[2010] KEHC 3374 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 375 of 2006

DEVKI STEEL MILLS LTD..…….………..………….APPELLANT

VERSUS

FRANCIS MUSYOKI MGUMBI.……....……………RESPONDENT

J U D G M E N T

1. This is an appeal arising from a suit which was filed in the Chief Magistrate’s Court at Nairobi, by Francis Musyoki Ngumbi (hereinafter referred to as the respondent). He had sued his employer Devki Steel Mills Limited (hereinafter referred to as the appellant). The respondent’s claim was for general and special damages for personal injuries suffered by the respondent during the course of his employment. The respondent maintained that the injuries were a result of the appellant’s breach of contract, statutory duty and/or negligence.

2. The appellant filed a defence, set off and counterclaim, in which it admitted that the respondent was at the material time its employee. The respondent however denied having been in breach of its contractual and/or statutory duty of care. The appellant further denied that the respondent suffered any injuries as a result of negligence on the part of the appellant or its servants, agents or employees. The appellant contended that the accident was in fact caused by the respondent’s negligence. The appellant further pleaded volenti non fit injuria. The appellant claimed from the respondent by way of set off and counterclaim, a sum of Kshs.19,250/= arising from a previous suit Milimani CMCC No.13188 of 2004, which was filed by the respondent against the appellant and which suit was later withdrawn.

3. Following the negotiations between the parties, judgment on liability was recorded by consent at 90 to 10% in favour of the respondent as against the appellant. Special damages were agreed at Kshs.2,700/= but parties were unable to agree on general damages and hearing therefore proceeded for the purposes of assessment of damages.

4. Dr. Kiama Wangai testified on behalf of the respondent. Dr. Wangai testified that he examined the respondent and noted that the respondent was injured on the right eyeball by a piece of metal. The eyeball was raptured and had to be removed at Kenyatta National Hospital. The respondent therefore suffered the loss of the right eye and had a permanent incapacity of loss of eye which Dr. Wangai assessed at 90%. Dr. Wangai further testified that the respondent required an operation on the left eye so that he could see on the right side. Dr. Wangai estimated the operation to cost a sum of Kshs.180,000/=.

5. Dr. A. K. Shah, a consultant eye specialist for the last 32 years testified for the appellant. His examination of the respondent revealed that the respondent suffered loss of his right eye, but the left eye was perfectly normal with no reflective error. Dr. Shah maintained that the vision of a normal eye could not be improved, and therefore the respondent did not require fitting of a binocular lens on the normal eye as the same cannot increase the field of vision. Dr. Shah testified that the respondent would permanently have a restriction of vision on the right side. He estimated the cost of a prosthesis for the right eye socket at Kshs.3000/= to Kshs.5000/= with replacement every 3 to 4 years. He assessed the respondent’s permanent incapacity at 30% under the Workman’s Compensation Act.

6. Counsel for the respondent filed written submissions urging the court to award the respondent a sum of Kshs.650,000/= as general damages for pain and suffering, Kshs.180,000/= as costs of binocular lens, and Kshs.150,000 as cost of artificial eye, as well as Kshs.4,500/= being cost of medical report and costs of court attendance fees.

7. Counsel for the appellant urged the court to award general damages of Kshs.350,000/= less 10% contribution. Counsel further urged the court to allow the appellant’s set off and counterclaim of Kshs.19,250/=. Counsel submitted that the respondent had not specifically proved the claim for future medical expenses, nor had he pleaded any claim for the artificial eye. He therefore urged the court not to allow the respondent’s claim in that regard. Further, counsel urged the court not to allow the claim in respect of the doctor’s fees as the receipt issued by the doctor did not have a revenue stamp as required under Section 19 and 20 of the Stamp Duty Act.

8. In her judgment, the trial magistrate awarded a sum of Kshs.500,000/= as general damages in respect of pain and suffering and Kshs.150,000/= in respect of future medical expenses as well as Kshs.3,000/= in respect of special damages and the cost of medical report.

