Kaluki Mwendwa & Mwendwa Isika v Abdfinazir Hassan Abdirehman & Zafanana Bus Expressa [2017] KEHC 6572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 9 OF 2009

1. KALUKI MWENDWA

2. MWENDWA ISIKA….……….……………..….……………………………..APPELLANTS

VERSUS

1. ABDFINAZIR HASSAN ABDIREHMAN

2. ZAFANANA BUS EXPRESSA........................................................................RESPONDENT

(An Appeal arising out of thejudgment of Hon J.O. Oseko PM delivered on 15th  December  2008 in Machakos Principal  Magistrate’s Court Civil Case No.143 of 2002 as consolidated with Civil Case No 357 of 2002)

JUDGMENT

Introduction

The Appellants are the original Plaintiffs in Machakos Principal Magistrate’s Court Civil Case No.143 of 2002 and Machakos Principal Magistrate’s Civil Case No 357 of 2002, and have appealed against the judgment of the learned trial Magistrate, which was delivered in the said consolidated  suits on 15th December 2008. The Respondents are the original Defendants  in the said suit.

On 13th June 2001 the 1st and 2nd Appellants who were daughter and father respectively, were travelling in motor vehicle Registration Number KAM 273Z, when the said motor vehicle was involved in a road traffic accident along Thika-Mwingi Road, as a consequence of which they sustained injuries. The 1st Appellant filed Machakos PMCC No. 357 of 2002 while the 2nd  Appellant filed Machakos PMCC No. 143 of 2002 arising out of the said accident. In both suits the Appellants claimed damages based on the tort of negligence for the injuries that they sustained. The gave the particulars of negligence, injuries suffered and special damages incurred in the said Plaints.

The 1st Respondent was alleged in the said Plaints to be an employee of the 2nd Respondent, while the 2nd Respondent was alleged to be the owner of motor vehicle registration number KAM 273 Z which was being driven by the 1st Respondent.   The learned magistrate in her judgment dismissed the Appellants’ suit with no order as to costs, on the basis that the Appellants had not proved their casees.

The Appellants have appealed against the said judgment and moved this Court through a Memorandum of Appeal dated 26th January 2009. Their grounds of appeal are as follows:

1. The Learned Magistrate erred in law and facts in holding that driving at a high speed does not amount to negligence .

2. The Learned Magistrate erred in law and facts by holding that there was no evidence that the motor vehicle was being driven by the 1st Respondent though such evidence    was     tendered     through     an     uncontested     Police    Abstract.

3. The      Learned    Magistrate    failed    to    appreciate    that    there    was an interlocutory judgment    against  the   1st  Respondent.

4. The  Learned  Magistrate failed to  appreciate that the  Defendants  did  not offer  any evidence to controvert the Appellants' evidence.

5. The Learned Magistrate erred in law in failing to apply the required standard of proof in civil matters .

6. The judgment  does  not conform  to the  requirements  of  the  law for  it does  not assess what would have been the quantum of damages had the suit succeeded .

The Appellants pray that  the Appeal  herein  be allowed  by setting aside the judgment and entering judgment in their favour.

The Facts and Evidence

It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts, and come up with its findings and conclusions. See in this regard the decisions in this respect in Jabane vs. Olenja [1986] KLR 661, Selle vs Associated Motor Boat Company Limited[1968] EA 123 and Peters vs. Sunday Post[1958] E.A. 424.

I will therefore firstly proceed with a summary of the facts and evidence given in the trial Court. The 1st and 2nd Appellants claimed in the plaints they filed in the trial Court dated 9th May 2002 in Machakos Principal Magistrate’s Court Civil Case No.357 of 2002 and 20th February 2002 in Machakos Principal Magistrate’s Court Civil Case No.143 of 2002, that on or about 13th June 2001, the   1st Respondent  so   negligently   drove   and controlled  motor  vehicle  Reg.  No .  KAM  273  Z  such  that  he  caused  an  accident a long  Thika- Mwingi  Road  at  Matuu  causing  serious  bodily  injuries  to  the Appellants.

