[2012] KEHC 4799 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

H.C.C.A CASE NO. 15 OF 2007

AMBROSE MICHENI KINYAMU.…………………………..……APPELLANT

VERSUS

GILBERT BUNDI ………………………………………….1ST REPSONDENT

BERNARD KITHINJI ……………………………………...2ND RESPONDENT

(Being an appeal from the judgement of Hon. Oyugi R.M in Tigania RMCC No. 32 of 2005 delivered on 16th January 2007)

JUDGMENT

The appellant was the plaintiff at the lower court. The appellant sued the two respondents for general damages for pain, suffering and loss of amenities, special damages of Kshs. 29,260/=, costs and interest arising out of road traffic accident which had occurred on 16th November 2004.

The appellant was a fare paying passenger abroad m/v registration No. KAR 953A driven by 1st respondent along Meru – Maua Road in cause of his duties and employment. The 2nd respondent was beneficial owner as well as registered owner of motor vehicle registration No. KAR 953A Toyota matatu and employer of the 1st respondent.

The appellant averred that the said motor vehicle registration No. KAR 953A was negligently driven by 1st respondent and that it veered off the road and rolled and as a result the plaintiff sustained serious injuries and incurred special damages.

The respondents filed amended defence dated 18th April 2006 denying liability and seeking that appellant’s suit be dismissed with costs. The appellant gave evidence and called 3 witnesses. The respondents gave no evidence and called no witness in support of their defence. The trial court held respondents liable at 100% and awarded the appellant general damages for pain, suffering and loss of amenities of Kshs. 150,000/= with specials of Kshs. 29,260/= all in all being Kshs. 179,260/= plus costs and interest. The appellant being dissatisfied with the said judgement preferred this appeal.

The appellant in his memorandum of appeal dated 29th January 2007 has set out major grounds of appeal as follows:-

1. The learned trial magistrate erred in fact and law by awarding a very low award which was not in consonance with the serious injuries sustained by the appellant.

2. The learned trial magistrate erred in law and fact by failing to consider the serious nature of injuries sustained by the appellant and make an award of damages in consonance with the same.

When the appeal came up before me on 17. 11. 2011 on application of counsel for appellant and respondent, the appeal was directed to proceed by way of filing written submissions by both counsel within 30 days from 17th November 2011. The matter was set down for mention on 7. 2.2012 for getting judgment date. On 7. 2.2012, when the matter came up to set date for judgement only counsel for the appellant had filed his submissions. The counsel for respondents did not appear nor had he filed submissions on behalf of the respondents.

That in the interest of justice and in view of the nature of the claim, I gave the respondents up to 16. 2.2012 to file and serve their submissions. I directed that the matter be mentioned on 23rd February 2012 for further directions. On 23rd February 2012 the learned counsel Mr. Kimathi for respondents requested the court to deal with the matter as he had no intention of filing any submissions. Consequently, I set the appeal for judgement on 22nd March 2012.

The appellant’s counsel in his written submissions dated 12th March 2011 lumped up and argued the two grounds of appeal as one ground of appeal as the two grounds revolved around one aspect of quantum of damages. The medical report on the appellant by Dr. Warui S.N of Huruma Medical centre produced as exhibit 2 by Dr. Stephen Warui who was PW4 showed that the appellant sustained fracture of the right leg on the ankle.

Appellant was admitted at Tigania hospital. Screws were then put in place to correct the fracture. He was discharged on 12. 12. 2004. He continued with surgical outpatient clinic till January 14. 1.2005. That plaster cast was removed on 6. 1.2005. When the doctor examined the appellant on 7. 2.2005 the appellant was complaining of swelling of the joint upon walking.

The doctor noted the appellant was in good condition. That locally the right ankle was clinically healed, movement of dorss and planta flexion were limited. Eversions and inversion at the front was also limited. The doctor’s opinion was that the loss of active movement at the joint and the history of swelling upon physical activity was indicative of development of post traumatic arthritis of the joint and considering his profession (as a teacher) will greatly hamper his teaching due to long period of standing. The prognosis the doctor observed to be fair.

