Joel Wangai Muriithi & 1 other v Francis Kamau Mwangi

a) The learned trial magistrate erred in law and in fact in holding the appellants 100% liable for the accident and ignoring the set laws and principles of traffic and decided cases. b) The learned trial magistrate erred in law and in fact in relying on the contents of the police abstract alone that was not corroborated by any other evidence to prove the results of the police investigation. c) The learned trial magistrate erred in law and in fact in awarding the respondent Kshs. 400,000/- as general damages which award is too excessive in the circumstances. d) The learned trial magistrate erred and misdirected herself in awarding the respondent special damages of Kshs. 205,670/- not specifically proved in evidence. 3. Parties put in written submissions. The Appellants’ Submissions 4. The appellants rely on Section 107 and 109 of the Evidence Act and the case of Dharmagma Patel & Another vs T.A (A minor suing through mother and next friend HH) [2014] eKLR and submit that the respondent did not prove that the driver of motor vehicle registration number KAY 602Q was negligent thereby HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 2

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causing the accident which resulted in the injuries he sustained. The appellants further submit that the respondent did not indicate in his evidence which exact position of the respective parties’ vehicles were damaged only a few moments prior to the accident. The respondent failed to explain which of the parties had the right of way at the said road junction and how the accident occurred save the assertion that the appellants’ motor vehicle rammed into his motor vehicle. 5. The appellants rely on the cases of Catherine Mbithe Ngina vs Silker Agencies Limited [2021] eKLR and Evans Mogire Omwansa vs Bernard Otieno Omolo & Another [2016] eKLR and argue that the police abstract produced by the respondent was never corroborated by the testimony of the investigating officer from Thika Police Station for the trial court to appreciate the basis of blaming their motor vehicle for the accident. Furthermore, the respondent did not produce a sketch map or police file to show how the accident happened. 6. Relying on the case of Karugi & Another vs Kabinya & 3 Others [1987] KLR, the appellants submit that the burden of proof upon the respondent was not lowered because they closed their case without calling any witnesses. 7. The appellants submit that the respondent stated that he suffered a fracture of the right femur and a blunt HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 3

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injury/pain on the right thigh and supported his testimony by producing a P3 Form dated 28 th august 2018 and medical report by Dr. George Karanja dated 16 th August 2019. The report shows that it was prepared based on a discharge summary from Thika Level 5 Hospital, discharge summary from Central Memorial Hospital and the x-ray films which documents the respondent never produced for the court to appreciate the veracity of the said medical report. 8. On the issue of special damages, the appellants argue that the respondent filed a handwritten list of medical expenditure of Kshs. 222,620/- which document does not bear the name of its author and neither does it have any indication in relation to the respondent for one to deduce they were actually incurred by him. The respondent filed three receipts for Kshs. 3,500/- in support of his claim for special damages. Further, the respondent filed six receipts from Raphar Medical Clinic totalling to Kshs. 69,000/which receipts are dated more than 21 days from the accident yet no medical reports or treatment notes from the said clinic were ever filed in support of the said receipts taking note that the respondent alleges to have been treated at Thika Level 5 Hospital after the accident. Additionally, the two receipts from St Peter’s Rapha Hospital for Kshs. 70,000/- are not awardable since no treatment notes from the said hospital was filed to prove that the respondent received medication from the said hospital. The appellants HC. CIVIL APPEAL NO. E120 OF 2024 submit that although the PAGE 4

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respondent pleaded Kshs. 205,670/- as special damages, he specifically pleaded and proved only Kshs. 7,050/-. The Respondent’s Submissions. 9. The respondent relies on Section 107 of the Evidence Act and the cases of Evans Otieno Nyakwana vs Cleophas Bwana Ongaro [2015] eKLR and Margaret Ngina Kamau vs Christopher Karanja & Another (2021) eKLR and submits that he discharged the burden of proof as he produced documentary evidence to support his claim of which the appellants never objected to any documents including the police abstract. The respondent further submits that the appellants failed to call any witness such as the driver of motor vehicle registration number KAY 602Q to give his own account on the circumstances surrounding the occurrence of the accident and thus their defence amounted to mere denials. To support his contentions, the respondent relies on the decision in CMC Aviation Ltd vs Crusair Ltd (No. 1) (1987) KLR 103. 10. The respondent submits that the proposal by the appellants of Kshs. 350,000/- for the injuries he sustained was low as it failed to consider the seriousness of the injuries he sustained. Regarding the issue of special damages, the respondent submits that he proved the damages by producing a receipt for preparation of the HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 5

