Background
1. This is an Appeal from the decision of court in the Chief Magistrate’s court civil case No. 9288 of 2021 where the Respondent had sued the Appellant seeking damages for injuries suffered in a road traffic accident of 13th October 2020 along Ring Road.
2. The accident involved the Respondent’s motor cycle registration number KMFE 831R and the 1st Appellant’s motor vehicle registration number KBH 824Q, then being driven by the 2nd Appellant.
3. The trial court by its judgment of 14th July 2022 rendered its decision and apportioned liability in the ratio of 80:20 in favour of the Respondent. The court also issued the following awards in favour of the Respondent; -
a) General damages at Kshs. 850,000/-; less 20% contribution- net being Kshs. 680,000)
b) Special damages of Kshs. 2,840/-
c) Costs of the suit
d) Interest on a, b and c above at court rates from the date of the Judgment till payment in full.
The Appeal
4. Aggrieved by the decision of the trial court, the Appellants vide memorandum of appeal dated 4th August 2022, appealed to this court against the decision. The Appellants raised five grounds of appeal. However, a perusal of the grounds, which I need not reproduce here, reveals that the appeal is essentially against the trial court’s finding on liability and quantum of damages.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellants submissions are dated 23rd of May 2024 whilst that of the Respondent is dated 24th May 2024.
6. On liability, the Appellants submitted that the trial court erred in law and in fact by giving a narrow interpretation of facts of the case leading to an erroneous assessment of liability and apportionment thereof. According to the Appellant, the Respondent had at trial failed to establish any negligence on the part of the 2nd Appellant.
7. As an alternative argument, the appellants submitted that if for any reason this court were to find the Appellants liable for the accident, then that liability ought not to be more than 50%. The Appellant insisted that the Respondent ought to carry the bulk of the blame.
8. On quantum, the Appellants submitted that the trial court erred in law and in fact by awarding a sum of Kshs. 850,000/- in general damages for pain, suffering and loss of amenities. According to the Appellants, the award was high and excessive and did not take into account the nature of the injuries suffered by the Respondent.
9. On his part, the Respondent supported the findings of the trial court, both on liability and on quantum. The Respondent maintained that the trial court’s findings was in the circumstances of the case, reasonable and justified in light of the evidence tendered at trial.
Analysis and determination
10. Being a first appeal, my duty is to re-evaluate and re-assess the evidence tendered at the trial court with a view of reaching my own conclusion on the issue of liability and on quantum. I am however alert to the fact that unlike the trial court, I did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. I will therefore give due allowance for this. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
11. At the same time, I will also bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court .....is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
12. On the issue liability, the Appellants submitted that the trial court erred in law and in fact by giving a narrow interpretation of facts of the case leading to the court’s erroneous assessment of liability and apportionment thereof. According to the appellants, the evidence of the 2nd Appellant was more credible than that of the Respondent and consequently, the trial court ought not to have found the Appellants liable for the occurrence of the accident. The Appellants insisted that there was no negligence on their part.
13. The Appellants referred to the testimony of the 2nd Appellant who testified at trial as the Appellants’ sole witness. According to the Appellant, the 2nd Appellant was on the material day driving motor vehicle registration number KBH 842Q coming from Apollo Centre, Westlands. That before he joined Ring Road, he stopped to wait for the road to clear of traffic coming from Westlands Shopping Centre. That while the vehicle was stationary, waiting, the Respondent who was then riding motor cycle registration number KMFE 831R rammed on the Appellant’s stationary motor vehicle from the left-hand side. That the Respondent was then riding against traffic and on the wrong side, thereby causing the accident.
14. On his part, the Respondent maintained in this appeal that the accident was exclusively caused by the 2nd Appellant. Accordingly, he urged this court to re-evaluate the evidence tendered at trial and confirm to the same conclusion as the trial court did.
