Said Swalha & Ben Kimani Wanjiru v John Munyasya Mugombe [2017] KEHC 1476 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 267 OF 2015

SAID SWALHA ………………………… 1ST APPELLANT

BEN KIMANI WANJIRU ………………. 2ND APPELLANT

VERSUS

JOHN MUNYASYA MUGOMBE ……….... RESPONDENT

(Being  an appeal from the Judgment and decree of the Chief Magistrate’s court at Kiambu by the Hon. S.K. Atome (Mr.) R.M. Dated 29th November, 2015 in CMCC NO. 156 OF 2014)

JUDGEMENT

The respondent herein was cycling along Redhill road/Thigiri Ridge when he was knocked down by motor vehicle registration No. KBG 942F.  As a result he suffered injuries and lodged a suit against the appellants for general and special damages.  The lower court found the appellants 80% to blame for accident and assigned the respondent 20% contributory negligence.  The respondent was then awarded Kshs. 500,000/= general damages plus Kshs. 3,440/= special damages.  General damages were reduced by 20% contributory negligence leaving a balance of Kshs. 400,000/=.

The appellants were aggrieved by the said judgment and lodged the present appeal.  In the memorandum of appeal filed herein the appellants faulted the lower court for awarding Kshs. 500,000/= for soft tissue injuries which were too high in view of the evidence tendered.  This was a failure to consider convectional awards in cases of similar nature.  The lower was also faulted for failing to consider the appellants’ submissions on liability.

As the appellate court, it is my duty to consider the evidence adduced before the lower court and come to independent conclusions.  This I have done.  Both parties have filed submissions which I have also considered.

The accident took place at a junction when the respondent was preparing to cross from the left to the right hand side.  He had indicated with his hand that he wanted to turn and the motor vehicle was driving behind him.  He blamed the accident on the driver of the motor vehicle.  It was his evidence that he was hit from behind.

The police officer who gave evidence during the trial told the court that the accident happened at the junction and that the respondent failed to give way to the motor vehicle.  The respondent was supposed to wait and see the road was clear for him to cross.  This officer however did not visit the scene neither did he have the sketch plan of the road at the scene of the accident.

It is only the respondent and the police officer who gave evidence in the trial because the appellants did not present themselves to testify despite indulgence given by the court.  The respondent was cycling ahead of the motor vehicle and the driver ought to have known, and especially so where there is a junction, that the respondent would be turning.  Indeed, the respondent said in his evidence that he had indicated by hand that he was turning, which has not been contradicted.

He had an opportunity to stop and let the motor vehicle pass before making his turn.  This he did not do.  At the same time, the motor vehicle driver who was driving behind the respondent did not hoot or brake to allow the respondent turn into the junction.  He did not therefore exercise due care and attention in the circumstances of this case.

The apportionment of liability assigned by the trial court in my view cannot be faulted.

The respondent suffered injuries set out in the medical report produced in evidence as follows, Cut wound on the lower lip, cut wound left ankle, deep cut wound occipital region, pain and bleeding.  The medical report by Dr. G.K. Mwaura, was dated 16th June, 2014 just about two and half months after the accident. The doctor accessed his injuries to be soft tissue injuries moderate in degree and prognosis was fair.

Several cases were cited by both learned counsel in their submissions.  I agree with the appellants’ submissions that comparable injuries should attract comparable awards.  An appellate court may interfere with the judgment of the lower court if irrelevant factors were taken into consideration leaving out relevant factors; and where the award is so inordinately low or manifestly excessive that it amounts to an erroneous estimate in the circumstances of the case.

In my judgment the award of general damages was inordinately high, considering the nature and degree of injuries sustained by the respondent and comparable cases.  In the circumstances I reduce that award from Kshs. 500,000/= to Kshs. 300,000/= which shall be subjected to 20% reduction contributory negligence on the part of the respondent. Leaving a balance of Kshs. 240,000/=.

Accordingly, there shall be judgment for the respondent in the sum of Kshs. 240,000/= general damages plus Kshs. 3,440/= special damages.  The respondent shall have the costs and interest at court rates calculated from the date of the judgment of the lower court.

Orders accordingly.

Dated, signed and delivered at Nairobi this 7th  Day of December, 2017

A. MBOGHOLI MSAGHA

JUDGE