[2023] KEHC 23656 (KLR)

Abuga v Northern Rangeland Trust (Civil Appeal E104 of 2022) [2023] KEHC 23656 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23656 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E104 of 2022

LW Gitari, J

October 17, 2023

Between

Paul Abuga

Appellant

and

Northern Rangeland Trust

Respondent

(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Isiolo Hon. E. Ngigi (Principal Magistrate) dated 19th July 2022 in C.M.C.C No.E007 of 2021)

Judgment

1. This appeal challenges part of the judgment and decree of the trial court in Isiolo Chief Magistrate’s Court Civil Suit No. E007 of 2021 dated July 19, 2022. The Appellant herein was the Plaintiff in the said suit whereas the Respondent was the Defendant therein.

2. The Appellant sought general and special damages in respect to the injuries he sustained following a road traffic accident that occurred on or about October 15, 2020 along Isiolo-Moyale Highway. The said accident involved motor cycle registration number KMFB 522K (Boxer), which the Plaintiff was riding, and motor vehicle registration number KCU 770C (Toyota Land Cruiser) which was registered in the name of the Respondent.

3. As a result of the injuries alleged to have been sustained by the Appellant, he sought for the following reliefs:a.General damages for pain, suffering and loss of amenitiesb.Loss of earning capacityc.Kshs. 3,000,000/= being the cost of fitting a prosthesisd.Special damages of Kshs. 56,900/=e.Interest on (a), (b), (c), and (d) above at court ratesf.Costs of the suitg.Any other or further relief that the Honourable Court may deem fit to grant

4. In response, the Respondent admitted occurrence of the said accident but denied that the manner and circumstances in which the same occurred was as alleged by the Appellant in paragraphs 4 and 5 of his Plaint. The Respondent specifically denied the allegation that the accident was caused by negligence on the part of the driver of motor vehicle registration number KCU 770C. It was the Respondent’s aversion that the subject accident was caused and/or substantially contributed to by the negligence of the Appellant. The Respondent further denied the particulars of injuries and the particulars of special damages that were pleaded by the Appellant.

5. The matter was heard on merit and in the end, the trial court entered judgment for the Appellant against the Respondent as follows:a.Liability - 100%b.General damages for pain, suffering and loss of amenities - Kshs. 2,500,000/=c.Loss of earning capacity - NILd.Special damages – Kshs. 66,900/=Total – Kshs. 2,566,900/=e.Costs and Interest of the Suit to the Appellant

6. Aggrieved by part of the said judgment, the Appellant instituted the present appeal vide the Memorandum of Appeal dated and filed on 5th and 11th August, 2023 respectively. The appeal is based on the following grounds:a.That the learned trial magistrate erred in law and fact by failing to make a finding that the Appellant had lost the capacity to earn a living.b.That the learned trial magistrate erred in law and fact by making a finding that the Appellant was in a position to operate a vehicle while using a single leg.c.That the learned trial magistrate erred in law and fact by failing to make an award for future medical expenses despite the expert evidence presented in court.d.That the learned trial magistrate erred in law and fact by failing to make a finding that the Respondent did not present evidence disproving that the Appellant required future medical expenses or the amount that that would be required as future medical expenses.e.That the learned trial magistrate erred in law and fact by failing to consider the submissions cited by the Appellant with respect to loss of earning capacity.

7. The appeal was canvassed by way of written submissions which I have summarized herein below.

The Appellant’s Submissions 8. The Appellant filed his written submissions on April 18, 2023. On Grounds No.s 1 and 2 of the Appeal, it is the Appellant’s argument that it was erroneous for the trial court to proceed on the assumption that the Appellant had previously been employed as a driver of an automatic motor vehicle and that it did not matter which leg of the Appellant was amputated. To this end, the Appellant submitted that it was erroneous for the trial court to make a finding that the Appellant could operate a vehicle using one leg. That it was clear from his pleading that it was his right leg that was amputated and that since even if it was possible to operate an automatic transmission motor vehicle using just one leg, this Court should take judicial notice of the fact that majority of the vehicles in the country are what is referred to as “right hand drive” meaning that drivers use their right legs in operating the accelerator and brake pedal.

9. It was further the Appellant’s submission that in as much those who are physically disabled can still drive motor vehicle, more often than not, those vehicle have modification that make it possible for the drivers to operate them effectively. In the circumstances, that the Appellant could not possibly be expected to require potential employers to modify their vehicles at their expense just to accommodate the Appellant. In addition, that such a modification would perhaps make such a vehicle inoperable by any other person than the Appellant. The Appellant thus maintained that the trial court erred in engaging in mere speculation instead of basing its finding on expert evidence presented by Dr. Kimathi Kioga which indicated that the Appellant sustained both physical and psychological injuries including the phantom limb syndrome, which according to the Appellant meant that he was not a safe driver for passengers or even himself. The Appellant relied on the cases of Josephat Kamau Wamburu v John Kamere & 3 others [2017] eKLR and Disuni Enterprises Hardware &another v Benard N. Maloba [2011] eKLR.

