[2019] KEHC 5851 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

HIGH COURT CIVIL APPEAL NO. 25 OF 2018

AMAZON ENERGY LIMITED..............................................................................APPELLANT

-VERSUS-

MAGDALINE NTHENYA MATHIAS and JACKSON KELI YOMA (Legal representatives

of the estate of JOSEPH WAMBUA YOMA(deceased).....................................RESPONDENT

(Being an appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Mariakani by Hon. Ndungi delivered on 18th April 2018 in PMCC No. 396 of 2015)

Mr. Jengo for the Appellant

Mr. Wambua Kilonzo for the Respondent

JUDGMENT

This appeal concerns assessment of quantum by the trial court.

Amazon Energy Limited, the Appellant herein, was sued in PMCC No. 396 of 2015 by Joseph Wambua Yoma (deceased) for damages arising out of an accident attributable to the negligence of the Defendant’s driver. Unfortunately, the deceased passed on during the pendency of the initial suit thereby necessitating the current Respondents herein to continue pursuing the cause of action after obtaining grant of Letters of Administration from the High Court in Malindi in P & A Civil No. 29 of 2017.

At trial, it was agreed by consent that liability for the accident be entered in the ratio of 80% for the Defendant/ Appellant and 20% against the Plaintiff/Respondents. On consideration of the evidence on hand and submissions by the respective advocates’, the learned trial magistrate awarded both General and Special damages as follows:

1. General damages - 3,500,000/-

2. Special damages - 20,567/-

­­­­­­­­­­­­Total 3,520,567. 00

Less 20% 704,113. 40

Net Award Ksh. 2,816,453. 60

The Defendant/ Appellant being dissatisfied with the assessment of the trial magistrate, Mr. Jengo counsel for the Appellant filed a memorandum of appeal dated 23rd April 2018 citing the grounds of appeal as:

a. That the assessment and award of general damages for pain suffering and loss of amenities is inordinately high as to represent an entirely erroneous estimate.

b. That the learned trial magistrate in assessing damages for pain suffering and loss of amenities failed to apply the correct principals by leaving out of account, the age of the plaintiff, the length of suffering of the plaintiff and the fact that the plaintiff had fully recovered without any deformity hence arrived at an erroneous estimate of damages, which the plaintiff suffered.

c. That the leaned trial magistrate misapprehended the evidence and misapplied, misunderstood and /or overlooked the correct principles and judicial precedent and the submissions by parties that she made an award for pain suffering and loss of amenities that was inordinately high.

d. The learned trial magistrate erred in fact and in law in failing to appreciate that similar injuries should attract similar awards and in failing to apply the doctrine of stare decisis and take into account public interest. He thus made an award for pain suffering and loss of amenities that was arbitrary, inordinately high and erroneous.

The Appellate court was asked to reassess the award for general damages for pain, suffering and loss of amenities downwards. The matter was dispensed off by way of written submissions.

This being a first appeal, it is my duty to reanalyze the evidence on the record while bearing in mind that I do not have the benefit of a live testimony from the witnesses as enjoined by Selle vs Associated Motor Boat & Another [1968] EA 123.

At the full hearing, it was agreed by consent that all the medical documents pertaining to the deceased be admitted without calling their makers. To this end, two medical reports by one Dr. Ajoni Adede and dated 16th October 2015 and 16th March 2016 were produced. A medical report dated 2nd March 2016 by an eye specialist Dr. Ibrahim Matende was also produced. Per these reports the deceased’s injuries were identified as:

a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft)

b. Displaced fracture of the right femur thigh bone (mid shaft)

c. Skull fractures at

i. left eye socket – orbital floor

ii. left lamina propia

d. Fracture of the right clavicle shoulder blade bone.

e. Deep cut on the forehead extending to the left eye.

f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus)

g. Total loss of vision in the left eye

In the medical report dated 16th October 2015, Dr. Adede reached the conclusion that the deceased had suffered 20% permanent disability due to multiple lower and upper limb fractures, multiple joint stiffness, multiple skull fractures, disfiguring facial scar, weak fracture sites that were points of weakness as they could re-fracture and the insertion and removal of metal implants that would weaken the bone.

Dr. Ibrahim Matende in his report dated 2nd March 2016 came to the conclusion that the deceased had lost total vision in the left eye which was equivalent to 30% permanent total disability.

