[2022] KEHC 14139 (KLR)

Anwarali & Brothers Limited v Wahinya (Civil Appeal 146 of 2012 & 529 of 2016 (Consolidated)) [2022] KEHC 14139 (KLR) (Civ) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14139 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 146 of 2012 & 529 of 2016 (Consolidated)

CW Meoli, J

October 13, 2022

Between

Anwarali & Brothers Limited

Appellant

and

John Mwangi Wahinya

Respondent

As consolidated with

Civil Appeal 529 of 2016

Between

Anwarali & Brothers Limited

Appellant

and

John Mwangi Wahinya

Respondent

(Being an appeal from the ruling of Hon. A.N. Obura (Mrs.) (PM) delivered on 11th July, 2016 in Nairobi Milimani CMCC No. 5582 of 2008. )

Judgment

1. The events leading to the filing of Nairobi High Court Civil Appeal No 146 of 2012 are that John Mwangi Wahinya the Plaintiff in the lower court (hereafter the Respondent) instituted a suit by way of a plaint filed on September 5, 2008 against Anwarali & Brothers Limited, the Defendant in the lower court (hereafter the Appellant). The claim was for general damages for pain and suffering in respect of injuries allegedly sustained on December 9, 2005. The Respondent averred that he was lawfully travelling as a turn-boy in motor vehicle registration number xxxx Renault Trailer along Mombasa-Nairobi Road and at Bachuma Gate, the vehicle was involved in a collision with the Appellant’s motor vehicle xxxx Actros which was negligently driven, managed and or controlled by the driver, agent and or servant of the Appellant, in that the said motor vehicle registration number xxx Actros rammed into the motor vehicle in which the Respondent was travelling, occasioning him injuries, loss, and damage.

2. The Appellant filed a statement of defence denying the key averments in the plaint and any liability. Alternatively, the Appellant pleaded contributory negligence against the Respondent. On July 13, 2011 the parties recorded a consent apportioning liability in the ratio of 70:30 in favour of the Respondent against the Appellant. The parties also agreed to canvass the issue of quantum of damages by way of written submissions. In its judgment, the trial court awarded damages in the total sum of Kshs 2,493,200/- less 30% contribution thus resulting in a final award of Kshs 1,745,240/- plus costs and interest of the suit. The award was made up as follows:a.General damages: Shs 2,400,000/-;b.Special Damages: Shs 93,200/-;Less 30%: Shs 1,745,240/-

3. Aggrieved with the outcome, the Appellant preferred this appeal challenging the trial court’s finding on quantum, based on the following grounds:-'1. The learned magistrate erred in law and in fact in failing to consider the Defendant’s evidence by way of submissions on record.2. The learned magistrate erred in law and in fact in awarding the general damages of Kenya Shillings One Million Seven Hundred and Forty Five Two Hundred and Forty (Kshs 1,745,240/-) which is in excess of the injuries incurred by the Plaintiff.3. The learned magistrate erred in law and in fact in making an award of general damages which is too high in comparison with current awards for similar injuries as per the authorities in the defence submissions.' (Sic)

4. On April 5, 2012 the Appellant moved the lower court in Nairobi Milimani CMCC No 5582 of 2008 through a motion dated April 4, 2012 seeking to stay execution of the judgment and decree of the lower court pending determination of the appeal. The lower court allowed the motion on October 5, 2012 and ordered that the Appellant deposits security in the sum of Kshs 1,000,000/- (One Million) in an interest earning account in the name of both advocates within thirty (30) days of the ruling.

5. This did not go down well with the Respondent who moved the lower court by an application filed on January 12, 2016 seeking that the orders of October 5, 2012 be set aside or lifted and that the Respondent be allowed to proceed with the execution of the decree. The Respondent’s motion allowed on July 11, 2016. Aggrieved with the said ruling, the Appellant again filed Nairobi High Court Civil Appeal No 529 of 2016 challenging the trial court’s decision, based on the following grounds: -'1. The learned magistrate erred in law and in fact in failing to consider that the Appellant has at all times been ready to comply with court orders.2. The learned magistrate erred in law and in fact in failing to consider that the circumstances which caused the Appellant not to comply with the court order of depositing the decretal amount in a joint account were occasioned by non-compliance on the part of the Respondent’s counsel.3. The learned magistrate erred in law and in fact in failing to consider the Defendant’s evidence by way of submissions on record.4. The learned magistrate erred in law and in fact in going into merits of our appeal which was beyond his jurisdiction.' (sic)

