Njogu & another v Simiyu (Civil Appeal E066 of 2021) [2022] KEHC 14199 (KLR) (19 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 14199 (KLR)
Republic of Kenya
Civil Appeal E066 of 2021
DK Kemei, J
October 19, 2022
Between
Martin Njogu
1st Appellant
Carworld Japan Kenya
2nd Appellant
and
Jeremiah Simiyu
Respondent
(Being an Appeal against the judgement and decree of the Senior Resident Magistrate in Bungoma by the Honourable A. Odawo delivered on 1st November, 2021 in Bungoma CMCC No. 90 of 2021)
Judgment
Background
1.This appeal is against lability and theaward of quantum by the trial court in respect of an accident involving motor vehicle registration number KDA 274E and motor cycle registration number KMER 566Z which occurred on December 29, 2020 at Nangeni Area along Bungoma-Malaba road while the respondent was lawfully aboard the motor cycle reg. no. KMER 566Z as a pillion passenger and that motor vehicle registration number KDA 274E driven by the 1st appellant was negligently driven, controlled and/or managed causing it to hit the motor cycle and knock down the respondent thereby occasioning him injuries. The respondent prayed for orders against both the appellants for general and special damages as well as interest and costs of the suit.
2.Upon service of pleadings, the appellants entered appearance and filed a defence seeking the dismissal of the respondent’s suit with costs and denied the occurrence of the alleged accident, injuries alleged sustained and being guilty of the alleged negligence and in the alternative attributed the injuries to the negligence of the respondent and the motor cycle rider.
3.The matter proceeded to full hearing. According to PW1, Dr. Joseph Sokobe, a doctor based at Eldoret Hospital, his evidence is that on January 15, 2021 he examined the respondent, who had been involved in an accident on 29th December 2020, and noted that he sustained injuries which were treated at Domiano Mission Hospital. He qualified the degree of the injuries as grievous harm. He also added that the injuries sustained comprised of severe head injury resulting in incoherent speech and which affected the use of lower limb. It was his view that the respondent required physiotherapy at Kshs. 100,000/= and that the patient had a permanent disability of 10%. He produced the relevant P3 form filled on January 15, 2021 as PE Ex 1; the medical report dated January 15, 2021 as PE Ex 2a and receipt of his fees Kshs. 6,000/= as PE 2b. On cross-examination, he told the court that he did not examine the respondent on the date of the road accident but examined him two (2) weeks after. He noted that it was possible that the respondent was not wearing a helmet as per the injuries sustained.
4.PW2, No. 92067 PC Godfrey Okeyo, told the court that he is attached at the traffic department Bungoma Traffic Base and that the accident that occurred involved a motorcycle registration number KMER 566Z and a Vanguard Motor Vehicle registration number KDA 274E. The respondent was the pillion passenger who sustained injuries. He produced the abstract as PE Ex3. On cross-examination, he told the court that he was not the investigating officer nor did he visit the scene of the road accident. He pointed out that the investigation officer is on leave and his testimony is limited to the contents of the police abstract and that he did not look at the police file. He further stated that the investigations are still pending.
5.According to PW3, Earnest Malala, is that he is a resident of Kanduyi Makutano and that on 29th December, 2020 while on his way from Mayanja he saw a vehicle registration number KDA 274E, overtaking speedily and it was following the motor cycle registration number KMER 566Z. H e saw the motor vehicle knocking the motor cycle that had a pillion passage and they fell. To avoid hitting the individuals he. swerved and ended up in a ditch. He quickly rushed them to the St. Domiano Hospital. He told the court that he was from Mayanja heading to Kimaeti on the left side while the motor cycle was also on the left side on similar route with the motor vehicle. The motor cycle was hit from the back and that he blamed the driver of the motor vehicle for driving speedily. On cross-examination, he told the court that he does not know the motor cycle rider or pillion passenger and that the driver of the motor vehicle registration number KDA 274E overtook him and as he tried to get back on the left lane, he hit the motor cycle. He reiterated that the motor cycle was not coming from the junction and that the motor cycle rider had on a helmet and reflector jacket but the pillion passenger only had the reflector jacket. On re-examination, he told the court that there was no junction at the scene of the accident and that the motor vehicle was driven speedily, and that the driver ended up hitting the motor cycle from behind and the lack of the pillion passenger to wear a helmet was not the cause of the accident.
