Ummoinner Savings &^ Credit Co-operative Society Limited VS Mwungura Emile

1. The appellant has filed this appeal through a memorandum of appeal dated 23/5/2022. This appeal relates two issues, liability and quantum of damages in a suit for general and special damages for personal injuries arising out of a road traffic accident. The appellant was the defendant while the respondent was the plaintiff before the trial court. The trial court found the case by the respondent proved on a balance of probabilities and held the defendant wholly liable for the respondent’s injuries and awarded him KShs 1,500,000/= general damages for pain, suffering and loss of amenities and KShs 6,580/= special damages. The appellant was dissatisfied with that decision and now appeals to this court.
2. The suit by the respondent in the trial court through her plaint dated 24/7/2019 was that he was injured in a road traffic accident on 13/4/2019 involving the appellant’s motor vehicle registration number KBV 180Q. It was the respondent’s case through his pleadings and evidence that he was crossing Landhies road at a pedestrian crossing when the defendant’s said motor vehicle hit and knocked him down as a result of which he sustained serious injuries. He blamed the driver of the said vehicle for the accident for the careless, negligent and/or reckless manner he drove, controlled and/or managed the vehicle causing it to hit him.
3. In his evidence where he adopted his witness statement dated 24/7/2019, the respondent said the driver of the vehicle approached the pedestrian crossing at high speed and knocked him down in spite of other drivers having given way to pedestrians.
4. The respondent called two other witnesses. PW 1 Dr. Geroge Kungu Mwaura who examined him and prepared a medical report dated 28/6/2019 on the injuries he sustained in the accident and his condition at the time of examination. PW 2, Police Cpl Penina Omunyala of Kamukunji police station gave evidence that the accident was reported at the police station and investigated by P.C. Wanjiru. She produced the police abstract in respect of the accident and P3 form issued to the respondent after the accident. She was not the investigating officer.
5. The appellant through its statement of defence dated 13/9/2019 and testimony of the driver of the vehicle George Odhiambo Onganga, DW 1 denied the respondent’s claim in toto. In the statement of defence, the appellant blamed the respondent for being careless while crossing the road. He outlined particulars of negligence against the respondent as a pedestrian. In his witness statement dated 3/12/2019 the driver said that after stopping in traffic jam, he started moving the vehicle and immediately felt like the vehicle had gone over a slight bump though on the left side only. He checked the left rear view mirror and noticed a pedestrian lying behind the left rear wheel. He said further that the pedestrian had attempted to board the vehicle with the door locked and without the authority of the conductor just as it started moving and in the process fell. He denied that at the time of the accident, the vehicle was moving at high speed nor was he careless and also said that the vehicle was not moving at the time of the accident. The driver maintained that the respondent was a passenger in the said vehicle.
6. After trial the learned trial magistrate found the appellant wholly liable for the accident and rejected the appellant’s contention that the respondent was the author of his own misfortune. In his judgment he awarded the respondent general damages KShs 1,500,000/=, special damages KShs 6,850/= together with costs and interest.
7. The appellant was dissatisfied with that decision and has filed the present appeal based on six grounds outlined in the memorandum of appeal but summarized into two in the submissions by learned counsel as follows:
   1. whether the appellant had established his case on the respondent’s liability for the accident.
   2. whether the award of damages made by the trial court was inordinately high.
8. The appellant therefore prays to this court to allow the appeal, set aside the judgment of the trial court delivered on 8/9/2021 and dismiss the respondent’s suit in the trial court with costs and substitute it with its own decision on liability and quantum of damages.
9. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
10. This being a first appeal, the duty of this 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 (1958) E.A page 424.

