Francis Muiruri Mwangi v John Ngugi [2015] KEHC 7453 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO.  444   OF 2011

FRANCIS MUIRURI MWANGI………………………..……………..APPELLANT

VERSUS

JOHN NGUGI……………………………………………………..RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of the Senior Resident Magistrate Honourable B.A. Owino in Thika Chief Magistrate’s Court Civil suit No.  791 of 2009, delivered on 5th September 2011.

The brief  facts of  the case in the court below  are that  the appellant  Francis Muiruri Mwangi  was cycling  along Nairobi- Thika Road  at Tuskys on 9th February 2009 when he was  violently knocked down by motor vehicle registration No.  KBF 201E belonging to the respondent John Ngugi.  The appellant sustained injuries on his body and sued the respondent for recovery of general damage as well as special damages.

The Respondent denied the claim in his defence and upon hearing evidence from both the appellant and the respondent, the trial magistrate found that the appellant had not proved his claim against the respondent on a balance of probabilities and dismissed the  appellant’s suit, which  order of dismissal prompted  this appeal.

The appellant’s Memorandum of Appeal dated 14th September 2011 raises ten grounds of appeal.  The same was filed on 15th September 2011.

The said Memorandum of Appeal and grounds will be considered at a later stage.

The grounds of appeal as set out in the Memorandum of Appeal filed in court on 15th September 2011 are:-

The learned trial magistrate erred in law and in fact in failing to appreciate that the plaintiff had proved his case on a balance of probabilities.

The learned trial magistrate  erred  in law and in fact  in failing  to address her mind on the  evidence  adduced and  hence, made erroneous  findings  dismissing  the suit.

The learned  trial magistrate  erred  in law and in fact  in failing  to address her mind on the evidence adduced by the plaintiff’s doctor  and hence, made an erroneous  finding  that his evidence did not support  the plaintiff’s injuries.

The learned trial magistrate erred in law and in fact in failing to address her mind on the evidence adduced by the plaintiff and hence made an erroneous finding that his evidence was not corroborated.

The learned trial magistrate erred in law and in fact in addressing her mind to issues which were not before the court and hence made an erroneous finding   dismissing the suit.

The learned trial magistrate erred in law and in fact in making a finding that the defendant’s evidence was not challenged.

The learned trial magistrate erred in law and in fact in failing to consider the parties written submissions.

The learned trial magistrate erred in law and in fact in failing to set out the issues for determination and in failing to make specific and concrete findings on the issues in dispute.

The learned trial magistrate erred in law and in fact in failing to make complete, clear and intelligible record of the proceedings and thereby deprived the appellant his right to a fair trial.

The learned trial magistrate erred in law and in fact in failing to assess the quantum of damages she would have awarded in the event the claim was proved.

The appellant  prayed  that the  trial magistrate’s  judgment  be set aside, judgment  on liability entered  at  100% and this court do assess the quantum  of damages payable  to the appellant.  He also prayed   for costs  of the lower  court  suit, this appeal and interest  and such order further  or other order as this court may deem fit to grant, inclusive of an order for  a retrial.

This  being the first appeal, I am reminded  of my primary duty as the first  appellate  court to re-evaluate , re-assess and reanalyze  the extracts on the record  and then determine  whether  the conclusions  reached  by the  learned  trial magistrate  are to stand  or not and give reasons  either  way.  As was  encapsulated  in the case  of Kenya  Ports Authority  versus  Kuston (Kenya) Limited (2009) 2 EA 212 where  the Court  of Appeal held  inter alia:-

“ On  a first appeal  from the High court, the  court  of  Appeal  should reconsider  the evidence, evaluate  it itself  and draw  its own conclusions  though it should  always bear  in mind that it has  neither  seen nor heard  the witness and should make  due allowance in that respect.

Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”

The plaintiff’s case

Pleadings

In this plaint dated 1st September  2009  and filed  in court on                   7th September 2009, the plaintiff  pleaded  that the accident  in question occurred as a result  of the negligence  of the Defendant/ Respondent herein .  The particulars  of negligence pleaded were

Driving without due care and attention.

Driving at a speed that was excessive in the circumstances.

Failing to keep or maintain any or any proper look out. Overtaking or attempting to overtake when it was unsafe to do and hence causing the accident.

Driving a defective motor vehicle.

Failing to have due regard to the safety of cyclists reasonably expected to be cycling alongside the said road and in particular the plaintiff.

Failing to have due regard to other lawful road users and in particular the plaintiff.

Failing to warn the plaintiff of the approach of the said motor vehicle by hooting or in any other way reasonably practicable in the circumstances.

Failing to stop, slow down, to swerve or in any way so to manage and or control the said motor vehicle and avoid the accident.

In so far as is reasonably practicable under the circumstances the plaintiff will rely on the doctrine of res ipsa loquitur.

The plaintiff  also pleaded  that he sustained  injuries   involving  dislocation of  the right elbow  as a result of the said  accident and complained of recurrent  pains  on the right elbow.

