[2023] KEHC 19423 (KLR)

Chepkwony & another v Lomongin aka Samuel Erupe aka Lorenge aka Samuel Erube aka Samwel Erupa aka Samuel Lorupe aka Samuel Erupe Lorege (Civil Appeal E012 of 2020) [2023] KEHC 19423 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19423 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Civil Appeal E012 of 2020

RB Ngetich, J

June 29, 2023

Between

Geofrey Kipngetich Chepkwony

1st Appellant

Jonathan Kimunge

2nd Appellant

and

Loregae Erupe Lomongin aka Samuel Erupe aka Lorenge aka Samuel Erube aka Samwel Erupa aka Samuel Lorupe aka Samuel Erupe Lorege

Respondent

(Being an appeal from the judgment and Decree of Hon. J.L Tamar, Principal Magistrate on the 14th day of May,2020 in Eldama Ravine CMCC NO.101 of 2019)

Judgment

Background 1. This appeal arises from a claim in respect to road traffic accident which occurred on the 5/11/2017 involving motor vehicle registration number KBJ 615N owned by the Appellants and Respondent on 14th may 2020 along Marigat-Mogotio road at or near chemogoch area.

2. Parties recorded consent on liability at the ratio of 30:70 in favour of the plaintiff. By judgement delivered on the 14/05/2020 in Eldama Ravine Cmcc No. 101 of 2019 the courta.General damages for pain and suffering Kshs. 1,700,000b.Damages for loss of amenities, diminished and/or loss of future earning capacity at Kshs. 200,000/=c.Special damages at Kshs. 8,550/=

3. Being aggrieved by the aforementioned judgement, the Appellant lodged this appeal vide a memorandum of appeal dated 15th May,2020 on the following grounds: -i.That the Learned Trial magistrate erred in law and in fact in awarding Kshs.1,700,000/= under general damages for pain and suffering which was inordinately high in the circumstances.ii.That the learned trial magistrate erred in law and in fact in ignoring the overwhelming evidence on record in regard to the Respondents loss of future earning capacity hence awarding the same.iii.That the learned trial magistrate erred in law and in fact by failing to accord due regard to the Appellants’ submissions on quantum and particularly on the Respondent’s loss of future earning capacity.iv.That the learned magistrate erred and misdirected himself in law and in fact in misapplying the principles applicable to assessment of damages.

4. Consequently, the appellant prays that: -a.This appeal be allowed.b.The judgement of the trial court delivered on the 14th may,2020 0n general damages for pain and suffering be set aside and substituted with a reasonable award.c.That the judgement of the trial court delivered on 14th May,2020 on loss of future earning capacity be dismissed.d.The costs of this appeal be borne by the Respondent.

Appellant’s Submissions 5. The appeal proceeded by way of written submissions. In submissions dated 10th January,2023, the appellants states that the injuries pleaded by the Plaintiff were as follows: -i.Fracture of the left humerus.ii.Displaced fracture of the right tibia and fibula.iii.Fracture of the 4th, 5th,6th & 7th ribs left side.iv.Deep lacerations on the forehead.

6. The appellants submit that award of Kshs. 1,700,000/= is inordinately high and ought to be disturbed. That it is trite law that assessment of quantum of damages in a claim for general damages is a discretionary exercise. However, the law has set dimensions for an exercise of discretion; must be exercised judicially, with wise circumspect and upon some legal principles. That the said dimensions are vital such that when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court.

7. The appellant submits that it is trite law that awards must be within consistent limits and court awards for damages must be made considering comparable injuries or similar injuries and awards and cited the case of Denshire Muteti Wambua vs. Kenya Power & Lighting Company Ltd [2013] Eklr,Kigaraari vs Aya(1982-88) 1KAR 768, and Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018]eKLR in support of this.

8. The Appellant further invites the court to consider decisions which include the case of Harun Muyoma Boge v Dr. Daniel Otieno Agulo, Migori HCCA No. 86 of 2012 where the plaintiff sustained multiple injuries and fracture of the right tibia and fibula and the appellate court set aside an award of Kshs. 150,000= and substituted it with an award of Kshs.300,000/=.

