Peter Muchoki Njoroge v Salome Wanjiku Githinji

a) The learned trial magistrate erred in fact and law in finding that the appellant did not discharge the burden of proof thus dismissing the suit. b) The learned trial magistrate erred in law and in fact in failing to independently analyze the contents of the police abstract thereby arriving at a wrong conclusion; c) The learned trial magistrate erred in law and in fact in holding that Kshs. 900,000/- would be sufficient compensation for the appellant herein. d) The learned trial magistrate erred in law and in fact in holding that the failure to produce a termination letter did not entitle the appellant to loss of future earning capacity. e) The learned trial magistrate erred in law and in fact in awarding the respondent damages despite finding that the respondent had already been compensated. f) The learned trial magistrate erred in law and in fact in failing to find that the counter claim personally prosecuted by the respondent could not be properly held as a subrogation claim. g) The learned trial magistrate erred in law and in fact in awarding the respondent witness expenses while the same had neither been pleaded nor proved. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 2

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3. Directions were issued to the effect that the appeal be canvassed by way of written submissions. It was only the appellant who complied with the said directions. Appellant’s Submissions 4. The appellant relies on the case of Kenya Planters Cooperative Union vs Kenya Commercial Bank Limited & 3 Others [2011] eKLR and submits the respondent’s witnesses are not credible witnesses and their testimony and evidence should be taken with a pinch of salt as they gave contradictory testimonies as to how the accident occurred. The police officer testified that the appellant was joining the main road from the left side whereas the respondent’s driver stated that the appellant was attempting to cross the road from the left to the right. The appellant further relies on the case of Timsales Limited vs Harun Thuo Ndungu [2010] eKLR and submits that the said witnesses were speaking at cross purposes to each other and were determined to defeat his claim by whichever means necessary. 5. The appellant argues that the police officer also stated that he was hit on the right side of the road facing Thika. As the respondent’s driver was headed to Thika, the appellant submits that he ought to have been on the left side of the road facing Thika. The appellant further submits that the fact that the respondent’s driver hit him on the right side facing Thika simply means he was on the wrong lane. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 3

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6. The appellant submits that if he was hit on the right lane, his testimony that the driver left his lane while over speeding in an attempt to overtake is more probable and the same was corroborated by both the driver and the police officer. Furthermore, the appellant submits that the police officer who wrongly blamed him for the accident admitted that he did not witness the accident and that when he arrived at the scene of the accident, he had been taken to hospital. He however identified the point of impact. The police officer stated that he finished his investigations as soon as he arrived at the scene of the accident and he got his information from members of the public, none of whom were called as witnesses. The appellant states that the police officer did not take his statement until after he was discharged from hospital. 7. The appellant relies on the case of Techard Steam & Power Limited vs Mutio Muli & Mutua Ngao [2019] eKLR and submits that the police officer’s finding on blame should not have been binding upon the trial magistrate who was duty bound to make his own independent evaluation and come to his own conclusion considering that the testimony of both defence witnesses as to the occurrence of the accident was at variance. The appellant further submits that his statement was not taken into account in the police officer’s investigations. 8. The appellant submits that he testified that he was riding his motor cycle HC. CIVIL APPEAL NO. E038 OF 2023 along Thika Matuu road when at PAGE 4

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Kilimambogo, the respondent’s motor vehicle while over speeding and overtaking left its lane and hit him. The appellant argues that the trial magistrate did not take his testimony into account nor was it considered. He further argues that since the eye witness account of both the respondent’s witnesses was at discrepancy, the trial magistrate ought to have evaluated the same. The appellant submits that the respondent’s driver in cross examination had confirmed that he was ahead of the driver when he noticed him. The said driver further stated that he was about 10 metres and driving at about 60km/hr when he allegedly decided to cross the road. The appellant argues that if that were the case, the respondent’s driver had enough time to brake, swerve and/or stop to avoid hitting him. The appellant submits that the respondent therefore breached the duty of care he owed to other road users and was therefore to blame for the accident. 9. The appellant argues that having shown that the respondent was to blame for the accident, the material damage counter claim lacked any basis in its entirety. The learned trial magistrate did not consider whether the doctrine of subrogation would apply since the insurance company was not a party to the claim, the appellant had sued the motor vehicle owner and not the insurance company. 10. The appellant relies on the case of Leslie John Wilkins vs Buseki Enterprises Limited [2015] eKLR HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 5

