[2017] KEHC 1106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL APPEAL NO. 01 OF 2017

(FORMERLY MACHAKOS HCCA NO. 26 OF 2014)

ALPHONZA WOTHAYA WARUTU...................................1ST APPELLANT

CAROLYNE BANCY WAWIRA…………………………..2ND APPELLANT

-VERSUS-

JOSEPH MUEMA.................................................................RESPONDENT

(Being an Appeal from the Judgment of the Learned Resident Magistrate Hon.E.M Muiru in Makindu Civil Case No. 124 of 2013 delivered on 28th January 2015).

J U D G M E N T

INTRODUCTION

1. The appellants were the defendants in the lower court and the respondent was the Plaintiff.

2. The respondent sued the appellants for general and special damages resulting from injuries suffered in a road traffic accident which occurred on 23rd January 2012. The respondent averred that on the material day, he was travelling as a passenger in motor vehicle registration number KAQ 507K when the defendant either by themselves, their driver, agent and/or servant drove the said motor vehicle so carelessly and negligently that it was involved in an accident. As a result, the respondent sustained injuries.

3. On 27th August 2014, parties recorded consent on liability in the ratio of 90:10 in favour of the plaintiff.

4. Assessment of damages was done by the Hon E.M Muiru Resident Magistrate who in a judgment delivered on 28th January 2015 awarded the respondent the sum of Kshs.800,000/- as general damages together with proven special damages in the sum of Kshs.3,500/- as well as costs and interest.

THE APPEAL

5. The appellants being aggrieved with the said judgment and decree have appealed to this Court on four grounds namely:-

i. That the learned Magistrate erred in fact and in law in wholly relying on the evidence adduced by the plaintiff/respondent and disregarding the defendants/Appellants submissions on quantum.

ii. The learned Magistrate erred in fact and in Law in failing to properly assess the degree of injuries pleaded and or sustained by the plaintiff/respondent which were compound fractures, right humerus and right tibia in line with the paramount provisions of the Insurance Motor Vehicle Third Party Risks Act Cap 405 laws of Kenya and the available judicial authorities on similar injuries. The act provides a guideline on how compensation of various natures of injuries is to be computed.

iii. The learned trial magistrate erred in fact and in law in failing to consider the defendant’s defence and evidence on the disputed extent of injury if at all especially the medical Report by the defendants/Appellants.

iv. The learned magistrate’s decision was arrived at in a cursory and perfunctory manner founded on non pleaded injuries and the award of general damages at Kshs. 800,000/- against the defendants/Appellants is unjustified, too excessive and oppressive.

6. Based on those grounds, the appellants prayed that:-

a. The appeal be allowed with costs.

b. The Judgment of the Honourable Resident magistrate be set aside and damages payabe to the plaintiff/ respondent be assessed afresh.

c. Costs of the appeal be borne by the respondent.

d. Any further/other orders that the Court may deem fit and just in the circumstances of the case.

THE SUBMISSIONS

7. Consent to have the appeal canvassed by way of written submissions was recorded and adopted on 12th July 2017. The parties having consented on liability in the lower Court, the appeal herein is purely on quantum.

8. It was submitted on behalf of the appellant that the Court’s reliance on NAKURU HIGH COURT CIVIL CASE NO. 189 OF 2009; MWAURA MUIRURI –VS- SUERA FLOWERS LIMITED & ANOTHERwas in error in that the injuries therein were more severe than the ones in the instant case and as such, the decision was based on irrelevant and improper considerations. Further it was the appellants’ case that the learned magistrate completely disregarded their submissions on quantum. They quoted inter alia the case of DENSHIRE MUTETI WAMBUA –VS-KENYA POWER & LIGHTING CO. LTD (2013) EKLR where it was held that, the general method of approach for assessment of damages 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.

9. The appellant urged the Court to set aside the award on general damages and replace it with an award of between Kshs. 200,000 – Kshs. 400,000/=.

10. On the other hand, the respondent urged the Court not to disturb the findings by the trial Court. He submitted that the learned magistrate had the opportunity to see him and that she properly and in detail analysed the injuries which were even confirmed by the two doctors who examined him.

