Muthamiah Isaac v Leah Wangui Kanyingi [2015] KEHC 213 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  653 OF 2011

MUTHAMIAH ISAAC……………………………………………APPELLANT

VERSUS

LEAH WANGUI KANYINGI ……………....…………………..RESPONDENT

JUDGMENT

1. This judgment follows the consent  setting aside  of the court’s judgment delivered on 30^th April 2015 after it emerged  that  the appellant’s “failure to  file written submissions” was due to  misinformation by the respondent’s  counsel.  This court has  had to reconsider  the appeal a fresh on its merits in order to accord the  appellant an opportunity to ventilate his  grievances, equally taking into account his  submissions dated  23^rd February  2015 and filed in court on  24^th February 2015.
2. The appeal arises from the judgment and decree of Hon P.Ndindika, Principal Magistrate on 11^th January, 2012 in Milimani Chief Magistrates Commercial Court Civil Suit No. 4321 of 2009. The respondent herein, Leah Wangui Kanyingi was involved in a road accident on 23^rd April 2009 while walking along Spine Road, Nairobi. She sustained injuries for which she instituted proceedings in the Chief Magistrate’s Court at Milimani seeking general damages for pain and suffering and special damages of Ksh 58,800.The appellant MUTHAMIAH ISSAC denied the claim stating that the accident was solely caused by the negligence on the part of the respondent. The matter was heard in court and judgment was delivered in favour of the respondent. The court found the appellant 100% liable for the accident and awarded the respondent Ksh 500,000 general damages for pain and suffering. The appellant was aggrieved by the decision and he filed this appeal.
3. The appellant’s memorandum of appeal dated 16^th December 2011, the appellant sets out the following grounds:

1. That the learned trial magistrate erred in law and in fact in finding that the respondent had proved her case on the balance of probability despite the fact that she contradicted her witness , PW3.
2. That the learned trial magistrate erred in law and in fact in assessing liability at 100% as against the appellant without making a specific finding that it was the appellant’s motor vehicle registration number KAU 916 L which knocked down the respondent in the light of the evidence to the contrary.
3. That the learned trial magistrate award of Ksh 500,000 by way of general damages for pain, suffering and loss of amenities is so excessive in the circumstances as to amount to an erroneous estimate of damages suffered by the respondent.

