JUDGMENT
1. The Respondent filed a suit in the subordinate Court seeking general damages, special damages, costs of the suit and interest for personal injuries sustained from a road accident on 06/01/2013 (material day) along Nthongoni-Mtito-Andei road. His case was that he was a lawful pedestrian along the said road when the Appellant by himself or his lawful agent/servant/employee/driver drove/managed/controlled motor vehicle registration No. KAW 481P so negligently that it veered off the road and hit him.
2. The Appellant filed a statement of defence to the effect that the suit was hopelessly time-barred under section 4(2) of the Limitation of Actions Act and that he would challenge the leave to file suit out of time granted on 15/06/2020 in Misc. Civil Application No. 8 of 2020. Additionally, he denied all the allegations in the plaint and put the plaintiff to strict proof thereof. It was his case that if the accident occurred as alleged, it was solely caused and/or substantially contributed to by the Respondent’s negligence.
3. The Respondent replied to the defence where he joined issues with the Defendant/Appellant and reiterated the contents of his plaint.
4. After the preliminaries, the matter proceeded to trial and judgment was eventually delivered in favor of the Respondent. The trial magistrate apportioned liability in the ratio of 75%:25% in favor of the Respondent and assessed damages as follows;
General damages…………………..…………....Kshs 800,000/=
Future medical costs & Removal of implants…Kshs 150,000/=
Special damages…………………………………Kshs 3,000/=
Total………………………………………………..Kshs 953,000/=
Less 25% contribution…………………………..Kshs 238,250/=
Net award………………………………………….Kshs 714,750/=
The Appeal
5. Aggrieved by the decision, the Appellant filed this appeal and raised the following grounds;
a) The honorable court erred in not finding that the respondent’s suit was filed out of time when the subject accident occurred on 6th January 2013 and the suit was filed on 27th July 2020.
b) The honorable court erred in not finding that leave to file the suit out of time was granted contrary to the provisions of Part III of the Limitations of Actions Act.
c) The honorable court erred in not finding that the respondent was at all times aware of material and decisive facts starting 6th January 2013 when the subject accident occurred until when the time limitation expired and leave wrongly granted.
d) The honorable court erred in failing to apply established principles in considering an order for extension of time to file a suit after expiry of the time limitation.
e) The court erred in taking into account irrelevant matters and failing to take into account relevant matters in determining the issues in the suit.
f) Without prejudice to the foregoing, the Honorable court erred in finding the appellant liable for the suit accident contrary to the evidence on record that the respondent caused or substantially contributed to the suit accident.
g) The honorable court erred in awarding damages that were excessive and exorbitant.
h) The trial court erred in disregarding the appellant’s defence.
6. The parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
Submissions by the Appellant
7. It was submitted that the accident occurred on 6/1/2013 and the suit was filed 7 years 6 months later on 27/7/2020. That leave to file suit out of time was granted on 15/6/2020 and the Respondent testified that, at all material times, he was aware of the material facts of the suit. It was submitted that the trial Court had a duty to examine merits of leave to file suit out of time. Reliance was placed on John Gachanja Mundia -vs- Francis Muriira & Another [2017] eKLR where the Court held:
“The view this Court takes is that, a Defendant can only challenge the leave at the trial by way of cross-examination on the circumstances of late filing of the case. It is only after he successfully mounts such a challenge that the incidence of proof shifts back to the Plaintiff to defend the leave obtained exparte. This happened in the present case but the 1st respondent failed to discharge that burden.”
8. It was contended that in cross-examination, the Respondent admitted that he was always aware of all material facts of the suit since the accident occurred. That he instructed an advocate to file a suit but the advocate did not act. It was further contended that an advocate’s failure to file suit on time is not a reason to grant leave to file suit out of time. Reliance was placed on the case of Amos Muthinja M’mungania -vs- John Gaitho & another [2016] eKLR where the Court held:
“From the evidence adduced, the plaintiff was all along aware of his cause of action and accordingly indeed instructed counsel to file suit thereof. Except, there was omission by counsel- he did not file suit within time. He stated that the said counsel kept on lying to him that he filed the suit. The question becomes: is mistake or negligence of counsel a material fact within the meaning of Section 27 of the law of Limitation of Actions Act? Certainly, it is not.”
