REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

CIVIL APPEAL NO. 25 OF 2019

GERALD ODERA OMOLLO............................................................APPELLANT

-VERSUS-

ROSE ANYANGO RAYOLA...........................................................RESPONDENT

(An Appeal from the Judgement of  Hon. R.K. Langat, Resident Magistrate at    

Rongo in PMCC No. 196 of 2014 dated and delivered on 17^th December 2018)

JUDGEMENT

This appeal has been triggered by the decision of Hon. R. K. Langat delivered in Rongo PMCC No. 196 of 2014 on 17/12/2018.

The suit in the lower court was filed by the respondent (plaintiff) against the appellant (defendant) to recover damages for the alleged injuries incurred on 10/8/2013 while travelling on motorcycle registration number KMCQ745R along the Homa Bay Kendu Bay Road. The respondent claimed that while at Ngegu the appellant and/or his driver, agent, servant, employee or assignee negligently drove, managed and controlled motor vehicle registration number KBN 465Y that he caused or permitted the same to collide with the motor bike causing her to sustain grievous injuries.

The appellant filed a defence denying the occurrence of the accident and pleaded contributory negligence of the respondent. After the hearing, the trial Magistrate apportioned liability at 100% against the appellant and awarded damages as follows:-

General damages - Kshs. 600,000/=

Special damages - Kshs. 12,900/=

Aggrieved by the outcome, the appellant filed the instant appeal and preferred three (3) grounds of appeal as follows:-

a. The learned Magistrate erred in law and in fact by wrongly evaluating the evidence on record and hence coming to a wrong conclusion with reference to apportionment of liability against the defendant;

b. That the trial court erred in failing to appreciate the evidence tendered by the appellant in defence as to the cause of the accident;

c. That the trial court erred when it failed to appreciate the submission filed by the appellants with reference to the issue of liability.

The appellant prays that this appeal be allowed and the judgement of the lower court be set aside and its place an order be made for the appropriate apportionment of liability among the parties.

The appeal was canvassed by way of written submissions. The appellant filed his submissions dated 16/11/2021 on 23/11/2021. On apportionment of liability, the appellant submitted that the issue to be determined is whether the respondent proved her case in the trial court to warrant the apportionment of liability to the appellant at 100%. The respondent relied on Sections 107, 109 and 112 of the Evidence Act and the Court of Appeal decision in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another (2005) 1EA and Butt vs Khan. The respondent submitted that according to the evidence and testimony of PW2, he testified that after investigations were conducted, the driver of the motor vehicle was not to blame; that DW1 testified at the time of the accident the weather was clear and the motorcyclist was able to see the defendant swerving as he avoided hitting another motorist. Therefore, liability should be apportioned at 80:20 in favour of appellant against the respondent.

On quantum the appellant submitted that the respondent pleaded fracture of the right femur with malunion contusion on the pelvis and blunt trauma on the chest and lacerations on the left leg. The respondent submitted that an award of Kshs. 300,000/= would suffice and relied on the case of Kenya Power Lighting Company Limited & Another vs Zakayo Saitoti Naingola & Another (2008) eKLR. On special damages, the appellant agreed with the findings of the trial court which awarded Kshs. 12,900/= as the amount proved.

The respondent is represented by the firm of Khan & Associates. She filed submissions dated 12/2/2021 on 03/3/2021. On liability, it was submitted that the respondent was a pillion passenger and could not be blamed for the occurrence of the accident; that the appellant blamed the rider who was not enjoined in this suit as third party. Reliance was placed upon the case of Voice of Salvation and Healing Church vs Walter A. Orinda Kisumu HCCA No. 110 of 2011 where it was held a defendant who has not joined the owner of the third-party motor vehicle cannot expect the court to find the owner of the motor vehicle liable. Further reliance was placed on the case of David Kiprotich Bor vs Kassim Maranga & Another and the respondent asked this court to uphold the finding of the lower court on liability at 100%.

On quantum of damages, the respondent outlined the injuries she suffered and submitted that the respondent was rushed to Homa Bay County hospital where she was admitted for 30 days. The respondent relied on the case of David Kimathi Kaburu vs Dionisius Itiari (2017) eKLR where the Court of Appeal upheld an award of Kshs. 630,000/= to the plaintiff who sustained similar injuries.

On special damages, the respondent submitted that she produced a bundle of receipts amounting to Kshs. 12,900/= in support of the claim and urged this court to uphold the same.

I have read and understood the appellant’s memorandum of appeal and the rival submissions.

This being the first appellate court, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motor Boat Co. Ltd (1968) EA 123.

The appeal attacks the judgement of the lower court on two prongs: liability and quantum.

On liability, the respondent on paragraph 5 of her plaint, pleaded:-

“On or about the 10^th day of August, 2013 the plaintiff was on motor cycle registration mark KMCQ745R along Homa Bay Kendu Bay road when at Ngegu area or thereabouts the defendant and/or his driver, agents, servant, employee or assignee so negligently drove, managed and controlled the said motor vehicle that he cause or permitted the same to collide with the motor bike thus causing him to sustain grievous injuries…”  (emphasis mine).

