The appellant contests the judgment of the subordinate court delivered in Milimani Chief Magistrate Court Civil Case No E1983 & E1985 of 2021
The respondents filed suit against the appellant seeking general and special damages for injuries suffered in a road traffic accident that occurred on 28/11/2020 at Kiambu Road involving motor vehicle registration number KBU 459P .
The trial court apportioned liability at 80:20 against the appellant.
The respondents sustained the following injuries:
The 1 st respondent suffered a compound fracture of the left tibia and fibula and laceration on the forehead. The court awarded the respondent Ksh 900,000/= and Ksh 17,285/= as general and special damages respectively.
The 2 nd respondent sustained compound fracture on the maxillae bone and fracture on the right pubic bone. She was awarded Ksh 1.1Million as general damages and Ksh 41,455/= as special damages.
The appellant aggrieved by the decision of lower court filed this appeal raising the following grounds of appeal:-
The magistrate erred in law and fact in apportioning liability at 80:20% in spite of evidence in favor of the defendant
Award of General damages of Ksh 900,000/= was exceedingly high and without any factual authoritative basis.
The magistrate erred in awarding the 2 nd plaintiff general damages of Ksh 1,100,000/= which were exceedingly high and without factual or authoritative basis
The court failed to consider submissions and relevant principles while arriving at the judgment.
The appeal was canvassed through written submissions. The appellant contested both liability and quantum.
He submitted that the court failed to consider that the respondent immensely contributed to the accident and that he crossed the road at an undesignated place and without ascertaining whether the road was clear. That the decision on liability was informed by contradictory evidence that the accident occurred off the road.
The appellant urged the court to apportion liability among parties at the ration of 50:50. The appellant referred to the case of Hussein Omar Farar -Vs- Lento Agencies where the court of appeal held that where there is no concrete evidence to determine who caused the accident parties should be equally blamed.
The appellant also relied on the case of Wells Cargo ltd –Vs- Maxine Bosibori Geke (2020) eklr where the court awarded 70:30 against the plaintiffs who were crossing the road at undesignated place.
On quantum, the appellant submits that the court did not consider his submission. That recent cases have awarded Ksh 500,000/= for similar or more serious injuries, He relied on the case of Ndwiga & Another -Vs- Mukimba (2022) KEHC 11793 eklr where the court for a fracture of the tibia and fibula and tenderness on the left leg awarded Ksh to 500,000/=
Further, in Jitan Nagra Vs Abednego Nyandusi Oigo (2018) eklr where the plaintiff sustained more serious injuries and the court reduced the award of Ksh 1,000,000/= to 450,000/= .
Similarly, the appellant argued that the award granted to the 2 nd respondent was inordinately high and that the court did not consider his submissions and comparable cases. The appellant proposed an award of Ksh 600,000/= for injuries suffered by the 2 nd respondent.
The appellant referred the court to the case of Equity Bank Vs- Josephine Nyabaro Nyaruri [2020] KEHC 7422 where the plaintiff suffered fracture of the pelvic, degloving injury on the right knee and deep cut wound on the right thigh, the High court reduced award of 1.1 M to 550,000/=.
The appellant further cited the case of Budul Investment Ltd -Vs- Odhiambo (2024) 5765 KLR where the plaintiff was awarded Ksh 750,000/= for fracture on the right iliac bone, fracture of the right superior and inferior pubic rami near the acetabulum fracture of the right symphysis head injuries with deep Y shaped 9 cm deep wound on the forehead, deep wound on the pinna of the left ear, dental alveolar fracture affecting 5 teeth multiple bruises on both legs and both forearms.
The respondents in opposing the appeal submitted that the appellant did not discharge the burden of proof and failed to substantiate the allegation that the respondents were drunk. The respondents argued that had the appellant driven at 50km/hr as he purported, he would have had an opportunity to stop and to avoid causing the accident.
The respondents further argued that the appellant breached the Traffic Act and the Highway Code and that no test was done to prove they had taken alcohol. The respondents therefore urged the court to find that the appeal did not have merit since the allegations of drunkedness made against them remained mere allegations without proof thus the court could not act on them. The respondents maintained that there was no basis for the court to have apportioned liability at 80;20. The appellant should have shouldered 100% liability.
The appeal on quantum was also contested by both respondents. The respondents cited the following cases in support of their argument that this court should not be inclined to interfere with the quantum awarded.
Pestony Ltd & Another -Vs- Samuel Itonye Kagoko (2022) eklr where the court set aside award of Ksh 1.4 Million and awarded 800,000/= for fractures.
George William Awour -Vs- Beryl Awour Ochieng (2020) eklr where the court awarded Ksh 1.2M for fracture of the right femur and left tibia fibula
Orima Management Ltd vs Wilson Suba Kindaranga HCCA 229/12 where the court awarded Ksh 900,000/= for fracture of the left femur.
The 2 nd respondent referred to the case of Devna Pandit -Vs- Kennedy Otieno Pobara HCCC No. 491/2011 where the victim suffered a fracture dislocation of the left hip, fracture head of femur and left tibia, comminuted fracture and fracture on the right face maxilla and was awarded Ksh 2Million.
