Submissions, Analysis and Determination
6.I have perused and understood the contents of the pleadings, judgment, and grounds of appeal, submissions and decisions referred to.
7.This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and should therefore make due allowance for that. This duty was well stated in Selle & Another v Associated Motor Boat Co Ltd & Others  EA 123 in the following terms:
8.The Court of Appeal for East Africa took the same position in Peters v Sunday Post Limited  EA 424 where Sir Kenneth O’Connor stated as follows:
8.The discretion of this court to interfere with the determination of the trial court also exercising its discretion should be exercised within the confines of the principles set out by Sir Clement De Lestang, VP in Mbogo v Shah 1968 EA 93, where he held as follows:
9.The issues arising out of the appeal herein are;
10.In addressing the first issue, I start by considering Section 8 of the Traffic Act. This Section is in the following terms: -
11.In the case Nancy Ayemba Ngana v Abdi Ali  Eklr it was held that: -
12.And in judicial practice, concepts have arisen to describe such alternative forms of ownership; actual ownership, beneficial ownership; and possessory ownership. A person who enjoys any of such other categories of ownership may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership.
13.Indeed, the evidence adduced in the form of a police abstract showed on a balance of probabilities, that the 1st defendant was one of the owners of the matatu in question...”
14.Further, in the case of PNM & Another (The Legal Personal Representative of Estate of LMM) Vs Telcom Kenya Limited & 2 Others (2015) eKLR in the same vein held: -
15.In this case, prima facie, the 1st defendant was the registered owner of the accident motor vehicle. Nonetheless, the contrary was proved, that the said vehicle had at the material time of the accident been sold and it’s possession and use delivered to the 2nd defendant.
16.It suffices to state that what the decided cases clearly show was considered in the case Benard Muia Kilovoo v Kenya Fresh Produce Exporters  eKLR and was summarised as follows: -
17.It follows that the provision of Section 8 of the Traffic Act or the NTSA extract of record is only prima facie evidence and the same is rebuttable. Dw1 told the trial court that he purchased the motor vehicle from the 2nd defendant and admitted that he was in possession and use of the same at the time of the accident and assumed risk as the owner of the motor vehicle. A sale agreement was produced as DEX 1 for the sale of the motor vehicle. The trial court in its judgment on the first paragraph at page 6 stated as follows;
18.In my view and in light of the authorities above, I find that the trial court misdirected itself by holding that the 1st defendant was the owner of the subject motor vehicle. More so, by fact that Dw1 claimed beneficial ownership of the motor vehicle, the trial court ought to have held as much. Dw1 testified that the 1st defendant was his driver from time to time. On the material day of the accident he was driving the said motor vehicle. From the police abstract that was produced as evidence at the trial court, the 1st defendant was faulted for the occurrence of the accident. He did not testify to rebut the same or substantiate contributory negligence. I find that the 1st defendant was 100% liable and the third party was vicariously liable as well.
19.I now turn to the issue of quantum. The trial court awarded Kshs 650,000 in general damages which the Appellant states was inordinately low. On their part, the 3rd Respondent urges the court to review the award downwards to Kshs 400,000/=. I have reviewed the authorities by all the parties before the trial court to acquaint myself with what guided the learned trial magistrate in arriving at the award of Kshs 650,000. Appellate courts have reviewed awards upwards only when they are convinced that the award is inordinately low.
20.From the medical report dated June 21, 2019, the appellant sustained the following injuries; compound (open) fracture left tibia, mid shaft, cut wound on the occipital region, blunt trauma to the left shoulder, bruises on both hands, blunt trauma to the left shoulder, bruises on both hands, bruises on right hip area and bruises and abrasions on the right leg. In addition, the report states that the permanent partial disability suffered is 4 %. In determining the award of damages, the court has to rely on recent comparable awards and this was appreciated by the Court of Appeal in Mbaka Nguru and Another vs James George Rakwar NRB CA Civil Appeal No 133 of 1998  eKLR where it was held that:
21.In Aloise Mwangi Kahari v Martin Muitya & another  eKLR the plaintiff had sustained compound fracture of right tibia and fibula, bleeding from left lower limb and swollen leg and was awarded Kshs 500,000 as general damages. In *Daniel Otieno Owino & another v Elizabeth Atieno Owuor  eKLR the plaintiff sustained compound fractures of the tibia/fibula bones on the right leg; deep cut wound and tissue damage on the right leg; head injury with cut wound on the nose; blunt chest injury and soft tissue injury on the left lower limb involving the thigh and ankle region. The court set aside the trial court award of Kshs 600,000/- and substituted it with an award of Kshs 400,000/-.
22.I have considered the nature of the injuries sustained by the appellant herein. I have also considered the nature of the injuries in the authorities I have cited above. It is trite that no injuries are similar and assessment of quantum of damages is discretionary. I find that the award of Kshs 650,000 by the trial court was fair and that there is no reason for me to interfere with the same.
23.In sum therefore, judgment is entered in favour of the plaintiff in the following terms;
24.In the end the appeal partially succeeds and the appellant is awarded half costs of the appeal.