Harrison Kamau Mungai v Kinuthia Ngethe & Henry Mburu Kariuki [2015] KEHC 1320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  606   OF 2009

HARRISON KAMAU MUNGAI …….………………………….APPELLANT

VERSUS

KINUTHIA NGETHE ………..…………………………….1ST RESPONDENT

HENRY MBURU KARIUKI………....……………………..2ND RESPONDENT

JUDGMENT

1. Background

This appeal arises  from the judgment  and decree  passed  by Honourable Mr S.A. Okato principal Magistrate on 9th October 2009 in Milimani Chief Magistrates court civil suit No. 3530/2006  heard and determined  as a test suit for  all other related suits  to the principal claim.  The genesis of  the appeal is that  on  or about  the 11th day of March 2006  along  Limuru road, the defendant and or his  driver one Joseph Muguru Ngamiya  was driving) in control or management  of the  motor vehicle registration No.  KAP 497S when he collided with motor vehicle registration No.  KAR  337 E as a result  of which  the claimant  Kinuthia  Ngethe who was a passenger  in motor  vehicle KAP 497S  was seriously injured and he claimed d for damages  arising from the said accident  whose occurrence  he blamed  the driver  and owner  of the said motor vehicle KAP 497 S Nissan matatu for being negligent  after conducting  investigations into the occurrence  of the accident, the police charged  the  owner of the lorry motor vehicle registration No.  KAR 337E with a traffic offence  of careless  driving vide OB  of 12th June 2006 but was on 24th December 2007 acquitted  of the offence.

2.  Pleadings

By an amended  plaint dated 12th August 2008  and filed in court on 15th August  2008, the  1st respondent  herein  who was the plaintiff  in Milimani CMCC 3530 of 2006( test suit) sued the appellant herein, who was the  defendant  in the said suit  seeking for  compensation for the injuries  he sustained  and for costs  of the suit and  interest.  The  second respondent herein Henry Mburu Kariuki  was joined  to the proceedings  by the appellant herein, as a third party through a third party notice issued   and dated  13th March 2007 and filed in  court  on 15th March 2007 to which a defence was  filed on 8th May 2007 denying the defendants  claim and attribution  of contributory negligence on his  part for the  occurrence of the material accident.  The appellant herein entered an appearance to the summons to enter appearance and filed its defence on 6th October 2006 through the firm of Kairu & MC court advocated, denying the plaintiff’s claim in toto.  As stated above, the and attributing  liability  if any to the negligence of the 3rd party 2nd respondent  third party too entered  an appearance  upon being  cited  as a third party and  filed his  defence denying  the claim against him.

In the appellant’s defence, the attributed the  occurrence  of the accident to the third party  while the  third party  too, in denying  the particulars  of negligence shifted the blame to the appellant  herein  when pleadings closed, the suit  was heard  and determined  by S.A. Okato(Mr) principal magistrate.

3.  Evidence for the plaintiff

The 1st  respondent  testified  that on the material day of  11th March 2006 at  about 8. 00pm he was travelling  in the  appellants  motor vehicle  registration No.  KAP 497S Nissan matatu  along Limuru Road  and on reaching  village market, where  the road descends into a  corner, a motor vehicle emerged  from the opposed direction  and  when  the matatu driver  tried to avoid  hitting a pot hole in the middle of the road, their motor vehicle (matatu) was hit  on the rear  and he was  injured as he was  seated on the 2nnd seat  from the rear.  He suffered injuries on the neck and right shoulder and broken glass entered his ears and face.

He was treated at Imara medical clinic and reported the accident at Parklands Police Station and was issued with a P3 form and police abstract (both of whom were produced in evidence).  He did a  search  which established  that the appellant herein was the owner of  the motor vehicle  in which he  was travelling and he sued him because he  was the owner of the vehicle which was involved  in the accident.

The 1st respondent was examined by Dr Wangai Kiama Advocate who prepared a medical report of his injuries which report was produced at the trial.  He also produced several medical chits and receipts for the treatment at Imara clinic, and for expenses incurred in the medication.  He was also examined the second time by Dr. Wambugu whose medical report was also produced.

At the time of  the trial on 19th November 2008, the  1st respondent  testified that he had not fully  recovered as his hand  was still painful  and that his  right shoulder  had dislocated and  was in bandage  for 2 weeks.  In addition, that pieces of glass were removed from his eyes.  He concluded by blaming the driver of motor vehicle KAP 197S for the accident because has he not swerved to the other lane of the road, the accident would not have occurred.

In cross examination he responded that  the vehicle KAP 497S was speeding  and was unable to negotiate  a corner  while avoiding  the pot hole  and that he was unable  to see ahead  but motor vehicle KAP 497S was avoiding the pot hole  and after the accident  he was removed  from the motor vehicle.  His eyes could not see properly.  He did not see where the vehicles rested.  When the police came to the scene, he had already been taken to the hospital.  That he never saw the driver of KAR 337E and its driver was charged.  In re-examination he stated that he did not know the outcome of the traffic case but he testified in the said traffic case where the driver of motor vehicle KAP 497 S was to blame.

The 1st respondent did not call any other witness and closed his case.

