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JudgmentSTEPHEN NGANGA GITHINJI VS NICHOLAS MUMO NZIOKI15 min read

STEPHEN NGANGA GITHINJI VS NICHOLAS MUMO NZIOKI

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CIVIL APPEAL NO. E240 OF 2023

STEPHEN NGANGA GITHINJI ……………………………………….…APPELLANT

VERSUS

NICHOLAS MUMO NZIOKI …………………………………  …….. RESPONDENT

(Being an Appeal from the Judgment of Hon. H.M. Mbati (PM) in Machakos CMCC. No. 94 of 2019 delivered on 21/08/2023)

JUDGMENT

Background

  1. By a Plaint dated 28th February 2019, the Respondent (Plaintiffs then) instituted a suit against the Appellant (Defendant then) seeking the following prayers pursuant to a road traffic accident that took place on 26th October 2018 at 15.30 Hrs along Lukenya-Joska Murram road at Mthwani:
  2. General damages for pain, suffering and loss of amenities
  3. Special damages at Kshs.3,550/-
  4. Future Medical expanses of Kshs.200,000/-
  5. Costs and interest.
  6. The Respondents averred that on the material date and time, he was a passenger in motor vehicle registration number KAC 930N belonging to the Defendant, when the said vehicle was driven so negligently and recklessly that it veered off its lane and landed in a ditch as a result, the Respondent sustained severe bodily injuries.
  7. The Appellant filed a Defence dated 9th March 2019in which he denied all allegations in the Plaint and put the Respondent to strict proof. He also denied negligence attributed to him and stated that the accident was solely caused and/or substantially contributed to by the negligence of the Respondent when he failed to take any adequate precaution for his safety by wearing a safety belt and exposing himself to foreseeable risk of harm and/or injury.
  8. The case proceeded for hearing with the Respondent calling two witnesses, the Respondent and a Traffic Police Officer. A medical Report by Dr. G.K. Mwaura dated 5th February 2019 was produced as PExhibit.1, Discharge Summary from Machakos Shalom hospital-PExhibit.2, Attendance Card at Machakos Shalom hospital -PExhibit.3, Copy of records by NTSA- PExhibit.4, P3 Form-PExhibit.5, Police Abstract-PExhibit.6 and Demand Notice-PExhibit.7.
  9. The Appellant was the only witness for his case. He did not produce any exhibit in evidence.
  10. Upon considering the pleadings, the evidence and the Parties’ written submissions, the trial court delivered judgment on 21st August 2023 in which it held the Appellant 100% liable and awarded damages for Kshs.700,000/- in general damages, Kshs.3,550/- as special damages and Kshs.200,000/- for Future Medical expenses plus costs of the suit and interest at court rates.
  11. Being aggrieved by the said judgment the Appellant lodged the appeal hearing vide a Memorandum of Appeal dated 18th September 2023 raising 8 grounds of appeal basically on liability and quantum. The Appellant seeks that the appeal be allowed and the judgment and orders of the trial court delivered on 21st August 2023 in Machakos CMCC No. 94 of 2019 Nicholas Mumo Nzioki v Stephen Nganga Githinji be set aside.

Analysis and determination

  1. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.
  2. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -

A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

  1. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion
  2. I have perused the Record of Appeal, considered and weighed the rival submissions on the appeal and also taken into consideration the judicial decisions cited and attached, I will proceed to consider whether the trial court’s findings on liability and quantum should be disturbed on this appeal.