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and submits that doctrine of subrogation was not pleaded even after the respondent amended her defence and counter claim. The appellant further submits that the counter claim pegged on the doctrine of subrogation which relied on the contract of insurance between the respondent and the insurance company , the appellant was neither a party or privy to the said contract. The assessor’s report which was the main evidence indicated that the motor vehicle was repairable however the respondent was allegedly compensated for the pre accident value. The appellant argues that there was no basis on which the insurance company would have paid for another motor vehicle while the motor vehicle was repairable. The respondent’s insurance allegedly compensated her for the pre-accident value without any basis and being the party to the suit, the counter claim therefore amounted to double compensation. The appellant argues that the said counter claim ought to have been directed to his insurance company but not even a statutory notice was served. 11. The appellant submits that he sustained the following injuries which were not contested at all: a) Blunt head injuries with transient loss of consciousness for 3 days; b) Bleeding from the right ear (otorrhea) c) Acute epidural hematoma left side of the brain; HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 6

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d) Fractured skull (linear fracture left parietal bone) e) Open compound fracture 2nd and 3rd metatarsal bone right foot. 12. The appellant submits that he proposed a sum of Kshs. 1,500,000/- and relied on the cases of P N Mashru Limited vs Omar Mwakoro Makenge [2018] eKLR where the respondent sustained loss of consciousness at the time of the accident, fracture of the femur distal third, fracture of the temporal bone with haematoma, head injury to the right frontal parietal bone with brain oedema, left subdural haematoma. The general damages were assessed at Kshs. 1,200,000/-. In S. M. vs Mahesh Kerai & Manoj A. Patel [2009] eKLR, the plaintiff sustained a linear fracture left parental bone extending to the roof left orbit, fracture right front parietal bone, thin fracture of anterior wall of right maxillary sinus, head concussion injury leading to a coma, multiple facial bruises, multiple forearm bruises both forearms. The general damages were assessed at Kshs. 1,000,000/-. In Panniack Investmnets Limited vs Davidson Mwanzia Kamuta [2018] eKLR, the respondent sustained a fracture of the left temporal parietal bones, acute epidural hematoma on the left temporal parietal lobes, mass effect with midline shift, effacement of the sulci and basal cistems, concussion with lucid moments and bleeding from the left ear (ottorhea). The general damages were assessed at Kshs. 800,000/-. In Joseph Kimanthi Nzau vs Johnson Macharia [2019] eKLR, the appellant sustained a fracture of the skull, right HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 7

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clavicle, left 1st and 2nd ribs and multiple soft tissue injuries. The appellant was awarded Kshs. 800,000/- as general damages. In Telkom Orange Kenya Limited vs I S O (minor suing through his next friend and mother J. N.) [2018] eKLR, the respondent sustained a head injury occasioning a depressed skull, fracture of the skull, loss of consciousness, scars of the left tempoparietal area and bruises on the left leg. The respondent was awarded Kshs. 500,000/- as general damages. 13. The appellant argues that the respondent proposed a sum of Kshs. 900,000/- would be fair and reasonable in the circumstances and the trial magistrate agreed with the respondent without analysing the injuries and authorities relied on. The appellant further argues that the trial magistrate showed bias for he did not show the basis of his arriving at a sum of Kshs. 900,000/- as general damages. The appellant submits that the authorities he relied on were comparable to his injuries compared to the respondent’s authorities. 14. The appellant relies on the case of John Kipkemboi & Another vs Morris Kedolo [2019] eKLR and submits that the respondent submitted that he had not proved that he was terminated. The appellant argues that he produced a pay slip to prove that he had worked at Delmonte Kenya earning Kshs. 50,859/- per month and as per the medical report by Dr. Ndeti, he was at risk of developing post traumatic convulsions due to the head injuries and thus HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 8