4.  Defence case and evidence

The defence called 2 witnesses.  DW1 Joseph Ngarimya Mugure testified  that he  was the matatu  driver of motor vehicle  registration KAP497S of the ill fated  accident  on 11. 3.2006 while driving from Nairobi towards  Ndenderu at about 7. 30pm, on reaching  village market  there was  a corner.  He met a lorry from the opposite direction which was being driven on the witness lane and when he tried to swerve to the left, the lorry hit his right side mirror and two rear windows.  That he was driving at 50 kilometer per hour at the material time not speeding as there was a sharp corner.  His lights were on.  The lorry was KAR 337 E.  The  witness stopped at  Village Market , police came and took  measurements   and blamed  the lorry driver  for the accident  and charged him  because (the lorry driver) came into the  witness land  while avoiding  a pot hole  which was in the middle  of the road .  In cross examination, he stated that he was the driver and had a driving licence.  He had driven the said motor vehicle for 8 months and that was his first accident and that the vehicles owner was James Mungai.  That one person the plaintiff was injured in the said accident.  He maintained that the area had a blood corner and the lorry went into his lane.  Both vehicles were descending in the opposite direction and in between was a bridge.  He saw the lorry 8 meters ahead, tried to swerve to avoid a head on collision but it still reached him and hit his side mirror.  That he  was a witness in the traffic  case  where  the driver  of the lorry was  found guilty but that  he (the witness) had nothing to show and that the lorry driver was drunk when he (the witness) removed him from the vehicle after the accident.

In re-examination  he also added that  it was  his tout who took the 1st  respondent (plaintiff to hospital) maintaining that there  was a pot hole  which the  lorry driver  avoided by getting onto his lane and  that although he testified  in the traffic case  which found the lorry driver guilty, he did not know  the sentence  imposed.

DW2 PC Bruno Waswa from SOT Gigiri  and stationed at Parklands  Police Station  also testified  for the defendant to the  effect that on 11th March 2006 an accident  was reported  to the station involving motor vehicle  No.  KAP 497S Nissan matatu and KAR 337E lorry Isuzu.  The case was  investigated  by PC Karanja  who had since  been transferred but  that motor  vehicle KAR 337E was blamed  for the accident for failing  to keep on the left lane and its driver  was charged  with careless driving.  He was called Henry Mburu Kariuki (the 2nd respondent herein).  He produced the OB extract  for 12th March 2006  the accident  which occurred on 11th March 2006  as D exhibit  1 and police abstract dated  29th March 2006 as D exhibit 2  which showed that the case  was pending before court.

In cross examination he stated that he did not know the outcome of the traffic case.  He never went to testify in the said traffic case and he could not trace the investigation police file for the traffic case.

5.  3rd party case and evidence.

At the close of the defence hearing the 3rd party Henry Mburu Kariuki who is now the 2nd respondent to this appeal testified on 27th July 2009 and did not call any other witness.  In his  sworn testimony, he stated  that he  was the  driver of  the lorry KAR 337E on  11th  March 2006 when it  was involved in an accident  along  Limuru Road.  On the occurrence   of the said accident, the 2nd respondent stated that just before Village Market there was a descend and the road was pot holed.  He then saw a vehicle from the opposite direction and there was a corner.  There was a pot hole  in the left  lane facing Limuru and the driver  from the opposite  direction  veered to the right lane as he avoided the pot hole  as a result  he hit the lorry on the rear right side  and his vehicle  had the right  rear mirror damaged.  They stopped and the owner of the motor vehicle came with the police who took measurements.  He recorded a statement with the police and was charged with careless driving but was acquitted on 24th December 2007 and blamed the matatu driver for the accident.

In cross examination, he stated that he was acquitted and the matatu was blamed for the accident although he did not have the proceedings in the traffic case.  That his vehicle was hit on the right side.  Its windows were not broken and that the pot hole was on the left lane of the matatu.

At the close of the 3rd party’s case the parties agreed to dispose of the case by way of written submissions to support their respective positions.

6. Written submissions by plaintiff

In his written submissions filed on his behalf  by the firm of Mungai Kalande & Company Advocates, on 8th September 2009 the plaintiff submitted that his evidence on the occurrence of the accident and injuries he sustained was water tight and unshaken, restating the parties testimonies  and maintaining that it was the appellant  herein to  blame for the accident as  the defence  could not exonerate  himself  from blame  in the absence of  any evidence  that the 3rd party driver  was convicted for the offence of careless driving or even a sketch map to show the  scene of  the accident .  He supported the testimony of the 3rdparty driver that the accident occurred when the matatu driver was trying to avoid hitting pot holes on the road while speeding and hit the lorry from the opposite direction.

He urged the court to find that the defence case was a fabrication by trying to shift blame to the thirty party and to find the defendant wholly or substantially to blame for the occurrence of the accident.

On general damages, he urged  the court to consider the  plaintiff/1st respondent’s injuries  as pleaded and  proved by medical reports  and guided  by the authorities in Kericho HCC 70/2006 –Philip Chemiyot vs Nebco (K) Ltd &Another  and Nyeri HCC 320/1998.  Catherine Wanjiku Kingori &  3 Others  vs Gibson Theuri Gichobi  and Nairobi HCC 36128/88.  Joseph Ouma vs Peter O. Sangwili to award the plaintiff shs 400,000 general damages.

He also prayed for special damages for motor vehicle search-500/-, 1500 for medical report, although he had pleaded for shs 1200/- special damages.

7. Defendant’s written submissions.

The  defendant’s counsels Kairu & MC Court field their written submissions  dated 31st August  2009, the defendant denied all  allegations on the plaint and maintained  that from the evidence as adduced as a whole, he was not to blame  for the occurrence of the accident and the resultant  injuries  sustained  by the plaintiff.  He urged  the court to find that it was the third  party who was  wholly to blame for the  accident  and that the plaintiff had  not discharged the burden of proving  the culpability of the defendant  for the  occurrence  of the material accident.

On quantum, the defendant  submitted that  had the plaintiff proved liability, he would  be entitled  to shs 70,000/- as sufficient  general damages  as he sustained  minor soft  tissue  injuries and  the doctors  who  examined him stated that he had  recovered will without any complications or  permanent  disability.  He relied on the decisions of Nairobi CA 10/2004, Nairobi HCC 1309/2002, Kisii HCCA 32/2002 to support his position.  On special damages he submitted that as the plaintiff   had pleaded only 1200/- he could only prove what he pleaded and not shs 2000/- as submitted.