In her testimony in chief, the respondent testified:-

“I recall on the 10/8/2013 I got involved in an accident along Kendu Bay Homabay road at Ngegu. I was on board on motorcycle. We were 2. Rider and myself.” (emphasis mine).

DW1 also testified:-

“the motorbike on one there was carrying  passenger.”

It is significant that the respondent was just but a pillion passenger in the motorcycle. She was in no way in control of how the motorcycle was being ridden. Section 107 of the Evidence Act discharges the burden of proof on who alleges.

In the case of Civil Appeal No. 100 of 2017 Rosemary Mwasya vs Steve Tito Mwasya & 2 Others (2018) eKLR the Court of Appeal held:-

“Our reasons for affirming the Judges conclusions are that the deceased as a passenger had no control over the manner in which the appellant drove/managed and or controlled the accident vehicle prior to the accident.” (emphasis)

The argument of the appellant is that the weather was clear and the rider of the suit motorcycle was able to see;  that he swerved to avoid hitting another motorcyclist, hence liability should be apportioned as the motorcyclist of the suit motorcycle also had a duty to avoid being hit. This argument would only stand against the motorcyclist and not a passenger who had no control over how the motorcycle was being ridden. For the argument of the appellant to be sustained, he was at liberty to join the motorcyclist as a third party to the suit for the trial court to be able to apportion liability. Thus, liability cannot be apportioned against  a passenger even if the investigations revealed that the appellant was not to be blamed. The appellant shall bear 100% liability.

On quantum, the appellate court in interfering with the discretion of the trial court in awarding damages, is guided by the Court of Appeal decision in But vs Khan (1982 – 88) KAR 1 which set the parameters 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 on wrong principles, or that he misapprehended the evidence in some material respect. And arrived at a figure which was either inordinately high or low.”

In awarding damages, the Court of Appeal in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR held that:-

“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

According to the medical report of Dr. Ezekiel Oganda Zoga in which the respondent was examined on 31/1/2014, the respondent sustained the following injuries:-

a. Fracture of the right femur.

b. Contusion on the pelvis.

c. Blunt trauma to the chest.

d. Laceration of the left leg.

The above injuries have not been disputed by the appellant. The medical report went further to state that the aftermath of the accident is that the respondent was likely to develop chronic osteoarthritis due to the instability and the limping gait. The doctor opined that she needs physiotherapy follow up for a long time and analgesics.

In arriving at the award of Kshs. 600,000/= as general damages, the trial Magistrate considered the case laws relied upon by the appellant and the respondent which the parties have also relied on in this appeal. The appellant submitted that in the case of Kenya Power Lighting Company Limited & Another (supra) the plaintiff had similar injuries to the one of the respondent and he was awarded an amount of Kshs. 300,000/=. I have taken time to consider the injuries sustained by the plaintiff in the aforementioned cited case. There were two plaintiffs and the 1^st plaintiff sustained fracture of the left femur bone which had clinically healed although the pain would bother him from time to time. The trial court awarded him Kshs. 350,000/= in damages which the appellate court upheld. This case was in the year 2008.

On the case relied by the respondent, David Kimathi Kaburu (supra) the plaintiff suffered fragmental fracture midshaft femur and intertrochanteric fracture femur. He was said to be in a fair general condition and able to walk without support except he had a wobbly gait with a limp on the right lower limb and complained of severe pain on the right hip joint and entire limb mostly in the morning or when it was cold and upon walking for long distance.

Looking at other comparable cases with similar or even severe injuries to those of the respondent, in Alex Wanjala v Pwani Oil Products Limited & Another (2019) eKLR the appellant sustained a closed head injury leading to loss of consciousness for several weeks, closed fracture of the right humerus and closed fracture of the right femur and the court awarded Kshs. 600,000 for general damages. In EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR the appellate court upheld an award of Kshs. 800,000 where the plaintiff had suffered femur fractures and fractures of the tibia fibula.

It is my humble view that the injuries suffered in the cases cited by respondent are comparable to the injuries suffered by the respondent. The respondent is likely to have future medical complications compared to the case cited by the appellant in which the 1^st plaintiff healed This court also takes into account the fact that the case was decided in the year 2008, ten years before the trial court made its decision.  Incidence of inflation cannot be ignored and taking into account the same was decided in the year 2008.

Accordingly, I am persuaded that the learned trial Magistrate correctly exercised his discretion in the assessment of damages.  The award was not excessive; neither was not based on wrong principles; The court did not  take into account irrelevant factor; did not leave out of account any relevant factor; and was not inordinately low or high as to be wholly erroneous estimation of damages.

The upshot therefore is that the judgement and decree of the trial court is hereby upheld and I dismiss this  appeal with costs to the respondent.

Dated, Delivered and Signed at Migori this 17^th  day of  March, 2022.

R. WENDOH

JUDGE

Judgement delivered in the presence of

Mr. Odhiambo for the Appellant.

Ms. Ondieki for the Respondent.

Emma Court Assistant.