[2022] KEHC 17004 (KLR)

Chelule v Mwangi & another (Civil Appeal 38 of 2019) [2022] KEHC 17004 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17004 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 38 of 2019

GWN Macharia, J

December 15, 2022

Between

Jackline Chesang Chelule

Appellant

and

George Mwangi

1st Respondent

Gorgeous Trading Company Limited

2nd Respondent

(Being an appeal from the judgment and decree of Hon. Martin Mutua, RM in the Chief Magistrate’s Court at Naivasha CMCC No.648 of 2016 delivered on the 29th day of July, 2019)

Judgment

The appeal 1. The appeal was lodged vide a Memorandum of Appeal filed on the August 9, 2019 in which the Appellant prayed that this Court sets aside the judgment of the trial court delivered on July 29, 2019 and re-assess the damages payable as well as award the Appellant costs of the appeal.

2. The grounds set out in the Memorandum of Appeal are as follows:i.That the learned trial magistrate erred in law and in fact in failing to award future medical expenses though pleaded and proved.ii.That the learned trial magistrate erred in law and in fact in awarding judgment that was too low when there was overwhelming evidence to support the appellant’s case.iii.That the learned trial magistrate erred in law and in fact by failing to consider the Plaintiff/Appellant’s submissions on quantum payable and therefore awarding general damages which were too low comparable to the injuries suffered by the Appellant.iv.That the learned trial magistrate erred in law and in fact by considering extraneous facts and not the principles known in law in awarding damages and thereby ending up with an award both on general damages that were too low in the circumstances of the case before her.

Background 3. The Appellant’s claim against the Respondents was instituted by way of a Plaint dated the July 21, 2016 for prayers of general damages, special damages and costs of future medical expenses. The claim was premised on alleged negligence on the part of the Respondents. The Appellant averred that on or about the May 23, 2016, while travelling as a lawful passenger in motor vehicle registration number Kxx xxxx along Naivasha Moi South Lake Road at Kwa Muhia area, the said motor vehicle was involved in an accident as a result of the driver’s negligence. The Appellant sustained the following injuries:a)Gustillo 1 fracture distal end of the right tibia and fibulab)Bimalleolar closed fracture of the left ankle joint.c)Severe soft tissue injuries of the right ankle joint.d)Severe soft tissue injuries of the left ankle joint.

4. The Appellant’s claim was opposed by the Respondents through a joint Statement of Defence dated the 1October 3, 2016 in which they disputed their contribution to the accident as well as the injuries sustained by the Appellant.

5. In its judgment, the trial court awarded damages as follows:a)Liability: 90:10 % in favour of the Plaintiff.b)General damages ………………………… Kshs 1,00,000/=c)Special damages …………………………. Kshs 112,500/=d)Total …………………………………………Kshs 1,112,500/=Less 10% contribution ……………………Kshs 111,250/=Net total ……………………………………Kshs 1,001,250/=

6. The claim for future medical care was dismissed as the same was not pleaded as it should have been, being special damages in nature.

Evidence 7. This being the first appeal, I am minded to reconsider and re-evaluate the evidence adduced afresh and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. SeeSelle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123.

8. PW1, the Appellant herein adopted her statement dated the July 21, 2016 as part of her evidence. It was her testimony that she was headed to Kakamega on board the subject motor vehicle. She testified that as a result of the accident, both her legs were injured and she sustained fractures on both. She was admitted for 3 days at Naivasha District Hospital and for a week at Tenwek Hospital. She testified that she underwent surgery on both legs and metal implants were fitted which were still in situ as at the said date she testified. She produced Discharge Summaries from Naivasha District Hospital and Tenwek Hospital respectively and a receipt of Kshs 108,000. 00 from Tenwek Hospital.

9. Dr Obed Omuyoma was PW2. He produced a report he prepared upon examining PW1. It was his testimony that PW1 sustained a fracture of the right tibula amongst other injuries. He testified that PW1 would further incur costs of Kshs 300,000. 00 for future medical expenses and he had assessed permanent disability at 40%.

