[2022] KEHC 14986 (KLR)

Board of Trustees of the Catholic Church of Kenya Diocese of Marsabit v Diba (Civil Appeal E004 of 2022) [2022] KEHC 14986 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14986 (KLR)

Republic of Kenya

In the High Court at Marsabit

Civil Appeal E004 of 2022

JN Njagi, J

November 3, 2022

Between

Board of Trustees of the Catholic Church of Kenya Diocese of Marsabit

Appellant

and

Kadipo Guyo Diba

Respondent

(Being an appeal from the judgment and decree of Hon.S. K. Arome, SRM, in Marsabit CM`s Court Civil Case No.E003 of 2021 delivered on 22/2/2022)

Judgment

1. The respondent herein sued the appellant at the lower court seeking general and special damages after the respondent was injured in a road traffic accident involving his motor cycle and a motor vehicle belonging to the appellant. Parties in the case recorded consent on liability in the ratio of 70:30 in favour of the respondent. The trial magistrate thereupon assessed general damages for pain and suffering at Ksh.3. 5 million and future medical expenses at Ksh.300,000/=. The appellant was aggrieved by the assessment on quantum and filed the instant appeal.

2. The grounds of appeal are in summary that the award in general damages was manifestly excessive; was not commensurate with the nature of injuries sustained by the respondent and that the trial court failed to consider all the authorities that were cited by the appellant. The appellant further contended that the trial magistrate erred in law and in fact in failing to deduct the 30% contributory negligence from the award on special damages.

Submissions 3. The appeal was canvassed by way of written submissions. The advocates for the appellant, J.G. Gitonga & Co. Advocates, submitted that the general damages of Ksh.3. 5 million awarded by the trial magistrate was grossly excessive. That the award was not commensurate with the injuries sustained by the respondent which injuries were not very severe as to warrant that kind of award.

4. The appellant further submitted that the trial magistrate erred in law and in fact in failing to consider the principle that comparable injuries should as far as possible be compensated by comparable awards. The appellant relied on the authorities they had cited at the lower court where awards ranging from Ksh.120,000/= to Ksh.200,000/= were made for fractures and some other injuries. The decisions in the cited cases were made between the years 2001 and 2004. The appellant had consequently submitted at the lower court that an award of Ksh.400,000/= was adequate compensation for the injuries sustained.

5. In this appeal, the appellants further relied on the case of Benuel Bosire v Lydia Kemunto Mokora, Kisii HCCA No.126 of 2018 where the court in the year 2019 awarded Ksh.700,000/= for compound fracture of the femur which was uniting with malunion and there was extreme scaring which were disfiguring on both limbs. Permanent disability was assessed at 40%.

6. They also relied on the case of Mary Wambui Muigai v Anthony Githinji Kihuga, Kiambu HCCA No.36 of 2019 where the court in the year 2020 awarded Ksh.700,000/= for cut wound above right eye, cut wound on right elbow, segmented left femur fracture and right femur fracture.

7. The advocates for the respondent, M/S Khan & Associates, on the other hand submitted that the respondent suffered very severe injuries that left him incapacitated and cannot run his daily duties as a lorry driver. That his incapacity was assessed at 40%. That the trial court was able to see the respondent and observed that he had to be carried and could not walk by himself as his spleen could not sustain him standing. Therefore, that the trial magistrate did not err in awarding the amount of general damages.

8. The respondent in this appeal relied on the case Gabriel Mwashuma v Mohamed Sajjad & Another [2015] eKLR where the plaintiff was awarded Ksh.3 million for segmental left femur fracture, compound fractur left patella and femoral condyle, comminuted left distal tibia/fibula (pilon) fracture, fracture right fibula and soft tissue injuries right knee. He was operated on several occasions where the fractures were fixed and surgical debridements performed. He also developed features of fat embolism syndrome and was managed in intensive care unit. The left femur was fixed by the trigen nail (Smith & Nephew) and the pilon fracture was stabilized by an external fixator (synthes). He stabilized and repatriated by air ambulance for further management in Germany.

9. The respondent also relied on the case of Alex Wachira Njagua v Gathuthi Tea Factory & Another (2010) eKLR where the court awarded Ksh. 3 Million where the Plaintiff suffered blunt injuries of the head with confusion, fracture of the left tibia, fracture of the right fibula, cut wound on the forehead, bruised elbow and bruised knee.

