[2023] KEHC 19794 (KLR)

Coastal Bottlers Limited v Ngati (Civil Appeal E043 of 2021) [2023] KEHC 19794 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19794 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E043 of 2021

OA Sewe, J

June 30, 2023

Between

Coastal Bottlers Limited

Appellant

and

Elijah Mwachanya Ngati

Respondent

(Being an appeal from the Judgment and Decree of Hon. C.K. Kithinji, Principal Magistrate, delivered on 28{{^th}} July 2021 in Voi CMCC No. 75 of 2020)

Judgment

[1]The appellant, Coastal Bottlers Limited, was sued by the respondent, Elijah Mwachanya Ngati, in Voi Chief Magistrate’s Civil Case No 75 of 2020: Elijah Mwachany Ngati v Coastal Bottlers Limited vide the Plaint dated July 2, 2020. The respondent thereby claimed general and special damages for pain, suffering and loss of amenities in respect of injuries sustained by him on December 5, 2018 in a road traffic accident while travelling from Maungu Town to Kasigau. The respondent was riding as a pillion passenger on a certain motor cycle when the motor cycle was hit by Motor Vehicle Registration No KCB 732T TATA Pickup belonging to the appellant.

[2]It was the contention of the respondent, at paragraphs 5, 6 and 7 of his Plaint, that the accident was attributable solely to the negligence of the appellant’s driver in that he permitted the motor vehicle to lose control, veer off from its lane to the wrong lane and subsequently rammed into the motor cycle head-on. He further averred that, as result of the collision, he sustained injuries and special damage as set out in Paragraph 7 of the Plaint. It was on account of the foregoing that the appellant claimed general damages for pain, suffering and loss of amenities, special damages, damages for loss of future earning capacity as well as lost earnings from December 5, 2018 to May 5, 2019 together with interest and costs of the suit.

(3]Although the defendant filed a Written Statement of Defence dated August 12, 2020 denying the claim and the allegations of negligence, the parties thereafter entered into a consent dated April 13, 2021 apportioning liability at 70:30 in favour of the respondent. The consent was accordingly adopted by the lower court thereby narrowing down the issues for determination to quantum of damages payable. Upon hearing the evidence of the respondent and his witness and taking into account the written submissions filed by counsel for the parties, the learned magistrate assessed damages in the total sum of Kshs 1,337,252/= damages, computed as hereunder:(a)General damages for pain and suffering Kshs 900,000(b)Lost income Kshs 90,000(c)Loss of earning capacity Kshs 900,000(d)Special damages Kshs 20,360Sub-total Kshs 1,910,360Less 30% contribution Kshs 573,108Judgment Sum Kshs 1,337,252

[4]Being dissatisfied with the decision of the learned trial magistrate, the appellant lodged the instant appeal on August 18, 2021 contending that:(a)The learned magistrate erred and misdirected herself in law by assessing damages that were manifestly excessive and incomparable with the current judicial awards for analogous injuries.(b)The learned magistrate erred in law in failing to appreciate and apply the principles applicable in assessment of damages.(c)The learned magistrate erred in law and fact in failing to take into account relevant factors in evaluating the evidence on record on quantum.(d)The learned magistrate failed to exercise her discretion judiciously in awarding damages.(e)The amount of general damages awarded was so inordinately high as to represent an entirely erroneous estimate and in reaching such a high figure, the learned magistrate must have acted on wrong principles of law.(f)The learned magistrate erred in law in making an extra-ordinarily high award under the heading of diminished capacity.(g)The learned magistrate erred in law in failing to explain how the award of diminished capacity was arrived at.

[5]In the premises, the appellant prayed that the judgment of the trial magistrate dated July 28, 2021 be reviewed and/or set aside to the extent of the Court’s finding on quantum; and that the costs of the appeal be borne by the respondent.