6.PW4, Jeremiah Simiyu, told the court that on 29th December, 2020 while from Mayanja heading toward Kimaeti on a motor cycle as a pillion passenger, a motor vehicle from behind hit him and he lost consciousness on the spot. He told the court that he could not remember the registration number. On regaining consciousness, after 15 days, he found himself at a certain hospital which he later came to know as St. Domiano Hospital. He stated that he sustained injuries to his ribs, head and left leg. He produced the bundle of receipts indicating payment at St. Domiano Hospital as Receipt for Kshs. 35,000/= PEX 6a; Receipt for Kshs. 5,000/= PEX 6b; Receipt for Kshs. 3,000/= PEX 6c. The official search at KRA on ownership of the motor vehicle was produced as PEX 7a and the receipt for Ksh. 550 paid for the search PEX 7b. He produced the demand letter as PEX 8a and certificate of postage as PEX 8b (for Kshs. 200/=). He blamed the driver of the motor vehicle for hitting him from the back and sought for compensation and costs. On cross-examination, he told the court that they were not from any junction and that he had on a reflective jacket. He further elaborated that he boarded the motor cycle at 3.00 pm and was on the road for only 30 minutes before the accident took place.
7.PW5, Trelix Sibonja, told the court that he works as a clinical officer at St. Domiano Hospital and recalled that on 29th December, 2020 the respondent was brought in with injuries sustained from a motor vehicle and motor cycle accident. On examination he observed that he struggled to talk and had sustained injuries as follows: left lower limb paralysis; suspected head injury and brain contusion. He produced the report as PEX2.
8.At the close of the respondent’s case, the appellants proceeded to tender in their evidence. According to DW1, No. 72685 Corporal Bernard Kemboi, he is attached to Bungoma Traffic Base and that on 29th December, 2020 at 4.30 pm an accident report was made and recorded as OB 61/29/2020 and that the same was attended to by Sergeant Kipyego but who was on transfer. He told the court that the accident occurred at 4.30 pm along Bungoma-Malaba road involving motor vehicle registration number KBA 274E, Toyota and motor cycle KMER 566C TVS Star. According to him, the accident occurred along Mayanja shopping centre and that the vehicle’s driver one Martin Gitau Njogu was driving from Bungoma heading to Malaba. On reaching the point of the accident the motor cycle rider with one pillion passenger without due cause joined the road and in the process rammed onto the joint left side of the vehicle. Apparently, the rider had joined the road from the left side from Malaba direction. An abstract was prepared and the motor cycle rider was blamed for the road accident. He added that the matter was still pending as it was under investigation and that nobody was charged. On cross-examination, he told the court that the motor cyclist was to blame for the road accident and that the same conclusion can be arrived at upon conclusion of investigations. He reiterated that the investigations were still pending. He told the court that he lacked a sketch map of the scene of accident and could not tell who was to blame for the accident and that he did not have the police file. He further confirmed that he was not the investigating officer herein. On re-examination, he told the court that it was premature to state if the driver, motor cycle rider were to blame but that he was certain that the pillion passenger couldn’t be blamed for the traffic accident. He also stated that the left side of the vehicle could have been damaged if the motorcycle had joined the road from the left side.
9.DW2, Martin Gitau Njogu, told the court that he wished to have his recorded witness statement dated 21st July, 2021 adopted as evidence in chief. He blamed the motorcycle for the road traffic accident and that he was doing 40 km per hour. He told the court that there was a trailer parked beside the road and that the motor cycle was coming from a feeder road and that the rider got onto the main road without checking. He stated that he was issued with an abstract and that the motor cycle rider was blamed for the road accident. He produced the inspection report as DEX 3 and copy of his driving licence as DEX 4. On cross-examination, he told the court that indeed the road traffic accident occurred between his motor vehicle and the subject motor cycle. He stated that there was a trailer which was stationery on the left side of the road from where the motor cycle rider emerged and that the road in that area was straight. He told the court that both of them were heading towards the same direction and that it was the passenger who hit his motor vehicle. He told the court that it is not true that the matter was still pending under investigations with reference to DEX 1. He further stated that his left side front mirror and front bumper were damaged and that it was not possible to hit the cycle from the back. He finally added that the rider would have damaged the left front door if he had got onto the road from the left.
10.On re-examination, he told the court that the PEX 3 does not show that he was to blame for the road traffic accident and that DE X1 shows that the motor cycle rider was on the wrong for the road traffic accident. He told the court that he was on the left side of the road from Bungoma-Malaba and that the motor cycle rider got from the left side, a feeder road and got onto the road without checking and hit his vehicle.