On the whole, the defendant   urged the court  to dismiss the plaintiffs  claim against  him and to find that  the defendant’s  claim against  the 2rd party had been  proved  and to find the  latter 100% liable  for the accident and the resultant  injuries  to the plaintiff.

8. 3rd party’s written submissions

On behalf of the third party, it was  submitted on 15th September 2009 by the firm of  Okongo Omogeni & Company Advocates, reiterating  the plaintiff’s and third party’s evidence as corroborating each other  and dismissing  the defence evidence, but admitting  that the 3rd party driver though charged  with the offence of careless driving , he was not found liable.  He urged the court to find the defendant liable for the accident.  On quantum, he proposed shs 50,000/- general damages as the injuries sustained by the plaintiff were soft tissues with no permanent incapacity.

9.  Consideration of evidence, finding and decisions by the trial magistrate

Upon considering  the evidence, submissions  by  counsel and the  cited authorities, the learned trial magistrate Mr.S.A.Okato Principal Magistrate on 9th October 2009 found that the  plaintiff had  on a balance of probabilities  proved his case against  the defendant.  He dismissed   the defendant’s claim against the 3rd party and ordered the defendant   to pay costs of the suit to both plaintiff and the third party.  On quantum.  He found shs 150,000 in favour of the plaintiff, taking into account the cited cases injuries sustained by the plaintiff and inflationary trends.  He awarded the plaintiff shs 2000/- special damages as proved by receipts produced at the trial.

10.  Appeal

Being aggrieved  by the decision of the trial  magistrate, the appellant   filed the instant  appeal and raised a total of a 9 grounds  of appeal in support of  the Memorandum of Appeal set out as follows:-

The Learned magistrate erred  in law and fact in finding the defendant  100% liable in  view of the evidence produced before court  and in particular  the following:-

i. The police charged the lorry driver after conducting investigations.

ii. Since the police charged the driver of the lorry there was prima facie evidence that he was to blame.

iii. There was no evidence produced by the driver of the lorry on the Section (of the law) under which he was acquitted and whether the traffic case proceeded to hearing.

iv. The lorry driver admitted under cross examination that the debris of the broken window of the matatu was on the matatu’s lane and not on the lorry’s lane.  He also admitted that the only broken windows were from the matatu and that the lorry’s windows were intact.

v. The plaintiffs admitted that he was seated at the back of the matatu and could not see ahead and that he never even saw the lorry.

The trial magistrate erred  in law and fact  in finding that the driver DW1 moved into  the lane  for the oncoming vehicle to avoid a pot hole  and met the  oncoming  lorry and  that was why his vehicle  was hit at the  right rear side.

The learned magistrate erred  in law in failing  to find  that the DW1’s  vehicle  was hit  in the right  rear side  as he tried to swerve  to avoid  the lorry.

The Learned magistrate erred  in law and in fact in failing to discredit  and disregard the  evidence of the 3rd party, Henry Mburu and also  erred in law and  in fact in failing to find that his evidence  was uncorroborated  by any independent witnesses.

The Learned Magistrate erred in law and in fact in finding that the decision to charge the driver of the lorry was an afterthought in the absence of   any evidence to support such a finding.

The Learned Magistrate erred in law and in fact in failing to find that the plaintiff had not proved liability   against the defendant as sued.

The Learned Magistrate erred in law and in fact in finding that the defendant was to bear the 3rd party’s costs.

The Learned magistrate erred in assessing general damages at an amount inordinately high that it is wholly erroneous estimate of the loss and damage suffered by the 1st respondent.

The Learned Magistrate erred in awarding an excessive sum for the injuries, suffered in the face o he evidence adduced and submissions made by the defence counsel.

The appellant urged the court to

Set aside the entire judgment of Honourable Okato delivered on            9th October 2009 and substitute it with an order dismissing the suit against the appellant with costs.

Costs of this appeal and that of the subordinate court be awarded to the appellants.

Such other further orders as may be made by this court.

This appeal was admitted  to hearing on 7th October 2013 pursuant  to the provisions of Section  79B of the Civil Procedure Act and  directions  given on 20th March 2014  by Honourable Waweru J  under Order  42 Rule 13 of the Civil Procedure Rules .

11. submissions on appeal

When the appeal came up for hearing before me on 16th September 2014, the parties advocates agreed to file written submissions to dispose of the appeal.

The appellant’s  advocate filed his on 6th October 2014  whereas  the 1st respondent filed his on 21st October 2014   with the 2nd respondent/3rd party  filing his  on 12th November 2014 .

In support of the grounds of appeal, the appellant’s counsel submitted that the 1st respondent did not call any witness to support his case and that the evidence adduced did not prove the liability of the appellant in negligence on a balance of probabilities.

He maintained that the fact that the appellant’s motor vehicle was hit on its right rear side, meant that it was the third party driver who was to blame for the accident.  That the third party driver  was charged  with careless  driving  hence, he was culpable  and as he never produced evidence to show his  acquittal.  That the fact that the matatu/appellant’s driver was never charged with  any traffic offence showed that he was innocent.

That  the trial court’s finding that  the accident  occurred when DW1 moved  into the lane of the oncoming  vehicle  while trying  to avoid  a pot hole  and that DW1 tried to go back to his land to avoid hitting the oncoming  vehicle as a result  his vehicle  was hit on the right rear side was a finding that was not  supported  by any evidence  on record .  that the trial  court erred  in law in  disregarding DW’s evidence   and in finding  that the decision  to charge DW 3 was  an afterthought  in the absence  of any such evidence.  That he should have taken  note of which  he failed, the contradictory  evidence  of the 1st respondent and 3rd  party and should have believed DW2’s  evidence as he was an independent  witness who testified  that the accident was investigated and a decision  arrived at  to charge the  driver of KAR 337E for the accident  with careless driving hence the  defendant could not have been 100% liable for the accident.  He cited  the case  of Joseph G. Kabega & another  vs George Kiumba Kangwara & 2 others CA 41/2005 Nakuru(2006) e KLR to espouse the holding  of the High court, replying on the independent  evidence  of the police officer  who visited  the scene and  assessed  the point of impact  before reaching a determination.