The trail court in awarding damages stated that it had looked at the authority in support of the award of general damages and it was the considered view that a sum of Kshs. 150,000/= was sufficient amount in general damages which its awarded. The appellant’s counsel in his submission on quantum of damages referred court to the case of David Muendo vs. J.V Strabag HCC No. 1743 of 1994 (Nairobi) in which case the plaintiff who had suffered fracture of the right ankle at knee joint was awarded general damages of Kshs. 450,000/=

The respondent had referred the trail court to the following cases:-

1. Nairobi Civil Appeal Case No. 23 of 1997 Edward Maruiga vs. Nathaniel David Schulterin which case court awarded Kshs. 80,000/= to appellant who had suffered a fracture of left femur and burns on both hands. The appellate court upheld the award.

2. Nairobi HCCC No. 1073 of 1990 Helidah Onyango Rading vs. J.K Karmundein which case the plaintiff had suffered a fracture of lower leg and multiple soft awarded Kshs. 150,000/= being general damages for pain suffering and loss amenities.

The appellant’s counsel at the lower court submitted that the appellant should have been awarded general damages of Kshs. 450,000/= whereas the counsel for the respondent submitted that the appellant was entitled to Kshs. 60,000/=. It is not clear from the trail court’s judgement what authority it considered relevant in its assessment of damages as in its judgement it did not mention any of the authorities given to it. The court did not state what preference it found in favour of the undisclosed authority it purported he relied upon. From the court’s record, it is evidently clear that it did not in arriving at its judgement consider any of the authorities submitted to it. The appellants counsel is seeking enhancing of the award to Kshs. 450,000/= referred me to the case of Catherine Wanjiru Kingori & 3 other vs. Gibson Theuri Gichubi HCCC No. 320 of 1998. The 1st plaintiff in that case had suffered injury on left ankle, injuries on the leg and injuries on the chests. Court awarded 1st plaintiff a global sum of Kshs. 300,000/=. The 2nd plaintiff who had suffered injury to the back was awarded a global sum of Kshs. 100,000/=. The 3rd plaintiff who had suffered multiple soft tissue injuries, injury on left elbow joint, and injuries on both ankles was awarded a global sum of Kshs. 350,000/=.

The authority referred to me herein above has not set out specifically the full injuries by the plaintiffs. It appears that plaintiffs in the above mentioned case sustained soft tissue injuries. The appellant’s injuries in this appeal were severe compared to injuries suffered by the plaintiffs in the above quoted case. In the case of David Muendo vs. J.V Strabag HCC No. 1743 of 1994relied upon by the appellant at the trial court, the plaintiff in that case had suffered fracture of the right ankle at knee joint and that the injuries sustained by the appellant in this appeal are similar to injuries sustained by the plaintiff in the above – mentioned case. I find the authority relevant to the present appeal.

The principle to be observed by an appellate court in deciding whether it is justified in distributing the quantum of damages awarded by trial court have been settled out in decision of former Court of Appeal of Eastern African in case of Kemfro Africa Limited t/a “ Meru Express Services (1976)” & Another vs. Lubia & another (No2) (1987) KLR 30. Court of Appeal stated:-

“ 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 that 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. See Ilanga V Manyoka (1961) EA 705,709,713 (CA-T): Lukenya Ranching and Farming Co-operative Society Ltd – V- Kavoloto (1979) EA 414,418. 419 (CA-K). This court follows the same principles.”

In this case, the trial court in assessing the damages, it failed to consider the authorities referred to it. The court failed to consider the nature of injuries sustained by the appellant and relevant authorities submitted before it. It failed to note similar injuries attract similar awards. It felt out of account relevant authorities submitted to it and as such awarded the amount which is inordinately low that it must be a wholly erroneous estimate of the damage.

The sum of Kshs. 150,000/= awarded by trial court is very low award and not in consonance with the serious injuries sustained by the appellant. Similar injuries have always attracted higher award than the amount awarded by the trial court. In the circumstance ground No.1 and 2 of appeal are allowed.

In the circumstances, I make the following orders:-

1. That the appellant’s appeal be and is hereby allowed.

2. That the trail court’s judgement on quantum of damages for pain, suffering and loss of amenities of Kshs. 400,000/= with interest from the date of trail court’s judgment, that is to say 16. 1.2007.

3. That the appellant is awarded pleaded and proven special damages of Kshs. 29,260/= with interest.

4. The appellant is awarded costs of this appeal.

R.O.A

DATED, SIGNED AND DELIVERED AT MERU THIS 22ND DAY OF MARCH, 2012

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT IN PRESENCE OF:-

1. Mr. K. Muriuki for appellants

2. Mr. Kimathi for Respondent (absent)

J.A. MAKAU

JUDGE