1.Vide Memorandum of appeal dated 31st October 2022, the appellant seeks orders that:a.the appeal be allowed and the judgment of the learned trial magistrate on liability be substituted with a finding that the appellant is not 100% liable for the accident;b.the court finds that the damages awarded by the trial magistrate were excessive and reduce the same; andc.costs of the appeal be granted to the appellant.
2.The appeal is premised on the following grounds that:a.The learned Magistrate erred in law and fact in the manner in which she assessed evidence on liability and concluding that the appellant was 100% to blame for the accident;b.The learned magistrate erred in law and fact by awarding manifestly excessive general damages in the circumstances considering the injuries that had been sustained by the respondent according to the evidence;c.The learned Magistrate misdirected himself in law and in fact in not taking cognizance and applying the established principles in the award of general damages; andd.The learned Magistrate erred in law and fact in failing to consider adequately, or at all, the submissions on liability and quantum that had been tendered by the appellant and the authorities, thereby arriving at an erroneous decision.
3.The 1st respondent filed a plaint dated 04th July 2018, seeking judgment against the appellant for special damages of Kshs. 5,100/= general damages and costs with interest. The particulars of his claim were that on 02nd April 2017, the 1st respondent was a lawful pedestrian walking along Kiritiri-Embu Road when the driver of motor vehicle registration number KBK 417G unlawfully, negligently and/or carelessly drove the motor vehicle as a result of which the 1st respondent was hit thereby occasioning him grievous harm. The particulars of injuries were; swollen periorbital area with cut on right eyelid which was sutured, compound fracture on the right anterior mid shaft femur, bruised anterior right mid shaft tibia fibula and surgical toilet right leg wound.
4.The 1st respondent filed an amended plaint amended on 05th September 2018, adding the 2nd respondent as a defendant on the basis of vicarious liability and he also added a claim for future medical expenses. The appellant filed a statement of defense dated 21st September 2018 and an amended statement of defense amended on 19th September 2019, denying the allegations made in the plaint and blamed the 1st respondent for the accident. The 1st respondent filed a reply to the appellant’s amended statement of defense dated 08th October 2019, putting the appellant to strict proof of his allegations.
5.PW1 the 1st respondent, stated that on the day of the accident, he was walking along Kiritiri-Embu Road when he was knocked down by the aforesaid motor vehicle. He rehashed the particulars of injuries as stated in the plaint. On cross-examination, he stated that he was admitted at Embu Level 5 Hospital for three months and transferred to Chogoria Hospital where he was admitted for one month.
6.DW1, the appellant, stated that on the material day, he was coming from Matuu heading to Embu and when he reached Kiritiri area, he saw a motor cycle coming from the opposite direction and it had a total of 4 occupants. That the rider of the motor cycle lost control and veered into his lane. That he applied emergency breaks to avert the accident and, in the process, the car rolled off the road. That the motor vehicle was towed to Kiritiri Police Station. On cross-examination, he stated that he was driving at about 75KPH and there was a slight bend on the road at the point where the accident occurred. That the 1st respondent was a pedestrian along that road. That he was charged with a traffic offence but was acquitted.
7.DW2, PC. Peter Auka of Kiritiri Police Station produced police abstract dated 07th April 2017 and an OB extract which stated that the driver of the motor vehicle lost control of his vehicle and knocked down a motor cycle which had 3 pillion passengers. He stated that there was a flaw in their investigations of the accident and the original investigating officer is since deceased. That the 1st respondent was a pedestrian at the time of the accident.
8.The trial court found the appellant 100% liable for the accident and awarded Kshs. 4,900/= as special damages, Kshs. 120,000/= for future medical expenses and Kshs. 3,000,000/= as general damages for pain and suffering and loss of amenities.
9.This appeal was canvassed by way of written submissions. Both parties filed their submissions.
