Patricia Mutugwa Mutunga v Paul Makau Kitavi & 1 other

Evidence 3. The Appellant's case in the lower court was supported by the evidence of three witnesses, namely, PWlthe Appellant herein, PW2-Dr Muli Simeon Kioko, PW3- Sargent James Wambua a police officer from Matuu Police Station and PW4- Nzomo Kitonyi. 4. The Appellant testified that on 1/10/2017 she was a lawful pillion passenger on board motor cycle registration KMCZ847L along Matuu-Mwingi Road and on reaching Mathauta Area motor vehicle registration number KBC 298N which was being driven at a very high speed approached such that it rammed motor cycle registration number KMCZ 847L from the rear. She was thrown off the motor cycle and as a result she sustained injuries on the back, right elbow, right thigh and right ankle joint and she was rescued by good Samaritans and rushes to County Gate Health Centre where she was treated and discharged. She concluded her evidence by blaming motor vehicle registration number KBC 298N for careless driving and over speeding and thus causing the accident. 5. The Appellant’s evidence was corroborated by the evidence of PW4. It was his testimony that on 1/10/2017 he was lawfully riding his motor cycle registration number KMCZ 847L along MatuuMwingi Road. He was carrying the Appellant herein as a pillion passenger from Matuu to her home place within Matuu Area. It was his testimony that they did not reach their destination because while at Mathauta Area, motor vehicle registration number KBC 298N approached from behind being driven at a very high speed such that it rammed into the rear of his motor cycle and both him and the pillion passenger were thrown off the road. His evidence remained unshaken even during cross-examination and he confirmed that his motor cycle was ahead of the motor vehicle. He also confirmed to court that he was not charged for careless driving but for driving without an insurance and the traffic court pardoned him when he produced the said insurance certificate. He concluded his evidence by blaming the driver of motor vehicle registration number KBC 298N for driving at a very high speed and hitting him from the rear. It was his evidence that the driver of the said motor vehicle ought to have slowed down when he indicated that he was turning to allow him divert. 6. PW2, Dr Muli testified that he examined the Appellant, herein on 06/06/2018. It was PW2's evidence that PWI had sustained injuries over the body trunk, right upper limb and right lower limp. He confirmed that the Appellant had severe tenderness over the back posterior body trunk, tender bruise wound over the right elbow giving rise to right elbow joint movement restriction and general tenderness involving the right thigh, swelling over right ankle giving rise to restricted right ankle movement. He produced the medical report as PExht.5(a) and the receipt thereof as PExht.5(b). 7. PW3, Sergeant James Wambua, a Police Officer testified that he had the police abstract with him concerning an accident that occurred on 1/10/2017 at 17.30 at Mathauta river area along MatuuMwingi Road. He produced the police abstract as PExh.2, He also categorically stated that he was not the investigating officer and that the investigating officer who was P.C Salat had since been transferred to Athi River. He also confirmed that according to the police, the matter was still pending under investigation and went ahead to read the contents of the Occurrence Book. 8. The Respondent called one witness Paul Makau Kitavi, DW1 who was the driver of the motor vehicle. He testified that he was 66 years old and was a teacher businessman. He produced police abstract as DExht.1. 9. In cross examination he stated that Nzomo Kitonyo, the rider was his neighbour while Patricia Mutungwa, the Plaintiff was his in law. That on the material day they were riding on a motor cycle which was ahead of him and he was slightly behind them. The rider was on the right side while heading to Mwingi direction from Matuu. He was on the same lane heading in the same direction, He stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 2

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that he had experience of more than 20 years in driving. He was supposed to keep safe distance. He was with his wife and two children in the vehicle but did not call them as witnesses. His motor vehicle was on the side on the left. He crossed to the right and tired to avoid the rider. He did not indicate when diverting. The impact was on the right side while heading to Mwingi direction. The rider hit him on the left side. They both moved from left to right and they fell on the right side of the road. He did not have the sketch plan or call a police officer as his witness. 10. In re-examination, he confirmed he was heading to Mwingi direction from Matuu. He was on the left side of the road. The motor cycle was on the left side of the road. The motor cycle was slightly ahead. The point of impact was on the right side. When he saw the rider going to the right, he tried to avoid him and moved to the right. The motor vehicle was damaged on the left door and left mirror. There was no damage on the front side of the motor vehicle and windscreen. The motor cycle was blamed for the accident as per his police abstract. 11. Upon closure of the trial, Parties filed written submissions in support of their respective cases which the trial court considered and, in a judgment, delivered on 9th December 2021, the court found in favour of the Respondents and dismissed the Appellant’s case with costs. 12. Being aggrieved by the said judgment, the Appellant lodged the appeal herein vide a Memorandum of Appeal dated 11/01/2022 which is illegible but I have managed to pick out the grounds from the Appellant’s written submissions. The appeal is basically challenging both liability and quantum. 13. Parties were directed to canvass the appeal through written submissions. Only the Appellant filed submissions dated 3rd April 2024. Analysis and Determination 14. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to reevaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424. 15. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 16. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 3