9. It was submitted that according to the plaintiff, he could not file suit because he was undergoing treatment. The Appellant noted that the Respondent was discharged from hospital in February, 2013 and contended that nonetheless, ongoing treatment is not a reason for extending time to file a suit. That, many plaintiffs undergo treatment while their cases are ongoing.
10. It was submitted that even prisoners are not exempted from the requirement to file suits within time. Reliance was placed on the case of Mweu -vs- Kabai and Another [1972] 1 EA 242 where the Court held:
“He could have employed one whilst he was imprisoned notwithstanding the lack of assistance; he had but to write or get a letter written. He has not suggested that he was stopped from communicating, within the Prison rules, with the outside world.”
11. It was submitted that as a free man, the Respondent had great ability to pursue his claim and it is unclear how treatment prevented him from filing a suit.
12. It was submitted that the Respondent did not establish grounds for extension of time to file a suit and the trial Court should have dismissed the suit for being time barred. The Appellant prays for equal protection of the law.
13. It was submitted that just before the accident, the Respondent was walking alongside at least 3 people and all of them left the road to allow the vehicle to pass, except the plaintiff. The Appellant questions why only the plaintiff was hit. That in the alternative, the Appellant asserted that the plaintiff ran into the path of his vehicle and remained unshaken in cross-examination. He contended that this is the accurate account of the accident.
14. It was submitted that the trial Court erred in failing to give reasons for disbelieving the Appellant and did not determine how the suit accident occurred. In the circumstances, this court was urged to accept the evidence by the Appellant and hold the Respondent 100% liable for the suit accident.
15. It was submitted that cconsidering the injuries, the trial Court gave a reasonable sum for pain and suffering.
Submissions by the Respondent
16. The Respondent identified the following as the issues for determination;
a) Whether leave to file suit out of time was deserved
b) Liability
17. It was submitted that section 4(2) of the Limitation of Actions Act does not afford a defence to an action founded on tort where (a)the action is for damages for negligence, nuisance or breach of duty, (b)the damages claimed by the plaintiff for the negligence, nuisance or duty consist of or include damages in respect of personal injuries of any person, (c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section (d)the requirements of section 2 are fulfilled in relation to the cause of action.
18. It was submitted that the requirements of section 27(2) are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff. That section 27 of the Limitation of Actions Act clearly lays down the circumstances under which the court would have jurisdiction to extend time. That the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort. Reliance was placed on the case of Willis Onditi Odhiambo -vs- Gateway Insurance Co Limited in which the Court of Appeal held that time to file suit can only be extended where the action is found on tort and must relate to the torts or negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.
19. It was submitted that this is a claim for damages for personal injuries arising out of alleged tort of negligence and as such, leave to file suit out of time will be granted where the plaintiff has proved; that the material facts relating to the cause of action and of a decisive character were not within his knowledge and that he became aware of it after the limitation period had elapsed or at least within one year of lodging the suit.
20. It was submitted that the reason tendered by the Respondent in the miscellaneous application was that although he knew he got an accident, he was of school going age and it was his late father who had instructed the firm of Geoffrey Onyancha. That he got to know the firm later after doing due diligence and knew the chaser by the name Benson Musoka. That upon knowing the counsel who had been instructed by his father, he visited his offices severally with intention to acquire documentation or the progress of the case and he realized that the same had not been filed. He thus prayed that the mistake of counsel should not be visited on him. That further, he stated that the Defendant would suffer no prejudice as the leave was meant to achieve ends of justice due to the nature of the injuries suffered.
