James Mugwimi Kibbunyi v Margaret Wangari Mugo

Vehicle Registration Number KBN 543X, driven by the Respondent. 2.The Appellant, aggrieved by the dismissal, filed a Memorandum of Appeal dated 13th March 2024 raising several grounds. The core issues for determination are whether the trial court erred in its finding on liability and, consequently, whether the obiter assessment of quantum should be upheld, varied, or set aside. 3.The Appellant’s case was that on 6th July 2022 at around 7:40 pm, he was a pedestrian lawfully waiting to cross the road at Riabai trading center when the Respondent’s vehicle veered off the road and hit him. He sustained a fracture of the right ankle joint, required surgery and insertion of metal plates, suffered pain and loss of income, and was assessed with a 10% permanent disability. 4.The Respondent did not deny the occurrence of the accident but blamed the Appellant, alleging he was intoxicated and staggered onto the road. She relied on police abstract that blamed the Appellant and a statement in the P3 form indicating the patient was "intoxicated." 2|Page

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5.The trial court dismissed the suit, holding that the Appellant failed to prove his case on a balance of probabilities. However, the trial proceeded to assess (obiter) what she would have awarded as damages as follows: General damaged at kshs.500,000/-, Special damages at kshs.153,550/- and declined future medical expenses. 6.This being a first appeal, the court has a duty to reevaluate, re-assess, and re-analyze the evidence on record and draw its own conclusions, bearing in mind that it did not see or hear the witnesses. The principles guiding this court were settled in Selle v Associated Motor Boat Co. [1968] EA 123 in which the court held that: "An appeal to this Court from the trial of the High Court by way of a 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 never seen nor heard the witnesses and should make due allowance in this 3|Page

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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 circumstances to or take account probabilities of particular materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally." 7.An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, a misapprehension of the evidence, or the application of wrong legal principles. This was the finding in Peters v Sunday Post Limited [1958] EA 424 in which the court also stated that: "Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances 4|Page

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admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide…” 8.The issues for determination are: i. Whether the trial court erred in law and fact in finding that the Appellant failed to prove liability against the Respondent on a balance of probabilities ii. Whether the trial court's assessment of quantum of damages is reasonable and whether it should be adopted, or varied. ANALYSIS AND DETERMINATION W 9.Section 107(1) of the Evidence Act (Cap. 80) provides: “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.” The burden was on the Appellant to prove negligence on the part of the Respondent. 10. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd (1991) 2 KAR 258, the Court of Appeal 5|Page

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held that there is no liability without fault in Kenya, and a plaintiff must prove negligence. But proof of an accident involving a motor vehicle and a pedestrian raises a prima facie inference of negligence on the part of the driver. 10. In Masembe v Sugar Corporation and Another [2002] 2 EA 434, the court held that a driver is bound to anticipate the presence of pedestrians and must drive at a speed that allows him to avoid a collision. The Respondent admitted she hit the Appellant. Her own testimony was that she was driving at "not more than 60 km/h." At a trading centre, at 7:40 pm, that speed is manifestly excessive. The Respondent did not stop, brake, or swerve in time to avoid hitting the Appellant. These facts constitute prima facie negligence. 11. The trial court placed significant weight on the word “intoxicated” in the P3 form and the medical notes. However, PW3, Dr. William Njoroge (from Kiambu Level 5 Hospital), testified unequivocally that “no test was done to detect the level of intoxication” and that the word “intoxicated” was inserted without any alcohol analysis. This evidence was not controverted. The trial court erred by treating an unsubstantiated observation as 6|Page

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conclusive proof of intoxication, effectively shifting the burden of proof to the Appellant to prove he was not drunk. That is not the law. The Respondent bore the burden of proving contributory negligence, which she failed to discharge on a balance of probabilities. 12. In David Mwangi Kariuki & another v Stephen Mwangi & another [2017] eKLR, it was held that a police abstract proves the occurrence of an accident but not how it occurred or who was to blame. The police abstract’s remark “deferred to insurance” or blaming the Plaintiff is an opinion, not a judicial finding. The trial court erred by treating the abstract as binding on the issue of liability. 13.On Liability, I also find that the Appellant, as a pedestrian, contributed to the occurrence of the accident. His own testimony was that he was “waiting to cross the road.” At 7:40 pm, visibility would have been reduced. A pedestrian has a duty to ensure it is safe to cross. Equally I find that the Respondent also contributed to the accident by failing to keep a proper lookout for pedestrians and driving at an excessive speed (over 60 km/h) 7|Page in a trading center. She ought to have

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demonstrated that she applied brakes, swerved, or stopped to avoid hitting the Appellant. In Isabella W. Karanja v W. Mabele (1982-88) KLR the learned Chesoni Ag. J.A while apportioning liability in a pedestrian – Motor vehicle road accident stated that “What I find makes the distinction in their blameworthiness is the fact that Isabella had under her control a lethal machine…..” In the foregoing and considering the circumstance under which the accident occurred I would apportion liability in the ration 70%:30% in favour of the plaintiff against the Defendant 14. On Quantum of Damages, this court has the discretion to interfere with an award of damages if it is so inordinately high or low as to represent an erroneous estimate, or if the trial court applied wrong principles. (Butt v Khan [1981] KLR 349). The Appellant in this case had sustained a fracture of the right ankle joint. He underwent surgery with insertion of metal plates and was hospitalized for four days with residual stiffness, occasional pain, and a permanent 8|Page

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disability assessed at 10% by Dr. Antony Murage. The medical report was adopted by consent. The trial magistrate assessed general damages at Kshs.500,000/-.The Appellant urges this court to enhance the award. On her part the Respondent urges that the award was reasonable. Comparable authorities cited include: i. Nahson Nyabaro Nyandega v Peter Nyakweba Omboqa [2021] eKLR – where the plaintiff suffered a compound fracture of tibia/fibula and General damages assessed at Kshs.650,000/ii. Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR where the plaintiff was awarded Kshs.400,000/-for compound fractures of tibia/fibula iii. Amazon Energy Limited v Ramadhan Kalume Kalama [2019] eKLR where General damages were assessed at Kshs.600,000/- with permanent disability was assessed of 18% 15.Taking into account the nature of the injury in the instant case, which was a single fracture requiring surgery, resulting in 10% permanent disability, inflationary trends since the trial court’s assessment, I 9|Page

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find that the trial magistrate’s award of Kshs.500,000/for general damages was fair and reasonable. I uphold it. 16.The trial magistrate declined to award future medical expenses, holding that the Appellant testified they were “optional.” I have reviewed the proceedings. The Appellant testified that the metal plates “will have to be removed” (Page 8 of the Record of Appeal: “I still have the implant as I was advised that it is to remain for the next 1 and a half years”). Dr. Murage’s report confirms the implant is in place. In Zipporah Nangila v Eldoret Express Limited & 2 Others [2016] eKLR, the court awarded Kshs.200,000/- for removal of implants. I find that the trial court erred in declining this head of damages. I award Kshs.150,000/- for future medical expenses being the cost of removal of metal plates. 17.The learned trial magistrate assessed special damages at Kshs.153,550/-. This sum was specifically pleaded and strictly proved through the Anka Hospital invoice (Page 27-28 of the Record of Appeal) and other receipts. I uphold this award. F. FINAL DISPOSITION 10 | P a g e

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18.The appeal partially succeeds. The judgment of the trial court dismissing the suit is hereby set aside and the same is substituted accordingly. Subject to contributory negligence, Judgment is hereby entered as follows: Liability 70%:30% General Damages for Pain and Suffering Ksh.500,000/- Future Medical Expenses (Removal of Implants) Ksh.150,000/- Special Damages Ksh.153,550/- Sub-total Ksh,803,550/- Less 30% Contribution Ksh.241,065/- Net Award to the Appellant Ksh.562,485/- Interest shall accrue as follows: On Special Damages, to run from the date of filing the suit in the lower court (17th January 2023). On General Damages and Future Medical Expenses to run from the date of this judgment. It is so ordered. 11 | P a g e

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DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12th DAY OF JUNE 2026, THROUGH THE MICRSOFT TEAMS PLATFORM KENNEDY KANDET JUDGE IN THE PRESENCE OF: MR KIHARA FOR THE APPELLANT NO APPEARANCE FOR THE RESPONDENT COURT ASSISTANT: JACKLINE KURUI 12 | P a g e

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