[2023] KEHC 27349 (KLR)

Abdi & another v Weme (Civil Appeal E15 of 2021) [2023] KEHC 27349 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27349 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E15 of 2021

DKN Magare, J

December 14, 2023

Between

Mohamed Nassir Abdi

1st Appellant

Mwanatumu Khamis Hussein

2nd Appellant

and

Geofrey Joseph Weme

Respondent

Judgment

1. This Appeal arises from the Judgment and Decree of Honourable J.M Omido (SPM) in Kwale Chief Magistrate Civil Case No. 383 of 2017 delivered on the 7th day of March, 2020. The Court, Lady Justice Dora Chepkwony extended time for filing Appeal by 30 days from 28/1/2021. The Appeal was to be filed by 28/2/2021. It was filed on 15/2/2021. It is thus within time.

2. The Appeal raises 4 Grounds of Appeal which can be seen as two issues mainly:a.The main issues are General Damages of Kshs. 996,750. b.Future medical expenses

3. Given that there is no appeal on liability, there is no need of setting out all pleadings except the injuries pleaded. The Respondent pleaded the following injuries: -a.Fracture of the right hipb.Dislocation of the right hipc.Blunt object injury to the lower back and right hipd.Cut on the necke.Fracture of the left Fibia and tibulaf.10 % disability

4. The court after hearing the case made the following decision:-a.Special Damages of Ksh 7,500/=b.General Damages Ksh 750,000/=c.Future Medical Expenses Ksh 350,000/=

5. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

6. In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

7. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another v Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

8. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

9. In the case of Peters v Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

10. In Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 others [2019] eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

11. The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

12. The foregoing was settled in the cases of Butter v Butter Civil Appeal No. 43 of 1983 [1984] KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of ……is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

13. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

14. The High Court, pronounced itself succinctly on these principles in Kemfro Africa Ltd v Meru Express Servcie v A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

15. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

16. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

17. So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

18. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

Appellant’s submissions 19. They filed very short submissions. They relied on the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, where the court of Appeal stated as doth:“Further, we observe that the learned trial Judge failed to appreciate that in assessment of damages for personal injuries the general method of approach is that “comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases” (see the decision of the court in Arrow Car Limited vs Bimomo & 2 Others [2004] 2 KLR 101). Although the award of damages was at the discretion of the trial court, that discretion required to be exercised judicially.”

20. They then used totally useless authorities related to dislocations, none of them had femurs or fracture of the hip or acetabulum.

21. This is not intellectually stimulating when an advocate in writing submissions assumes that the court is a nicobomb who will just swallow them without thinking. A little credit should be given to the courts. In different circumstances, Justice Madan was Addressing the relevant issue then as it is now. This was well captured, conceptualized, problematized and contextualized by justice G V Odunga in Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR, where he stated as doth:“What the Court said was that the applicant ought to have applied for review before the lower court. In my view to marked such remarkable averments can only be taken to be meant to mislead the court. Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

22. In the South African case of Matatiele Municipality & Others v President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exists while knowing very well that that is not the position cannot be said to be open, candid, and transparent. Dishonest in my view is an Act which is the antithesis to transparency and vice versa…”

23. The insult is not in the submissions, but in pursuit of a course even when you realize it is lost. By applying very old authorities, it is clear that there were no authorities to support their case that were current.

Respondent’s submissions 24. The respondent identified the following issues for determination, that is: -a.Whether the Learned Magistrate erred in law in awarding to the Plaintiff Kshs 750,000/= for general damages, special damages of Kshs. 7,500 and Future Medical Expense of Kshs. 350,000 less 10% liability making it a sum of Kshs. 996,750 and whether the said sum is so excessive as to amount to an erroneous estimate of the damages payable to the Plaintiff;b.Whether the learned Magistrate erred in awarding a sum in respect of damages which was inordinately high and excessive in the circumstances occasioning miscarriage of justice;c.Whether The Learned Trial Magistrate erred and misdirected himself by awarding general damages and future medical expenses on injuries that are on the higher scale considering the injuries suffered by the Plaintiff; andd.Whether the Learned Trial Magistrate erred in law and in fact in unduly the evidence adduced in trial(sic).

25. They argue all issues as one issue and point out that an award of damages is discretionary and an Appellate Court when called upon to reverse such an award would only reverse the amount of damages awarded after which that Court is convinced that the trial court acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, an entirely erroneous estimate of the damage to which a party is entitled. They relied on the case of MWANGI VS WAMBUGU [1984] KLR 453 where the Court of Appeal pronounced itself as follows: -“A Court of Appeal will not normally interfere with a finding fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

26. They also submitted on the locus classicus decision of the court of Appeal in Kemfro Africa Limited T.A Meru Express Services & Another Vs A.M. Lubia & Another CA No. 9 [1982-1988] 1 KLR 7827 where the Court of Appeal as follows:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

27. It is their case that the Respondent suffered the following injuries as per the medical report of Doctor Ajoni Adede dated 14th February, 2017: -a.Fracture of the right femur(neck) thigh boneb.Dislocation of the right hipc.Blunt object injury to the lower back (lumbar sacral) and right hip;d.Cut on the neck; ande.Multiple bruises on the left hand.

28. Dr. Wainaina gave 5% disability and gave nil of future medical examination. Using that disability, they relied on the case of Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR where Justice C. Meoli awarded the Plaintiff a sum of Kshs. 800,000/= for similar injuries and a Plaintiff who had suffered a permanent disability of 5% which is slightly lower than what the Respondent’s Doctor had proposed and similar to that which the Appellant’s Doctor had proposed.