He therefore  claimed  for general damages  and special damages  for police abstract  Kshs 200; medical report 2000, P3 form  Kshs 300, treatment  and medical expenses  Kshs  1080; and  copy of records  for motor vehicle KBF 201E- 500 all totaling Kshs 4,280. 00,  He also claimed for  costs of the suit  and interest  at court rates.

Defence case.

In their defence, the defendant  denied  the occurrence of the accident, ownership of motor vehicle registration No.KBF 2001E and all particulars of negligence  attributed  to him  and in the  alternative  pleaded that if at  all such accident  occurred then it  was solely and or substantially contributed  to by the  negligence  of the plaintiff in that.

He failed to take any adequate precaution for his own safety.

Failed to wear any adequate protective apparel as designed by law.

Entering /joining the main road without checking.

Failing to give way to motor vehicle KBF 201E which had right of way.

Cycling at an excessive speed in the circumstances.

Failing to property steer and control his bicycle.

Ramming into the defendant’s motor vehicle.

Cycling in a dangerous and careless manner.

Failing to keep to the cyclist path.

The defendant denied that the doctrine if Res Ipsa Loquitor was applicable in the circumstances of this case.

The defendant  also pleaded inevitable accident  and denied particular  of injuries , loss and  damage  and even receiving  Demand Notice and prayed  for dismissal of the plaintiffs  suit with costs.

On 17th September 2009 the plaintiff filed a reply to defence joining issues with the defendant’s defence and denying all particulars of contributory negligence alleged against him.

Evidence for the plaintiff:

The plaintiff testified  and called  two other witnesses, a doctor G.K. Karanja  who examined  him and prepared a medical  report and Dr Lenny Oginga  of Thika Level 5 Hospital who produced  medical notes   for  Doctor Waki  and Doctor Maina .

In his testimony, the plaintiff  who testified  as PW2 told the trial magistrate that he was  a boda boda cyclist  and on 9th February 2009 at 7. 30 a.m. he was  riding  along Kenyatta  road near Tusky’s  market  in Thika  town  with a pillion  passenger, on the left side of the  road  facing town and as he was about  to turn right, he stretched out   right  hand to signal ( warn motorists  of his  intention  and suddenly, a matatu  from  behind  hit him by the left  side body panel, while trying  to overtake  him as he was  turning.  He was thrown off the bicycle and landed on a tarmac.  The matatu stopped and police came to the scene.  He was rushed to Thika District Hospital and treated for injuries.  he was   treated  as outpatient.  He reported to the police, and was issued with P3 form and police abstract.

He confirmed that it was motor vehicle registration No.  KBF 201E that hit him that a search conducted at the Registrar of Motor Vehicles confirmed that it belonged to the defendant herein.

Following the accident, the plaintiff was injured on his right elbow which had not healed as at the time of trial.  He sought for damages and costs from the defendant because the latter’s driver was driving recklessly thereby causing the accident.

In cross examination, he  maintained that he was hit from behind  and that  he saw  the motor vehicle  just before he started  turning  and that he  had checked  behind  before he started signaling to  turn  and saw the motor vehicle  at a distance  of about  10-15 meters  away  and waved his right  hand but  the motor vehicle  came at  high speed  without  breaking or swerving away from him  yet he had  time to serve  or brake.  He stated  that  the driver  was overtaking  him as he tried  to him to the right  and that it  was the  left side of the motor vehicle  that  hit him.  He denied being reckless and causing he accident. He also denied being called to testify in a traffic case.

The plaintiff’s witness PW1 Doctor G.K. Karanja examined the plaintiff on 1. 3.2010 and prepared and produced a medical report showing that the plaintiff had a history of having been injured in a road traffic accident.  That the plaintiff sustained soft tissue injury on right elbow joint with dislocation and had pain on and off.  He was treated at Thika District Hospital.  He was out of work for one month but had fully recovered at the time of examination.  He charged shs 2000/- for medical report and Kshs 5000 for court attendance.

On cross examination by Mr Ouko advocate   the doctor stated that the patient had treatment notes from Thika District Hospital and there was no mention of any loss of consciousness by the plaintiff.

Further, that the plaintiff informed the doctor that he had been given oral medication for pain only.

PW3 doctor Lenny Oginga a senior medical officer at Thika  Level 5 Hospital testified  and produced  medical treatment  notes  for  the plaintiff on behalf  of Doctor Waki and doctor  Maina who  had attended  to the plaintiff and filed P3  form.

According to Doctor Lenny, the plaintiff was treated for bruises around the right elbow after a road accident.  That he had been hit by a motor vehicle lost consciousness.  He had pain and bruises around the elbow joint with limited movement.  X-ray done revealed dislocation of elbow joint which was reduced under anesthesia and that the injury healed but he complained of stiffness.  He was therefore referred for physiotherapy after being discharged.

In cross examination by Mr Mwangi, the  Doctor  Lenny stated that the treatment notes  for 18th February 2009  indicated  that there was  dislocation  but X-ray  showed  no fracture, which  according to him, would  have shown  on  9th February 2009.  There was no evidence of losing consciousness, dizziness or headache.  He had  not seen the plaintiff’s X-ray  films  nor even met  the plaintiff in person, except  that the P3  form was filed on 1st July 2009 at their  hospital where  he worked and that the  doctor had  indicated that there was possible dislocation.