[6]The appeal was canvassed by way of written submissions; and to that end, Mr Mbago for the appellant relied on his written submission filed herein on December 22, 2022. He submitted that awards must be reasonable and must be assessed with moderation. He made reference toWest (H) & Son Ltd v Shepherd [1964] AC 326 and Lim Poh Choo v Camden and Islington Area Health Authority[1978] 3 WLR 895, 908, among others, for the applicable principles, and for the proposition that inordinately high awards lead to monstrously high premiums for insurance of all sorts and should therefore be avoided for the sake of everyone in the country.

[7]Thus, Mr. Mbago considered an award of Kshs 300,000/= to be fair in the circumstances. He relied onBOG Misyani Girls Secondary School v Joseph Mutiso Kioko [2019] eKLR, Naomi Momanyi v G4S Security Services Kenya Limited[2018] eKLR, Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] eKLR and Damaris Ombati v Moses Mogoko Levis & Another [2019] eKLR in which the awards ranged between Kshs 300,000/= and 400,000/= for comparable injuries. In his view, the authorities cited by counsel for the respondent involved far more serious injuries and are therefore inapplicable to the circumstances of this particular matter.

[8]On lost earnings, Mr Mbago submitted that the respondent failed to prove either that he was a carpenter or that he was earning Kshs 15,000/= per month as alleged. He doubted that the respondent was still capable of performing carpentry work at his age of 60 years, which, in his submission, is a ripe age for retirement. On future earnings, counsel referred toSJv Francesco Di Nello & Another [2015] eKLR, Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, Edwina Adhiambo Ogol v James Kariuki [2020] eKLR and Butler v Butler [1984] KLR 225 as to the distinction between loss of earnings and loss of future earning capacity and how proved. Thus, Mr Mbago prayed that the appeal be allowed with costs and added that no interest is recoverable from the awards for loss of earning capacity or loss of future earnings.

[9]On behalf of the respondent, Ms Langat relied on her written submissions dated February 10, 2023. She confirmed that the parties recorded a consent whereby liability was apportioned at 30% against the respondent and 70% against the appellant; and that the consent was adopted by the Court on May 19, 2021. She pointed out that the respondent was also dissatisfied with the assessment of damages by the lower court and as a result filed a Cross Appeal dated October 4, 2021. She relied onCatholic Diocese of Kisumu v Tete [2004] eKLR as to the applicable principles, namely, that assessment of general damages is at the discretion of the trial court and that an appellate court is not justified in substituting a figure of its own for that awarded by the lower court below simply because it would have awarded a different figure if it had tried the case at first instance; and that an appellate court can only interfere with the quantum of damages awarded by the trial court if it is satisfied that the trial court applied the wrong principles.

[10]Counsel then reiterated the injuries sustained by the respondent as set out in the evidence of PW1 and PW2 before the lower court; including the documents presented in support thereof. In her view the respondent’s injuries were severe in that they entailed bone fractures with resultant deformities and permanent disabilities apart from recurring pains. Ms. Langat pointed out that the appellant did not call any witness to controvert the respondent’s evidence as to the nature and extent of his injuries. She relied on Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya and the cases ofNorth End Trading company Ltd v The City Council of Nairobi[2019] eKLR and Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya [2020] eKLR for the proposition that failure by the defence to call any witness and/or produce any document leaves the plaintiff’s case unchallenged.

[11]At paragraph 37 of her written submissions, Ms. Langat made reference to several authorities in support of her proposal that an award of Kshs 3,500,000/= would have sufficed as general damages for the respondent’s pain and suffering and pointed out that the said authorities were availed before the lower court but were inexplicably omitted by counsel for the appellant from the Record of Appeal. She hastened to add that the authorities relied on by Mr Mbago to support his proposal for an award of Kshs 300,000/= in general damages are all incomparable in terms of the injuries suffered; and that this fact was acknowledged by the learned magistrate at page 147 lines 22-25 of the Record of Appeal.

[12]Counsel however complained that, despite acknowledging that the authorities cited by the respondent were the most comparable and recent, the learned magistrate acted in complete disregard of the principle of stare decisis; and in particular failed to follow the comparable awards made in the said authorities in assessing the damages payable to the respondent for pain and suffering. According to her, the sum of Kshs 900,000/= awarded for as general damages for pain and suffering is inordinately low and is therefore an erroneous estimate of the damages payable to the respondent.

[13]On loss of earning capacity and/or diminished earning capacity, Ms Langat pointed out that, in the respondent’s submissions before the lower court, a justification had been made for an award of Kshs 1,440,000/=. The proposal was based on the respondent’s evidence that before the accident and the resultant injuries, he was earning Kshs 15,000/= per month as a carpenter. She postulated that the respondent would have worked as such for another 25 years before slowing down due to old age. She made reference to the respondent’s identity card as sufficient proof that he was 60 years old at the material time. She added that failure by the respondent to prove his occupation and income was not necessarily fatal to his case as the Court is at liberty to apply the minimum statutory wage for a general labourer. Counsel relied on the following authorities, among others, to support her submissions on this point:(a)Regina Mwikali Wilson v Stephen M Gichuhi & Another [2015] eKLR(b)Rose Adisa Odari v Wilberforce Egesa Magoba [2009] eKLR

[14]Ms Langat defended the award of Kshs 900,000/= for future earning capacity and urged the Court to uphold the same. She relied on Alpharam Limited v Joseph Kariuki Cebron [2017] eKLR and Mumias Sugar Company Ltd v Francis Wanalo (supra), among other authorities, to underscore her arguments. Thus, Ms. Langat prayed that the appeal be dismissed with costs to the respondent; and that the cross-appeal be allowed with costs.

[15]This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions and findings on the basis thereof, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. (See Selle & Another v Associated Motor Boat Co Ltd & Others[1968] EA 123)

[16]As has been pointed out herein above, the appeal is limited to the issue of quantum. Consequently, the record shows that only two witnesses testified in that regard before the lower court, namely the respondent (as PW2) and a police officer (as PW1), as no evidence was adduced by the appellant. In his evidence, the respondent testified that he suffered fractures on the leg and on his fingers, three of which were amputated. He explained that he is right-handed and therefore has been unable to work as a carpenter following the accident. He added that he was aged 60 years at the time; and that he was self-employed and would earn about Kshs 15,000/= from his occupation as a carpenter.

[17]On her part, Senior Sergeant Monica Tottoyet (PW1) testified that an accident report was made at Voi Police Station on December 5, 2018 that had occurred at Kasighau area along the Kasighau-Maungu Road involving Motor Vehicle Registration No KCB 732T, Make TATA Pickup belonging to Coast Bottlers Limited and an unknown motor cycle. She further stated that the scene was visited by traffic police officers on standby duties and after investigations the driver of the motor vehicle was found to be at fault and was accordingly charged with the offence of careless driving. She produced the Police Abstract and a P3 Form issued to the respondent, who was one of the victims of the accident, as exhibits before the lower court.

[18]In the light of the foregoing, the only issue for determination is whether or not the learned magistrate erred in assessing the damages payable to the respondent. In particular, the appellant challenged the general damages component as well as the loss of future earning capacity and lost earnings from December 5, 2018 to May 5, 2019.

[19]In terms of assessment of damages it is instructive to bear in mind the expressions of Lord Morris of Borth-y-Gest in H West & Son Ltd v Shephard [1964] AC 326, that:“...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."

[20]I have similarly taken into consideration the principle that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award unless sufficient cause be shown. Hence, in Hellen Waruguru Waweru (Suing as the legal representative ofPeter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court must be satisfied that either 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 high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan [1981] KLR 349)

[21]I am consequently persuaded by the approach taken by Hon. Wambilyanga, J in HCCC No 752 of 1993: Mutinda Matheka v Gulam Yusuf, that:“The Court will essentially take into account the nature of the injuries suffered, the period of recuperation, the extent of the injuries whether full or partial, and if partial what are the residual disabilities: When dealing with the issue of residual disabilities the age when suffered and hence the expected life span during which they are to be borne. The inconveniences or deprivation or curtailments brought about by the disability must be considered. Then the factor of inflation must also be accounted for if the award has to constitute reasonable compensation."