10.The appellant urged the court to re-evaluate the evidence adduced at trial as guided by the case of Selle & Another Vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123. He argued that under sections 107 and 108 of the Evidence Act, the burden of proof lay on the party alleging. That the police abstract dated 27th January 2018 was never produced during the plaintiff’s case and any evidence in support of the plaintiff’s case was never produced in court. For this argument, he relied on the cases of Benter Otieno Obonyo Vs. Anne Nganga & Another (2021) eKLR and Kennedy Nyangoya Vs. Bash Hauliers (2016) eKLR and added that liability cannot be established in the absence of the police records on the accident investigation.
11.It was his argument that the fact that the appellant was charged and acquitted of a traffic offence does not mean that he is automatically to blame wholly for this tortuous claim. He relied on the case of Caroline Endovelia Mugayilwa Vs. Lucas Mbae Muthara (2016) eKLR. He argued that according to the investigating officer, the motor cycle was found lying on the opposite lane while the motor vehicle was on its lawful lane, proving that the motor cycle rider was to blame for the accident. That the investigating officer had visited the scene where he found the 1st respondent and two others who were travelling as pillion passengers on the motor cycle, even though the appellant insisted that he was a pedestrian. Reliance was placed on the cases of Karanja Vs. Malele (1983) KLR 147 and Independent Electoral and Boundaries Commission & Another Vs. Stephen Mutinda Mule & 3 Others (2014) eKLR for the argument that the 1st respondent should be put to strict proof of this allegation that he was a pedestrian and not a pillion passenger on the motor cycle in order to aid the court in apportioning liability for the accident.
12.Further reliance was placed on Sections 109 and 112 of the Evidence Act and the cases of Victor Muriuki Karobia Vs. Martin Ingecha Wamburu (2016) eKLR, Daniel Muthini Maweu Vs. Gideon Misheck (2020) eKLR and William Kabogo Gitau Vs. George Thuo & 2 Others (2010) 1 KLR 526. He stated that the trial magistrate failed to critically analyze the evidence adduced and that the discrepancies in the pleadings should not have been overlooked in assessing liability. He further argued that the medical examination report by Dr. Kane did not mention any permanent incapacity and that the 1st respondent only suffered skeletal and soft tissue injuries. That the trial court misdirected itself on the evidence and therefore awarded general damages based on inapplicable caselaw. He suggested that an award of Kshs. 800,000/= would suffice in the circumstances, citing the decision in the case of Pestony Limited & Another Vs. Samuel Itonye Kagoko (2022) eKLR.
13.On the other hand, the 1st respondent submitted that from the evidence adduced, no negligence was attributed to him in the accident. He cited the case of Kenya Horticultural Exports Ltd Vs. Julius Munguti Maweu (2010) eKLR and urged the court to re-evaluate the evidence adduced and draw its own conclusions but where it finds no need to interfere with the trial court’s finding on liability, the same should be upheld. He urged the court not to unsettle the award of general damages as it was based on comparative caselaw in the case of Christine Mwingina Akonya vs. Kairu Chege (2017) eKLR where the court awarded Kshs. 4,000,000/= as general damages. He also relied on the case of Jitan Nagra Vs. Abednego Nyandusi Oigo (2018) eKLR. It was his argument that two police abstracts emanated from Kiritiri police station and that this happened because the appellant was attempting to control the outcome of the case. He urged the court to uphold the findings of the trial court both on liability and quantum.
14.I have considered the memorandum of appeal and the competing arguments made by the parties herein both at the trial court and on appeal and in my view, the issues for determination are:a.Whether the finding of the trial court on liability is sound; andb.Whether the trial court’s award of general and special damages is justified.