21. It was submitted that once leave has been granted by the court, and the rival party feels that it was not properly granted, the burden of proof shifts to the rival party as captured in Cozens -vs- North Deron Hospital Management Committee & Another [196] 2 ALL ER 799. That the originating summons upon which the leave was granted is not attached to these proceedings hence this court is unable to interrogate the reasons put forth for the delay.
22. It was submitted that the purpose of Section 27 and 28 of the Limitation of Actions Act is that a statute barred suit may be extended in case of ignorance of material facts in actions for negligence, nuisance or breach of duty.
23. It was submitted that Order 37 (6)(1) of the Civil Procedure Rules provides for extension of time to file suit by an originating summons supported by an affidavit. That Rule 6(2) provides that if a suit is already filed, leave shall be applied for in the suit. Reliance was placed on Gikuhi -vs- Nderitu (Civil Case E162 of 2020) [2024] KEHC 266 (KLR) (Civ) (25 January 2024) (Judgment) where the court held that;
“..the leave granted to the Plaintiff to file suit out of time by the subordinate court is not binding to this court (the High Court), nor is it applicable to this suit as filed at the high court. It would however have been applicable and binding had the suit been filed before the Subordinate Court which granted the leave”.
24. It was submitted that in Ng’ang’a -vs- Wangui & Another (Civil Appeal 18 of 2020) [2022] KEHC 10228 (KLR) (14 June 2022) (Judgment) the high court upheld leave granted on ground of illness.
25. It was submitted that the Respondent took all the necessary steps and diligently followed up on the matter after realizing nothing was ongoing. That he has thus shown sufficient cause for failure to file the suit within the required time. Reliance was placed on County Executive of Kisumu -vs- County Government of Kisumu and 8 others; Civil Application No. 3 of 2016 where the Supreme Court held that;
“Each case has to be determined on its own merit and all relevant circumstances considered. It is worth reiterating that in considering whether or not to extend time the whole period of delay should be stated and explained to the satisfaction of the court.”
26. That in the same case, the Supreme court reiterated the considerations to be made in such cases as follows;
a) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e) Whether there will be any prejudice suffered by the respondents if the extension is granted;
f) Whether the application has been brought without undue delay; and
g) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
27. It was submitted that locking out of a plaintiff, arbitrarily, from seeking remedy due to limitation of time is unlawful and that the Appellant did not allege that any circumstances that gave rise to the
cause of action herein had changed or lapsed. That the courts have wide unfettered inherent discretion to grant leave judiciously. Reliance was placed on Royal Media Services Ltd -vs- Valentine Mugure Maina & Another (2019) eKLR, where the court stated;
“Before I conclude, I must mention that section 4(2) is couched in such terms that the trial court is left with discretion to extend the time within which a claimant can file suit for damages in defamation claims. It may be that the claimant was under disability of some sort and therefore he could not, for that reason, file the claim within the statutory period. Where the court is inclined to extend time, it must have regard to all the circumstances of the case and in particular to such circumstances as the length and the reasons for, the delay on the plaintiff…. the court, in making its discretion will consider the date on which any such facts did became known to him and the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action.”
28. On the issue of liability, reliance was placed on sections 107, 108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya for the submission that the legal burden of proof is on the person who alleges. That this being a civil case, the standard of proof is on a balance of probabilities. Reference was made to Phipson on Evidence, 16th Edition (2005) at pp. 154-55 paragraph 6-53 which states that:
“The standard of proof in civil cases is generally proof on the balance of probabilities. If, therefore, the evidence is such that the tribunal can say “we think it more probable than not”, the burden is discharged, but if the probabilities are equal it is not.”
29. In conclusion it was submitted that the trial court evaluated the circumstances of the accident and rightly apportioned liability between the parties.
Duty of Court
30. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.
31. I have considered the grounds of appeal, the rival submissions and entire record, and the following issues arise for determination;
a) Whether leave to file suit out of time was justified;
b) Whether the finding on liability should be upheld;
c) Whether the quantum of damages should be disturbed.