10. The defence called Dr Jennifer Kahuthu. She estimated the future medical expenses to be Kshs 80,000. 00. She confirmed that PW1 had sustained permanent disability of 8% based on the Albatte Medical Guide. 11. The issue of liability was agreed upon by parties to be in the ratio of 90:10% in favour of the Appellant.

Submissions 12. The parties took directions to have the appeal disposed of by way of written submissions.

13. The Appellant’s submissions were filed on the March 1, 2022. Liability having been agreed on, the only contentious issue was the assessment of damages. The Appellant relied on the case of Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] eKLRwhere the Court substituted an award of Kshs 1,000,000. 00 with Kshs 1,400,000. 00 for a claimant who had sustained injuries which were more severe, being a fracture to the acetabulum.

14. The Appellant also invited the Court to consider the holding in George William Awuor v Beryl Awuor Ochieng [2020] eKLR where the Court substituted an award of Kshs 2,000,000. 00 with Kshs 1,200,000. 00 where the Respondent suffered fractures of the right femur and left tibia fibula. The doctor noted that the tibia fibula fractures were compound while the femur fracture was simple. It was also noted that the Respondent’s right thigh had surgical scars and some bruising which had since healed but that the nail was still in situ and she would have to undergo a surgery to remove the nail.

15. On the issue of future medical expenses, the Appellant relied on the authority of Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLRwhere it was stated:'As we have stated, in this matter we are certain that the issue of future medical expenses was pleaded but we add that even if it had not been pleaded, it was an issue framed by parties and left to the court to make a decision on. The court properly did so. What we have stated only concerns whether it was pleaded or not and whether the court could decide on it. We must next deal with the question as to whether it was indeed proved before we proceed to decide the appropriate multiplier in respect of the amount sought or what amount we find due.'

16. The Appellant urged the Court to make an award for future medical expenses of Kshs 300,000. 00 and revise upwards the award for general damages to Kshs 2,000,000. 00.

17. The Respondents on the other hand urged the Court to uphold the findings of the trial court. The Respondents filed their submissions on April 28, 2022. It was submitted that the award of Kshs 1,000,000. 00 was inordinately high in the circumstances and there was no need to have the same revised upwards. They relied on the authorities ofMbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR, Naom Momanyi v G4s Security Services Kenya Limited & another [2018] eKLR, Wakim Sodas Limited v Sammy Aritos [2017] eKLR and Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] eKLRwhere awards for general damages were made in the region of Kshs 300,000. 00 to Kshs 500,000. 00 for fracture related injuries. It was submitted that an award of Kshs 1,000,000. 00 for general damages was indeed higher than what ought to have been awarded.

18. The Respondents urged the Court to dismiss the appeal with costs.

Analysis and determination 19. I have accordingly considered the evidence on record, the submissions made and the authorities cited. I have demarcated the following as the issues arising for determination:a.Whether the award of Kshs 1,000,000. 00 for general damages was inordinately low in the circumstance.b.Whether the Appellant was entitled to an award under costs of future medical expenses.c.Who bears the costs of the appeal?

20. On the issue of general damages, it is not disputed as to what injuries the Appellant sustained. However, there is conflicting expert opinion as to the level of permanent disability occasioned to the Appellant as a result of the injuries. Whereas the Appellant’s expert held the same to be at 40%, the Respondents’ expert who conducted a re-examination on a later date found the same to be at 8%. Further, both experts noted a 2cm shortening of the affected right lower limb.

21. As was held by the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services [1976] & Another v Lubia & Anor (No 2) [1985] eKLR, comparable injuries ought to attract comparable awards. Further, in order for the appellate court to interfere with the award of the trial court, there has to be sufficient grounds and principles as was held in Butt v Khan [1981] KLR 470 and Kitavi v Coastal Bottlers Ltd [1985] KLR 470) that:'Although one would expect that in the normal course of things, the claimant to the accident might get well and restored to his or her original health status prior to the accident sometimes that is not the case in most instances. It is necessary to find the correct bearing which seldom alludes the Judges with expertise and knowledge on this areas of specialization. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirety erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.'

