RAJ SAFARIS LIMITED & WILLIAM ASIELO VS EBBY AMAGOVE JEMOVO

(Being an Appeal from the judgment and decree of Honourable B. M. Cheloti Principal Magistrate in Milimani Magistrates Courts CMCC No. E8276 of 2021 delivered on 3/5/2023)

Pleadings

1. The appellants have filed this appeal through a memorandum of appeal dated 16/5/2023. This appeal relates to the issues of liability and quantum.
2. The appellants were the defendants before the trial court. The claim by the respondent herein who was the plaintiff in the trial court through her plaint dated 16/3/2021 was that she was injured following a road traffic accident that occurred on 5/11/2020. The accident occurred while she was boarding a motor vehicle registration number KCZ 178A at the Railway Terminus owned by the 1^st appellant with the 2^nd appellant as the driver and/or the actual but unregistered owner of the vehicle with beneficial or insurable interest therein.
3. It was the appellant’s case that in the process of boarding the said vehicle, it was recklessly and carelessly driven off before she was fully onboard causing her to violently fall down and thereby occasioning her severe bodily injuries for which she suffered loss and damage.
4. The appellant prayed for general damages for pain and suffering, special damages of KShs 3,550/=, costs of the suit and interest thereon.
5. After trial the learned trial magistrate in her judgment awarded the appellant general damages Kshs 350,000/=, special damages KShs 18,550/= together with costs and interest.
6. The appellant was dissatisfied with that decision and has filed the present appeal based on eight grounds which can be summarized into three, that the learned trial magistrate made her decision on liability against the weight of the evidence and failed to consider the appellant’s submissions, made an inordinately high award of general damages and erred in law in awarding costs to the respondent.
7. The appellant avers that in arriving at the impugned decision the learned trial magistrate relied om misguided points of fact and wrong principles of law.
8. The appellant therefore prays for this court to allow the appeal, reassess apportionment of liability and reduce the award, reassess the assessment of general damages and reduce the award and award the appellant costs both of the appeal and in the lower court.
9. The appeal was canvassed by way of written submissions. Only the respondent’s counsel filed written submissions dated 20/5/2024.
10. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.

Analysis and Determination

1. At the trial the respondent testified as PW 2 and called two other witnesses; PW 1 Dr. Cyprianus Okoth Okere and PW 3 PC Peter Ndirangu.
2. In her testimony in court on 6/12/2022, she adopted her witness statement dated 10/3/2021 as her evidence-in-chief. In the statement she said that in the process of boarding the said vehicle, it was so recklessly and carelessly driven and/or managed that it was suddenly and without warning set into motion before she was onboard causing her to violently fall down and the vehicle subsequently ran over her left leg occasioning her severe bodily injuries.
3. I do not think that is the language of the appellant. That statement seems to have picked the doctor’s findings and made them the witness statement. A witness while recording her statement to be adopted in evidence as her testimony should express herself in her own language in order to enable the court consider it alongside the other evidence to see how the two compare. Otherwise, the court may be inclined to think that the statement was recorded for the witness to sign and therefore the same was not her word.
4. The respondent said that she was rushed to Ibiza Afya Centre and pharmacy where she was treated and discharged with further medical review appointments.
5. She blamed the driver of the vehicle for the accident.
6. The appellant as defendants did not offer evidence at the trial.
7. The appellant as stated above, did not file submissions.
8. The respondent submits that there are three issues for this courts determination namely:
   1. whether the learned trial magistrate applied the correct principles of law and available facts in finding the appellants 100% liable.
   2. whether the learned trial magistrate applied the correct principles of law and available facts in assessment of damges payable to the respondent.
   3. whether the damages awarded were inordinately high as to present and erroneous estimate of compensation.
9. As stated, the appellants did not tender any evidence at the trial. The consequences of a party failing to adduce evidence were restated in the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 cited by learned counsel for the respondent where it was held that:

“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1^st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”

1. The evidence of the respondent thus remained unchallenged as was held by the Court of Appeal in the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, follows: -

“The Respondent never called any witness(es) with regard to the occurrence of the accident.  Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations.  The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof.  It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability.  It was thus substantially to blame for the accident….”

