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JudgmentSTEPHEN NAIRENKE VS PETERSON MOKERA NYABUTO14 min read

STEPHEN NAIRENKE VS PETERSON MOKERA NYABUTO

High Court at Kisii High Court · · Odera Teresa Achieng


PETERSON MOKERA NYABUTO.................................................. RESPONDENT

(Being an appeal from the Judgment delivered by Hon. GLORIAH NASIMIYU BARASA (RM) on 7th December 2023 in OGEMBO PMCC NO E052 OF 2021)

                                                    JUDGMENT

INTRODUCTION

  1. This Appeal arises from the Judgment delivered on 7th December, 2021 in OGEMBO PMCC NO 052 OF 2021 whereby the Appellant were found to have been 80% liable for the injuries sustained by the Respondent and thus the Respondent was awarded a total award of 645,760 as general damages and special damages as well as the cost of the suit.
  2. Being aggrieved by the Judgment of the lower court the Appellant filed the Appeal herein which was based on the following 5 grounds of Appeal.
  3. THAT, the award of damages awarded to the Respondent was manifestly and inordinately excessive in the circumstances.
  4. THAT the learned Magistrate erred in law and in fact in holding that the Appellants were 80% liable for whereas the accident was wholly or substantially caused by the Respondent and the third party on whose behalf the suit is mounted.
  5. The learned Magistrate acted in error when the same failed to properly evaluate the evidence in assessment of the damages thus reaching an erroneous decision.
  6. The learned Magistrate erred when she misapprehended the principled applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of Justice finding in disregarding the Judicial precedent quoted.
  7. That learned trial magistrate erred in law and in fact when the same relied on extraneous issues as the basis of determination on liability.
  8. Based on the grounds of Appeal the Appellant sought for the following orders;
  9. The Judgment and /or Decree of the learned trial magistrate dated 7th December, 2022 be set aside, varied and /or quashed.
  10. The court be pleased to dismiss the Plaintiff’s suit with costs
  11. In the alternative, revisit the issues of assessment of liability and quantum of damages payable and assess, review or vary the same to reasonable amount which is commensurate to the injuries sustained by the Respondent and the ratio of liability the Respondent having substantially occasioned or contributed to the accident.
  12. The costs of this Appeal be borne by the Respondent.
  13. Any such order and/or further order that the honorable court shall deem just and expedient in the circumstances.
  14. The background of the matter is that the Respondent filed a suit vide a plaint dated 8th March, 2021 at the trial court against the Appellant seeking;
  15. Special Damages,
  16. general damages,
  17. interests on both (a) and(b)
  18. costs of the suit
  19. In support of his claim support his claim, the Respondent alleged on 15th December, 2020, he was riding a motor cycle Registration No. KMES 596H along Kisii-Kiligoris Road. Upon reaching Nyansiongo area, the Appellant’s driver who was negligently drive a motor vehicle KCQ 947N along the said road violently collided with his motor cycle. As a result of the said accident, Respondent suffered injuries which he particularized as;
  20. Scalp abrasions
  21. Chest contusions
  22. Right shoulder joint contusion
  23. Right elbow joint area abrasions
  24. Fractures of the left tibia/fibula bones.
  25. Contusion to the left foot
  26. In his defense the Appellant denied allegations against him and pleaded that if an accident had occurred which he denied then same was caused by the reckless, negligent and or the careless act or omissions on the part of the Respondent. He contended that the he was driving on the rightful lane and at a moderate speed when a rider of a motor cycle suddenly joined the highway from a feeder road. The Rider suddenly stopped in the middle of the road without notice thus occasioning the Accident.
  27. The trial court upon hearing the parties delivered a judgment wherein it found the Appellant to have been 80% liable for the accident and that the Respondent was 20% liable for the accident. The learned trial Magistrate proceeded to grant the Respondent general damages and special damages of Kshs. 645,760/together with interest at court rates from the date of Judgment. The Respondent was also awarded costs of the suit.                                              
  28. It is against this decision that the Appellant filed this Appeal. This court directed that the Appeal to be disposed of by way of written submissions. The Respondent’s submissions were filed on 19th December, 2023 but the Appellant failed to file his submissions despite being given an opportunity to do so.
  29. The learned counsel for the Respondent with regard to quantum submitted that the assessment of general damages was based on the discretion of the trial court and that this court ought to only interfere with the same if it is satisfied that;
  30. The award is inordinately high or low as set to represent an entirely erroneous estimate
  31. The trial court proceeded on wrong principle or misapprehended evidence in some material respect. on this he relied on the case Texcal House Service Station Limited and another vs Jappien and another (Nairobi CA 134 of 1998
  32. The learned counsel for the Respondent equally submitted that, damages awarded by the court must be within the set out limit comparable to decided case and also within the limits the Kenyan economy can afford.
  33. The learned counsel thus contended that the amount awarded by the trial court was not inordinately excessive so as to warrant this honorable court to override the same. The learned counsel relied on the cases of;
  34. Denis Matagaro vs (NKO (minor suing through next friend and father WOO) 2021 eKLR where the court upheld an award of Kshs. 700,000/= for fracture of tibia fibula and soft tissue injuries.
  35. Poa Link Services Co. LTD and another vs Sindani Boaz Bonzemo where the court held that an award of general damages in the sum of Kshs. 300,000 was sufficient for a single dislocation and soft tissue injuries.
  36. Veronicah Mkanjala Munyapara vs Patric Nyasinga Amenya (2021) where the court equally held that Kshs. 300,000 was sufficient for a single dislocation and soft tissue injuries
  37. On liability the learned counsel submitted that during the hearing of the matter the respondent called to witnesses who testified on the same. He argued the 2 witnesses gave unchallenged testimonies that the suit motor vehicle brushed the motorcycle the Respondent was riding while he was branching from the road despite indicating. He contended therefore that the trial court was not wrong when it found that the Appellant was 80% liable for the offense.
  38. The learned counsel finally urged to this court to find that the trial Magistrate’s decision on quantum was. Within the set limits.
  39. The appellant did not file submissions.