22. Indeed, the foregoing positions were reiterated in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where the Court of Appeal held that –'…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, JA that:‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.'

23. The following cases provide a good guidance with respect to the award on general damages:i.In the case of Joseph Mwangi Thuita v Joyce Mwole HCCA No 177 of 2011 [2018] eKLR where the plaintiff sustained fractures of the right femur, compound fracture (r) tibia, compound fracture right fibula, shortening right leg and episodic pain (r) thigh with inability to walk without support, the court awarded Kshs 700,000. 00ii.In the case of Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] eKLR, the Respondent suffered fracture of the upper right tibia, fracture of the head of the right fibula and fracture of the floor of the socket of the left hip joint (acetabulum), the court substituted an award of Kshs 1,500,000. 00 with an award of Kshs 1,200,000. 00. iii.In the case of Godfrey Mugnicholas Mwiti Mwirebua v Marcella Mpaka Kiambi [2022] eKLR, the Court affirmed an award of Kshs 900,000. 00 for general damages where the Appellant suffered multiple comminuted fracture of right femur, right tibia-fibular fracture and blunt abdominal trauma injuries

24. The authorities relied upon by the Appellant relate to more severe injuries while the Respondents have cited authorities relating to less severe injuries. From the material placed before me, and the authorities I have referred to, I find no reason to disturb the award of Kshs 1,000,000. 00 for general damages made by the learned trial magistrate.

25. On the issue of future medical expenses, the same was pleaded in the Plaint. The Appellant’s medical expert indicated that Kshs 300,000. 00 would be needed for the surgical process to remove the metal implants. On the other hand, the Respondents’ expert approximated the same to be at Kshs 80,000. 00.

26. In the case of Geoffrey Kamuki & Another v RKN (Minor suing through her late father and next friend ZKN [2020] eKLR, the Court had this to say: -'…To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment among other things. It is not always clear at that time of filing the case what these future costs may be. The prognosis could change for the better or for the worse depending on the circumstances. Is it not for the same reason that defendants will often seek second medical opinions in injury-based claims? Where they believe that the plaintiff has healed from their injuries, they do so to influence the ultimate award of general damages for pain and suffering. This happens even when the case is already before court and it may well be in the middle of the trial. A plaintiff such as this one ought not to be denied the award because she did not have a figure in mind. It was pleaded, and if the appellant was disputing it, the right place would have been at the trial. Respondent could have done so by bringing evidence to controvert it…'

27. Further, in Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR, cited by the Appellant, the court had this to say:'As we have stated, in this matter we are certain that the issue of future medical expenses was pleaded but we add that even if it had not been pleaded, it was an issue framed by parties and left to the court to make a decision on. The court properly did so. What we have stated only concerns whether it was pleaded or not and whether the court could decide on it. We must next deal with the question as to whether it was indeed proved before we proceed to decide the appropriate multiplier in respect of the amount sought or what amount we find due.'

28. I find that based on the evidence of record, the learned trial magistrate ought to have made an award under the head of future medical expenses. It was conceded by both parties during trial, that the same would be incurred. The point of departure was the actual cost. Based on the evidence by both medical experts, a middle ground would suffice so as to serve the interests of the Appellant. I consider an award of Kshs 130,000. 00 as not only fair, but sufficient in the circumstances.

Disposition 29. Consequently, the appeal partially succeeds and I issue the following orders:a)General damages Kshs 1,000,000. 00b)Costs of future medical treatment Kshs 130,000. 00c)Special damages Kshs 112,500. 00d)Sub-total Ksh 1,242,500. 00less 10% contributory negligence Ksh 124,250. 00e)Net award Kshs 1,118,250. 00f)The above sum shall attract interests at courts rates from the date of the trial court’s judgement until payment in full.g)Each party shall bear its respective costs in this appeal.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022G. W. NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Owour for the Appellant.2. No appearance for counsel for the Respondents, duly notified online.