The duty of this court as a first appellate court is to review and re-evaluate the evidence adduced at trial and draw it’s own conclusions from the evidence knowing too well unlike the lower court, this court did not have the advantage of seeing or hearing any one of the witnesses testify. See Selle Vs Motor Boat Co. Ltd (1968) E.A123 at 126.
Pw1, Abigael Nabwire testified that she was going to Pangani for a job interview and she boarded a vehicle and alighted at Ridgeways. The vehicle had parked on the side of the road. She was with her friend when she attempted to cross the road, her friend was behind her and that they did not run or hold hands. There was no zebra crossing at the place.
The witness went on to state that she did not have any bottle of alcohol in her hand. She stated in reexamination that the vehicle had stopped and that they did not find any other vehicle on the side of the road. The witness testified that after the accident she was taken to Gurunanak hospital where she was admitted. She was later taken to Kenyatta National Hospital. She testified that she had since recovered from the injuries sustained as a result of the accident.
Pw2 , Caroline Elawi testified she was in high school at Isiolo and that form four students were on a break. She was 18 years at the time of the accident .She boarded a matatu to Nairobi and was escorting Pw1 for an interview .That she did not have a bottle of alcohol on that day and she did not drink alcohol .
Pw2’s mother lived at the border with Ethiopia while she had 2 guardians in Nairobi. Madam Stella did not know she was in Nairobi but Joyce knew and she was called by the police when the accident happened.
Pw3, PC Jessie Mwololo Kasyoka from Pangani police station traffic department produced the police abstract dated 4/2/2021 and 9/3/2021.The case was investigated by Corporal Magaiywa and Corporal Wamae. The case was pending under investigations when the witness testified. The nature of injuries suffered by respondents were classified as grievous harm.
That the accident Involved motor vehicle registration number KBU 459P CRV near Ridgeways. The driver was identified as Nicholas Njuguna Njau and 2 pedestrians.
He was cross examined and he stated that the investigating officer had retired while Corporal Waema was attending a training at GSU trainig school. The witness testified that he was not aware of another abstract issued on 10/11/2020 on the case.
According to him the abstract might have been issued to the defendant.
Pw4 Dr Washington Wokabi referred to the medical report for the 1 st respondent dated 11/3/2021 and 15/3/2021. She sustained a fracture of the tibia and fibula and lacerations on the forehead while Caroline Elani sustained head injuries and fractures of the maxille tear and fracture of the right pelvic bone . He produced the reports as Pexhibit 8 and the receipts for payment of the medical report charged at Ksh 3000/= and court attendance fee of KSH 10,000/=\ t.
The appellant admitted that he was the driver of the subject vehicle. He worked at Kenya Revenue Authority and was also a parttime pastor. He also admitted the occurrence of the accident and further testified that he reported the matter at Pangani police station and he took the victims to Gurunanak hospital where he also paid the bills for first aid and ambulance charges to Kenyatta National hospital.
He stated during cross examination that he was driving at 50 Km/hr and that he was behind a matatu that pulled to the left and stopped abruptly. According to him two pedestrians emerged holding hands and crossed in front of the matatu. He said that he was following the matatu and kept a distance of 5-10 meters between him and the matatu. He went further to state that it was drizzling when the accident occurred. That the matatu did not impede his view, it had pulled to the left and stopped abruptly. That the right side was clear. He went on to state that the matatu was off the road and that the two pedestrians emerged when he was going past the matatu.
The appellant maintained that he applied breaks, the one pedestrian who was behind was pulling the one ahead of her. According to him, the vehicle could not stop though he was driving at 50Kmph.He also saw them at about 3 meters away but the vehicle was unable to stop within the distance. He was with his wife and his children on the vehicle.
He went on to say that the matatu drove off and he could not get a witness from the matatu. According to him one of the pedestrians was holding a brown bottle which dropped and broke to pieces, he did not pick it and that it was a brandy bottle. He went on to testify that the two pedestrians were drunk, one was vomiting and smelled of liquor when they arrived at Gurunanak. He was with a police officer at the hospital and he took the police to the scene.
The appellant referred to the abstract dated 30/11/2020 which was filled 2 days after the accident. It was his evidence further that the victims were not coherent when the police went to Gurunanak.
He stated during reexamination that he was a pastor and that he did not take alcohol and could not tell different brands of alcohol but he could tell the smell.
Dw2, Sergeant Munyao Waeme also from Pangani Police station referred the court to the police abstract. He testified that the appellant came to the police station at 10:50 hours and reported a case of injury accident which occurred at Kiambu road. The officer testified that the appellant reported that he had taken the victims to Gurunanak hospital.
The officer went to the hospital where he found the respondents, he also visited the scene and established that the respondents tried to cross the road from left to right in front of a matatu. The matatu had dropped passengers at Astrol Petrol station which was under construction and had barricade.