11.DW3, Seph Ngina Mutua, told the court that she is an investigator from Revelation Insurance Services Limited and was instructed by the insurance company to investigate the accident. She told the court that she visited the scene of the accident and met with DW2 who demonstrated the direction of both the vehicle and the motor cycle were heading at the time of the accident. She later proceeded to Bungoma Police station where she was granted a copy of the abstract and on checking the DE X1, she noted that the cyclist was to blame for the road accident. She prepared a report which she produced in court as DEX 5. From her investigations she blamed the cyclist for the road accident as he had joined the main road without prior confirmation on whether the same was clear.
12.On cross-examination, she told the court that she prepared the DEX 5 and confirmed that nowhere in the report did she indicate that she did conduct the investigations and that she was not present at the time of the accident. At the time she was conducting her investigations the relevant police investigations were ongoing and that she was not certain whether the same were concluded. She confirmed that she never saw the sketch map of the accident scene and that the PEX 3 was issued on 28th January, 2021 while the DE X1 was issued on 30th December, 2021. She also confirmed that the bonnet was damaged by the pillion passenger after being thrown and not due to the impact of the traffic accident.
13.On re-examination she told the court that she did not see any notice of intended prosecution and that the PEX 3 shows no mention on whether the driver was to blame for the accident.
14.At the close of the appellants case, parties filed and exchanged their submissions. The trial court issued a judgment in favour of the respondent as follows: liability-100%; general damages-Kshs. 1, 500,000/=; special damages-Kshs. 49,750/=, future medical expenses-Kshs. 100,000/=. The trial court also awarded the respondent costs of the suit and interest at court rates.
15.Aggrieved by the judgment of the trial court, the appellant filed its memorandum of appeal dated 2nd November, 2021. The grounds are essentially that:i.THAT the learned trial magistrate erred in law in apportioning liability against the appellants at 100% in total disregard of the evidence adduced and the appellants submissions.ii.THAT the learned trial magistrate erred in law in finding that the appellants were to blame for the accident despite the fact that the police blamed the rider of the motorcycle on which the respondent was a pillion passenger, wholly for being negligent.iii.THAT the learned trial magistrate erred in law and in fact in finding that the appellants were to blame for failing to take-out third-party proceedings against the rider of the motorcycle yet the evidence on record was clear on who was to blame.iv.THAT the learned trial magistrate erred in law and in fact in awarding damages that are inordinately high and excessive in the circumstances occasioning miscarriage of justice.v.THAT the learned trial magistrate grossly misdirected herself in treating the evidence and the submissions before her and consequently coming to a wrong conclusion on the same.
16.By consent of the parties, the appeal was canvassed by way of written submissions. Both parties duly filed and exchanged submissions.
17.Vide submissions dated June 7, 2022 the appellants on liability submitted that the respondent did not fully discharge his burden of proof to warrant the 100% liability on the part of the appellants. The evidence adduced failed to demonstrate on a balance of probabilities that it was the appellants who were to blame for the accident and that the eye witness never recorded any statement with the police. Counsel placed reliance on the cases of Michael Kariuki Muhu vs Charles Wachira Kariuki & Another (2015) eKLR; Helle Sejer Hansen & amp; 2 others vs Julius Kakungi Mukavi (2020) eKLR. Phanice Nyabate Oyiengo vs Geoffrey Kiplagat Korir & amp; 2 others (2017) eKLR. It was submitted that it is trite law that negligence needs to be proved by way of evidence and that no evidence was tendered to support the respondent’s claim that the appellants were negligent.
18.On quantum, it was submitted that the appellate court has the discretion to interfere with an award of damages if the same is inordinately high or low as to represent an entirely erroneous estimate based on some wrong principle or a misapprehension of evidence. Counsel relied on the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another V Lubia & Another (No. 2) (1985) eKLR; Prem Gupta & another vs Grimley Otieno & 3 others (2018) eKLR and Gerald Ireri Harrison & 2 others vs. Danson Ngari (2018) eKLR.
19.The respondent vide submissions dated July 26, 2022 submitted on liability and quantum. On liability, it was submitted that it is clear the respondent was a pillion passenger and he was hit from behind by the appellants’ vehicle and that the appellants were categorical that the respondent was not to blame for the accident. Counsel relied on the case of Baro Ngo Sevelius Yophen vs Jared Ndemo (2020) eKLR. It was submitted that both PW3 and PW4 were instructive on how the accident occurred and the evidence of DW 1 clearly indicating that the investigations were still pending is misleading. It was submitted that this court ought to disregard the report of DW 3 produced as DEX 5 as she was neither there when the accident occurred and that she never interviewed both the rider and the respondent or the eye witness for purposes of establishing her report. Counsel placed reliance on the case of Mwaka Mganza Tsanje & Anor vs Badar Hardware Ltd (2019) eKLR and Haji Ashraf & Another vs. Sidi Masha Kalama & Another (2021) eKLR.