On quantum, he urged the court to  interfere  with the  discretion of the  trial magistrate  in awarding  damages  as the amount assessed  was inordinately high  as compared to the loss and  loss suffered  by the plaintiff, citing  the case of Paul Kipsang Koech & another  vs Titus Osule Osore (2013) e KLR where the  court interfered  with quantum made by the trial court  on the ground that …………” ………..the exercise  of discretion was  in violation of principle, and was therefore, not exercised  judicially.  The trial court  did not  also base  it assessment  on any known principle, was not guided  by the relevant  judicial authorities; failed to  take into  account the award proposed, and  judicial  authority quoted  by the respondent…”  He urged this court to reassess the damages.

In their submissions, the 1st respondent’s counsel summarized  the grounds of appeal  into three  issues namely

Apportionment  of liability

Whether the defendant should have been  ordered to cater  for costs of the 3rd party.

Whether  the damages awarded  to the plaintiff  was excessive for the sum injuries sustained.

Citing the case of Makube  vs Nyamuro (1983) KLR 403 as enunciated in Peter Kihungi  & Another vs Sarah Norah Ongaro(2004) e KLR, he urged the court  “ not to interfere with the finding  of fact by a  trial court  unless it is bases on no evidence  or on a  misapprehension of the evidence, or the  judge  is shown demonstrably  to have  acted  on wrong  principles  in reaching his conclusions”.  That the  appeal does not  meet  the threshold set by the above authority to warrant interference of the trial magistrate’s decision.

On liability, counsel for the 2nd respondent  maintained  that the plaintiff’s  evidence   as corroborated  by the third  party was water tight  and uncontroverted  that  it was the appellant’s driver who was to blame for speeding and being  unable to negotiate  a corner while avoiding  the pot hole  as a result he rammed  into the third party’s motor vehicle.  Further, that the fact of  charging  the  3rd party driver  with careless  driving  was not proved as no case number or outcome  of the  case was adduced  to prove assertions  and that  the court  could therefore  not have relied  on such conflicting unsubstantiated  assertions.  He supported the findings by the trial court emphasizing that there can be no liability without fault.  He also supported the quantum of damages of shs 150,000/- as assessed  by the trial magistrate.

The 2nd respondent/3rd party urged the court to uphold the trial magistrate’s judgment and to dismiss the appellant’s appeal  with costs.

12.  Analysis and determination

I have  set out above, what in my view  is an in depth evaluation and examination  of the pleadings, reexamination of evidence and submissions  by parties  before the trial court  as required   under Section 78 of  the Evidence Act cap 80 Laws of Kenya.  What  remains  is now my own conclusion based on  the evidence  adduced in the lower court, bearing  in mind the  fact that  I neither  saw nor  heard the witness testify and  I should therefore  given an allowance  for that as was espoused in the cases of Sielle vs Associated Motor Boat Company (1968) EA 123, Williamson Diamonds Ltd Vs Brown (1977) EA 1 and Arrow Car Ltd  vs Bimowo & 2 Others (2204) KLR 101.

There are five main issues for determination in this appeal.  These are:

Whether the plaintiff proved his case against the appellant on a balance of probability.

Whether   the defendant/appellant proved his case against the third party on a balance of liability.

Who was to blame for the occurrence of the material accident.

What is the appropriate quantum of damages payable to the 1st respondent?

Who   should bear the costs of the case below and of the appeal herein?

There  was no denial that  the accident, subject  matter of this appeal occurred.  There was also  no denial  or dispute  over the ownership  of the motor vehicles involved, and  the involvement  of  the 1st  respondent  in the said accident  as  a passenger in the appellant’s motor vehicle registration  No.  KAP 497S Nissan matatu.  It is  also not disputed  that the  two motor vehicles  involved in the  subject accident were being driven from the  opposite  directions along Limuru Road and  that both were descending  as there was a  bridge  as one approaches  from  either  direction of Limuru or Nairobi.  It is  also  on record  and not disputed that  there was a sharp corner  where the accident  occurred, and  that the road was pot holed,   which pot holes  were being  avoided  when the collision  occurred.  The issue in contention is the circumstances surrounding the occurrence of the subject accident.

In determining the circumstances surrounding  an accident, guidance is found in Section 119 of the Evidence Act, Cap 80,Laws of Kenya which provides:-

“ The  court may presume the existence of any  fact which it thinks  likely to have happened  regard  being had to the common cause of  natural events, human conduct  and public  and private business their relation  to the  facts of the particular case.”

The above provision  was applied  in the case of Raphael Mwaniki Kiboi vs Joseph  Njogu Kinyua Nairobi HCC 3974/1988 where  the court noted  that where two motor vehicles  collided on a highway they do so in consequence of the negligence of either  one or both  of the drivers thereof.  The ancillary question in this appeal is whether  the  accident occurred as a consequence of  the negligence  of one or both drivers of the appellant  and or the 3rd  party second respondent.  The trial magistrate found the appellant wholly to blame for the accident.  The trial magistrate found thus at page 73  of the record  of appeal and page 19 of the judgment .  “ On liability  the plaintiff blamed the driver  of motor vehicle  KAP 497S for   the accident.  He said  he was seated  on the 2nd  seat  from the rear and witnessed the  accident  which he said  occurred when their driver tried to avoid the pot hole in the  middle of the road and veered into the land of the oncoming  vehicle.  Although  the driver (DW1)  denied the foregoing  and blamed  the accident on the driver of  motor  vehicle KAR 337E, he was not able to explain the damage  on his vehicle  on the rear right side.”