ISSUES OF DETERMINATION

  1. Having analyzed the grounds of Appeal, reviewed the written submissions by the respondent in respect to this appeal and re-evaluated the evidence presented at the trial and also considered the Judgment of the trial, I find that the sole issue of determination is;
  2. Whether trial court erred in in finding the Appellant 80% liable for the accident
  3. Whether appeal has not met the threshold for this court as an appellate court to disturb the amount of general damages awarded by a trial court.

ANALYSIS AND DETERMINATION

Whether trial court erred in in finding the Appellant 80% liable for the accident

  1. The Appellant in his ground of Appeal claimed that the learned Magistrate erred in law and in fact in holding that the Appellants were 80% liable for whereas the accident was wholly or substantially caused by the Respondent and the third party on whose behalf the suit is mounted.
  2. This court being the first appellate court, it has the duty to subject the evidence presented at the trial court to fresh scrutiny, analysis and re-evaluation and arrive at its own determination bearing in mind that it did not have the opportunity to hear and see the witnesses.
  3. During the hearing of the Respondent’s case at the trial court, the Respondent testified as PW3 and testified that on 15th December, 2021 he was hit by a motor vehicle while riding a motor cycle along Nyansiongo area.  At cross-examination he yielded that he indeed made a U-turn on the road but insisted that he indicated before making the said turn.
  4. PW1, CPL Jeremiah Koromo who was by that time attached at Ogembo Police station testified as PW1 and stated that the accident occurred 5th December, 2020 at place called Nyansiongo along Kisii-Kiligoris Road at around 1 pm. He stated that the Accident was reported at Ogembo Police station by the Appellant who alleged that while driving a vehicle KCQ 947 TOYOTA FILDER, from Kisii General he had collided with motorcycle rider who had made an abrupt turn on the road. He stated that the matter was referred to insurance company and that the investigating officer given his opinion that it was the Appellant who was on the wrong.
  5. The Appellant in his defense stated that on the fateful day he was driving home from Kisumu. While at Nyansiongo area, there was a matatu in front of him that stopped abruptly. From behind he was being followed by a motor cycle. The said motor cycle passed on his left hitting him from behind. He went off the road and stopped. At cross examination he admitted that it was the two police officers who visited the scene who had the sketch plan that showed how the accident occurred. He however reiterated that the investigation officer did not blame him for the Accident as had been stated by PW1.
  6. The learned trial Magistrate in her analysis of the evidence relating to liability observed as follows;