20.It was submitted that the law is categorical that no orders can be made against a person who is not a party to a suit and relied on Order 1 Rule 15 of the Civil Procedure Rules thus it is incumbent upon the appellants herein to take out third party proceedings against the rider of the motorcycle if at all it was their belief that he was to be blamed for the accident and/or contributed to the same but they failed to do so. Counsel relied on the case of Joseph Seremani & Julius Otachi vs Stella Bosibori Moreka (2019) eKLR.
21.On quantum, the respondent submitted that it is not in dispute that he sustained injuries as a result of the said accident which were corroborated by PW1 and PW5 and that he has a permanent disability of 10%. With the same injuries and guided by the case of Joseph Gichuhi Thomas vs KG (minor suing through his mother and next friend SNN) 2018 eKLR counsel noted that the award by the trial magistrate was not excessive and inordinately high and was not premised on wrong principles on law and that the same ought not to be interfered with. Counsel urged this court to find the appeal without merit and have the same dismissed with costs to the respondents.
22.I have considered the grounds of appeal, the submissions and the evidence adduced before the trial magistrate. This is a 1st appeal and as such the role of the court is to re-evaluate, re-assess and re-analyze the evidence which was tendered before the trial court and arrive at its own independent conclusions. This has been stated in various authorities and in Abok James Odera Trading as Odera & Associates v John Patrick Muchira & Company Advocates ( 2013) e KLR, the Court of Appeal re-stated the duty of the first appellate court which is that Court has to re-evaluate the evidence and come up with its own finding and also determine whether the conclusions reached by the trial court are to stand or not, and give reasons either way.
23.Upon consideration of the lower court record, the submissions by the parties, I find the following issues arise for determination namely: -i.Whether the trial court was right in its finding on liability.ii.Whether the trial court applied wrong principles in the award of damages.
Liability
24.I will begin with the question of liability. The respondent alleged that the 1st appellant drove his vehicle negligently and knocked him down causing him to sustain injuries. In his evidence, he did give a detailed account of how the accident occurred. He told the court that on December 29, 2020 while from Mayanja heading toward Kimaeti on a motor cycle as a pillion passenger a motor vehicle from behind hit him and he lost consciousness on the spot. He told the court that he could not remember the registration number. On regaining consciousness, after 15 days, he noted that he was at a hospital which he later came to know as St. Domiano Hospital. He told the court that he sustained injuries to his ribs, head and left leg. He refuted the claims that the 1st appellant was driving at 40 Km per hour.
25.On his part, the appellants blamed the motorcycle rider for causing the accident and the same was corroborated by DW 3. He told the court that he blamed the motorcycle for the road traffic accident and that he was doing 40 km per hour. He stated that there was a trailer parked beside the road and that the motor cycle was coming from a feeder road and got onto the main road without checking. He stated that he was issued with an abstract and that the motor cycle rider was blamed for the road accident.
26.The respondent called a Police Officer (PW2) who tendered the Police Abstract but the said officer was not the one Investigating and he failed to produce any sketch plans. He was not at the scene of the accident to give evidence as an eye witness. While he tendered the Police Abstract (PE 3) which did not indicate that the motor vehicle was to blame, that evidence in my view did not add any probative value to the respondent’s case basically because it was hearsay. The appellants on the other hand called up a police officer (DW1)who tendered the Police Abstract but the said officer was not the one Investigating and failed to produce any sketch maps. He was not at the scene of the accident to give evidence as an eye witness. While he tendered the Police Abstract (DEX 1) which did not indicate that the motor vehicle or the motor cycle was to blame, as investigations were still ongoing, he also did not help matters as he was not the one who had investigated the matter.
27.It was the evidence of PW 3 that on December 29, 2020 while on his way from Mayanja he saw a vehicle registration number KDA 274E, overtaking speedily and it was following the motor cycle registration number KMER 566Z. He saw the motor vehicle knock the motor cycle that had a pillion passage and they fell. To avoid hitting the individuals, he swerved and ended up on a ditch. He quickly rushed them to the St. Domiano Hospital. He told the court that he was from Mayanja heading to Kimaeti on the left side while the motor cycle was also on the left side on similar route with the motor vehicle. He stated that the motor cycle was hit from the back and that he blamed the driver of the motor vehicle for driving speedily.