The injuries claimed to have been caused to the 1st Appellant were multiple facial cuts, disfiguring permanent facial scars and inability  to  completely  close  her left  eye. The 2nd Appellant pleaded the following  injuries : multiple soft tissue injuries to the head, upper and lower limbs, frequent left sided headaches and permanent scars. The  1st and 2nd Appellants  claimed for general damages and special damages Kshs 14,905/= and of Ksh2,100/= respectively.

In response, the Respondents filed defences dated 7th June 2002 in both  Machakos Principalt Magistrate’s Court Civil Case No.143 of 2002 and  Machakos Principal Magistrate’s Court Civil Case No.357 of 2002. They  denied the allegations that the 1st Respondent was  the 2nd Respondent’s employee, or that he negligently drove motor vehicle registration number KAM 273Z as alleged. They also denied all the particulars of negligence alleged against the 1st Respondent, and further denied that they were responsible for the actions of the 1st Respondent, or the injuries, damage or loss alleged to have been suffered by the Appellants.

From the record of the trial court proceedings, the two suits were consolidated for purposes of hearing by the trial Court on 17th May 2004, and  proceeded to full hearing on 23rd February 2005, 5th July 2007 and 2nd October 2008. The 1st and 2nd Appellants testified as PW2 and PW1 on 23rd February 2005, before the hearing was adjourned until 5th July 2007, when Dr. Waithaka Mwaura testified as PW3 and the Appellants closed their case. On 2nd October 2008,  Miss Adere, the legal counsel for the Respondents, submitted that she was not offering any evidence in defence and closed the Respondents’ case.

The Issues and Determination

The Appellant and Respondent canvassed this appeal by way of written submissions. The Appellants’ learned counsel, E.K Mutua & Co Advocates  Advocates, filed submissions  dated  20th September  2016,  while the Respondent’s learned counsel  Adere  & Company Advocates  filed submissions dated 14th October 2016.

On the issue of liability, it was submitted by the Appellants that their Plaints gave the particulars of negligence as inter alia, driving at a high and excessive speed in the circumstances and failure to control the motor vehicle in order to avoid the accident. Further, that the said averments were proved by the clear testimony of the 1st and 2nd Appellants. It was also submitted that contrary to the holding by the learned trial magistrate, it was not the duty of the Appellants to make a finding of negligence but the duty of the court.

It was contended that the Appellants’ duty was to give evidence to the effect that the motor vehicle was being driven at a high speed and that the driver lost control. The decision as to whether the said action amounts to negligence must be left to the court to decide. The Appellants cited the decision in James Gikonyo Mwangi vs DM (minor suing through his mother and next of friend, IMO), (2016) eKLR, where the  court interrogated the question of high speed.

On the evidence that the motor vehicle was being driven by the 1st   Respondent, the Appellants argued that the police abstract which was produced as an exhibit during the trial  indicate that the driver of motor vehicle Registration Number KAM 273Z was Abdinazir Hassan Abdirehman. Further, that such evidence having been uncontroverted, it was erroneous for the learned trial Magistrate to have found in her judgment that there was no mention of the Defendant at all in the evidence adduced by the Appellants. Reliance was placed on the Court of Appeal decisions in Wellington   Nganga   Muathiora   vs.  Akamba   Public   Road   Services  Ltd   & Another  (2010) eKLR; and Ibrahim Wandera vs. PN Machoru, Civil Appeal No. 333 of 2003

It was also the Appellants’ submission that the learned magistrate erred in law in not appreciating that unless evidence in support of the defence is tendered, the statements in the defence remain mere denials and of no evidential value. Reliance in this respect was placed on the decision by Odunga J. in Linus Nganga Kiongo & 3 Others V. Town Council of Kikuyu, [2012] eKLR

Lastly, it was submitted by the Appellants on the issue of liability that the trial court failed to appreciate that the burden of proof in civil matters is on a balance of probability, as the findings by the learned magistrate suggest that the Appellant were required to proof the case beyond reasonable doubt.