He testified further that the appellant was following a matatu closely when it pulled up and he accelerated to overtake it but before he could, the pedestrians came from in front of the matatu running to the right side and that is when he knocked them down.
The officer went on to state that the road was clear although it had drizzled in the morning hours. He also testified that he saw fresh skid marks from the vehicle, he also found workers from the petrol station but they refused to record statements. That the matatu driver came to report the accident and some witnesses but they did not record statements with the police station.
The witness said he left the file to corporal Wagaiiwa since he was going for a promotion interview. He blamed the pedestrians for not taking caution for their safety, by-standers also claimed they were drunk and he found a can of beer at the scene. That the doctor said they were drunk. The abstract was produced as exhibit the two pedestrians were found at fault.
He was cross -examined and his evidence was that the abstract he referred to was the first to be issued and he had taken the respondents statement. The witness said that he visited the scene 30 minutes after the accident , there was no footbridge for pedestrians. At the scene he stated that there were no shops and people did not live at the place. There were no restaurants but walk around Ole Sidei clubs were at the place for people go take alcohol. Bystanders informed him that the pedestrians were taking alcohol but they did not record statements.
The witness went on to state that he could not do alcohol tests on the victims since they were injured and had been taken to hospital. The road was under construction at the time. According to him there was no minimum speed to use on the road and there was no signage on. However, it was possible for commuters to know that it was under construction and road could also accommodate vehicles from both sides
He stated that he was not aware of the abstracts issued on 4/2/2021 and 9/3/2022. He however admitted that the investigations were finalized.
Dw3 Pc Alice Lelan Atale from the same police station also gave evidence on the accident. She was also an investigating officer and stated that she took over the case from Corporal Magaiywa in June 2021. He had issued abstract to the respondent indicating it was pending under investigations. Corporal Wachuka issued abstract on 4/2/2021 which also indicated that he accident was pending investigations.
DW3 testified that she concluded the investigations and found that the pedestrians were to blame for crossing the road at undesignated place and that they crossed in front of a vehicle.
She stated during cross examination that the abstract dated 30/11/2020 was not on the file when the subsequent abstracts were issued.
Corporal Wema did not place it on the file. She testified that the statements of the victims had been taken when she took over the case in 2021 .Magaiywa took over from Waema who had not filled the statements .She never visited the scene , she did not prepare the sketch map and she did not issue an abstract after concluding investigations.
ANALYSIS & DETERMINATION.
The duty of the first appeal court is to reanalyze and assess the evidence in order to arrive at independent conclusions while bearing in mind that the court did not see nor hear the witnesses. The decision of the trial court can only be interfered if the court had misdirected itself on the evidence or the principles applicable to the case in arriving at its decision or that the judgement was unreasonable such that no tribunal could arrive at the court’s conclusions taking into account the evidence available.
In the case of Johnson Evan Gicheru –Vs- Andrew Morton & Another [2005] eKLR , the Court of Appeal stated that :
“ It is trite that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled .”
This court has evaluated the evidence as recorded by the lower court. The court too has considered the submissions made by the parties and what clearly is up for determination are the following issues;-
Who was to blame for the accident and to what extent?
Whether the award on damages was excessive and or unreasonable.
The court found that the appellant was the driver of the motor vehicle thuis he owed other road users a duty of care. The driver ought to have known that within a town setting the likely of pedestrians crossing the road at any point was high thus he ought to have driven with due care and attention to other road users.
The fact that the respondents emerged from right in front of the matatu could not absolve the appellant from liability for he ought to have reasonably contemplated such an eventuality within a busy road. The emergence of the two from right in front of the matatu only served to heighten their degree of contributory negligence. However, the risk was foreseeable and the appellant could not simply escape liability.
The issuance of multiple police abstracts that were contradictory by the police simply rendered the evidence of the officer unreliable. The fact however that the abstract brought forth without doubt was that an accident occurred. The police were not at the scene when the accident occurred thus their evidence could only be relevant to the extent that it confirmed the occurrence of the accident, the vehicle that was involved and the identity of the victims. Further, the state of the scene of accident was relevant factor for consideration by the lower court.
If indeed the morning of the accident had drizzled, the more reason that the appellant should have driven with a greater degree of care knowing too well that the vehicle brakes would not perform optimally should he have encountered anything on the road including pedestrians.
In the absence of scientific evidence to confirm that the two pedestrians were drunk at the time, and taking into account that no independent witness was called to substantiate that claim, this court finds that the appellants allegations remained bare for there was nothing to support it.
The appellant did not avail any eye witness and the police officers who were investigating the accident had all the available resources at the hospital to collect evidence of the respondents having been under the influence of alcohol as they crossed the road.
The trial court rightly found that the police abstracts could not assist in determining liability. The failure to call witnesses who were at the scene at the time of the accident left the case to be determined on the basis of the evidence adduced by the appellant as against that of the two respondents.