[22]Similarly, inStanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal suggested thus:“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

[23]In the respondent’s Plaint dated July 2, 2020 his injuries were pleaded as follows:(a)Crush injury right hand with amputation of ring finger;(b)Compound fracture right tibia;And that the injuries led to:(i)Proximal amputation of the ring finger with loss of 2 distal phalanges(ii)Large scars both on palm and dorsal aspect;(iii)Swollen hand(iv)Cannot form a grip;(v)Now suffers 5% permanent disability of right hand.

[24]These particulars were premised on the Medical Report prepared by Dr Hanif MZ dated January 25, 2019, which also shows that the respondent was admitted at Moi Hospital in Voi from December 5, 2018 to December 14, 2018 during which he was taken to theatre for surgical amputation of the right ring finger and suturing of the right hand. The report also shows that above-knee plaster cast was applied; and that at the time of examination and report, the respondent could not use his right hand or right leg. Permanent disability of the right hand was assessed at 5%.

[25]In the circumstances, it is my considered finding that the authorities relied on by Mr Mbago appear to be for less serious injuries and therefore inapplicable to the facts hereof. In the same vein, a good number of the precedents cited by Ms Langat are for far more grievous injuries than those in issue herein. Having given due consideration to the submissions made herein by counsel for the parties and the authorities relied on, I find the following authorities more comparable on the aspect of general damages for pain, suffering and loss of amenities:(a)Rovin Investments Ltd v Edward Mumo Kyaka [2020] eKLR in which the plaintiff had sustained crush injury of the left hand leading to amputation of the middle and small finger and multiple soft tissue injuries. The lower court award of Kshs 1,200,000/= was reduced to Kshs 900,000/= on appeal.(b)Pietro Canobbio v Amani Hinzano [2016] Eklr in which the plaintiff suffered amputation of left index, ring and small fingers. The lower court award of Kshs 500,000/= was enhanced on appeal to Kshs 750,000/=.

[26]Hence, from the foregoing comparison, the lower court’s award of Kshs 900,000/= as general damages for pain suffering and loss of amenities cannot be said to be so excessive as to amount to a wrong assessment, given the age of the second case. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the lower court under the general damages head.

[27]The respondent claimed lost income at the rate of Kshs 15,000/= for a period of 6 months from December 2018 to May 2019 on the ground that he was self-employed as a carpenter at the time of the accident and was earning on the average, Kshs 15,000/= per month. However, because he did not avail proof of such income the lower court opted to apply the Regulation of Wages Order 2019 for an upgraded artisan, which is more or less the same as the sum of Kshs 15,000/= proposed by the respondent. The court therefore used the sum of Kshs 15,000/= as the multiplicand. I find no reason to fault that reasoning; and therefore the sum of Kshs 90,000/= awarded for lost income is, in my view, a fair award in the circumstances.

[28]The Court of Appeal proffered the view, in Hellen Waruguru Waweru (supra) that it is not in every case that parties keep good records of income; and therefore that it would be injudicious to deny such parties compensation just because of lack of documentary proof of income. It held:“This Court has had occasion to contextualize the society in which we live in relation to the requirement for strict proof of damages. In the case of Jacob Ayiga Maruja & Another v Simeone Obayo CA Civil Appeal No 167 of 2002 [2005] eKLR the Court observed:-'We do not subscribe to the view that the only way to prove the profession of a person must be by production of certificates and that the only way of proving earning is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things."

[29]As for loss of earning capacity, there is no dispute that it is a component of general damages and is awarded as such. Hence, inMumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal expressed itself thus on such awards:The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

[30]As to how it is calculated, the applicable principles were reiterated inButler v Butler(supra), by the Court of Appeal as follows: -(a)A person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well paid as before the accident are lessened by his injury;(b)Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages;(c)Damages under the heads of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them;(d)Loss of earning capacity can be a claim on its own, as where a claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial;(e)Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included it is not improper to award it under its own heading; and(f)The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any.

