[2022] KEHC 9854 (KLR)

Atunga v Mogambi (Civil Appeal E009 of 2021) [2022] KEHC 9854 (KLR) (3 June 2022) (Judgment)

Neutral citation: [2022] KEHC 9854 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal E009 of 2021

REA Ougo, J

June 3, 2022

Between

George Raini Atunga

Appellant

and

Dominic Asiago Mogambi

Respondent

(Appeal from the Judgment and Decree of Hon. P.K Mutai (SRM) dated 18th November 2020, in the original Kisii CMCC NO. 978 of 2019)

Judgment

1. According to the respondent, who was the plaintiff before the lower court, the respondent on 11th November 2019 was travelling in motor vehicle KBY 947H along Kisii-Nyamira road when at Getare area, the appellant’s driver who was driving his vehicle KCQ 205U permitted it to collide with motor vehicle KBY 947H and as a result the respondent sustained injuries. According to paragraph 5 of the plaint the respondent sustained the following injuries:i.Bruises on the frontal part of the headii.Cut wound on the parietal regioniii.Chest traumaiv.Dislocation of the right wristv.Bruises with multiple cut wounds on the upper limbs.vi.Fracture of the right tibia/fibula bones.vii.Dislocation of the right hip jointviii.Multiple cut wounds on the lower limbs.

2. On 21st October 2020 the parties consented on the issue of liability in the ratio of 70:30 in favor of the respondent. The trial magistrate after considering the evidence and submissions of the parties awarded the respondent general damages of Kshs 550,000/-, special damages of Kshs 164,100, costs and interest.

3. It is this award by the subordinate court that caused the filing of the Memorandum of Appeal dated 3rd February 2021 by the appellant. The appeal before me is solely against the quantum of damages awarded by the trial magistrate. The appeal is premised on the following grounds:1. That the award of General damages awarded to the respondent was manifestly and inordinately in the circumstance.2. That the Learned trial magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.3. The Learned Trial Magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.4. The learned trial Magistrate erred in law and fact when the same relied on extraneous issues as a basis of his determination on liability.

4. On 29th November 2021 this court gave directions that the appeal be canvassed by way of written submissions and both parties have complied with the court’s directions. The firm of M/s O.M Otieno filed its submissions on 10th February 2022 while the respondent through their advocate T.O Nyangosi & Co. Advocates filed their submissions on 17th February 2022.

5. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus: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 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.

6. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR where the Court of Appeal held:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

7. One of the issues contested were the injuries sustained by the respondent. The appellant submitted that the medical report prepared by Dr. Ombati Timothy Mokua restated the injuries pleaded albeit apparently lifted from other treatment documents. The doctor conducted the medical examination one month after the accident and noted cut wounds and scars and indicated that the respondent complained of chest pains. The second medical opinion by Dr. Kumenda stated that the respondent had healed without any permanent disability. Both medical reports noted that the respondent suffered a fracture of the tibia/fibula bone and soft tissue injuries.

8. The respondent on the other hand argued that the injuries in the plaint correspond with the injuries noted in the discharge summary from Kisii Teaching and Referral Hospital. The injuries were confirmed by the P3 report and the medical report by Dr. Ombati Timothy Mokua. The respondent advanced that the medial report by Dr. J.A.S Kumenda produced as DEX1 during trial also confirmed that the respondent indeed suffered the injuries as pleaded.

9. The most crucial document presented by the respondent was the initial treatment notes from Kisii Teaching and Referral Hospital. The respondent’s provisional diagnosis on admission was that he had sustained a fracture of the right tibia and fibula; he suffered dislocation in his right wrist and hip joint. This diagnosis was arrived at after conducting an x-ray on the pelvis, right tibia/fibula and right hand. Amongst the procedures conducted to manage the injuries were the application of a Plaster of Paris (pop) to the fractured leg, reduction was also performed because the respondent had suffered dislocation of the right wrist and hip joint. The medical report and the P3 form were prepared based on the medical opinion of Dr. Ombati. According to Dr. Ombati, the respondent had sustained a multiple injuries including a fracture of the tibia that would need to be aligned by ORIF and therefore the respondent would require another surgery to remove he metal implants at a cost of Kshs 200,000/-. He assessed permanent disability at 15%.

10. The second medical report by Dr. Kumenda arrived at the conclusion that the respondent suffered injuries with a fracture of the right tibia. According to Dr. Kumenda, the respondent healed well without any permanent disability. Curiously, despite Dr. Kumenda having considered the initial treatment notes from Kisii Teaching and Referral Hospital, he failed to note that the respondent had a dislocated right wrist and hip joint.

11. The appellant in his submissions faulted the trial magistrate’s award because it failed to take into cognizance the trends in the cited cases by the appellant. He argues that an award of Kshs. 550,000/- was inordinately high.

12. The appellant in its submissions relied on two cases and proposed that the court should consider an award of Kshs 300,000/-. The appellant placed reliance on the case of Naom Momanyi v G4s Security Services Kenya Limited & another [2018] eKLR. In the said case the court found that the appellant therein had sustained soft tissue injuries and a fracture that had healed although causing deformity to the right leg. The court awarded the appellant Kshs 300,000/-. However, it is clear that the injuries by the respondent are more severe due to the fact that the respondent herein in addition to sustaining soft tissue injuries and a fracture of the right tibia and fibula suffered two dislocations.

13. The other case cited by the appellant is the case ofGogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] eKLR. The court in that case awarded the plaintiff Kshs 350,000/- upon its finding that the plaintiff had sustained a fracture of the radius and ulna and a dislocation of the elbow joint.

14. The respondent on the other hand submitted that the award by the trial court was not inordinately excessive so as to warrant the court to overturn it. He cited the case of Clement Gitau v GKK [2016] eKLR where the court awarded Kshs 600,000/- to a plaintiff that suffereda fracture of the left tibia and minor bruises. In Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] eKLR where the court upheld an award Kshs 700,000/- where it had been established that the plaintiff sustained a mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula. They also cited the case of Veronicah Mkanjala Myapara v Patrick Nyasinga Amenya [2021] eKLR where the plaintiff sustained soft tissue injuries and a single dislocation and was awarded Kshs. 350,000/=.

15. In this case I find that the respondent established that he sustained soft tissue injuries, fracture of the right tibia and fibula as well as dislocation of the right wrist and hip joint. The trial court in arriving at its decision considered the authority cited by both parties noting that awards for similar injuries range between Kshs 350,000/- to Kshs 800,000/-. Therefore, the argument by the appellant that the trial magistrate did not consider his submissions/authorities is false.

16. The two authorities by the appellant are for plaintiffs that sustained less serious injuries. In the case ofHerbart Otara Marube v Dankan Ochora [2022] eKLR this curt awarded Kshs 450,000/- for a plaintiff that sustained fracture of right tibia, right ankle dislocation, chest contusion, laceration and cut wounds on the right lower limb. In light of the fact that the respondent sustained dislocation of the right hip joint and right wrist, soft tissue injuries and a fracture of the right tibia and fibula, I do not find reasons to interfere with the trial court’s finding on damages.

17. The upshotof the foregoing is that I find the appeal lacking merit and is hereby dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT KISII THIS 3RD DAY OF JUNE 2022. R. E. OUGOJUDGEIn the presence of:Miss Otieno For the AppellantMr. Ogega h/b Mr. Omotto For the RespondentMs. Aphline C/A