According  to Doctor Lenny, the person who filled  the P3 form  erred in not  indicating  the head  injury  which, to him, was the most serious  injury as loss of consciousness  if not dealt  with could  lead to death from a possible  head  injury.  He clarified that pain on the elbow joint and limited movements were the clinical indications of a dislocation.

At the close of the plaintiff’s case, the defence called three witnesses.  DW1 Benson Macharia Kariuki testified that he was a PSV driver who plied Thika/Matuu road and on the material date of   9th February 2009 he was driving motor vehicle registration No.  KBF 201B from Matuu to Thika.  As he was approaching Tusky’s Supermarket at OAU Road, a cyclist emerged into the main road where he (the witness) was moving.  That he was driving at 50 kilometer per hour.  He slowed down and applied brakes and hooted at the cyclist in vain.

The cyclist neither moved away nor stopped and instead joined the road ahead of the motorist driver/witness that is when the motor vehicle brushed against the cyclist. That the accident happened in quick succession as the cyclist wanted to turn right into the Tusky’s area.  He blamed the accident for the reckless of the cyclist as he was riding without due care.  That is was the left side of the motor vehicle mirror that hit the cyclist who had a pillion passenger. According to DW1, the cyclist  lost balance and fell down  together with  his pillion passenger  but the latter jumped  off the bicycle  in time and  was  therefore not injured but that  the cyclist  sustained slight  injuries  on the elbow.  DW1reported the accident to the police who came to the scene and found the cyclist still there.  They both went to the police station and recorded statements and the cyclist even rode his bicycle to the police station.

According  to DW1 it is the  cyclist  who did not give way  on a highway by entering the road recklessly  and then  tried to turn  right before allowing  the motorist  to pass, which act  the DW1 did not anticipate.  He denied even being prosecuted for any traffic offence.  He concluded that the accident motor vehicle was owned by the defendant.

In cross examination, the witness told the court that the accident took place at 7. 00am and the road was straight.  Further, that the cyclist entered the road from a junction and by that time, the motorist had reached there.  That he, on seeing the  cyclist, slowed down, hooted and swerved  to the right to avoid  hitting him but the cyclist suddenly turned to the right and  rammed  into the motor  vehicle and fell out  of the road together  with  his pillion  passenger.  The witness asserted  in re-examination that he was never prosecuted  for any offence  following the accident  and  that the pillion passenger walked  away DW11, Doctor Isaac Nderitu also testified  on behalf  of the defendant  that on 22nd February 2010 he examined  the plaintiff/appellant  and compiled a report.  The examination was one year after the accident, on request from Directive Insurance Company Ltd Advocates.  According to doctor Nderitu, on examination revealed no fracture on the affected elbow.

In cross  examination, he stated  that the  P3  showed a reduction  of the elbow joint was done  as well as physiotherapy, but the  treatment notes  and X-rays showed  no fracture.  He confirmed that the P3 form was filled at Thika District Hospital.  That he was a general practitioner in Thika.

DW3 PC Patrick Rutere from Thika Police Station Traffic  Department  testified  that as pr their  records, an accident  involving  motor vehicle  registration No.KBF 201 E and  a pedal  cyclist  along Gatitu Road was  reported.  That the  motor vehicle  and cyclist  were headed  in the same direction with the  cyclist  ahead and  at the junction into Tusky’s Supermarket, the cyclist  turned right  without warning  and he was hit  by one side of the motor vehicle .  He confirmed that both  the motor vehicle  and cyclist  were using  the left lane  into town and the road was straight, the morning  was also  clear  in visibility the witness  was among the first police officers to alive  at the scene.  He further stated that no police file was opened and that PC Simiyu who was the investigating officer   was transferred.

In cross examination by Mr Kimetto advocate, the witness responded  that when he  visited  the accident  scene, the motor  vehicle  was there  but he did not  find the  pedal cyclist  at the scene.  He  asserted  that the police  concluded  that the cyclist  was to blame  for the accident but no one  was charged  although  according  to the police abstract, the driver  of the motor vehicle  was the one  to blame for  the accident.

In re-examination , he answered  that none  of those involved  in the accident  was blamed  for the accident  officially but  the report  booking  indicates  that the cyclist  suddenly  changed lanes  and in so doing, caused  the accident.

At the close of the defence hearing, both parties agreed to file written submissions.  The plaintiffs  submissions  were filed  on 26th July  2011  supported  by various  authorities, whereas  the defendant’s submissions  were filed on 8th August 2011.

In brief submission the plaintiff’s advocates framed 3 issues for determination which touched on:-

Ownership  of the motor vehicle  involved  in the accident

Whether the accident occurred, who was to blame for the said accident?

Quantum of damages and how much?

The defendant’s counsel made submissions touching on liability and quantum.