Analysis and Determination

1. The trial was conducted on 10/6/2021 where all the witnesses for the respondent and the appellant testified. Learned counsel for the appellant submits that the evidence by the respondent on how the accident occurred was contradictory and therefore unreliable. He points out the contradictions as being that whereas the respondent testified that she was a pedestrian and was hit by the vehicle as he attempted to cross the road, his witness, PW 2, the police officer testified that he was a passenger who was alighting from the vehicle at the time of the accident.
2. I note that the learned trial magistrate’s analysis of the evidence was severely limited and so one is wont to feel as the appellant herein that there was no full analysis of the facts presented to the court.
3. With respect to learned counsel for the appellant, I find no contradiction in the respondent’s case on the manner in which the accident occurred. The only reliable evidence tendered at the hearing for the respondent on how the accident occurred was from the respondent himself. The evidence of PW 2, the police officer on how the accident occurred was unreliable and cannot he held to have been in contradiction of the respondent’s evidence. In my understanding, evidence can only be found to be contradictory if in the first place it was admissible and then reliable. When the court puts the two pieces of evidence together, it is not possible to determine which of the two pieces of evidence should be accepted and the other rejected. Any person objectively looking at the scenario would not be able to arrive at a decision of which of the two pieces would be believed. In that case, the evidence would be contradictory. That is not the position in this case where there is evidence from an eye witness, the respondent and evidence of a police officer who was not at the scene, was not the investigating officer, she was relying on contents of an occurrence book which she did not produce in court for the court’s examination of what was entered therein when the accident was reported and even apologized saying that she had made an error to allege that the respondent was a passenger in the said vehicle because the police abstract which is the document she had in court said she was a pedestrian. Having clarified that in fact the respondent was a pedestrian as recorded in the police abstract, the learned trial magistrate was correct to rely upon the evidence of the police abstract whose contents were not challenged by the appellant at the trial. That then leaves the reliable evidence for the respondent to be that she was a pedestrian trying to cross the road and this was supported by the entry in the police abstract.
4. The evidence of the appellant through DW 1 was on the other hand contradictory and did not support the appellant’s case as laid out in the statement of defence which was that the respondent was a pedestrian. All the particulars of negligence outlined in the defence are against a pedestrian and not a passenger or someone who was trying to board the vehicle as alleged by the driver in his witness statement. DW 1 recorded in his statement that the respondent attempted to board the vehicle while the door was locked and the vehicle was moving and without the conductor’s authority and he fell. In that case, the respondent cannot be said to have been a passenger in the vehicle even as DW 1 in his testimony in court, DW 1 said that the respondent was a passenger. Learned counsel for the appellant submits that the respondent was a passenger who was alighting from the vehicle while it was in motion. Learned counsel seems to have picked this fact from the evidence of the police officer. I have found that the evidence of the police officer is unreliable. The driver of the vehicle did not mention anywhere that the respondent was trying to alight from the vehicle. He only alleged that he was his passenger. The driver’s evidence is full of contradictions that makes it totally unreliable. His written statement clearly indicates that the respondent was a pedestrian. Initially, the driver wrote that he only felt as if the vehicle had gone over a slight bump on the left side and when he checked in the rear-view mirror, he saw the pedestrian lying behind the rear left tyre. That would tell you that the driver did not see how the respondent got in contact with the vehicle but that the vehicle indeed ran over him and that was when he felt the tyre going over a slight bump. So when he later alleges in the same statement that the respondent had attempted to board the vehicle while in motion, it makes that allegation unsupported by the circumstances obtaining at the time and therefore unreliable. He said in his testimony that he was concentrating on the road and that would clearly show that he did not notice at what point the respondent was hit by the vehicle.
5. The only reliable evidence on record by an eye witness was from the respondent. That evidence was supported by the evidence in the police abstract which showed that she was a pedestrian and not a passenger in motor vehicle registration number KBV 180Q.  The police abstract was produced by PW 2 and even though she was not the investigating officer the appellant had no objection to it being produced by her. Neither did the appellant indicate that they were opposed to the contents therein being relied upon by the respondent. In the case of Joel Muga Opinja v East Africa Sea Food Ltd [2013] eKLR the court considered reliance on the contents of a police abstract and said:

“We agree that the best way to prove ownership would be to produce to the court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in court without any objection, the contents cannot later be denied” (emphasis by underlining mine).

