1.The Plaintiff (now Respondent) sued the Defendant (now Appellant) for General and Special Damages arising out of an accident that occurred on 25th March, 2019 between Motor Vehicle Registration Number KCE 916C and Motor Cycle Registration Number KMCQ 273Q.
2.In its Judgment delivered on 17th August 2021, the trial court apportioned 50% of the liability to the rider of the Motor Cycle, 10% to the Plaintiff (Kenneth Bor) and 40% to the Defendant (Joseph Bosire Machogu). The Plaintiff was also awarded General and Special Damages of Kshs 633,864/= plus costs and interest of the suit.
3.Being dissatisfied with the judgment of the trial court, the Defendant/Appellant appealed to this court against the trial court’s findings on quantum of damages vide his Memorandum of Appeal dated 24th August 2021. He raised the following grounds:-i.That the learned trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award of Kshs 1,500,000 which was overly excessive in the circumstances of the case.ii.That the learned trial Magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that was appropriate and applicable in similar injuries as the case he was deciding.iii.That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.
4.The Appellant prayed that this court set aside the trial court’s judgment and replace it with its own assessment.
5.The Respondent/Plaintiff subsequently filed a Memorandum of Cross Appeal dated 16th September 2021 on the following grounds:-i.That the learned trial Magistrate erred in law and in fact by awarding general damages which were inadequate in the circumstances.ii.That the learned trial Magistrate erred in law and in principle by adopting a wrong approach in computation of the general damages and by departing from the trends contained in the authorities cited by the Appellee which were binding on him and adopting a method which was erroneous in the circumstance and thereby occasioning miscarriage of justiceiii.That the learned trial Magistrate erred in law and in fact by holding the rider liable at 40% whereas the same was not a party to the suit and a complete stranger to the proceedings and no evidence was adduced to hold him liable as such.iv.That the learned trial Magistrate erred in law and in fact by holding the Appellee/Respondent liable at 10% whereas the evidence on record did not disclose any negligence and neither was the same proved or at all.
6.The Respondent (who was the Appellant in the Cross Appeal) also prayed that the trial court Judgment be set aside. For clarity of the record, the Appellant and Respondent shall throughout this judgment refer to the Plaintiff and Defendant respectively.
The Plaintiff’s/Respondent’s Case
7.It was the Respondent’s/Plaintiff case that he was involved in a road accident on 25th March 2019 between Motor Cycle Registration Number KMCQ 273Q where he was a pillion rider and Motor Vehicle Registration Number KCE 916C which was driven by the Appellant’s driver or agent.
8.It was the Respondent’s /Plaintiff case that the Appellant was negligent in the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint.
9.That as a result of the accident, he suffered the following injuries:-a.Bruises on the face.b.Compound right segmental tibia fracture.c.Bruises on the occipital region.d.Degloving injury on the right leg.e.Right medical malleolar fracture.
10.The Respondent/Plaintiff prayed for Special and General Damages against the Appellants. There is no evidence from the record that the Appellant/Defendant ever took out 3rd party proceedings against the motor cycle rider or the owner.
The Respondent’s Written Submissions.
11.The Respondent/ Plaintiff submitted that it must be proved that he owed the Appellant a duty of care and that duty was breached. It was the Respondent’s further submission that the Appellant attributed the accident to the Respondent’s negligence but he did not adduce any evidence in support of his claim. That the Appellant did not take out third party proceedings against the third party rider.
12.It was the Respondent’s/ Plaintiff’s submission that his evidence as to the circumstances of the accident remained unchallenged and that in any case, he was a passenger in the Motor Cycle and he could not have caused the accident. He relied on the case of Joseph Kahinda Maina Vs Evans Kamau Mwaura & 2 Others (2014) eKLR to support his submission.
13.The Respondent/Plaintiff submitted that the trial court’s apportionment of liability was unfounded in law and that the Appellant/ Defendant ought to be held 100% liable.
14.It was the Respondent’s/ Plaintiff’s submission that the injuries he suffered were confirmed by two doctors. That Dr. Jenipher Kahuthu examined him 6 months after the accident and confirmed all the injuries. It was his further submission that the award of Kshs 633,864 was not high. But was inordinately low and ought to be substituted with the award of Kshs 2,000,000. The Respondent/Plaintiff submitted that the injuries in the aforementioned cases were similar to his and that it was trite law that the general method of assessment of damages was to award damages comparable to those awarded in similar injuries. To support his submission, he cited: Patrick Kinyanjui Njama Vs Evans Juma Mukweyi (2017) Eklr And Zachary Kariithi Vs Jashon Otieno Ochola (2016) eKLR.
