attention and regard to other road users including the minor in the circumstances. Notwithstanding the lack of an independent eye witness account the evidence as herein analysed, would be sufficient on a balance of probabilities to apportion a higher degree of liability to the appellant.
32. But that aside, it is an undisputed fact that the respondent was a minor and the question then is whether he ought to be held liable and if so to what degree. The issue of the liability of a child of the approximate age of the minor herein was determined in the case of ALA (Suing as the Next Friend and Father to ZM) v Philip Obonyo Oluoch [2021] eKLR. In this case Fred Ochieg J (as he then was) found that a minor aged 11 years cannot be held liable in a road traffic accident case. In so finding, he cited with approval the finding of the court in the case of Rahima Tayab Vs Anna Kinanu [1983] KLR 114 where it held as follows;
“A judge should only find a child guilty of contributory negligence if he or she is of such age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her.”
33. The court notes that the respondent herein was within the same age bracket having just tuned 12 years of age and in light of my conclusions herein on the causation of the accident, I find the above authority to be highly persuasive in assisting the court on the issue of liability.Consequently I am persuaded that as between this minor and the appellant, the person who owed the greater duty of care to other road users and more particularly the minor herein was not the minor as has been submitted, but the appellant. As proposed by Counsel for the appellant, liability can therefore not be at 50:50. In this regard, I am well satisfied that the Hon Magistrate properly directed himself in awarding liability at 100% against the defendant and this apportionment is accordingly upheld.
34. On the award of Ks. 3,500,000/-, before delving into the issue of whether it is manifestly excessive or note, I note that the only Medical Report on record is by Dr. Sokobe on behalf of the plaintiff. I also note from the record of proceedings that the appellant did not cross examine any of the doctors who appeared as witnesses in any substantive manner on all the exhibits that they produced related to the injuries sustained by the minor. In his submissions however, Counsel has proceeded to now rebut, controvert and even question the veracity of the evidence. Apart from pointing out that it is trite that submissions cannot be converted to an avenue for adducing evidence and by Counsel for that matter, who is not a party to the suit at all, the appellants ought to have availed an alternative Medical Report prepared by their Doctor to Counter Dr. Sokobe’s Report. This having not been done, then the contents of the said Report remain as uncontroverted.
35. I further note from the said submissions that it is on the strength of the court agreeing with the appellant that the injuries should have deen classified as severe soft tissue that then the award should be reduced. Be that as it may, having found that Dr. Sokobe’s report is uncontroverted, I take cognizance of the fact that comparable injuries should attract comparable awards (see Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR of course taking into consideration the fact that no injuries can be exactly similar. In this regard, I have considered the following authorities with comparable injuries;
a) In Amazon Energy Limited v Magdaline Nthenya Mathias & another [2019] eKLR Justice R. Nyakundi set aside an award of kshs. 3,500,000/- and substituted it with an award of Kshs 2,500,000/- in General damage. The injuries sustained by the respondent were; a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft) b. Displaced fracture of the right femur thigh bone (mid shaft) c. Skull fractures at i. left eye socket – orbital floor, ii. left lamina propia, d. Fracture of the right clavicle shoulder blade bone. e. Deep cut on the forehead extending to the left eye. f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus) g. Total loss of vision in the left eye. Permanent disability was assessed at 50%.
36. I find this case to be comparable in terms of the injuries sustained and even as I note that disability was apportioned at 50% compared to 30% in this case, due to the effluxion of time and the current high inflationary rates, I also award this respondent it is my Ks. 2,500,000/= in General Damages. The award of Ks. 3,500,000/= is therefore set aside.