The Respondent’ learned counsel on his part submitted that these proceedings are between the Appellants and 2nd Respondent whose identity is uncertain. It was contended in this respect that the said counsel did withdraw from acting for the 1st Respondent who is deceased, and despite knowing of his demise the Appellants had not removed his name from the case nor substitute him.  Further, that the plaints both in PMCC NO. 143 of 2002 and PMCC NO. 357 of 2002 give the name of the 2nd Respondent as Zafanana Express Bus Company and Zafanana Bus Express respectively. However, that paragraph  3 in both  plaints  describe the 2nd  Respondent as a "limited liability company", but the  title  has  no  suggestion  that  it  is  a  limited  liability  company  or  any incorporated body as it lacks the name "Limited”. In addition that the Appellants did a search  at the Motor Vehicle Registry but decided not to use the name given therein as "Zafanana Express".

It was also submitted that the said Plaints aver that at the material time the 1st Respondent (deceased) was an employee of the 2nd Respondent,  who denied this averment in its defence, and it was crucial for the Appellants  to prove the nexus between the person driving and the owner of the vehicle, and that the said driver was at the time of the accident in the course of his employment with the owner of the vehicle.  It was contended that no evidence was adduced by the Appellants that this was the case, and that the police abstract showing the 1st Respondent as the driver cannot form conclusive evidence of its contents, and  only suggests that the named person be presumed to have been the driver of the vehicle in question. Further, that it did not connect the driver to being an employee of the 2nd Respondent.

Lastly, the Respondent urged that the burden of proof is with the one who asserts unless the law provides otherwise under sections 107, 108 and 109 of the Evidence Act, whether or not the defence calls evidence. Therefore, the fact that the defence has not called evidence to rebut the Appellants’ case does not entitle the Appellants to judgment, and they have to prove their case. Further, that the Respondent was only applying the law in not calling evidence, because the Appellant had not led evidence that in law would  require  a rebuttal. Reliance was in this regard  placed on the pronouncements of the Court of Appeal in Kenya in Nakuru Automobile House Ltd vs Ziaudin [1987] eKLR, Khayigila vs Gigi & Company Ltd & Anor  [1987] eKLR,andTabitha Nduhi Kinyua vs Francis Mutua Mbuvi & Anor, [2007] eKLR.

On the issue of quantum of damages the Appellant submitted that the learned trial Magistrate did not indicate what quantum of damages would have been awarded were the suit by the Appellants to succeed, as held  in Moses Cheboi Nyerere vs. Charles Kinyanjui Kangethe, [2008] eKLR. The Appellants further submitted that the court should now assess damages based on the current cases due to lapse of time. It was urged that the 1st Appellant should be awarded a sum of Kshs 2,500,000/= as general damages and reliance was in this regard placed on the decision in the decision of JJ(a minor suing through JKG and JMJ; father and mother as next friends) and Another vs. Akamba Public Roads Services Limited and Another [2015] e KLR,where the court considered the effect of facial injuires as being of great cosmetic concern to a young girl, and awarded a sum of Kshs. 2,500,000/-.

As regards the 2nd Appellant, reliance was placed on the decision of Kamenju Charles vs Gideon Muia Mutisya, [2014] eKLR where the court declined to interfere with an award of Kshs. 170,000/- for soft tissue injuries, and that considering the lapse of time, a sum of Kshs. 250,000/- as general damages was proposed.

The 2nd Respondent submitted that the court below ought to have assessed what damages it would have awarded had the Appellants succeeded, but that  failure to do so is not fatal to its decision to dismiss the case. If, however, damages were to be awarded, then they should be assessed as at the time injuries were sustained, that is in 2001, and that  the recent decisions on damages as submitted by the Appellants would not be applicable.

