[2022] KEHC 3255 (KLR)

Boru & another v Musyimi (Civil Appeal 67 of 2019) [2022] KEHC 3255 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3255 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 67 of 2019

MW Muigai, J

May 4, 2022

Between

Hassan Mohammed Boru

1st Appellant

Omar Edin Ibro

2nd Appellant

and

Rachel Mutete Musyimi

Respondent

(Being an Appeal from The Judgement Delivered On 4th April 2019 In PMCC Number 376 Of 2016 By Honourable E. Wambugu, Senior Resident Magistrate In Kithiman)

Judgment

1. The suit arose out of an accident that occurred on February 20, 2016along Matuu Mwingi road involving Motor Vehicle registration number KBH 852R in which the Appellant was a passenger and KBL 171W that was allegedly negligently and carelessly driven and/or managed by the 1st Appellant leading to the Respondent sustaining the following injuries according to the Amended Plaint dated August 28, 2017;a.Deep Cuts on the right faceb.Blunt Injury to the right eyec.Blunt injury to the upper jawd.Blunt head injurye.Bruises on both forearmsf.Blunt back injuryg.Bruises on both lower limpsh.Blunt neck injuryi.Blunt injuries to the scalp and facej.Multiple Blunt injuries to the chest, back and pelvisk.Cut wounds on both legsl.Injuries on the right cheekm.Spondylosis due to multiple disc degenerationsn.Permanent incapacity 20%

2. The Respondent prayed for the following from the Trial Court;a.Liquidated damages of Kshs 88,339b.General damages for pain, suffering diminished earning capacity , loss of amenities and future medical expenses of Kshs. 5,000 per month for the rest of her lifec.Costs of the suitd.Interest on a,b,c above at court ratese.Any other relief this Honourable Court may deem just and fit to grant.

The Defence 3. The Appellants filed a Defence dated October 12, 2017in which they admitted that the accident did in fact occur but denied that it was caused as a result of their negligence but that of the driver of Motor Vehicle Registration number KBH 852R who did not exercise reasonable care and skill on his part thus causing the accident. He asked the court to dismiss the suit with costs.

4. During the hearing, the Plaintiff called two witnesses. PW1 was Police Constable Pheneos Opiyo who was representing Daniel Longiro, a colleague who had been transferred to Makueni County. He told the court that when they received a report of an accident along Matuu Mwingi road at Kathenge area involving Motor Vehicle Registration number KBH 852R Toyota matatu that was heading Matuu direction and KBL 171W Mistubishi lorry that was heading to Mwingi. He opined that as the lorry was overtaking, it hit the matatu and threw it off the road causing it to roll several times.

5. He averred that Chief Inspector Dorcas Nyaga, the Base Commander, Sergent Longiro and PC Salat Diba attended the scene, that one person died and the injured passengers were taken to Matuu Level 4 hospital. The driver of the lorry was charged with causing death by dangerous driving vide TCR No. 182/183/2016 and TR No. 129/16. He said that the Respondent was a passenger but her name was not in the list of victims. He produced the police abstract, P3 Form and summons to attend court for which he alleged to have been paid Kshs. 5,000.

6. In cross examination, he averred that he took names from Matuu Hospital and the Respondent was number 7 of the 12 names on the list and Francis Musyoki was the driver of the matatu. The driver of the lorry overtook blindly hitting the oncoming vehicle on the right side of the body causing both motor vehicles to veer of the road and land in a ditch. That it is the lorry that moved to the lane of the Matatu. Philip Kataya died on the spot. He said that the 1st Appellant was charged in court and he did not know the outcome of the case as he did not have the police file.

7. In Re-examination, he reiterated that the lorry was overtaking at the time of the accident and the driver was charged with causing death by dangerous driving.

8. PW2, the Respondent herein indicated that she had adopted her statement filed on October 25, 2016 in which she stated that she works for the County Government in the Tourism and Image Department and on February 20, 2016 she was on board a Nissan Matatu KBH 852R which was hit by a lorry KBH 171W as the driver tried to manoeuvre to safety and hit the driver’s side damaging it and even removing the front side wheel.