“ In my considered view the driver DW1 moved into the lane for the  oncoming  vehicle  to avoid the pot hole  because  the lorry was emerging  from the opposite  direction and at a corner, he quickly tried to go back to his  lane and that is  why his vehicle  was hit at right rear side.  He went  on “ I am  fortified  in my view above  by the evidence  of the 3rd party one  Henry Mburu, although the police (DW2) said that the accident was blamed  on the 3rd party’s driver who was charged with careless driving  no, no evidence  was tendered  in  court of the court proceedings and the outcome.  Nothing would have  been easier  for the defendant  to furnish the court  with the court proceedings and the  and he decision of the court.”

From the evidence adduced by the plaintiff he had  this to say concerning  the occurrence  of the accident at  page 26 of the record  of appeal.

“………A vehicle emerged from the opposite  direction  our driver tried  to avoid hitting on pot hole  in the middle  of the road and our vehicle was hit   on the rear I was seated on 2nd  seat  from the rear ………………I sued the defendant  because  he is the owner of the vehicle ……I blame  the driver of the motor vehicle  KAP 497 S  for the accident  because  if he had not swerved to the other lane  of the road this accident  would not have occurred…….”

In cross examination, the  1st respondent stated “………Our driver was speeding  and was  unable to negotiate  the corner while  avoiding the pot hole.  I was not able to see ahead.  Motor vehicle KAP 497 S was avoiding the pot hole.”

This same  1st respondent  also gave evidence  in a traffic case  where admittedly, the 3rd party  driver  was charged.

On the other hand, DW1 maintained that it was  the 3rd party lorry driver  came into DW1’s lane because it was avoiding a pot hole which was in the middle of the road.  Further, that “……..I reached  Village Market  there was a corner.  I met a lorry  from the opposite direction it was being  driven on my lane.  I tried to  swerve  to the left  facing  Ndenderu but  that lorry hit my right side mirror  and two rear windows.  I was doing 50 kilometer per hour.  I was not speeding because of the sharp corner.”

In re-examination, the DW1stated  “ the traffic  case found the lorry driver  guilty but I do not know the sentence.  I gave  evidence in the traffic case”.

One undisputed  fact that emerges  from the above extracts is that  the lorry driver  was  charged with the traffic offence  as PW1 and DW1and third party who testified  in the court below stated that  they gave evidence  in the traffic court. Regrettably, no proceedings or verdict  was  produced in evidence.  And whereas  PW1 stated that  the driver of  motor vehicle KAP 497 S  was found to blame, DW1 the driver thereof  stated that the lorry driver was found guilty  but sentence  was not known.  On the  other hand, DW 3 the lorry driver stated that although he was charged with the  offence of careless driving, he was acquitted  on 24th December  2007 and that  he blamed  the driver  of the matatu for the accident.

In the absence of  any proceedings or judgment  in the traffic case, this court cannot with certainty determine whether  or not the lorry driver was convicted  or even acquitted  for that matter.

Nonetheless, would the traffic case per se  impute liability on any of the  parties  to the accident without  any other  evidence to that effect?  Had there  been  evidence of a conviction, then, no doubt , under Section  47A of the Evidence Act, the fact of  that conviction, in the absence of a reversal on appeal, would be conclusive  evidence of the  third party’s guilt.

But a traffic offence is a criminal offence, and like  all other  crimes, it had  to be proved beyond reasonable  doubt.  The fact of a charge  and conviction  is admissible  in evidence under Section 84  of the Evidence Act which provides  that:

“ Whenever  any document is produced before any court, purporting  to be a record or memorandum of any evidence   given in a judicial proceeding or before any officer authorized  by law to take  such evidence, and  purporting  to be signed  by a judge or magistrate or any such officer  as aforesaid, the court shall presume:-

That the document is genuine

That  any statements  as to the circumstances  in which it was take, purporting    to be  made by the person  signing it, are true, and

That such  evidence was duly taken.”

From the above  provisions, it is  therefore  not proper  or even credible  for any person, including DW1(appellant) to come to a civil court  and state  on oath  that the driver  of the lorry registration  No.  KAR 337E was to blame for the accident because he was charged and convicted of the offence of careless driving, without any documentary evidence of proceedings and judgment of such conviction.

In my view, this evidence by DW1 was adduced merely to protect the employer’s interests.  DW1’s evidence fell short of  controverting the testimony by the 1st  respondent that DW1 had swerved to  the right  to avoid hitting  pot holes  when  he met  the lorry and  when he  tried to get back to his lane, time was  too short.  In my view, the distance  of 8 meters  between the DW1 and  the lorry on a descend and at a  corner  was too short to enable DW1 escape  being hit.  The lorry in my view must have been too close to be evaded fully.

In my view, the evidence of DW1 cannot  be held to wholly detract from the evidence  of both the respondents.  DW1 does not  deny in his testimony  that he too was trying to avoid hitting  pot holes on that road.  He states  that it was the  3rd party driver who  was  trying to  avoid hitting  pot holes in the middle of the  road when  the (third party driver) hit DW1. The 3rd party driver lays blame on the appellant’s driver DW1but does not state/admit  even trying to avoid the pot holes in the middle of the road  as  alleged  by DW1.

The accident, it should  be noted, occurred  at about 8. 00pm.  In other words  it is a case  where one party’s word is applied against  the other, without the evidence  of an independent  witness, since the police officer  DW2 who testified  in court never  visited the scene of accident and neither  did he or was  he involved  in the investigation of the material accident culminating  in the traffic  charges  being  preferred  against the  lorry driver (third party/2nd respondent herein).