28.The standard of proof required in traffic offences is that beyond reasonable doubt unlike in civil cases which is on a balance of probabilities. In my view, this was not one of those instances where the trial court had two conflicting versions of the accident and no reasonable means of untying the tie. The evidence of PW3, who was an eye witness at the scene of accident will hold cognizance compared to the testimony of PW 1 and DW 1 who tendered in before the trial court hearsay evidence. The evidence adduced by the appellants did not cast doubt on the eye witness status of PW3 for this court to be sceptical about the same. Pw3 had no interest as he was a motorist and good Samaritan who upon witnessing the accident went ahead to assist the injured pillion passenger to hospital for treatment.
29.In Palace Investments Ltd v Geoffrey Kariuki Mwenda and Another NRB CA Civil Appeal No. 127 of 2007 [2007] eKLR, the Court of Appeal adopted the dictum of Denning J., in Miller v Minister of Pensions [1947] 2 All ER 372 discussing that burden of proof as follows, as cited by Majanja J in JRS Group Limited v Kennedy Odhiambo Andwak [2016] eKLR:
30.At this juncture, I find that the trial court erred by resorting to one of those instances where the court had two conflicting versions of the accident and no reasonable means of untying the tie as the same was not the case in this circumstance. The evidence of PW3 did shed the light on who was responsible for the accident that occurred on December 29, 2020 and that the same corroborated the evidence of PW4.
31.In the present scenario, I uphold the decision of the trial court on liability and find that the respondent did discharge the burden of proof on the allegations of negligence against the appellant. The appellants failed to cast doubt upon the respondent’s case on a balance of probabilities and as such, were liable 100% for the accident that led to the injuries that the respondent sustained. Further, the appellants seemed to blame the rider for the accident yet they did not see it fit to enjoin him into the proceedings by taking out third party proceedings. The respondent was a pillion passenger and had no control in the manner in which the motorcycle or vehicle were controlled and or managed and hence no contributory negligence could be attributed to him. The evidence of Pw3 who was an eye witness placed blame upon the appellants for the accident. The appellants did not manage to wriggle out of blame and were properly found liable at 100% for the accident. It is immaterial that the traffic accident is still pending investigations since the civil claims do not rely on the outcome of the traffic cases as the standard of proof is on a balance of probabilities.
32.On the issue of quantum, this court is guided by the well-worn principle articulated by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express & Another v A.M. Lubia & Another (No.2) [1987)] KLR 30 that:
33.In Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 it was held that:
34.Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:
35.In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR the court said that –
36.From the evidence adduced by the respondent in the trial court, the respondent suffered severe head injury that resulted in incoherent speech and occasioned permanent disability of 10%. This was based on a latest examination conducted on January 15, 2021.
37.The assessment of damages in personal injury case by court is guided by the following principles:
38.With regards to quantum, the trial court held that:
39.Still, I am required to come up with my own independent assessment whether the damages awarded were excessive. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards, but it must be recalled that no two cases are exactly alike. This is what the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR that:
40.I do note the trial court did not rely on any precedent when making its award. Counsel for the respondent relied on the case of Joseph Gichuhi Thomas vs KG (minor suing through his mother and next friend SNN) (2018) eKLR. I do note that the injuries sustained by the respondent in this case are much milder than the one the counsel for the respondent relies upon. The appellants suggested an award of Kshs. 800,000/= and fronted the case of Prem Gupta & another vs. Grimley Otieno & 3 others (2018) eKLR where 1st respondent sustained permanent disability was at 22%, suffered loss of memory which affected his work, chronic headaches, risk of epilepsy, poor dull slurred speech, paralysis on the right side of the face which made his speech and social interaction difficult.
41.In the circumstances of this case, can the award of Kshs. 1,500,000/- be said to be so inordinately high as to warrant any interference by this court sitting as an appellate court? I think not. The injuries suffered by the Respondent are quite serious and the award of general damages is in keeping with the decided cases. On appeal, this court looks to see if there is a pattern of awards from which the trial court’s award sharply departs to become an outlier or whether seen objectively an award is palpably excessive or too low. With reliance to the appellants case, which was delivered in 2018, and taking cognisance of the current economic situation in the countryand inflation rate that has taken a toll on the Kenyan shilling, this court finds the award of Kshs. 1, 500,000/= was well within the set principles of assessment of damages.
42.Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. Further, it is noted that the appellants have not challenged the same and thus the same will remain undisturbed. I find that there is no reversible error made by the trial court.
43.Consequently, and for the reasons stated above, this appeal is without merit. It is dismissed with costs to the respondent.
It is hereby so ordered.
DATED AND DELIVERED AT BUNGOMA THIS 19TH DAY OF OCTOBER, 2022D.KEMEIJUDGEIn the presence of :Oduor for AppellantsAnwar for RespondentKizito Court Assistant