1. Although the Court of Appeal was referring to the issue of ownership, I believe the holding applies to all the contents in the police abstract including the findings of the investigating officer on who was to blame for the accident. I therefore find that the respondent’s evidence was supported by the evidence of the police abstract that the respondent was a pedestrian and not a passenger in the vehicle.
2. The respondent’s evidence that he was a pedestrian crossing the road when the driver of the vehicle approached at high speed and failed to give way to pedestrians and heed to other motorists who had stopped for the pedestrians to cross is supported by the police abstract which indicated that he was a pedestrian. It is also supported by the driver’s own testimony in court that he approached the place at high speed.
3. From the circumstances emerging from the evidence, I find it highly probable that the other pedestrians had successfully crossed the road and the respondent attempted to step on the road just as the driver was approaching and was thereby hit. He was therefore negligent to a certain extent and he cannot wholly escape blame. I will therefore apportion liability in the ratio of 80:20 for the respondent against the appellant.
4. I will therefore set aside the learned trial magistrate’s finding of the appellant wholly liable for the accident and substitute it with a finding that liability is apportioned in the ratio of 80:20 for the respondent against the appellant.    
5. The injuries sustained by the plaintiff are captured in his evidence and supported by the medical report of Dr. G. K. Mwaura, physician dated 28/6/2019 where the doctor outlined the injuries sustained as:
   1. fracture – right acetabulum (hip joint).
   2. fracture – pelvis (rami).
6. At the time of physical examination, the doctor described her physical health as borderline, systematic physical examination as normal and local physical examination as not fully healed/pain. The doctor’s findings, prognosis and opinion were that healing was incomplete evidenced by pain and weakness – pelvis. He could not run. He could stand or walk for a short time and perform light duties only. Pain and weakness to persist even after recovery. Permanent degree of incapacity assessed at 20% overall and the injuries classified as grievous harm (multiple fractures).
7. In their submissions at the trial court, the appellants proposed an award of KShs 550,000/= general damages for pain, suffering and loss of amenities for the respondent. In this appeal, they now propose an award of KShs 800,000/=.
8. The respondent on his part proposed an ward of KShs 1,500,000/= general damages for pain, suffering and loss of amenities.
9. On the evidence tendered, the learned trial magistrate awarded the plaintiff KShs 1,500,000/= general damages for pain, suffering and loss of amenities as proposed by the respondent. This court is now called upon by the appellants to disturb that award.
10. 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. Learned counsel for the respondents cited the following two decisions in support of their proposal at the lower court:
   1. Magnate Venture Limited v John Kioko Kyumbisyo [2017] eKLR where the plaintiff sustained:
      1. head injury with transient loss of consciousness,
      2. fracture right radius,
      3. fracture left radius,
      4. fracture multiple ribs (2-6^th rib),
      5. fracture right acetabulum,
      6. blunt trauma with loosening of incisor tooth.

On appeal, the High Court revised the trial court award of KShs 2,000,000/= to KShs 1,000,000/= general damages in 2017.

• 1. George Njenga & another v. Danile Wachira Mwangi [2017] eKLR where the respondent sustained the following injuries:
     1. pelvic fracture.
     2. unstable left knee joint.
     3. unstable left ankle joint.
     4. soft tissue injuries to the trunk and posterior chest.
     5. laceration on the anterolateral aspect of the left leg.

The High Court sitting on appeal upheld the award of Kshs.800,000/= awarded on general damages to the respondent.

1. The respondent cited the following authorities:
   1. Andrew Kibet Kitum & another v Alice Njeri Gatundu [2021] eKLR. The respondent suffered fracture of the pelvis involving both left and right superior and inferior pubic rami and multiple bruises and cuts on both lower limbs. The High Court on appeal sustained the trial court award of KShs 720,000/= general damages for pain, suffering and loss of amenities.
   2. Geoffrey Maraka Kimchong v Frechiah Hugiru [2020] eKLR where the appellant sustained the following injuries:
      1. cut wound on the cheek which was tender.
      2. blunt trauma to the pelvis which was tender.
      3. fracture of the right acetabulum.

The High Court on appeal revised the trial court award of KShs 80,000/= general damages for pain, suffering and loss of amenities and substituted it with an award of KShs 1,000,000/= finding that it could be that there was a mix-up of files as the learned trial magistrate had found that the appellant had sustained a prick wound on the right leg (shin) which was tender.

1. I have considered the decisions cited by the parties before the trial court. I find that the decisions cited were quite relevant and related to injuries well comparable to those sustained by the respondent herein. In particular the case of Magnate Venture Limited cited for the appellant and that Geoffrey Maraka Kimchong cited for the respondent bear close comparison to the case by the respondent herein. In both cited cases, the awards were KShs 1,000,000/= respectively.
2. I have read through the judgment of the learned trial magistrate and I note that he referred to the cited decisions before he made the award of general damages in this case. I do not find reason to fault the manner in which the learned trial magistrate arrived at the award. If I was sitting in the trial sit, I may have made a slightly lower award. But I am not to substitute my own award with that of the trial court simply because I would have made a different award (see the case of George Njenga & another v Daniel Wachira Mwangi above at para. 7).
3. 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 awards but recalling that no two cases are exactly alike as held 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. I find that the learned trial magistrate was well guided and followed this approach in the assessment of general damages in this case.
2. Consequently, I find that this is not 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 not so manifestly high in view of similar injuries in the cases cited above so as to represent an erroneous estimate.
3. Consequently, the trial court’s award of Kshs. 1,500,000/= in general damages is affirmed. For clarity the award of special damages which were not challenged shall remain as awarded KShs 6,850/=.
4. The total award to the respondent is therefore KShs 1,586,850/=. The same is subject to 20% reduction due to apportionment of liability thereby bringing the final award to KShs 1,269,480/=.
5. Considering the extent to which the appellants have succeeded in the appeal I order that each party shall bear his costs of the appeal.

Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 17^th day of September 2024.

In the presence of:

No appearance for Appellants.

Ms Owuor for the Respondent.

Etropia Court Assistant.

30 days Right of Appeal and stay of execution granted.