9. Further in Naom Momanyi vs G4S Security Services Kenya Limited [2018] eKLR where the appellant sustained a fracture of the left –right condylar tibia, blunt injuries on the back and multiple bruises on the left arm and was awarded Kshs.300,000/= and in Wakim Soda Limited vs Sammy Aritos[2017]eKLR the Respondent sustained fracture of the fourth rib and a compound fracture of the left tibia/fibula was awarded Kshs.400,000/=.

10. Further in Jatan Nagra v Abidnego Nyandusi Oigo [2018] eKLR Majanja j. set aside the lower court award of Kshs. 1,000,000/= where the plaintiff had suffered injuries on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right/tibia fibula, segmental distal fracture of the right femur and substituted with Kshs. 450,000/=.and in Zachariah Mwangi Njeru v Joseph Wachira Kanoga, Nyeri HCCA No. 9 of 2012, the plaintiff sustained comminuted fracture of the tibia and fabula and the court set aside an award of Kshs. 400,000/=; and the case Mbithi Muinde William vs Rose Mutheu Mulatia[2019]eKLR where the respondent was awarded a sum of Kshs. 400,000/=as compensation for a swollen, tender left wrist and left leg, fracture of the left 5th metacarpal bone and fracture of the right tibia.

11. The appellant challenges the award on loss of amenities, diminished and/or loss of future earning capacity and submits that in this case, the same was unjustified as the plaintiff was not employed and confirmed that he was a herdsman of his own herd and cited the case of Mumias Sugar Company Limited vs Francis Wanalo [2007] eKLR in support of his case on what guides the court in granting an award under this head. The Appellants pray that the Appeal herein be upheld and that they be awarded costs of this appeal.

Respondents Submisions 12. Through submissions dated 20th March 2023, the Respondent submits that the award of Kshs.1,700,000/= for general damages for pain and suffering was not erroneous/inordinately high but was reasonable and within the acceptable range taking into account the nature, seriousness and resulting/in capitating effects of the Respondent’s injuries.

13. Counsel further submitted that the award was within the limits/range set by decided cases that the parties relied on in their respective submissions and the said award cannot be said to be erroneous, excessive or inflated and cited the case of Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] eKLR in support of this.

14. Counsel submits that the Appellants have not demonstrated/proved that the learned trial magistrate acted on wrong principles of law, or misapprehended the facts, or has for any other reasons made a wholly erroneous estimate of the damages suffered to warrant interference of his award by this Honorable court; that it is not enough that there be preference of one award over the other but there has to be an error committed by the trial court for the appellate court to interfere with an award which the appellants have not proved/demonstrated.

15. The respondents urge this Honorable court to note that the Appellants have introduced and relied on new authorities/materials to challenge the decision of the learned trial magistrate at the time of making the award herein which authorities were not availed/cited to the learned trial magistrate in the lower court and introducing new materials/authorities at this stage amounts to requesting this Honourable court to consider this appeal outside the context that the trial magistrate dealt with the matter and which is plainly wrong and cited the case of Silas Tiren & Another v Simon Ombati Omiambo [2014] eKLR where the court was faced with a similar issue.

16. Further in the case of Daniel Muchemi & Another v Rosemary Kawira Kiambi[2018]eKLR the court faced with similar circumstances held that it was too late in the day to rely on cases that were not cited before the trial magistrate to test whether the trial magistrate erred.

17. The respondents submit that the proposed award of Kshs.400,000/= under the head of general damages by the appellants is not only inordinately low, undeserving and also unmerited, untenable considering all the circumstances of this case. That the Appellants proposed an award of Kshs.450,000/= in the lower court but have failed to propose in the present appeal; and on the other hand, the appellants have deliberately and calculatedly left out, ignored and or failed to consider and or take into account the issue of the Respondents resulting effects of the injuries that he sustained which include deformity and permanent disability which is central in determining the award for pain and suffering while arriving at the proposal which fact the trial magistrate captured in his judgement;that Kshs.400,000/= are for minor/less serious than those suffered by the Respondent herein; and award of Kshs.1,700,000/= under general damages is not inordinately high and urged this court to uphold the trial court’s award of Kshs. 1,700,000/=.

18. On the award for loss of amenities, diminished and/or loss of future earning capacity, the Respondents submits that such an award can be made whether the claimant is employed or not contrary to assertions by the Appellant that it cannot be awarded if a claimant is not employed as confirmed in Appellants own authority Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR.