10. On Grounds Nos. 3 and 4 of the Appeal, it is the Appellant’s contention that it was erroneous for the trial court to not award him damages for future medical expenses and to not find that the Respondent did not provide any evidence to disprove that the Appellant requires future medical expenses. The Appellant submitted that the evidence of PW3 was that of an expert witness and he was categorical that the Appellant would require to be fitted with a patella tendon bearing prosthesis (PTB) with a modular system attached to SACH foot, which prosthesis would cost the Appellant Kshs. 3,000,000/= and an annual maintenance cost of approximately Kshs. 20,000/=. It was thus the Appellant’s submission that the trial court erred dismissing the claim under this head by indicating that the Appellant ought to have sought different quotations for prosthetic legs. To buttress these submissions, the Appellant relied on the cases of Dancan Kinyua & another Boniface Kigunda [2020] eKLR and Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR.

11. Finally, it was the Appellant’s submission that in dealing with the issues of loss of earning capacity as well as the future medical expenses, the trial court erred by failing to take guidance provided by the authorities cited by the Appellant in the his submissions, which authorities were binding on the trial court. The Appellant thus urged this Court to allow the appeal and award him the costs of the proceedings before the trial court as well as the costs of the appeal.

The Respondent’s Submissions 12. On the other hand, the Respondent filed his written submissions on 12th June, 2023. On the issue of whether the Appellant was entitled to an award of damages for loss of earning capacity, it was the Respondent’s submission that the Appellant neither proved how the amputation of his leg led him to the loss of his job nor that he was incapable of working as a driver and that as such, the award of damages under this head was not justified in the circumstances.

13. Relying on the cases of Butler v. Butler (1984) eKLR, Cecilia W. Mwangi & Another V Ruth W. Mwangi [1997] eKLR, and Mumias Sugar Company Limited v. Francis Wanalo [2007] eKLR, the Respondent submitted that a claim for loss of earning capacity is strictly a general damages which must be specifically pleaded, prayed for and evidence led in to prove it. That the Appellant did not prove how the amputation of one of his legs led to loss of his job or made him incapable of working as a driver. Further, that it was not proven that the Appellant was totally incapacitated and could therefore not engage in gainful employment or gainful activities to earn a living.

14. On the issue of whether the Appellant was entitled to an award of damages for future medical expenses, it was the Respondent’s submission that the learned trial magistrate was correct and fair in his findings that an award of future medical expenses are in the nature of special damages which ought to be specifically pleaded and proved, failure to which, they ought not to be awarded. The Respondent relied on the cases of Simon Taveta v. Mercy Mutitu Njeru [2014] eKLR, Mbaka Nguru &another v. James George Rakwar [1998]eKLR, and Peter Mark Gershom Ouma v Nairobi City Council [1976] eKLR to buttress its contention that the claim under this head should be dismissed as the same was not proved.

15. Finally, on whether the trial court failed to consider the submissions and authorities cited by the Appellant, it was the Respondent’ submission that the learned trial magistrate did consider and actually relied on the authorities that the Appellant cited. The Respondent thus submitted that this ground of appeal also ought to fail and urged this Court to find that the appeal has no merit and thus dismiss the same.

Issues for Determination 16. I have considered the grounds of appeal and the submissions by the parties. The main issue that arises for determination is whether the trial court erred in not awarding the Appellant damages for loss of earning and for future medical expenses.

Analysis 17. This is a first appeal. The role of the first appellate court is stated in many authorities, for instance in Kiilu andanothervR (2005) 1 KLR 174 where the court held;“an Appellant in a 1st appeal is entitled to expect the whole evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision in the evidence. The 1st appellate Court must itself weigh conflicting evidence and draw its own conclusions.”This being a first appeal as it was held in the case of Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123 the duty of this court is to:“ ….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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally….”This Court of Appeal for East Africa in Peters v Sunday Post Limited (19578) EA 424 stated as follows in regard to duty of an appellate court:-“It is strong thing for an appellate court to differ from the finding, on a question of fact, of the Judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised caution. It is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their Ladyship in the House of Lords in Watt v Thomas (1) [1947] A.C 484. ”

18. Guided by the above authority, I now turn to the evidence adduced before the trial court.

19. The Appellant testified as PW1. It was the Appellant’s case that on October 15, 2020, he was riding motor cycle registration number KMFB 522K when he got hit by motor vehicle registration number KCU 770C. He sustained injuries as a result of the accident leading to the amputation of his leg. He produced the police abstract together with documents contained in his list of documents as his exhibits. He also applied to amend the plaint orally by including an additional Kshs. 10,000/= in his claim for special damages, the same being the cost of he incurred for a demand letter. This application was allowed unopposed and the special damages sought were amended to Kshs. 66,900/=.