From the evidence, the road was under construction although it was not marked. It had drizzled that morning and the accident occurred at about 11 am. The appellant testified that he was driving at 50 kmph and was following the matatu which pulled out off the road. The evidence of the appellant on the issue of speed remains doubtful considering the distance he said he had kept between his vehicle and the matatu that was ahead of him. It would have been very dangerous to overtake at that speed and on a slippery road. No wonder the appellant was not able to stop to avoid hitting the respondents.
A driver overtaking a stationery vehicle must do so with caution since visibility is likely to be impeded resulting into an accident. It is even more important to exercise greater caution where the motor vehicle dropping and picking passengers.
The accident in this case was a foreseeable possibility thus the appellant cannot avoid liability all together.
The serious nature of the injuries /fractures sustained by the respondents is clear testimony of the fact that the two pedestrians were swept at high speed. The impact must have been great and irreconcilable with the allegation that the vehicle was moving at a speed of 50kmph. If indeed the appellant was driving at the stated speed, he would have swerved to avoid hitting the respondents.
The appellant and the police had the opportunity to obtain samples from the respondents for testing for alcohol or even have the two subjected to blood alcohol concentration test to help the prove that the two were under the influence of alcohol when they walked ahead of the motor vehicle of the appellant.
The respondents testified that there was no zebra crossing at the place and that the they did not find any other vehicle on the road when they alighted the matatu.
Like other road users, pedestrians also have an obligation to exercise caution on the road.
In the case of PW Vs. Peter Muriithi Ngari (2017) e KLR , it was held that:-
“The driver and pedestrian owe a duty of care to others as road users. The appellant should be vigilant enough to observe the wider view of the road including any intervention from both sides of the road, and the respondent to observe the old age traffic practice “Look right, look left, look right again” before crossing the road”.
The respondents were equally at fault to have crossed ahead of the matatu which would have naturally obstructed their view. The respondent’s acted without caution thus contributed to the accident.
In the case of Khambi and Another vs. Mahithi and Another [1968] EA the court held that apportionment should not be interfered with unless it was manifestly wrong.
“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.”
In this case, the bad state of the road and the fact that it had drizzled that morning required more care from the driver since anything could happen. Accordingly, it is this court’s view that an apportionment of 80;20 in favor of the respondents was fair enough taking into account the totality of the circumstances. This court finds no reason to interfere with the finding of the trial magistrate on liability. The appeal on liability therefore fails.
In the case of Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, the Supreme Court of Uganda held that;-
“Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.”
67. The appellant in this case should have foreseen the possibility of pedestrians emerging ahead of the matatu and exercised caution before overtaking.
68. On damages, the injuries are not disputed. The appellate court is not to interfere with the exercise of judicial discretion unless court is persuaded that the trial court failed to take into account relevant mattes or to into account irrelevant matters or misdirected itself on the principles applicable in assessing damages and as a result arrived at an award that was unreasonably high or too low in the circumstances. See Mbogo Vs Shah {1968] E.A 93.
The 1 st respondent sustained compound fracture of the left tibia and fibula and laceration on the forehead. The respondent proposed ksh 2.5 Million as general damages for the injuries. The court was referred to the case of George William Awour vs Beryl Awour Ochieng (2020) ekl r . were the victim were immobilized and had to use crutches after surgery and reexamination .Plaster of paris , the court set aside an award of Ksh 2M with 1.2 Million.
In the case of Mehari Tewoldget t/a Mehari Transporters Ltd Vs Damus Muasya Maingi (2013)eklr where the court awarded Ksh 1.5 M for blunt injury to the chest , fracture on the 4-7 th ribs with puncture pleural leading to haemathorax , blunt injury to the abdomen with a tear in the liver and severe internal bleeding , deep cut upper arm with skin and muscle deficit near the axilla , cuts and bruises on the whole right arm ,fracture of the right arm an right scapula .Fracture on the right tibia and fibula at the ankle joint .
The appellant proposed ksh 400,000/= and relied on the case of Blue Horizon Travel Co. Ltd –Vs- Kenneth Njoroge (2020) eklr where the court awarded ksh 380,000/= and the case of Gladys Lyaka Mwombe -Vs- Francis Namatsi & 2 Others (2019) eklr where the court awarded for Ksh 200,000/= 15/8/2019.
The court considered the authorities and settled for Ksh 900,000/=. The view of this court is that the award was reasonable and comparable taking into account the currents rate of inflation and other attendant market forces. The figure was reasonable and there is no reason to interfere.
The 2 nd respondent suffered fracture of the maxilla and fracture on the right pubic bone. The injuries are serious and the impact was also noted in court with the witness stating that she still has pains. The appellant proposes ksh 2Million before this court. The respondent refers to the case of Devna Pandit vs Kennedy Otieno Pobara HCCC No. 491/2011 where Ksh 2Million was awarded to the victim who suffered a fracture and dislocation of the left hip, a fracture of the left tibia with comminuted fracture of the on the right face maxilla.
The court having carefully analyzed the decisions cited by both parties and taking into account the inflationary trends in the country today, the decision of the learned honorable magistrate on both quantum and liability is upheld.
The appeal is accordingly dismissed with costs to the respondents.