4. The appeal herein was prosecuted by way of written submissions as agreed between both parties.  The three grounds of appeal contained in the Memorandum of Appeal dated 16^th December 2011 challenges   the decision of the trial magistrate both on liability and on quantum.
5. The appellant combined grounds 1 and 2 to cover the issue of liability whereas ground 3 relates to quantum of damages. On liability, it was submitted  by the appellant’s counsel that according  to the respondent’s  own testimony   on page 13 of the record of appeal, the circumstances  as described by the respondent at  lines 22-page 15  are vague and  that the best  that one could gather  from the said testimony is that  the respondent  was crossing  the road infront of the  matatu  from which she had alighted  when the lorry  which  started was at  a high speed  hit her  and that she did not state where the lorry was coming from or whether she had seen it before  starting  to cross the road.  Further, that she jumped backwards on seeing the people in front jump forward.
6.  The appellant’s counsel also recalled  the evidence  as testified  by the police  officer PW3 on behalf of the plaintiff/respondent  who produced  the OB extract  of the material accident  wherein it was recorded    that “…….the pedestrian  was talking  to the driver of the matatu which was  stationery  near Mobil petrol Station  where the  driver of the  lorry overtook  the said matatu  suddenly and the pedestrian panicked and was hit by  the lorry……”  Further, that it was the matatu driver who was hit by the lorry………”  Further that  it was the matatu  driver  who was  charged  and convicted  for the offence of  careless driving  which  raised the question as which motor vehicle  knocked down the plaintiff/respondent.
7. The appellant’s counsel faulted the  trial magistrate  for believing the respondent’s testimony that she  was crossing the road  and that motor vehicle  KAU 916L hit her   and that the contradiction  in the testimonies  of PW1 and PW3 were not  slight  but major  as it caused  doubts  as to how the accident actually occurred.  Further, that no reasons were given by the trial court for finding the appellant 100% liable.  Further, that  from the judgment  of the trial court, it appears  that the respondent  was under  no duty to keep a proper  look out  while crossing  the road   in front of a matatu she had alighted  from.  In the appellant’s view, assuming that was the correct position, then the trial court ought to have apportioned liability between the respondent   and the lorry driver.  The appellant further submitted that even if  the appellant  did not call any evidence in defence, the burden of proving the case still lay on the  respondent  and that the trial magistrate erred in failing to  refer to the conviction of the matatu driver over the same  accident, and that it was  erroneous to find the appellant  liable simply because he  did  not deny ownership of the accident  motor vehicle.
8. In the appellant’s view, the trial  magistrate  should have  made a finding  on the two issues  of whether  the respondent was  crossing the road  when she was hit  and or whether  it was motor vehicle  registration No. KAU 916L which knocked the respondent, which issues  were critical in determining the  issue of  liability  since mere ownership of the motor vehicle  cannot be a  basis for  finding the appellant  100% liable for the accident.  He urged this court    to find that the respondent did not prove her case on liability as to how the accident happened.
9. On quantum, the appellant submitted that the general damages awarded for the injuries sustained by the respondent were manifestly excessive and not commensurate with the injuries sustained.  He relied  on the case of Julius  Kiprotich  Vs Eliud  Mwangi Kihoha  [2008] e KLR  wherein the  plaintiff  sustained   similar  yet more  serious injuries  and was awarded  kshs 350,000/- general damages  for pain and  suffering and loss of  amenities. He maintained that the injuries  sustained by the  respondent were comparable  to  those sustained  by the 3^rd plaintiff  in Neema  Mansukhlal Shah &  Others  V Duncan Linccott Ltd [2004] e KLR  wherein Angawa J awarded  kshs 250,000/- general damages  for pain, suffering  and loss of amenities on  24^th November 2004.  The appellant  also refered the court to the  case of Cecilia Mwangi & Another  V. Ruth  W. Mwangi[1997] e KLR  where  the Court of Appeal  reduced  an award of  shs 450,000 to kshs  300,000; and Joshua  Mwaniki Nduati V Samuel Muchiri  Njuguna {2005] e KLR where the court awarded  kshs 250,000 for fracture  of right  acetabulum  and fractures  of three(3) ribs.  He relied on West (H) & Son Ltd V Shepherd  [1964] AC 326 that awards  must be  reasonable  , moderately assessed  and not excessive.
10. The appellant     prayed that the appeal be allowed, dismissing   the respondent’s suit with costs. 
11. In response and in opposing the appeal, the respondent submitted on three issues:

1. Whether the respondent/plaintiff proved her case on the balance of probability?
2. Whether the appellant was 100% liable   for the accident.
3. Whether the award of kshs 500,000 damage was excessive.

12. On the 1^st issue the respondent submitted that she proved her case according to the required standard. The respondent stated that the occurrence of the accident is not disputed, what is in dispute is how or the manner in which the accident occurred. He her counsel maintained that PW1 testified that she was hit by a lorry registration number KAU 916L when she was crossing the road in the company of many other pedestrians . The respondent submitted that the police record submitted in court was written by someone who was not at the scene when the accident occurred. She alleged that PW3, a police officer, was only called to produce the report, she stated that the officer did not witness the accident, he did not also investigate the incident therefore his evidence could not be relied on. The respondent argued that the only other evidence that would help the court was that of the driver who was not called to testify. The respondent stated that if that driver was to say anything then he would have said that she was standing on the road as pleaded which according to the respondent is not a good reason for hitting the plaintiff. The respondent submitted that a driver owes a much greater responsibility to others on the road especially the pedestrians.
13. On the issue of damages awarded, the respondent submitted that the lower court had the advantage of observing the plaintiff in the witness box, listening to the heated cross examination and interviews of both the plaintiff and the doctor who examined the respondent and in the court’s wisdom the court found Ksh 500,000 was sufficient. The respondent further submitted that the respondent being a young woman of 33 years, a fractured pelvis is a very serious injury and more particularly a woman who as she said is a manual worker her pelvis is everything to her. She therefore prayed that the appeal herein be dismissed with costs.