The Appellant’s/Defendant’s Case
15.In his Statement of Defence and evidence in the trial court, the Appellant /Defendant denied the occurrence of the accident on 25th March 2019 involving Motor Cycle Registration Number KMCQ 273Q and Motor Vehicle Registration Number KCE 916C. The Appellant further denied being the owner of the aforementioned accident Motor Vehicle.
16.It was the Appellant’s/Defendant’s case that if the accident occurred then it was caused by the negligence and carelessness of the Respondent/Plaintiff and the rider and/or owner of the aforementioned Motor Cycle. The particulars of negligence of the Respondent and the rider were contained in paragraph 10 of the Defence.
The Appellant’s/defendant’s Written Submissions
17.The Appellant/ Defendant submitted that the Respondent/Plaintiff failed to prove his case on a balance of probabilities hence the trial court was correct in awarding the liability at 50% for the rider, 40% against him and 10% against the Respondent. That as per the abstract dated 02/04/2019, the Appellant was not blamed for the accident. It was his further submission that the Respondent was guilty of contributory negligence as he stated upon cross examination that he was seated in the middle of the motor cycle which meant that there were 3 people aboard.
18.It was the Appellant’s/Defendant’s submission that the apportionment on liability should not be disturbed. He relied on the following cases; Benter Atieno Obonyo Vs Anne Nganga & Another (2021) Eklr and Calistus Juma Makhanu Vs Mumias Sugar Co. Ltd & Another (2021) eKLR to support this submission. That the trial court was correct when it found each party played a role in the occurrence of the accident.
19.The Appellant/Defendant submitted that the award of Kshs 1,500,000 as General Damages was very high and ought to be reduced. That the assessment of General Damages was a discretionary exercise which ought to be exercised judicially with wise circumspect and on legal principles. It was the Appellant’s/Defendant’s further submission that this court would interfere with the award if the trial court took into account an irrelevant factor, left out a relevant factor or the amount awarded was too high or too low.
20.The Appellant/ Defendant further submitted that awards must be within consistent limits and that comparable injuries and comparable awards must be taken into account. That the Respondent did not suffer any permanent incapacity. He relied on the cases of Denshire Muteti Wambua Vs Keny Power & Lighting Co. Ltd (2013) Eklr and Godfrey Wamalwa Wamba & Another Vs Kyalo Wambua (2018) eKLR to support his submission.
21.It was the Appellant/Defendants submission that the Respondent/Plaintiff suffered soft tissue and fracture injuries. In regards to soft tissue injuries he relied on the following cases; George Mugo & Another Vs Akm (Minor Suing Through Next Friend And Mother Of Ank) (2018) eKLR, George Kinyanjui T/A Climax Coaches & Another Vs Hussein Mahad Kuyala (2016)Eklr, Ndungu Dennis Vs Ann Wangari Ndirangu & Another (2018) Eklr, Pf (Suing As Next Friend And Father Of Sk (Minor)) Vs Victor O Kamadi & Another (2018) Eklr, Godwin Ireri Vs Franklin Gitonga (2018) Eklr And Lamu Bus Services & Another Vs Caren Adhiambo Okello (2018) eKLR as comparable case law with comparable injuries which this court could use in awarding damages.
22.In regard to the fractures, the Appellant relied on the following cases; Ndungu Wambui & 2 Others Vs Vk (A Minor Suing Through Next Friend And Mother Mcwk) (2019) eKLR, Mbithi Muinde William Vs Rose Mutheu Mulatia (2019) eKLR, Naom Momanyi Vs G4s Security Services Kenya Limited (2018) eKLR, Wakim Sodas Limited Vs Sammy Aritos (2017) eKLR And Gladys Lyaka Mwombe Vs Francis Namatsi & 2 Others (2019) eKLR.
23.The Appellant submitted that an award of Kshs 350,000 was sufficient as General Damages for both the soft tissue and fracture injuries. That this amount be subjected to the liability as apportioned in the trial court.