Analysis and determination
Whether leave to file suit out of time is justified
32. Section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya (the Act) provides that; “An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued”
33. The suit herein is based on the tort of negligence hence should have been filed by 06/01/2016 as the accident happened on 06/01/2013. The evidence however shows that the Respondent was born on 23/02/1996 hence he was approximately 17 years at the time of the accident (06/01/2013). According to section 22 of the Act, the limitation period for people under disability is six years from the date when the person ceases to be under disability.
34. The Respondent was under disability by virtue of being a minor and section 2 of the Act defines a minor as person under the age of twenty-one years, other than a person who is or has been married. Consequently, the Respondent ceased being under a disability on 23/02/2017 when he attained the age of 21 years. Counting six years from that date means that the Respondent could file the suit at any time before 23/02/2023.
35. It therefore follows that there was actually the Respondent was actually not required to seek leave to file suit out of time as the limitation period had not lapsed. That ground of appeal is therefor untenable
Liability
36. The Respondent pleaded that on the material day, he was a lawful pedestrian along Nthongoni-Mtito Andei road when the Appellant by himself or his lawful agent, servant, employee and/or driver intentionally without due care and attention so negligently drove/managed/controlled motor vehicle registration number KAW 481P (the motor vehicle) at a very high and unmanageable speed that it swerved, veered off the road in a zig zag motion and hit him. He blamed the Appellant for inter alia, driving fast, carelessly and negligently, failing to keep any sufficient look out and to take necessary precautions for the safety of other road users.
37. The Respondent produced a police abstract (P. Exh 6) which shows that there was an accident on the material day involving the motor vehicle and the Respondent. In cross-examination, the Appellant agreed that his motor vehicle KAW 481P was involved in an accident on 06/01/2013 and the plaintiff was injured. The fact of the accident is therefore not in dispute.
38. The Respondent did not produce a copy of records for the motor vehicle but in his defence, the Appellant stated; “Motor vehicle registration No. KAW 481P belongs to me”. Consequently, its ownership is not in dispute.
39. As to how the accident happened, the Respondent (PW1) adopted his statement dated 20/07/2020 as his evidence-in-chief in which he stated that on 06/01/2013, they were walking along Nthongoni-Mtito Andei road on their way home. That they were walking on the left pedestrian path when the defendant passed them at a very high speed and took a very sharp U-turn ahead of them and started to drive back as he faced them with direct full headlights on and off moving in a zig zag motion at a very high speed. That in an attempt to run away, he was hit while off on the left-hand side of the road. That he was rescued by his company mates and passers by but the defendant did not stop.
40. On cross-examination, he said that the accident occurred at around 9.00pm and he was not alone but the others were not injured.
41. PW2 was Moses Mutinda Charles and he adopted his statement as his evidence-in chief. He testified that on 06/01/2013, he was with the plaintiff and they were headed home at around 9.00pm. They were walking on the left side along Mwaani-Mtito Andei road. That motor vehicle KAW 481P passed them and then it turned and approached them from the opposite direction in a zig zag way with headlights on and off. That it was at a high speed and they tried to escape to the bush but the plaintiff was knocked. That the vehicle was coming from Mwaani to Mtito-Andei and it was to be on the right hand but it went to their left hand.
42. On cross-examination, he said that they escaped when the vehicle went towards them but it hit the plaintiff. That they reported at Mtito-Andei police station. That they were four including the plaintiff.
43. DW1 was Thomas Kyengo Mwololo, he testified that on 06/01/2013, he had taken his friends to Kilaguni. That they returned home and he was to take them to take a bus to Nairobi. That he left his house to Mtito-Andei town at 9.00pm. The first bus arrived at 11. Oclock and one of the visitors boarded and the last one boarded at 1am. That on his way home at 1.30am, he saw seven people on the road and he hooted and flushed. 4 went off the road on the left side and 3 started walking slowly to the left side. He hooted again and suddenly one crossed over to his side and he heard a loud bang. He drove nearer to his house and did a U-turn but did not find anyone. He went to the police to report. One person was injured. He was given a police officer and they went to the scene but did not find anyone. They went to the police station and found that a report had been made and the injured one had been taken to Voi. He followed them to Voi and found them there. The plaintiff banged to the car. There was no damage on the car. That he was not driving at high speed or zig zag manner.