Liability

  1. On liability this court is the view that it has to determine the following issues:
  2. Whether the Respondent was involved in the accident;
  3. Whether the doctrine of volenti non fit injuria applied to the Respondent in the circumstances of the case;
  4. Whether the Learned Trial Magistrate erred in holding the Appellant 100% liable;
  5. Whether the Respondent was involved in the accident;
  6. The Appellant has faulted the trial court for not considering his submissions and assertions on this particular issue and submitted herein that the Respondent was initially examined by Dr. G.K. Mwaura whose opinion and prognosis corresponded to the injury as pleaded in the Plaint. The report states that the patient examined sustained a degloving injury to the left leg and a fracture to the left femur. That the Respondent was severally invited to attend second medical examination as were for two other matters which form part of series of this matter but the Respondent declined to attend. Therefore, due malice must be read into the Respondent’s refusal to attend second medical examination that denied the Respondent the opportunity to verify his alleged injuries and identity. The Appellant has referred to page 72 of the Record of Appeal that the Respondent stated that he was 37 years old with his ID No. being 21153868 which is a huge contradiction from the evidence he provided. That the Medical Report indicates that the patient examined on the said date with the same name was 21 years old, a consistency that is further found on the P3 Form which indicates the injured person and who was re-examined by the police doctor was 20 years old.
  7. That these contradictions on the evidence of the Respondent as to vary simple personal facts, the refusal to attend second medical examination and unusual difference in the age of the Respondent and the witness all lead the Appellant to one conclusion, that the person whose testimony the trial court heard is not the person who was involved in the accident.
  8. That the identity of the person who testified in court could only have been proved by the production of an ID therefore the failure by the Respondent to prove his case by providing the crucial evidence of identification, a duty that could not at any moment be transferred to the Appellant.
  9. That the police officer who testified stated that he was not the investigating officer, did not visit the scene neither did he see the injured, whereby he could not identify those involved. That his testimony did not include the Respondent’s name as one of those who were injured.
  10. I have perused through the judgment as far as the issue of identification of the Respondent is concerned and I have established the trial court addressed this issue at paragraph 12 to 14 of the judgment. The trial court stated that it had perused the Respondent’s exhibits and confirmed the Medical Report date 5/2/2019 indicated the Respondent was 21 years old, while the P3 Form filled on 21/12/2018 indicated he was 20 years old. The Respondent did not carry his ID on the hearing date but he knew the number and told the court it was 21153868. Accordingly, the allegation that the person who testified was not the Respondent can only be proved by the Respondent upon production of the said ID to confirm identity. The trial court referred to the case of Kanyungu Njogu vs Daniel Kimani Maingi (2022) eKLR that the standard of proof in civil cases is on a balance of probability and went on to state that the Appellant did not ask the Respondent about his date of birth. However, the Police Abstract, Medical evidence i.e. the Medical Report, Discharge Summary, Attendance Card and P3 Form all refer to one Nichlas Mumo Nzioki. That if the witness who testified as the Respondent was an imposter, then the trial court wondered where the Respondent’s Advocate got all the corroborating exhibits referred to. It is also on record that when the Respondent took the stand, he told the court that his name was Nicholas Mumo Nzioki and confirmed that he only injured his left leg at the thigh and a metal plate was put that is yet to be removed. In addition, the Respondent confirmed the circumstances of the accident that the vehicle was speeding and the road was bad. In the circumstances, the trial court found that on a balance of probability, the scales of justice tilted in favour of the Respondent since he provided an ID number capable of verification.
  11. This court has considered the submission of the Appellant herein as well as the trial court’s finding on identification of the Respondent. First, this court observes that in as much as the Appellant is alleging to have severally invited the Respondent to attend a second medical examination, no proof of such invites was placed before court. Second, in as much as the Respondent didn’t have a physical copy of his ID in court at the hearing, the Appellant’s Advocate was at liberty to cross examine the Respondent on that issue or at large sought for leave to verify ID number provided by the Respondent to establish the truth about his age. I agree with the trial court that the Appellant should have at least asked the Respondent about his birth date. Similarly, I agree with the holding in the case on Kanyungu Njogu (supra) cited by the trial court and find that the burden shifted on the Appellant to prove that the Appellant was of a different age other than the age in his exhibits presented before court. The inconsistence in the age of the Respondent did not rout the core of his case. See SATE RIDE LIMITED v JAMES ANYEGA [2010] eKLR where the Court held as follows;

“…Of course, there are contradictions and inconsistencies here and there in the testimony of the respondent.  Such contradictions are not wholly unexpected.  However, for as long as those contradictions and inconsistencies do not go to the root of the respondent’s case or credibility, they are tolerable.  I do not think therefore that the contradictions in the evidence of the respondent made him an unreliable witness…”

  1. The Appellant has also submitted that the police officer who testified did not include the Respondent’s name as one of those who were injured. I have looked at the record, particularly the testimony of the police officer and I establish that at page 75 of the record the Respondent, Nicholas Mumo is shown to be among other passengers listed. It is therefore not correct that the police officer did not include the Respondent’s name as one of those who were injured.
  2. On the foregoing, I find that the Respondent was involved in the accident and was properly identified himself before the trial court.
  3. Whether the doctrine of volenti non fit injuria applied to the Respondent in the circumstances of the case;
  4. The Appellant submitted that the testimonies of the Respondent’s witnesses all indicate that the Respondent and the two others decided to travel in the impugned lorry meant for transport of building material and did so while hanging on the back where sand was indeed carried. The Appellant relied on the cases of United Millers Limited & Another v John Mangoro Njogu (2016) eKLR , AAA Growers Ltd v Ann Wambui (Suing as the Administratrix in the Estate of Thomas Wahome Wambui) & Anor (2016) eKLR and Beatrice William Muthoka & Anor (Both suing as legal Representatives of the Estate of the late William Muthoka Yumbia (Deceased) v Agility Logistics Limited (2020) eKLR which addressed the  doctrine of volenti non fit injuria.
  5. The Appellant further submitted that the fact that the Respondent asked for a lift and that he had not paid any fare means the Respondent was well aware that the vehicle boarded was a “lorry ya kubeba mzigo” and that he did not pay any fare. The Respondent should therefore not be allowed to come back and seek legal redress for a risk that he took willingly: that he voluntarily agreed to board the lorry which lorry he knew that was meant to transport goods and not to carry passengers.
  6. The doctrine of volenti non fit injuria has been explained to be where the Plaintiff/Claimant voluntarily agrees to undertake the risk of harm at his own expense. It has, however, been held that the question is not whether the injured party consented to run the risk of being hurt, but whether he consented to run that risk at his own expense so that he should bear the loss in the event of an injury.
  7. In the instant case, the Respondent is said to have been offered a lift in the Appellant’s lorry. There is no proof that the Respondent was ever cautioned or shown any caution sign that he ought not to board the motor vehicle and had therefore been offered the lift at his own risk. There is nothing to show that the Respondent perceived the existence of danger by boarding the lorry and fully appreciated it and voluntarily accepted the danger. In the case of AAA Growers (supra) cited by the Appellant in his submissions herein it was explained in clarity that in order to establish a defence of volenti non fit injuria the Claimant must be shown not only to have perceived the existence of danger but must also have appreciated it fully and voluntarily accepted the risk.
  8. It is clear, the Appellant did not plead the defence of volenti non fit injuria in his Defence or prove the same. The Appellant denied the occurrence of the accident and pleaded contributory negligence against the Respondent but again, he did not prove this. I therefore find that the doctrine of volenti non fit injuria did not apply in the circumstances of the instant case and the authorities cited by the Appellant are irrelevant.
  9. Whether the Learned Trial Magistrate erred in holding the Appellant 100% liable;
  10. The trial court in its judgment at paragraph 19, found that the doctrine of “res ipsa loquitor” applied since it was a self-involved accident and the Respondent being a passenger, could not have contributed to the occurrence of the accident because he was not in control of the vehicle. Furthermore, there is no authority to carry passengers. In addition, the driver of motor vehicle registration No. KAC 930N did not tender evidence to exonerate himself.
  11. I find and agree with the trial Magistrate that the Respondent was not at all in control of the motor vehicle and could not have contributed to the accident. The driver at the time who was working for the Appellant was wholly to blame for the accident hence that Appellant was properly found 100% vicariously liable.
  12. On the foregoing, this court has no reason to disturb the trial court’s finding on liability.

