Evans Kibe Ndung’u v Commerical Trans Porters Co. Limited [2018] KEHC 5934 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 681 OF 2007

EVANS KIBE NDUNG’U .......................................................... APPELLANT

VERSUS

COMMERICAL TRANS PORTERS CO. LIMITED ............ RESPONDENT

(Being an Appeal from the Judgment of the Principal Magistrate’s Court, Nairobi before (Hon. Mrs. Ongeri) Delivered on the 13th day of July 2007 in CMCC NO. 2310 OF 2006)

JUDGMENT

The appellant was the defendant in the lower court while the respondent was the plaintiff. The respondent was injured as a result of a road traffic accident that took place on 28th March, 2003 along Nairobi Mombasa Highway near Sultan Hamud. The respondent was driving motor vehicle registration No. GK A 233D which collided with a lorry said to be owned by the appellant and driven by its agent, servant and or employee at the time of the accident. The respondent blamed the accident on the negligence of the appellant’s agent, servant and or employee. Particulars have been set out in the plaint.

After the accident the appellant’s driver was charged in Traffic case No. 2022 of 2003 at Machakos Court where he was convicted. The appellant was therefore vicariously liable. As a result of the accident, the respondent suffered injuries as set out in the plaint, these being, fracture of the left femur and blunt injuries to the right wrist.

The appellant denied the respondent’s claim and in particular that it owned motor vehicle registration No. KAG 099 J at the time of the accident. It also denied that its agent, servant or employee was negligent in the circumstances, and blamed the driver of motor vehicle registration No. GK A 233D as wholly responsible for the accident or that he substantially contributed to the same. Particulars of negligence have been set out in a statement of defence.

After the trial, the lower court found in favour of the respondent and awarded Kshs. 500,000/= general damages and special damages of Kshs. 221,885/= on a 100% liability. The appellant was aggrieved by that judgment and lodged this appeal.

As required of me, I have gone through the evidence adduced before the lower court with a view to arriving at independent conclusions. In holding the appellant liable, the trial court relied heavily on the judgment of the lower court after assessing the evidence adduced by the respondent and his witness. It is necessary to set out the extract of the judgment of the lower court to appreciate the conclusion reached on liability. The court said as follows,

“On the issue of liability, the plaintiff and his witness (P.W 2 who was a passenger in motor vehicle registration GK 233 D said it was the defendants driver who moved to the plaintiff’s lane where the two vehicles collided head on. The defendant’s driver who testified as DW. 1 said it was the plaintiff who hit his motor vehicle at the middle right side.

However, there is evidence that is undisputed that is defendants driver was charged in Machakos court with offences of careless driving and driving a defective vehicle on a public road contrary to Section 49 (1) and 55 (1) of the Traffic Act respectively.

The court found the defendants driver guilty and fined him Kshs. 1,500/= on each count. ….in the current case, there is no indication that the defendant driver appeal against the decision of the traffic court. I find that the conviction settles the issue of liability. The defendant driver was entirely to blame for the accident and I hold him as such. The defendant is vicariously liable in negligence for the tortuous act of its driver who was acting in the course of his employment. The defendant is therefore liable to compensate the plaintiff.”

In the Memorandum of Appeal the lower court has been faulted in holding the appellant liable entirely for the accident and that she misunderstood and misapprehended the severity of the injuries sustained by the respondents and therefore awarded excessive general damages. She is also faulted for disregarding the authorities cited on the issue of quantum and for failing to take into consideration the discounting factors on special damages claimed by the respondent.

In ordinary circumstances, where there is a collision between two motor vehicles both drivers are to blame. Each case however, depends on its own circumstances. In the present case, whereas the collision took place, the evidence presented before the lower court clearly pointed to the negligence on the part of the appellant’s driver.

The respondent is recorded to have applied all means possible to avoid the collision.  He said in his evidence that he was driving at a speed of 40 km per hour. He was on the left side of the road when the other motor vehicle left its side of the road and came to his side. That motor vehicle hit his motor vehicle. Before then, the other driver had flashed his headlights at him. He braked and was suddenly hit by the oncoming motor vehicle. He denied that it was him who went to the side of the other motor vehicle. The other driver also blamed the respondent for the collision and denied that he flashed his lights at the other motor vehicle.

Whereas that it true that both drivers blamed one another, the charging and conviction of the appellant’s driver in the lower court in my view settled the issue of liability. It is true that no appeal followed that conviction, and I am unable to fault the trial court in finding that the appellant’s driver was wholly to blame for the accident.

On the issue of damages awarded the trial court referred to only one decision in arriving at the award in general damages. The case referred to reflected an award of Kshs. 450,000/= for similar injuries. It was an old case of 1996. Other cases cited included Nairobi HCC No. 2246 of 1999 Martin Ngugi Gathenya vs. Sospeter Asanga Munavyi and Another & Machakos HCC 192 of 1997 Jane Mutheu Wambua vs. Onesmus Wambua Mutiso and Nairobi HCC No. 705 of 1996 Peter Wilfred Mutambuki Kavilu vs. Joseh Njihia Wahito & 5 Others.

I have looked at the awards in those decisions and the dates when the judgments were delivered. In awards of this nature, courts are bound to consider the time that has gone by, the value of the shilling over time in relation to depreciation and the injuries sustained by the plaintiff.

The appellate court may not interfere with awards given by the trial court unless the court proceeded on wrong principles, considered or left out material that ought to have been considered. Further, where the award is inordinately too high or too low to reflect a completely erroneous consideration of the evidence and facts.

In this case applying the above guide lines, I am unable to interfere with the award made by the trial court because I have found no evidence to depart therefrom. Special damages were specifically pleaded and in paragraph 7 of the plaint and strictly proved by way of production of receipts during the trial. In the end, I find that this appeal is lacking in merit and therefore dismissed with costs to the respondent.

Dated, signed and delivered at Nairobi this 31st day of May, 2018.

A. MBOGHOLI MSAGHA

JUDGE