37. The Court of Appeal addressed the issue of courts rejecting evidential material on account of noncompliance with the Stamp Duty Act in Paul N. Njoroge Vs. Abdul Sabuni Sabonyo [2015] eKLR where the Court held as follows:
“21. The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR where it stated thus:
“Mr. Mbigi submitted that the guarantee document relied on by the Respondents to enforce their claim was inadmissible in evidence as it was not stamped contrary to the Stamp Duty Act. It is a submission which has been raised in other cases before but this Court has approved the procedure that ought to be followed in such matters. A case in point is Diamond Trust Bank Kenya Ltd vs. Jaswinder Singh Enterprises CA No. 285/98 (ur) where Owuor JA, with whom Gicheru JA (as he then was) and Tunoi JA, agreed, stated: -
“The learned Judge also found that the agreements could not be enforced because they contravened section 31 of the Stamp Duty Act (cap 480). In view of my above finding, it suffices to state that sections 19(3) 20, 21, and 22 of the same Act provided relief in a situation where a document or instrument had not been stamped when it ought to have been stamped. The course open to the learned Judge was as in the case of Suderji Nanji Ltd. -vs- Bhaloo (1958) EA 762 at page 763 where Law J., (as he then was) quoted with approval the holding in Bagahat Ram -vs- Raven Chond (2) 1930) A.I.R Lah 854 that:
“before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty …
The Appellant has never been given the opportunity to pay the requisite stamp duty and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd defendant/Respondent and he must be given the opportunity”.
We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the Act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof.
38. In light of the decision to the Court of Appeal, it is my finding that the objection raised to the receipts produced by the respondent for want of payment of stamp duty lacks merit and the same is dismissed. The upshot then is that the Appellants appeal is partially allowed as follows;
a) THAT liability as apportioned at 100% against the appellant by the Trial Court is upheld
b) THAT the award of Ks. 3, 500,000/- in General damages is now hereby set aside and substituted with an award of Ks. 2, 500,000/-
c) THAT the award of Ks 13,760/- in Special Damages in favour of the Respondent as well as cost of the suit and interest at court rates is upheld.
d) THAT The Appellant is to bear the costs of this Appeal
Read Dated and Signed at ITEN on 2nd April 2025
2. The background of the case is that by way of Plaint filed on 18/02/2016 through Messrs Douglas Ombati & Co. Advocates, the Respondent sued the Appellant seeking general damages, special damages, costs of the suit and interest.
3. The Respondent pleaded that the Defendants were at all material times the owner of the motor vehicle registration number KAP 455M (hereinafter referred to as “the Van”). That on 26/11/2015, the minor was lawfully cycling along the Eldoret-Iten road when the Appellant’s said van was so negligently, carelessly and/or recklessly driven, managed and/or controlled that it veered off the road thereby knocking down the minor plaintiff and as a result he sustained severe bodily injuries as follows;
a) A head injury with loss of consciousness for two weeks/fractured skull
b) Fracture of the two upper incisor teeth.
c) Multiple cut wounds on the right side of the face.
d) Fracture, dislocation of the left elbow (fracture of the left olecranon process).
e) Fracture of the left radius/ulna distal
f) Fracture of the right radius with dislocation of the wrist joint.
g) Right radial nerve injury
h) Fracture of the right femur
4. The Defendant filed its Defence on 15/04/2016 through Messrs Omwenga & Co. Advocates denying the claim and the particulars alleged.
5. After the close of pleadings, the suit proceeded to trial.
6. PW1 was Dr Rono of Moi Teaching and Referral Hospital who produced the following exhibits relating to the minor; documents for Patrick Chebor as PExh1, the discharge summary as PExh2, inpatient invoices as PExh 4, 5 & 6, consultation request form as PExh7, receipts for the patient as PExh8, cardiology report as PEXh9 radiology report as PExh10. And the attendance card as PExh11. The Appellants did not object to the production of the documents.
7. PW2 was Dr. Sokobe who also produced the following documents relating to the minor; the medical report as PExh1 (sic) receipts of Ks. 6000/- as PExh2 and P3 form as PExh3. In cross examination, he testified that the minors’ palm dislocated and he had permanent scars. with a permanent disability assessed at 30%.
8. PW3 was PC Chesiki who stated that he was stationed at Eldoret Police Station Crime office. He produced the police abstract as PExh5. In cross examination, he stated that he participated in the investigation and that the sketch plan was at Langas.
