RENT WORKS EAST AFRICA LIMITED VS SAMUEL IRERI MUGENDI AND THE KENYA POLICE THRO INSPECTOR GENERAL AND 1 Others

(Appeal arising from the decision of Hon. J.W. Gichimu in Runyenjes SPMCC No.39 of 2022 delivered on 06^th February 2024)

1. The appellant filed a memorandum of appeal dated 20^th February 2024 seeking that the appeal be allowed with costs and the trial court’s finding on liability and quantum be set aside and the Honourable court be pleased to re-evaluate the evidence and arrive at its own independent findings. The appeal was premised on the grounds that:
   1. The learned magistrate erred in law and fact by finding the appellant 100% liable for the accident despite clear evidence by PW2 and DW1 that the accident occurred when the 1^st respondent embarked on dangerously crossing the road and therefore the 1^st respondent was solely responsible for the accident;
   2. The learned magistrate erred in law and fact by awarding general damages of Kshs.900,000/= which award is inordinately excessive considering the injuries sustained by the respondent and therefore an erroneous estimate of damages payable in the circumstances of this matter; and
   3. The award of the learned trial magistrate on quantum is against the law and weight of the evidence on record.
2. The 1^st respondent filed a plaint dated 11^th May 2022 seeking judgment against the appellant and 2^nd respondent for general and special damages. It was his case that he was lawfully and diligently walking as a pedestrian at Runyenjes Equity Junction in Runyenjes Town when the driver/ agent of the 2^nd respondent negligently/recklessly drove, managed and/or controlled motor vehicle registration number GKB 187J that the motor vehicle hit the 1^st respondent, causing him serious injuries. The appellant filed its statement of defense denying the averments made in the plaint and alluding negligence to the 1^st respondent.
3. At the hearing, PW1 was the 1^st respondent who stated that he had just crossed the road when the police vehicle that hit him caught up with him and the driver got hold of his collar. That the driver pupped him until he fell down and that is when he ran over his hand with the motor vehicle. That he was taken to the police station by the OCS and he sought treatment from 2 hospitals on the promise that the OCS would pay hospital bill but the promise was not fulfilled. He stated that he ended up spending his own money on treatment. He produced documentary evidence in support of his case. On cross-examination, he stated that he has never fully recovered from the injuries he sustained on his hand and knee as a result of the accident. That he was not walking on the road but the driver of the police vehicle grabbed him from outside the road while he was driving. That the driver of the motor vehicle only paid for his x-rays and not the full treatment.
4. PW2 was PC. Samuel Irungu who stated that the 1^st respondent reported the incident at Runyenjes Police Station and he was issued with an OB number. That the accident involved a police vehicle along Runyenjes-Ugweri Road. That according to the police file, the pedestrian was crossing the road from left to right when he was knocked down by the motor vehicle. That the ODPP approved the charges against the driver of the motor vehicle who was charged with the offence of reckless driving. On cross-examination, he stated that two witnesses recorded statements with the police and he refuted claims that the 1^st respondent said that he was dragged across the road by the police.