14. I have carefully perused the record including the lower court pleadings   and the evidence together with the judgment.  I have also perused the written submissions by both parties before this court and in the lower court.
15. I find the issues arising are: 

1. Whether the respondent was crossing the road or talking to the driver of matatu when she was allegedly hit by the lorry which was overtaking the matatu.
2. Whether  it is the lorry  which  hit her and  if so  was the matatu driver  convicted  of careless driving?
3. Whether the trial magistrate should have apportioned liability between the appellant and respondent
4. Whether the quantum of damages awarded was excessive or based on wrong principles of law
5. What orders should the court make
6. Who should bear costs of the appeal?

16. The duty  of the 1^st appellate court  is to reassess, re-evaluate  and re-examine the evidence  and findings  of the trial court  and arrive at  its own independent conclusion  bearing in mind that it  did not  have the  advantage of hearing and seeing the witnesses as they  testified.  This principle was espoused  in the case of Selle  Vs Associated  Motor Boat  Company Ltd (1968) EA 123,126 where sir Clement  De Lestang  stated that:

 “An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court  must consider  the evidence, evaluate  it itself   and draw its  own conclusions  though  in doing so  it should always  bear in mind  that it  neither heard witnesses  and should  make due  allowance in this respect.

However, this court is not bound  necessary  to follow the trial judge’s  findings  of fact  if it appears  either that  he had clearly failed on some  point to take account  of particular  circumstances  or probabilities  materially to estimate   the evidence  or if the  impression  based on the demeanour of a  witness is inconsistent  with the evidence  in the case  generally( Abdul) Hammad  Sarif  v Ali Mohammed  Solan (1955) 22 EACA  270.”

17. I am also conscious in determining  this  appeal of the principle  set out in Mbogo  v Shah  & Another (1968) EA 93  where the court  set out  circumstances  under which  an appellate  court  may interfere with a decision   of  the trial court thus:-

“  I think it is well settled  that  this court  will interfere with the exercise  of discretion by the inferior  court  unless  it is satisfied  that the  decision is clearly  wrong because  it has  acted on matters  on which  it should  not have acted  on or  because it had failed to take  into consideration matters which it should have taken  into account and consideration and in doing so arrived at a wrong conclusion.” See also in Peters v. Sunday Post (1958) E.A. 424 at 429 where it was stated:-

"It is a strong thing for an appellate court to differ from the finding on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion."