44. On cross-examination, he said that he had taken his friends to Kilaguni which is a lodging within Tsavo National Park. That they did not take any refreshments. He stated that motor vehicle registration KAW 481P belongs to him and that it was involved in an accident on 06/01/2013 and that the plaintiff was injured. He said that he hooted and flashed for them to move out of the road and four of them moved. That he hooted and flashed again but one person went towards the vehicle and he heard a loud bang. That he slowed down and there were bumps. That he was doing about 30-40km/hr. He confirmed that the vehicle can stop instantly at that speed but not necessarily and the impact cannot be high. He denied that he was driving at a high speed. That the road has potholes and elephant crossing. That one has to swerve to avoid potholes hence the zig zag driving. He stated that the plaintiff is known to him and was injured.
45. The evidence established that the Respondent was hit by the Appellant’s vehicle KAW 481P on the material night. The Respondent testified that the vehicle was moving towards Mtito-Andei from Mwaani hence it was approaching them from the opposite direction. The Appellant himself corroborated this evidence as he agreed that around 9.00pm, he left his house to Mtito-Andei town. The Appellant confirmed that he was indeed moving in a zig zag way due to the potholes but denied that he was speeding. In my view, the Respondent’s evidence was candid and had no inconsistency. On the other hand, the Appellant claimed that the accident happened at 1.30am which cannot be in light of the totality of the evidence. He also said that he was driving at a speed of 30-40km/hr which I find incredible in light of the injuries sustained by the Respondent. Even the Appellant himself agreed that at that kind of speed, the vehicle can stop instantly and the impact would not be so high.
46. The fact that the Appellant was moving towards Mtito-Andei and was on the opposite direction of the Respondent and his friends means that the Appellant was indeed supposed to be on the right side which is actually the left lane as one moves towards Mtito-Andei. The zig zag manner of driving explains how he hit the Respondent who was on the opposite side. Consequently, the evidence establishes, to the required standard, that the Appellant was speeding, failed to sufficiently look out for other road users and drove in a zig zag manner.
47. On the other hand, it is trite that a pedestrian has a duty to take care of his own safety while crossing or walking on a road and to have due regard for other road users including motor vehicles and regard of the Highway Code.Paragraph 186 of Charlesworth on Negligence, Third Edition states that: “A pedestrian owes a duty to other highway users to move with due care.”
48. In Isabella Wanjiru Karangu -vs- Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142, Potter, JA held that:
“There can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. There is no reason for a pedestrian’s complete failure to see a motorist and vice versa…. The doctrine of last opportunity is obsolete as no distinction can be drawn between negligence after seeing danger and negligence in not seeing it beforehand. The two causes of the accident cannot be severed and so the trial Judge was right to find both were at fault.”
49. The trial court apportioned liability in the ratio of 75%: 25% in favor of the Respondent and was guided by a relevant authorities from this court . The Respondent had a duty of taking care of his own safety just like his friends did especially because they had seen the vehicle moving in a zig zag manner. The Appellant was the one in possession of a lethal machine hence a higher duty of care was expected from him. Consequently, I find no reason to interfere with the apportionment of liability.
50. In Khambi and Another -vs- Mahithi and Anor [1968] EA 70, it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
Quantum of damages
51. The injuries sustained were pleaded as follows;
a) Fracture of the lateral third of the right clavicle
b) Fracture of proximal third of left femur
c) Sub trochanteric fracture of right femur
d) Keloid scars on both thighs
e) Wound on the back, left shoulder and hand.
52. It was also pleaded that the plaintiff underwent surgical operations and plates were inserted in his right femur while screws and plates were inserted in his left femur, all which need to be removed due to current health implications.