9. She indicated that she sustained injuries on the face, the right jaws, neck, right hand, chest and nerves to both hands and legs. Further that her eyesight was affected and she cannot read as before, she cannot chew properly, her ears are not functioning properly and she gets a throbbing headache. She opined that she is attending physiotherapy. That she was taken to Matuu Sub County Hospital, given first aid and transferred to Machakos Level Five where X-rays and investigations were done. She claimed Kshs 65,499 which she contended are expenses she had incurred as follows; Kshs 1500 for medical report, Kshs 2750 at Matuu Sub County, Kshs. 950 at Makadara healthcare, Ksh 4419 Chemist, Kshs. 780 on transport and Kshs 54,000 as loss of earning.

10. During the hearing, she clarified that she had indicated the wrong registration number of the lorry in her statement. She opined that she still had headaches, pain on the eye, chest and spine. She produced her identity card, treatment notes and discharge summary from Matuu Sub county hospital, treatment notes from Machakos Level 5 hospital and a medical report.

11. She stated that she has a spinal injury, chest pain, back pain, scars on her face and pain on her leg and produced an MRI Report, an X-ray request form, a demand letter. She stated that Omar Dibo is the owner of the Lorry and relied on a copy of records for which she paid Kshs. 550 and invoices and receipts amounting to Ksh 42,000. She further stated that she was unable to work where she was earning Kshs 12,800 and was not paid for 3months which she also sought.

12. In cross- examination, she stated that the accident took place at 8. 30pm and she was seated on the back seat and could see ahead throw the window where she saw the lorry come to their lane while overtaking another motor vehicle leaving the matatu driver with nowhere to go. She stated that she was a casual employee and did not have any document showing she earned Kshs.12,800 nor one to show that she requires Kshs 5,000 for treatment. She opined that she was admitted for 3 days and when she was examined by the Defendant’s doctor, she told the doctor that she needed Kshs.5, 000. She has resumed work but is carrying out lighter duties.

13. In Re- examination, she stated that she was admitted onFebruary 20, 2016 and discharged n February 23, 2016and that she cannot walk without her clutch.

14. The Defendant did not call and witness but by consent the medical report by Dr. Wambugu was produced.

15. The Respondent filed submissions in which he asked the court to find the Appellants 100% liable for the accident and that the 2nd Respondents Vicariously liable and he relied on the case of Nandwa vs Kenya Kazi Limited(1998) KLR 4. She cited the cases of Embu HCCC No. 3 of 2014 Kennedy Mwangi Muriithi vs the Attorney General Commissioner of Prisons and Nairobi HCCC No. 480 of 2009 where an award of Kshs. 1,500,000 and Kshs. 1,200,000 was awarded, she asked the court for an award of Kshs 1,600,000. On special damages, she asked for Ksh 43,349. She relied on the case of Simon Taveta vs Mercy Mutitu Njeru[2014] eKLR.

16. The Appellants filed submissions and while relying on the case of Kiwanjani Hardware Limited and another vs Nicholus Mule Mutinda[2008] eKLR, Mbari Nganga Veronica vs Stanley Wambugu Macharia and another [2000] eKLR, Simon Muchemi Atako & Peter Ambani Shrindwa vs Gordon Osore [2013] eKLR asked the court to give an award of Ksh 200,000.

Trial Court Judgment 17. The court found that the evidence established that the driver of the lorry is the one who encroached on the matatu’s lane and found the 2nd Appellant as vicariously liable for the accident. Liability was found to be 100%.

18. The trial court while relying on the P3 form and the medical reports stated that the reports were concurrent on the injuries sustained including both finding that there was no eye problem but differed on the degree of disability. The Trial Court assessed General damages at Kshs 900,000 and special damages at Kshs 34,339 and failed to award future medical expenses and loss of earning and found that they had not been proven. The Trial Court also awarded costs and interest in favour of the Respondent herein.

The Appeal 19. Aggrieved by this judgement, the Appellants filed a memorandum of Appeal dated 29th April 2019 in which they sought the Trial Court judgment be set aside and the assessment be done based on the evidence before the court.