From the police testimony, it was the defendant who went to report the matter to the police station; that it was plaintiff reported to the police station later; that there was no independent witness. Either way, in the absence of the eye witnesses and no sketch plan, there is doubt on who to blame for the accident. The Investigating officer did not testify in court although PW1 who testified on her behalf stated that the driver or of the motor vehicle was to blame for the accident. On liability I will therefore award in the ratio of 80; 20% in favor of the Plaintiff.

  1. From my own analysis of the facts the respondent admitted that he was riding his motor cycle and when he was making a u turn after indicating his intention to do so, a motor vehicle which was behind him hit him. Pw1 said that the appellant was to blame for the accident and that the motor cycle which was ahead of the motor vehicle made an abrupt U turn. He admitted that he was not the investigating officer and that he did not have the police file. He also said he did not know whether the respondent had a driving license or not. The appellant testified that a matatu stopped abruptly ahead of him then he heard a bang from behind him. The motor vehicle inspection reports were not produced to show whether the motorcycle was ahead or behind the appellant’s vehicle or not. The sketch plans of the scene were also not produced to indicate the point of impact. The police abstract shows that the case was pending investigations. Though PW1 said that the appellant was to blame for the accident as per the investigating officer, I find that there is no evidence to support the same. PW1 said a vehicle ahead of him stopped abruptly but it is trite law that vehicles must keep distance to avoid an accident in case a vehicle ahead stops suddenly. It appears that the appellant was too close to the vehicle ahead of him and so he stopped abruptly. The motor cycle rider also admitted that he made a U-turn, PW1 said that the turn was abrupt. The investigating officer was not called to say whether U-turn was allowed at the scene or not.  A reasonable man driving on the road is expected to keep distance between him and the vehicle ahead of him and not to make abrupt U-turn on the road as an accident.  There is no doubt that the proximate cause of the accident is the negligence of both the driver and the rider but the extent of the negligence of each cannot be determined as the sketch plans were not produced.  The accident was foreseeable in the circumstances. It is not clear and both the rider and appellant were at fault and hence the accident. I proceed to apportion liability at 50: 50 between the appellant and the rider.  I find that the trial magistrate erred in apportioning liability at 80: 20 and thus I proceed to substitute liability with the ratio of 50: 50 between the respondent and the appellant.
  2. On the injuries sustained by the respondent, he pleaded that he sustained the following injuries:
  3. Scalp abrasions
  4. Chest contusion Right shoulder contusion with abrasions.
  5. Right elbow joint area abrasions
  6. Fractures of the left tibia fibula bones ‘
  7. Contusions to the left foot.

The same were supported by the treatment notes, p3 form and medical report produced by the respondent and the clinician in the medical report indicated that the fractures were expected to heal well but with 0.3 % disability.

I am satisfied that the respondent sustained the multiple soft tissue injuries and a fracture of the left tibia fibula bones.

Whether appeal has not met the threshold for this court as an appellate court to disturb the amount of general damages and special damages awarded by a trial court.

  1. In determining whether I should proceed to interfere with the amount of special damages awarded, I am guided by the decision of the court of Appeal in Peter M. Kariuki vs the Attorney General [2014] e KLR which cited the case Kemfro Africa Ltd vs Lubia & Another (No.2) 1987 KLR 30 where Kneller JA stated as follows: -

“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 court 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 wholly erroneous estimate of damages.

  1. I equally draw my guidance from the decision in the case of Kenya Power and lighting company & another vs Zakayo Saitoti Naingola & another (2008) eKLR where the court held as follows;

“On quantum the court in determining whether to interfere with the same, the court has to bear the following principles on assessment of damages;

      1. Damages should not be inordinately too high or too low
      2. They are meant to compensate a party for the loss suffered but not to enrich a party as such they should be commensurate to the injuries suffered
      3. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.
      4. Where the past awards are taken into consideration as guides an element of inflation should be taken into account as well as purchasing power of Kenya Shillings then at the time of the Judgment….”
  1.   The trial court on the issue of quantum held as follows;

“Both parties have put submissions in support of the case. The plaintiff proposes Kshs. 100,000 as sufficient compensation while the Defendant propose Kshs. 350,000 as sufficient compensation. I find both to be on the higher and lower side respectively.