20. PW2 was Dr. Kimathi Kioga who produced a medical report for the Appellant that is dated 19th February, 2021. It was his testimony that the degree of permanent disablement that the Appellant suffered was 50% and that the Appellant would require prosthesis at a cost of Kshs. 3,000,000/= with an annual maintenance of Kshs. 20,000/= for a lifetime.

21. PW3 was John Muchoki. He produced as an exhibit a medical report for the Appellant which he filled on 4th February, 2021. He also testified that the the Appellant would require prosthesis at a cost of Kshs. 3,000,000/= with an annual maintenance of Kshs. 20,000/= for the rest of his life. This marked the close of the Appellant’s case.

22. In its defence, the Respondent did not call any witness but the second medical report by Dr. Robert K. Kabugi was produced as an exhibit by consent of the parties.

23. I have considered the evidence adduced before the trial court. I now turn to the issues arising for determination in this appeal.On the Claim for Loss of Earning Capacity (Grounds No.s 1 and 2 of the Appeal)

24. On loss of earning capacity, the Court of Appeal in Mumias Sugar Company Limited v Francis Wanalo (2007) eKLR stated as follows:-“…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 for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him to either losing his job in the future or in case he loses the job, his diminution of chances of getting an alternative job in the labor market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering, and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing the loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”Again in the case of Butter v Butter (1984) KLR the Court of Appeal stated that:-“Compensation for loss of future earnings, is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.”See also Cecilia W. Mwangi v Ruth W. Mwangi Court of Appeal Nyeri No. 251 of 1996. In Clark v Rotax Aircraft Equipment Ltd (1975) KLR 1570 cited by the Court of Appeal in the case of Mumias Company Limited v Francis Wanalo (supra), illustrates that a court can in appropriate cases, give an award for loss of earnings capacity to the same plaintiff so as the overlap of the two awards of damages is avoided.From the above authorities, it is clear that a claim for loss of future earning may be awarded by courts depending on the circumstances of each case and can be awarded as general damages or under its own heading. Once a court determines that the party has lost earning capacity as a result of the injuries sustained in an accident, the court awards damages under that head. The party bears the burden to prove with evidence that he lost his capacity to earn. The appellant was employed as a driver. His right leg was amputated slightly below the knee. The injury is not such an extent that he will not be able to find a suitable job.

25. On his claim for an award of loss of earning capacity, the Appellant in this case has faulted the trial court for not awarding him damages for loss of earning capacity. It was the Appellant’s submission that he suffered 50% degree in total permanent capacity and that he used to work as a matatu driver earning a sum of Kshs. 27,000/=. That with his right leg having been amputated, it was not possible for him to go back to his old job of ferrying passengers and thus, he would not be able to earn his livelihood as a matatu driver. It was his submission that he would have continued working as a driver for at least 28 more years before retiring. Citing the High Court case of Lydia Moraa Mokaya v Patrick Kiarie & another [2021] eKLR, the Appellant urged the trial court to use a multiplier of 20 years and award him Kshs. 6,480,000/= under this head made out as follows: Kshs. 27,000/= x 20 years x 12 months.

26. In the cited case of Lydia Moraa Mokaya (supra), the Plaintiff therein was involved in a road traffic accident and sustained spinal injuries and injuries on the upper limbs. She was paralysed and was placed on a wheelchair. At the time of the accident, she was undertaking a bachelor’s degree in Arts (education). The Court appreciated that she would have become a teacher and made a finding that even in her present condition she can take up a teaching job but that requires a lot of effort. In finding that the said Plaintiff was entitled to an award of loss of earning capacity, the court noted that “a prudent employer would have to come by and agree to employ a staff who is paralysed and on a wheel chair”. The court then applied a multiplier of 25 years as the said Plaintiff was 21 years at the time of the accident.