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and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion 17. I have perused the Record of Appeal and considered the Appellant’s submissions on the appeal and also taken into consideration the judicial decisions cited and attached; I will proceed to consider whether the trial court’s dismissal of the Appellant’s case with costs ought to be set aside. Liability 18. The record shows that it is not disputed that the accident herein occurred on the date stated involving motor vehicle registration No. KBC 298N belonging to the 1st defendant and motor cycle registration No. KMCZ 847L on which the Appellant who was travelling as a pillion passenger. 19. The Appellant testified that she was a lawful pillion passenger on board motor cycle registration KMCZ847L along Matuu-Mwingi Road and on reaching Mathauta Area motor vehicle registration number KBC 298N which was being driven at a very high speed approached such that it rammed motor cycle registration number KMCZ 847L from the rear. She was thrown off the motor cycle and as a result she sustained injuries. Her testimony was corroborated with that of the police officer who produced a police Abstract dated 11/5/2018 which showed the matter was pending under investigation. 20. On the other hand, the Respondent through DW1 testified that, on the material day the Appellant and the rider were riding on a motor cycle which was ahead of him and he was slightly behind them. The rider was on the right side while heading to Mwingi direction from Matuu. He was on the same lane heading in the same direction, He stated that he had experience of more than 20 years in driving. He was supposed to keep safe distance. He was with his wife and two children in the vehicle but did not call them as witnesses. His motor vehicle was on the side on the left. He crossed to the right and tried to avoid the rider. The rider did not indicate when diverting. The impact was on the right side while heading to Mwingi direction. The rider hit him on the left side. They both moved from left to right and they fell on the right side of the road. He did not have the sketch plan or call a police officer as his witness. But produced police Abstract as Dexht.1 which blamed the rider for the accident. 21. I must say I have perused the record of appeal again and again, page after page but I have not come across the police abstract DExht.1, unless the Appellant omitted including it. I am therefore unable to verify the testimony of DW1 based on the said police abstract. 22. In re-examination, DW1 confirmed that he was heading to Mwingi direction from Matuu. He was on the left side of the road. The motor cycle was on the left side of the road. The motor cycle was slightly ahead. The point of impact was on the right side. When he saw the rider going to the right, he tried to avoid him and moved to the right. The motor vehicle was damaged on the left door and left mirror. There was no damage on the front side of the motor vehicle and windscreen. The motor cycle was blamed for the accident as per his police abstract. 23. From the foregoing, I can gather that DW1 stated that his vehicle and the Motor cycle were on the same left lane headed to the same direction and in fact the motor cycle was slightly ahead. The point of impact was on the right side. When he saw the rider going to the right, he tried to avoid him and moved to the right. 24. What I am struggling to understand is if DW1 saw the rider go to the right and away from the left lane, why did he follow him there, He ought to have braked or stopped altogether considering that the rider was slightly ahead of him. I am convinced that DW1, the driver of motor vehicle registration number KBC 298N failed to keep safe distance from the motor cycle which I find to be blameless in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 4

