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Omwoyo v Nyangira (Civil Appeal E049 of 2021) [2022] KEHC 16086 (KLR) (1 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16086 (KLR)
Republic of Kenya
Civil Appeal E049 of 2021
WA Okwany, J
December 1, 2022
Between
Damaris Omwoyo
Appellant
and
Alex Kimwei Nyangira
Respondent
(Being an Appeal against the Ruling of Hon. W. C. Waswa (Mr.) – RM Nyamira dated and delivered at Nyamira on the 7th day of June 2021 in the original Nyamira Chief Magistrate’s Court Civil Case No. 174 of 2019)
Judgment
Background
1.The respondent sued and the appellant before the lower court seeking both general and special damages arising out of a road traffic accident that occurred along Nyamira – Corner T Road on October 14, 2019.
2.The respondent’s Case before the lower court was that he was riding motor cycle Registration No KMEN 801P on which he was ferrying 2 pillion passengers when the appellant’s motor vehicle Registration No KCK 530E collided with the said motor cycle thereby causing the accident wherein he sustained injuries.
3.The appellant denied the respondent’s claim and after conducting the hearing, the trial court rendered a judgment in which it awarded the respondent Kshs 400,000/= general damages and Kshs 6,500/= special damages. The trial court also found the appellant 100% liable for the accident.
4.Aggrieved by the lower court’s decision, the appellant filed the instant appeal in which she listed the following grounds of appeal in the memorandum of appeal: -
5.The appeal was canvassed by way of written submissions.
6.The appellant faulted the trial Magistrate for finding her 100% liable for the accident in the face of evidence showing that her driver was not charged with any traffic offence following the accident. According to the appellant, both the driver of the motor vehicle and the rider of the motor cycle should have been found equally liable for the accident. For this argument, the appellant cited the decision in the case of Lakhamshi v Attorney General (1971) EA 118, 120 as quoted in Calistus Juma Makhanu v Mumias Sugar Co Ltd & Another [2021] eKLR where it was held that: -
7.On quantum, the appellant submitted that the award of Kshs 400,000/= was too high and ought to be reduced in view of the fact that no party was found to blame for the accident. It was submitted that there was no proof of the alleged fracture injuries sustained by the plaintiff.
8.The appellant maintained that the award of general damages did not match the awards in other similar comparable decided cases.
9.The respondent, on his part, submitted that the court should be slow to interfere with the lower court’s award of damages as the same is discretionary. He urged this court to adhere to the principles governing the courts in considering whether or not to interfere with such awards. The respondent maintained that the trial court made the correct findings on both liability and quantum.
Analysis and Determination
10.I have considered the record of appeal and the parties’ respective submissions. As the first appellate court this court is under a duty to analyze and re-evaluate the evidence tendered before the lower court in order to reach its own conclusions bearing in mind the fact that it neither saw nor heard the witnesses testify (see Selle & Another v Associated Motor Board Company Ltd & others 1968 EA 123).
11.It was not disputed that the respondent sustained injuries in an accident involving the collision between the appellant’s motor vehicle and the motor cycle. The instant appeal basically contests the trial court’s findings on the aspects of liability and quantum.
12.On liability, PW3, Cpl Albert Mincha, the Police Officer who produced the Police File and Abstract testified as follows: -
13.DW1, PC Peter Kariuki testified as follows: -
14.On cross examination, DW1 testified that:
15.DW2, Joshua Nyabuti Otinye, the owner of the appellant’s motor vehicle testified that: -
16.The trial magistrate held as follows on the issue of liability: -
17.I note that both Police Officers who testified in the case (i.e. PW3 and DW1) were not eye witnesses to the accident but merely testified on the report they received at the station. They gave conflicting evidence on the party to blame for the accident. It is also instructive to note that neither the driver of the motor vehicle nor the respondent (cyclist) was charged with the offence of careless driving/riding. I am of the view that in the circumstances of the case and on weighing the evidence presented by the parties, the court should have apportioned liability between the driver and the rider. I find that the suitable apportionment should be 70%:30% in favour of the respondent. I therefore allow the appeal on the aspect of liability.
18.Turning to the award of damages on quantum, I note that it is a well-established principle that the award of damages is an exercise of discretion by the court which the appellate court should be slow to interfere with except in isolated circumstances as was held in the case of Kemfro Africa Ltd T/A Meru Express Services & Gathongo Kanini v AM Lubia & Olive Lubia (1982 – 88) 1 KAR where the court held: -
19.In the present case, I note that the respondent tendered evidence to show that he sustained the following injuries in the accident: -a.Headacheb.Chest pain on exertionc.4th & 5th right ribs cracked mediallyd.Cut wounds bilaterally on the elbow jointse.Painful swelling on the right wrist jointf.Bruises with swelling on the right forearmg.Dislocation of the right wrist joint; andh.Tenderness on the right thigh laterally.
20.I note that the trial court considered several authorities wherein the claimants sustained similar injuries before arriving at the award of Kshs 400,000/= general damages. I find that the said award is reasonable and commensurate with the type of injuries the respondent sustained in the accident. I find no reason to interfere with the said award.
21.In conclusion, the appeal succeeds, albeit partly to the extent of liability which I hereby apportion at 70:30% in favour of the respondent. This means that the respondent shall be paid Kshs 400,000 + 6,500 special damages less 30% contribution which comes to Kshs 284,550/=.
22.The respondent is also awarded the costs of the lower court together with interest therein.
23.Since the appeal is partly successful, I award ½ of the costs of appeal to the appellant.
DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 1ST DAY OF DECEMBER 2022.W A OKWANYJUDGE In the presence of:Chichi for Ng’ang’a for the appellantN/A for the respondentAnita – Court Assistant
