[2017] KEHC 800 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 64 OF 2011

A K (minor suing thro’ his mother & next friend)B A S.….APPELLANT

VERSUS

1. MOHAMED HASSAN

2. SALIM HUSSEIN MUHUNZI…...........................…RESPONDENTS

Consolidated with

CIVIL APPEAL NO. 65 OF 2011

B A S………………………....…………..................……….APPELLANT

VERSUS

1. MOHAMED HASSAN

2. SALIM HUSSEIN MUHUNZI……………………..RESPONDENTS

J U D G M E N T

1. The appellant has challenged the decision of the trial court dated 30/3/2011on the sole question that the sums assessed and awarded by the trial court for general damages were so low as to demonstrate an error in principle applicable to assessment of damages. In the Memoranda of Appeals, the appellants assert and plead:-

Memorandum of Appeal in HCCA 64. 2011

i. THAT the Learned trial magistrate erred in Law and in factin assessing general damages at Kshs.150,000 for fracture of 7th, 8th and 9th ribs, post fluid hydrothorax in the lung and bruises on the head which damages were inordinately low to constitute an erroneous estimate of damages

ii. THAT the Learned trial magistrate erred in law and fact infairly to take into consideration a factor he ought to taken into consideration thus arriving at an erroneous award of damages.

iii. THAT the Learned trial magistrate erred in law and in factin failing to have due regard to the authorities cited by the Appellant and as such arrived at a wrong estimate of damages.

Memorandum of Appeal in HCCA 65. 2011

i. THAT the Learned trial magistrate erred in Law and in fact in assessing general damages at Ksh.180,000 for comminuted fracture of the right femur thigh bone, cut on the left knee and bruise on the left leg which damages were inordinately low to constitute an erroneous estimate of damages.

ii. THAT the Learned trial magistrate erred in law and fact infairly to take into consideration a factor he ought to taken into consideration thus arriving at an erroneous award of damages.

iv. THAT the Learned trial magistrate erred in law and in factin failing to have due regard to the authorities cited by the Appellant and as such arrived at a wrong estimate of damages.

2. As and when an appellate court would intervene and interfere, evenon a first appeal when it proceed by way of retrial, with a trial courts discretion in the duty to assess damage is now well settled. The principles are that in order to justify reversing the trial courts on the question of quotum of damages awarded, it will generally be necessary that the appellate court be convinced either that the trial court acted upon some wrong principles of law, or that the amount awarded was so extremely high or so low as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages the plaintiff was entitled to see, Butt vs Khan [1981] KLR 349, Kemfro Africa Ltd t/a Meru Express vs A.M. Lubia & Olive Lubia [1982 -88]1 KLR and Evan Gicheru vs Marton and Another [2005] 2 KLR 333.

3. In considering an appeal like this, the appellate court must of necessityreview the pleadings filed and evidence led in light of the judgment of the trial court. In Selle & Another vs Associated Motor Boat Company Ltd and Another [1968] EA 123 the Court of Appeal in setting the parameters an appellate court observes in a first appeal said:-

“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion; or if there is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or had plainly gone wrong, the appellate court will not hesitate to so decide ……”

4. In the matter before me, there were before the trial court twoclaimants seeking damages against the Respondent for injuries sustained out of a road traffic accident. They filed two separate suits having Mombasa SRMCC No. 2533 and 2535 of 2009. The plaintiff in SRMCC 2533 was a minor suing through mother and next friend who was the plaintiff in SRMCC No. 2535. In this file the minor is the appellant in HCCA No. 64 of 2011 include the mother is the appellant in HCCA No. 65 of 2011. The appeals as were the primary suits, were consolidated and heard together.

5. Before the trial court, the minors injuries were pleaded and provedby evidence including doctors opinion to have been:-

i. Fracture of 7th, 8th & 9th ribs

ii. Post trauma fluid hydrothorax accumulation in the left lung

iii. Bruises on the head

6. The opinion by Dr. Adede who examined him some three monthsafter the accident said that due to his young age he stood no prospects of suffering any residual disability. That opinion agreed well with that of Dr. Ibrahim A. Mohammed who examined him about one year later and found that he had healed without any permanent disability. Based on the pleadings and evidence led and the parties having agreed on liability, the trial court in awarding to this appellant the sum of Kshs.150,000/= said:

“I do also award to A K (plaintiff in SRMCC No. 2533/2009 the sum of Kshs.150,000 for pains and suffering together with pleaded and proved special damages of Kshs.2,000/=”

7. For B A S, the appeallant in HCC No. 65 of 2011, thepleadings and evidence led showed that she suffered fracture of the femur and multiple soft tissue injuries without any permanent disability but the metal implants would require removal after some two year at a cost of a sum between Kshs.70,000. 00 and Kshs.90,000. 00.