From the grounds of, and relief sought in this appeal, and the submissions made thereon by the parties, it is evident that there is a preliminary issue raised as to whether there has been a misdescription of the Plaintiff, and if so whether such misdescription of a party makes the proceeding null and void. If the proceedings are not found to be null and void, the Court will then proceed to consider the two substantive issues raised which are firstly, whether the trial magistrate erred in finding the Respondents not liable for the accident that occurred on 13th June 2001. The second issue is if the Respondents are found liable,  what is the quantum of damages that should be awarded to the Appellants.

On the preliminary issue of the description of the 2nd Respondent, it is evident that the 2nd Respondent is not disputing that there exists an entity known as Zafanana Express which it claims is variously described by the Appellants. I note in this regard that Order 1 Rule 9 of the Civil Procedure provides as follows:

“No suit shall be defeated by reason of misjoinder or non-joinder of parties, and that the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

In addition, Order 1 Rule 10(2) provides the following remedy in the event of misdescription of a party:

“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

Lastly, I also adopt the finding by Aburili J. in  Geoffrey Asanyo & another v John Kiragu Ngunyi & 13 Others,[2015] eKLRwhere the learned Judge held as follows:

“I find the defect to be that of misdescription or misjoinder of parties which is a procedural technicality that cannot defeat the substance of a suit. I also find that no prejudice will be occasioned to the defendants herein who are named together with entities which are said to be unincorporated. The court is entitled to determine issues between parties actually before it, since under Order 1 rule 12 of the Civil procedure rules 9 and Order 2 rule 14, no suit shall be defeated for misjoinder or non joinder and no technical objection shall render a suit invalid. This is further supported by Article 159(2)(d) of the Constitution which abhors procedural technicalities at the expense of substantive justice.”

In addition, it is rather late in the day for the 2nd Respondent to raise the issue of its description in the pleadings filed in the trial Court, since if it was the wrong party being sued it should have raised this as a preliminary issue in the suit before the trial Court, to give an opportunity to the Appellants to respond to the same. The 2nd Respondent however accepted service and participated in the lower court proceedings by filing a defence thereto, and is therefore estopped from raising this issue at appeal. I am in this regard persuaded and adopt the reasoning of Lenaola J. (as he then was) in  Fubeco China Fushun v Naiposha Company Limited & 11 Others, [2014] eKLRwhere the learned Judge held as follows:

“Despite the misdescription, I repeat, the Defendant all along knew who the Plaintiff was; it was the person with whom it entered into contract herein. All its pleadings and responses show that the Defendant made adequate and pointed responses to the Plaintiff’s claim; leaving no doubt whatsoever that it was addressing the Plaintiff’s claim which arose from the contract dated 1st March, 2010. The Defendant is just dishonest. If it was serious about the juristic personality of the Plaintiff nothing would have been easier than to raise it before the tribunal. For those reasons, estoppel would arise to prevent the Defendant from contending that the Plaintiff was not a juristic person. See the case INDIAN CASE OF UNION OF INDIA v K.P MANDAL, AIR 1958 Cal.415. ”

Coming to the first substantive issue as regards liability, the 2nd Respondents firstly contests that the 1st Respondent was its employee, and that the police abstract was not conclusive evidence of this fact. The legal burden of proof is set out in sections 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides as follows:

“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.”

In addition, the evidential burden is cast upon a party  to prove any particular fact which he desires the court to believe in its existence under sections 109  of the Evidence Act as follows:

“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.

The position as to proof in civil cases  was reiterated in the case of Kirugi & Anor vs  Kabiya & 3 Others [1987] KLR 347, wherein the Court of Appeal stated that the burden was always on the plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof. The Appellants had  both the legal and evidentiary  burden of proof of any facts alleged to the standard required which is on a balance of probabilities. Therefore, the burden was upon the Appellants in the first instance to prove the ownership of motor vehicle registration number KAM 273Z, and liability of the Respondents for the accident involving the said motor vehicle that occurred on or about 13th June 2001.