9. PW4 was Monicah Kiserich, the minor’s mother. She adopted her witness statement as evidence in chief and produced the Birth Certificate of the minor which indicated that the he was born on 15th November 2003 as PExh6. She stated that the minor was admitted at the MTRH from 26th November 2015 to 18th December 2015 and again re admitted at the same hospital from 22nd January 2016 to 1st February 2016 “when the metal plate got broken”. That she paid hospital bills amounting to Ks. 13,760/- and Ks. 6,000/- for the Medical Report by Dr. Saoke. In cross examination, she stated that she did not witness the accident.
10. The plaintiff closed its case and the defendant called one witness in its defence. DW1 was Phillip Ngumi. He adopted his witness statement and produced his drivers’ license as evidence. In the said witness statement, he stated that he was driving at a speed of 50 KPH along the Eldoret Iten road when the minor tried to enter into the road abruptly while trying to cross from the left to right side of the road. That he tried to apply emergency brakes but he was not able to avoid the minor due to the proximity of the minor with his car. That he hit the minor on the left front side of his motor vehicle and the minor fell in front of the car.
11. In cross examination he testified that he was employed by the 1st appellant and that he was the one driving the car on the material date. that the child riding the bicycle emerged from behind 2 motor vehicles that were off the road and the front light of the van hit him. He applied brakes and swerved to avoid hitting him. He then took the child to the hospital.
12. By its Judgment delivered on 5/11/2021, the Trial Court entered Judgment in favour of the Respondents as follows:
a) Liability at 100%
b) General Damages at Kshs. 3, 500,000/-
c) Special Damages at Kshs. 13,760
d) Costs and interest
13. Dissatisfied with the Judgment, the Appellant filed this Appeal on 16/07/2017. In the Memorandum of Appeal, the following grounds were preferred:
i) That the learned trial magistrate erred in law and fact in holding the appellants 100% liable for the accident when there was no sufficient evidence to support that finding.
ii) That the learned trial magistrate erred in law and fact in failing to hold the Respondent wholly and/or substantially liable for the accident.
iii) That the learned trial magistrate erred in law and fact in awarding the Respondent a sum of Kshs. 13,760/= as special damages that were not proved to the required standard in law.
iv) That the learned trial magistrate erred in law and fact by awarding the Respondent a sum of Kshs 3,500,000/= as general damages that was so excessive as to amount to an erroneous estimate of loss or damage suffered by the Respondent.
v) That the learned trial magistrate erred in law and fact in over relying on the Respondent’s evidence most of which was speculative in nature in awarding damages.
vi) That the learned trial magistrate erred in law and fact in failing to consider the appellants' submissions and legal authorities relied upon in support to the Defence thereof
vii) That the learned trial magistrate erred in law and fact by overly relying on Respondent's submissions and legal authorities which were not relevant and without addressing his mind to the circumstances of the case.
viii) That the learned trial magistrate’s decision albeit, a discretionary one was plainly wrong.
Hearing of the Appeal
14. The Appeal was canvassed by way of written Submissions. Pursuant thereto, the Appellant filed his submissions on 02/11/2022 while the Respondents, despite having been given ample time to file submissions did not file any.
Appellant’s Submissions
15. Counsel submitted that the Respondent alleged in the plaint that the appellants’ motor vehicle was negligently driven and further, that as she listed the particulars of negligence, it was incumbent upon the Respondent to prove the particulars of negligence. Counsel cited the provisions of Section 107 and 108 of the Evidence Act on burden of proof and additionally, Section 112 of the Evidence Act on the same. He cited the case of Evans Mogire Omwansa v Bernard Otieno Omolo & anor (2016) eKLR to buttress this submission. He further submitted that the Respondent, being a cyclist, owed a duty of care to himself and other road users while using the road. In support of this submission, he relied on the case of Peter Okello Omedi vs Clement Ochieng (2006) eKLR
16. Counsel analysed the evidence of PW3 and urged that the only document he produced was a police abstract which is not conclusive proof for causation of the accident. He relied on the decision in Kennedy Nyagoya vs Bash Hauliers (2016) eKLR to this end. Further, he submitted that the abstract did not indicate any reason why the driver of the motor vehicle registration no. KAP 455M was to be blamed for the accident. Counsel posited that a sketch plan would have helped in pointing out the exact point of impact, whether it was on the road or off the road so as to assist the court know exactly who was responsible for the accident. To this end, he relied on the case of Postal Corporation of Kenya vs Dickens Munayi (2016) eKLR. He therefore urged that the trial court erred in law and fact by not taking into account all the facts.