18. Applying the above principles and re-examining the record in the lower court, the main issues are whether the respondent, had discharged her burden of proving negligence on the part of appellant and therefore whether she was entitled to a judgment in her favour and the award of general damages of shs 500,000.
19. The occurrence of the accident is not a matter in issue albeit I will return to that later in this analysis. On whether  the respondent  was hit  while crossing  the road or when talking to the matatu driver, the respondent testified  as PW1  that she lived   in Lamu and  on the material date at  6 O’clock she was coming from  work at  Gikomba  to Kayole.  She was hit by a lorry KAU 916L.  She alighted from a matatu which stopped so that they could cross the road.  The matatu at (sic) Spine Road Kayole.  The road was safe they did not finish crossing.  The people who were infront jumped forward.  She jumped backwards.  The lorry that was in high speed hit her.  She stated that she jumped as she had seen the lorry at a speed.  The matatu was aside.  She was hit on her hips and pushed to the front of the matatu by the wheels of the lorry. The driver stopped and took her to Kayole hospital using a taxi.  She also stated that the driver told the doctors in Kayole what had happened.  In cross examination, by Mrs Njuguna the respondent responded that they were crossing the road.  They were  infront of   the matatu which was  stationary besides the road and  that she  was inside  the road  and jumped  because she saw  the lorry  coming.  That she had checked the lorry.  She maintained that if the lorry had not been at speed, she would not have been hit.
20. PW3 NO.77886 P.C. Morris Juma  attached  to Kayole police station  testified   that on 23^rd April  2009 an  accident took place  and he  received instructions  from the  D.T.O. to produce  OB, police abstract  and police file albeit   he denied  being the investigating  officer.  That according to the OB, motor vehicle KAV hit the plaintiff and a P3 was filled while the matter was under investigations.  The witness produced the police abstract, OB report and a statement by the respondent, to the police after the accident.  He also produced the statement recorded by the matatu driver Evans Nyauma Saiti and the statement of one, Samuel who was an occupant of lorry KAU 916L as exhibits.  PW3 further stated that the charge sheet   in the traffic case had no basis and that there was a contradiction.  On cross examination by Mrs Njuguna for the appellant, the police officer confirmed that the OB abstract was written the same day and in re-examination   he stated that the statements were recorded after the OB was filled. The appellant offered no evidence in defence.
21. In his brief  judgment, the trial  magistrate  summarized   the evidence adduced  by the respondent  to the effect  that she was crossing  the road  when she  was knocked  by motor vehicle  registration KAU 916L and  that the defence  relied on  the police  officer’s  evidence  but called no  evidence  to disapprove  what the plaintiff  stated.  He also found that  the ownership of the motor vehicle  was not  denied  and that the respondent had proved her  case on liability and injuries  sustained  and he found  the  appellant  100% liable in negligence and awarded  her kshs  500,000/- general damages.  He also awarded her special damages, with costs of the suit.
22. The question that arises  is whether  the above evidence, on a  balance  of probabilities was suffered to establish  liability against the appellant  at 100% as pronounced  by the trial  magistrates and if not, should  this court  apportion liability  between  the appellant and the respondent  and if so in what proportions? The second question to be answered is whether the award of kshs 500,000/- was commensurate with the injuries sustained.
23. On how the accident occurred, I find  that PW1 was clear  in her evidence  in  chief  and on being cross examined  that she  was crossing  the road, ahead of the matatu she had  alighted  from,  and that  she was with others  who  rushed    ahead  but that as she was trying to cross the road, she saw a lorry emerge  in high speed.  She therefore retreated and by that time the lorry had reached her so it hit her.  The said lorry was overtaking the stationery matatu.  That testimony was consistent with her statement recorded after the accident to the police and as produced in evidence.  The statement  of Evans  Nyauma  Saiti  the driver of   the matatu  was also clear that  the  respondent was crossing the road when the lorry  came from behind  him and  as it  was overtaking him, it  hit her, pushing her against the  matatu KBA 020A.  The occupant  of the lorry  Samuel Maina  also recorded a  statement with the police  and according to him, he saw a matatu  which had stopped   and there was a lady  standing at the driver’s motor vehicle  door then immediately he saw the  woman  down near the lorry’s  rear  side  tyre  and he informed the driver  to stop and he assisted  the lady  to be escorted  to hospital  and later  he went to record  his statement  on 25^th April  2009.   The above statement  was scanty on how the respondent  was hit  and by who but it  does  not state  that the  lorry did  not  hit the  respondent and neither does it say that it is the matatu that hit the respondent. 
24. In any event, this court does not phathom how a stationary matatu could have hit the respondent.  The  irresistable conclusion I make is that   on the evidence  adduced in court, which was  subjected to cross examination, the respondent  was hit by the lorry while  she was  crossing  the road, and  pushed  onto  the stationary matatu.
25. I have also examined the respondent’s exhibit 10 copy of OB extract for the material accident.  The initial  report was made by  telephone and CPL Jane  and PC Kitur who were at the police station proceeded  to the scene  of accident  and on  return they  booked a report  of a serious  road traffic  accident  involving motor vehicle  KBA 020A and  lorry  KAU 916L and a pedestrian Leah Wangui  to the effect that the  pedestrian  was talking to the matatu driver  which was stationary when the  lorry  overtook the matatu and suddenly, the pedestrian  panicked  and  was hit  by the  lorry falling on the matatu and  was  seriously injured.
26. From the police Occurrence Book (OB) report, there is no mention of crossing the road .  It mentions that the respondent was talking to the matatu driver, which repost is similar to the statement made by the lorry occupant.
27. Nonetheless, the report is clear that the lorry hit the respondent pushing her to the matatu as a result of which she sustained serious injuries. on the basis of the above findings I do not agree with the appellant’s  submissions  that the evidence  by the  respondent  was vague  as to which  motor vehicle  hit the  respondent. In addition, albeit the appellant’s  counsel passionately  submitted that   the matatu driver  was charged with  the offence of careless driving  and convicted, there  is no scintilla  of evidence  on record  to point to that  fact.  The OB only shows that PC Kitur was tasked to investigate the accident.  The police abstract issued on 10^th June 2009 showed that the case was pending under investigations. PW3 PC Morris Juma stated in his evidence in chief that what appeared to be a charge sheet in the traffic case file had no basis.  What I gather  from that piece of  evidence  is that  the  PW3 had come  to court  with the  original police  file which  was not produced as  exhibit  and in that file  there was  a draft charge sheet  purporting to charge  the driver of the matatu with  careless driving.  Nonetheless, that evidence was never adduced and the police officer could not link the charge sheet and the statements in the file.
28. Indeed there is no evidence on record of any charge and or conviction of any of the motorists or the respondent with any traffic offence.  The drivers  of the two motor vehicles never testified  and in my view, if the matatu driver had been  charged  with any  offence, nothing prevented   the appellant  from adducing  that evidence, I  therefore  find that  the claim that the  matatu driver  was charged farfetched  and  unsupported  by any evidence  on  record. Section 112 of the Evidence Act  Cap 80 of the Laws of Kenya, provides thus:

 “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

29.          The appellant alleged negligence against the respondent as the cause of the accident and pleaded that:

1. Failing to keep any proper lookout or to have any sufficient regard for her own safety whilst standing on the said road.
2. Failing to pay any or sufficient heed to the presence of the said motor vehicle on the said road.
3. Failing to see the said motor vehicle in sufficient time to avoid the said accident.
4. Standing on the road in the path of the said motor vehicle thus giving its driver no reasonable opportunity of avoiding the said accident.

However, he never testified to prove those allegations and or facts which were within his knowledge and neither did he claim in his defence and prove by evidence that the accident was solely caused by the matatu driver.

30. I also find that from the evidence on record, the respondent was crossing the road when she was hit as that is the evidence that was subjected to cross examination. In my view,  the OB report  that  the respondent  was talking  to the matatu driver  when  she  was hit must  have been obtained  from the lorry occupants  who, regrettably did not  testify  in court.  Their statements therefore remain allegations without proof as their demeanor could not be assessed.  The case largely turns on an assessment on recorded evidence since the issue of credibility of those two crucial witnesses did not arise.  I also find that there were no material contradictions between the evidence of PW1 and PW3.  PW1 described what she witnessed at the scene of accident.  PW3 was not an independent eye witness.  He was not even an investigating officer.  He only attended court to produce records which were in the police file which is a public record of   what others stated.  He could not have changed the story stated therein.  I find no material contradiction capable of challenging the evidence on how the accident occurred. Nonetheless, as no proceedings of the  purported traffic  case were produced, which could have been helpful  to the court  below  and this court  as well, but not necessary  essential  to the respondent this being a civil case, I find  that in the absence    of any cogent  evidence  to the contrary,  the appellant’s  submissions  on that issue, was not supported  by pleadings  or evidence, and therefore it remained a  by the way issue. 
31. I also find that  a party cannot  build their  case on  answers  gathered  in cross examination  or evidence of the adverse  party  unless that  other evidence fully supports  their side of the story.
32. The next question on liability therefore, is, in the circumstances of this case, who was to blame for the accident?  By the respondent’s  own admission  on oath, she was crossing the  road  infront of  a stationary matatu when  the appellant’s lorry emerged  while  overtaking the matatu, hit her  before she could  cross and  pushed  her against  the body of  the matatu.  The accident occurred at or about 6pm.  The  respondent testified  that the road was  safe so  they started  crossing  but did not  finish crossing  the road and that those infront of her  jumped forward  while she jumped  backward and a speeding  lorry hit her.
33. The weather and condition of the road was not stated whether it was wet, at a corner or a stage etc.  It is also not clear whether the weather was clear or raining etc.  The respondent  does not  state SUCCINCTLY in her testimony that she  first checked  the road  to ensure that  there was no oncoming vehicle  before she  embarked  on crossing  the road.  If she had done so, in my view, she could have seen an oncoming lorry and would have waited until it had passed before she crossed.
34. It is trite law that it is upon a party who alleges, to prove. in this case, albeit  the appellant did not  adduce any evidence  to deny the  manner in which the accident occurred, the primary duty of proving  liability is on the  respondent  that the manner in which  the accident  took place  she could not  have contributed  to its  occurrence.  Crossing the road infront of a stationary vehicle is a very risky affair.  There was no guarantee that there would be no oncoming vehicle attempting to overtake the stationary matatu at that material time.
35. On the other hand, the appellant having pleaded contributory negligence on the part of the respondent, it was upon them to prove any of those acts of contributory negligence.  They however offered no evidence.  There was therefore no denial that the lorry was in high speed and it did not take any avoiding act.  The lorry driver was approaching   a stationary matatu, it ought to have slowed down and been on the lookout.  He did not.  In the premise, I find that both the respondent and appellant were at fault.  I agree with the  appellant’s counsel’s  submissions that the  trial magistrate erred in finding that  since the appellant did not  testify  in the case then the respondent proved  her case on a balance of  probability and  therefore they were 100% liable. I however disagree with the appellant’s contention that the finding on liability   was based on the fact of the defence not denying ownership of the motor vehicle registration KAU 916L.  In my view, ownership of an accident motor vehicle was only one aspect that had to be proved before the court could on the evidence determine how the accident occurred. Indeed, without proof of ownership of the accident motor vehicle, even if the driver thereof was liable in negligence, no court of law could have found liability against the appellant.
36. In my assessment and re-evaluation of the respondent’s evidence, she was an adult of sound mind.  She owed a duty of care to her own safety.  She  darted into  the road  infront of an obstructing matatu before ensuring  that it was safe  to do so that is why she  jumped backward  to avoid being  hit but it  was too late for the  lorry driver  who was already overtaking  the matatu.  As a consequence, she was hit and pushed onto the matatu.  In such circumstances the appellant cannot be wholly to blame for the accidents since the respondent saw the lorry after she started crossing.  She endangered her own safety.
37. My findings are  based on the fact that there  was no evidence  that the  respondent, upon alighting  from the  matatu, paused on the side of the  road before  beginning to cross, and  after ensuring  that there  was no  oncoming vehicle.   On the other hand, as I have stated before, the lorry driver was equally under a duty, when driving a lethal   weapon on the road, to keep proper lookout, and take reasonable precautions in the use of the vehicle.  Failure to observe such precautions will give rise to a cause of action to any person who suffers damages as a result.
38. In Heaven V Pender [1883] II QB Brett M.R. stated at page 507.