15. I have perused the judgment as well as the proceedings before the trial court. I note that the Respondent testified as PW2 and stated that on the material day, he was riding his motor cycle registration number KMFE 831R when the 2nd Appellant, then driving motor vehicle registration number KBH 842Q from Apollo Centre Westlands, joined the main road (Ring Road, Westlands), without first slowing down and confirming the flow of traffic and safely of other road users. The Respondent asserted that that action by the 2nd Appellant was reckless and negligent and was wholly responsible for the occurrence of the accident and the injuries suffered by the Respondent.
16. From the evidence tendered by both parties, I note that it is a common ground that the 2nd Appellant, was then driving the subject motor vehicle, coming from Apollo Centre, Westlands towards Ring Road, which was opposite the Centre. The only point of departure between the parties is whether the accident happened when the 2nd Appellant’s vehicle was stationary, waiting to join road; or whether the accident happened as the vehicle was in motion, joining Ring Road.
17. Looking keenly at the evidence adduced by both parties at trial, this court finds that it is not crystal clear who between the two actually caused the accident. The 2nd Appellant blamed the Respondent while the Respondent in his testimony blamed the 2nd Appellant.
18. In view of the fact that it is not reasonably possible to decide on the evidence tendered at trial who between the two parties caused the accident, I will be guided by the decision of the Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] eKLR where the Court stated the following; -
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame……………
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
19. However, from the evidence tendered, it is common ground that the 2nd Appellant was the one joining the main road where the Respondent already had right of way, I find that the 2nd Appellant owed the Respondent a higher duty of care. Consequently, apportionment of liability between the two parties cannot be on a 50:50 basis as suggested by the Appellant. I hold the view that apportionment at of liability at 80:20 in favour of the Respondent reasonable.
20. Having so found; this court finds no reason to disturb the trial court’s verdict on the issue of liability. The same is therefore maintained at 80:20 in favour of the Respondent.
21. On quantum, the Appellants submitted that the trial court erred in law and in fact by awarding a sum of Kshs. 850,000/- in general damages as the amount was inordinately high and excessive. According to the Appellants, the award did not take into account the nature of the injuries suffered by the Respondent. It was further the Appellant’s argument that the trial court failed to take into account that the degree of permanent disability was only 5% as assessed by the medical report of Dr. Michelle Muhanda dated 9th February 2022.
22. According to the appellant, an award of a sum not exceeding Kshs. 500,000/- ought to have been an adequate compensation to the Respondent for the injuries suffered in the accident. In support of their position, the Appellants cited three cases where awards of between Kshs. 350,000/- and 500,000/- was made for injuries, which the appellant submitted, were substantially similar to those suffered by the Respondent in the instant appeal.
23. In the case of Pride Kings Security v Ekaalet [2023] KEHC 20284 (KLR) cited by the Appellants, an award of Kshs. 750,0000/ was reduced to Kshs. 450,000/- for mild head injury with brief loss of consciousness, deep lacerations on the occipital scalp, lacerations on the left elbow posteriorly, bruises on the right knee anteriorly and an open fracture of the right tibia and fibula. Further, in Simon Kimote v Agro Solutions Limited [2021] eKLR an award of Kshs. 350,000/- was maintained by the High Court for right femoral fracture lower 1/3, tibia plateau fracture, blunt head injury and blunt neck injury.
24. The other case cited by the appellant is that of Ndwiga & Another v Mukimba [2022] KHC 11793 where an award of Kshs. 1,200,000/- was reduced to Kshs. 500,000/- for injuries which included tenderness and swelling on the left leg, and fracture of tibia and fibula left leg.
25. The Respondent on the other hand submitted that the award of Kshs. 850,000/- by the trial court as general damages for pain, suffering and loss of amenities was fair and just in the circumstances of the case. Restating the cases cited at the lower court, the Respondent urged this court not to disturb the award. In Alphonce Muli Nzuki v Brian Charles Ochuodho (2014) eKLR, the Respondent submitted that a sum of Kshs. 800,000 was awarded for Compound comminuted fracture right tibia and fibula and Degloving injury medial aspect of right leg and foot.