5. PW3 was Dennis Mwenda, a clinician at Embu Level 5 Hospital. He produced the medical examination report authored by his colleagues, indicating that the 1^st respondent suffered bruises on the left side of his face, he had erythematous left eye (red), fracture dislocation distal ulna and bruise on the right knee, resulting in 15% disability. On cross-examination, he stated that he produced the findings of his colleagues and that the report did not indicate that the 1^st respondent was drunk. That the degree of injury was based on the broken ulna.
6. DW1 was PC. Leonard Kithungu of Runyenjes police station. He stated that the 1^st respondent reported the incident at the police station. That he booked the report and immediately afterwards, he escorted the 1^st respondent to Runyenjes Level 4 Hospital where he was treated. That he visited the scene to obtain a sketch map and then the motor vehicle was inspected and the driver was charged with a traffic offence. On cross-examination, he stated that he did not witness the accident but the pedestrian was drunk at the time of the accident although no intoxication tests were done. That he was hit by the side mirror of the motor vehicle immediately after he had crossed the yellow line. That if the driver had taken due care, the pedestrian would not have been knocked down.
7. The trial court considered the evidence adduced and entered judgment on liability at 100% against the appellant and 2^nd respondent. It awarded general damages of Kshs.900,000/= and special damages of Kshs.5,690/=
8. The appeal was canvassed by way of written submissions.
9. In its submissions, the appellant relied on the case of Mount Elgon Hardware v. United Millers Ltd (1996) eKLR where the court held that the party who alleges a fact must prove it. It stated that the evidence adduced points to the driver of the 2^nd respondent who owed a duty of care to the 1^st respondent. That the 1^st respondent was also partly responsible for the accident due to his own carelessness while crossing the road. It relied on the cases of PW v. Peter Muriithi Ngari (2017) eKLR and Joseph Muthuri v. Nicholas Kinoti Kibera (2022) eKLR and urged that liability should be determined at 50%:50%. It also relied on the case of Stanley Maore v. Geoffrey Mwenda (2004) eKLR and urged that a suitable award of damages would be Kshs.600,000/= and provided comparative caselaw where the court has awarded lower damages for similar injuries. It urged the court to allow the appeal.
10. The 1^st respondent submitted that he sustained skeletal and soft tissue injuries and permanent scaring on the face and that the award of damages is fair and just in comparison with related caselaw where the courts awarded between Kshs.1,000,000/= to Kshs.1,500,000/=. He relied on the cases of Robert Gitau v. Charles R. Kahiga & 2 Others (2010) eKLR, Joseph Musee Mua v Julius Mbogo Mugi & 3 others (2013) eKLR, Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd (2013) eKLR and James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another (2015) eKLR and stated that the award ought to be higher and that, if anything, the court ought to enhance it to Kshs.1.500,000/=. He urged the court to dismiss the appeal.
11. In my view, the issues for determination are as follows:
    1. Whether the trial court erred in finding liability at 100% against the appellant and the 2^nd respondent; and
    2. Whether award of general damages by the trial court is inordinately high.
12. It is worth reiterating that the appellate court makes its decision purely based on the record and findings of the trial court as was held in the case of Okeno vs. Republic (1972) EA 32 wherein the court held:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