In the judgment delivered  on 5th September 2011, the  trial magistrate B.A. Owino Senior Resident Magistrate  dismissed  the plaintiffs  suit against  the defendant .The trial magistrate’s reasoning  was that the plaintiff had not proved  that the defendant’s driver  was to blame  for  the accident.  That he did not  call the pillion passenger who was an eye witness  to corroborate  his evidence , which  omission could only  be interpreted  to mean  her evidence  would be adverse  to that of  the plaintiff, and that  the plaintiff was  the author of the accident.  She also found that the plaintiff did not prove that he suffered any dislocation of the elbow as alleged.  It is that judgment  dismissing  the plaintiffs  suit that provoked  the appeal herein filed on  15th September  2011 setting out the  10 grounds of appeal as reproduced  on this judgment.

This appeal was admitted  to hearing on  20th May 2014 and directions  were given on 21st July 2014  both parties  advocates agreed  to have the  appeal disposed of by way of written submissions .

The appellant who was the plaintiff in the lower court filed his submissions on 29th August 2014.  As at  the time  of writing this  judgment , the Respondent  had not  filed any submissions  despite  the leave granted on 23rd September 2014  to file the  same  within 14 days, and the  matter  being mentioned  on 23rd October 2014 and 2nd December 2014  when the  date for judgment  was set.

I have carefully considered  this appeal, he pleadings, evidence  and submissions  by parties  in the lower court, the judgment by the trial  magistrate  and the submissions  by counsel for the appellant  in support of  the appeal, and the authorities  relied on.

The issues for determination flowing from the ten grounds of appeal, as correctly framed d by the appellant’s counsel are

Whether the appellant proved his case against the respondent on liability, on a balance of probabilities.

Whether  the trial magistrate  erred in law  and fact in dismissing  the appellants suit and  whether  she should have  given an award of  damages  had she found  the appellant  had proved  his case against the appellant.

In the submissions before this court, the appellant’s counsel contends that the ownership of the accident motor vehicle was not denied and neither was the occurrence of the accident.

What  was  in  issue  is who  was to  blame  for the occurrence  of the said accident  and the resultant  injuries.  I agree that the above two facts were not controverted and that what was ion controversy is who was to blame for the accident.

Section 107 of the Evidence Act provides that:-

“Whoever desires   any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that facts exist?”

(2) When  a person  is bound to prove the  existence of any fact  it is  said that the  burden  of proof lies on that person.  Under Section 108 of the Evidence Act the burden of proof   in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Under Section 109  of the same Act, the burden of proof  as to any particular  fact lies  on the person who wishes the court  to believe in its  existence, unless  it is provided by any law that  the  proof  of that fact  shall lied on any  particular  person.

As the first appellate court, my duty, course, is to approach the whole of the evidence on record from a fresh perspective and with an open mind.  I am enjoined, under Section 78 of the Civil Procedure Act, to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at my own independent conclusion.

In undertaking  that duty, however, I reiterate that M must bear  in mind that unlike  the trial court  which had  the benefit of hearing and  observing   the witnesses, I make  my own conclusion  from the evidence as  captured  in the record as presented. I  have no advantage  of gleaning  from the demeanor  and enhanced communication  of witnesses  as they testified  before the trial court .  For those reasons,  I must be slow and cautious  in disturbing  those  factual findings  of the trial court  unless  it is clear  that they  were based as no evidence at all.

I have  in this judgment  set out  the evidence as was  adduced  in the  trial court  by all parties  and their  witnesses as they testified.

What  I gather  clearly  from the plaintiff/appellant’s  testimony is that “he wanted  to cross over” to the other side  of the road and  he did  give a hard  signal to the  defendants driver  but before  he could completely turn, he was knocked  by the defendants /Respondent’s motor vehicle and blames  the defendant’s driver  for not  waiting for him (plaintiff) to  turn.  He claims that the defendant’s driver tried to overtake him as he was turning.

The appellant stated that the matatu suddenly came from behind him and hit him before he could turn right completely.  Although the defence tried to suggest to him that he was joining the road when he was hit.  In cross examination, the  appellant  maintained  that he  was already on the road, not joining  the road when he tried to turn before he  was hit and that he checked behind  before  he stated signaling  to turn.  That he had  seen the offensive  motor vehicle at a distance  of 10-15 meters  away but  the motor vehicle  came at high speed  he stated: “I  signaled  and then I started to turn  right.  Before I could turn completely, the matatu came as if to overtake me and then hit me.”

From the above evidence of the applicant’s  own testimony, it is clear  that the cyclist  under estimated  the speed  of a motor vehicle coming behind  him and  when the signaled  to turn to the right , he should have  ensured  that it was completely  safe  for him to turn  to the  right before  making that move.  That testimony by the appellant is, in fact, corroborated by the defence witness 3 No. 62812 pc Patrick Rutere of Thika police station who received the report.

According to DW3, the cyclist and the motorist were going in the same direction when the accident occurred, not that he was joining the road.  The appellant states  that the motor vehicle  that hit him  was 10-15 meters  behind him  when he  saw it  and signaled  his hand to signify  the intention  to turn to  the right at  the junction.  The minute   in the booking report also indicated that the cyclist suddenly changed lanes and caused the accident.  All parties testified in agreement that the road and visibility of the road were clear.