26. The Respondent further relied in the case of Charles Mwania & Another v Batty Hassan [2008] eKLR, where the High Court maintained an award of Kshs. 800,000/- for a bruise on the forehead, a wound on the right thumb and left wrist joint, a wound on the second right finger, a fracture of the right tibia and fibula, a wound below the right knee and a wound on the lateral aspect of the right ankle joint.
27. Having perused the pleadings and evidence tendered at trial, I note that from the Plaint, the Respondent suffered the following injuries; -
i. Fracture of the left tibia plateau
ii. Pain on the left knee,
iii. Difficulty on walking,
iv. Inability to perform heavy duty,
v. Walking with a limp and
vi. Tenderness on the left knee joint movements.
vii. Permanent incapacity of 20%
28. The Respondent was examined by two doctors, Dr. Cyprianus Okere and Dr. Michelle Muhanda. I note that the two medical reports largely agree on the nature of the injuries suffered by the 1st Respondent as a result of the accident. The only point of departure between the two reports is that while Dr. Okere’s report dated 13th January 2021 assessed the degree of permanent incapacity as 20%, that of Dr. Muhanda dated 9th February 2022 placed the degree of incapacity at 5%.
29. Taking into account injuries suffered by the Respondent as particularized in the plaint and considering the respective parties’ submissions and cases cited. I find that the injuries in the case of Charles Mwania & Another v Batty Hassan [2008] eKLR cited by the Respondent where an award of Kshs. 800,000/- is more comparable to the injuries suffered in the present case.
30. I am guided by the principle that assessment of damages is within the discretion of the trial court and that I should only interfere in instances where trial court, in assessing damages, erred in principle and either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence. See Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
31. In the premises, I find the award of Kshs. 850,000/- made by the trial magistrate to be reasonable in the circumstances of this case. In my view, the award took into account the nature of injuries suffered and comparable awards made in the past. See Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.
32. Accordingly, I find this appeal unmerited and is hereby dismiss the same with costs to the Respondent.
33. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGSUT 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
for the Appellant
for the Respondent.
1. This is an Appeal from the decision of court in the Chief Magistrate’s court civil case No. 9288 of 2021 where the Respondent had sued the Appellant seeking damages for injuries suffered in a road traffic accident of 13th October 2020 along Ring Road.
2. The accident involved the Respondent’s motor cycle registration number KMFE 831R and the 1st Appellant’s motor vehicle registration number KBH 824Q, then being driven by the 2nd Appellant.
3. The trial court by its judgment of 14th July 2022 rendered its decision and apportioned liability in the ratio of 80:20 in favour of the Respondent. The court also issued the following awards in favour of the Respondent; -
a) General damages at Kshs. 850,000/-; less 20% contribution- net being Kshs. 680,000)
b) Special damages of Kshs. 2,840/-
c) Costs of the suit
d) Interest on a, b and c above at court rates from the date of the Judgment till payment in full.
The Appeal
4. Aggrieved by the decision of the trial court, the Appellants vide memorandum of appeal dated 4th August 2022, appealed to this court against the decision. The Appellants raised five grounds of appeal. However, a perusal of the grounds, which I need not reproduce here, reveals that the appeal is essentially against the trial court’s finding on liability and quantum of damages.
Submissions
5. The appeal was canvassed by way of written submissions. The Appellants submissions are dated 23rd of May 2024 whilst that of the Respondent is dated 24th May 2024.
6. On liability, the Appellants submitted that the trial court erred in law and in fact by giving a narrow interpretation of facts of the case leading to an erroneous assessment of liability and apportionment thereof. According to the Appellant, the Respondent had at trial failed to establish any negligence on the part of the 2nd Appellant.
7. As an alternative argument, the appellants submitted that if for any reason this court were to find the Appellants liable for the accident, then that liability ought not to be more than 50%. The Appellant insisted that the Respondent ought to carry the bulk of the blame.
8. On quantum, the Appellants submitted that the trial court erred in law and in fact by awarding a sum of Kshs. 850,000/- in general damages for pain, suffering and loss of amenities. According to the Appellants, the award was high and excessive and did not take into account the nature of the injuries suffered by the Respondent.