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could loose his job in the future. Thus, the appellant argues that the learned trial magistrate erred by holding that loss of future earning capacity could only be proved by production of a termination letter whereas it can still be awarded even when the claimant is still under employment or unemployed. The appellant thus submits that he should be awarded 6 months loss of earnings totalling to Kshs. 305,154/-. 15. The appellant submits that the special damages for the sum of Kshs. 11,710/- were pleaded and proved by the production of receipts which were never objected to or challenged by the respondent. The appellant submits that the receipts are visible and the same ought to be awarded. Issue for determination 16. The main issue for determination is whether the magistrate erred in finding that the appellant did not prove his case on a balance of probabilities. The Law 17. 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 HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 9

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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 he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 18. 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. 19. 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 HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 10

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allowance to the fact that the trial court had the 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 the appellant proved his case on a balance of probabilities. 20. 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 itself free to substitute its own apportionment for that made by the trial Judge. 21. The appellant testified as PW1 and stated that on 5 th May 2021 he was riding his motor cycle registration number KMFN 049C along Thika Matuu road when motor vehicle registration number KCG 037S, driving from the HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 11

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opposite direction knocked him over as the said vehicle was trying to overtake. The appellant further testified that the said collision occurred on his side of the road and he lost consciousness for three days. He testified that he was wearing a helmet and a reflective jacket. The witness blamed the respondent for the accident. 22. On cross examination the witness testified that he was not crossing the road and the suit motor vehicle went to his side. The witness said that at the time of the accident the appellant’s motor vehicle was overtaking another motor vehicle that was ahead of it. 23. The respondent called two witnesses in this case. The police officer, based at Ngoliba Police station who testified that the accident occurred on 5 th May 2021 at Kilimambogo. The witness testified that the accident was between the appellant’s motor vehicle reg. No. KMFN 049 C and the respondents motor vehicle registration number KCG 037S. The police officer testified that the motor vehicle was being driven from Matuu heading towards Thika while the motor cycle joined the main road abruptly from the left side of the road facing Thika direction. The witness blamed the motor cycle rider for the accident as he joined the road without due care and attention. He further stated that the police abstract indicated that the motor cycle was to blame for the accident. 24. The driver of the motor vehicle DW2 testified that on the fateful day he was driving from Ithanga Matuu side heading towards Nairobi and on reaching the Kilimambogo HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 12

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junction, he saw the motor cycle rider on the left side of the road. The witness stated that the appellant was aiming at the road from left to right. DW2 said he hooted but the appellant did not heed to the warning at that time, DW2 testified that he was driving at 60km/hr per hour and was with an elderly lady as a passenger in his vehicle. The witness said that he blamed the appellant for the accident as he did not ensure that the road was safe before crossing and road and that he was not wearing a helmet at the material. 25. It was the evidence of DW 2 on cross-examination that he saw the appellant about 20-30 meters away and stopped by the roadside on the left. The witness further testified that he hooted to warn the appellant to give way because DW2 was on the main road but this warning was heeded to he further testified that a police officer took the appellant to hospital. 26. It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that: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. 27. In Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:- HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 13

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As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act. 28. From the evidence on record, it is not disputed that an accident occurred on 5/5/2021 as shown in the police abstract. According to the appellant, the driver of motor vehicle registration number KCG 037S was to blame for the accident for he was overtaking a vehicle ahead of it. The respondent blames the appellant for the accident for he failed to ensure that it was safe to cross the road. From the evidence of DW1 and DW2, the appellant joined the main road abruptly without ensuring it was safe to do so. This position is supported by the police abstract which states that the appellant was to blame for the accident. The appellant’s defence that the police officer concluded his investigations before he recorded his statement. The police officer said that he investigated the accident starting with visiting the scene where he found both the appellant and the driver of the motor cycle. It was the evidence of DW2 that the police found him as well as the cyclist at the scene. It was one of the police officers who took the appellant to hospital. There is overwhelming evidence that the appellant was to blame for the accident. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 14