No charges were preferred against either the cyclist of the motorist, from the documents produced in court including the police abstract.  Although the defendant’s driver  DW1 Benson Macharia  Kariuki testified that  the cyclist  emerged  onto the main  road, suggesting that he came  from some feeder  road, that  evidence  is not supported, not even by his own witnesses.  Although DW2 alleges that the event happened in quick succession, in my view, the driver ought to have seen the cyclist   who was ahead o him.  He does not deny seeing the cyclist before hitting him.  And if  both cyclist  and  motorist  reported  to the police, with DW3  replicating the  evidence of PW2, this court  finds that  both the  motorist  and cyclist were going in the same direction and  that the appellant was trying to change lanes to go to the right side  of the road without  ensuring that  it was safe  to do so.  On the other  hand, the driver  of the accident  motor vehicle  who was  following  the cyclist  from behind and therefore  he ought to have seen the cyclist  ahead of him and driven  with due care and  attention to avoid hitting  the cyclist who  says he  signaled  with his right  hand giving  an indication  to turn to the right.

If the  weather  and road  were  clear and straight  as per the  evidence on record, in my view, nothing prevented  the motorist  from seeing the cyclist  ahead of him and taking an action of slowing down to give way to the cyclist  to cross the road d as opposed  to insisting  on overtaking him.  Although DW1 stated that he hooted but that the cyclist did not heed, I do not believe him.  According to DW1, he applied breaks then hooted but the cyclist “didnot move away or stop”.

In my view, if the cyclist  was emerging from the feeder  road  into the  main road  when he was hit as alleged by DW1, then  it is not clear  how he could have moved away as opposed to stopping to  give way to the motorist.

My own appreciation of DW1’s evidence  is that  the appellant  cyclist refused  to keep to his left  land and  insisted on going into the  right side of the road  with a view  to crossing  to the other  side of the road but  since the motorist  was close and did not  see the signal by the cyclist, the two came into contact  with each other  when the  motorist  was overtaking  the cyclist; since  they were going on the same  direction.  That also explains the  evidence by both  the plaintiff/appellant and DW2  the police officer that “it  was the left side of the motor vehicle  that came  in contact  with the cyclist, who in turn got injured  on his left elbow after  falling off the  bicycle.  In my view, had the appellant been hit head on, or had the cyclist crushed into the motorist, he may not be alive today, or the injuries would be debilitating.

In the circumstances I do not believe DW2 that the appellant rammed into the motorist.  Furthermore, the cyclist  could  only have  turned to the right  of  the road  of he  was already  on the  road.

The respondent  submitted  and trial magistrate  agreed  with him  that the cyclist  having failed  to call  his pillion passenger who was  with him during the  accident, it must be  inferred that the pillion passenger  could have given evidence adverse to his.  This principle was enunciated in Bukenya vs Uganda (1972) EA 549.

However, from the evidence on record, it is uncontroverted that the appellant was a boda boda rider going about his business carrying passengers for pay.  In that kind  of business, it cannot  be expected  that the  appellant  must know  his customer who are engaged  in their own business  and  who may never  be  willing to be involved  in court cases.  From the record, the evidence  is clear  that the  passenger  was not injured  and that  she walked  away after  the accident  by jumping  off the  bicycle.  There is no evidence that the pillion passenger  was known to the cyclist  appellant  prior to that day of  accident and or that  she recorded  a statement  with the police  regarding  the material accident, attributing  its  occurrence  to either  the appellant or motorist.

For the above reason, I find that the trial magistrate’s find that had the pillion passenger been called as a witness she would have given evidence adverse to the appellant.  In my view, that conclusion was erroneous in principle.

This was a case of the appellant’s word against the respondent, each of them blaming one another for the occurrence of the accident.

In my most considered opinion, the  trial magistrate, in the circumstances of this case, did not  require  evidence  of the pillion  passenger to assess the level of blame  on either side, especially, taking  into account  the evidence  from DW3.

In the case of Jane Wangari vs Felix Ole Nkaru HCC 191/2002  the court  held  that: “even if the defendant’s vehicle  was not  over speeding, the traffic  rules  require that there be a proper  distance  kept between the vehicles.  The vehicle behind has a greater duty to care to ensure that there is no collision between vehicles”.

In the above case, the facts were that there  was no distance kept  between  two motor vehicles  going in the same direction and  when the  motor vehicle  ahead stopped suddenly, to avoid  a collision, instead of  swerving to the left side  of the  road the motorist behind swerved  to his right  side into  the path  of an oncoming  motor vehicle.

Nonetheless, in the above  authority, the  learned Judge  found the motorist  ahead liable  wholly because  he had been convicted of causing death  by dangerous  driving  and that the evidence  was clear  that  he was reckless  in his driving and failed  to observe the traffic Rules.

In Isabela W. Karanja  vs W. Mabele (1982-88) KLR the court  held that  where the accident  involved  the pedal cyclist  and a motor vehicle, the latter was driving  a lethal machine  hence he  had  a greater duty of care.

Nonetheless, in the above decision, the evidence was clear that neither   the driver nor the pedal cyclist saw the other before the accident ‘collision.