9. On his part, the Respondent supported the findings of the trial court, both on liability and on quantum. The Respondent maintained that the trial court’s findings was in the circumstances of the case, reasonable and justified in light of the evidence tendered at trial.
Analysis and determination
10. Being a first appeal, my duty is to re-evaluate and re-assess the evidence tendered at the trial court with a view of reaching my own conclusion on the issue of liability and on quantum. I am however alert to the fact that unlike the trial court, I did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. I will therefore give due allowance for this. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
11. At the same time, I will also bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court .....is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
12. On the issue liability, the Appellants submitted that the trial court erred in law and in fact by giving a narrow interpretation of facts of the case leading to the court’s erroneous assessment of liability and apportionment thereof. According to the appellants, the evidence of the 2nd Appellant was more credible than that of the Respondent and consequently, the trial court ought not to have found the Appellants liable for the occurrence of the accident. The Appellants insisted that there was no negligence on their part.
13. The Appellants referred to the testimony of the 2nd Appellant who testified at trial as the Appellants’ sole witness. According to the Appellant, the 2nd Appellant was on the material day driving motor vehicle registration number KBH 842Q coming from Apollo Centre, Westlands. That before he joined Ring Road, he stopped to wait for the road to clear of traffic coming from Westlands Shopping Centre. That while the vehicle was stationary, waiting, the Respondent who was then riding motor cycle registration number KMFE 831R rammed on the Appellant’s stationary motor vehicle from the left-hand side. That the Respondent was then riding against traffic and on the wrong side, thereby causing the accident.
14. On his part, the Respondent maintained in this appeal that the accident was exclusively caused by the 2nd Appellant. Accordingly, he urged this court to re-evaluate the evidence tendered at trial and confirm to the same conclusion as the trial court did.
15. I have perused the judgment as well as the proceedings before the trial court. I note that the Respondent testified as PW2 and stated that on the material day, he was riding his motor cycle registration number KMFE 831R when the 2nd Appellant, then driving motor vehicle registration number KBH 842Q from Apollo Centre Westlands, joined the main road (Ring Road, Westlands), without first slowing down and confirming the flow of traffic and safely of other road users. The Respondent asserted that that action by the 2nd Appellant was reckless and negligent and was wholly responsible for the occurrence of the accident and the injuries suffered by the Respondent.
16. From the evidence tendered by both parties, I note that it is a common ground that the 2nd Appellant, was then driving the subject motor vehicle, coming from Apollo Centre, Westlands towards Ring Road, which was opposite the Centre. The only point of departure between the parties is whether the accident happened when the 2nd Appellant’s vehicle was stationary, waiting to join road; or whether the accident happened as the vehicle was in motion, joining Ring Road.
17. Looking keenly at the evidence adduced by both parties at trial, this court finds that it is not crystal clear who between the two actually caused the accident. The 2nd Appellant blamed the Respondent while the Respondent in his testimony blamed the 2nd Appellant.
18. In view of the fact that it is not reasonably possible to decide on the evidence tendered at trial who between the two parties caused the accident, I will be guided by the decision of the Court of Appeal in Hussein Omar Farah v Lento Agencies [2006] eKLR where the Court stated the following; -
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame……………
The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”
19. However, from the evidence tendered, it is common ground that the 2nd Appellant was the one joining the main road where the Respondent already had right of way, I find that the 2nd Appellant owed the Respondent a higher duty of care. Consequently, apportionment of liability between the two parties cannot be on a 50:50 basis as suggested by the Appellant. I hold the view that apportionment at of liability at 80:20 in favour of the Respondent reasonable.
20. Having so found; this court finds no reason to disturb the trial court’s verdict on the issue of liability. The same is therefore maintained at 80:20 in favour of the Respondent.
21. On quantum, the Appellants submitted that the trial court erred in law and in fact by awarding a sum of Kshs. 850,000/- in general damages as the amount was inordinately high and excessive. According to the Appellants, the award did not take into account the nature of the injuries suffered by the Respondent. It was further the Appellant’s argument that the trial court failed to take into account that the degree of permanent disability was only 5% as assessed by the medical report of Dr. Michelle Muhanda dated 9th February 2022.