8. In awarding damages to that appellant the trial court commentedand said:-

“The cost of removal was therefore a special damage that ought to have been specifically pleaded and proved but which was not the case and for that reason I decline to make any award in that limb. I will therefore award to the plaintiff B A S a sum of Kshs.180,000. 00 as general damages for pains and suffering and pleaded Kshs.2000/=”

9. It is that judgment the Appeal challenges and both sides have filedwritten submissions which I have derived benefits of reading.

Issues for determination, analysis and determination

10. Based on the memorandum of appeal and it’s submissions, the issuefor determination is whether or not this court, as a first appellate court, has been convinced that the finding by the trial court was erroneous to merit being interfered with. Being in the realm of judicial discretion it is not for an appellate court to substitute its own discretion for that of the trial court. No. The appellate court can only interfere if the award is demonstrated to have been so low as, to merit being termed a misery. This court in Kenya Power & Lighting Co. Ltd vs Andrea Otieno Odhiambo [2016] eKLR had this to say on the task of an appellate court.

“But even then, the duty of assessing damages is an exercise of discretion that is vested in the trial court and should not normally be interfered with or disturbed unless outright error is demonstrated that results into an injustice”

11. I have read the proceeding before the trial court, the judgmentsought to be challenged and the submissions filed by the parties and those offered orally in court and subjected same to the applicable principles of law.

12. I appreciate that the task of assessment of damages is indeed adaunting task and a trial court has no duty to achieve precision or complete satisfaction but only seeks make an award that reasonably compensates the plaintiff for the injuries suffered. Reasonable compensation must be on the yardstick of not only the trial courts unfettered discretion but is dictated by the norms of fairness. Hence yardstick like comparable injuries ought to attract comparable damages and that real life determinants like inflation with its attendant reduction on the valve of money with passage of time ought to be taken into account. However a party is not free to cite to a trial court a decided case and expect that the court is bound by that decision. Such a decision is merely directory and a point of reference. This is what I read Madan JA, to have meant in Ugenya Bus Service vs Gachiki [1976 – 1985] EA 575 when he said:-

“General damages for personal injuries are difficult to assess accurately and so as to give satisfaction to both parties. There are so many incalculables. The imponderables vary enormously. It is a very heavy task. When I ponderingly struggle to seek a reasonable award, I do notaim at precision. I know I am placed in inescapable situationfor criticism by one party or the other, sometimes by both sides.

I also do not aim to give complete satisfaction but to do the best I can”.

13. Having applied my mind to the applicable principles, I and in noway convince that the trial court committed any error when it awarded to A K the sum of Kshs.150,000. 00 as general damages. No error in principle has been demonstrated to me to justify me reversing the trial court. I also do not consider the award to be so low as to amount to an error in estimating damages payable.

14. However, I do find that there was an error by the trial court in itsassessment of damages due to B A S. I so find because other than the extent of the injury being a fracture of the thigh bone and other soft tissue injuries, the plaintiff gave evidence that some 1 ½ years after the accident she still had a problem with the leg and both doctors confirmed that she would inevitably need a surgery to have the metal plates removed. That to this court would entail a surgery and the attendant pains during the surgery and the recuperating period. The Appellant would have to forebear her usual life activities for the surgery and to recover. That to this court was an important and crucial matter the trial court ought to have taken into account and should have taken into account but did not take into account.

15. I think that failure to take the matter into account has resulted intoan injustice in that, even if the cost of removal of plates were special damages to be specifically pleaded and strictly proved; that it was agreed by both side to be inescapable, the court ought to have had regard to it even as a factor affecting an award of the general damages.

16. Additionally, the parties had cited to the trial court decided caseswith awards ranging between Kshs.90,000/= and Kshs.600,000/= made on varied dates between the years 1991 and 2000.

17. I, coming to the conclusion the trial court did, it was duty bound to meet itsstatutory duty under the provisions of Order 21 Rule 4. From the Judgment it is not easy nor apparent to discern why the trial court settled on the figure it did.

18. For my part, considering the injuries pleaded and proved, the factthat the Appellant was still using crutches 3 months and two weeks after the accident and that she would require a surgery to remove the plates at a cost both doctors approximated at more than Kshs.70,000/= with the attendant pains and lost amenities, I consider the award of Kshs.180,000/= to have been too low and amounted to an error in estimates and to have occasioned an injustice. For that reason I set aside that award and in its place I substitute an award of Kshs.400,000. 00

19. That award, less any sums already paid on the decree now set aside,shall attract interest at court rates from the date of the judgment by the trial court till payment in full. On costs I award to the appellant ½ costs of this appeal.

20. It is so ordered.

Dated and delivered at Mombasa this 3rd day of October 2017.

P.J.O. OTIENO

JUDGE