In that instant case, the pedal cyclist who was ahead of the motorist states that he saw the motorist behind him.  The motorist too saw the pedal cyclist ahead and the weather was clear while the road was straight.  None was therefore obstructed from the view of the other.  In my view, both of them could have avoided the accident had they adhered to road safety regulations.

In this case, I find that it would be unnecessary to go into the precise speed to go into the precise speed of the respondent.  Instead, it is sufficient to say that  he was  driving moderately  since he had seen the cyclist  ahead  and he could not predict  whether  or not the cyclist  would  turn to the right  while the respondent  attempted  to overtake him.

Had he been driving too fast, in my view, the cyclist could not have survived the impact.  The appellant on the other hand, having seen the motorist approach, he should have slowed down and kept to his lane until the motorist passed him before attempting  to go to the right side of the road.

It is trite law that the burden of proof lies with the party who alleges or asserts the existence of facts upon which he desires the court to give judgment as to any legal right or liability.

It was therefore the duty of the appellant to prove that the respondent was negligent by proving any of the acts of negligence pleaded.

Nonetheless, under Section 108 of the  Evidence At, the burden of proof  in a suit  lies on the party who would fail  if no evidence  at all were given by either  party( see Toyota Kenya Ltd vs Express (K) Ltd (2013) e KLR.

In this case, albeit  the respondent  had no counterclaim, he  nonetheless  pleaded  contributory  negligence  against  the appellant  hence, he  was under a duty  to prove any  of those  acts of negligence attributed to the appellant.

Having anxiously considered and analyzed the evidence on record, I have come to the conclusion that both the cyclist and motorist were to blame for the accident as none of them effectively avoided the other.  Each of them claimed the right of way without having regard to their own safety and the safety of others.

I would however apportion  liability at 70: 30 in favour of the plaintiff/applicant  against  the defendant/respondent  for reasons  that the  respondent  was driving  behind the appellant  and therefore  bore a greater  duty of care since  he saw the  cyclist  ahead  of him, and  should have  prudently  ensured  that it  was  safe  for him  to overtake  the appellant since he was driving a lethal machine. It is for  those reasons that I find the  trial magistrate’s assessment  of the evidence erroneous, which error  made her  to conclude  that since  the appellant  did not  call the  pillion passenger, the latter would have  given evidence that would  be adverse  to his interests and  therefore  dismissed  the appellant’s  suit  without  making a finding that the  respondent’s  evidence  was not challenged.

On quantum, the appellant  faults  the judgment  of the court below  for failure  to assess  damages  that the  appellant would have  been entitled  to, had the court  found that  he had proved his case on a balance of  probabilities .  The record is clear that indeed, the trial magistrate did not assess any damages that she would have awarded the appellant had his claim been successful.

I agree with the appellant  that such failure  by the learned  magistrate  is against  the established  principles  of law  and practice .  The lower court and this court are not courts of last resort except where the statute expressly contemplates.  That being the case, it is absolutely necessary that damages are assessed even if there is no proof of liability.

In Gladys Wanjiru Njaramba vs Globe Pharmacy & Another (2014) e KLRthe court stated that:

“ it is  trite law  that the  trial court was  under a duty to assess  the general damages  payable  to the plaintiffs  even after  dismissing  the suit.  This position  is confirmed  by the court  of  Appeal  in  the case  of Modekai Mwangi Nandwa vs Bhoghab Garage Ltd CA No. 124/1993(1993) KLR  448 where  the Court of Appeal  held  that the practice  that damages be  assessed  even if the case is  dismissed  does not  imply  writing  an alternative judgment  and in the  case  of Matisya Byabaloma & others vs Uganda Transport  Co. Ltd, Uganda Supreme Court CA NO.  10/93 IV KALR 138 where the court held that a judge erred in not assessing the damage he would have awarded had the appellant been successful in her claim.

From the above  authorities, it is  clear that the trial court fell  into error by not assessing  the award  of general damages  she would have  awarded to the appellant  had he been successful  in proving his  case on liability.

I shall  now proceed   to assess  such  damages  based  on the injuries  sustained  by the appellant .  But before  I  do so, I must address  the issue  raised  by the appellant  and which is  apparent  on record in  the learned  magistrate’s judgment  at page  113  of the record of  appeal.  She stated:

“………..more importantly  according  to the plaintiff’s own documents ( i.e. treatment  notes  and  P3 form) there  was no conclusive  diagnosis  of a dislocation as alluded  in the plaint.”

That  conclusion   suggests  that the  appellant  did not prove that he  was injured  as alleged  in the plaint  that he  sustained  injuries  involving  dislocation  of the right  elbow  and that  he complained  of recurrent  pains  on the right elbow.

At page 30 of the record of appeal, the appellant testified that he was hit and thrown off the bicycle and he landed   on the tarmac.  He was taken to Thika District Hospital where he was treated and discharged.  he  produced  the medical report  through  Dr G.K. Karanja, who examined  him on 1st March 2010 and found that  the plaintiff/appellant sustained  soft tissue  injuries  on the right  elbow joint  with  a dislocation.  He was  put on drugs  and physiotherapy   for one month  and as at the time  of examination  the appellant  had  slight  pain  on the injury  site  on and off.  He suffered ‘harm’ and was now fully recovered.

