1.Before I commence my consideration of this appeal, I find it necessary to explain what transpired before I heard the parties. This appeal was filed on 20th January, 2017. The appeal was heard by Justice J.N. Mulwa on 13th June, 2018, by way of written submission. Judgment was delivered by the learned judge on 20th September, 2018 whereby the learned judge found that the doctor’s report, a vital document was missing from the Record of Appeal. Consequently, the learned judge dismissed the appeal on quantum. By an application dated 29th July, 2019, the appellants sought review of the judgment and also for leave to file a supplementary record of appeal to include the doctor’s report.
2.The learned judge reviewed and set aside the judgment of 20th September, 2018 and granted leave for supplementary record of appeal to be filed. The supplementary record of appeal was filed by the appellants on 14th August, 2019. I heard this appeal by written submissions of the parties and reserved my judgment to days date.
3.John Mwangi, the respondent hereof (hereinafter Mwangi) filed a case before the Principal Magistrate’s Court Kikuyu seeking damages in special and general damages that resulted from the accident he pleaded was caused by the negligence of James Karanu Kinyanjui, the 1st appellant (hereinafter Karanu) and Kikuyu Town Council (the 2nd appellant). The trial court by its judgment of 20th December, 2016 found on liability 90:10% in favour of Mwangi and awarded Mwangi Kshs.1.3 million in general damages. Karanu and the Town Council were aggrieved by that judgment and have filed the present appeal.
4.This is the first appellate court and it is therefore necessary to reconsider the trial court’s evidence, evaluate it for myself and draw my own conclusion though with a caution that I neither saw nor heard the witnesses who testified at the trial court and accordingly, I am expected to make allowances for that: See the case of Selle & Another Vs. Associated Motor Boat Co. Ltd & Aothers (1968) EA 123.
5.Mwangi pleaded by his plaint that on 3rd March, 2013 he was walking along Kikuyu-Wangige road when Karanu with the authority of the Town Council, in the course of his employment, negligently carelessly and recklessly drove/managed motor vehicle registration No. KBJ 751U thereby causing the same to lose control, veering off the rod and violently knocking him down.
6.Karanu and the Town Council denied, through their defence, liability for the accident, by partly pleading that Karanu was not the driver of the subject vehicle; by denying the accident occurred; and by alleging if the accident did occur it occurred due to the negligence of Mwangi. That defence was to the effect that Mwangi suddenly stepped into the road; he failed to keep proper lookout and observance of the vehicle; he crossed or attempted to cross the road when it was not safe to do so; and that he failed to observe the highway code.
7.The Town Council did not deny vicarious liability. That issue therefore was not before the trial court nor is it before this Court.
8.The appellants in their submissions acknowledge that a trial court’s finding on facts should not be easily interfered with. Appellants submitted that an appellate court can however interfere with trial court’s finding on facts where the trial court failed to take account of particular circumstances or probabilities material to an estimate of evidence; or where the impression of demeanor is contrary to the evidence: See the case of Ephantus Mwangi And Another Vs. Duncan Mwangi Wambugu (1984) eKLR. The appellants also cited the case Mwanasokoni Vs. Kenya Bus Services Ltd (1985) eKLR as follow:-
9.Appellant’s submissions were that the trial court’s apportionment of 90:10% should be interfered with because the trial court’s finding was unjustified from the evidence.
10.Mwangi by his submissions stated that appellants had failed to show that the trial court wrongly exercised its discretion. The case of Mbogo Vs. Shah (1968) EA page 93 was cited thus:
11.I have considered the parties submissions on the issue of liability. The trial court on the issue of liability by its judgment, made the following holding:-
12.With that holding juxta positioned with the proceeding, I find the trial court correctly determined liability. Mwangi in his evidence in chief stated:-
13.Mwangi was cross-examined on his evidence in regard to where the vehicle that hit him was coming from and he said: -
14.He also confirmed in cross-examination that it was only him alone that was hit by the vehicle. Mwangi denied he was crossing the road when he was hit.
15.The appellant’s learned counsel did not cross examine Mwangi on the speed of the car that hit him. It was therefore erroneous for the said learned counsel to argue thus:-
16.The other submissions on behalf of the appellants that the trial court failed to find that Mwangi dashed into the road can be responded to by reminding the appellants that the trial court had the advantage of seeing and hearing the witnesses testify. I also note that Karanu when he testified in chief he stated thus:-
17.I must admit I am unable to reconcile Karanu’s answers when he was cross examined with that of his evidence in chief.
18.He stated in cross examination that the crowd of people was on his left side facing him. That Mwangi jumped on the road from the left side. Then he stated:-
19.The impression of that evidence is that Mwangi was hit because the vehicle swerved. Karanu was also not clear that Mwangi was crossing the road. That would seem to be consistent with Mwangi’s evidence.
20.I have closely examined the trial court’s proceedings and I am unable to find that the trial court erred in its determination on liability. In any case, Karanu as a driver bore aa greater responsibility to ensure to keep adequate look out for other road users and in particular pedestrians. The Court of Appeal in the case Equator Distributors Vs. Joel Muriu & 3 Others (2018) eKLR made a similar holding to what I have stated above that is:-
21.The appeal on liability for the reasons set out above is declined.
22.The appellants are aggrieved by the court’s award in general damages of Kshs.1.3 million. They submit that that award was manifestly excessive bearing in mind the injuries suffered by Mwangi. Appellants faulted the trial court for not considering their doctor’s report which stated Mwangi was unconscious for two days but submitted rather that the trial court preferred Mwangi’s doctor’s report which stated Mwangi was unconscious for 3 days.
23.The appellants in my view erred to fault the trial court on relying on that report. I have looked at appellants’ doctor’s report. I am unable to find where the doctor got the information Mwangi was unconscious for only two days. Whether or not Mwangi was unconscious for two or three days does not make a difference for in my view, Mwangi suffered very grievous injuries due to Karanu’s negligence.
24.Mwangi suffered the following injuries:-
- Head injury (cerebral concussion)
- Deep laceration over the left clavicle (collar bone)
- Fracture between the middle third and distal third of the left lower leg (tibia and fibula bones).
25.Dr. Bhanji on examining Mwangi found:-
26.The doctor’s future prognosis of Mwangi was:-
27.The above in my view clearly shows that there is justification of the award in general damages by the trial court. The trial court made the award after comparing the authorities relied upon by both parties.
28.The appellants in their submission erred to state Dr. Mwaura did not note fracture of clavicle. Clavicle is a medical term for collar bone. Doctor Mwaura, in his report noted that Mwangi’s clavicle was still dislocated and it was causing Mwangi experience pain.
29.There is no merit in the appeal against the award in general damages.
30.The appellant cannot be allowed to attack Dr. Bhanji’s assessment of future medical expenses at this appeal when that doctor was not cross examined on those costs nor were different expenses suggested by the appellants at trial. Medical evidence cannot be attacked from the bar: See the case of Chaabhadiya Enterprises V. David Wambutsi Wmbukoya (2017) eKLR.
31.The appeal on future medical expenses for the above reasons is also rejected.
32.The appeal for the reason set out above is found to be without merit and is dismissed with costs which are assessed at Kshs.160,000.