[2019] KEHC 6247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT EMBU

CIVIL APPEAL NO.60 OF 2015

BONIFACE NZIOKA MALUNDU………………………… APPELLANT

VERSUS

JANET MUKAMI MBOGO………………………………RESPONDENT

(An Appeal from the judgment of Embu Chief Magistrate in CMCC No. 288 of 2013 delivered on 7/12/2015)

J U D G M E N T

A.Introduction

1. The appellant was dissatisfied with the judgment of Embu Chief Magistrate in CMCC No. 288 of 2013 and lodged this appeal.

2. The respondent in his suit for compensation arising from injuries sustained in a road traffic accident was awarded special and general damages amounting to where the respondent was found 10% liable. The court awarded general damages totalling to Kshs. 3,424,970/= plus costs and interests based on a finding of full liability against the appellant.

3. The grounds of appeal were to the effect that the magistrate erred in finding the appellant fully liable; that he awarded damages for loss of earnings that were not pleaded and that the damages awarded were excessive.

4. The respondents herein filed the suit for compensation in terms of both special and general damages alleging that the respondent in the appellant’s motor vehicle which was involved in a fatal accident. The vehicle lost control and hit the respondent on the leg which injury led to an amputation of the right lower limb.

5. The case was determined in favour of the respondent against the appellant at 100% on liability and damages were awarded at Kshs. 1,600,000/= for pain, suffering and loss of amenities, Kshs. 1,800,000/= for loss of capacity to earn and special damages of Kshs. 24,970/= leading to a cumulative award of Kshs. 3,424,970/= as well as costs of the suit.

6. The parties disposed of the appeal by way of written submissions filed by the advocates on record.

B. Appellant’s Submissions

7. It is the appellant’s submission that the award for loss of earning capacity of Kshs. 1,800,000 was made by the trial court without having been pleaded contrary to the well-established legal doctrine that parties are bound by their pleadings and anything at variance to this must be disregarded as held in the cases of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and that of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR.

8. The appellant further submitted that the respondent had failed to prove that the appellant was negligent and was fully to blame for the accident yet the court found him fully liable.

C. Respondent’s Case

9. It is the respondent’s submission that the respondent could not have contributed to the accident occurring as she was standing on the right side of the road when the appellants motor vehicle veered off the road thus knocking her down.

10. It was further submitted that loss of earnings need not be pleaded as it was part of general damages. She relied on the Court of Appeal case of Florence Njoki Mwangi v Peter Chege Mbitiru [2014] eKLR.

11. The respondent further argued that the damages awarded to her were reasonable and within the latest trends in conventional awards given that the deceased sustained serious injuries.

D. Analysis & Determination

12. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. It was held in the case of Selle v Associated Motor Boat Co. & others [1968] E.A. 123 where it was stated as follows: -

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

13. It is the respondent’s case that on the material date she was standing on the side of the road along the Embu-Kivaa road with a friend when suddenly a motor vehicle no. KBR 103 W belonging to the appellant coming from the Embu direction and knocked her down. The vehicle was being driven at a high speed and was overtaking another vehicle when it lost control and veered off the road towards her. She further testified that despite running off, the vehicle still hit her on the right leg causing her to lose consciousness. As a result of the accident she underwent an amputation on the right lower leg.

14. The issues for determination in this appeal are as follows: -

a) Whether the magistrate erred in finding the appellant 100% liable.

b) Whether the damages for loss of earnings were wrongly awarded.

c) Whether the damages awarded were excessive.

15. On the issue of liability, it is the appellant’s case that the respondent should be held to have contributed to the accident. It is noted from the evidence that the defendant did not adduce any evidence to controvert that of the respondent that the vehicle veered off the road and hit her as she stood on the side of the road. He court found that the accident occurred as a result of the appellant driving at a high speed and attempting to overtake another vehicle. It is noteworthy that the appellant was arrested, charged and convicted of the offence of careless driving. There is no evidence that the appellant appealed against the conviction of the traffic offence.

