Mutubwa v Thermopak Limited & another (Civil Appeal 257 of 2019) [2024] KECA 1960 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1960 (KLR)
Republic of Kenya
Civil Appeal 257 of 2019
DK Musinga, JW Lessit & A Ali-Aroni, JJA
December 20, 2024
Between
Ridon Anyangu Mutubwa
Appellant
and
Thermopak Limited
1st Respondent
Stanley Karanja Wainaina
2nd Respondent
(Being an appeal from the judgment of the High Court of Kenya at Nairobi (Kamau, J.) delivered on 12th February 2019 in Civil Appeal No. 427 of 2015)
Judgment
1.This is an appeal from the judgment of the High Court of Kenya at Nairobi (Kamau, J.) delivered on 12th February 2019.
2.A brief background is that the appellant instituted suit against the respondents at the Nairobi Chief Magistrates’ Court, to wit, CMCC No. 6044 of 2013, which suit was premised on the tort on negligence. He averred that on 20th March 2012, he was riding motorcycle registration number KMCT 062M along Enterprise Road in Nairobi when the 1st respondent negligently drove, managed, or controlled motor vehicle registration number KAW 161K that it collided with the appellant, occasioning upon him various injuries. The 2nd respondent was the registered owner of the said motor vehicle. Several particulars of negligence were pleaded against the 1st respondent. They included driving at high speed, overtaking when it was unsafe to do so, failing to keep a look out for other road users, and overlapping carelessly.
3.The injuries sustained by the appellant included a fracture of the left tibia malleolus and a fracture of the left fibula malleolus. These fractures were fitted with a metallic plate and screws which were to be removed at a cost of Ksh.80,000. In addition, the appellant averred that he sustained permanent incapacity, which was assessed at 10%. He prayed for general damages for pain, suffering, and loss of amenities of life, future medical costs at Ksh.80,000, special damages at Ksh.99,796 as well as costs and interest.
4.In their joint defence, the respondents denied negligence on their part as pleaded and averred that the accident was solely caused and/or substantially contributed to by the negligence of the appellant.
5.After a full trial where the appellant testified as PW1 and the 1st respondent as DW1, the trial court (Hon. Chesang) rendered its decision on 4th August 2015. The court observed that there was great contention on who was to blame for the accident, but nonetheless held that the evidence of the appellant was in tandem with the plaint, and that the testimony of the 1st respondent was fraught with contradictions as to how the accident occurred. The trial court held the respondents 100% liable for the accident. On quantum, the trial court analysed the injuries sustained by the appellant vis-à-vis existing case law as submitted by the parties and awarded the appellant Ksh.1, 200,000 for pain and suffering, bearing in mind the 10% permanent incapacity. The appellant was also awarded special damages of Ksh.99,796, future medical expenses of Ksh.80,000, bringing the total award to Ksh.1,379,796. He was also awarded interest on the general and special damages as well as costs of the suit.
6.The respondents were dissatisfied with that decision and preferred an appeal to the High Court, to wit, Nairobi High Court Civil Appeal No. 427 of 2015. They faulted the trial magistrate for, inter alia, holding them 100% liable for the accident against the weight of the evidence tendered, and for awarding the appellant general damages for pain and suffering, which were manifestly excessive and erroneous.
7.After hearing the appeal, which was by way of written submissions, the High Court (Kamau, J.) rendered its decision on 12th February 2019. The court held that since there was no conclusive determination in the Police Abstract Report on who was to blame for the accident, the trial court’s apportionment of liability could be interfered with as it was inconsistent with the documentary evidence that was adduced during the trial. Although the court was persuaded to enter judgment on liability at 50:50, it held that since 1st respondent was in charge of a bigger vehicle as compared to the appellant, he ought to have exercised greater care than the appellant. Accordingly, the court re-assessed liability at 70:30 in favour of the appellant. As regards general damages for pain and suffering, the court having analysed various comparable decisions such as Joseph Musee Muia v Julius Mbogo & 3 Others [2013] eKLR, Veronica Mwongeli Kilonzo v Robert Karume [2003] eKLR, Clement Gitau v GKK [2016] eKLR, Florence Njoki Mwangi v Chege Mbitiru [2014] eKLR, and Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR, held that the award of Ksh.1,2000,000 was manifestly excessive. The court substituted the said award with an award of Ksh.700,000 for pain, suffering and loss of future amenities.
8.Regarding the special damages of Ksh.99,796, the court held that a perusal of the hospital clearance showed that that amount was paid through NHIF, and therefore, awarding the appellant the said sum would amount to unjust enrichment. The court substituted the said award with Ksh.2,500 which the appellant was able to prove. The total award, therefore, was Ksh.491,750 made up as follows: general damages of Ksh.700,000 plus special damages of Ksh.2,500 less 30% contributory negligence.
9.Dissatisfied with the High Court decision, the appellant has preferred this appeal. He faults the learned judge for: overturning the trial court’s finding on liability; upsetting the award of general damages for pain and suffering and loss of amenities of life; making an award of Ksh.700,000 which was too low; setting aside the award for special damages; awarding interest from the date of her judgment; and for failing to apply the correct principles of the law to the matter before her.
