1.On October 13, 2010 at about 6.30 pm, the appellant, Mary Wanjiku Kamau, was on her way home. It is not in dispute that she was hit by motor vehicle registration number KAN 932J near Rock City Gardens along Kiambu road. The main issue in contention in the appeal is who, as between the appellant and the driver of motor vehicle registration number KAN 932J, is to blame for the accident. The only other issue that was in dispute was as to the ownership of the said motor vehicle, but that appears to have been resolved.
2.By way of background, the appellant instituted civil case No. 86 of 2011 against the respondents in Kiambu chief magistrate’s court. In the suit, she claimed general damages for pain and suffering, special damages of Kshs 2,200, costs of the suit and interest. The respondents filed a defence and averred as follows: that they were wrongfully sued; that the plaint did not disclose any cause of action against them as the 1st respondent was not the registered owner of the vehicle that was allegedly involved in the accident; that, in any event, motor vehicle registration number KAN 932 J was not negligently driven; that the appellant was wholly to blame for the accident; and that the injuries allegedly suffered by the appellant were denied.
3.Upon hearing the suit, the learned magistrate (Hon Mrs CC Oluoch, PM) entered judgment for the appellant on January 15, 2014. The relevant part of the decision is as follows:
4.Aggrieved by the decision, the respondents filed an appeal in the High Court against the decision of the learned magistrate. Upon hearing the parties, the learned judge (JN Mulwa, J) overturned the judgment of the lower court and held as follows:
5.As required by law, the learned judge proceeded to assess the damages that would have been payable had she found that the respondents were to blame for the accident. She reduced the trial court’s award from Kshs 350,000/= to Kshs 180,000/=.
6.Aggrieved by the decision of the High Court, the appellant has filed this appeal listing 9 grounds, which we take the liberty to summarize as follows: whether the first appellate court properly discharged its duty to analyze and re-evaluate the evidence; whether on the evidence on record the appellant had proved her case on a balance of probabilities; whether on that evidence the learned judge erred by holding that the accident was wholly caused by the negligence of the appellant and whether the appellant was entitled to the prayers sought.
7.The appellant has filed submissions dated October 30, 2019. In her submissions, she consolidates the 9 grounds into 3. In a condensed form, those grounds of appeal are: that the finding that the appellant was solely to blame for the accident was against the evidence on record; that the learned judge erred in applying a higher test than the balance of probability in assessing the appellant’s evidence on record, and that the learned judge used wrong principles to re – assess the quantum of damages.
8.On the first ground, the appellant submits as follows: that the evidence on record shows that the point of impact was off the road; that she called one eyewitness; that the High Court disregarded the evidence of that eye witness while assessing liability, and that the respondent did not call any witness to testify to controvert her evidence. She submits that the evidence as given by the appellant proved that the 2nd respondent was negligent in the way he drove the car while overlapping, and was therefore to blame for the accident. She relies on the case of Embu Public Road Services Limited v Riimi (1968) EA 22.
9.On the second ground, she submits that the evidence on record proved the particulars of negligence, to wit, that the 2nd respondent was overlapping off the road, was using the wrong side of the road while driving at a very high speed; and that the court failed to consider that her evidence was not rebutted by the respondents. She relies on the case of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another  eKLR.
10.On the last ground, she submits that the learned judge did not make a finding that the trial court used wrong principles in awarding damages and, hence, she urges the Court to find that the damages awarded by the trial court were reasonable.
11.The respondents have also filed submissions dated January 31, 2020. On liability, they submit that the appellant in the lower court confirmed seeing the motor vehicle approaching, but did not move aside to avoid the accident and that as a pedestrian, she had a duty to be careful when crossing the road. They rely on the case of Cyprian Awiti & another v Independent Electoral and Boundaries Commission & 3 others (2018] eKLR.
12.On whether the learned judge used the wrong principles in assessing the quantum of damages, they submit that the judge correctly analyzed the same by taking into account relevant factors, and that she was in order in re-assessing the damages for pain and suffering, as the court relied on previously decided cases on the quantum of damages.
13.On whether the learned judge erred in allowing the appeal, they submit that the appellant did not discharge her evidentiary burden from her pleadings and testimony as required by sections 107 and 109 of the Evidence Act, and that the learned judge was right in allowing the respondent’s appeal.
14.This is a second appeal and this Court has pronounced itself on principles that are applicable in a case of this nature. In Kenya Breweries Ltd v Godfrey Odoyo, Civil Appeal No. 127 of 2007, this Court (Onyango- Otieno, JA) held as follows:
16.This appeal succeeds or fails on only one issue, namely: from the evidence on record, who, between the appellant and the respondents, was to blame for the accident? In other words, was it the appellant as held by the learned judge, or was it the respondents as held by the trial magistrate? The issue regarding negligence is both a question of fact and law. The trial court in instances where parties are blaming each other is always confronted with a different set of facts which it has to analyze to determine whether the particulars of negligence have been proven and, if so, who is to blame, and in what proportion would they be liable in contributory negligence.