The Appellants have argued that they discharged this burden by production of a police abstract which showed that the 1st  and 2nd Respondents were the driver and the registered owner respectively  of the said motor vehicle. The Appellants also produced as an exhibit a copy of records from the registrar of motor vehicles dated 16th January 2002, showing the registered owners of motor vehicle registration number KAM 273Z to be Zafanana Express and CMC Motor Group Ltd.

As regards, the ownership of the said motor vehicle,  section 8 of the Traffic Act (Chapter 403 of the Laws of Kenya) which provides for registration of motor vehicles provides as follows:

“The person in whose name a vehicle is registered shall, unless the contrary is proved be deemed to be the owner of the vehicle“

It is therefore the position that a logbook or certificate of search is not conclusive proof of ownership, and though such document may purport to show the registered owner, it may not be conclusive proof of actual ownership of a motor vehicle as the above section clearly points out that the contrary can be proved.

In the case of Samwel Mukunya Kamunge vs John Mwangi Kamuru Civil Application No.34 of 2002. Okwengu, J (as she then was) stated as follows in this regard:-

“It is true that a certificate of search from the Registrar of motor-vehicle would have shown who was the registered owner of the motor-vehicle according to the records held by the Registrar of motor vehicle. That however is not conclusive proof of actual ownership of the motor vehicle as section 8 of the Traffic Act provides that the contrary can be proved. This is in recognition of the fact that often time’s vehicles change hands but the records are not amended.

I find that the trial magistrate was wrong in holding that only a certificate of search from the Registrar of motor vehicle could prove ownership of the motor-vehicle. I find a police abstract report having been produced showing the Respondent as the owner of motor vehicle KAH 264A, and evidence having been adduced that letters of demand sent to the Respondent elicited no response from him denying ownership of the motor vehicle, and the Respondent having offered no evidence to contradict the information on the police abstract report, the appellant had established on a balance of probability that motor vehicle KAH 264A was owned by the Respondent.”

Specifically on the evidentiary value of a police abstract as regards proof of ownership of a motor vehicle, the Court of Appeal sitting at Kisumu held as follows in the case of Wellington Nganga Muthiora vs Akamba Public Road Services Ltd & Another,(2010) e KLR:

“Where a police abstract was produced and there was no evidence adduced by a defendant to rebut it and not even cross-examination challenged it, the police abstract being a prima facie evidence not rebutted could be relied on as proof of ownership in the absence of anything else as proof in civil cases was within the standards of probability and not beyond reasonable doubt as is in criminal cases.  However, where it was challenged by evidence or in cross-examination, the plaintiff would need to produce certificate from the Registrar or any other proof such as an agreement for sale of the motor vehicle which would only be conclusive evidence in the absence of proof to the contrary”

Likewise, in  Ibrahim Wandera vs. P N Mashru Civil Appeal No. 333 of 2003 the Court of Appeal expressed itself as follows:

“The learned Judge did not at all make reference to the police abstract report which the appellant tendered in evidence. In that document the accident bus is shown as KAJ 968W, with Mashru of P. O. Box 98728 Mombasa as owner. This fact was not challenged. The appellant was not cross-examined on it and that means that the respondent was satisfied with the evidence… The police abstract form established ownership of the accident bus and the appellant was properly given judgement by the trial court against the respondent.”