I will rely on previous decided cases with comparable injuries to make determination. in civil Appeal no. 167/2020; PENSON LT AND ANOTHER vs. SAMUEL INYONE KAGOLO (2022) eKLR, whereby the most severe injuries suffered by the respondent was fracture of the left femur; on second examination the patient could be predisposed to early onset of Orleans assist permanent incubation at 4%. Judgment of Kshs. 1,400,000 was set aside and award 0f 800,000 was awarded by Judge Meoli.

I will therefore award 800,000 as sufficient general damages, 7,200 total 807,200 less 20% (161,440); TOTAL Kshs. 645,760.

The plaintiff is equally awarded cost and interests of the suit from the date of the judgment.”

In his submissions in the lower court the respondent urged the court relied on the case of Kisii HCC Appeal no. 70 of 2019 Dennis Matagaro  vs NKO  (Minor suing through next friend and father WOO) where the plaintiff was awarded general  damages of Kshs. 700,000/= for mild head injury, tenderness of the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula. Counsel also cited the case of Poa Link Service Ltd & another vs Sindani Boa Bonzemo Ekr where the plaintiff was awarded general damages in the sum of Kshs 300,000/= for a single dislocation and soft tissue injuries.

Also veronica Mkanjala  Mnyapora vs Patrick Nyasinga Amenya (2021) eKLR where the court awarded general damages of Kshs 300,000/= .

I have seen the case of Gladys Lyaka Mwombe vs Francis Namatsi and 2 others (2019) eLKR where respondent sustained, a head injury spinal code injury, fracture of the lower tibia fibula and a cut wound on the sustained cut would injuries on the anterior part of her scalp. On appeal the lower court award Kshs. 500,000/= was reduced to Kshs. 300,000/=.

I have seen the said Pestony Limited & another v Samuel Itonye Kagoko [2022] eKLR which the lower court relied on in its judgment and I note that in that case, the court held “The most severe injury suffered by   the Respondent was a fracture of the left femur mid-shaft with Dr. G.K Mwaura assessing permanent degree of incapacity assessed at 5% (left lower limb) as of 2016. Dr. P.M Wambugu upon examining him in August 2017 confirmed the fracture of the mid-shaft left femur noted to have adequately recovered by union. However, he also noted that the Respondent was predisposed to early onset osteoarthritis hence assessing 4% permanent incapacitation considering the Respondent’s pain and suffering in the extended period of morbidity, and the likely sequela relating to osteoarthritis, despite the healing of the fracture, this Court is satisfied that an award of Kshs. 800,000/- (Eight Hundred Thousand) would be adequate compensation.”

  1. It is clear that the injuries in the said Pestony case were more serious than the ones herein and were described by the doctor as severe.
  2. Taking into consideration the nature of the injuries sustained by the plaintiff herein, the inflation factor, the comparable awards for similar injuries and the cited cases, I find that general damages in the sum of Kshs. 500,000/= would be adequate herein.
  3. I therefore find that the trial court misdirected itself by assessing general damages at Kshs 800,000/= and I proceed to substitute the same with Kshs. 500,000/=.
  4. On special damages, it is trite law that special damages must be specifically pleaded and strictly proved. They were pleaded at Kshs 7200/= but only Kshs 6500/= was proved by receipt.  I set aside the award of Kshs. 7200/= under this head and award the same at Kshs. 6, 880/=.
  5. In the upshot I enter judgment for respondent against the appellant at Kshs. 506,880 which is subject to 50 % liability = Kshs 253,440/=. Costs of the lower court case is awarded to respondent. Each party to bear its own costs of the appeal.
  6. It so ordered

T

In the presence of;

Miss Wakiaga for the Appellant

N/A for Respondent

Court Assistant:  Oigo

    STEPHEN NAIRENKE VS PETERSON MOKERA NYABUTO STEPHEN NAIRENKE VS PETERSON MOKERA NYABUTO