16. The appellant blamed the respondent for standing on the side of the road without minding her own safety. He did not explain how that contributed to the accident. The fact remains that the respondent was not on the road when he accident occurred and that it is the appellant who veered off the road and hit the respondent as he tried to run off from where she was standing.

17. I find that the respondent proved negligence on the part of the appellant and that the finding of the magistrate on 100% liability was supported by cogent evidence. I therefore find no reason to disturb the finding on liability.

18. The appellant based his appeal on quantum for the award of Kshs. 1,600,000/= for pain and suffering and loss of amenities and general damages of Kshs. 1,800,000/= for loss of capacity to earn. He submitted that the award was made by the trial court without having been pleaded by the respondent which was an error in principle. Conversely, the respondent submitted that the loss of earnings need not be pleaded as it was part of general damages.

19. The principle to be considered by the appellate court were stated in KEMFRO AFRICA LTD t/a MERU EXPRESS SERVICES v AM LUBIA & ANOTHER [1987] KLR 27 where Kneller J.A held: -

“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... 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 wholly erroneous estimate of damages.”

20. As for loss of earning capability, it was held in the case of BUTLER v BUTLER [1984]KLR 225 AT PAGE 237 by Kneller J that: -

“It is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained this way

….... compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages” LORD DENNING MR in FAIRLEY VS JOHN THOMPSON (design and contracting Division )Ltd [1937] 2Lloyd's Rep 42 Court of Appeal

Chesoni Ag. JA. had this to say “what a victim whose earning capacity is diminished through an accident loses is an interest which if not sellable in the labour market, has an assessable value, it is therefore, an economic loss as the “lost years” for which the wrong doer should fairly compensate the victim” page 235

Nyarangi Ag JA (as he then was) stated 'I would liken loss of earning capacity to the doctrine of 'lost years' whereby a victim whose capacity is lessened by the negligence of the defendant is entitled to be compensated for lost years.”

21. In the case of Florence Njoki Mwangithe court expressed itself in a similar way as in the foregoing cases. Based on the said decisions, I reach a conclusion that the appellant has failed to show that the trial court was wrong in awarding damages for loss of earnings.

22. As for quantum of damages, it is an established principle that courts ought to assess damages guided by conventional awards for purpose of consistency. The factor of inflation must also be considered in assessing damages.

23. The respondent sustained a compound fracture of the right ankle joint and a gloving injury on the left knee measuring 6x6x4cm. There was an injury on the elbow joint and a laceration on the forehead as well as multiple lacerations to the head.

24. Dr. Njiru confirmed that an amputation of the right leg below the knee was done due to the serious injury causing permanent disability. A prosthesis had to be fitted on he said leg to assist the respondent to move.

25. In the case of Isabel Nyambura Vs Sanvic Suppliers Ltd HCCC No. 349 of 1996 (Nyeri), the plaintiff suffered 70% incapacity in a crushed compound fracture of the tibia and amputation of the left leg and was awarded Kshs. 1,250,000/= in 2005.

26. Taking into consideration inflation factors, I am of he considered opinion that the damages for pain and suffering of Kshs. 1,600,000/= were within conventional awards.

27. On loss of earnings the plaintiff gave evidence on her daily earns of Kshs. 300/= excluding weekends which translates to 22 days in a month. The magistrate used 20 days to calculate the damages for a period of 25 years totalling to Kshs. 1,800,000/=. The respondent was aged 26 years at the time of the accident. I find this calculation reasonable and the multiplier of 25 years applicable in this case.

28. Considering all the above, it is my view that the appellant has failed to demonstrate to this court that the trial magistrate 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.

29. I find no merit in this appeal and it is hereby dismissed with costs to the respondent.

30. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBY THIS 27TH DAY OF JUNE, 2019.

F. MUCHEMI

JUDGE

I the presence of: -

Ms. Kungu for Ms. Ndorongo for respondent and for Mr. Kibicho for the appellant