53. The Respondent was examined by Dr. Dino on 11/12/2013 and a medical report from the doctor, particularizing the injuries as above, was produced (P.Ex 7a). The medical report stated that the injuries caused the Respondent pain, much anguish and suffering and had cost him a total of 20 weeks of hospitalization. That he had sufficiently recovered and more improvement was anticipated. That the metal plates and screws would require surgical removal after about 18 months from the date of surgery.
54. The Respondent was re-examined by Dr. Muoki on 06/07/2020 and the injuries were also particularized as pleaded. The doctor concluded that; “These are severe skeletal injuries. He remains with an estimated permanent disability of 15%.” The doctor recommended surgeries to remove the implants at an estimated cost of Kshs 350,000/=.
55. The Respondent was further re-examined by the Appellant’s doctor on 08/01/2021 and the resultant medical report by Dr. Wambugu was produced by consent. The report particularized the injuries as pleaded and gave the following prognosis;
“Mwikya’s injuries are consistent with those due to blunt trauma as may have occurred during the said accident. He sustained skeletal and soft tissue injuries for which he has since made adequate recovery. The fractures have united and no further complications are envisaged. I assert that no total permanent incapacitation occurred. The metal implants do not have to be removed but should he be inclined to have them removed, then it would cost him about Kshs 110,000/= all-inclusive in a low-cost private institution.”
56. The Respondent proposed an award of Kshs 1,000,000/= and relied on the following cases;
a) Easy Coach Ltd -vs- Mary Lossa Aketh (2019) eKLR; award of kshs 750,000/= was confirmed on appeal for; displaced fracture of right clavicle, fracture of the right scapular, multiple lacerations on both hands, bruises on the forehead, contusion on the left hip, contusion on the left leg laterally and multiple cut wounds on the lower back.
b) Florence Njoki Mwangi -vs-Peter Chege Mbitiru (2014) eKLR; award of kshs 700,000/= for; fracture of the right mid shaft femur, fracture of the mid left femur.
c) Akamba Public Road Services -vs-Abdikadir Adan Galgalo (2016) eKLR; award of kshs 800,000/= was reduced to kshs 500,000/= on appeal for; fracture right tibia leg bone malleolus and right fibular bone and blunt injury to the right ankle.
d) Geoffrey Mwaniki Mwinzi -vs-Ibero (K) Limited & Anor (2014) eKLR; award of kshs 2,000,000/= for; extensive fractures of the left tibia and fibula with extensive damage to the soft tissues of the left leg and fracture collar bone. The treatment included internal fixation of the fracture with a metallic plate and subsequent amputation of the left leg.
e) Denshire Muteti Wambua -vs-Kenya Power & Lighting Co. Ltd (2013) eKLR; award of kshs 1,500,000/= for; multiple fractures involving the right femur, left femur and left scaphoid bones, dislocation of left elbow joint associated with fracture of the radial head, dislocation of left lunate bone and bruises parietal scalp.
f) Mary Pamela Oyioma -vs-Yess Holdings Ltd (2011) eKLR; award of kshs 900,000/= for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.
g) David Kariuki & Anor -vs-Joshua Wambua Muthama (2017) eKLR; award of kshs 1,100,000/= reduced to kshs 800,000/= for clavicle fracture, fractures of right and left femurs, soft tissue injuries.
57. The Appellant proposed an award of Kshs 500,000/= and relied on the following cases;
a) Tirus Mburu Chege & Anor -vs- JKN (minor suing through the next friend and mother DWN) & Anor (2018) eKLR; award of kshs 500,000/= was for; fractures tibia and fibula both legs, blunt injury on the forehead, broken upper right second front tooth, nose bleeding, consistent loss of consciousness.
b) John Imbenzilndiazi -vs- Hudson N. Sarala (suing as the next friend and father of Fanuel Nyabera (2020) eKLR; award of kshs 500,000/= for; fracture of right tibia and fracture of right femur as well as multiple soft tissue injuries.