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medical report of Kshs. 3,000/-, a paid invoice for search of motor vehicle record of Kshs. 550 and several receipts for treatment totalling to Kshs. 202,120. Issues for determination 11. The main issues for determination are:a) Whether liability apportioned by the trial court was against the weight of the evidence adduced. b) Whether the award on general damages for pain, suffering and loss of amenities is manifestly excessive. c) Whether the award on special damages was specifically pleaded and proven. The Law 12. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “…..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 6

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he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 13. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. 14. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:a) That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b) That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 7

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advantage of seeing and hearing the witnesses testify before it; and c) That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether liability apportioned by the trial court was against the weight of the evidence adduced. 15. The appellants seek to have the court substitute the trial court’s findings of full liability against them with full liability against the respondent. The appellants assert that the respondent failed to produce evidence to show fault on the part of the appellant. 16. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi & Another [1968] EA 70 it was held that:It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 8

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itself free to substitute its own apportionment for that made by the trial Judge. 17. The respondent testified that on the material day, he was driving motor vehicle registration number KAS 175C along Thika – Garissa Road when the 2 nd appellant who was driving motor vehicle registration number KAY 602Q entered the main road from the junction at Kisii Estate and rammed into his motor vehicle. The respondent produced a police abstract that blamed motor vehicle registration number KAY 602Q for the accident. The evidence of the respondent stood uncontroverted as the appellants never attended the hearing despite having taken the date by consent. Later on the court granted the appellant an opportunity to re-open the respondent’s case and participate in their own defence but the appellant failed to utilise the said opportunity. Thus the appellants’ statement of defence amounted to mere denials as they failed to adduce any evidence, not even of the driver of motor vehicle registration number KAY 602Q to give his account on the circumstances surrounding the occurrence of the accident. The evidence of the respondent that the appellant’s were to blame for the accident remained uncontroverted. 18. It is my considered view that the respondent proved his case against the appellants on a balance of probabilities and that the magistrate did not err in finding the appellants fully liable for the accident. HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 9

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Whether the award on general damages was manifestly excessive. 19. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its won for that awarded by the court below simply because it would awarded different figure if it had tried the case at first instance. The appellant court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” 20. Similarly in Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:“The appellate court is only entitled to increase an award of damages by the High Court if it is so HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 10

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inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect….A member of an appellate court when naturally and reasonably says to himself “what figure would I have made” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own.” 21. The plaint dated 19th September 2019 shows that the respondent sustained the following injuries:a) Fracture of the right femur b) Blunt injury/pain on the right thigh. 22. The trial magistrate awarded a sum of Kshs. 400,000/- for general damages for pain and suffering. The appellants submit that the said award was manifestly excessive and is not justifiable in comparison to the injuries sustained by the respondent. The respondent submits that the award is sufficient compensation and comparable to the injuries he sustained. HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 11

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23. On perusal of the record, it is noted that the injuries sustained by the respondent as pleaded in the plaint were confirmed by Dr. George Karanja in his medical report dated 16th August 2019. The said doctor classified the injuries as harm with very extensive trauma. He was admitted in hospital for more than two (2) weeks. 24. The appellants proposed that an award of Kshs. 350,000 – 400,000/- would suffice as reasonable compensation whereas the respondent proposed that the award of Kshs. 400,000/- is sufficient. The learned magistrate in arriving at the award of Kshs. 400,000/- took into consideration the nature of the injuries suffered by the respondent and comparable injuries as evidenced in the submissions and the authorities relied on by the parties. 25. Taking into consideration the nature of the injuries sustained by the respondent which he proved on a balance of probability, it is my considered view that Kshs. 400,000/- was reasonable compensation for the said injuries. Whether the award on special damages was specifically pleaded and proven 26. It is trite law that special damages must be both pleaded and proved, before an award is made. This was stipulated in the Court HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 12

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of Appeal decision of Hahn V. Singh Civil Appeal No. 42 of 1983 [1985] KLR 716 where the court held:Special damages must not only be specifically claimed (pleaded) but also strictly proved……for they are not direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves. 27. On perusal of the plaint dated 19 th September 2019, the respondent pleaded special damages of Kshs. 255,620/which the court awarded in its judgment. The respondent produced receipts to support his claim of special damages. These documents were not controverted by any evidence to the contrary. It is my considered view that the respondent pleaded and proved the sum of Kshs. 205,670/- by way of documentary evidence. 28. I find that the appellant has not established any ground of appeal. The magistrate, in my view did not err either in fact or in law in her finding. 29. In view of the foregoing, I find that the appeal has no merit and is hereby dismissed with costs. 30. It is hereby so ordered. HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 13

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JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE HC. CIVIL APPEAL NO. E120 OF 2024 PAGE 14

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