“ Actionable  negligence  consists in the neglect  of the use of ordinary care or  skill towards  a person whom  ordinary care  an skill, by which neglect  the plaintiff, without  contributory  negligence on his own part  has suffered  injury.”

39. Emukule J in Fracah Njeri Grace V Isaiah Ngararika Muindi & Another  [2012] e KLR  stated:

“A person, therefore, who drives a vehicle on a Highway, must always exercise not only care but also skill.  He must observe the ordinary rules of the road unless a deviation from such rules is necessary to avoid an accident.  He must keep a proper lookout for pedestrians on other road users.  He  must, where  expedient, give warnings  of his  approach, as at  cross roads, even if  another user of the road is  negligence, he must  exercise  due skill in trying   to avoid the  consequences  of  that negligence,  Failure on the part of  the driver  in any such matter would be breach of duty on his part  and  he would be liable for the damage  caused by his negligence.  What would  amount to breach of duty will always depend  upon the circumstances  of the case and d there is no rule limiting the degree of  care that is necessary  to exercise.”

40. There is no evidence that the  lorry driver saw the respondent or slowed down or took an avoiding action.  He did not do anything to avoid the accident.  There was   no independent eye witness to the occurrence of the  material accident and who testified on the same.  In the premise, I find both the respondent and driver of the lorry to blame for the accident and apportion that blame in equal proportions of 50%:50%.
41. In so apportioning  the equal liability  on both parties, I am persuaded on the  evidence  adduced   by the respondent  that there was a  sufficiently high degree of probability  that, for  the acts of  omission and  commission by the respondent and  the lorry driver,  the accident would  have been avoided  or prevented.
42. If both the respondent  and lorry  driver  were exercising due care and  attention  while  on the road, there was  no reason for  the pedestrian to jump  backwards after seeing  the oncoming vehicle (lorry)  and similarly, there was no reason the lorry driver  hit her.  They therefore must share the blame equally.
43. In the end, I find that the respondent was hit by the appellant’s lorry while she was crossing the road, and that she failed to take care of her own safety when she dashed into the road ahead of a stationary matatu instead of posing and checking to ensure that there was no oncoming vehicle before starting to cross the road. To that extent, the respondent equally contributed to the occurrence of the accident which contribution I assess at 50% and proceed to apportion liability between the appellant and respondent in the ratio of 50:50.
44. On quantum,   It is trite law   that an appellate court can only interfere  with an award  of damages where the award  was either  based on wrong principles or is so inordinately high  or low as  to be a wholly  an erroneous  estimate ( See KEMFRO LIMITED  T/A MERU EXPRESS  SERVICES VS LUBIA AND ANOTHER [1987] KLR 30).
45. Ordinarily an award of general damages is an exercise of judicial discretion which is based on the injuries sustained and comparable awards made in the past for comparable injuries. In Simon Taveta v Mercy Mutitu Njeru  civil Appeal 26 of 2013 [2014] eKLR the Court of Appeal observed thus:

“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

46. In the instant case the lower court awarded the respondent Ksh 500,000 as general damages for pain and suffering. Dr Okere who testified for the respondent/plaintiff as PW2 gave his testimony and also produced a medical report dated 21^stFebruary 2011. In that report, he stated that the respondent sustained the following injuries as result of the accident.

1. Fracture of the right superior public ramus
2. Fracture of the right inferior pubic  ramus
3. Blunt injury on the left leg.

47. The respondent supported the award of kshs 500,000/- made by the trial magistrate whereas the appellant contend that the award was exaggerated   and manifestly excessive.  The appellant contended  that the injuries  in  the Julius Kiprotich case (supra) were  more  serious in that besides fracture  of the  pelvic bone, sustained  severe injury to the  abdomen  resulting into peritoneal  haematoma and  a deep cut  wound  on the right  parietal region of the scalp and that he was  left with  a prominent  scar measuring 4cm x ½ cm  on the right parietal region. The appellant also complained  that the  trial magistrate  did not  make any reference  to the  authority  cited by the appellant  of Neelan Mansukhlal Shah & Others V Duncan  Linscott Ltd maintaining that the injuries  sustained  by the third plaintiff were fairly  comparable  to those suffered by the  plaintiff in the instant  case  and that the plaintiff in that case was awarded  kshs  250,000/- and  which they consider would  have been  appropriate, based  on other  decisions  of Cecilia W.Mwangi &  Another  V Ruth W. Mwangi [1997] e KLR  and Joshua  Mwaniki Nduati V Samuel Muchiri  Njuguna [2005] e KLR  and the principles  espoused   in the Cecilia case  citing with approval West (H)  & Sons Ltd V Shephard  [1964] AC 326 that money  cannot review  physical frame that  has been battered  and judges and courts  can only award  reasonable  compensation.
48. I have carefully  considered the above  submissions  vis avis  the pleadings  in  the plaint, oral and documentary  evidence adduced by the respondent  in the court below  and the  submissions  by both parties in the  court  below and  authorities  relied  on. The respondent pleaded that she sustained injuries involving “Fracture of pubic ramii further and better particulars to be adduced at the hearing hereof.”  In her testimony she testified that...  “I was hit on the hips.  I was pushed to the front of the matatu………There was dislocation of hip and pelvic bone fractured……  I was placed on a catheter and I did bandage (sic) leg.  I spent 3 weeks in Naivasha.
49. Treatment  notes from Kenyatta National Hospital  showed fracture  of superior and inferior  pubic ramii,  other treatment  notes  from  Lakeview Maternity and Nursing  Home  show the fracture  of the  right  pubic bone .  The P3 shows fracture of right pubic bone.  The first medical attention received at Kayole Hospital Ltd showed fracture of pubic Ramii, right hip with a displaced joint.
50. The medical report by Dr. Cypranus  Okoth Okere made on 21^st February 2011 stated that   she had sustained  fracture  of the right  superior  pubic ramus, fracture  of the right inferior pubic  pamus and blunt injury on the left leg. She complained of pain in the right pelvis and numbness on the left thigh.  She had tenderness in the left hip on flexion, painful stimulus reduced on upper leg.  She needed physiotherapy and medication for about a year. In the preparation of  the medical report  Dr. Okere  used the  discharge  summaries, P3 form, Xray films  and report and  medical report  by Dr. Moses Kinuthia.
51. In my view the injuries sustained  by the respondent  were consistent  with the  discharge summaries  and  treatment  notes and medical report by  Dr. Okere  who only confirmed  the injuries  2 years  later after the accident  and after  filing of the suit.  In the case of Julius Kiprotich  (supra)  the plaintiff sustained:

1. Fracture  of the pelvic bone
2. Severe internal abdominal injuries 
3. Head injuries
4. Loss of consciousness.
5. Bruises on both knees. He was admitted for 1 month and 4 days.  He left with a distended abdomen as a result of bleeding into the peritoneum.  The court awarded   him kshs 450,000 on 31^st May 2006. 