According to the latest medical report, that is the one dated 16th March 2016 by Dr. Ajoni Adede, the conclusion made was that the deceased had suffered 50% permanent partial disability due to multiple lower and upper limb fractures, multiple joint stiffness, multiple skull fractures, disfiguring facial scar, weak fracture sites that were points of weakness as they could re-fracture, the insertion and removal of metal implants that would weaken the bone and loss of vision in the left eye.

The Plaintiff’s advocate submitting on quantum at the lower court had proposed a figure of Ksh. 5,000,000/-.basing this sum on Gabriel Mwashuma vs Mohammed Sajjad & Milly Glass Works Limited Mombasa HCCA No. 79 of 2012where the Plaintiff then had been adjuged to have suffered 30% permanent disability and awarded Ksh. 3,000,000/-

The Defendant’s Advocate on the other hand had cited 1,250,000/- as being sufficient for general damages, placing reliance on Benard Holz vs James K. Kiara Thriugh Isaac James Mombasa HCCC No. 991 of 2011where for similar injuries the court awarded Ksh. 1,120,000/-.

Upon appreciation of the evidence on the record, giving due regard to the authorities referred to the court by the respective advocates and taking into account the injuries suffered by the deceased, the learned trial magistrate awarded 3,500,000/ as general damages, a sum which is the substance of the instant appeal.

Appellants Submissions

Mr. Jengo, the appellant’s counsel submitted that the trial magistrate erred and misdirected himself on awarding exorbitant damages without due regard to prevailing comparable authorities on such awards. The learned counsel further faulted the trial magistrate for holding that the Plaintiff had suffered 50% incapacity and urged that this finding had no basis whatsoever owing to the variations in degrees of incapacity of 20%, 50% and 30% cited in the medical reports of Dr. Adede and Dr. Mutende respectively.

The appellant’s counsel further argued that the trial magistrate failed in his duty by relyig on authorities where the injuries suffered were not comparable to those of the instant case. In this regard, Mr Jengo proposed the following authorities as a guide to what ought to have been an appropriate measure of damages:

1. Laban Buyole Mamboleo vs Rift Valley Textiles [1998] eKLR where with a total disability of 60%, the court assessed damages for pain, suffering and loss of amenities at Ksh. 650,000/- on 26th January 1998.

2. Cosmas Mutiso Muema vs Kenya Road Transporters Ltd & Another HCCC No. 285 of 2016 where permanent incapacity was assessed at 100% and the court assessed damages for pain, suffering and loss of amenities at Ksh. 2,5000,000/- on 20th March 2014.

3. James Gathirwa Ngungi vs Multiple Hauliers E.A Ltd & Another [2015] eKLR where permanent incapacity was assessed at 20% and the court assessed damages for pain, suffering and loss of amenities at Ksh. 1,500,000/- on 13th February 2015.

4. Zachary Kariithi vs Jashon Otieno Ocholla [2016] eKLR where the court awarded Ksh. 1,500,000/- on 18th October 2016.

5. Kurawa Industries Ltd vs Dama Kiti & Another [2017] eKLR where permanent incapacity was assessed at 50% and the court assessed damages for pain, suffering and loss of amenities at Ksh. 2,000,000/- on 1st February 2017.

6. P. N. Mashru Ltd vs Omar Mwakuro Makenge [2018] eKLR the court assessed damages for pain, suffering and loss of amenities at Ksh. 1,200,000/- on 20th February 2018.

The appellant counsel argued that based on the cited case law, as a whole an award of Ksh. 3,500,000/- was manifestly and inordinately high and did not fall within the ambit of comparable injuries hence the court ought to vacate the lower court’s award and substitute it with an award of 1,500,000/- after taking into account passage of time since the decision was made and inflation.

Respondent’s Submissions

Mr. Wambua on his part submitted that there were no compelling grounds placed before this court by the appellant to exercise discretion and impeach the findings of the learned trial magistrate on quantum. The respondent’s counsel further indicated that all the medical documents had been admitted by the consent of the parties.

The respondent’s counsel argued that pursuant to a consent judgement on liability apportioned at 80%:20% in favor of the plaintiff/respondent assessment of quantum was vide written submissions. It was therefore not true, counsel argued, that the trial magistrate misdirected himself on fact and principle in making a decision on quantum of Ksh.3,500, 000/=.