20. The Appeal is founded on the grounds That;a.The learned magistrate erred in fact and ended up misdirecting himself in awarding exorbitant quantum of damages by failing to appreciate and be guided by the prevailing range of comparable awards granted the injuries sustained by the Plaintiff/Respondent herein.b.The learned magistrate erred in law and in fact in finding that the Defendant was 100% liable for the Plaintiff’s injury in that the Plaintiff alleged to have been a passenger in motor vehicle e registration number KBH 852 at the time of the accident however the same was not proved and neither was evidence in support adduced before the Hon. Court.c.The learned magistrate erred in law in awarding damages that were so high as to be entirely erroneousd.The learned magistrate’s award was made without considering the medical evidence and respondent’s submissions before the court and failed to appreciate the nature of injuries sustained by the plaintiff and failed to be guided by authorities on comparable awards and hence ended up making an excessive award in view of the injuries sustained of Kshs 900,000. e.The assessment and award of general damages is manifestly excessive and inordinately high so as to amount to a miscarriage of justice.f.The whole judgement on quantum of general damages was against the weight of evidence adduced before the court.

Appellants Submissions 21. The Appellant filed submissions on 10th December 2020 in which he opined that the trial court failed to take into consideration the incapacitation of 20% had been reduced to 8% in the recent medical report and submitted that the award of Kshs 900,000 should be substituted with that of Kshs 200,000. The Appellant’s contended that the trial court did not consider the parties submissions on record. Further that the injuries in the medical report were fewer than those in the pleadings which the trial court did not take into account in assessing the damages. The Appellants contended that there was no indication in the proceedings as to how the general damages amount was arrived at and the trial court failed to take into consideration inflation, the years of the award and the latest medical report when making its finding.

Respondent’s Submissions 22. The Respondent filed submissions on February 1, 2022 in which she relied on the case of Paul Kipsang Koech & Another vs Titus Osule Osore[2013] eKLR and Alfarus Muli vs Lucy M Lavuta & AnotherCivil Appeal No 47 of 1997 and submitted that the Court should not disturb the award as they were commensurate to the injuries sustained. Furthermore, the injuries sustained were not only soft tissue injuries but also included serious back and nerve injuries. The Appellant submitted that the court took into consideration the authorities cited by the parties extensively. On the reports, she submitted that the trial court took into consideration all the reports in its judgement.

Determination 23. I have considered the Trial Court record, the Memorandum of Appeal and Record of Appeal as well as the submission of the parties’.

24. The award of special damages and liability are not in dispute and I find that the only issue for determination is whether this court should disturb the damages awarded by the trial court.

25. This Court has not had the benefit of hearing the witnesses as this is a first appeal. I am therefore guided by the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 where it was stated that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

26. I am also guided by the case of Peters vs. Sunday Post Limited [1958] EA 424, where it was held that;“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight.

27. According to the amended Plaint, the Respondent sustained the following injuries;a.Deep Cuts on the right faceb.Blunt Injury to the right eyec.Blunt injury to the upper jawd.Blunt head injurye.Bruises on both forearmsf.Blunt back injuryg.Bruises on both lower limpsh.Blunt neck injuryi.Blunt injuries to the scalp and facej.Multiple Blunt injuries to the chest, back and pelvisk.Cut wounds on both legsl.Injuries on the right cheekm.Spondylosis due to multiple disc degenerationsn.Permanent incapacity 20%

28. The medical report by Dr, Wokabi of August 14, 2017, indicated that the Respondent had head; sustained blunt injuries to the scalp and face; trunk; multiple blunt injuries to the chest back and pelvis and leg; sustained cut wounds. The Plaintiff’s condition at the time she complained of headaches and pain. The prognosis was that the Plaintiff developed degeneration of many discs known as Spondylosis and she was likely to incur Kshs 5,000 for medicine every month in future and pegged disability at 20%.

29. Dr. Wambugu’s medical report of 2nd July 2018, Physical findings were on head and face was healed facial laceration and wound scars; chest no respiratory distress; back normal spine curvatures were retained, there was subjective tenderness over the whole back lower limb muscles were not wasted and tendon reflexes were normal. The Doctor found that the injuries sustained were mainly neural and soft tissues which she had made adequate recovery and that there is radiological evidence disc bulging that restricted her ability to fully exert herself using the back. He pegged degree of incapacitation at 8%.

30. The MRI report concluded that the Respondent had Multi-level disc desiccation and L5S1 Posterolatera; disc bulge with exit nerve impingement which was also stated in the X-Ray request form dated 13. 16. 17.