Naturally, it is expected that in collision accidents, one driver will blame the other  for the occurrence  of the accident and  indeed, the two drivers  have blamed  each other   for the accident.  The question  that the court  below ought to have  asked itself is which of the two drivers evidence  was credible  in the circumstances.

One striking feature of the evidence in the court  below as adduced  by the two drivers  of the offending vehicles  is that none of them stated  whether they warned each other of their  approach, time being at night and descending at a corner.  In my view, it was not sufficient  in the circumstances,  for the two drivers to merely swerve.  The circumstances of the case  required  either driver to hoot  or flash head lights  on approaching  a sharp corner  at night and  on a pot-holed  road.  None of them say to each other that “ You failed  to heed  the warning of my approach.”

Assuming the pot holes which are being  blamed for  the accident were  in the middle  of the road and not on the respective lanes or sides, the question that begs an answer is, why then would either of the drivers be driving in the middle of the road where  the pot holes were and   why would a driver avoiding pot holes  in the middle of the road drive  into the opposite lane as  opposed to taking an avoiding act  from his  side of  the road, by swerving to his left lane and side of  the road?

DW2 did not  help matters either, as  no sketch plan for  the accident  scene was produced to assist the court determine the above ancillary  question .

In my opinion, since the fact of the existence of pot holes  on the road  was  undisputed, and the fact that  the two  drivers blamed  each other for swerving  on to each other’s lanes, it  would have  been easier  for both drivers, while avoiding pot holes  in the middle of  the road  to swerve to their respective left sides  of the road  than crossing to the  right or other side of the road.  In my view, and from the evidence on record, if neither of the drivers had swerved to the wrong  side of the road, no accident  would have taken place.  If DW1 saw the  3rd party driver approach  from the opposite direction at a distance of 8 meters  and he was driving at  50 kilometer per hour, in my view, he would still  have  swerved to his (DW1’s ) side  and if he  did swerve to the left side of the road as alleged, then his right side  mirror would not have been hit.  DW 1 in his evidence did not say the lorry was  driven at  high speed.  The  impact  of a lorry hitting a matatu’s body  cannot be  under estimated. Surprisingly, no evidence by way of an inspection report  was led as to the scope  of the damage  caused to the matatu.  Neither DW1’s vehicle nor the 2nd respondent/third party’s lorry  rolled  or lost control.  The driver of the 2nd respondent drove on and stopped  at the Village Marke .  If indeed  the police took measurements  and  blamed the 3rd  party and not the (appellant) DW1 or vice versa, nothing was demonstrated to have prevented  either of the two drivers from availing  the police file  records or tracing  the actual investigating  officer, to clear the air.

On the other hand, as this  accident indeed culminated  into a charge  being preferred against the 3rd  party 2nd respondent’s driver, what  was the motivation for the said 2nd  respondent’s driver failing to avail to court the proceedings  and judgment  to indicate that he was  vindicated , if he alleges that  he was acquitted  and that the appellant herein (DW1) was found to blame  for the occurrence of the accident?  Either way, if DW1 says that the third party driver  was convicted in the traffic  case, why did  DW1 not  avail the proceedings and  outcome of  the traffic case to exonerate himself from blame?

In my view, it is not enough for the two  parties DW1and third party  driver to shift  blame towards each other. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:

107. (1) 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 those facts exist.

There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:

109. 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 lie on any particular person.

And in section 112 of the same Act:

112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.

10.  The above sections of the law encapsulate the well-known aphorism, “he who asserts must prove.”  This point was augmented by the Court of Appeal inJennifer Nyambura Kamau Humphrey Mbaka Nandi [2013]eKLR as follows

“We have considered the rival submissions on this point and state that section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the Respondent.  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 those facts exist.”  Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.  If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness.  The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

In my view, either one or both of the two drivers of the accident motor vehicles are culpable for the occurrence of the material accident. The evidence  on record  that  the right mirror  of the DW1’s vehicle  was hit together  with  the right rear side  windows  is quite  telling.  Had the lorry driver hit the matatu  directly, or the matatu hitting into the lorry directly, the impact  would not have been  mere breaking of a windows  and mirrors.  Regrettably, I as I have stated above  no motor vehicle inspection reports for  both vehicles in the accident were  produced  to prove the  extend of the  damages  on either  vehicle.

The police OB extract produced describes the damages as on the matatu vehicle as:

“ the damages were screen scattered  on rear side  of the body slightly damaged  for KAP 497S and for KAR 337E, damages  were on the right side mirror.”

The impression created  by the evidence above  is that there  was no direct  head on collision  between  the two motor vehicles, although  there is no dispute   that the two vehicles  did hit  each other as they bypassed each other.  In the premise, I find that none of  the motor vehicles kept on their respective  sides/lanes of the road, owing to the sharp  corner that  each of them negotiated as they  approached  the bridge  and as  they  each avoided  the pot holes  on the road.  Albeit  DW2 produced  a police abstract  which showed that the driver of  KAR 337 E was  to be charged  for failing to keep to the  proper traffic lane, I do not find any  conclusive evidence on record to satisfy me that the third party did completely leave his lane and a crush into DW1, and  neither  is there  conclusive  evidence that  DW1 completely left his left  lane and  crushed into the third party lorry.  I find that both motor  vehicles “collided” when  the respective drivers  realized that  they were on the wrong sides  of the road, at a sharp corner, descending, on a potholed road and  when they tried to  return to  their respect lanes, the distance  between them was too close and as they bypassed  each other, they had  an encounter.  This so as  the 1st respondent’s  evidence as to how the accident occurred   was clouded  by the fact that  he  did not see the 3rd party  lorry driver  as it approached them, since   he was  seated at the rear second last seat  from the back  and considering that  it was at night, there was no evidence that  the 1st respondent  was so observant  that he could see other vehicles  as they approached  from the opposite  direction.  It is therefore unlikely thatPW1 could, with certainly wholly blame DW1 for the occurrence  of the accident.  In his  testimony during cross examination, he stated that “ Our driver was speeding and was unable  to negotiate  the corner while avoiding  the  pot hole.  I was not able to see ahead.”