Doctor Lenny Oginga a Senior Medical officer  at Thika Level 5 District Hospital testified  and produced he appellant’s initial treatment  notes  from that hospital on behalf  of Doctor  Waki  and Doctor Maina  who were  his colleagues  and who had  attended  to the appellant.

According  to Doctor Lenny, the appellant  was treated  for bruises  around the  right elbow  after a road accident  lost consciousness  after being hit  by a motor vehicle  and falling down.

On cross examination, he had limited movement at the right elbow, pain and bruises around the joint.  X-ray showed dislocation of the elbow joint.  It was then reduced under anesthesia.  The injury healed but he complained of stiffness and he was referred for physiotherapy.

In cross examination the doctor  replied that there  was no  fracture  according  to X-ray  but that  on 18th February 2009 the notes indicated that there was dislocation  and no record of  unconsciousness .  He indicated that there was possible dislocation.  The respondent’s  testimony  too stated  that the appellant  was  slightly injured  on the elbow  after being  hit by the left side  mirror and loosing balance  and falling down.

DW2 Doctor Isaac Nderitu who testified on behalf of the respondent stated that physical examination of the appellant revealed no fracture on the affected elbow.  He however  confirmed in cross  examination that the appellant’s  treatment  as per P3 showed that a reduction of the elbow joint was  done and that he indeed  underwent  physiotherapy, which could  be done even for soft tissue  injuries.  He stated that although the treatment notes did not talk of fracture or deduction, the patient was referred for X-ray to rule out fracture.

I have examined the appellant’s treatment notes, P3 form and medical reports.  The treatment notes from Thika District Hospital serial No. 1532 show:

“C/O right elbow pain and bruises.  Patient hit  by a  vehicle  and fell; he sustained  injury on the  right upper  limbs and reported to have lost consciousness for  10 minutes, no headache, no dizziness, limited  elbow movement, pain on passive  flexion  bruises  on posterior  of elbow.

Imp:?  Dislocation of right elbow joint.’

The record further shows that the appellant was referred for X-ray and was followed up to exercise and physiotherapy to improve motion.  The X-ray showed no fracture.  The injuries enumerated above were also replicated in the P3 form.

From the record, it is clear that there was no fracture and neither did the appellant nor his doctors even state that he had a fracture.  What is clear is that he was referred for X-ray to rule out a fracture, not that he had a fracture.  However, the evidence on all the fours is clear that the appellant sustained a right elbow dislocation and had to undergo physiotherapy to improve flexion.  It was therefore erroneous for the trial magistrate to conclude that the documents showed no fracture or dislocation of the elbow.

On the issue  of head injury and losing  consciousness, the  appellant did not  plead it and  therefore  it was unnecessary to submit  on those injuries  that were  never  pleaded  or proved  as the appellant  did not  seek to amend  his plaint  to  include  extra injuries .  His testimony  was  however  scanty   on  the type  of injuries  he sustained  except  in cross examination  where he stated   that  “I was hit  on my right hand / arm.  I was thrown off the bicycle.”

Since the law is clear that parties are bound by their pleadings, this court finds that the appellant proved   by his medical records the injury involving dislocation of the right elbow.  I also find the P3 and treatment notes being consistent in all material particulars on the pleaded injuries.  These injuries were corroborated by the respondent that the appellant “was slightly injured on the elbow.”  Not being a doctor, he could not, in my view, understand the depth of the injury.

Having found  that the appellant was injured  on the right  elbow  involving  dislocation and bruises  thereof  all  classified  as soft tissue  injuries  as per the P3  and medical reports, I now proceed  to exercise  my discretion  to assess  damages  based on those injuries.

In Patel M. Kariuki vs Attorney  General (2014) e KLR  the count acknowledged  that  the assessment  of damages  is a matter  of judicial discretion  for the trial court, which  must  be exercised  judicially and with  regard  to the general  conditions  prevailing  in the county  and to  prior relevant decisions.

The object  of an award of damages  is to give  an injured party  compensation for the damage, loss or injury  that he  has suffered  and the  measure of damages  is that  the injured  party should be  awarded  a sum of money as would  put  him in the same position  a she would have been  if he  had  not sustained  the injury.

In this case, the appellant’s injuries were soft tissue as assessed by the doctors.  He was left with no permanent incapacity.  After the accident, he rode himself to the police station as testified by DW3 the police officer whose evidence on that aspect was not challenged by the appellant.

In the court below, the appellants counsel proposed  a sum of kshs  500,000 damages  for pain , suffering  and loss  of amenities  relying   on the case  of Doctor Wolfang  Farrugia  & another  vs  the Attorney  General & another  Nairobi HCC  472/88  where the plaintiff  sustained a comminuted fracture of the lower  end of the humerus causing weakness  of the 1st  plaintiff’s  right hand. The 2nd  plaintiff  who sustained  fracture  dislocation of  right elbow  and radius, and ulna and reduced  the junction of  the right hand, he  was awarded  kshs 400,000 general damages.

