[2022] KEHC 14967 (KLR)

Eagle Vet Kenya Limited & another v Munyoki (Civil Appeal 35 of 2019) [2022] KEHC 14967 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14967 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 35 of 2019

RK Limo, J

November 3, 2022

Between

Eagle Vet Kenya Limited

1st Appellant

Ibrahim Kagwima

2nd Appellant

and

Joel Munyoki

Respondent

(Being an appeal against the decree and judgement delivered on 12th day of June, 2019 by Hon. K. Sambu, Senior Resident Magistrate, in Mwingi CMCC Suit No. 134 of 2017)

Judgment

1. This Appeal is related to Civil Appeal No. 34/2019 because it arises from a Judgement of Hon. Sambu in Mwingi PMCC Civil Case No. 134 of 2017 where the subject matter was the same which is a road accident that occurred along Mwingi-Kyuso Road involving motor vehicle Registration No. KBQ XXX J and a motor cycle in which the Respondent herein was the rider.

2. The Respondent upon trial was award damages as follows: -i.General damages Kshs. 800,000ii.Special damages Kshs. 5,550Total Kshs.805,550

3. The appellants were aggrieved on the quantum awarded and filed this appeal raising the following grounds namely;i.That the Learned Trial Magistrate erred in law and in fact when he awarded the Plaintiffs the sum of Kshs 800,000/- as general damages which award were manifestly excessive in the circumstances of the case.ii.That the Learned Trial Magistrate erred in law and in fact in failing to consider the Appellants submissions on quantum and liability thus arriving at a wrong conclusion.

4. The appellant submits that the award of Kshs. 800,000 in general damages by the Lower Court was not grounded on any known and was precedent excessive. They submit that an award of Kshs. 500,000 would have been fair.

5. They have placed reliance on the following authorities on this head;a.George Kingona Maranga & Sammy Kinyanjui vs Lucy Nyokabi Ndambuki(2006)eKLR This was an appeal where the High Court declined to disturb an award of Kshs 420,000/- awarded as general damages for the following injuries dislocation of the right wrist joint, fracture of the right radius in the distal one third, fracture of the styloid process, injury to the forehead resulting into swelling on the left side of the face.b.Rose Makombo Masanju vs Night alias Nightie Flora & Anor (2016) eKLR where the High Court on Appeal substituted the award for Kshs 300,000 for general damages with an award of Kshs 500,000/-. The Appellant sustained fractures to the wrist and head. The injuries were particularized on the plaint as follows fracture to the left wrist, comminuted fracture frontal bone with hem sinus concussion with loss of consciousness for three hours, two deep cut wounds on the forehead and right eye nerve injury.c.Mary AKinyi Atella vs Omondi Beatrice Monica (2021) eKLR the High Court substituted an award of Kshs 1,500,000/- with that of Kshs 500,000/- after making a finding that the only injuries that were proven to be fracture of the right ulnar shaft and dislocation of the left elbow.d.Mbaka Nguru & Anor vs James George Rakwar (1988) eKLR the Court of Appeal set aside an award of Kshs 2,500,000 awarded as damages for pain, suffering and loss of amenities. Injuries sustained were as follows paraplegia resulting from a fracture of the T12 thoracic vertebra with spinal cord damage, severed distal phalanx of the left index finger, cuts on the right cheek and in the right eye brow area. The court found that the award was inordinately high as it did not represent the damage suffered, further it did not reflect the trend of previous, recent and comparable awards. The court substituted the same with an award of Kshs 1,500,000/-. The court also set aside an awards of loss of future earnings and loss of future medical expenses stating that the same were not pleaded. The court also held that held that awards must reflect previous trends, recent and comparable awards.

6. The Respondent on the other hand has opposed this appeal through written submission through Counsel dated September 19, 2022.

7. The Respondent contend that the award from the trial court was justified and should be upheld. He submits he suffered the following injuries: -a.Pain on the left femurb.Dislocation of the ulna of the wrist.c.Pain and bruise of the right knee joint.