58. I note that one of the grounds of appeal was that the honorable court erred in awarding damages that were excessive and exorbitant. In his submissions however, the Appellant stated that the award for pain and suffering is reasonable considering the injuries sustained. Be that as it may, I have looked at the injuries sustained by the Respondent and the opinions in the three medical reports. The three doctors were in agreement that the Respondent suffered the injuries pleaded. I concur with the trial court that Easy Coach Ltd (supra) case was more comparable and was fairly recent at the time of judgment in 2021.
59. In addition, there is Lazaro Mangeni Oundo -vs- Sony Driving School Limited (2018) eKLR where the Appellate court confirmed an award of Kshs 600,000/= in general damages for; fracture of the left femur bone, fracture of right clavicle bone and injury to the right shoulder.
60. The point of departure in the three medical reports was whether there was any permanent disability. Dr. Dino and Dr. Wambugu did not indicate any degree of incapacity while Dr. Muoki assessed 15% incapacity. The Respondent produced his two medical reports without calling the makers and without opposition from the Appellant. On the other hand, the Appellant’s medical report was produced by consent. Consequently, all the medical reports were admitted in evidence hence presenting a dilemma as to which one the court should rely on considering that the court has no expertise in the medical field. In David Ndung’u Macharia -vs- Samuel K Muturi & Another Nairobi HCCC No. 125 of 1989, the court was faced by such a situation and expresses itself as follows;
“If a judge is confronted with two or more medical reports which are inconsistent with one another and the doctors are not called, he is immediately embarrassed between the two views and the two statements. The whole object of the type of order is to ensure that matters of medical fact, and matters of medical opinion shall if possible be agreed by the medical men and that is the object and the sole object of orders of this kind, and indeed no order could achieve anything more. The practice was certainly never intended to admit of inconsistency and differing medical points of view being put before the Judge and described as agreed medical reports. You cannot have an agreement on two inconsistent statements of fact, and the phrase “agreed medical report” means, and means only a report where the facts stated are agreed as true medical opinions expressed and accepted as correct……. In short it is for the parties’ doctors (and not the parties themselves, or their advocates) to agree on a medical report and if the doctors have not agreed by either adopting one report or jointly authorising a single report there is no agreed report.”
61. In Shadrack Mathias & another -vs- Agnes Muluki Wambua [2021] eKLR; the court stated;
“22. In my view parties and their counsel ought not to just throw medical reports or expert opinion reports for that matter which are divergent in material aspects without calling the makers thereof. This was the position of the Court of Appeal in Auni Bakari & Another vs. Hadija Olesi Civil Appeal No. 70 of 1985 where it held that it is desirable to call a doctor to explain the discrepancy in a medical report.
23. The procedure of admitting in evidence expert opinion reports which are not substantially the same is, in my view, a short cut that ought not to be permitted in litigation.”
62. The foregoing authorities speak the correct position and I have no reason to depart from them. Hence on the issue of incapacity, since there was no consensus among the doctors, it would be foolhardy to venture into the same. It is noteworthy that the trial court did not make reference to the incapacity in assessment of damages and in these circumstances cannot be faulted, for failing to do so.
63. With regard to the award for future medical expenses, the Respondent’s doctor estimated a cost of kshs 350,000/= while the Appellant’s doctor estimated a cost of kshs 110,000/=. Consequently, there was consensus that the need was there. The trial court awarded kshs 150,000/= which, in my view, was reasonable in the circumstances.
64. The special damages pleaded were Kshs 1,000/= but a receipt of kshs 3,000/= for payment of medical report was produced. The award is therefore justified.
65. The upshot is that the quantum of damages assessed is not inordinately high as averred by the Appellant.
66. In the end I find that the appeal is without merit.
67. The judgment of the trial court is upheld in its entirety.
68. The appeal is dismissed with costs to the respondent.
Dated, signed and delivered virtually this 28th March 2025
Mumbua T Matheka
Judge