Analysis and determination – 10. The principles upon which an appellate court may interfere with an award made by a lower court are settled. These are as was stated by the Court of Appeal in case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia and olive Lubia (1985) 1 KAR 727, where the it observed:“....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 court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.....”

11. In awarding damages, the court has to bear in mind the principle that comparable injuries should as far as possible be compensated by comparable awards. It also has to ensure that it awards what it regards to be reasonable. These principles were espoused in West (HI) and Sons Ltd v Shepherd (1964) AC 326 which was adopted in the case of Cecilia Mwangi & Another v Ruth MwangiCA 251 /1996, and in the Nancy Oseko case where the Judge adopted what Lord Morris said that:“But money cannot renew a physical frame that has been battered and shuttered. 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.”

12. The material accident in the instant case took place on the 24/7/2020. The respondent was examined by Dr. Daki Halake of Marsabit County Referral Hospital on the December 31, 2020 when the doctor prepared his medical report. According to the report the respondent had sustained –i.Bilateral shaft femur fracturesii.Serious abdominal injury with splenic rupture. He had his spleen removed surgically.iii.Massive blood loss.iv.Deep cut wound at the right lower limb.v.Left chest injury that caused fracture to the ribvi.Gross contusion to the shouldervii.injury to the right eye

13. The patient was referred to St. Orsola Catholic Hospital where the following management was done - open reduction and internal fixation, splenectomy, cleaning and stitching of wound and blood transfusion.

14. The report notes that at the time of examination the respondent was unable to stand or walk without support and thus cannot undertake his duties as a lorry driver. In the opinion of the doctor the respondent had sustained severe injuries that were life threatening. That the fractures had affected his personal hygiene such as visiting the toilet and requires additional support. He cannot undertake his duties as a lorry driver as he cannot walk without support.

15. I have considered the grounds of appeal, the grounds in opposition thereto and the submissions by the respective advocates for the parties. I have perused the authorities cited by the advocates for the appellant. I find the injuries sustained therein to have involved fractures which had healed without serious complications. The injuries therein are not comparable to those sustained by the respondent in this case.

16. On the other hand, I find the authorities cited by the respondent to have been far more relevant. In addition to the authorities cited by the respondent, I have considered the awards in the following cases. In the case of Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, the respondent suffered complete paralysis of the limbs from the waist downwards with the result that she had no voluntary movement of any part of the lower limbs; would never be able to walk or use her lower limbs; had injury to the spinal cord that had disturbed the bladder and bowel function so that she would have to wear diapers which needed to be changed twice daily. Permanent disability in the case was given as 100%. The Court of Appeal reduced the award on general damages from Ksh.4 million to Ksh.3. 5 million.

17. In the case of Eva Mueni Wambugu v Simon Peter Githae & another [2012]eKLR, the plaintiff suffered fractured ribs on the left chest, 3 ribs with haemopneumothorax, fractured tarsal bones right foot, compressed fracture dislocation of L1 and L2, paralysis of both lower limbs, loss of sensation from the waistline downwards, loss of urine and stool control and the prospects of having a family in future was diminished. Both doctors for the plaintiff and the defendant opined that the plaintiff suffered 100% permanent disability. Asike-Makhandia J. (as he then was) awarded Ksh.3. 5 million in general damages.

18. In William Wagura Maigua vs. Elbur Flora Limited [2012] eKLR, the plaintiff, a carpenter, suffered paralysis of the limbs as a result of spinal injuries and was unable to use his limbs and had to depend on other people for mobility. He was awarded Ksh.3 million in general damages.

19. In Joseph Maganga Kasha v Kenya Power & Lighting Company Ltd [2012] eKLR, the plaintiff sustained very severe and debilitating multiple bone and spinal cord injuries leading to complete paralysis of both lower limbs. These were burst displaced fracture of thoracic spine, wedge compression fracture of lumbar spin and also on the left transverse process, spinal cord and exit nerve compression leading to total paralysis below L1, bone fragments within the spinal canal, urine and stool incontinence. He also sustained erectile dysfunction, fracture of the head of the right and left T12 ribs. Mwongo J. awarded Ksh.3 million in general damages.