AnalysisIn proceeding in this appeal I am cognizant that I must treat the case as a retrial. This principle was aptly stated by the Court of Appeal in Gitobu Imanyara & 2 Others Vs Attorney General (2016) eKLR, thus:-
24.In its appellate role, this court also has a duty to review the evidence adduced before it and satisfy itself that the decision reached was well founded. In the case of Selle & Another Vs Associated Motor Boat Co. Ltd And Others (1968) Ea 123, the Court of Appeal pronounced itself as follows:-
25.I have considered the Record of Appeal dated 2nd November 2021, the Cross Appeal dated 16th September 2021, the Appellant’s Written Submissions dated 12th April 2022, the Respondent’s Written Submissions dated 16th March 2022 and I find that both the Appellant’s Appeal and the Respondent’s Cross Appeal revolve around liability and quantum. I isolate three issues for my determination as follows:-i.Whether the claim was proved to the required legal standard.ii.Who was liable for the accident?iii.Whether the quantum of damages was appropriate.
I. Whether the claim was proved to the required legal standard
26.It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 of the Evidence Act provide as follows:
27.The Halsbury’s Laws of England, 4th Edition, Volume 17, describes such burden of proof as:-
28.It is trite law that the burden of proof in civil cases is that of on a balance of probability. (See Court of Appeal case of Kirugi & Another vs Kabiya & 3 others  KLR 347 andKanyungu Njogu vs Daniel Kimani Maingi (2000)eKLR)
29.It was not in dispute that the Respondent/ Plaintiff was involved in an accident on 25th March 2019. That the accident involved Motor Vehicle Registration Number KCE 916C and Motor Cycle Registration Number KMCQ 273Q in which the Respondent was a pillion rider. It was also not in dispute that the Respondent suffered injuries as a result of the said accident.
30.The Respondent produced a Police Abstract dated 9th May 2019 that was marked as P.Exh 5 which confirmed that the accident occurred on 25th March, 2019 between a Toyota Probox, Motor Vehicle Registration Number KCE 916C and Motor Cycle Registration Number KMCQ 273Q at around 6 p.m.
31.The Respondent also produced a copy of the Motor Vehicle Records dated 29th May 2019 that was marked as P. Exh 6 (a) which indicated that the registered owner of Motor Vehicle Registration Number KCE 916C was the Appellant/ Defendant James Bosire Machogu. It is my finding that the Appellant was the registered owner of the Motor Vehicle involved in the accident and was a proper party to the proceedings.
32.The Respondent produced a Medical Report dated 20th May 2019, Treatment Notes and a Discharge Summary from Tenwek Hospital that were marked as P. Exh 1, 2 and 3 respectively. It is also salient to note that the Respondent went for a second medical examination before Dr. Jenipher Nyawira Kahuthu who testified as DW1 and produced a Medical Report dated 26th August 2019 and marked as D. Exh 1.
33.2 is a Charge Sheet for Physical Therapy Aids and it was wrongly produced as the Treatment Notes. This exhibit shows that the Respondent spent Kshs 3,000 for Metallic Crutches. Though P. Exh 2 is of little probative value as far as proof of the injuries is concerned, I am convinced by the other evidence in the Discharge Summary and the two Medical Reports which revealed that the Respondent had suffered various injuries as a result of the accident.
34.In his Defence, the Appellant/Defendant called DW1 (Dr. Jenipher Nyawira Kahuthu) who testified as to her findings when she examined the Respondent. The Appellant/Defendant did not call any witness who could rebut the evidence of the Respondent or shed light on the occurrence of the accident.
35.Flowing from the above, the Respondent/Plaintiff proved that he was a pillion passenger in Motor Cycle Registration Number KMCQ 273Q when it was involved in an accident with Motor Vehicle Registration Number KCE 916C and that he suffered injuries. He further proved that the Appellant/Defendant was the owner of Motor Vehicle Registration Number KCE 916C.
36.It is my finding that the Respondent/ Plaintiff proved his case against the Appellant on a balance of probabilities.
II. Whether apportionment of liability was proper and lawful
37.The Appellant/Defendant appealed specifically on the issue of quantum. He submitted that the trial Magistrate’s finding on liability was sound as he stated that each party had contributory negligence and was at fault in the accident.
38.The Respondent/Plaintiff disputed the liability of 10% apportioned to him by the trial court. He also disputed the liability of 50% apportioned to the rider of the Motor Cycle as the rider was not a party to the suit in the trial court. He submitted that the Appellant attributed negligence to him and the Motor Cycle rider but did not adduce any evidence. That further, the Appellant never bothered to take out any third party proceedings.
39.The trial court apportioned 50% to the rider of the Motor Cycle, 10% to the Respondent and 40% to the Appellant. When the Respondent was cross examined, he stated that he was the middle passenger, which in my view indicated that there were more than one pillion passengers. The Respondent also submitted that the trial court’s finding on liability was unfounded in law.
40.Having evaluated the arguments and keenly looked at the record, I find that the learned trial Magistrate misdirected himself when he apportioned 50% of the liability to the rider of the Motor Cycle Registration Number KMCQ 273Q when he knew very well that the said rider was not a party to the trial court proceedings. The claim in the Plaint was directed towards the Appellant and not the rider. There are no third party proceedings in the court record to indicate the rider was enjoined as a party in the proceedings. The rider of the Motor Cycle was wrongfully apportioned liability by the trial court. I adopt the observation by Kimaru J. (as he was then) in Pauline Wangare Mburu Vs Benedict Raymond Kutondo (2005) eKLR where he stated that:-
41.A finding and apportionment of liability by a trial court call calls for exercise of judicial discretion based on the evidence adduced and an appellate court can only interfere if the finding is not supported by the evidence on record (See EN v Hussein Dairy Limited & 3 others (2020)eKLR).
42.The Appellant and the Respondent blamed each other for being negligent as to the cause of the accident. Negligence is defined in the Black’s Law Dictionary, 10th Edition as:
43.Negligence is a specific tort that comes from the common law jurisprudence. Generally, in a claim of negligence, the Plaintiff ought to establish that the Defendant owed him a duty of care, that there was a breach of the duty of care and as a result of that breach, the Plaintiff suffered damages. The principles involved in a claim of negligence were established in the case of Donoghue Vs Stevenson (1932) UKHL 100 , where it was held:
44.Before a claim can succeed in an action for negligence, the damages alleged must be recognized by law. In the case of Anastassios Thomos Vs Occidental Insurance Company Limited (2017), the High Court held that:
45.In the case of Cotecna Inspection S.A Vs Hems Group Trading Company Limited (2007) eKLR, the Court of Appeal held that:-
46.A Plaintiff must show that the damages suffered are as a result from the Defendant’s negligence. Without proof of causation, negligence cannot be actionable and/or sustainable. This was addressed by Visram J (as he then was ) in the case of Elijah Ole Kool Vs George Ikonya Thuo (2001) eKLR, where he stated:
47.In the case of Anastassios Thomos (supra), Njuguna J stated that:-
48.The Respondent/Plaintiff adopted his witness statement as evidence and this statement contained the particulars of the negligence that he alleged against the Appellant. The Appellant/Defendant chose not to cross examine the Respondent on the particulars of negligence and further, the Appellant/ Defendant did not provide any evidence to rebut his evidence and shift the negligence to the Respondent. The Appellant’s witness testified to the injuries sustained by the Respondent and that evidence was of a medical nature. It is my finding that the Respondent/Plaintiff proved causation by the Appellant as he linked the cause of action by the Appellant/Defendant as the sole cause of the accident.
49.The Respondent/Plaintiff stated that he a middle passenger. As earlier stated, this meant that the Motor Cycle had more than one pillion passenger. This was contrary to the National Transport and Safety Authority (Operation of motorcycles) Regulations 2015. Regulation 7(1) provided:-
50.The only exception as provided for under Regulation 7(2) (a) was for a child who is less than thirteen years and such a child may be carried together with an adult provided the child is seated between the rider and the adult and wears a helmet designed for children. The Respondent described himself as an adult of sound mind who resided and worked for gain in Sotik within the Republic of Kenya.
51.The Traffic Act Cap 403 Laws of Kenya provides for the law relating to traffic on the road. Section 68(3) of the Traffic Act provides:-
52.It is my finding that though the Respondent/Plaintiff proved negligence on the part of the Appellant/Defendant, he had to bear some share of liability as he broke the law by boarding a Motor Cycle that already had a passenger contrary to the National Transport and Safety Authority (Operation of motorcycles) regulations 2015.
53.It appears to me that the Motor Cycle rider or owner thereof bore some blame. However, as I have already found, the Respondent/Plaintiff did not sue him and the Appellant/Defendant did not take out 3rd Party Proceedings against him. It is therefore left for the parties to the suit to share the liability.
54.I proceed to apportion liability at 80:20 in favour of the Respondent/Plaintiff.
III. Whether the quantum of damages was appropriate.
55.In regard to General Damages, the Respondent/Plaintiff stated in paragraph 5 of the Plaint that he suffered the following injuries:-a.Bruises on the face.b.Compound right segmental tibia fracture.c.Bruises on the occipital region.d.Degloving injury on the right leg.e.Right medical malleolar fracture.
56.The Medical Report (P.Exh 1) by Dr. Morebu Peter Momanyi who examined him on 20th May 2019 confirmed the aforementioned injuries. He concluded that the Respondent required Kshs 200,000 to remove the metal implant. The Respondent underwent a second medical examination on 26th August 2019 before Dr. Jenipher Kahuthu. She found that the Respondent had segmental tibial shaft fracture with k nail in situ in satisfactory position. She estimated that he would Kshs 40,000 to remove the metal implant.
57.In the case of Kigaragari Vs. Aya (1982 - 1988) I KAR 768, it was stated:-
58.Further, the Court of Appeal in Charles Oriwo Odeyo Vs. Appollo Justus Andabwa & Another (2017) eKLR observed that:-
59.In awarding of damages, the court should do its best to reach 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. It is also salient to note that no two cases are exactly similar.(See Francis Ndungu Wambui & 2 others vs VK (a minor suing through next friend and mother MCWK) (2019) eKLR
60.It was not in dispute that the Respondent suffered soft tissue injuries on the face and on the occipital region and a fracture of the right leg. I have find the following cases quite helpful in terms of comparison:-i.FM (Minor, Suing Through Mother and Next Friend MWN) vs JDK & Another 2020 eKLR, where an award of Kshs 60,000 was substituted with Kshs 100,000 for blunt soft tissue injuries to the head, neck, thorax, abdomen and limbs.ii.Channan Agricultural Contractors Ltd V Fred Barasa Mutayo (2013) eKLR where the High Court reviewed downwards an award of Kshs. 250,000 to Kshs. 150,000 for moderate soft tissue injuries that were expected to heal in eight months’ time.”iii.Pauline Gesare Onami V Samuel Changamure & Another (2017) eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs. 600,000.
61.The Court of Appeal in Catholic Diocese Of Kisumu Vs Tete (2004) eKLR set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:-
62.Guided by the case law above and the injuries suffered by the Respondent, I find that the Kshs 1,500,000 awarded as General Damages by the trial court was excessive. It was not comparable to decided cases that had almost similar injuries. After factoring in inflation, I substitute the award of Kshs 1,500,000 with the award of Kshs 800,000 for the soft tissue injuries and fracture to the right leg.
63.The Respondent prayed for future medical expenses and operations. The two Medical Reports indicated that he would need Kshs 200,000 and Kshs 40,000. In the case of Tracom Limited & Another Vs Hasssan Mohamed Adan (2009) eKLR, the Court of Appeal stated: -We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”(See Court of Appeal case of Sheikh Omar Dahman T/A Malindi Bus vs. Denis Jones Kisomo Civil Appeal No. 154 of 1993)
64.I find, being guided by the case law above; that the Respondent having not specifically pleaded the future medical expenses, cannot be granted the same. In the case of Mbaka Nguru & Anor. Vs James George Rakwar(1998)eKLR, the Court of Appeal stated that:-
65.With regards to the other pleaded Special Damages, the Respondent particularized them as follows:-Medical Expenses Kshs 38,814Medical Report Kshs 6,500Transport Expenses Kshs 30,000Copy of Records Kshs 550
66.The Respondent produced an annexed receipt dated 20th May 2019 in P.Exh1 which indicated that he had paid Kshs 6,500 for the Medical Report, a receipt dated 6th April 2019 indicating that he had spent Kshs 30,000 for transport, an invoice from NTSA dated 29th May 2019 indicating that he had paid Kshs 550 for the Motor Vehicle Search and a bundle of receipts from Tenwek Hospital indicating that he had spent Kshs 38,814 for medical expenses. I am satisfied that the Respondent pleaded and proved his claim for special damages and the same is awarded at Kshs 75,864.
67.These then are my final orders:-i.The Appellant’s/Defendant’s dated of Appeal 25th August 2021 succeeds to the extent that the General Damages awarded to the Respondent /Plaintiff are reduced from Kshs 1,500,000 to Kshs 800,000ii.The Respondent’s/Plaintiff Cross Appeal dated 16th September 2021 succeeds only to the extent that liability apportioned to the motorcycle rider is extinguished. The cross appeal however fails to the extent that the liability apportioned to the Respondent/ Plaintiff is increased from 10% to 20%.iii.I set aside the Award of the trial court and substitute it as follows:-General damages Kshs. 800,000Less 20% contribution 160,000640,000Special Damages 75,864Total 715,864iv.The Respondent/Plaintiff shall have costs of the suit in the lower court and interest thereon while each party shall bear their costs in both the appeal and cross appeal.Orders accordingly.