The appellant’s counsel urged that the authorities’ relied on by the trial magistrate and especially the authority by the Plaintiff was spot on and urged that on consideration of the injuries of the deceased and the authorities cited, an award of Ksh. 3,500,000/- as general damages was reasonable and neither erroneous nor inordinately high. It was therefore prayed that the appeal be dismissed with costs.

Law, Analysis and Determination

Having scrutinized the facts, I feel the need to restate the legal principle on exercise of discretion by a superior court over jurisdiction of a subordinate court or inferior tribunal. This principle is best summed up by Sir Clement De Lestang, VPin Mbogo v Shah 1968 EA 93,where he held as follows;

“I think it is well settled that this court will not interfered with the exercise of its 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 which it should not have acted or it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion”

Regarding damages, the court in the case of Butt v Khan 1982 -1988 1 KAR pronounced itself as follows:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

In P. J. Dave Flowers Ltd v David Simiyu Wamalwa Civil Appeal No. 6 of 2017 [2018] eKLRI had occasion to express myself on the matter as below:

“… it is generally accepted from the laid down legal principles on assessment of quantum that personal injuries are difficult to assess with precision and accuracy so as to satisfy the claimant. The courts discretion has been left to individual judges to exercise judicious in respect of the circumstances of each specific case. The sum total of the evidence and the medical reports positive findings will form part of the consideration in the award of damages. The trial court will also be expected to apply the principles in various case law and authorities decided by the superior courts on the matter.”

In the present appeal, the deceased suffered injuries of the nature described below:

a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft)

b. Displaced fracture of the right femur thigh bone (mid shaft)

c. Skull fractures at

i. left eye socket – orbital floor

ii. left lamina propia

d. Fracture of the right clavicle shoulder blade bone.

e. Deep cut on the forehead extending to the left eye.

f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus)

g. Total loss of vision in the left eye

The injuries described above amounted to a permanent incapacity of 50% in the opinion of the Dr. Adede in the latest medical report dated 16th March 2016. The assertion that there is a variance in the level of incapacity alluded to in the medical reports is a misdirection as it is clear from a quick glance of the reports that each was made progressively after the other. The inference to be made is that in the expert opinion of the doctors, the deceased’s injuries on later examination grew worse necessitating a revision on the initial level of incapacity. The learned trial magistrate therefore did not err in basing the decision on quantum on a level of permanent disability of 50%.

In the English Court in the case of West (H) & Son Ltd v Stephard [1964] AC 345 it stated as follows:

“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated, by comparable awards when all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

Similarly, the Court in Ramadhan Kamora Dhadho v John Kariuki & another Civil Appeal No. 27 of 2015 [2017] eKLR opined thus:

“There is no amount of compensation which can restore or renew the physical frame of the victim arising out of injuries occasioned in an accident. Secondly, the assessment and award of damages should not be construed as punishment to the defendant who has been held liable for the claim. Thirdly, while exercising discretion courts should endeavour to be moderate underpinning the decision on the well settled principles to avoid disparity on similar cases and facts.”

Flowing from the foregoing and coupled with the various cited authorities and the arguments put forth by counsel, I am in agreement with Mr. Jengo for the appellant that the award of quantum by the trial magistrate fell on the higher side. I am therefore bound to fetter with the jurisdiction of the learned trial magistrate. On consideration of the passage of time since the lower court award was made and taking into account the vagaries of inflation, I find that in the circumstances, an award of Ksh. 2,500,000/- is appropriate.

In the end, the court makes the following orders:

a. The award of quantum of general damages of 3,500,000/- by the Senior Principal Magistrate’s Court at Mariakani by Hon. Ndungi delivered on 18th April 2018 in PMCC No. 396 of 2015 is hereby set aside.

b. General and Special damages are awarded as follows:

1. General damages - 2,500,000/-

2. Special damages - 20,567/-

­­­­­­­­­­­­Total Ksh. 2,520,567. 00

Less 20% Ksh. 704,113. 40

Net Award Ksh. 2,016,453. 60

As the appellant appeal has partially succeeded is entitled to half of the cost of this appeal.

It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALINDI THIS 3RD DAY OF JULY, 2019

...........................

R. NYAKUNDI

JUDGE