[2023] KEHC 26944 (KLR)

Albanos v Captain Motor Cycle Manufacturing Limited & another (Civil Appeal E002 of 2021) [2023] KEHC 26944 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26944 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Appeal E002 of 2021

CM Kariuki, J

December 14, 2023

Between

Agnes Njeri Albanos

Appellant

and

Captain Motor Cycle Manufacturing Limited

1st Respondent

Richard Kuria Nyawira

2nd Respondent

(Being an appeal against the Judgment /Decree of Honourable C M Muhoro Resident Magistrate delivered on 1 February, 2021 in the Chief Magistrate Court at Nyahururu CM CC No. 8 of 2019)

Judgment

1. The Appellant brings this appeal against the judgment/decree of the Honourable C M Muhoro SRM in Chief Magistrate's Court in Nyahururu CMCC No. 8 of 2019 delivered on 1 February, 2021. The appeal is with regards to quantum arising from a judgment of a subordinate court in which the Appellant was awarded Ksh. 500,000 as General damages arising from a running down claim.

2. The appeal raises one ground that the award in general damages is inordinately low in total disregard to the severe injuries Appellant sustained in the accident.

3. The appeal was admitted and Court directed that the same be disposed of by written submissions .The parties after they were given direction to the instant matter, they were to file submissions which according to the record only Appellant did comply with directions given.

Appellants Submissions 4. Will address you as hereunder: That the learned trial magistrate erred in law and in fact in awarding General damages that were inordinately low in total disregard of the severe injuries that the Appellant suffered in the accident.

5. At page 32 of the Record of Appeal and specifically the medical report by Dr. Omuyoma the injuries sustained by the Appellant are listed as:-a.Displaced fracture of the right radius.b.Displaced fractures of the left radius and ulna.c.Soft tissue injuries of the face.d.Soft tissue injuries of the left hip joint.

6. The Doctor classified the degree of injury as "grievous harm" and awarded her a permanent disability of 20%.

7. At page 108 of the record of appeal, the Appellant during cross examination stated that she had not fully healed. At page 113 of the record of appeal, the Court in her judgment stated that:“...at the hearing, the Plaintiff testified and stated that she broke both of her arms/hands. "

8. The trial court in its judgment notes at page 114 of the record of appeal noted that the Appellant's submission was not in the Court's record. In the same page, she indicated that she considered the pleadings and the evidence on record and she also had a look at the Appellant's medical report dated 11 October 2019 by Dr. Kiamba which confirmed the Plaintiffs injuries as pleaded. She also noted that according to the said medical report the Doctor's conclusion was that the Plaintiff's degree of injury was classified as grievous harm and the Plaintiff was awarded twenty percent (20%) permanent disability.

9. The trial court in its judgment notes in page 114 of the record of appeal proceeded ward general damages of Kshs. 500,000/= which were too low in the circumstance.

10. at page 55 of the record of appeal, relied on the case of David Kariuki -versus- Peter Kiarie Wambui and another 2014 eKLR where Kshs.3,000,000/= was awarded as general damages for pain, suffering and loss of amenities for similar injuries.

11. In the same page 55 of the record of appeal also relied in the case of James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & Another [2015] eKLR where Kshs. 1,500,000/= was awarded as general damages for pain, suffering and loss of amenities for similar injuries. The Applicant submitted that an award of Kshs.3,000,000/= would be suffice as the Plaintiff's general damages.

12. In the case of Michael Njagi Karimi v Gideon Ndungu Nguribu & Another [2013] eKLR where Kshs. 2,000,000 was awarded as general damages for pain, suffering and loss of amenities to the for similar injuries.

13. Taking into consideration the age of the authority relied on, the factors of inflation and the particulars of the Applicant's injuries', the amount of Kshs.500, 000/= awarded by the trial court as inordinate law and not within the range of awards made by courts for similar injuries sustained by the Appellant as evidenced in the authorities relied upon above.

14. It is the Applicant's submission that the award of general damages by the trial court was inordinately low and therefore urges this Honourable Court to re-asses the damages to be awarded to the Appellant and enhance the same.

15. The circumstance where an appellate court can disturb an award of the trial court are outlined in the case of in the case of Tride versus Construction versus Charles Wekesa Kasembeli Civil Appeal 121 of 2002. The Court relied on the decision in Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini Vs. A.M Lubia and Olive Lubia (1982-88) L KAR 727 at page 730 in which the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded were laid down.

16. In the Kemfro Africa Ltd case the Court was of the opinion that the appellate Court must be satisfied that“either the Judge in assessing damages took into account an irrelevant factor, or left out of account a relevant one or that short of this the amount is inordinately low or so high that it must be a wholly erroneous estimate of the damages. "

17. It is the Applicant's submission that the present case presents such a scenario since the general damages awarded by the Court are inordinately low and not within the range for similar injuries, thus calling upon this honorable Court to vary the award of the trial court with a view of enhancing the same.

18. The Appellant's submissions attached with the authorities are from page 53 to page 98 of the record of appeal. The submission is dated 14 January 2021 and was filed on 8th January 2021; it has the receiving stamp of Nyahururu Law Courts Civil Registry.

19. It is the Applicant's submission that the trial court did not consider the Appellant's submissions; hence, she also did not look at our authorities that we relied on the quantum, and as a result, the award of general damages by the trial court was inordinately low and therefore urged this Honourable Court to consider submissions and to re-asses the damages to be awarded to the Appellant and enhance the same.

20. In the trial court judgment page 114 of the appeal record, the trial court held that.“I have considered the pleadings and the evidence on record. I have also looked at the Medical Report dated 11th October 2019 by Dr. W. Kiamba, which confirmed the Plaintiff's injuries as pleaded. It is noteworthy that according to the said Medical Report the Doctor's conclusion was that the Plaintiff's degree of injury was classified as grievous harm, and the Plaintiff was awarded twenty percent (20%) permanent disability. In view of the foregoing, this Court is of the view that Five Hundred Thousand Kenya Shillings (Kshs. 500,000/-) as general damages will suffice.

Issues, Analysis And Determination 21. The only issue raised in this matter is whether the award by the trial court was inordinately low. And, of course, costs.

22. In Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini Vs. A.M Lubia and Olive Lubia (1982-88) L KAR 727 at page 730 the Court was of the opinion that the appellate Court must be satisfied that;“Either the Judge in assessing damages took into account an irrelevant factor, or left out of account a relevant one or that short of this the amount is inordinately low or so high that it must be a wholly erroneous estimate of the damages. "

23. On page 32 of the Record of Appeal and specifically the medical report by Dr. Omuyoma, the injuries sustained by the Appellant are listed as:- Displaced fracture of the right radius.

Displaced fractures of the left radius and ulna.

Soft tissue injuries of the face.

Soft tissue injuries of the left hip joint.

24. The Doctor classified the degree of injury as "grievous harm" and awarded her a permanent disability of 20%.

25. On page 108 of the record of appeal, the Appellant, during cross-examination, stated that she had not fully healed. On page 113 of the record of appeal, the Court, in her judgment, stated that:“...at the hearing, the Plaintiff testified and stated that she broke both of her arms/hands. "

26. The Appellant relied on the case of James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & Another [2015] eKLR where Kshs. 1,500,000/= was awarded as general damages for pain, suffering, and loss of amenities for similar injuries. The Applicant submitted that an award of Kshs.3,000,000/= would be sufficient as the Plaintiff's general damages.

27. Michael Njagi Karimi v Gideon Ndungu Nguribu & Another [2013] eKLR, Kshs. 2,000,000 was awarded as general damages for pain, suffering, and loss of amenities for similar injuries. In this case which seems to be attached authority to the submissions. The court noted that: Fractures right humerus

Fractures right radius and ulna

Fractures tiba and fibular

Fracture left femur

And Court awared Kshs. 2 million ( these were more serious than appellants injuries)

28. Considering the age of the authority relied on, the factors of inflation, the particulars of the Applicant's injuries, and the amount of Kshs,500, 000/= awarded by the trial court as inordinate law and not within the range of awards made by courts for similar injuries sustained by the Appellant as evidenced in the authorities relied upon above.

29. In the case, I agree with the Appellant that the trial court never relied on the Appellant's submissions nor considered the same, making an inordinately low award in the circumstances of the Appellant's injuries. Doing the best I could and guided by cited case law, I am inclined to enhance the award to ksh 1,000,000; thus, the Court made the orders;i.The appeal is allowed to the extent that the award is enhanced to ksh 1,000,000. ii.Costs to the Appellant.

DATED, SIGNED, AND DELIVERED AT NYANDARUA THIS 14TH DAY OF DECEMBER 2023. ....................C KARIUKIJUDGE