1.This is an appeal from the judgment of the Honourable Desderias Orimba, Senior Principal Magistrate delivered on November 25, 2020 in Kangundo SPMCC No 289 of 2018; Domitila Ndunge Mutiso versus Semsum Construction Limited & Thomas Mbithi Muoka. Directions were given that the instant appeal be canvassed by way of written submissions. When this matter came before me on January 16, 2023 I noted that the parties had filed their respective written submissions. Consequently, I reserved my judgment for March 7, 2023.
2.I underestimated the amount of time it would take me to write the judgments I accumulated during the Rapid Results Initiative campaign, the newly appointed judges, of whom I am one, engaged in in January 2023. During the said exercise I was based in Machakos and Kajiado High Court stations. My very sincere apologies for the delay in delivering this judgment.
3.This case involved two motor vehicles Motor Vehicle Registration KAU 174N Toyota Matatu and KCK 854D Nissan Pickup. The 1st Respondent was the Plaintiff while the 2nd Respondent was enjoined as the Third Party by the Appellant.
4.The lower court found the Appellant 100% liable for the accident and awarded the 1st Respondent a sum of Kes.212,550.00 made up as hereunder;a.General damages Kes.180,000.00b.Special damages Kes.32,550.00Total Kes.212,550.00
Duty of the appellate court
5.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
6.This was aptly stated in the cases of Selle versus Associated Motor Boat Company Ltd  EA 123 and Peters versus Sunday Post Limited  EA 424 where in the latter case, the court therein rendered itself as follows: -
7.By a plaint dated 19th November, the 1st Respondent pleaded that she was lawfully a passenger in Motor Vehicle Registration No. KAU 174N, when motor vehicle Registration No. KCD 845D Nissan pickup reversed in the middle of the road without ascertaining that it was safe to do so.
8.According to the Plaint, this resulted in motor vehicle Registration No. KAU 174N Toyota Matatu ramming into its rear. The 1st Respondent was seriously injured and as a result sought medical treatment and subsequently filed the suit in the court below.
9.The Appellant filed defence on 22nd May, 2019 and denied occurrence of the accident and possession of Motor Vehicle Registration No. KCD 845 D. In a rather circumlocutory way, the Appellant denied the occurrence of the accident and at the same time blamed the accident on motor vehicle Registration No. KAU 174N. Oddly they blamed the 1st Respondent for failing to have regard to Motor Vehicle Registration No. KCD 845D and to her safety.
10.I do not think that parties should waste valuable judicial time by calling for proof of facts that they know occurred. Whichever way the matter goes the extra costs of proving facts that shouldn’t have been denied in the first place ought in my view be borne by the party that made proof necessary. In the case of Raghbir Singh Chatte v National Bank of Kenya Limited  eKLR, the court of appeal stated as follows: -
11.By an order of the court on August 7, 2019 the appellant was granted leave to join a Third Party to the proceedings. The Third Party entered appearance and filed a defence.
12.The appellant relied on the principles of force majeure and rep ipsa loquitur. Black's Law Dictionary, at page 1410 (5th ed. 1979), defines force majeureas: -
13.In other words, a party cannot be liable because a superior force that is irresistible and naturally occurring, which is not caused by man nor preventable by humans in spite of use of utmost skill, care, diligence, or prudence caused the event or action. In the normal lingua, it is an act of God.
14.The effect of the defences raised by the Appellant and 2nd Respondent was that the evidentiary burden of proof of negligence was lifted from the 1st Respondent. For the 1st Respondent the actions of both drivers could only be explained by them in terms of sections 112 of the Evidence Act which provides as follows;112. Proof of special knowledge in civil proceedingsIn civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
15.The drivers of two vehicles knew or ought to know how the accident occurred. The duty of the 1st Respondent was to turn up in court and show that the accident occurred due to negligence. The apportionment thereof would be made on the basis of the evidence of the drivers.
16.The Appellant filed submission on October 14, 2020. In the said submissions the Appellant argued that the Respondents were to blame.
17.The Appellant stated that the fact that the Appellant’s driver was convicted, does not shield the Third Party from liability.
18.The Appellant relied on the case of Meshack Omari Monyoro v David Kinyanjui & 2 Others  eKLR. They also relied on the case of Mbugu David & Another v Joyce Gatthoni Wathena & Another  eKLR where the court held as follows: -
19.In Kiema Mutuku v Kenya Cargo Handling services Ltd  I KAR 258, David Kinyanjui & 2 others v Meshel Omar Monyo HCCA 125 of 1993 and Statpack Industries v James Mbithi Munyao eKLR. In the latter case the Court stated as follows: -
20.In my respectful view I need not consider Donoghue versus Stevenson  AC 562. There no dearth of local jurisprudence on exactly the same point the court considered in the said case.
21.The 1s Respondent filed submissions where she stated that the Appellant was to blame for the accident and as such should be held liable.
2nd Respondent submissions
22.I have not seen the second Respondent’s submissions. If they were filed the submissions, were not transmitted to the court.
23.Ground one is on liability while the other grounds are on quantum of general or special damages. My take is that these are only 3 issues in this appeal to wit that:-a.Who is liable for the accident?b.Whether the quantum of damages granted were so high as to amount to an erroneous estimate of damages?c.Whether special damages were particularly pleaded and specifically proved?