31. The Trial Court referred to the medical reports by the two doctors, and the fact that there was disagreement on the degree of disability. In my view, to reconcile this discrepancy it is appropriate to take the average of the two assessments which would put disability at an average of 14%.

32. The Court of Appeal in the case of Jane Chelagat Bor vs. Andrew Otieno Onduu [1988- 92] 2 KAR 288; [1990-1994] EA 47, held that:“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court stated:“On the issue of damages, it is settled that the award of damages is within the discretion of the trial court and the Appellate court would only interfere on the particular grounds. These grounds were and are (a) that the court acted on wrong principles or that the award is so excessive or so low that no reasonable tribunal would have awarded or (b) that the court has taken into consideration matters which it ought not to have or left out matters it ought to have considered and in the result arrived at wrong decision. (See Butler vs Butler (1984) KLR 225. The assessment of damages in personal injury case by court is guided by the following principles: -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high (See Boniface Waiti & another vs Michael Kariuki Kamau (2007) eKLR.’ excess or insufficiency.”

33. The Court of Appeal observed in Simon Taveta vs. Mercy Mutitu Njeru[2014] eKLR that –“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

34. I am also guided by the case of H. West & Sons Ltd –v. Shepherd (1964) AC 326 at Page 364, where the court stated:“The court has to perform the difficult task of converting into monetary damages the physical injury and deprivation and pain to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of damages…Money cannot renew a physical frame that has been battered and shattered. All that Judges can do is to award sums which must be regarded as giving reasonable compensation.”

35. In the case of Akamba Public Road Services v Abdikadir Adan Galgalo[2016] eKLR the Court awarded Kshs, 500,000 for fracture of right tibia/fibula.

36. The thrust of the Appellant’s appeal is that the Trial Court erred in awarding damages that were so high as to be entirely erroneous, made without considering the medical evidence and Respondent’s submissions and failed to appreciate the nature of injuries sustained by the Plaintiff and failed to be guided by authorities on comparable awards and hence ended up making an excessive award in view of the injuries sustained of Kshs 900,000.

37. This Court gleaned the Judgment of the Trial Court delivered on April 4, 2019 and found at Pg 4 & 5 the Trial Court considered at length submissions by both Plaintiff and Defendant and at Pg 7& 8 considered both doctors reports and observed thus;The other injuries are multiple soft tissue injuries, back injury and injury on her nerve. It is evident that the injury on her back has caused her permanent disability. The cases cited by the Defendants’ Counsel have soft tissue injuries which are less serious compared to the Plaintiff’s injuries. On the other hand the Plaintiff’s Counsel cited cases with back injuries which I find more serious…

38. I agree with the Trial Court’s reasoning that the injuries cited in the submissions of parties are not commensurate to the ones sustained in this case. The Trial Court’s judgment confirms that the Trial Court considered in detail medical evidence and relevant authorities to the instant circumstances as confirmed by both doctors’ reports.

39. In the case of West (H) & SonLtdv Shepherd [1964] A.C. 326pg. 345:“But money cannot renew a physical frame that has been battered and shattered. 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.”

40. Applying the above principles to this appeal and considering the injuries the respondent sustained, the degree of permanent incapacity resulting from the accident, as well as the decisions parties relied on, I do not find any legal basis to interfere with the Trial Court’s award.

41. The Appellate Court should only interfere with a Trial Court’s assessment of damages in very clear cases, and not to impose its own view on what it would have awarded had it tried the matter. This Court may interfere in instances where the Trial Court is found to have either acted on wrong principles or that the award is so excessive or so low that no reasonable tribunal would have awarded or that the court has taken into consideration matters which it ought not to have or left out matters it ought to have considered and in the result arrived at wrong decision.

42. The Appellants also raised issue with whether the Respondent was a passenger in the matatu. No evidence has been produced to controvert the evidence given by PW1 Scene Visiting Officer that the Respondent was victim number 7 in the list of 12 which he personally made. The Appellants did not bring any witness or produce any evidence to the contrary therefore the position remains that she was a passenger in the matatu.

Disposition1. In the end the appeal is dismissed with costs to the Respondent.2. The Trial Court judgment of 4/4/2019 is upheld.

3. It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 4TH MAY 2022. (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE