[2022] KEHC 16105 (KLR)

China Road & Bridge Corporation v Kisavi & another (Civil Appeal E14 of 2020) [2022] KEHC 16105 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16105 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E14 of 2020

GMA Dulu, J

December 7, 2022

Between

China Road & Bridge Corporation

Appellant

and

Muli Kisavi

1st Respondent

Edward Ndolo

2nd Respondent

(Being an appeal from the Judgment of Honourable C.A Mayamba PM delivered on 9th October 2020 in Kilungu PMCC No. 228 of 2019)

Judgment

1. This appeal herein arises from a judgment delivered in the magistrate’s court on October 9, 2020 wherein the trial magistrate found in favour of Muli Kisavi who was the plaintiff, and concluded as follows –a.Liability 80:20%b.General damages Kshs.3,000,000/=c.Loss of future earnings Kshs.6,457,440/=d.Special damages Kshs.3055/=e.Less 20% (1,892,099) Kshs.7,568,396/=f.Costs and interests.

2. Dissatisfied with the judgment of the magistrate’s court, the appellant, who was the 1st defendant in the trial court, has come to this court on appeal relying on a further amended Memorandum of Appeal on the following grounds –1. That the trial magistrate erred in law and in fact in awarding damages under Loss of Future Earnings and General damages which were inordinately high and excessive in the circumstances occasioning miscarriage of justice.

2. The trial magistrate erred in law and fact in failing to consider the appellant’s submissions and authorities attached thereto while assessing damages.

3. The trial magistrate erred in law and fact in awarding manifestly excessive sum of Kshs.6,457,440/= under Loss of Future Earnings.

4. That the trial magistrate erred in law and fact by failing to reduce the award of loss of future earnings/diminished capacity by 50% incapacity sustained by the 1st respondent.

5. The trial magistrate erred in law and in fact in failing to apply and follow the principle of stare decisis thus ignoring the established principles of law applicable in assessment of damages.

6. That the trial magistrate erred in law and in fact in awarding the 1st respondent inordinately award high of Kshs.3,000,000/= under general damages.

7. That the trial magistrate lacked jurisdiction to hear and determine the suit which falls under Work Injury Benefits Act 2007.

8. The trial magistrate erred in law and fact by failing to consider conventional awards in cases of similar nature.

9. The trial magistrate erred in law and fact by failing to apply proper principles of law and/or misapprehending the evidence while assessing damages, thus arriving at a bad decision.

3. The 2nd defendant was named in this appeal as a respondent but did not participate in the appeal.

4. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kinyanjui Njuguna & Company advocates, for appellants and the submissions and supplementary submissions filed by JM Muema & company for the 1st respondent.

5. This being a first appeal, I am required to be guided by the legal principle consistently applied by courts, which was applied in the case of Selle –vs- Associated Motor Boat Company Ltd (1968) EA 123 – that a first appeal is in the nature of a retrial in that the first appellate court has a duty to examine the evidence on record afresh and come to its own conclusions.

6. This being principally an appeal on the quantum of damages awarded, I have also to be guided by the legal principle applied in the case of Kenfro Africa –vs- AM Lubia(1982) I KAR 777 that the assessment of damages is an exercise of discretionary power by a trial court, and that an appellate court should be slow to interfere with the award, unless the trial court took intoaccount an irrelevant factor, or failed to take into account a relevant factor or short of this that the award is so inordinately low or so inordinately high that it occasioned to an injustice.

7. The appellant has raised a technical ground of lack of jurisdiction of the trial court under the Work Injury Benefits Act 2007. I have to deal with this issue of jurisdiction first, since as held by the court of Appeal in the case of Owners of Motor Vessel “Lilian S” –vs- Caltex Oil (Kenya) Ltd(1989) e KLR – jurisdiction is the authority by which a court decides matters that are litigated before it and without it the court has no basis to make any move, other than down its tools.

8. I note that in our present case, both sides were ably represented at the trial by Kinyanjui Njuguna & Company advocates and JN Muema and Company advocates. The issue of jurisdiction was never raised by Kinyanjui Njuguna & Company for the defendant either in the pleadings, proceedings or the written submissions.

9. It is the same firm of advocates who are raising the issue of jurisdiction in this appeal through a further amended Memorandum of Appeal, while in the jurisdiction of the trial court was specifically admitted in their written defence.

10. Other than such conduct of counsel showing lack of being candid and fair, it is also trite that the issue of jurisdiction being a preliminary objection of law, has to be raised at the earliest opportunity.

11. In my view, the issue of jurisdiction should have been raised at the earliest, and in the trial court, not on appeal. In any case, there is no evidence that the respondent was injured in a workplace, or factory premises or workshop. I thus dismiss the ground on lack of jurisdiction of the trial court.

12. I now turn to the contest on the awards made under different heads of damages, as liability was recorded by consent.

13. I note that the parties did not call any witnesses to tender oral evidence and instead they entered into a consent as follows –“By consent judgment on liability be entered at the ratio of 80%:20% in favour of the plaintiffs. The list of documents produced admitted without calling the makers. Defendant’s second medical report be attached to submissions without calling the makers”.

14. Thus the court’s assessment of quantum of damages was based on documents filed, and the submissions filed by counsel on both sides, not recorded evidence from witnesses.

15. It is not disputed that permanent incapacity of the 1st respondent was assessed at 50%. The injuries suffered were not disputed and were described by the trial magistrate in the judgment as crush injury on forearm which has permanently made his right hand useless and cannot be gainfully employed as a labourer, multiple large wounds on the right hand, extensive skin loss on the back of the plaintiff’s hand,compound fracture of the 4th and 5th metacarpal bone, incapacitation of all four fingers of the right hand that are virtually frozen, injury to the midpalm which are now hard and very stiff, extensive blood loss as a result of severe crash injury.

16. With regard to damages awarded for pain and suffering the 1st respondent’s counsel proposed Kshs.9,000,000/= while appellant’s counsel proposed Kshs.500,000/=. The magistrate awarded Kshs.3,000,000/= relying on the case of Simon Taveta –vs- Mercy Mutitu Njeru2014 e KLR. In my view, the 1st respondent suffered a lot of pain and discomfort. However, from the extent of injuries, an award of Kshs.2,000,000/= wound be adequate compensation for pain and suffering.

17. With regard to loss of earnings or diminished earnings capacity, the 1st respondent was 33 years old at the time of accident. the court adopted a multiplier of 22 years, which I consider reasonable as the 1st respondent had no known medical condition. However, as his incapacity was assessed at 50% it means that even if he cannot do manual labour, he can nonetheless be able to do something else as he is not 100% incapacitated. In my view, therefore, the amount of Kshs.6,457,440/= assessed by the trial court should have been subjected to 50% deduction. I will thus reduce it by 50%.

18. As for special damages, in my view, the amount awarded was pleaded and proved. The appeal will thus be partly successful.

19. As the appeal has partly succeeded, I will order that the appellant pays 60% of the 1st respondent’s costs of appeal.

20. The final orders are thus as follows -a.Liability 80%:20%b.General damages Kshs.2,000,000/=c.Loss of future earningsKshs.6,457,440 x 50/100 = 3,228,720/=d.Special damages Kshs.3,055/=Sub-total Kshs.5,231,775/=Less 20% (1,046,355)Total Kshs.4,185,420/=

21. The appellant will pay 60% of the 1st respondent’s costs of appeal and all the costs of the trial court proceedings. Interest will accrue till payment in full.

Delivered, signed & dated this 7thday of December, 2022, virtually at Makueni.………………………………….George DuluJudge