It is so ordered.
The respondents filed suit against the appellant seeking general and special damages for injuries suffered in a road traffic accident that occurred on 28/11/2020 at Kiambu Road involving motor vehicle registration number KBU 459P .
The trial court apportioned liability at 80:20 against the appellant.
The respondents sustained the following injuries:
The 1 st respondent suffered a compound fracture of the left tibia and fibula and laceration on the forehead. The court awarded the respondent Ksh 900,000/= and Ksh 17,285/= as general and special damages respectively.
The 2 nd respondent sustained compound fracture on the maxillae bone and fracture on the right pubic bone. She was awarded Ksh 1.1Million as general damages and Ksh 41,455/= as special damages.
The appellant aggrieved by the decision of lower court filed this appeal raising the following grounds of appeal:-
The magistrate erred in law and fact in apportioning liability at 80:20% in spite of evidence in favor of the defendant
Award of General damages of Ksh 900,000/= was exceedingly high and without any factual authoritative basis.
The magistrate erred in awarding the 2 nd plaintiff general damages of Ksh 1,100,000/= which were exceedingly high and without factual or authoritative basis
The court failed to consider submissions and relevant principles while arriving at the judgment.
The appeal was canvassed through written submissions. The appellant contested both liability and quantum.
He submitted that the court failed to consider that the respondent immensely contributed to the accident and that he crossed the road at an undesignated place and without ascertaining whether the road was clear. That the decision on liability was informed by contradictory evidence that the accident occurred off the road.
The appellant urged the court to apportion liability among parties at the ration of 50:50. The appellant referred to the case of Hussein Omar Farar -Vs- Lento Agencies where the court of appeal held that where there is no concrete evidence to determine who caused the accident parties should be equally blamed.
The appellant also relied on the case of Wells Cargo ltd –Vs- Maxine Bosibori Geke (2020) eklr where the court awarded 70:30 against the plaintiffs who were crossing the road at undesignated place.
On quantum, the appellant submits that the court did not consider his submission. That recent cases have awarded Ksh 500,000/= for similar or more serious injuries, He relied on the case of Ndwiga & Another -Vs- Mukimba (2022) KEHC 11793 eklr where the court for a fracture of the tibia and fibula and tenderness on the left leg awarded Ksh to 500,000/=
Further, in Jitan Nagra Vs Abednego Nyandusi Oigo (2018) eklr where the plaintiff sustained more serious injuries and the court reduced the award of Ksh 1,000,000/= to 450,000/= .
Similarly, the appellant argued that the award granted to the 2 nd respondent was inordinately high and that the court did not consider his submissions and comparable cases. The appellant proposed an award of Ksh 600,000/= for injuries suffered by the 2 nd respondent.
The appellant referred the court to the case of Equity Bank Vs- Josephine Nyabaro Nyaruri [2020] KEHC 7422 where the plaintiff suffered fracture of the pelvic, degloving injury on the right knee and deep cut wound on the right thigh, the High court reduced award of 1.1 M to 550,000/=.
The appellant further cited the case of Budul Investment Ltd -Vs- Odhiambo (2024) 5765 KLR where the plaintiff was awarded Ksh 750,000/= for fracture on the right iliac bone, fracture of the right superior and inferior pubic rami near the acetabulum fracture of the right symphysis head injuries with deep Y shaped 9 cm deep wound on the forehead, deep wound on the pinna of the left ear, dental alveolar fracture affecting 5 teeth multiple bruises on both legs and both forearms.
The respondents in opposing the appeal submitted that the appellant did not discharge the burden of proof and failed to substantiate the allegation that the respondents were drunk. The respondents argued that had the appellant driven at 50km/hr as he purported, he would have had an opportunity to stop and to avoid causing the accident.
The respondents further argued that the appellant breached the Traffic Act and the Highway Code and that no test was done to prove they had taken alcohol. The respondents therefore urged the court to find that the appeal did not have merit since the allegations of drunkedness made against them remained mere allegations without proof thus the court could not act on them. The respondents maintained that there was no basis for the court to have apportioned liability at 80;20. The appellant should have shouldered 100% liability.
The appeal on quantum was also contested by both respondents. The respondents cited the following cases in support of their argument that this court should not be inclined to interfere with the quantum awarded.
Pestony Ltd & Another -Vs- Samuel Itonye Kagoko (2022) eklr where the court set aside award of Ksh 1.4 Million and awarded 800,000/= for fractures.
George William Awour -Vs- Beryl Awour Ochieng (2020) eklr where the court awarded Ksh 1.2M for fracture of the right femur and left tibia fibula
Orima Management Ltd vs Wilson Suba Kindaranga HCCA 229/12 where the court awarded Ksh 900,000/= for fracture of the left femur.
The 2 nd respondent referred to the case of Devna Pandit -Vs- Kennedy Otieno Pobara HCCC No. 491/2011 where the victim suffered a fracture dislocation of the left hip, fracture head of femur and left tibia, comminuted fracture and fracture on the right face maxilla and was awarded Ksh 2Million.