[31]Granted the respondent’s age at the time of the accident, I am not convinced that he had favorable future employment prospects even as a self-employed carpenter; and even where such prospects exist, the court is under obligation, in making an award under this head, to take into account the victim’s permanent disability. Moreover, having opted to be guided by the minimum wage, the learned magistrate was equally under obligation to take into account that the average retirement age is 60 years. It was therefore a grave misdirection for the lower court to proceed on the basis that the respondent had the prospects of working for another 25 years as a carpenter; on the basis of which she awarded him Kshs 900,000/= under this head without reducing it by the 5% disability assessed by Dr Hanif. I find succor in this posturing in the case ofDavid Kigotho Iribe v John Wambugu Ndungu & Another [2008] eKLR in which Hon Koome, J (as she then was) reduced the assessment of loss of earning capacity by 50% to match the assessed disability. The learned judge held:“The characteristics of an award for loss of earning capacity and the principles on which it is assessed were considered more comprehensively in Moeliker v Reynolle & Co Ltd [1977] 1 WLR 132. In that case Browne LJ said at page 140, paragraph B:“This head of damages generally only arises where a plaintiff is at the time of trial in employment, but there is a risk that he may lose this employment at some time in future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earning which can already be proved at the time of the trial”.The claim for loss of future earning as Brown LJ said later at page 140 paragraph G is assessed on the ordinary “multiplier/multiplicand basis.” Accordingly he is not able to be engaged in gainful employment, more so, as a driver because of the injuries. The plaintiff was aged 27 years when this accident occurred. He was earning Kshs 12, 000/- This was also supported by his then employer. Considering that the plaintiff can still use his hands to do some work, I will award the plaintiff a permanent disability of 50%. Considering that the plaintiff was aged 27 years and other vicissitudes of life and the general life expectancy in Kenya today, l will assess the loss of his future earning using the multiplier of 20 years ie Kshs 12, 000 x 20 x 12 less 50% = Kshs 1, 440,000”

[32]A similar position was taken inAlpharama Limited v Joseph Kariuki Cebron[2017] eKLR by Hon Nyamweya, J (as she then was) thus:“Given that both experts were agreed that the Respondent would suffer 60% disability, and it was not disputed that the Respondent was 41 years at the time of the accident and would have retired at about the age of 60 years, a multiplier of 15 years is reasonable in the circumstances taking into account that the Respondent will receive an early capital sum to compensate his loss which can be invested to produce an income, and his career might have been interrupted as a result of the normal risks of life. I therefore find that the loss of future earnings was Kshs 12,085 x 12 x 15 = 2,175,200/=. Any rehabilitation of the Respondent would only result in 40% functionality and therefore reducing the future earnings by 40% would result in Kshs 1,305,180/=.

[33]Accordingly, it is my finding that no justification was made by the respondent for an award of Kshs 900,000/= for loss of earning capacity. Hence the lower court award ought to be reduced by that sum. In the same vein, I find no merit in the cross-appeal and hereby dismiss the same. In the result, the appeal succeeds in part and Judgment of the lower court dated July 28, 2021 in Voi CMCC No 75 of 2020 is hereby set aside and substituted with Judgment in the respondent’s favour in the sum of Kshs 707,252/= only, computed as hereunder:(a)Kshs 900,000/= being general damages for pain, suffering and loss of amenities;(b)Kshs 90,000/= being lost income between December 5, 2018 to May 5, 2019(c)Kshs 20,360/= being special damages.Less 30% contribution

[34]As the appeal is only partially successful, it is hereby ordered that each party shall bear their own costs of the appeal. The respondent will however have interest and costs of the lower court suit. Interest shall accrue at court rates from the date of the lower court’s Judgment until payment in full.

[35]It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 30TH DAY OF JUNE 2023OLGA SEWEJUDGE