52. The appellant had submitted  the case of  Neelan Mansukhal shah & Others  (Supra) where  the 3^rd plaintiff sustained

1. Fractures of pubic bones
2. Cerebral concussion for
3. Fracture   of six ribs  on left side of chest
4. Fracture of ………..and ischio pubic rami on right and Multiple bruises on forehead.
5. Injury to right elbow.
6. Injury  to right  foot
7. Injury on left hand.  He was awarded kshs 250,000 general damages by Angawa J on 24^th November 2004.

53. The trial  magistrate  in his judgment  found that the plaintiff had fracture of hip  and pelvic  bones  and  relying on the case of Julius Kiprotic  V Eliud  Mwango, he awarded  kshs  500,000 as damages.
54. From the above exposition, I am  inclined  to agree with the  submissions  by  counsel for the appellant  that indeed, the trial  magistrate  did not  even refer to the submissions and authority relied  upon by the appellant, in arriving  at the figure of kshs  500,000/- general  damages  in favour of the respondent . In addition, the trial magistrate’s did not even bother to compare the two decisions and neither did he state the principles upon which he arrived at the award that he made. It is for those reasons that this court would be entitled to interfere with the award made by the trial court.
55. I have carefully examined the evidence by the plaintiff and the submissions and authorities relied on by both parties.  I have also examined the pleadings and the medical records produced in court of the respondent’s injuries. I am  in agreement  with counsel  for the appellant that the  injuries  sustained by the respondent  and the after effects were not as  serious as those sustained by the plaintiffs  in the two cited  cases. However, I am also mindful of the fact that  this case was  decided  on     7^th November  2011  whereas those two decisions referred to were made on 31^st May 2006 and  24^th November 2004 respectively.
56. That being  the case, in making  an award, the court  was not necessarily bound by those decisions  which  were made 5-7 years earlier  owing to  inflationary trends  and  the fact that no two cases  can  be the same. An award of damages is a matter of the trial court’s decision which discretion has to be exercised judicially and with a reason.  The award should not be too inordinately high or too low.  It should also be commensurate to the injuries suffered.  In addition, it is not meant to enrich the claimant but to restore him to the position in which he was before the injuries were suffered.  Further, awards on past decisions are more guides and each case has to depend on its own merits and facts.  Where such past awards  are  taken into account as guides, then  the date  when they  were decided  should be  considered  taking into account either  the depreciating  or appreciating  power of the Kenya  shilling  as the case may be.  Applying the above principles, there  was no evidence  that the injuries  sustained by the respondent  would have a debilitating  long term effect and neither  were they  as severe as those sustained  by the plaintiff in the cites cases.  Although awards  vary  from court  to court  each judge  exercising  its own unfettered discretion, I find  that the respondent proposal for  shs 500,00  was not supported  in the circumstances  whereas  the appellant’s proposals  for kshs 250,000 was in my view  too low in the premises  bearing in mind the  time lapse  since those  cited decisions  ‘s award as he did so without  taking into account the submissions   by the other party. And doing the  best I can, and  taking into account  the principles  for awarding  of damages, and  applying those  principles  to this case, I would  award  the respondent  kshs 400,000 general damages  for pain and suffering.  This figure would be subject to 50% contribution leaving a balance of kshs 200,000/-. I would not interfere with special damages which were proven.
57. In the end, I allow this  appeal, set aside the judgment  of the trial court  both on liability and quantum of general damages  and substitute  thereof   with judgment  on liability  to be shared  equally between the respondent  and appellant  and an award  of kshs  400,000/- general damages  in favour of the respondent subject to 50% contribution.
58. I also award the appellant half the costs of this appeal.  The respondent shall have costs of the suit in the court below plus interest at court rates.

Summary

1. Liability – 50%: 50%
2. Quantum -kshs 400,000 less 50% contribution.
3. ½ costs of the appeal to the appellant.
4. Costs of the suit   in the court below to the respondent.
5. Special damages as awarded in the trial court shs 58,800.
6. Interest on general damages   at court rates from date of judgment in the lower court until payment in full.
7. Interest on special damages at court rates from date of filing suit in the in the lower court until payment in full.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 23^rd day of October 2015.

R.E.ABURILI

JUDGE