Lastly, I associate myself with the decision of Warsame J. (as he then was) in Jotham Mugalo vs. Telkom (K) Ltd,Kisumu HCCC No. 166 of 2001where the learned Judge held as follows:

“Whereas it is true that it is the responsibility of the plaintiff to prove that the motor vehicle which caused the accident belonged to the defendant and the production of a certificate of search is a valid way of showing the ownership, it is not the only way to show that a particular individual is the owner of the motor vehicle as this can be proved by a police abstract. Since a police abstract is a public document, it is incumbent upon the person disputing its contents to produce such evidence since in a civil dispute the standard of proof requires only balance of probabilities. Where the defendant alleges that the motor vehicle which caused the accident did not belong to him, it is up to them to substantiate that serious allegation by bringing evidence contradicting the documentary evidence produced by the plaintiff as required by section 106 and 107 of the Evidence Act. The particulars of denial contained in the defence cannot be a basis to reject a claim simply because a party has denied the existence of a fact as a fact denied becomes disputed and the dispute can only be resolved on the quality or availability of evidence.”

Therefore, to the extent that evidence of a police abstract showing the 2nd Respondent to be the owner of motor vehicle registration number KAM 273Z was produced by the Appellants during the trial, and was not disproved during cross-examination, or controverted by the Respondents, I find that the Appellants did discharge their burden of proof in this respect.

The second question that  needs to be answered is whether there was proof that the driver of motor vehicle registration number KAM 273Z was in the employment of the 2nd Respondent. in Tabitha  Nduhi Kinyua  V Francis  Mutua  Mbuvi  &Another[2014] e KLR it was  held as follows :

“ In order to fix liability on the  owner of a car for negligence of  the driver, it was necessary to show either  that the driver was  the owner’s servant or that at the  material  time  the driver  was acting  on the owner’s behalf as his agent .  To  establish  the existence of the agency  relationship, it was necessary to show that the driver was using  the car  at the owner’s request, express  or  implied or on his.  Instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”

I have perused the police abstract produced as an exhibit in the trial Court, and note that the abstract gives the salient facts of a vehicle accident as ascertained by the police from their own observation, including the name of the driver who in this case was identified as the 1st Respondent. PW1 testified that he was a fare paying passenger in motor vehicle registration number KAM 273Z reported to have been driven by the 1st Respondent, and which has been found to have been owned by the 2nd Respondent. He produced a receipt issued to him dated 13th  June 2001 as his exhibit 1. The inference that can be drawn from these set of circumstances is that the 1st Respondent could only have been driving the said motor vehicle for the benefit of the 2nd Respondent, and therefore with the 2nd Respondent’s implied authority, who can therefore be held vicariously liable for the negligence of the 1st Respondent.

As regards the proof of negligence on the part of the Respondents, I have evaluated the evidence given in the trial Court, and note that evidence was given by the 2nd Appellant  who was PW1 that on 13th March 2005 he was in motor vehicle registration number KAM 273Z with his daughter (PW2), and they were travelling from Mwingi to Nairobi, when at Matuu the vehicle which was being driven at high speed veered off the road to the murram, and the driver was not able to control it as a result of which it fell on its left side. PW1 testified that he is a driver and estimated the speed at which the said motor vehicle was being driven to be at 120 kilometres per hour. PW2 corroborated this evidence by testifying that the vehicle fell before they arrived in Nairobi.

PW1 produced a police abstract as his exhibit which showed that the driver of the said motor vehicle was charged with the offence of reckless driving. This evidence was not controverted by the Respondents and in my view met the threshold of a balance of probabilities in proving the particulars of negligence pleaded in the Appellants’ Plaints as regards driving at a high and excessive speed and failing to brake or control the said motor vehicle. I therefore find that the 1st and 2nd Respondents were  negligent and did wholly contribute to the accident and are liable for the same jointly and severally.