24.It is not necessarily true the burden of proof lies the plaintiff at all times. Section 107 of the Evidence Act places the burden on a party depending on the circumstances. The said section reads as follows: -
25.This is supplemented by section 108 of the evidence Act which state as follows:-
26.Given that this is a collision or accident involving two moving vehicles the burden of proof lies on the plaintiff to show that she was seated in the vehicle that was involved in the accident and that the said motor vehicle was involved in an accident with another without the plaintiff’s hand in the accident.
27.All parties confirmed that the 1st Respondent was involved in the said accident. Her involvement has not been contested. Any vehicle properly driven on a road could be involved in an accident. Occurrence of an accident may be due to negligence or an act of God. Whoever wishes to proof that an occurrence of an accident is attributable to God must prove it.
28.The defence of act of God is absolute. A party asserting that there was an act of God is denying negligence. Therefore, without proof of an act of God, there is a presumption that either of the two vehicles was negligent. The 1st Respondent was not driving of the either vehicles. The drivers knew what happened. That is their special knowledge. Section 112 of the evidence Act provides that such possessor of special knowledge has the burden of proof. The section provides that: -
29.In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another  1 EA 334 the Court of Appeal held that:In Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita  eKLR the Court, with reference to the East African Court of Appeal’s decision in Embu Public Road Services Ltd v Riimi  EA 22 stated thus: -
30.The 1st Respondent testified on 19th August, 2020. She adopted her statement and blamed KCD 845D. On cross emanation she said that motor vehicle Registration No. KCD 845D was to blame as it reversed and caused the accident.
31.The Respondents closed their cases without calling any witness. The reference to statement filed are useless as they have absolutely not probative value. The evidence of the 1st Respondent is uncontested. The cause of the accident was the reversing of Motor Vehicle Registration No. No. KCK 845 D.
32.Upon closure of the defence case the particulars of negligence against the third party now 2nd Respondent became mere allegations of no probative value. It could have been different if they were co-defendants.
33.Without evidence, the court Cannot apportion liability. Without defence the Third Party’s case was foreclosed. Consequently, the finding of 100% liability was the only available option. I therefore dismiss the appeal on liability.
34.Given that this is the end of the road for the 2nd Respondent, the 2nd Respondent shall have NO costs as they did not participate in the appeal herein. They also did not testify in the court below.
35.The injuries according to Dr. James Muoki were:-a.Chest tendernessb.Deep cut wound on the chestc.Pain and tenderness on the back.
36.Regarding general damages, the duty of this court is set out succinctly in various decisions of the court of appeal in Butt v Khan  KLR 470 and Kitavi v Coastal Bottlers Ltd  KLR 470.
37.In Kilda Osbourne v George Barnes and Metropolitan Management Transport Holdings Ltd & Another Claim No. 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd v Shephard  2 ALL ER 625, Sykes J stated as follows:
38.In Francis Omari Ogaro v JAO  eKLR, the court stated that a sum of Kes.180,000.00 is sufficient for far more serious soft tissue injuries.
39.In Elizabeth Wamboi Gichoni v Benard Ouma Owuor  eKLR, on 2nd day of December, 2019, the court found an award of Kes.300,000.00 excessive and reduced it to Kes.175,000.00 for serious soft tissue injuries.
40.In Mbati John & Another versus China Zhogxing Construction Company Limited and Another  eKLR decided in February 2016, the Plaintiff was awarded Kes.75,000.00 for injuries involving blunt trauma to the occipital region of the head, bruises of the right shoulder girdle, blunt trauma to the anterior chest, cut wounds on the lumber region of the back and bruises of the knuckles of the left hand. This decision is however, slightly older than the others I have referred to.
41.Elizabeth Wamboi Gichoni v JOO  eKLR, the court awarded Kes.180,000.00 for more severe soft tissue injuries.
42.In Daniel Gatana Ndungu & Another versus Harrison Angore Katana  eKLR, the Honourable Mr. Justice Nyakundi found a sum of Kes. 140,000.00 sufficient in respect of cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee.
43.The court awarded Kes.212,550 as damages made up as hereunder:-a.General damages Kes.180,000.00b.Special damages Kes32,550.00
44.I have considered the foregoing authorities and do not find any error on the part of the court in awarding Kes.180,000.00 general damages. Accordingly I uphold the said award. The same is merited.
45.The 1st respondent, the plaintiff pleaded the following as special damages.a.P3 form 1,000b.Mendel reports 3,000c.Copy of records 550Total 4,550
46.In the case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited  eKLR the court of appeal, Warsame, M’inoti & Murgor, JJ.A, stated as follows: -
47.The court below awarded special damages of Kes.32,550.00. It has been stated time and time again that what is not pleaded cannot be proved. I therefore set aside the said award of Kes.32,550.00 and substitute it with special damages that were pleaded and specially proved, that is to say the sum of Kes.4,550.
48.Based on the foregoing I enter judgment as follows: -a. The appeal on liability is dismissed;b. Appeal in respect of the general damages is dismissed as well;c. I set aside the award of Kes.32,550.00 as special damages and in lieu thereof I award the amount of Kes.4,550.00;d. I award the 1st Respondent costs in the sum of Kes.35,000.00;e. The 2nd Respondent will bear its own Costs; andf. File to be closed