17. On liability, counsel urged that the trial court erred in its apportionment and further, that this court should set aside the finding of the trial court and apportion liability at 50:50. He once more relied on the case of Postal Corporation of Kenya vs Dickens Munayi (2016) eKLR in support of this submission.
18. On Quantum, counsel submitted that courts should be guided by the principles that guide assessment of damages and are required to give sums that must be seen as reasonable compensation. That in the process, the ultimate goal is in securing uniformity in the general method of approach. Further, that it is desirable that the awards be comparable and conventional. He buttressed this submission on the holding in the case of Brian Keiya Mokua vs Christopher Komen (2015) eKLR.
19. Counsel highlighted the injuries pleaded by the respondent and urged that the medical report by Dr. Sokobe is not sufficient proof that the respondent sustained the said injuries as it was not supported by treatment notes from Moi teaching and referral Hospital. That additionally, that it was not enough for PW2 to rely on the discharge summary from Moi Teaching and Referral Hospital. In this regard, he cited the case of Timsales vs Wilson Linuywa (2008) eKLR. Counsel urged that the report by Dr Sokobe indicated that the respondent had fractures yet no x-rays films or CT scans report was produced to prove the same. He maintained that the Respondent failed to prove the injuries on a balance of probabilities. He urged that the Respondent had sustained multiple severe soft tissue and bony injuries which had healed and further assessed permanent disability at 30%.
20. Counsel submitted that at the time the respondent was examined the injuries were still fresh and therefore, at the time of the hearing they must have healed thus the assessment of permanent disability is technically wrong.
21. Counsel submitted that the award of Kshs. 3, 500,000/- was erroneous considering the fact that there was no initial treatment notes and evidence by an orthopaedic specialist adduced in support of said injuries. Counsel submitted that the trial magistrate has not tendered any sufficient explanation for awarding the respondent that amount in damages while disregarding the appellants’ proposed award. He cited the case of Hassan Noor Mahmoud vs Tae Youn Ann (2001) eKLR in support of this submission. He urged the court to set aside the award for general damages and substitute it with an award of Kshs. 450,000/-. He relied on the case of George Kinyanjui & Anor T/A Climax Coaches & Another vs Hassan Musa Agoi (2016) eKLR in support of this submission.
22. On special damages, he urged that the same must be specifically pleaded and proved, citing the case of Francis Muchee Nthiga vs David N Waweru (2013) eKLR where the court emphasised the same. He urged that the special damages of Kshs. 13,760/- ought not to have been awarded for failure to comply with Sections 19 and 20 of the Stamp Duty Act. In this regard, he cited the case of Embu HCCC No. 119 of 2008 Agnes Wanjiku Ndegwa v Kenya Power & Lighting Company (2014) eKLR.
23. Further, He stated that from the framing of the issues, the court had already made a decision that the appellant motor vehicle was to blame for the accident and thus the court was biased. Citing Order 21 rule 4 of the Civil Procedure Rules, he urged that it is upon a judicial officer to give a basis of how he or she arrived at a particular decision and therefore, the failure by the magistrate to give sufficient reasons for his decision was a fatal error as it contravened the said provisions. He submitted that the respondent prejudiced by this award. He relied on the case of SAJ Ceramics Limited vs Robinson Mongare (2015) eKLR in support of this submission
24. In conclusion, the appellant urged the court to set aside the decision by the trial court and make orders that will ensure that justice is rendered fairly. He reiterated that the respondent failed to prove her case on a balance of probabilities and urged the court to allow the appeal
Determination
25. Being a first appeal, the Court is guided by principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
“… 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 into account of particular circumstances or probabilities materially to estimate the evidence.