In addition, whereas PW1 testified  that:“………our driver  tried to avoid  hitting on pot hole  in the middle of the road and our vehicle  was hit  on the rear…..,” during examination  in chief, the third  party driver testified that “ the  pot hole  was on the  left lane of the matatu.” This evidence  is at  variance  and cannot be said to  corroborate  each other, as stated by the trial magistrate.  In addition, DW1 testified that the pot holes  were in the middle  of the road as  stated by PW1.

With the above analysis, I am satisfied that the trial magistrate  erred in law and fact in finding that the appellant was  wholly to blame for  the material accident.

In my view, this a proper case where liability between the defendant/appellant  herein and  the third party  should  have been apportioned equally based on the  evidence available.  Accordingly, I find and hold that  both the appellant  and the third party contributed  in equal measure to the occurrence of  the material accident and I find them liable in the ration of 50:50.

I therefore  set aside the decision of the trial magistrate on liability arrived at 100% against  the appellant and substitute it with an order splitting  liability between the appellant and  the 2nnd respondent  third party equally.

The above exposition, in my view, settles issued Nos 1,2 and 3 as framed.

As to what  is the appropriate general damages payable to the 1st respondent, commencing  with the pleadings in the  subordinate court, the 1st respondent’s plaint   outlines the injuries sustained as a result of the material accident as:-

Injuries  on the face.

Injuries  to the neck.

Dislocation of the right shoulder.

The 1st respondent testified  that he sustained  injuries on the face and ears  as broken  glass entered into his face and ears and that  he was also injured on the  right shoulder .  He was treated  at Imara Medical Clinic and the medical chits produced in evidence  show  that the 1st respondent sustained multiple  bruises  on the shoulder, face, painful eye and dislocation of the right shoulder and that  he was referred  to Kenyatta National  Hospital for  further management.

The P3  form filled  on 14th March 2006  showed  injuries sustained  being bruises  on the face, stiff neck, dislocation of the right shoulder and  bruises on the shoulder.  The medical legal report  prepared by Dr. Kiama Wangai show that  the 1st respondent sustained injuries that involved  bruised right shoulder, bruised face and dislocation of  the right shoulder, as pleaded.  Further,  he had blurring vision  of right eye  and unable  to lift heavy objects  with the right arm.  He  however had no permanent  disability  anticipated  as at 31st August 2006 during the medical examination.  Dr Wambugu PM who re examined the 1st respondent  on 22nd October 2008  found blunt trauma right shoulder joint, facial bruises, with some foreign bodies right  side of face and that patient asserted that no X rays  were taken whatsoever.

At the time of examination, the 1st respondent complained of occasional right shoulder  joint pains.  He had  a pain free movement  in the right shoulder joint.  He had made full recovery without any further complications or permanent incapacity.

Whereas the 1st respondent submitted for  an award of shs 400,000/- general damages in the lower court, the appellant submitted an award of shs  70,000/-  to be appropriate  in the circumstances, while the third party proposed  an award of shs 50,000 each replying on various rival authorities.

The trial magistrate, after comparing the injuries  as pleaded  and those made  in the cited  authorities  awarded the 1st respondent shs 150,000/- general damages  and shs 2,000/- special damages  proved.  The appellant laments that the general damages as awarded  was manifestly excessive.

On whether  the general damages  for  pain and  suffering  were inordinately  excessive  as alleged by the appellant, having considered the injuries  sustained  by the 1st  respondent as contained  in the amended  plaint, his testimony  in court, medical notes from the hospital where he  was first  attended to  and the two medical reports  by Dr Kiama  Wangai and Dr Wambugu, I have no doubt  in my mind that the said injuries  were consistent.  Although Dr. Wambugu’s report which  was made in 2008, over 2 years after  the accident states  that the plaintiff (1st  respondent informed  him that  no X rays  were taken to confirm the dislocation  of the right shoulder  the medical notes from Imara Medical Clinic dated  11th March 2006 where the 1st respondent  was first  attended  before he was transferred to Kenyatta National Hospital for further  management  as well as  the P3 form filled  on 14th March 2006 showed that indeed the  1st respondent had injuries which were pleaded  herein, confirmed by Dr.Kiama Wangai, which  included  dislocation of the right shoulder .  It is worth noting  that there was no  challenge to the nature of injuries  sustained by the 1st  respondent  which were classified  as grievous  harm, according to the P3 form.

In addition, the 1st respondent  was never  cross examined  on his injuries  and neither  was Dr Wambugu or Dr. Kiama  Wangai  cross examined on their respective  medical  reports  which were produced by consent.  It is however an undisputed fact that  as was  found by Dr Wambugu, apart from occasional pain in the right shoulder, the 1st respondent injuries  had healed  as at 22nd October 2008 with no permanent disabilities.

The question therefore  is whether shs 150,000/- as awarded  by the trial magistrate  was manifestly excessive.

The 1st  respondent  who had  prayed for   shs  400,000 general damages  and the 2nd respondent  who had proposed  shs 70,000/- support the  award made  by the trial magistrate whereas  the appellant laments  that the trial  magistrate, in making  an award of  shs 150,000/- failed to take into account the evidence  adduced, the submissions by the appellant  and the authorities  cited on comparable  injuries  and awards.