1. In this case, the respondent testified that she was in the process of boarding the vehicle when it was set in motion and this caused her to fall.
2. The only evidence on record by an eye witness was from the respondent. Which evidence I reiterate was not challenged by other evidence from the appellants. The evidence of PW 3 was from a police officer who did not investigate the accident but relied on the record of the incident made at the police station. During his testimony he did not even have the record of the investigations which were conducted by his colleague. Whatever else he said other than that the accident report was made at the police station was hearsay and inadmissible.
3. In evaluating that evidence, the learned trial magistrate found that the driver of the vehicle owed the respondent a duty of care as his passenger to ensure that she had safely boarded the vehicle before taking off and that if he had been attentive, he would not have started driving off when the respondent was in the process of boarding. She therefore found the driver liable for the accident and the owner of the vehicle vicariously liable.
4. I find no reason to fault the learned magistrate’s finding on liability and the same is sustained.
5. The injuries sustained by the plaintiff are captured in her evidence and supported by the medical report of Dr. Cyprianus Okoth Okere dated 13/1/2021. She suffered deep cut on the left lower leg. At the time of examination, her complaints were recurrent itching on the left lower leg. On physical examination on the left upper and lower leg, there was lacerated scar on the lower leg. The doctor classified the injury as harm.
6. In their submissions, the appellants proposed an award of KShs 80,000/= general damages for pain, suffering and loss of amenities while the respondent proposed an ward of KShs 380,000/=.
7. Learned counsel for the respondent submits that even though parties filed submissions and cited authorities before the trial court urging their respective positions, the court was not bound to follow the authorities cited. She submits further that it is within the discretion of the court to find a relevant authority among them, if any and if there is none, to rely on any other that may be appropriate for that case.
8. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”

1. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

1. I now turn to consider whether the general damages awarded by the trial court were excessive.
2. Learned counsel for the respondents cited the following decisions in support of their proposal at the lower court:
   1. Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR, the High Court upheld the trial court award of general damages of KShs. 350,000/- for the plaintiff, who had sustained blunt injury to the chest, bruises to lower abdomen, bruises of the right hip joint, bruises of the thigh and bruises on the knee.
   2. Joseph Wambura v Joseph Mwangi Obai [2018] eKLR. The Respondent sustained a cut wound on the left orbit side, deep laceration on the left gluteal area, multiple laceration left elbow, deep laceration on the left hand, cut wound on the right-hand palm, multiple cut wounds on both knees with stitches in place, deep cut on the left leg, deep cut wound on the ankle left and cut on the right toe. At the examination, the injuries were in the process of healing with resultant ugly scars. The High Court on appeal upheld the trial court award of KShs 300,000/= general damages for pain, suffering and loss of amenities, observing that although they were soft tissue injuries, they were multiple and resulted into ugly scars on the lower limbs, upper limb, orbit and the hands.
   3. Kitale Hauliers Limited v Emmanuel Soita Simiyu [2013] eKLR Civil Appeal 107 of 2010, where the claimant suffered; painful shoulders, bruises on right forearm and left upper arms, bruises on the knee, painful back and the High Court awarded Kshs. 200,000.
3. Learned counsel for the appellants cited the following decisions in support of their proposal:
   1. Godwin Ireri v Franklin Gitonga [2018] eKLR where the claimant sustained a cut on the scalp and forehead, swelling on the dorsum of the left foot and a bruise on the right knee. and an award of Kshs. 300,000 was reduced to Kshs. 90,000 on appeal.
   2. Civil Appeal No. 54 of 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded Ksh. 300,000/= which was reduced to Ksh. 100,000/= on appeal.
   3. Makueni HCA No.25 of 2018 as consolidated with HCCA No. 16 of 2016 JAP Quality Motors vs F.K Wambua where the Court awarded Ksh. 80,000/= for blunt injury to the chest, bruises to right lower limb and left upper arm and soft tissue injury to the chin.
   4. John Wambua v Mathew Makau Mwololo & another [2020] eKLR the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. He was treated as an outpatient and was put on painkillers. The trial court assessed general damages for pain and suffering in the sum of Ksh. 120,000/- and this was affirmed by the High Court.
   5. HB (Minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR, the appellant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination, Dr. Adede opined that the injuries suffered amounted to soft tissue injuries. The High Court on appeal sustained the award of KShs 60,000/= general damages for pain, suffering, and loss of amenities in 2021.
4. On the evidence tendered, the learned trial magistrate awarded the plaintiff KShs 350,000/= general damages for pain, suffering and loss of amenities. This court is now called upon by the appellant to disturb that award terming it inordinately high.
5. I have considered the various decisions cited by both parties before the trial court. None of the cited cases involves a deep cut wound to the lower leg as was the case herein.
6. I have considered cases involving a deep cut wound on the leg which I find persuasive as follows:
   1. Buds and Bloom Ltd Vs Lawrence Emusugut Obwa(2016) eKLR  the lower  court had awarded Kshs. 70,000/= for a deep cut wound on the left leg and soft tissue injuries on the leg. The High court reduced the award to Kshs. 50,000/=.
   2. Kipkere Limited Vs Peterson Ondieki Tai (2016) eKLR where the trial magistrate had awarded Kshs. 100,000/= for deep cut wound on the left leg, chest contusion and bruises on the left shoulder. The High Court reduced the award to Kshs. 30,000/-
7. I have read through the judgment of the learned trial magistrate and I note that there is no reference to any previous decision. In fact, there is no indication at all at how the court arrived at the damages awarded. The court simply stated:

“Quantum:

Court award damages as follows:

1. General damages at Kshs 350,000/=...”
2. In considering whether the learned trial magistrate was in error in her assessment of damages, I have in mind the position in law that in assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable award but recalling that no two cases are exactly alike. This was held so by the Court of Appeal in the case of Stanley Maore –vs- Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

1. In setting aside, an award of damages made in like manner as the learned trial magistrate in this case, the Court of Appeal, in the case of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR, said thus:

“There was no authority cited on quantum, no discussion, no justification and no comparable that would have led to that sum. Essentially, as Mr. Musyoka complains, the learned Judge whimsically and capriciously imposed that figure, literally plucking it out of the air. That cannot be a proper way to arrive at damages because it is a judicial exercise not an oracular pronouncement. The sum, even were it awardable would have been, with respect, impossible to comprehend, less still defend.”

1. I therefore, find that in failing to indicate how she arrived at the award of KShs 350,000/= general damages, the trial court fell into error.
2. Accordingly, I am persuaded that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on general damages for the reason that the quantum that was awarded was so manifestly high in view of similar injuries in the cases cited above. This warrants interference. Considering the injuries sustained by the respondent herein as compared with the cited cases and noting the effluxion of time and the incidence of inflation as well as the fact that no two cases can ever be the same, I consider that an award of Kshs. 100,000/= is adequate compensation for the injuries sustained by the respondent herein.
3. Consequently, the trial court’s award of Kshs. 350,000/= in general damages is set aside and substituted with an award of Kshs. 100,000/=. For clarity the special damages shall remain as awarded KShs 18,550/=.
4. The total award to the respondent is therefore KShs 118,550/=.
5. Considering the extent to which the appellants have succeeded in the appeal I order that each party shall bear their costs of the appeal.

Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 10^th day of July, 2024.

In the presence of:

Njuguna holding brief for Kabita for Appellants.

Kasina (Ms) for the Respondent.

Eutropia Court Assistant.

30 days Right of Appeal and stay of execution granted.