1. On the issue of liability, PW1 stated that the 2^nd respondent’s driver who was inside the vehicle, held him by the collar and dragged him causing him to fall down and the vehicle ran over his arm. That he also hurt his knee in the course of the accident. PW2 stated that it was reported and established that the pedestrian was crossing the road from right to left as one faces Ugweri and he was knocked down by the police motor vehicle. That the driver of the motor vehicle was charged with a traffic offence.
2. DW1 stated that the driver of the police motor vehicle hit the pedestrian with the vehicle’s side mirror. That the pedestrian was drunk at the time of the accident, a fact which he himself confirmed but no tests were conducted to confirm that he was drunk. The driver of the police motor vehicle did not testify at the trial. The appellant submitted that 50% of the liability should be held against the appellant as well since he was also to blame for the accident by being careless while crossing the road.
3. Onus is on the party alleging to prove the alleged fact as provided under Section 107 and 109 of the Evidence Act and in civil cases, the standard is on a balance of probabilities. In the case of Rentco East Africa Limited v Dominic Mutua Ngonzi (2021) eKLR the court stated as follows:

“Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the Judges of Appeal held that:

“Denning J, in Miller v. Minister of Pensions (1947) 2 All ER 372 discussing the burden of proof had this to say;- “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un)convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.””

1. From the evidence adduced, it is most probable that the driver of the 2^nd respondent was responsible for the accident, thus laying 100% liability on the appellant and 2^nd respondent and the owners of the subject motor vehicle.
2. On the issue of general damages, the 1^st respondent was examined and treated for the injuries sustained. According to the medical report by Dr. Wambugu P.M, he suffered fractured left olecranon and multiple bruises on the left side of the face and the right knee. The degree of permanent incapacity was assessed at 5%. According to the medical report by Humphrey Ndwiga of Embu Level 5 Hospital, the injuries suffered were bruises on the left side of the face, erythematous left eye, fracture dislocation distal ulna and bruised right knee. It detailed that he suffered 15% ankylosing of the right wrist joint. Both medical reports generally disclose soft tissue injuries and wrist dislocation.
3. The Court of Appeal stated in the case of Mbaka Nguru and Another v. James George Rakwar (1998) eKLR that:

“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.’’

1. In the case of John Kipkemboi & Another v. Morris Kedolo (2019) eKLR the court stated:

“The assessment of damages in personal injury case by court is guided by the following principles: -

1)  An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained;

2)  The award should be commensurable with the injuries sustained;

3)  Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts;

4)  Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account; and

5)  The awards should not be inordinately low or high (See Boniface Waiti & another Vs Michael Kariuki Kamau (2007) eKLR.”

1. In the present case, the court awarded Kshs.900,000/= as general damages for pain and suffering and loss of amenities. The appellant urged the court to reduce the award of the trial court to Kshs.600,000/=, which argument was countered by the 1^st respondent, as he relied on these cases in which the injuries were more severe as compared to those suffered by the 1^st respondent.  In the case of Denshire Muteti Wambua vs. Kenya Power & Lighting Co. Ltd (2013) eKLR, the claimant suffered multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joint associated with a fracture of the radial head; dislocation of left lunate bone and bruises parietal scalp. The Court of Appeal awarded Kshs. 1,500,000 general damages when in fact the fractures in the case were much more serious.
2. In the case of Joseph Musee Mua vs. Julius Mbogo Mugi & 3 Others (2013) eKLR, the claimant sustained much more serious injuries resulting in surgeries in several hospitals and treatment. He had an injury to the left leg, on the head, and face. The left leg tibia and fibula were fractured. He had two broken upper jaw teeth i.e. one molar and one canine tooth. He had chest injury. He had right shoulder injury as well as bruises on the left elbow. The left leg was shortened due to the injury and the treatment procedures undertaken. The nerves therein were also affected. The Court awarded KShs.1,300,000.00 general damages.
3. In the present case, the court is guided by the following decided cases:
   1. In the case of Eagle Vet Kenya Limited & another v. Munyoki [2022] KEHC 14967 (KLR), where the court upheld an award of Kshs.800,000/= for pain on the left femur, dislocation of the ulna of the wrist and pain and bruise of the right knee joint.
   2. In the case of George Kingoina Maranga & Another v. Lucy Nyokabi (2006) eKLR, where the plaintiff sustained a dislocation of the left wrist, fractures of the radius and ulna and soft tissue injuries to the face. In 2006, the Court awarded general damages, pain and suffering and loss of amenities in the sum of Kshs 420,000/=.
   3. Further, in the case of in Gogni Construction Company Limited v Francis Ojuok Olewe HB (2015) eKLR, the claimant was awarded Kshs. 350,000/= as general damages having sustained a fracture of the left distal radius and ulna and dislocation of the left elbow and was hospitalized for 6 weeks.
   4. In the case of Naom Momanyi v. G4S Security Services Kenya Limited Meru (2018) eKLR, the appellant sustained a fracture of the left-right condylar tibia, blunt injuries on the back and multiple bruises on the left arm. He was awarded Kshs.300,000/=.
4. Given the dates of the decisions cited herein above, considering the exigencies of economic inflation, it is my finding that the amount of general damages awarded by the trial court is fair and just in the circumstances.
5. In the end, I find that the appeal lacks merit and it is hereby dismissed with costs to the 1^st respondent.
6. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.