17.We have carefully analyzed the record of the proceedings, and it is clear that the appellant adduced evidence that she had already crossed the road when she was hit by a speeding vehicle. She called one witness, Stephen Muhia Njuguna, who stated that he was with the appellant at the time of the accident. The witness stated that the motor vehicle registration number KAN 932J was overlapping on the wrong side of the road, and was being driven at high speed when it hit the appellant. On their part, the respondents did not adduce any evidence and informed the trial magistrate that they would rely on the evidence adduced during cross-examination.
18.Faced with this evidence, the learned judge analyzed the evidence that was adduced in the magistrate court and stated as follows:
19.The learned judge blamed the appellant for failing to take care of her own safety and held that the appellant did not adduce sufficient evidence to demonstrate how the accident vehicle was overtaking or over speeding at the point of impact. On this basis, the learned judge held that the appellant was 100% liable for the accident and overturned the decision of the trial magistrate’s court.
24.In an accident case, as the one before us, the question of negligence is a factual one and the respective party’s position will stand or fall on the determination by the trial court on which version of evidence is more credible and probable. The court should weigh the evidence that has been adduced to determine who is more credible. In Stellenbosch Farmers' Winery Group Ltd & another v Martell & others, the South African Supreme Court of Appeal explained how a Court should resolve factual disputes and ascertain as far as possible, where the truth lies between conflicting factual assertions. It stated as follows:
25.In a civil case, the burden of proof ordinarily has to be discharged by the party who alleges negligence. Such a party is expected to adduce evidence to show that the accident was caused by the other party. In the record that was produced before us, we note that the appellant adduced evidence of how the accident occurred.
26.In her testimony, she gave evidence that she had finished crossing the road and that the vehicle that hit her was overlapping and overtaking at high speed. The appellant called an eyewitness who testified that the respondent’s vehicle was speeding and was being driven on the wrong side of the road. On their part, the respondents did not adduce any evidence and, therefore, the appellant’s evidence remains uncontroverted.
27.The record before us shows that the appellant adduced evidence that the accident was caused by the negligence of the 2nd respondent. Therefore, to avoid liability, the respondents were under a duty to show that, either there was no negligence on their part, or that there was a probable cause of the accident which did not connote negligence on their part.
28.With respect, we do not agree with the holding of the learned judge that the appellant had failed to discharge the burden of proof. There was overwhelming evidence that the 2nd respondent was driving on the wrong side of the road and was overtaking at high speed. The evidence of the appellant was supported by an eyewitness. This evidence was not controverted by the respondents, and it remains unchallenged. There is nothing on record to show that the credibility of that evidence was challenged during cross-examination.
29.It is our finding that the learned judge misdirected herself and her holding is not supported by the evidence. The learned judge made a decision that was, on the evidence, plainly wrong in the circumstances. The case before her was a civil case that ought to have been proved on a balance of probabilities, and the evidence on record shows that the learned magistrate was correct when she held that the appellant had met that threshold.
30.In the end, we hold that the learned judge was wrong on the issue of liability.The trial magistrate correctly analyzed the evidence that was adduced on negligence and reached the right conclusion that the respondents were to blame for the accident.
31.Having determined that the judge was wrong in overturning the trial court’s finding on negligence, the only question that remains is, what is the proper quantum of damages? We note that the learned judge awarded a lower figure of Kshs 180,000/= down from Kshs 350,000/= that was awarded by the trial magistrate.
32.The Court of Appeal should only disturb an award of damages when the trial court has considered a factor it ought not to have considered, or failed to take into account something it ought to have taken into account on the award, or the award is too high or too low, that it amounts to an erroneous estimate (See Chanan Singh v Vhanan Singh & Handa , 22 EACA 125, 129 (CA- K); Butt v Khan CA Civil Appeal 40 of 1977.
33.Turning to this appeal, we note that the trial magistrate considered the extent of the injuries before awarding a sum of Kshs 350,000/= as general damages for pain and suffering. We do think that the trial magistrate took into account factors she ought not to have considered or failed to take into account relevant facts. Accordingly, we are in agreement with the sum of Kshs 350,000/= as general damages that had been awarded by the trial magistrate. The sum proposed by the learned judge of Kshs 180,000 is inordinately low when one takes into account the nature of the injuries that the appellant suffered.
34.The upshot of the foregoing is that we find that this appeal has merit and it succeeds. Accordingly, we hereby order and direct that:a.The appellant’s appeal be and is hereby allowed.b.The judgment and decree of the High Court at Nairobi (JN Mulwa, J) is hereby set aside and substituted for the judgment of the trial court (Hon Mrs CC Oluoch, PM). Accordingly, the appellant is hereby awarded a sum of Kshs 350,000/= as general damages for pain and suffering and Kshs 2,000/= as special damages, together with interest.c.The costs of this appeal, costs in the High Court, and in the magistrate’s court, shall be borne by the respondents jointly and severally.