26. In light of the Grounds of Appeal and the submissions by Counsel as herein summarised, it is my considered opinion that the issues that arise for determination are as follows;
i) Whether the trial magistrate erred in apportioning liability at 100% against the appellant
ii) Whether the award in General damages was manifestly excessive
iii) Whether the documents availed by the respondent are defective for want of stamp duty
27. In the case of Mwangi V. Wambugu (1984) KLR 453, the Court of Appeal laid out the circumstances under which the court can interfere with a finding of fact as follows:
“A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
28. It is not denied that the defendant hit the minor. The only account on how the accident occurred is that of DW1 in which he stated that it is the minor got into the road and onto his path suddenly and he could not avoid hitting him. Pw2 who testified that she was part of the investigation simply produced the Police Abstract and there was also no eye witness evidence. The trial court found in his judgement, even though not so elegantly and clearly stated that because the respondent was a minor, then the appellant was held 100% liable and the question the court needs to answer is whether the Hon Magistrate erred in this holding.
29. There is no dispute that the respondent herein was a minor. The mother produced his Birth Certificate which indicated that he was born on 15th November 2003. The accident occurred on 26th November 2015. The minor therefore had just turned 12 years at the time of the accident. It has been submitted that the minor owed himself and other road users the duty to ride hi bicycle safely on the road. That may very well be so but the more important question the court needs to answer is who as between the minor aged twelve and the adult appellant owed themselves and other road users a greater duty of care. The appellant testified that he was driving at a speed of 50KPH. That is a very sedate speed by any standard. There is no evidence that the minor emerged onto the road at a high speed.
30. From the Medical Report by Dr. Joseph Sokobe, it is stated that as a result of the collision, the minor apart from other relatively serious injuries sustained fractures on the skull, fractures of two upper teeth, fracture of left elbow (with dislocation), fracture of the left radius, fracture of the right radius (with dislocation at the wrist) and fracture of the right femur. These in my view are very serious injuries and are not the kind of injuries that would be caused in a collision with a vehicle being driven at 50KPH.
31. In light of the above, it is my very well considered opinion, the accident vehicle must have been at a very high speed which only goes to show that the same was being driven negligently, recklessly and carelessly and without due care attention and regard to other road users including the minor in the circumstances. Notwithstanding the lack of an independent eye witness account the evidence as herein analysed, would be sufficient on a balance of probabilities to apportion a higher degree of liability to the appellant.
32. But that aside, it is an undisputed fact that the respondent was a minor and the question then is whether he ought to be held liable and if so to what degree. The issue of the liability of a child of the approximate age of the minor herein was determined in the case of ALA (Suing as the Next Friend and Father to ZM) v Philip Obonyo Oluoch [2021] eKLR. In this case Fred Ochieg J (as he then was) found that a minor aged 11 years cannot be held liable in a road traffic accident case. In so finding, he cited with approval the finding of the court in the case of Rahima Tayab Vs Anna Kinanu [1983] KLR 114 where it held as follows;
“A judge should only find a child guilty of contributory negligence if he or she is of such age as to be expected to take precautions for his or her own safety, and then he or she is only to be found guilty if blame is attached to him or her.”
33. The court notes that the respondent herein was within the same age bracket having just tuned 12 years of age and in light of my conclusions herein on the causation of the accident, I find the above authority to be highly persuasive in assisting the court on the issue of liability.Consequently I am persuaded that as between this minor and the appellant, the person who owed the greater duty of care to other road users and more particularly the minor herein was not the minor as has been submitted, but the appellant. As proposed by Counsel for the appellant, liability can therefore not be at 50:50. In this regard, I am well satisfied that the Hon Magistrate properly directed himself in awarding liability at 100% against the defendant and this apportionment is accordingly upheld.