Quantum

  1. The Appellant at ground d, e, f, g of the Memorandum of Appeal challenges the Learned Trial Magistrate’s on the award of general damages which he perceives to be punitive, excessive and or inordinately high thus erred in law and in fact in awarding excessive and exorbitant damages to the Respondents and invites this court to disturb the same.
  2. I noted that the Appellant did not submit on quantum before the trial court. Nevertheless, I will proceed to determine the issue of quantum.
  3. This court is alive to the fact that in an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:

“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”.

  1. I have considered the injuries that were sustained by the Respondent in the instant case which were: A fracture -left femur and a devolving injury left leg.
  2. The trial court on relying of the case of Benuel Bosire v Lydia Kemunto Mokora (2019) eKLR in which the court substituted an award of Kshs.2,000,000/- with Kshs.700,000/ where the Respondent sustained:
  3. Compound fracture of the mid femur leg
  4. Extreme degloving injury of the left thigh extending from the knee to the iliac area,
  5. Deep degloving on the left popliteal area; and
  6. Extreme laceration on the upper 3rd of the left leg.
  7. In my view, the authority above relied upon by the trial magistrate was for far more very severe injuries compared to the Respondents injuries herein. Guided by the following authorities, I find that the award on quantum for general damages of Kshs.700,000/= by the trial magistrate was rather excessive circumstances and I substitute it with an award of Kshs.500,000/=. 
  8. Tirus Mburu Chege & Another v JKN & Another (2018) eKLR where the respondent suffered fractures on the tibia and fibula on both legs, blunt injury on the forehead, broken upper right second front tooth, nose bleeding and consistent loss of consciousness the court lower the award for general damages from Kshs.800,000 to Kshs.500,000.
  9. Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR where the plaintiff suffered injuries of fractured right femur, compound fracture (r) tibia and fibula, shortening right led and episodic pain (r) thigh with inability to walk without support and the court awarded Kshs.700,000 as general damages.
  10. Pauline Gesare Onami v Samuel Changamure & Another (2017) eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs.600,000.
  11. Alex Wanjala v Pwani Oil Products Limited & Another (2019) eKLR where the appellant sustained a closed head injury leading to loss of consciousness for several weeks, closed fracture of the right humerus and closed fracture of the right femur with the court awarding Kshs.600,000 for general damages.
  12. Future Medica expenses at Kshs.200,000/= and Special damages at Kshs.3,550/= was not challenged. It was proved. I award it accordingly. Costs on the net award in the lower court is awarded to the Respondent.
  13. Accordingly, the appeal herein against quantum of damages succeeds to the extent that the award of general damages in the sum of Kshs.700,000/= is hereby set aside and substituted with an award of Kshs.500,000/=. The Respondent shall have costs of the suit in the lower court and interest on the reassessed damages from date of judgment in the lower court.
  14. Given the result of the appeal, each party shall bear own costs of the appeal.

It is hereby so ordered.

JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 11TH FEBRUARY 2025

   NOEL I. ADAGI

                JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11TH .FEBRUARY 2025

In the presence of :

Mr. Omondi   ...... for Appellant

Mr Kiptanui h/b for Waiganjo Wachira for  ...... for Respondent

Milly Grace................ Court Assistant

    STEPHEN NGANGA GITHINJI VS NICHOLAS MUMO NZIOKI STEPHEN NGANGA GITHINJI VS NICHOLAS MUMO NZIOKI