15.While sitting as an appellate court, I am expected to re-evaluate the evidence and make a finding vis-a-vis the finding of the trial court. In the case of David Njuguna Wairimu Vs. Republic (2010) eKLR the Court of Appeal held thus:-
16.On the first issue for determination, liability is to be established based on the evidence adduced at the trial because liability is a matter of fact. From the available evidence, the court must establish on a balance of probabilities how much blame should be apportioned to the parties. In the case of Palace Investment Ltd Vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR:
17.The answer to this question lies in establishing whether the 1st respondent was a pedestrian or a pillion passenger on the motor cycle. PW1 who is the appellant herein stated that he was a pedestrian at the time of the accident and the same was recorded as such in the police abstract issued to him, dated 27th January 2018. PW1 and DW1 both stated in their testimonies that the appellant was a pedestrian. DW1 narrated that he was driving on his side of the road at about 75KPH when the motor cycle rider lost control and hit his car from the side, thereby causing the accident. If the appellant was a pedestrian, he was injured as a result of actions of the driver of the motor vehicle and the rider of the motor cycle, and not himself. In my view, as relates to the injuries sustained by the 1st respondent, the appellant is solely liable for the accident as no third party proceedings were taken out against the driver and/or the owner of the motorcycle.
18.On the second issue of quantum, the trial court was guided by the case of Hellen Otieno Oduor Vs. S.S. Mehta & Sons & Another (2015) eKLR where the court awarded general damages Kshs. 1,500,000/= and Kshs. 200,000/= as future medical expenses. I have considered the injuries sustained by the 1st respondent and the medical reports produced in support thereof. I have also considered decisions by other courts on the same subject of general damages for similar injuries. In the case of Daneva Heavy Trucks & another Vs Chrispine Otieno  eKLR, the court awarded Kshs. 800,000/= and stated thus:
19.In the case of Geoffrey Kamuki & another Vs. RKN (Minor suing through her late father and next friend ZKN (2020) eKLR, the appellate court upheld an award of Kshs. 450,000/= by the trial court for similar injuries being; blunt trauma to the scalp, which was tender with bruises, blunt trauma to the periorbital region, which was tender, blunt trauma to the right eye, which was tender and could not see clearly, blunt trauma to the chest, which was tender, the right forehead was swollen and tender, she sustained a dislocation of the wrist joint, she sustained fractures of the right radius and ulna and blunt trauma to the right leg, which was tender.
20.The medical report shows that following the injuries, the 1st respondent will not suffer any permanent disability but will need further treatment to remove the metal plates and screws that were inserted in his leg. The 1st respondent testified at trial that he has not been able to work because of the injuries sustained. That after the accident, he was admitted in hospital for a cumulative period of 4 months, which position was not disputed by the appellant. In my view, and in comparison to awards of other courts, the award for general damages for pain and suffering and loss of amenities is excessive. An award of Kshs.1,000,000/= will suffice.
21.As regards special damages, the trial court awarded Ksh. 4,900/= as proved special damages. I have examined the receipts produced for medical report and hospital bill expenses and the amount of Kshs. 4,900/= has been proved. An award of Kshs. 120,000/= was made for future medical expenses. On this, the trial magistrate noted that the opinion by the doctor regarding future medical expenses did not specify the medical facility where the procedure will be undertaken. The future medical expenses had been estimated at Kshs. 327,000/= but the trial court awarded Kshs. 120,000/=. I agree with the trial court on this award because it may not be possible to know exactly how much money will be needed for future treatment before the treatment becomes due. Such was the position in the case of Forwarding Company Limited & Another Vs. Kisilu; Gladwell (third Party) (Civil Appeal 344 of 2018)  KECA 96 (KLR), where the court stated as follows;
22.Therefore, I find that the appeal partially succeeds with respect to quantum. The trial court’s finding on liability is hereby upheld. For the avoidance of doubt, the court finds as follows:a.Liability 100% against the appellantb.General damages for pain and suffering and loss of amenities Kshs. 1,000,000/=c.Proven special damages Kshs. 4,900/=d.Future medical expenses Kshs. 120,000/=Grand Total Kshs. 1,124,900/=e.Each party to bear their own costs of this appeal;f.Interest on (a), (b) and (d) above shall accrue from the date of the trial court’s judgment until payment in full.g.All interest shall be at court’s rates.
23.It is so ordered.