11. The respondent referred this Court to the decision in PETER –VS- SUNDAY(1958) E.A 424 AT PG. 429 where the Court of Appeal for East Africa reiterated the duty of an appellate Court.

12. On the allegation that the trial Court did not consider the appellant’s submissions on quantum, the respondent submitted that the appellants did not file their submissions within the timelines given by the Court and that by the time the learned magistrate was retreating to write her judgment, the said submissions were not in the file hence precluded. The respondent equated the appellants submissions to an ambush and urged the Court to disregard them.

13. On ground 2 of the appeal, the respondent submitted that the structured compensation provided for in the Insurance Motor Vehicle Third Party Risks Act Cap 405 Laws of Kenya was declared unconstitutional in Nairobi High Court Petition No. 148 of 2014. The respondent urged the Court to dismiss the appeal with costs. I agree with the respondent and as such, that ground must fail.

THE DUTY OF THE COURT

14. The duty of the first appellate court was explained in the case of ABOK JAMES ODERA T/A A.J. ODERA & ASSOCIATES VS JOHN PATRICK MACHIRA T/A MACHIRA & CO. ADVOCATES [2013] eKLR as follows:-

“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

THE ISSUES

15. I have dealt with ground 2 of the appeal and decided to merge grounds 1, 3 and 4. It is my considered view that the only issue for determination in this appeal is:

Whether the award of Kshs. 800,000/= as general damages was so inordinately high as to present a wholly erroneous estimate of the damages.

THE EVIDENCE

16. The respondent (plaintiff in the lower Court) testified that he had recorded a statement dated 23rd January 2012 with his Advocate and that he wished to adopt it as his evidence. At this juncture, it is important to note that when I retreated to write this judgment, I looked at the whole record of Appeal and did not find the statement alluded to. The medical report by the defendant’s doctor was also missing. I am therefore confined to the proceedings and other materials produced in evidence.

17. In his testimony, the respondent recalled that on 23rd January 2012, he was travelling from Simba when he was involved in an accident. He stated that before the accident he had a normal life but was currently walking with the aid of crutches, he could no longer bend and that his left leg had become shorter.

18. Further he stated that he sustained 3 fractures on his right hand above the elbow, a cut wound on the face where he was stitched about 9-10 stitches. He was treated at Makindu District Hospital where he was admitted for 8 days-one week. He later went home and stayed for 8 months but the bone on his leg got exposed. This prompted his admission at Kenyatta National Hospital for about 6 months. At the time of trial, he complained of aches on his right hand.

19. Doctor D.M Kyalo, a medical practitioner with qualifications in Bachelor of medicine and surgery recalled examining the respondent on 18th April 2013. He then produced the medical report which he had prepared. On cross examination, he stated that the fracture had healed. On re-examination however, he stated that the respondent would not lead a normal life because the injuries left him with stiffness and muscular pains. He assessed his functional disability at 10%.

20. The appellants (defendants in the lower Court) closed their case without calling any witnesses. The medical report produced by their Doctor was however produced by consent of the parties.

ANALYSIS OF THE SUBMISSIONS AND EVIDENCE

21. It is not in dispute that the respondent sustained the following injuries;

i. Deep cut wound on the forehead.

ii. Compound fracture on midshaft of the right humerus.

iii. Compound fracture of the right tibia.

iv. Deep cut wound on the right lower leg.

22. From the learned magistrate’s judgment, the appellants’ doctor assessed the respondent’s functional disability at 5%. The two doctors were therefore in agreement that the injuries sustained by the respondent resulted in functional disability. The difference was in the percentage.

23. In awarding the general damages of Kshs 800,000/=, the learned magistrate relied on the decision in NAKURU HIGH COURT CIVIL CASE NO. 189 OF 2009; MWAURA MUIRURI –VS- SUERA FLOWERS LIMITED & ANOTHER.I must admit that from the wording of the learned magistrate’s judgment (which was mostly lifted from the judgment in the quoted case), I got the impression that the plaintiff’s arm was amputated. I read the whole judgment and the injuries sustained by the plaintiff were as follows:-

i. Multiple lacerations on the face.

ii. Soft tissue injuries on the chest cage (mainly left subaxilliary area).

iii. Communuted fractures of the right humerus upper and lower thirds of the tibia.

iv. Compound double fractures of the right leg upper and lower 1/3rd tibia fibula.

24. Permanent disability was assessed at 70% and an award of Kshs 1,450,000/= was awarded as general damages for pain and suffering. Apart from the degree of incapacity, I respectfully do not agree that the learned magistrate erred in comparing the two cases.

25. Despite the two cases being decided one year apart, the learned magistrate awarded Kshs. 800,000/= [slightly more than half of the award in the Suera Flowers(sic)] thereby giving due regard to the disparity in the degree of incapacity.

26. The rationale for award of damages for pain and suffering is explained in paragraph 883 in HALSBURY’S LAWS OF ENGLAND 4th Ed, vol. 12(1) page 348-883. Pain and suffering. Damages are awarded for the physical and mental distress caused to the plaintiff, both pre-trial and in the future as a result of the injury. This includes the pain caused by the injury itself, and the treatment intended to alleviate it, the awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety that the plaintiff's condition may deteriorate.

27. It follows therefore that the award for pain and suffering is intended to compensate the Plaintiff for the anguish he has endured as a result of the accident whether physical or mental.

28. It is therefore important and relevant that the Plaintiff was aware of his suffering and a plaintiff who is in a coma or unconscious may not be awarded damages under this head.

29. From the record, the nature of injuries suffered by the Plaintiff paint a picture of someone who went through a great deal of pain. He was hospitalized for more than 8 months and is currently walking with the aid of clutches.

30. Dr. Kyalo (PW1) examined the plaintiff one year after the accident and opined that as a result of the injuries, the respondent would not lead a normal life. Further it was his prognosis that the respondent ought to have undergone physiotherapy but financial challenges had been an impediment.

31. The appellants referred this Court to several authorities which they contended were the comparable ones that should be used in assessing the damages payable to the respondent. I have looked at all those authorities and I respectfully do not think they are comparable to the instant case.

32. In SIMON MUTISYA KAVII –VS- SIMON KIGUTU MWANGI (2013) EKLR for instance, the appeal revolved around the significant conflict of evidence in the medical reports of the two doctors who had examined the plaintiff.

33. The prognosis which was upheld found that there was no shortening of the left leg and there was no incapacity. This is a significant contrast from the situation in the instant case.

34. In ZACHARIA MWANGI NJERU –VS- JOSEPH WACHIRA KANOGA (2014) EKLR where the plaintiff was awarded Kshs. 400,000/=. The injury was stated to be “….a fracture of the tibia/fibula”. Equally, there was neither shortening of the leg nor incapacity.

35. I have looked at several other authorities which in my view provide better guidance in the instant case.

36. In the case of SAVCO STORES LTD –VS- DAVID MWANGI KIMOTHO MACHAKOS HCA NO. 12 OF 2005, the plaintiff sustained injuries including:-

?Fracture of the left tibia and left tibula.

?Fracture of the left elbow.

?Deep cut wound on the left forehead and consequently suffered 20% disability.

37. The appeal court upheld an award for Kshs. 800,000/= for general damage inclusive of future medical expenses.

38. In the case of BEATRICE WAIRIMU WANDURUA –VS- C. DORMAN LIMITED [2009] EKLR appellant sustained serious injuries to her legs which resulted in compound fractures of the left tibia and dislocation of the left ankle joint. The court of appeal awarded Kshs. 550,000/= in 2009.

39. From the a foregoing, I find no reason to disturb the award made by the learned magistrate.

40. The appeal is hereby dismissed. The lower court decision is confirmed. The respondent will have costs of the appeal as well as the costs of the proceedings in the lower court.

DATED, READ AND DELIVERED IN MAKUENI THIS 1ST DAY OF NOVEMBER 2017.

C. KARIUKI

JUDGE

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