The  respondent’s counsel  on the  other hand proposed Kshs 50,000/- relying  on Pamella Ombiyo Okunda  vs Kenya Bus  Services Ltd Nairobi  HCC 1309/2002 where  the plaintiff sustained

Blunt  head injury with loss of consciousness

Deep cut on forehead and both legs.

Soft tissue to neck.

Subluxion  of public symphisis (not proved)

Blunt trauma to hip and right eye.

Angawa J on 11th February 2004 awarded Kshs 50,000/- general damages.

In my view, none of the authorities cited in the lower court matched the injuries sustained by the appellant   which were very precise-soft tissue   injury to the right elbow joint involving dislocation of the same.

The appellant/plaintiff’s advocate relied  on decisions  where the  plaintiffs  sustained  very serious  injuries  which cannot even  be classified as harm, to  warrant  a proposal  for an  award of Kshs 500,000 general damages.  Similarly, the decision by Angawa J in Pamela Ombiyo Okinda is relevant and outline the test of proportionality of awards   to the injuries sustained.  Furthermore, the decisions cited were made over a decade preceding the impugned judgment in the lower court.  There are, in my view, many decisions made in the years proximate to the date of the accident and judgment on 5th September 2011, with relevance to this case.

Doing everything  I can, as no two cases are the same, taking  into account  the rate of  inflation  and decided  cases, I find that  a sum of  Kshs 120,000/- general damages for pain and  suffering is would sufficiently compensate the and  I accordingly award him Ksh 120,000. The injuries sustained were classified as harm and his own doctor who examined him almost one year after the accident, fully recovered.  The plaintiff suffered no permanent incapacity.

In CA 6 OF 2012 PAUL KIPSANG[2012]eKLR where the plaintiff sustained fracture of upper  incisor tooth, loosening of other teeth and post accident pains on the left elbow and abdomen, Gikonyo J reduced an award of Ksh 300,000  by the lower court to Ksh 200,000 general damages.

In the end I allow this appeal to the extent that both the appellant cyclist and respondent motorist   were to blame for the accident in the ratio of 30%:70%.  The finding and order of the trial magistrate dismissing the appellant’s case is therefore set aside and substituted with an order that both the appellant and respondent were to blame for the accident.

I also find that the appellant sustained an injury involving dislocation of his left elbow and I accordingly set aside the trial Magistrate’s order and finding that there was no evidence of dislocation

Finally, I award the appellant as um of Kshs 120,000 general damages for pain and suffering subject to 30% contribution.

On special damages, it is trite law that they must be specifically pleaded and strictly proved. The appellant pleaded for Kshs 4280 special damages made up as follows:

Police abstract                                   Ksh           200

copy of records                                 Kshs         500

Medical report                                   Ksh         2000

P3 form                                                Ksh          500

Treatment and  medical expenses  Ksh        1080

Total 4280

During his testimony, the plaintiff produced receipts for:

Copy  of records                                 Ksh 500

Medical  report  by Dr. Karanja        Ksh 2000

Receipt  of medicine                         Ksh 280

Receipt  for court attendance  by Dr.Karanja  Ksh 5000

Physiotherapy                                     Ksh 2000

X-ray                                                      Ksh   300

P3                                                          Ksh   500

Consultation                                        Ksh    50

Total 8830

There was no proof of Kshs 200 for police abstract and the Kshs 5000 for court attendance by the doctor was not pleaded.  Even if it was pleaded, the doctor’s court attendance fee is a witness expense and not a special damage.

Out of the pleaded items only Ksh 3830 was proved which I accordingly award the appellant.  I also  award  him costs  of the lower court and  of this appeal, and interest  on general damages  of  Kshs 120,000/- from date  of judgment  in the lower court  and interest  on special damages  from the date  of filing suit in the lower court.  The general damages and costs shall be subject to 30% contributory negligence.

Summary

Liability: 70:30 in favour of the appellant against the respondent

Quantum:

general damages: Ksh 120,000 less 30%contribution

special damages: Ksh 3830

Interest on general damages: to run from the date of judgment in the lower court until payment in full.

Interest on special damages to run from the date of filing suit in the lower court until payment in full.

Costs of the suit in the lower court and costs of this appeal are awarded to the appellant subject to 3% contribution.

Dated, signed and delivered in open court at Nairobi this 8th day of May, 2015.

R.E.ABURILI

JUDGE

8. 5.15

Coram Aburili J

C.C. Kavata

Mr Ndungu for the appellant

Mr Wahome holding brief   for Miss Nzembo Odera for the respondent

Court- Judgment was to be delivered on 11th March 2015 at 2. 30pm but the same could not be delivered as the court was fully engaged.

The judgment is now read and pronounced in open court.

R.E. ABURILI

JUDGE

8/5/2015

Mr Wahome – I seek for stay of 30 days.

Mr Ndungu - I have no objection.

Court- Stay of execution for 30 days granted as prayed.

R.E. ABURILI

JUDGE

8/5/2015