34. On the award of Ks. 3,500,000/-, before delving into the issue of whether it is manifestly excessive or note, I note that the only Medical Report on record is by Dr. Sokobe on behalf of the plaintiff. I also note from the record of proceedings that the appellant did not cross examine any of the doctors who appeared as witnesses in any substantive manner on all the exhibits that they produced related to the injuries sustained by the minor. In his submissions however, Counsel has proceeded to now rebut, controvert and even question the veracity of the evidence. Apart from pointing out that it is trite that submissions cannot be converted to an avenue for adducing evidence and by Counsel for that matter, who is not a party to the suit at all, the appellants ought to have availed an alternative Medical Report prepared by their Doctor to Counter Dr. Sokobe’s Report. This having not been done, then the contents of the said Report remain as uncontroverted.
35. I further note from the said submissions that it is on the strength of the court agreeing with the appellant that the injuries should have deen classified as severe soft tissue that then the award should be reduced. Be that as it may, having found that Dr. Sokobe’s report is uncontroverted, I take cognizance of the fact that comparable injuries should attract comparable awards (see Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR of course taking into consideration the fact that no injuries can be exactly similar. In this regard, I have considered the following authorities with comparable injuries;
a) In Amazon Energy Limited v Magdaline Nthenya Mathias & another [2019] eKLR Justice R. Nyakundi set aside an award of kshs. 3,500,000/- and substituted it with an award of Kshs 2,500,000/- in General damage. The injuries sustained by the respondent were; a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft) b. Displaced fracture of the right femur thigh bone (mid shaft) c. Skull fractures at i. left eye socket – orbital floor, ii. left lamina propia, d. Fracture of the right clavicle shoulder blade bone. e. Deep cut on the forehead extending to the left eye. f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus) g. Total loss of vision in the left eye. Permanent disability was assessed at 50%.
36. I find this case to be comparable in terms of the injuries sustained and even as I note that disability was apportioned at 50% compared to 30% in this case, due to the effluxion of time and the current high inflationary rates, I also award this respondent it is my Ks. 2,500,000/= in General Damages. The award of Ks. 3,500,000/= is therefore set aside.
37. The Court of Appeal addressed the issue of courts rejecting evidential material on account of noncompliance with the Stamp Duty Act in Paul N. Njoroge Vs. Abdul Sabuni Sabonyo [2015] eKLR where the Court held as follows:
“21. The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR where it stated thus:
“Mr. Mbigi submitted that the guarantee document relied on by the Respondents to enforce their claim was inadmissible in evidence as it was not stamped contrary to the Stamp Duty Act. It is a submission which has been raised in other cases before but this Court has approved the procedure that ought to be followed in such matters. A case in point is Diamond Trust Bank Kenya Ltd vs. Jaswinder Singh Enterprises CA No. 285/98 (ur) where Owuor JA, with whom Gicheru JA (as he then was) and Tunoi JA, agreed, stated: -
“The learned Judge also found that the agreements could not be enforced because they contravened section 31 of the Stamp Duty Act (cap 480). In view of my above finding, it suffices to state that sections 19(3) 20, 21, and 22 of the same Act provided relief in a situation where a document or instrument had not been stamped when it ought to have been stamped. The course open to the learned Judge was as in the case of Suderji Nanji Ltd. -vs- Bhaloo (1958) EA 762 at page 763 where Law J., (as he then was) quoted with approval the holding in Bagahat Ram -vs- Raven Chond (2) 1930) A.I.R Lah 854 that:
“before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty …
The Appellant has never been given the opportunity to pay the requisite stamp duty and the prescribed penalty on the unstamped letter of guarantee on which he sought to rely in support of his claim against the 2nd defendant/Respondent and he must be given the opportunity”.
We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the Act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof.
38. In light of the decision to the Court of Appeal, it is my finding that the objection raised to the receipts produced by the respondent for want of payment of stamp duty lacks merit and the same is dismissed. The upshot then is that the Appellants appeal is partially allowed as follows;
a) THAT liability as apportioned at 100% against the appellant by the Trial Court is upheld
b) THAT the award of Ks. 3, 500,000/- in General damages is now hereby set aside and substituted with an award of Ks. 2, 500,000/-
c) THAT the award of Ks 13,760/- in Special Damages in favour of the Respondent as well as cost of the suit and interest at court rates is upheld.
d) THAT The Appellant is to bear the costs of this Appeal
Read Dated and Signed at ITEN on 2nd April 2025