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29. Accordingly, I reach the conclusion that the appellant did not adduce sufficient evidence to demonstrate that the accident was caused due to the negligence of the respondent. It is therefore, my considered view that the appellant did not discharge the burden of proof to the effect that the respondent was to blame for the accident. As such, the magistrate did not err in his finding on liability. 30. As regards the counterclaim of the respondent whereas she claimed a material damage claim in regard to her vehicle registration No. KCG 037 S, the appellant raised the issue that the magistrate was wrong in awarding KSh.292,400/= claimed. Firstly, it was argued that the respondent who had already been compensated by the insurance company was not entitled to benefit twice. The appellant said that the doctrine of subrogation ought to have been applied. 31. The respondent called the claims officer (DW2) of Geminia Insurance which had insured her vehicle. He testified that the respondent made a claim to the company and presented a police abstract. The vehicle was assessed and its pre-accident value found to be KShs.500,000. salvage. The insurance offered to retain the Later, the insurance sold the salvage to the respondent at KSh,250,000/=. DW2 testified that the insurance company found it uneconomical to carry out repairs although the vehicle was not a write off. As such, the respondent was compensated by the insurance HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 15

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company upon the terms of the policy. The issue is whether the respondent should have been paid the sum of KSh.292,400,000/= for the material damage claim as special damages. 32. Firstly, it is imperative subrogation be examined as that the relates to doctrine this of case. “Subrogation” is defined as the right of an insurer to pursue the party that caused that the loss to the insured in an attempt to recover funds paid in the claim. The witness of he insurance company did not address this issue in his evidence. It is the insurance company that ought to have pursued their right against the 3 rd party. It is not known whether this was done or not. As such this court will not pursue the issue any further. 33. Secondly, the other issue is whether the respondent should benefit twice having already been compensated by the insurance company and whether the magistrate was within his mandate to award the material damage claim to the respondent. Was liability proved against the appellant in regard to the accident? I have perused the judgment of the court and noted that the court fully relied on the evidence of one P.C. Ongiri who testified that the “plaintiff rider” (who is the appellant herein) was to blame for the accident”. The abstract produced by the same witness did not blame any of the parties for the accident. The appellant has challenged this evidence in that the police officer did not witness the accident. He said he went to the scene after the accident. HC. CIVIL APPEAL NO. E038 OF 2023 Surprisingly, he did not PAGE 16

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produce the sketch plan of the scene which as the investigating officer he knew that it would have been of help to the court in determining liability. He said that it is the appellant who entered the road from a feeder road without due care. In the absence of a sketch plan and the fact that he did not witness the accident the evidence of the police officer was unreliable. He said he was informed of who was to blame by members of public whom he found at the scene. None of those witnesses was called to testify. In my considered view, the said evidence was incredible and not sufficient to prove the counter-claim. 35. The counter claim had no legal basis in that the respondent had no authority from her insurer to pursue their right of subrogation on their behalf. It is the insurer’s sole responsibility notwithstanding, to the pursue such respondent a claim. That had already been compensated by her insurer and could not benefit twice. 36.I find that the magistrate erred in allowing the counterclaim which had no legal basis. The same was misconceived and is hereby truck out. 37.This court has a duty of assessing damages for injuries sustained by the appellant for purposes of any appeal that may be filed against this decision notwithstanding that the claim is unsuccessful. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 17