The duty of this court as a first appellate court is to review and re-evaluate the evidence adduced at trial and draw it’s own conclusions from the evidence knowing too well unlike the lower court, this court did not have the advantage of seeing or hearing any one of the witnesses testify. See Selle Vs Motor Boat Co. Ltd (1968) E.A123 at 126.
Pw1, Abigael Nabwire testified that she was going to Pangani for a job interview and she boarded a vehicle and alighted at Ridgeways. The vehicle had parked on the side of the road. She was with her friend when she attempted to cross the road, her friend was behind her and that they did not run or hold hands. There was no zebra crossing at the place.
The witness went on to state that she did not have any bottle of alcohol in her hand. She stated in reexamination that the vehicle had stopped and that they did not find any other vehicle on the side of the road. The witness testified that after the accident she was taken to Gurunanak hospital where she was admitted. She was later taken to Kenyatta National Hospital. She testified that she had since recovered from the injuries sustained as a result of the accident.
Pw2 , Caroline Elawi testified she was in high school at Isiolo and that form four students were on a break. She was 18 years at the time of the accident .She boarded a matatu to Nairobi and was escorting Pw1 for an interview .That she did not have a bottle of alcohol on that day and she did not drink alcohol .
Pw2’s mother lived at the border with Ethiopia while she had 2 guardians in Nairobi. Madam Stella did not know she was in Nairobi but Joyce knew and she was called by the police when the accident happened.
Pw3, PC Jessie Mwololo Kasyoka from Pangani police station traffic department produced the police abstract dated 4/2/2021 and 9/3/2021.The case was investigated by Corporal Magaiywa and Corporal Wamae. The case was pending under investigations when the witness testified. The nature of injuries suffered by respondents were classified as grievous harm.
That the accident Involved motor vehicle registration number KBU 459P CRV near Ridgeways. The driver was identified as Nicholas Njuguna Njau and 2 pedestrians.
He was cross examined and he stated that the investigating officer had retired while Corporal Waema was attending a training at GSU trainig school. The witness testified that he was not aware of another abstract issued on 10/11/2020 on the case.
According to him the abstract might have been issued to the defendant.
Pw4 Dr Washington Wokabi referred to the medical report for the 1 st respondent dated 11/3/2021 and 15/3/2021. She sustained a fracture of the tibia and fibula and lacerations on the forehead while Caroline Elani sustained head injuries and fractures of the maxille tear and fracture of the right pelvic bone . He produced the reports as Pexhibit 8 and the receipts for payment of the medical report charged at Ksh 3000/= and court attendance fee of KSH 10,000/=\ t.
The appellant admitted that he was the driver of the subject vehicle. He worked at Kenya Revenue Authority and was also a parttime pastor. He also admitted the occurrence of the accident and further testified that he reported the matter at Pangani police station and he took the victims to Gurunanak hospital where he also paid the bills for first aid and ambulance charges to Kenyatta National hospital.
He stated during cross examination that he was driving at 50 Km/hr and that he was behind a matatu that pulled to the left and stopped abruptly. According to him two pedestrians emerged holding hands and crossed in front of the matatu. He said that he was following the matatu and kept a distance of 5-10 meters between him and the matatu. He went further to state that it was drizzling when the accident occurred. That the matatu did not impede his view, it had pulled to the left and stopped abruptly. That the right side was clear. He went on to state that the matatu was off the road and that the two pedestrians emerged when he was going past the matatu.
The appellant maintained that he applied breaks, the one pedestrian who was behind was pulling the one ahead of her. According to him, the vehicle could not stop though he was driving at 50Kmph.He also saw them at about 3 meters away but the vehicle was unable to stop within the distance. He was with his wife and his children on the vehicle.
He went on to say that the matatu drove off and he could not get a witness from the matatu. According to him one of the pedestrians was holding a brown bottle which dropped and broke to pieces, he did not pick it and that it was a brandy bottle. He went on to testify that the two pedestrians were drunk, one was vomiting and smelled of liquor when they arrived at Gurunanak. He was with a police officer at the hospital and he took the police to the scene.
The appellant referred to the abstract dated 30/11/2020 which was filled 2 days after the accident. It was his evidence further that the victims were not coherent when the police went to Gurunanak.
He stated during reexamination that he was a pastor and that he did not take alcohol and could not tell different brands of alcohol but he could tell the smell.
Dw2, Sergeant Munyao Waeme also from Pangani Police station referred the court to the police abstract. He testified that the appellant came to the police station at 10:50 hours and reported a case of injury accident which occurred at Kiambu road. The officer testified that the appellant reported that he had taken the victims to Gurunanak hospital.
The officer went to the hospital where he found the respondents, he also visited the scene and established that the respondents tried to cross the road from left to right in front of a matatu. The matatu had dropped passengers at Astrol Petrol station which was under construction and had barricade.
He testified further that the appellant was following a matatu closely when it pulled up and he accelerated to overtake it but before he could, the pedestrians came from in front of the matatu running to the right side and that is when he knocked them down.
The officer went on to state that the road was clear although it had drizzled in the morning hours. He also testified that he saw fresh skid marks from the vehicle, he also found workers from the petrol station but they refused to record statements. That the matatu driver came to report the accident and some witnesses but they did not record statements with the police station.
The witness said he left the file to corporal Wagaiiwa since he was going for a promotion interview. He blamed the pedestrians for not taking caution for their safety, by-standers also claimed they were drunk and he found a can of beer at the scene. That the doctor said they were drunk. The abstract was produced as exhibit the two pedestrians were found at fault.
He was cross -examined and his evidence was that the abstract he referred to was the first to be issued and he had taken the respondents statement. The witness said that he visited the scene 30 minutes after the accident , there was no footbridge for pedestrians. At the scene he stated that there were no shops and people did not live at the place. There were no restaurants but walk around Ole Sidei clubs were at the place for people go take alcohol. Bystanders informed him that the pedestrians were taking alcohol but they did not record statements.
The witness went on to state that he could not do alcohol tests on the victims since they were injured and had been taken to hospital. The road was under construction at the time. According to him there was no minimum speed to use on the road and there was no signage on. However, it was possible for commuters to know that it was under construction and road could also accommodate vehicles from both sides
He stated that he was not aware of the abstracts issued on 4/2/2021 and 9/3/2022. He however admitted that the investigations were finalized.
Dw3 Pc Alice Lelan Atale from the same police station also gave evidence on the accident. She was also an investigating officer and stated that she took over the case from Corporal Magaiywa in June 2021. He had issued abstract to the respondent indicating it was pending under investigations. Corporal Wachuka issued abstract on 4/2/2021 which also indicated that he accident was pending investigations.
DW3 testified that she concluded the investigations and found that the pedestrians were to blame for crossing the road at undesignated place and that they crossed in front of a vehicle.
She stated during cross examination that the abstract dated 30/11/2020 was not on the file when the subsequent abstracts were issued.
Corporal Wema did not place it on the file. She testified that the statements of the victims had been taken when she took over the case in 2021 .Magaiywa took over from Waema who had not filled the statements .She never visited the scene , she did not prepare the sketch map and she did not issue an abstract after concluding investigations.
ANALYSIS & DETERMINATION.
The duty of the first appeal court is to reanalyze and assess the evidence in order to arrive at independent conclusions while bearing in mind that the court did not see nor hear the witnesses. The decision of the trial court can only be interfered if the court had misdirected itself on the evidence or the principles applicable to the case in arriving at its decision or that the judgement was unreasonable such that no tribunal could arrive at the court’s conclusions taking into account the evidence available.
In the case of Johnson Evan Gicheru –Vs- Andrew Morton & Another [2005] eKLR , the Court of Appeal stated that :
“ It is trite that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled .”
This court has evaluated the evidence as recorded by the lower court. The court too has considered the submissions made by the parties and what clearly is up for determination are the following issues;-
Who was to blame for the accident and to what extent?
Whether the award on damages was excessive and or unreasonable.
The court found that the appellant was the driver of the motor vehicle thuis he owed other road users a duty of care. The driver ought to have known that within a town setting the likely of pedestrians crossing the road at any point was high thus he ought to have driven with due care and attention to other road users.
The fact that the respondents emerged from right in front of the matatu could not absolve the appellant from liability for he ought to have reasonably contemplated such an eventuality within a busy road. The emergence of the two from right in front of the matatu only served to heighten their degree of contributory negligence. However, the risk was foreseeable and the appellant could not simply escape liability.
The issuance of multiple police abstracts that were contradictory by the police simply rendered the evidence of the officer unreliable. The fact however that the abstract brought forth without doubt was that an accident occurred. The police were not at the scene when the accident occurred thus their evidence could only be relevant to the extent that it confirmed the occurrence of the accident, the vehicle that was involved and the identity of the victims. Further, the state of the scene of accident was relevant factor for consideration by the lower court.
If indeed the morning of the accident had drizzled, the more reason that the appellant should have driven with a greater degree of care knowing too well that the vehicle brakes would not perform optimally should he have encountered anything on the road including pedestrians.
In the absence of scientific evidence to confirm that the two pedestrians were drunk at the time, and taking into account that no independent witness was called to substantiate that claim, this court finds that the appellants allegations remained bare for there was nothing to support it.
The appellant did not avail any eye witness and the police officers who were investigating the accident had all the available resources at the hospital to collect evidence of the respondents having been under the influence of alcohol as they crossed the road.
The trial court rightly found that the police abstracts could not assist in determining liability. The failure to call witnesses who were at the scene at the time of the accident left the case to be determined on the basis of the evidence adduced by the appellant as against that of the two respondents.
From the evidence, the road was under construction although it was not marked. It had drizzled that morning and the accident occurred at about 11 am. The appellant testified that he was driving at 50 kmph and was following the matatu which pulled out off the road. The evidence of the appellant on the issue of speed remains doubtful considering the distance he said he had kept between his vehicle and the matatu that was ahead of him. It would have been very dangerous to overtake at that speed and on a slippery road. No wonder the appellant was not able to stop to avoid hitting the respondents.
A driver overtaking a stationery vehicle must do so with caution since visibility is likely to be impeded resulting into an accident. It is even more important to exercise greater caution where the motor vehicle dropping and picking passengers.
The accident in this case was a foreseeable possibility thus the appellant cannot avoid liability all together.
The serious nature of the injuries /fractures sustained by the respondents is clear testimony of the fact that the two pedestrians were swept at high speed. The impact must have been great and irreconcilable with the allegation that the vehicle was moving at a speed of 50kmph. If indeed the appellant was driving at the stated speed, he would have swerved to avoid hitting the respondents.
The appellant and the police had the opportunity to obtain samples from the respondents for testing for alcohol or even have the two subjected to blood alcohol concentration test to help the prove that the two were under the influence of alcohol when they walked ahead of the motor vehicle of the appellant.
The respondents testified that there was no zebra crossing at the place and that the they did not find any other vehicle on the road when they alighted the matatu.
Like other road users, pedestrians also have an obligation to exercise caution on the road.
In the case of PW Vs. Peter Muriithi Ngari (2017) e KLR , it was held that:-
“The driver and pedestrian owe a duty of care to others as road users. The appellant should be vigilant enough to observe the wider view of the road including any intervention from both sides of the road, and the respondent to observe the old age traffic practice “Look right, look left, look right again” before crossing the road”.
The respondents were equally at fault to have crossed ahead of the matatu which would have naturally obstructed their view. The respondent’s acted without caution thus contributed to the accident.
In the case of Khambi and Another vs. Mahithi and Another [1968] EA the court held that apportionment should not be interfered with unless it was manifestly wrong.
“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.”
In this case, the bad state of the road and the fact that it had drizzled that morning required more care from the driver since anything could happen. Accordingly, it is this court’s view that an apportionment of 80;20 in favor of the respondents was fair enough taking into account the totality of the circumstances. This court finds no reason to interfere with the finding of the trial magistrate on liability. The appeal on liability therefore fails.
In the case of Masembe vs. Sugar Corporation and Another [2002] 2 EA 434, the Supreme Court of Uganda held that;-
“Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently.”
67. The appellant in this case should have foreseen the possibility of pedestrians emerging ahead of the matatu and exercised caution before overtaking.
68. On damages, the injuries are not disputed. The appellate court is not to interfere with the exercise of judicial discretion unless court is persuaded that the trial court failed to take into account relevant mattes or to into account irrelevant matters or misdirected itself on the principles applicable in assessing damages and as a result arrived at an award that was unreasonably high or too low in the circumstances. See Mbogo Vs Shah {1968] E.A 93.
The 1 st respondent sustained compound fracture of the left tibia and fibula and laceration on the forehead. The respondent proposed ksh 2.5 Million as general damages for the injuries. The court was referred to the case of George William Awour vs Beryl Awour Ochieng (2020) ekl r . were the victim were immobilized and had to use crutches after surgery and reexamination .Plaster of paris , the court set aside an award of Ksh 2M with 1.2 Million.
In the case of Mehari Tewoldget t/a Mehari Transporters Ltd Vs Damus Muasya Maingi (2013)eklr where the court awarded Ksh 1.5 M for blunt injury to the chest , fracture on the 4-7 th ribs with puncture pleural leading to haemathorax , blunt injury to the abdomen with a tear in the liver and severe internal bleeding , deep cut upper arm with skin and muscle deficit near the axilla , cuts and bruises on the whole right arm ,fracture of the right arm an right scapula .Fracture on the right tibia and fibula at the ankle joint .
The appellant proposed ksh 400,000/= and relied on the case of Blue Horizon Travel Co. Ltd –Vs- Kenneth Njoroge (2020) eklr where the court awarded ksh 380,000/= and the case of Gladys Lyaka Mwombe -Vs- Francis Namatsi & 2 Others (2019) eklr where the court awarded for Ksh 200,000/= 15/8/2019.
The court considered the authorities and settled for Ksh 900,000/=. The view of this court is that the award was reasonable and comparable taking into account the currents rate of inflation and other attendant market forces. The figure was reasonable and there is no reason to interfere.
The 2 nd respondent suffered fracture of the maxilla and fracture on the right pubic bone. The injuries are serious and the impact was also noted in court with the witness stating that she still has pains. The appellant proposes ksh 2Million before this court. The respondent refers to the case of Devna Pandit vs Kennedy Otieno Pobara HCCC No. 491/2011 where Ksh 2Million was awarded to the victim who suffered a fracture and dislocation of the left hip, a fracture of the left tibia with comminuted fracture of the on the right face maxilla.
The court having carefully analyzed the decisions cited by both parties and taking into account the inflationary trends in the country today, the decision of the learned honorable magistrate on both quantum and liability is upheld.
The appeal is accordingly dismissed with costs to the respondents.
It is so ordered.