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the circumstances of this case. See Masembe ys. Sugar Corporation and Another (2002) 2 EA. 434 as was quoted with approval by Justice Chemitei in Civil Appeal No.54 of 2018 Alex Kipruto Malel & Anor (supra) where it was held that: “ When a man drives a motor car along the road, he is bound to anticipate that there may be things and people or animals in the way at any moment, and he is bound not to go faster than will permit his course at any time to avoid anything he sees after he has seen it...There is no act or omission that has static blameworthiness and therefore each case must be assessed on its own circumstances and the apportionment ought to be a result of comparing the negligent conduct of the tortfeasors, to determine the degree to which each one was in fault, both in regard to causation of the wrong and unreasonableness of conduct...Whereas a driver is not to foresee every extremity of folly which occurs on the road, equally he is not certainly, entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable, that is to say anything which the experience of the road users teaches them that people do albeit negligently."(Emphasis mine)." 25. In addition, the Respondent if at all had the police abstract that blamed the rider for causing the accident herein, the question I am asking myself is; why didn’t the Respondent take out third party proceedings against the said rider. This court can only opine that it was because the Respondent knew the Police Abstract was not truthful and may be the reason he did not bother to call a police officer from where it was issued to come and testify on it. The record shows that the Appellant did not institute Third Party proceedings against the owner of motor cycle registration No. KMCZ 847L despite the fact that he had police abstract which allegedly blame the rider of the same for negligence in the occurrence of the accident. 26. I disagree with the trial court’s finding that the Appellant called a police officer (PW3) who informed court that the motor cycle and motor vehicle were heading in the same direction and on reaching the location of the accident the motor cycle crossed the road without indicating and knocked the motor vehicle on the left side damaging its right head light, right door and left tyre and that his evidence contradicted the testimony of the Appellant and the rider but it corroborated the testimony of the Respondent. Further, that his testimony was buttressed the police abstract (DExt.1) produced by the 1st Appellant. The officer is an independent witness whose evidence does not support the Plaintiff's case and lays blame squarely on the rider of the motor cycle. The record shows the police officer PW3 stated that the matter was pending under investigation and did not blame the rider as stated by the trial court. 27. It is this court’s observation that if the two vehicles were going the same direction and even if it is true that the motor cycle crossed the road without indicating, then the 1st Respondent who was behind ought to have been more alert and had he applied brakes, the motor cycle would safely cross without any impact with the 1st Appellant’s vehicle. 28. As a matter of practice, it is always right and indeed it’s a traffic norm that every driver must ensure to keep a reasonable safe distance between it and the vehicle ahead. Clearly, the 1st Respondent’s vehicle did not keep safe distance and must have been over speeding at the time of the accident that it was unable to brake to avoid the accident. 29. I find the driver of the motor vehicle KBC 298N, the 1st Respondent wholly liable for the occurrence of the accident herein at 100%. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 5

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Quantum 30. This court is alive to the fact that in an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No 2) Civil Appeal No. 21 of 1984 [1985] eKLR thus: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”. 31. The Appellant pleaded that she suffered a fracture dislocation of the right ankle joint and soft tissue injuries to her back, right elbow, right thigh and right ankle joint. Her injuries are supported by her treatment note, P3 form, x-ray report and medical report. She was examined by Dr. Muli Simeon Kioko on 6/07/2018. At the time she complained of backache and pains on right elbow and right ankle joint. She testified in court on 4/03/2021 when she indicated she still experiences pain. Her injuries are soft tissue and a fracture of the right ankle joint. 32. The trial court considered the authorities that were cited by both parties in the trial court and found that the cases cited by Appellant's counsel have more severe injuries compared to this case while those cited by 1st Respondent's counsel have soft tissue injuries only. The trial court also considered two other cases that guided it in assessing damages of Titus Nganga & Another v Samuel Muiruri Mbugua (2018) eKLR Respondent suffered a comminuted fracture of the distal tibia-fibula, fracture of the medial malleolus and soft tissue injuries to the forehead, chest and left arm. X-rays showed a malunion of the tibia/fibula fracture and a non-union of the medial malleoulus fracture. 33. The High Court on 13/11/2018 upheld the trial court's award of Kshs.600,000/ in general damages. In Akamba Public Services v Abdikadir Adan Galgalo (2016) eKLR an award of Ksh.500,000/- was made as general damages in the year 2016 for a fractured right tibia bone malleolus and right fibula bone with blunt injury to the right ankle and soft tissue injuries: where permanent incapacity was assessed at 3%. 34. The trial court went on to state that guided, by the cited cases while taking into consideration Appellant’s injuries, the resultant effect, the incident of inflation and passage of time it would have awarded general damages of Kshs.650,000/- had it not dismissed the Appellant’s case. 35. The Appellant pleaded special damages of Kshs.11,715/- comprising of medical report fee of Kshs.5,000/-, vehicle search fee of Kshs.550/-, postage fee of Kshs.210/- and medical expenses of Kshs.6,000/-. 36. She produced receipts in support of the claim. The trial court would have awarded special damages of Kshs.11,760/-which was pleaded and strictly proved. The Appellant also prayed for future medical expenses. However, the expenses were not pleaded nor was evidence led to prove the claim, the same was disallowed. 37. I have considered the trial court’s assessment on the award of damages had it not dismissed the Appellant’s case and I find the same to be founded on sound principles of law. I will therefore award the Appellant what the trial court would have awarded as damages. 38. In conclusion the court hereby makes the following orders; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 6

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39. a) The trial court’s judgement is hereby set aside together with all the attendant consequences. b) The Respondents are hereby found wholly liable for the said accident. c) The general damages of Kshs.650,000/= as found by the trial court. d) Special damages of Kshs.11,760/=. e) The Appellant shall have the costs of this appeal as well as at the lower court. f) The general and special damages shall attract interest at courts rates from the date of the lower court’s judgement till payment in full. It is hereby so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 6TH MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 6TH MAY 2025 In the presence of: Ms Chelangat hb for Mr. Muia..... for Appellant Absent...... for Respondent Milly ........ Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14339/eng@2025-05-06 7

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