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38. The court assessed general damages for pain suffering and loss of amenities at Kshs. 900,000/- The plaint, the appellant sustained the following injuries:- a) Blunt head injuries with transient loss of consciousness for 3 days. b) Bleeding from the right ear (otorrhea) c) Acute epidural hematoma left side of the brain d) Fractured skull (linear fracture left parietal bone) e) Open compound fracture 2nd and 3rd metatarsal bone right foot. The medical report of Dr. Titus Ndeto Nzina in his medical report dated 30/9/2021, The doctor indicated that he could not asses the degree of functional permanent incapacity as the appellant was still undergoing appellant underwent a second medical treatment. The examination from Dr. Wambugu on 19th April 2022 and found that the appellant sustained the following injuries:a) Head injury associated with left parietal skull fracture and left epidural hematoma b) Open fracture right 2nd and 3rd metatarsals c) Multiple bruises. 39. The doctor assessed the degree of permanent incapacitation at 2%. The appellant submitted that an award of Kshs. 1,500,000/- would be reasonable compensation. The respondent did not file submissions in the instant court HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 18

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but from the trial court record, he proposed that a sum of Kshs. 900,000/- would be reasonable compensation. I have looked at the authorities cited by the appellant and noted that the injuries sustained in those cases are more severe than those sustained by the appellant herein whilst those cited by the respondent are more comparable to the injuries sustained by the appellant herein. Therefore, it is my considered view that Kshs. 900,000/- is reasonable compensation for the appellant as general damages for pain, suffering and loss of amenities. 40.The appellant has further argued that he ought to have been awarded loss of future earning capacity despite not providing a letter showing that he was terminated from employment. 41.The Court of Appeal in Butler vs Butler [1984[ KLR 225 had this to say:- A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury… It is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained in this way: compensation for loss of future earnings is awarded for real accessible loss proved by evidence. Compensation for demotion of earning capacity is awarded as part of general damages. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 19

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42.The award of loss of earning capacity is given to a party who shows that the disability due to an accident has reduced his earning capacity. enunciated in the case of Mumias This principle Sugar was Limited Francis Wanalo [2007] eKLR where the court vs held:- The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification of the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market, while the justification for the award where the plaintiff is not employed at the date of the trial is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future…. 43.In the above case of Mumias Sugar Limited case (supra) it was held that what one needs to show under this head of damages is the risk the disability has exposed the party of either losing his job in the future or in case he loses his job, his diminution of chances of getting an alternative job in the labour market. In this appeal, there was evidence that the appellant was employed by Delmonte (K) Limited and used to earn Kshs. 50,585/- per month and that he was sacked after sustaining injuries from the accident but he did not collect his termination letter. HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 20

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44. I have perused the record and noted that the appellant produced a pay slip for the month of January 2021 indicating his net salary upon deduction was KShs. 40,374.72/-. Notably, the appellant did not produce pay slips for more than one month prior to the accident to show that he was on permanent employment terms. This supports the theory that the appellant was a seasonal employee at Delmonte as he even testified that he was called to work when there was work. Thus, it is clear that the appellant did not prove that he was employed at Delmonte. appellant failed led to That notwithstanding, the to prove that the injuries sustained termination of his job. collect his permanently He testified that he did not termination letter and difficult to ascertain that his therefore services it were terminated due to his injuries. Therefore, it is my considered that the appellant did not prove that he was was view entitled to be awarded damages under loss of future earning capacity as he failed to demonstrate that the injuries he sustained led to his loss of a job or diminished his earning capacity. 45.On the issue of special damages, the appellant argues that in the plaint, he pleaded for a sum of KShs. 11,710/- and proved the same by production of receipts. It is trite law that special damages must be specifically pleaded and strictly proved. On perusal of the record, the appellant produced receipts for a sum of KShs. 6,710/-. As such, the damages strictly proved was KShs. It HC. CIVIL APPEAL NO. E038 OF 2023 6,710/-. PAGE 21

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is therefore my considered view that special damages that were strictly proved is KShs. 6,710/-. 46. Consequently, the material damage award in the counter-claim is hereby set aside. 47. The finding of the court below that the appellant failed to prove liability against the respondent is hereby upheld. 48. This appeal is partly successful and the appellant is awarded half costs of this appeal. 49. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27 TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE HC. CIVIL APPEAL NO. E038 OF 2023 PAGE 22

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