In deciding  whether it is justified to disturb  the quantum of damages  awarded by the trial court, an appellate  court must be guided by some principles. In Kemfro Africa Ltd T/A Meru Express Services  Gathogo Kanini vs A.M. Lubia & Olive Lubia  (1982-1988)  1 KAR  727,Kuella JA at page 730 stated that:-

“ The principles to be  observed by an appellate  court in deciding  whether  it is justified  in distributing  the quantum of damages  awarded  by a trial  judge were held by the former  Court of Appeal for Eastern Africa  to be that it must be  satisfied  that either  that the judge  in assessing  the damages, took into account an irrelevant factor  or left out  of account of  relevant  one  or that,  short of  this, the amount is  so inordinately low or so  inordinately high that it must be wholly erroneous estimate  of the damage( citing  with  approval Ilango vs Manyoka (1961) EA 705,709,713; and  Lukenya Ranching  and Farming Co-operatives Society Ltd vs Kavoloto (1970) EA 414, 418,419).  This court follows  the same principles.”

The appellant in his submissions  complains  that the trial magistrate  did not  cite  any authorities  to justify  his findings on quantum  of damages, and  relies  on his submissions  and authorities  made before the lower court.  He charges  that had the trial  court  considered the evidence adduced  and submissions, it would not have assessed  the sum of shs 150,000/- which the appellant  considers inordinately high, compared to the loss, urging this court  to reassess  the damages, citing the decision  in Paul Kipsang  Koech & Another  vs Titus Osule Osore (2013) e KLR  where  the court held that:

“……….the exercise  if discretion  was in   violation of principle, and was therefore , not exercised judicially.  The trial court  did not also base its assessment on any  known principles; was not guided by  the relevant  judicial authorities; failed to  take into account the  award proposed, and judicial authority quoted by the  respondent “ per F. Gikonyo J.

The 2nd respondent  supports the award as  being in tandem with judicial  authorities where  similar  injuries  were compared. The 1st respondent’s submissions  were general  on the  issues  raised  in the appeal and he prayed  that the lower court decision  be upheld.

I have carefully examined  the judgment  in the lower court as  contained  in pages  71-75 of the record of appeal.  The trial  magistrate  at pages 74-75 clearly  set out  what the plaintiff/1st respondent had proposed  as an award, the authorities  relied on,  as well as  what the  defendant  proposed  cited a figure of  shs  70,000 which was proposed by the third party.

However, she cited at page 74 of the record of appeal all the three authorities  relied  on by the appellant/defendants counsel, and found that the injuries as enumerated in Dr Kiama Wangai’s medical report were confirmed by Dr Wambugu’s report Pexhibit 9.

She then proceeded to state that:

“I have compared the injuries the plaintiff herein suffered with the injuries the plaintiff in the cited cases sustained and the awards  given I have taken  into account  the age of the said authorities  and award the  plaintiff shs 150,000/- as general damages.”

In my humble view, I do not find that the trial magistrate failed to consider or take into account any  factors  or principles  applicable in assessing  general damages.  In as much as  he referred  to shs 70,000/- as having  been  proposed by the defendant  instead of the third  party, he nonetheless  referred  to all the decisions  relied  on by the defendant  and compared  them with the authorities  cited by the plaintiff.

In my view, therefore, the trial magistrate  did consider the authorities cited , injuries, inflation and time lapse  since those  cases were decided  to guide her on the  assessment of damages and I find that he therefore exercised  his  discretion judicially.  In addition, I do  not find that  the award made  by the trial  magistrate  was not inconsonance  with decided cases and neither is it  inordinately excessive  in the circumstances  or a wholly erroneous  estimate  of the  damage to warrant  interference  by this  court.

In my assessment of damages in this  appeal, regard being  had to the nature, seriousness and extent  of the injuries sustained by the appellant  which, as indicated  in the pleadings, testimony, medical notes P3  and 2 medical reports,  were soft tissue  injuries

I do not  find the Paul Kipsang Koech case (supra) cited being  applicable  to this case as in  that case, it was clear that indeed  the trial magistrate had not, in making an award  of shs 750,000/- general damages    for soft tissue  injuries, relied on any known principle, or guided by any relevant  judicial authorities  and had not taken into account  the proposals made, judicial  authorities  quoted  by the respondent  and this   latter  error  was demonstrated  by the  statement  made by the trial magistrate  that “ the defence ( Read-respondent) on the other hand  has made no proposals on quantum  yet the respondent  in their  submissions  had proposed  some figures 70,000/- as reasonable  damages  for injuries  suffered, and quoted  authorities to support the proposal.

In this case, the trial  magistrate  referred  to shs 70,000/- as the proposed  figure  by the appellant  and therefore  I do not find that  he committed any error as to have occasioned  any prejudice  to the  appellant, as he went on to  appreciate   all the authorities  relied   on by the appellant before  making  his determination  on quantum.  Special damages were not contested.  They remain as awarded.

The upshot of all the above is that the appeal on liability allowed to the extent that liability between appellant and 2nd respondent is shared and apportioned at 50:50. The trial magistrate’s findings on liability are set aside.

The Appeal on quantum of damages is dismissed.  Award by trial magistrate upheld.  Damages of Kshs 150,000 to be paid equally between appellant and third party 2nd respondent. I award   costs of the suit below to the 1st respondent to be paid equally between the appellant and the 2nd respondent.

On Costs  of appeal, the appellant has succeeded  half way.  I shall award only ½ costs  of appeal to the appellant  to be shared equally  between the  respondents .  Interest on general damages  from  date of  judgment  in the lower court  until  payment  in full and  to be shared  between  appellant and 2nd respondent.  Interest on special damages from dated of filing suit  in the lower court  until payment in full.

Dated, signed delivered at Nairobi this 9thday of October 2015.

R.E. ABURILI

JUDGE