6. On August 10, 2016 the Appellant moved this court in Nairobi High Court Civil Appeal No 529 of 2016 vide an application of even date seeking stay of execution of the decree in Nairobi Milimani CMCC No 5582 of 2008 pending hearing and determination of the appeal. The said motion was compromised on September 21, 2016 by way of a consent order before Mbogholi J (as he then was) to the effect inter alia that a sum of Kshs 1,000,000/- (One Million) be paid to the Respondent within fourteen (14) days of the said consent. Subsequently on November 16, 2016 when respective counsels appeared before Mbogholi J (as he then was) counsel for the Appellant confirmed to the court that the consent order issued of September 21, 2016 had been complied with. Consequently, Nairobi High Court Civil Appeal No 529 of 2016, has been overtaken by events, on account of the Appellant’s compliance with the consent order of Mbogholi J (as he then was).

7. The appeal in Nairobi High Court Civil Appeal No 146 of 2012 was canvassed by way of written submissions. Counsel for the Appellant submitted that the damages awarded were not commensurate to the injuries suffered by the Respondent. Relying on several decisions including Tayib v Kinanu (1982-88) 1 KAR 90as cited in Cecilia W Mwangi & Another v Ruth Mwangi [1977] eKLR and Kigaragari v Aya (1982-88) 1 KAR 768it was argued that trial court ought to have taken into consideration then current authorities relied on by the Appellant which related to injuries comparable to those sustained by the Respondent. It was further contended that in assessing general damages, lower courts must ascertain the conventional awards on general damages that other courts, and especially appellate courts in respect of a particular injury. In conclusion this court was urged to disturb the award of general damages herein as it was so manifestly high or inordinately excessive that the trial court must have proceeded on wrong principles and or misapprehended the law.

8. The Respondent defended the trial court’s award. As a preliminary issue counsel contended that the record of appeal was incomplete and comprised mostly of applications by the Appellant in the lower court and that the appeal ought to be dismissed, therefore. Addressing the substantive issue raised by the Appellant in his appeal, counsel argued that the Respondent had sustained his injuries in 2008 and in view of inflation, this court ought to exercise its inherent jurisdiction to enhance the award of the lower court to Kshs 4,500,000/-. That the award by the lower court though fair did not address the Respondent’s need for further medical. Counsel cited the decisions in Peace Kemuma Nyang’era v Michael Thuo & another [2014] eKLR, Rebecca Mumbua Musembi v Lucy K Kinyua [2014] eKLR and Duncan Kimathi Karagania v Ngugi David & 3 others [2016] eKLR to support his submissions. He asserted that the appeal ought to be dismissed with costs.

9. The court has reviewed the original record of proceedings, the record of appeal and the submissions made by the respective parties in respect of the appeal. The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co Limited and Others (1968) EA 123, Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) IKAR 278 stated that:'A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have alter on wrong principles in reaching the findings he did'

10. The bone of contention on this appeal is the quantum of damages awarded by the subordinate court, viewed by the Appellant to be so inordinately high as to represent an erroneous award. In considering the appeal, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v AM Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:'The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either 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 damages.'See ;- Butt v Khan (1981)KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No 284 of 2001; (2004) e KLR .

11. The sentiments of the English Court in Lim Poh Choo v Health Authority (1978)1 ALL ER 332 were echoed by Potter JA in Tayab v Kinany (1983) KLR 14, quoting dicta by Lord Morris Borth-y-Gest in West (H) v Sheperd (1964) AC 326, at page 345 as follows:'But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the 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 and done, it still must be that amounts which are awarded are to a reasonable extent conventional.'

12. In his judgment, the trial magistrate observed that:'I have considered these injures and submissions on quantum from both sides as well as relevant case law.These injuries compare well with those in the case of James Katua Peter v Simon Mutua Muasya HCCC No 135 of 2001 where for a very similar injuries Kshs 2,000,000 general damages were awarded on February 8, 2008. Noting that it is now 4 years down the line and with the attendant inflation which has taken an accelerated upward duration in the recent past I am persuaded that Kshs 2,400,000 in general damages for pain and suffering would be adequate compensation to the Plaintiff. Special damages proved as per receipts tendered as for Kshs 93,200/=There shall be judgment for the Plaintiff against the defendant for Kshs 2,492,200 less 30% contribution having a judgment for Kshs 1,745,240 costs and interest' (Sic)

13. In his plaint dated September 5, 2008, the Respondent pleaded several injuries including injury on the face and head leading to loss of consciousness for four days, comminuted multiple fractures of right tibia and fibula, head and lower limbs injuries, soft tissue injuries, bruise all over the body, multiple fractures of right femur, sutured wounds of the right ankle, sutured wounds of the right upper eyelid and fracture of the left wrist.

