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ELRCPartially Allowed· [2021] KEELRC 2012 (KLR)

Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR)

High Court of Kenya
10 March 2021
SRS.N Riechi
2,096 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The respondent, as plaintiff in the trial court, sued the appellants for negligence arising from a road traffic accident on 25th August 2017 in which the appellants' Motor Vehicle KCL 484W collided with the respondent's Motor Vehicle KCE 982B Toyota Fielder, causing bodily injuries. The trial magistrate entered judgment for the respondent with 100% liability against the appellants, general damages of Kshs.350,000/= and special damages of Kshs.11,600/=. The appellants appealed on liability and quantum, arguing that negligence was not proved and that the award was excessive given that the respondent suffered only soft tissue injuries. The respondent supported the liability finding based on the 2nd appellant's guilty plea in Kimilili Traffic Case No. 102/2018 and sought enhancement to Kshs.700,000/=. S.N Riechi J framed two issues: whether the trial court erred in holding the appellants 100% liable, and whether quantum was inordinately high. On liability, the court held that although a traffic conviction does not bar a contributory negligence defence, the defendant must adduce evidence to that effect, and none was adduced; the liability finding was affirmed. On quantum, applying the Tete and Jane Chelagat Bor principles, the court found the Kshs.350,000/= award fair and affirmed it, noting the respondent could not seek enhancement without a cross-appeal. Special damages were reduced to Kshs.6,000/=, the only proved expenditure (the medical report receipt). The court made no orders as to costs of the appeal. Judgment dated 10th March 2021 at Bungoma.

Key legal issues

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01

Liability for the road traffic accident

Holding

100% liability against the appellants affirmed; a guilty plea in traffic proceedings plus failure to prove contributory negligence justified it

Reasoning

The 2nd appellant was charged in Kimilili Traffic Case No. 102/2018, pleaded guilty and was fined. Although a traffic conviction does not bar a defence of contributory negligence, the defendant must adduce evidence to that effect. The statement of defence's averments of plaintiff negligence were not enough; the 2nd appellant admitted pleading guilty. The trial court's finding on liability was therefore not disturbed.

p. 3
02

Whether the award of general damages was inordinately high

Holding

The award of Kshs.350,000/= for multiple soft tissue injuries was fair and affirmed

Reasoning

Applying the Tete and Jane Chelagat Bor principles, interference requires wrong principle, misapprehension of evidence or an entirely erroneous estimate. None was shown. The appellants' comparables were too low and the respondent's too high; the award struck a balance between them, considering inflationary tendencies. The respondent could not seek enhancement absent a cross-appeal.

p. 3
03

Special damages

Holding

Only Kshs.6,000/= (medical report receipt) proved; special damages reduced from Kshs.11,600/= to Kshs.6,000/=

Reasoning

Special damages must be specifically pleaded and strictly proved by receipts. Apart from the receipt for Kshs.6,000/= for the medical report, there was no proof of expenditure on the other items claimed under special damages, so the balance of the award could not stand.

p. 3

Legal principles established

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  • An appellate court can interfere with an award of damages only where the trial court applied wrong principles or misapprehended the evidence so as to arrive at an entirely erroneous estimate
  • A defendant alleging contributory negligence must adduce evidence to support it; mere averments in a defence are insufficient
  • Special damages must be specifically pleaded and proved by receipts

Court orders

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  1. 1.The trial court's finding on liability (100% against the appellants) is affirmed
  2. 2.The trial court's award of general damages of Kshs.350,000/= is affirmed
  3. 3.Special damages reduced from Kshs.11,600/= to Kshs.6,000/= being the cost of procuring the medical report
  4. 4.No orders as to costs on the appeal

Authorities

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Legislation

  • Traffic ActSection 49

Cases cited (12)

  • Lavington Security Services Ltd Vs Okeyo
    (2004) eKLR
  • Lilian Birir & Another Vs Ambrose Leaman
    [2016] eKLR
  • Ndungu Dennis Vs Ann Wangari Ndirangu & Another
    (2018) eKLR
  • Dickson Ndungu Kirembe vs Theresia Atieno & 4 Others
    [2014] eKLR
  • Juma Hajee Properties Vs Hamidu Malio & 2 Others
    Eldoret Civil Appeal 42 of 2018
  • Emmanuel Kirwa Too (suing through father and next friend) John Kiptoo Koskei Vs Poa Link Services Company Ltd & 2 Ors
    HCC 26/2018-Eldoret
  • Easy Coach Ltd Vs Emily Nyangasi
    (2017) eKLR
  • Catholic Diocese of Kisumu vs. Sophia Achieng Tete
    (2004) 2 KLR 55
  • Jane Chelagat Bor vs. Andrew Otieno Onduu
    [1988-92] 2 KAR 288; [1990-1994] EA 47
  • Robert Ngare Gateri Vs Maingo Transporters
    (2015) eKLR
  • Francis Ochieng & Another v Alice Kajimba
    (2015) eKLR
  • H. Young Construction Company Ltd v Richard Kyule Ndolo
    (2014) eKLR
On appeal from
Trial Magistrates' Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (Civil Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2012/eng@2021-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.