20. In Nancy Oseko vs. Board of Governors Masai Girls High School [2011] eKLR, the plaintiff, a student aged 19 years old sustained Chest injury with accumulation of blood in the chest; head compression fracture of the thoracic spine no 12; loss of sensation from the level T-12 downwards; loss of motor function from same level downwards; loss of control of urine and stool. She testified that she underwent an operation of the spine where metals were fixed to stabilize the spine, an open chest operation to remove blood; underwent physiotherapy, occupational therapy; ambulating her on a wheelchair. The Doctor opined that she had permanently lost ability to walk and was confined to a wheel chair for life and a paraplegic and needed a lapel all her life; inability to control stool; inability to control urine, she was fitted with a catheter rundown, and urine bag, uses diapers or napkins. She also lost the ability to engage in sexual life in future though she could conceive and deliver by caesarean section. She was psychologically affected and there was a possibility that she might never engage in any gainful employment. She was predisposed to recurrent chest and urinary tract infections and infections due to the nature of her injuries and required frequent check-ups. She also required a special bed that could be turned by hydraulic or electronic system and a special mattress and regular follow up as an outpatient for life on a three-monthly basis. The doctor’s opinion was that she suffered 100% disability. She was awarded Ksh.2. 5 million in general damages.

21. I consider the injuries sustained by the claimants in the cases I have cited above to have been more severe than those suffered by the respondent in the instant case. The claimants in the cited cases had complete paralysis of the lower limbs and the awards were 3 million and 3. 5 million. The respondent herein had 40% incapacity as compared to the 100% in the said cases. I am therefore of the considered view that the award of 3. 5 million in the instant case was excessive.

22. In Nicodemus Osoro & another v Jane Gatwiri [2019] eKLR the respondent sustained multiple bruises with loss of two premolar teeth on the left side lower jaw; bilateral fractures - segmental fracture involving right femur (distal and proximal) and fractured midshaft left femur; and fractured left lateral malleolus with multiple bruises on the anterior aspect of the leg. She was admitted in hospital for a period of 65 days. The medical report stated that she was surgically operated on both legs and fractures reduced by screws. At the time of examination, she was on fair general condition, complained of severe pain and wouldn’t walk without assistance. She dragged her right leg as she moved. The doctor concluded that the respondent sustained severe injuries to the lower limbs with permanent incapacity and as a result could not do her daily activities; was on orthopaedic follow up as well as physiotherapy and long-term pain control. Gikonyo J. upheld an award of Ksh.2 million in general damages.

23. The difficulty encountered by courts when assessing general damages for injuries as the court tries to compare injuries between one case and another is that no two cases are the same. In this case, the injuries suffered by the respondent cannot be underrated. The respondent lost his spleen. An important function of the spleen in the human body is that it makes antibodies that helps the body to fight infection. The immunity of the respondent in fighting infection has therefore been compromised by the loss of the spleen. In addition, he cannot continue with his work as a truck driver due to the incapacitation on the lower limbs.

24. In the case of Major T.M. Malombe vs D.M. Mbugua & Another [1999] eKLR, the plaintiff had sustained loss of the spleen, loss of kidney, permanent scaring of pleura and lower zone right lung and skin loss on face and limb. The spleen was removed giving 100% disability. Both kidneys had failed to function and the plaintiff had to undergo a kidney transplant with the result that he would have to be dependant on anti-rejection of kidney drugs all his life. The effect of loss of the spleen was that the plaintiff would be prone to infection and repeated infections. Ang`awa J (as she then was) awarded Ksh.1,500,000/= in general damages. It has however to be noted that the award in that case was made about 23 years ago.

25. In the instant case, I am of the considered view that an award of Ksh.2,500,000/= is adequate compensation for the injuries sustained by the respondent.

26. The appellant argued that the 30% contributory negligence ought to have been deducted from the award on special damages. In my understanding there is no rule that requires special damages to be subjected to contributory negligence. In Timsales Limited v Harun Thuo Ndungu [2010]eKLR and Hashim Mohamed Said & Another v Lawrence Kibor Tuwei [2018] eKLR it was held that special damages are not subject to deduction by way of contributory negligence. See also the decision of Kimaru J. (as he then was) in Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR. In the premises the learned magistrate in this case was correct in not subjecting the award on special damages to contributory negligence.

27. The upshot is that the appeal herein succeeds to the extent that the award on general damages by the trial court is set aside and substituted with an award of Ksh.2,500,000/=, subject to 30% liability of the respondent.

28. Costs are awardable upon the discretion of the court after due consideration of the circumstances of each case. As the appeal herein has partially succeeded, I direct each party to bear its own costs to the appeal.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 3RD DAY OF NOVEMBER 2022. J. N. NJAGIJUDGEIn the presence of:*Mr. Gitonga for AppellantMr. Amule for RespondentCourt Assistant - Peter30 days R/A.