10.When the appeal came up for hearing, learned counsel Mr.Kaburu appeared for the appellant, while the respondents were represented by learned counsel Mr. Otieno. Both counsel indicated that they would be relying entirely on the respective client’s written submissions without making any oral highlights.
11.In his written submissions dated 12th October 2020, the appellant contended that the trial court carefully analyzed the appellant’s narration on how the accident occurred and rejected the version tendered by the respondents and thus entered judgment on liability at 100% in favour of the appellant; that the trial court did not misunderstand the evidence on how the accident was caused; and that the learned judge in overturning the findings on liability did not identify any error of principle committed in the trial court’s decision so as to interfere with the said decision.
12.It was further submitted that the failure by the police to indicate in the police abstract report the party to be blamed for the accident ought not to have been a sufficient ground for overturning the decision of the trial court; that a trial court is not bound by expression of opinions of blame in documentary evidence such as police abstracts; that the police abstract report was adduced to merely prove occurrence of the accident and its salient features as per the police records and it cannot be proof of who was or was not to blame for the accident, which is a preserve of the court; and therefore the learned judge erred by basing her decision on, inter alia, the contents of the police abstract report.
13.Further, regarding the 70:30 apportionment of liability in favour of the appellant on the grounds that the 1st respondent was in- charge of a bigger vehicle, it was submitted that the learned judge did not demonstrate how the size of the vehicle or the motorcycle caused or contributed to the accident. In essence, therefore, there was no valid reason established by the learned judge on how the trial court erred in its apportionment of liability to warrant disturbance of learned magistrate’s findings.
14.As regards the general damages for pain, suffering and loss of amenities of life, it was contended that the learned judge failed to demonstrate why the award of Ksh.1,200,000 was excessive in light of the trial court having been referred to three cases with awards of between Ksh.1,200,000 and Ksh.1,300,000, which cases involved fractures of the leg bones with operations and permanent disability; that the case relied upon by the learned judge to overturn the award under this head involved only a fracture to the tibia as opposed to the injuries sustained by the appellant which were fractures of both tibia and fibula and each required operation; and therefore the learned judge misunderstood the injuries suffered by the appellant and applied the wrong authority in her assessment of damages.
15.Regarding the learned judge’s finding that the appellant was not entitled to special damages of Ksh.99,796 paid by the NHIF, it was submitted that as per the decisions in Leli Chaka Ndoro v Maree Ahmed & Another [2017] eKLR, Jackson Onyango Aloo v Jumba Aggrey Idaho & 2 Others [2019] eKLR, a tortfeasor is liable to pay such money to the victim of his negligence. Reliance for this argument was also placed on Winfield & Jolowicz on Tort 10th Edition pages 574 to 581 and Bingham and Berrymans’ Personal Injury and Motor Claims Cases 12th Edition, Butterworths, pages 1088 to 1107.
16.Lastly, on the issue of interest, it was submitted that interest on special damages ought to run from the date of filing suit, and on general damages, from the date of judgment. The High Court was therefore faulted for awarding interest on both special and general damages from the date of judgment till payment in full.
17.On their part, the respondents, through their written submissions dated 4th July 2024, contended that the trial court had no justifiable reasons for failing to consider the clear and uncontradictory evidence of the 1st respondent as to how the accident occurred, that the learned judge was justified in disturbing the trial court’s finding on liability, but should have instead apportioned it equally as per the holding in Lakhamsh v Attorney General [1971] E.A 118, 120; that the learned judge’s apportionment of liability at 70:30 was generous and therefore there is no basis for disturbing it.
18.Regarding the general damages awarded to the appellant, it was submitted that the circumstances under which an appellate court can disturb a trial court’s assessment of damages include, if it established that the trial court took into account an irrelevant factor, or failed to take into account a relevant factor, or that the award was so inordinately low or high that it must be an erroneous estimate of the damage.
19.It was submitted that the Ksh.1,2000,000 awarded by the trial court was manifestly high, going by the injuries sustained by the appellant as well as comparable case law; that the respondents referred the High Court to several authorities involving awards made for comparable injuries which demonstrated that the award made by the trial court was excessive; and that the learned judge based her decision on the correct legal principles and case law in reducing the said award.
20.Lastly, on the issue of the special damages, it was submitted that the Ksh.99,796 was paid by the NHIF, a statutory fund, and not by the appellant. Therefore, to award the appellant any amount paid on his behalf from the statutory fund would amount to unjust enrichment of the appellant, who is not legally obliged to refund such recovered amount to the NHIF.
21.The mandate of this Court in a second appeal is to confine itself to matters of law only, unless it is shown that the courts below considered matters they ought not to have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse. See Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR.