14. The Respondent’s medical report by Dr GO Afulo of Kenyatta National Hospital and dated November 7, 2006 and related summaries confirmed the injuries sustained to include, comminuted fracture right femur, traverse fracture of the right tibia and displaced colles fracture of the left wrist. The medical report went on to state that:'[F]ollowing the injury and subsequent management the patient still has implants in situ in the right femur and tibia. The process of the bone healing is in progress. He walks with a partial weight bearing. The degree of permanent incapacity cannot be quantified as at now since he is expected to go back to theatre for removal of implants. He is yet to resume his duties which he is unlikely to perform effectively due to the nature of the injuries he sustained. He therefore has a permanent incapacity of 10% (ten percent) but this will require review after removal of implants'.

15. The above injuries were also confirmed by Dr Modi, in the second medical report dated September 22, 2009 and prepared on behalf of the Appellant and tendered in court. Dr Modi also referred to multiple scars on the face, scalp and right ankle, consistent with the summary dated July 19, 2006 by Kenyatta National Hospital referring the Respondent to the police pathologist for examination. The doctor assessed 10% permanent disability.

16. Dr Modi who saw the Respondent on September 16, 2009, almost three years after Dr Afulo stated in his conclusion that:'Now all the fractures have healed. Right lower limb is short by 2. 0cm. Right knee and right ankle mobility is reduced. The scars were noted as above. Left wrist is slightly deformed. His complaints of pain over right leg is genuine and due to fracture (to) tibia. His complaints over left wrist and difficulty in lifting heavy weight is due to fracture (of) left wrist which has healed with slight deformity'.

17. It is a truism that it is next to impossible to find authorities whose exact injuries and sequela that match this or any other case. The Respondent before the trial court had urged an award of general damages in the sum of Kshs 3,000,000/- while relying on the unreported decisions in Nakuru HCC No 185 of 1999 – Bernard O Ochieng v John Dega & Elizabeth Adhiambo, Benson Mtsonga (minor) suing through Zuma Mangale v Said Bekar Said & Another and James Katua Peter v Simon Mutua Muasya [2008] eKLR. Having looked at the latter two authorities available on the original record, (the Record of Appeal excluded the Respondent’s submissions in the lower Court), it seems to me that the injuries in the case of Benson Mtsonga were quite severe and included the amputation of the lower limbs. The trial court cannot be faulted for ignoring it and chosing to rely on the case of James Katua, although it gave no reasons, because in my estimation the injuries therein approximated well to those of the Respondent herein.

18. The trial Court made no reference to latest medical report by Dr Modi at all or concerning the sequela in this case as captured in the said report to include, deformity of the left wrist, reduced mobility of right knee, shortening of the right leg by 2. 0cm enduring pain in the right leg and left wrist and difficulty in lifting heavy weight as well as multiple scars. Equally Dr Modi confirmed that the Respondent had suffered 10% permanent incapacity. These were significant considerations that ought to have influenced the assessment of general damages. Unfortunately, it is difficult to tell from the rather brief judgment whether these considerations carried any weight.

19. On the part of the Appellant the trial court was urged to award of general damages in the sum of Kshs 700,000/- while relying on the decisions in Ahmed Mohammed vs Abdulhafidh Mohamed Banragah [2004] eKLR and Stephen Wanderi Kamau & Another v Gladys Wanjiku Kungu [2006] eKLR. Reviewing these decisions, this court notes that both were a little dated and only the second decision could compare well with the instant one. Even so, it appears that the cumulative sequela attendant to the present Respondent’s injuries were more severe.

20. Thus, upon a review of all the material presented before the trial court and this court, the Appellant’s complaints on this appeal appear unjustified; the awards were not excessive in the circumstances of this case. Besides, it is ten years since the appeal was lodged and close to seventeen years since the Respondent sustained his injuries. Thus, even if this court were to agree with the Appellant concerning the application of its authorities in the assessment of damages, the awards therein would have to be adjusted upwards for inflation, and certainly the sums urged by the Appellant are way too low.

21. Therefore, considering all the relevant evidence on the Respondent’s injuries, pain and suffering and sequela, the trial court’s award on general damages was reasonable. It was not open to the Respondent, having failed to file a cross-appeal, to urge as he did in his submissions on this appeal for the review of the award of general damages upwards to Kshs 4,500,000/-.

22. In Sophia Achieng Tete (supra), the Court of Appeal asserted the discretionary nature of general damages awards and observed that:'An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance'.

23. In the result, the court finds no merit in the appeal, and it is hereby dismissed with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13TH DAY OF OCTOBER, 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Mr. NdumburaFor the Respondent: Mr. KahuthuC/A: Carol