27. In the present case, the trial court proceeded to note that the Appellant did not adequately prove that as a result of the subject accident, his work with Millenium Sacco was terminated and that his chances of getting employment elsewhere in future had diminished. To this end, the learned trial magistrate was guided by the holding in the case of Kenblest (K) Ltd v Musyoka Kitema (2020) eKLR where the court stated as follows:“Additionally, the respondent did not prove that as a result of the injuries sustained, he was exposed to either losing his job in the future or that in case he had lost his job, his chances of getting an alternative job in the labour market were slim. Even though, it was not mandatory for the respondent to plead the same, it is my finding that there was no evidence that the respondent was no longer in employment or that the chances of gaining employment in the future were diminished as a result of the injuries sustained and as such, no award was applicable under the head of loss of future earning capacity. ”

28. The trial court further observed that since the Appellant suffered an amputation of one leg. The court stated that it was common knowledge that automatic geared cars are operated on a single leg and went on to find that the Appellant was under an obligation to prove how the amputation led to loss of his job and that he was incapable of working as a driver. To this end, the court arrived at the conclusion that the Appellant had failed to prove his claim for loss of earning capacity.

29. According to the testimony of Dr. Kimathi Kioga (PW2), the degree of permanent disablement of the Appellant was assessed at 50%. According to the Appellant’s written statement dated March 9, 2021, which he adopted as his evidence, the Appellant was a matatu driver with Raha Shuttle Company earning approximately Kshs. 27,000/= per month. The Appellant produced in evidence copies of his payslips from Millenium Sacco for the months of July 2020, August 2020, and September 2020. The production of the payslips in evidence was never opposed and in my view, the same is sufficient proof that the Appellant was working prior to the accident. It is however not clear whether the Appellant continued working in the same job or whether he lost the job. There is also no proof that the Appellant tried to secure an alternative employment but failed as a result of his injuries. To this end, I am therefore inclined to agree with the submissions of the Respondent that the trial court did not err in failing to award damages under this head as the same was not specifically substantiated by evidence. Grounds Nos. 1 and 2 of the appeal therefore fail.On the Claim for Future Medical Expenses (Grounds Nos. 3 and 4 of the Appeal)

30. The Court of Appeal in the case of Tracom Limited & another v 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. In the case of Kenya Bus Services Ltd v Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

31. In this case, it was the evidence of PW2 that the Appellant would need a prosthesis limb that would cost Kshs. 3,000,000/= and an annual maintenance of Kshs. 20,000/=. This evidence was corroborated with the testimony of PW3, an orthopedic technologist. On cross-examination, it was the testimony of PW3 that there were other prosthesis available that are free but that the same would be problematic. PW3 further went on to state that is another prosthesis that is available that goes for Kshs. 150,000/= with an annual maintenance of Kshs. 15,000/= per year. In his submissions, the Respondent urged this Court to adopt the amount of Kshs. 150,000 with an annual maintenance of 15,000/= per year should this find that the Appellant was entitled to an award of the alleged future medical costs. There is no dispute that the appellant is required to have a prosthesis limb. The medical report by Doctor Kabugi which was produced in court by consent. The opinion of the Doctor is that the appellant will require a prosthesis or live forever with crutches…… The report falls short as the doctor did not give an estimate cost of the prosthesis. The appellant was required to prove the claim on a balance of probabilities. I agree with the appellant that even the most expensive prosthesis cannot have same functionality as the natural leg that was amputated. The appellant has proved that for him to enjoy as high quality of life he needs a prosthetic leg that is of a reasonable quality.

32. I have considered the submissions of the parties in respect the issue of an award for future medical expenses. In light of the testimonies of PW2 and PW3, it is my view that the claim for Kshs. 3,000,000/= as cost for fitting a prosthesis was specifically pleaded and proved. As such, the finding of the trial court under this head was in my view erroneous and against the weight of the evidence before it. I however note that save for the cost of the prosthesis, no other future medical expenses were pleaded. In the circumstances, no additional cost under this head can be awarded by this Court apart from the amount pleaded of Kshs. 3. 000,000/=.

Ground No. 5 of the Appeal 33. Finally, the Appellant faulted the trial court for not considering his submission and the authorities he cited with respect to loss of earning capacity. In my view, this ground of appeal lacks merit as the trial court considered the evidence on record by both parties and also considered the law and the facts in arriving at its determination. It also considered the relevant authorities cited by the parties while determining the twin issues of quantum and liability. There is therefore no valid reason for this Court to allow this appeal based on this ground. This ground is without merits.

Conclusion 34. In view of the foregoing, I find that the appeal partly succeeds. I opine that the trial court’s decision on quantum should be substituted with the following awards:a.Liability = 100%b.General damages for pain, suffering and loss of amenities - Kshs. 2,500,000/=c.Loss of earning capacity – NILd.Kshs. 3,000,000/= being the cost of fitting a prosthesise.Special damages – Kshs. 66,900/=f.Costs and Interest of the Suit to the Appellant in the lower court and in this appeal.

35. I further opine that the Appellant should have half the costs of this Appeal.

DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF OCTOBER 2023. L.W. GITARIJUDGE