On the remaining  issue of quantum of damages, it is an established principle of law that that the Appellate court will only interfere with quantum of damages where the trial court either took into account an irrelevant factor or left out a relevant factor, or where the award was too high or too low as to amount to an erroneous estimate, or where the assessment is not based on any evidence (see Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727, Peter M. Kariuki v Attorney General CA Civil Appeal No. 79 of 2012 [2014]eKLRandBashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

It is evident from the finding in the foregoing that there is a relevant fact that was left out in the trial Court’s decision on damages, which was that of the  Respondents’ liability.  I also agree with the Appellants in this respect that the correct as held in Moses Cheboi Nyerere Vs. Charles Kinyanjui Kangethe [2008] eKLR, where the court held as follows:-

"Thetrialcourthavingheldthat the Plaintiff hadnolocusstandi andhad not proved hercase on abalanceof probabilities, didnotproceed to statethequantum of damages and special damagesthatitwould haveawarded hadthe Plaintiffsucceeded inhercase. The court was underan obligationtoquantifysuch damages, even afterhavingdismissedthecase; seeDaniel Nganga Kanyivs.Sosphire Company  Ltd&Another,Civil Appeal  NO.52OF 1999".

The Respondents did not contest the injuries suffered by the Appellants on which evidence was led by Dr Waithaka Mwaura who was PW3 and who examined the 1st and 2nd Appellants, and produced medical reports on the injuries they suffered which were produced as Exhibits in Court.  PW1 also produced as evidence a P3 form that was filled with respect to himself and PW2 showing the injuries they suffered from the accident. All these documents confirmed that the injuries suffered by the Appellants were as pleaded in their Plaints.

The legal principles that apply to award of damages is that a sum should be awarded which is in its nature of a conventional award in the sense that awards for comparable injuries should be comparable, and the amount of the award is influenced by the amounts of awards in previous cases in which the injuries appear to have been comparable, and is adjusted in light of the fall in the value of money since such awards were made. See in this regard  Kemp & Kemp on The Quantum of Damages, Volume 1 paragraphs 1-003.  In my view to be comparable the previous cases must have been made at the time or close to the time the injuries were suffered by a claimant, hence the provisions for adjustment.

I note in this respect that as regards the 1st Appellant the Appellants in their submissions in the trial Court cited the decisions in Valentine Onjula Ogola vs Gerald B. Omondi, HCCC No 254 of 1991 and Job Chanzu & Anor vs Joseph Okol o & Anor,  HCCC 4494 of 1989 in which the award for facial injuries caused to the Plaintiffs therein were Kshs 265,000/= and 150,000/= respectively. As regards the 2nd Appellant, the Appellants had submitted in the lower Court that an award of between 70,000/= to  Kshs 150,000/= would be reasonable as general damages for soft tissue injuries.

Taking into account that the cited judicial  decisions are for cases that arose over 25 years ago and the inflationary trends, I find that  an award of Kshs 1,000,000/= as general damages for the injuries suffered by the  1st Appellant and Kshs 300,000/= as general damages for the injuries suffered by the  2nd Appellant would be reasonable in the circumstances.

Finally, the Appellants did produced receipts to prove the special damages pleaded of Kshs 14,905/= for the 1st Appellant and Kshs 2100/= for the 2nd  Appellant.

I accordingly allow the appeal to the extent of finding the driver and owner of motor vehicle registration number KAM 273Z fully liable for accident that occurred 13th June 2001, and award damages, as follows:-

1. For the 1st  Appellant

a) General damages for pain suffering and loss  of amenities……Kshs.1,000,000/=

b) Special damages as pleadedand proved ……………………………Kshs.   14,905/=

Sub total………………………………………………………Kshs.   1,014,905/=

2. For the 2nd Appellant

a) General damages for pain suffering and loss  of amenities…………………………Kshs. 300,000/=

b)    Special damages as pleaded

and proved …………………………………………………………………… Kshs.   2100/=

Sub total……………………………………………………………………Kshs.   302,100/=

The total award in favour of the Appellants as against the Respondents both jointly and severally is therefore Kshs  1,317,005/= . The Respondents shall meet the costs of the trial and appeal.

It is so ordered.

DATED AT MACHAKOS THIS  20TH MARCH 2017.

P. NYAMWEYA

JUDGE