22.We have considered the record of appeal, the submissions filed, and the law. This appeal, in our view turns on three issues, namely, whether the learned judge erred in apportioning liability at 70:30 between the appellant and respondents; whether the learned judge erred by assessing the general damages for pain, suffering and loss of amenities downwards; and whether she erred by holding that the appellant was not entitled to special damages of Ksh.99,796.
23.Sections 107 and 108 of the Evidence Act stipulate who bears the burden of proof in a case. It bears repeating that the appellant being the plaintiff in this matter bore the burden to prove his case on a balance of probabilities that the accident was caused as alleged through negligence of the 1st respondent, and as a result, he suffered loss as per the various heads of damages that he claimed. In Treadsetters Tyres Ltd v John Wekesa Wepukhulu [2010] eKLR, Ibrahim, J. (as he then was) cited Charlesworth & Percy on Negligence, 9th Edition at pg. 387 in which it is stated that:
24.It is a fact that the said accident occurred on 20th March 2013 as a result of which the appellant sustained injuries. The appellant testified before the trial court as to how the accident occurred and was cross examined by counsel for the respondents. His version of events on how the accident occurred was countered by the 1st respondent, who testified as DW1. Although it observed that the manner in which the accident occurred and who was to blame was a contested issue, the trial court nonetheless found the version of events as narrated by the appellant to be plausible, and found the respondents 100% liable for the accident. On appeal, the High Court held that since there was no conclusive determination in the police abstract report on who was to blame for the accident, the trial court’s findings of liability could be interfered with. It proceeded to apportion liability at 70:30 in favour of the appellant on the ground that the 1st respondent being in-charge of a bigger vehicle ought to have exercised more care.
25.It is evident from the decision of the trial court that there was no consensus on how the accident occurred. Whereas the appellant stated that the 1st respondent was overlapping when he hit his motorcycle, the 1st respondent averred that it was the appellant who overtook his motor vehicle, and in an attempt to avoid a head on collision with an oncoming motor vehicle, swerved into the 1st respondent’s correct lane and thereby collided with the said motor vehicle. The evidence of both parties was diametrically opposite. This evidence, in our view, required corroboration by other form of evidence. At this juncture, it is important to point out that there was no independent witness who testified as to how the accident occurred. Equally so, the police abstract report presented in court showed that the matter was pending under investigation. It did not assign blame on any of the parties.
26.When confronted with conflicting evidence on how an accident occurred, Spry, V.P in Lakhamshi v Attorney General [1971] EA 118, stated thus:
27.We hold the view that having re-evaluated and assessed the evidence before the trial court and in the absence of any independent evidence on how the accident occurred or evidence from the police based on investigations conducted after the accident, the learned judge ought to have apportioned liability 50:50. We find no basis as to why the 1st respondent should shoulder more liability because he was in-charge of a bigger vehicle. As correctly posited by the appellant in his submissions, the learned judge did not demonstrate in her decision how the size of the vehicle being driven by the 1st respondent caused or contributed to the said accident for the respondents to carry more liability for the same. In the circumstances, therefore, we hold the view that the learned judge relied on the wrong principles of law in apportioning liability at 70:30. We accordingly enter judgment on liability against the appellant and the respondents at 50:50.
28.Turning to the issue of general damages, the parameters under which an appellate court will interfere with an award in general damages were set out in Butt v Khan [1978] eKLR thus:
29.It is trite that the context in which the compensation for the appellant must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. SeeSimon Taveta v Mercy Mutitu Njeru [2014] eKLR. Although the trial court awarded him Ksh.1,200,000 as general damages for pain, suffering and loss of amenities, the High Court after analysing comparable awards made in the past for injuries similar to those of the appellant reduced this sum to Ksh.700,000.
30.Having looked at the decisions relied on by the High Court in arriving at its decision wherein the claimants had suffered injuries almost similar in nature to those sustained by the appellant, we are satisfied that the learned judge was correct in assessing a sum of Ksh.700,000 as sufficient general damages under this head. We are not persuaded that the learned judged relied on the wrong principles of the law or incomparable case law in arriving at her decision. This ground of appeal therefore has no merit.
31.Lastly, on the issue of special damages of Ksh.99,796 paid by the NHIF, we fully agree with the findings of the learned judge that since the sum of Ksh.99,796 was paid through NHIF, awarding the appellant the said sum would amount to unjust enrichment as he did not go out of pocket. Accordingly, this ground of appeal has no merit.
32.The upshot is that this appeal is devoid of any merit, and is accordingly dismissed, save for the issue of liability. We accordingly substitute the 70:30 findings of the High Court on liability with a 50:50 finding as against the appellant and the respondents jointly and severally. For avoidance of doubt, the final award shall be Ksh.351,250 made up as follows:General Damages : Ksh. 700,000Special Damages : Ksh. 2,500: Ksh.702,500Less 50% contributory negligence : Ksh. 351,250=Ksh.351,250
33.Going by the history of this matter and the findings of the courts below, we direct that each party bears its own costs of this appeal.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.D. K. MUSINGA, (P.)JUDGE OF APPEAL...................................J. LESIITJUDGE OF APPEAL...................................ALI-ARONIJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.