Samuel Kiragu Mwaniki v Brian Kiragu Mwaniki

3. Directions were issued to the effect that the appeal be canvassed by way of written submissions. The record shows only the respondent complied by filing his submissions on 12th December 2024. The Respondent’s Submissions 4. The respondent submits that he called two witnesses with PW1 the police officer blaming the respondent for the accident whereas the respondent, PW2 gave direct evidence and blamed the appellant’s driver DW1 for over speeding, losing control of the offending vehicle and hitting him while off the road. The respondent further submits that DW1 blamed him for the accident. It was his evidence that the respondent a hawker, rushed towards the road to sell water to customers when he was hit by the rear of his vehicle. DW1 further testified that he did not know how the accident happened and was only notified by onlookers. 5. The respondent submits that the police officer produced the police abstract and indicated that the matter was pending under investigations. The respondent further submits that PW1 did not witness the accident but he blamed the respondent for rushing towards the road thus being run over by the rear wheels of the offending vehicle. PW1 did not produce any sketch plans or investigation diary, thus the respondent argues that PW1’s evidence was hearsay. The respondent submits that it is questionable why it was so easy to blame him for the accident while the abstract issued three weeks after the said accident state that the case was pending investigations. Thus, the respondent argues that PW1’s evidence on blameworthiness was unsupported, illogical and unreliable in establishing liability. 6. The respondent submits that the appellant’s driver, DW1 was not candid as his evidence on how the accident occurred was an after-thought and unreliable as he conceded to not seeing the respondent before the accident and therefore he could not ascertain that he was a hawker. The evidence of the said driver on how the accident occurred was an after-thought and unreliable. The respondent submits that as rightly held by the trial court, having contended that the scene was heavy with traffic at the time of the accident, there would be no reason or need for anyone including the respondent to rush to the road. The respondent further submits that if the said driver was driving at 5km/hr as he put it, he would have been able to bring the said vehicle to a stop on time before the collision. The gravity and nature of the injuries sustained by the respondent does not support DW1’s evidence that he was driving at a speed of 5 km/hr. 7. The respondent submits that PW2 gave direct and reliable evidence on how the accident occurred. He maintained that the offending motor vehicle was over speeding and hit him off the road. The respondent states that he was hit by the front side of the motor vehicle, which evidence stood unrebutted. Further, in as much as DW1 confirmed the inspection of the suit motor vehicle was done, no inspection report was produced to corroborate his case and disapprove the respondent’s contention. Had such a report been produced in evidence, it would have support the evidence of the respondent. 8. The respondent submits that there is only one probability through which the accident occurred which is that the appellant’s driver failed to slow down at the bumps at the scene of the accident, lost control and hit him. DW1 ought to have slowed down at the scene where there were bumps. The driver could see there were hawkers at the scene of accident and for that reason, he ought to have kept a proper look out and driven at a reasonable speed. The respondent further argued that DW1’s failure to see him before impact occurred clearly connotes negligence on the part of the driver. Thus based on the totality of the evidence before the trial court, the respondent submits that the trial court was right in finding that he had discharged his burden of proof against the appellant. 9. The respondent relies on the case of Isabella Wanjiru Karanja vs Washington Malele Nbi Civil Appeal No. 50 of 1981 and submits that taking into account that DW1 was in control of a lethal machine, he https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19791/eng@2025-02-27 2

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owed a greater duty of care to him, a pedestrian, to drive the same with due care and attention required of any diligent driver on a public road. 10. The respondent submits that as per the medical reports by Dr. Mwaura and Dr. Wambugu, he sustained a fracture of the tibia and fibula and degloving injury. After the accident, the respondent submits that he was admitted at Juja modern hospital and that as a result of the accident he was maimed for life. The degree of permanent incapacity was assessed by Dr. Mwaura at 5 %. On reexamination by Dr. Wambugu a year after the accident, the respondent submits that he had not healed and had complaints. The respondent submits that the award of Kshs. 1,600,000/- by the trial court is not manifestly high to call for interference by the instant court. The respondent relies on the case of Damaris Wamucii Kagechu vs Joseph Kirui & Another [2019] eKLR where the plaintiff sustained fractures on both legs and was awarded Kshs. 1,500,000/- as general damages for pain, suffering and loss of amenities in 2019. In Patrick Kinyanjui Njama vs Evans Juma Mukweyi [2017] eKLR, the respondent was awarded Kshs. 1,500,000/- in general damages for comparable injuries. Issues for determination 11. The main issues for determination are:a. Whether liability apportioned by the trial court was against the weight of evidence. b. Whether the award on general damages is manifestly excessive. 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 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 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19791/eng@2025-02-27 3

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Whether liability apportioned by the trial court was against the weight of the evidence adduced. 15. The appellant seeks to have the court substitute the trial court’s findings of 70% liability with 100% liability upon the respondent. The appellant asserts that the accident was substantially caused by the respondent pursuant to the testimony of the police officer, PW1. 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 itself free to substitute its own apportionment for that made by the trial Judge. 17. According to PW1, the police officer, testified that an accident occurred on 13/4/2021 at viewpoint area between the respondent and motor vehicle registration number KCV 796D. The witness testified that the motor vehicle was heading to Nairobi from Thika and upon reaching the scene of the accident, a group of hawkers including the respondent rushed towards his vehicle when he hit the respondent seriously injuring him. PW1 testified that the point of impact was in the middle of the road and blamed the respondent for the accident. He however stated that the police abstract did not indicate that the respondent was to blame for the accident. 18. PW3, the respondent relied on his witness statement and testified that he was lawfully walking along Thika superhighway at Highpoint bumps area when the appellant’s motor vehicle registration number KCV 796D which was being driven at a high speed lost control and hit him thereby sustaining serious injuries. On cross examination, the respondent testified that he was crossing the road when the accident occurred and further that he was done crossing the road and he was hit when he was at the end. He further stated that there was a bump at the scene of the accident and that he was hit from the front left side and overrun by the front wheel. The witness denied that he was overrun by the rear wheels and that he stated that he could not remember where he fell after the accident. The respondent testified that he is a student and denied that he was a hawker. 19. The appellant called one witness, DW1, the driver of motor vehicle registration number KCV 796D who relied on his witness statement and testified that he was driving the suit motor vehicle on the fateful day at a speed of 5 km/hr. He further admitted that his vehicle injured the respondent by the rear wheels. The witness testified that there was traffic at Highpoint and he was driving slowly when he heard screams. DW1 stated that he stopped and someone informed him that he had run over the respondent by the rear wheels. On cross examination the witness testified that the respondent was a hawker and was injured when he was rushing to sell water to the vehicles behind him. 20. From the evidence of the parties, it is not contested that an accident occurred on 13/4/2021 along Thika Superhighway at Highpoint area which section of the road had bumps. The accident involved the respondent and the appellant’s vehicle reg. No. KCV 796D. The main contention is how the accident occurred. The respondent blames the occurrence of the accident on the driver of the appellant who was driving the motor vehicle at a high speed and hit him as he was crossing the road. The appellant on the other hand blames the respondent for the said accident stating that the respondent was a hawker who rushed to the road to sell water to other motor vehicles and thus he hit him. From the testimony of both PW3 and DW1 there were speed bumps/rubble strips at the scene of the accident. Further, DW1 testified that there was traffic at the scene and that he was driving at 5 km/hr. It is evident that if there was traffic at the scene of the accident, DW1 would be driving at a slow speed. In that regard, if DW1 was driving at 5km/hr as he testified, he would have seen the respondent before and stopped to avoid the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19791/eng@2025-02-27 4

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accident. DW1 testified that he did not see the respondent but was informed by members of the public that he had hit someone. Furthermore, from the injuries of the respondent which were fracture of his leg, it is unlikely that DW1 could not have been driving at a speed of 5km/hr. The evidence as presented by the parties supports the evidence of respondent that DW1 was driving at a high speed to an extent that he did not immediately see the respondent and as a result, overrun him. Furthermore, the police officer who blamed the respondent for the accident did not witness the accident. He must have relied on hearsay from the appellant. The police abstract filled in on 3/5/2021 about three weeks after the accident, indicated that the matter was pending under investigations. How come it did not blame the respondent for the accident? The said witness did not produce a sketch plan of the scene as required or even an investigation diary to support his contentions. Thus, it is evident that his conclusion of blame to the respondent was not supported by any evidence. The respondent made it clear that the appellant’s driver did not exercise due diligence to avoid the accident. That notwithstanding, the respondent was crossing the road and failed to look out on the road before crossing. The appellant has not adduced any evidence to blame the respondent wholly for the accident. As such, it is my view that the respondent discharged the burden of proof on a balance of probabilities that the appellant’s driver was negligent to a larger extent. 21. In my considered view, I uphold the apportionment of liability at 70:30 in favour of the respondent. Whether the award of general damages was manifestly excessive. 22. 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.” 23. 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 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.” 24. According to the amended plaint dated 29th June 2022, the respondent suffered the following injuries:a. Compound (open) communited fracture left tibia/fibular. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19791/eng@2025-02-27 5

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25. The trial magistrate awarded a sum of Kshs. 1,600,000/- for general damages for pain and suffering. The appellant submits that the said award is manifestly excessive and is not justifiable in comparison to the injuries sustained by the respondent. The respondent submits that the award is justifiable and comparable to the injuries he sustained. 26. On perusal of the record, the injuries sustained by the respondent as pleaded in the amended plaint were confirmed by Dr. Mwaura in his medical report dated 20/8/2021. The doctor assessed the respondent’s injuries and classified the degree of injury as grievous harm and assessed permanent degree on incapacitation at 5%. The respondent underwent a second medical examination by Dr. Wambugu and he made a report on 19th May 2022. The doctor examined the respondent and concluded that the respondent sustained a compound fracture left tibia and fibula and degloving wound on the left shin. The doctor indicated in his report that the fractures had not yet united and the respondent was still undergoing treatment. The doctor indicated that he could only assess permanent incapacitation once treatment was completed. As such, the court relies on the 5% permanent disability by Dr. Kungu Mwaura. 27. The appellant did not file submissions in this appeal but had filed submissions in the lower court. The appellant submitted that a sum of Kshs. 400,000/- as general damages would be reasonable compensation for the injuries sustained by the respondent. The appellant relied on the cases of Vincent Mbogholi vs Harrison Tunje Chilyalya [2017] eKLR; Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor [2020] eKLR and Tirus Mburu Chege & Another vs JKN & Another (2018) eKLR to support his contentions. The respondent relied on the cases of Damaris Wamucii Kagechu vs Joseph Kirui & Another [2019] eKLR and Patrick Kinyanjui Njama vs Evans Juma Mukweyi [2017] eKLR. 28. The learned magistrate in arriving at the award of Kshs. 1,600,000/- took into consideration the nature of the injuries suffered by the respondent as evidenced by the medical reports, the current complications suffered by the respondent, the 5% degree of permanent incapacity and the submissions and authorities relied on by both parties. 29. Looking at the authorities cited by the appellant, the injuries sustained by the respondent therein are less severe than those sustained by the respondent herein. The authorities cited by the respondent herein are most comparable to the injuries sustained by the respondent herein save that the injuries sustained by the plaintiffs in those cases are more severe than those sustained by the respondent. To that extent, it is my considered view that the court ought to interfere with the trial court’s award of general damages. It is my view that a sum of Kshs. 1,000,000/- would be adequate compensation for pain suffering and loss of amenities which I hereby award. The award of the lower court of KSh.1,600,000 is hereby set aside. Conclusion 30. I find that this appeal has merit and it is herby allowed in the foregoing terms. 31. The respondent is awarded the costs of this appeal. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19791/eng@2025-02-27 6

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