19. The Respondents reiterate and adopt their submissions in the lower court as part of submissions herein and urged this Honorable court to uphold the decision of the trial court and dismiss this appeal costs to the Respondent herein.

Analysis and Determination 20. This is a first appeal. The duty of a first appellate court was captured in Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123 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 appeal are well settledBriefly 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 witness and should make due allowances 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

21. In view of the above, I have considered submissions herein. Liability is not disputed as consent was recorded by parties herein. I consider the following as issues for determination: -i.Whether this court should interfere with award under general damages for pain and suffering.ii.Whether the trial magistrate erred in awarding damages under loss of amenities, diminished and or loss of future earning capacity.

22. In respect to assessment of damages, I take note of decision in Catholic Diocese of Kisumu v Tete [2004] eKLR where the Court of Appeal identified the circumstances under which an appellate court can interfere with an award of damages as follows:“It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.”

23. Further in the case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KLR 457, the Court of Appeal stated as follows: -“This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the judge:-(a)proceeded on a wrong principle; or(b)Misapprehended the evidence in some material respect.

24. I have considered the submissions by the parties in both the lower court and filed in this court. The principles for compensation for personal injury are principally three-fold that:1. Compensation for personal injury suffered, so far as money can do so, to restore the plaintiff to his position before the accident –2. Comparative awards for comparative injury3. Compensation figures should not to be so high as to threaten the economy –

25. I take note of the fact that in making the award of Kshs. 1,700,000/= for general damages for pain and suffering, the trial magistrate considered that the plaintiff had suffered physical disability due to angulation and shortening of the lower limb and he now walks with a limp with permanent deformity on the right leg.

26. Record show that while assessing damages, the trial magistrate considered the citied authorities and was of the opinion that injuries suffered by victims in the authorities were comparable to injuries suffered by appellant herein; the court referred to the case of Charles Mathenge Wahome vs Mark Mboga Likaya & 2 others [2011] eKLR where the plaintiff was awarded Kshs.1,500,000/= for fracture of the femur and soft tissue injuries with a permanent disability of 25%.

27. I take note of the fact that this case was decided in the year 2011. The assessment herein was done in the year 2020 and I agree with the trial magistrate that there was need to consider incidence of inflation. In my view, the award of Kshs. 1,700,000/= for pain and suffering was not manifestly excessive I find no reason to interfere with damages under this head and the award of Kshs. 1,700,000/= is hereby upheld.

(ii) Whether the trial court erred in awarding the sum of Kshs. 200,000/- under the head of loss of amenities, diminished and/or loss of future earning capacity. 28. In Cecilia W. Mwangi and Another vs Ruth W. Mwangi NYR CA Civil Appeal No. 251 of 1996 [1997] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as general damages but these have also to be proved on a balance of probability.”

29. Further in SJ v Francessco Di Nello & another [2015] eKLR the court of appeal stated as follows: -“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved.

30. This was the position enunciated in Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 wherein Lord Denning M. R. said as follows:“It is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”Learned counsel for the respondent was therefore wrong in stating that loss of earning capacity was not pleaded and that it must be proved as though it was a claim under loss of income or future earnings.”

31. From the principles set out in the above authorities, loss of earnings must be pleaded and proved as they are in the nature of special damages. On the other hand, loss of future earning capacity need not be pleaded as it is in the nature of general damages.

32. In the plaint dated 5th August,2019, the respondent averred that his physical ability, function, capacity/ability to earn/work has been adversely affected due to the injuries sustained and hence he is not able to work and/or earn as he used to before the accident herein and claimed damages for loss of amenities, diminished and/or loss of future earning capacity at court rates.

33. Record show that the respondent/plaintiff worked as a herder but as a result of the injuries, he suffered permanent disability which by agreement of the parties was assessed at 22%. There is no doubt that he will not able to work as prior to the accident due to permanent disability resulting from the injuries.

34. In my view, the trial court did not apply wrong principles in awarding damages for loss of earning capacity which is considered as general damages. I see no reason to interfere with the award under that head.

35. From the foregoing, I find this appeal unmerited and dismiss with costs to the respondent.

36. Final orders: -1. Appeal is dismissed.2. Costs to the Respondent.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 29TH DAY OF JUNE 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Kemboi - Court Assistant.Mr. Aguko holding brief for Kimondo Gachoka for Appellant.Mr. Njuguna for Respondent.