29. On whether Special damages and Future Medical Expenses were strictly and specifically pleaded and proved. They relied on the case of Board of Governors Ongata Academy V Gabriel Ngaiyaiya Rumoi [2021] eKLR where the Court while quoting the case of Tracom Limited & Another –Vs-Hasssan Mohamed Adan [2009] eKLR stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.

30. They relied on the case of Kenya Bus Services Limited v Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”

Analysis 31. Dr Wainaina explained that there were to be nil medical expenses. The court noted that DR Wainaina did not comment on Dr Adede’s request for a partial hip replacement will have to be done at a cost of 350,000/=. The court awarded the amount suggested by doctor Adede. On reviewing the evidence, I agree that medical evidence on record suggest and rightly so, the specified future medical treatment.

32. In the case of Blooming Bliss Kenya Limited v Ocean freight (E.A.) Limited & Another [2023] eKLR, this Court stated as doth: -“Also taken into consideration among numerous others is the case of Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR from which the Judge drew out four tests to be applied by a court when considering admission and acting on expert evidence as more particularly set out in the ruling and which we also find prudent not to rehash and expressed himself thereon, inter alia, as follows: -“In my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative or manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable. It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court “of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence.” An expert report is therefore only as good as the assumptions on which it is based. An expert gives an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.”

33. In this context the court in the case of Apex Security Services Limited v Joel Atuti Nyaruri [2018] eKLR, Justice L. Njuguna held as doth: -“On the weight a court of law should attach on expert opinion this court in the case of Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR held that,“Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, provided; it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. [11] Four consequences flow from this.Firstly, expert evidence does not “trump all other evidence”.7 It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.9Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing.12 A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones. [12]”

34. I therefore dismiss the appeal on future medical expenses. The same was pleaded and the plaintiff proceeded to prove the same. I do not find the same to have been awarded against the weight of evidence. Expert witness is not the gospel truth but some of the evidence the court decides upon. Where experts differ, it is upon the court to resolve the evidentially dispute. An inconsistent medical report is not worthy paper it is written on. If a doctor finds 5% lability, he should address the medical reports given first in time and at least associate any treatment or lack thereof for the 5% disability. Failing to do so, such an expert is nothing less than a paid piper.

Burden of proof 35. The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

36. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the judges of Appeal held that:“Denning J. in Miller v Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

37. On the issue of General Damages, the court awarded 750,000/=. This was on the strength of the cases before him. The Appellant suggested very old cases. Any case which is more than 3 years old cannot be recent. Recent must be truly recent.

38. In the case of Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] eKLR,“As per Dr Wokabi’s Medical Report, the Respondent/Plaintiff sustained the following major injuries: a fracture of the upper right tibia and a fracture of the floor of the socket of the left hip joint (acetabulum). The fracture of the tibia was surgically fixed with a metal implant and the fracture of the socket of the left hip was treated conservatively (non-surgically). He was mobilized and discharged with crutches. As a result of these 2 major injuries and the surgery, he suffered a lot of pain. At optimal rehabilitation, the disability will be 20% for both legs. His prospects of developing arthritis were higher due to the fracture of the acetabulum which the process has already started as confirmed by the X-ray.In the case of Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & Another [2018] eKLR, the court substituted the award of Kshs. 1,000,000 with Kshs. 1,400,000 for a fracture to the acetabulum. Noting the seriousness of a hip fracture, the learned judge stated:“A fracture to the tibia or femur for instance, is very different from a hip fracture, especially in terms of long-term consequences to the victim’s health, and especially mobility. Besides, the awards in the authorities cited by the Respondents are too low. In my view, the trial magistrate ought to have considered more specifically the consequences that the fracture to the acetabulum predisposed the Appellant to, more so because he had obviously been persuaded that one consequence was the requirement for a total hip replacement, as a result of osteo-arthritis.”

39. In the case of Gitonga v Kalunge (Civil Appeal E034 of 2021) [2022] KEHC 3070 (KLR) (30 June 2022) (Judgment), Justice Cherere, stated as doth:“I have considered relied on Geoffrey Maraka Kimchong v Frechiah Hugiru [2020] eKLR that the learned trial magistrate relied upon and I note that the sum of Kshs. 1,000,000/- was awarded for:(a) Cut wound on the cheek which was tender. (b)Blunt trauma to the pelvis which was tender. (c)Fracture of the right acetabulum. 16. Respondent suffered more serious injuries that those in Geoffrey Maraka Kimchong v Frechiah Hugiru (Supra) and I find that an award of Kshs. 1,000,000/- was in the circumstances low considering the injuries sustained.”

40. In the circumstances, I find and hold that the award of 750,000/= was low but not so low as to amount to an erroneous estimate of damages. Definitely it is not high. The Appeal lacks merit and is accordingly dismissed with costs of Ksh 125,000/-

Determination 41. The upshot of the foregoing is that the Appeal herein lacks merit and the court makes the following orders: -a.The Appeal is dismissed with costs of 125,000/-b.Costs shall be paid within 30 days from today.c.For completeness of record, the award on special damages is corrected in that special damages are not subject to liability and interest thereon is from the date of filing of suit in the lower court.d.The file is closed.e.The amount in the joint account be released to the respondent

DELIVERED, DATEDAND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Miss Kikyegu for the RespondentNassanga for the AppellantCourt Assistant – Brian