22. According to the appellant, an award of a sum not exceeding Kshs. 500,000/- ought to have been an adequate compensation to the Respondent for the injuries suffered in the accident. In support of their position, the Appellants cited three cases where awards of between Kshs. 350,000/- and 500,000/- was made for injuries, which the appellant submitted, were substantially similar to those suffered by the Respondent in the instant appeal.
23. In the case of Pride Kings Security v Ekaalet [2023] KEHC 20284 (KLR) cited by the Appellants, an award of Kshs. 750,0000/ was reduced to Kshs. 450,000/- for mild head injury with brief loss of consciousness, deep lacerations on the occipital scalp, lacerations on the left elbow posteriorly, bruises on the right knee anteriorly and an open fracture of the right tibia and fibula. Further, in Simon Kimote v Agro Solutions Limited [2021] eKLR an award of Kshs. 350,000/- was maintained by the High Court for right femoral fracture lower 1/3, tibia plateau fracture, blunt head injury and blunt neck injury.
24. The other case cited by the appellant is that of Ndwiga & Another v Mukimba [2022] KHC 11793 where an award of Kshs. 1,200,000/- was reduced to Kshs. 500,000/- for injuries which included tenderness and swelling on the left leg, and fracture of tibia and fibula left leg.
25. The Respondent on the other hand submitted that the award of Kshs. 850,000/- by the trial court as general damages for pain, suffering and loss of amenities was fair and just in the circumstances of the case. Restating the cases cited at the lower court, the Respondent urged this court not to disturb the award. In Alphonce Muli Nzuki v Brian Charles Ochuodho (2014) eKLR, the Respondent submitted that a sum of Kshs. 800,000 was awarded for Compound comminuted fracture right tibia and fibula and Degloving injury medial aspect of right leg and foot.
26. The Respondent further relied in the case of Charles Mwania & Another v Batty Hassan [2008] eKLR, where the High Court maintained an award of Kshs. 800,000/- for a bruise on the forehead, a wound on the right thumb and left wrist joint, a wound on the second right finger, a fracture of the right tibia and fibula, a wound below the right knee and a wound on the lateral aspect of the right ankle joint.
27. Having perused the pleadings and evidence tendered at trial, I note that from the Plaint, the Respondent suffered the following injuries; -
i. Fracture of the left tibia plateau
ii. Pain on the left knee,
iii. Difficulty on walking,
iv. Inability to perform heavy duty,
v. Walking with a limp and
vi. Tenderness on the left knee joint movements.
vii. Permanent incapacity of 20%
28. The Respondent was examined by two doctors, Dr. Cyprianus Okere and Dr. Michelle Muhanda. I note that the two medical reports largely agree on the nature of the injuries suffered by the 1st Respondent as a result of the accident. The only point of departure between the two reports is that while Dr. Okere’s report dated 13th January 2021 assessed the degree of permanent incapacity as 20%, that of Dr. Muhanda dated 9th February 2022 placed the degree of incapacity at 5%.
29. Taking into account injuries suffered by the Respondent as particularized in the plaint and considering the respective parties’ submissions and cases cited. I find that the injuries in the case of Charles Mwania & Another v Batty Hassan [2008] eKLR cited by the Respondent where an award of Kshs. 800,000/- is more comparable to the injuries suffered in the present case.
30. I am guided by the principle that assessment of damages is within the discretion of the trial court and that I should only interfere in instances where trial court, in assessing damages, erred in principle and either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence. See Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
31. In the premises, I find the award of Kshs. 850,000/- made by the trial magistrate to be reasonable in the circumstances of this case. In my view, the award took into account the nature of injuries suffered and comparable awards made in the past. See Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.
32. Accordingly, I find this appeal unmerited and is hereby dismiss the same with costs to the Respondent.
33. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGSUT 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
for the Appellant
for the Respondent.