9. The appellant is aggrieved by the trial magistrate’s assessment of damages. The appellant has filed a memorandum of appeal raising 5 grounds. In a nutshell, the grounds raised are that the awards are exorbitant, manifestly excessive, unreasonable and unjustified. And further that the future medical expenses were neither pleaded nor proved. Following the agreement between the parties to have this appeal disposed of by way of written submissions, each party duly filed its submissions.

10. For the appellant it was submitted that the trial magistrate did not consider the disability suffered by the respondent. It was contended that Dr. Kiama’s assessment of 100% was not justified, the respondent’s permanent incapacity having been assessed by Dr. Shah under the workman’s compensation at 30%. It was further submitted that Dr. Kiama was not an eye specialist and that the opinion of Dr. Shah an eye specialist of 32 years standing should be followed. It was maintained that the respondent only prayed for special damages of Kshs.3,000/= and was therefore not entitled to the further damages of future medical expenses which were not pleaded. It was contended that the necessity of future medical expenses was not proved nor was there a basis for the estimated costs of Kshs.180,000/=. Counsel for the appellant urged the court to allow the appeal and set aside the judgment of the lower court.

11. For the respondent it was submitted that the award made by the trial magistrate was within the range of comparable awards for similar injuries. It was maintained that the award was neither excessive nor erroneous as to justify interference by this court. With regard to the future medical expenses, it was contended that the same was pleaded in paragraph 6 of the plaint and that in any case, the same being part of the general damages, it did not have to be specifically pleaded. Counsel for the respondent submitted that the award made by the trial magistrate in respect of the future medical expenses was made after taking into account the medical opinions given by Dr. A.K. Shah and Dr. Kiama Wangai. It was further submitted that the report of Dr. Shah was biased and casually prepared. The court was therefore urged to dismiss the appeal.

12. It is evident that judgment on liability having been entered by consent, this appeal is essentially against the assessment of damages. In considering such an appeal, the critical factor is whether the award is either manifestly excessive or low as to result in a wrong estimate or whether it is based on a wrong principle of law or misunderstanding of the evidence. The award should also be consistent with comparable awards for similar injuries (See Jabane vs Orenja [1986] 661). In this case, the trial magistrate’s award was based on the evidence of the two doctors i.e. Dr. Kiama and Dr. Shah. As regards general damages the respondent having suffered total loss of sight in one eye, the amount of Kshs.500,000/= which was awarded by the trial magistrate was neither excessive nor unreasonable given the comparable authorities which were cited before the trial magistrate, and taking into account the element of inflation. With regard to the claim for future medical costs, the same were pleaded under paragraph 6 of the plaint and the appellant’s contention in that regard must be rejected. There was evidence adduced before the trial magistrate regarding the necessity or otherwise of a further operation to improve the vision on the right eye. The trial magistrate considered Dr. Kiama’s recommendation for the requirement of a binocular lens, which was opposed by Dr. Shah. The trial magistrate did not make any specific finding regarding the need for the further operation. The trial magistrate did not however make any award in respect of the future operation and appears to have based his assessment of future medical expenses on Dr. Shah’s recommendation that the respondent would require an artificial eye every 3 to 4 years. The trial magistrate calculated the future medical costs based on the figures given by Dr. Shah and arrived at his assessment of Kshs.150,000/= for future medical expenses. I find that there is no good reason to fault the trial magistrate in that regard.

13. As concerns the special damages, the same was agreed by consent of the parties on 23rd March, 2006 at Kshs.2,700/= and therefore the special damages were not for assessment by the trial court. The upshot of the above is that I find no merit in this appeal and do therefore dismiss the appeal subject to the rectification in respect of the special damages which should be Kshs.2,700/= and not Kshs.3,000/=.

14. The appeal is accordingly dismissed with costs.

Dated and delivered this 22nd day of January, 2010

H. M. OKWENGU

JUDGE

In the presence of: -

Mrs Otieno for the appellant

Momanyi for the respondent

Muturu - court clerk