8. The Respondent has cited the following decisions;a.Kiru Tea Factory & Another vs Peterson Waitheka Wanjohi (2008) eKLR the court maintained an award of Kshs 800,000/- for the following injury on the right hand with extensive skin and muscle loss on the forearm, fractures on the radius and ulna bones. Treatment involved surgical treatment of the wound and skin grafting, the fractures were treated by plating. Fracture of the right iliac bone in the pelvis and generalized pain on the chest indicating soft tissue injuries. The Respondent was also hospitalized for 3 ½ months and disability on his arms was assessed at 45% by one doctor and 15% by anotherb.George Kingoina Maranga & Sammy Kinyanjui vs Lucy Nyokabi Ndambuki (2006) eKLR where the Plaintiff was awarded Kshs 420,000/- for the following injuries dislocation of the right wrist joint, fracture of the right radius in the distal one third, fracture of the styloid process of the right ulna and injury to the forehead resulting in swelling on the left side of the face.c.Samson Macharia Mwangi & Anor vs Abdifatah Mohamed Khalif (citation not provided on Kenya law) the Plaintiff sustained the following injuries; Head bruise on the nasal bridge, Soft tissue injuries on the head., Soft tissue injuries on the face, Fracture nasal bridge, Soft tissue injuries behind the right ear, Soft tissue injuries on the right shoulder, Deep cut wound on the left wrist joint, Soft tissue injuries on the left leg, Soft tissue injuries on the left knee joint. He was awarded Kshs 500,000/-.

9. The Respondent contends that the authorities cited by the appellant are old and not reflective of the current economic situation.

10. This appeal is only on quantum and the only issue for determination is whether the trial court made correct assessment and exercised his discretion well and judiciously in reaching at the award given.

11. As an appellant court, the duty of this court is to re-consider and re-evaluate/reassess the evidence tendered at the trial in order to reaching own conclusions. In so doing it must be noted that an award of damages is a discretionary matter and unless the appellant demonstrate that the award is too excessive or too low to represent an erroneous estimate, an appellate court would rarely interfere.

12. In this matter, the trial court awarded general damages of Kshs. 800,000. The injuries sustained were pleaded as follows: -a.Pain on the left arm.b.Fracture of midshaft radius with dislocation of a vulva on the wrist joint.c.Pain and bruise on the right knee joint.

13. The accident occurred on January 18, 2017, hospital records provided indicate that he was treated at Mwingi District Hospital, he was then admitted at St Matia Mulumba Mission Hospital on January 19, 2018 and where he was treated and discharged on January 26, 2018. The medical doctor in her report indicated that his degree of injury as grievous harm and stated that the fracture sustained may make him not deliver normally in future.

14. The trial court held as follows on this head;‘‘It is in evidence that the Plaintiff following the accident as confirmed by Dr Cyrpianus Okoth Okere in his medical report admitted herein sustained a fracture of the mid shaft radious , dislocation of the left ulna at the wrist, joint and bruises on the left knee which injuries were severe in nature and taking into consideration the settled principles an award of damages and the cited comparable legal authorities herein and the monetary inflationary trends or Kenyan currency do find that a sum of Kshs. 800,000 as submitted by the Plaintiff’s advocates would be reasonable...’’

15. The general method of approach is that comparable injuries should as far as possible be compensated by comparable awards. The Court of Appeal stated in Mbaka Nguru and Another v James George Rakwar [1998] eKLR that:‘‘The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.’’

16. Ngugi J in Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR stated as follows;‘‘On my part, taking into consideration the nature of the injuries in this case and the global impact on life quality it has had on the Plaintiff while taking into consideration the guiding principle that in assessing damages for pain, suffering and loss of amenities is to both take into consideration the prevailing conditions in Kenya while ensuring that uniformity must be sought in the award of damages.’’

17. In the decision cited by the Respondent of George Kingoina Maranga & Another vs Lucy Nyokabi [2006] eKLR, the plaintiff therein had sustained a dislocation of the left wrist, fractures of the radius and ulna and soft tissue injuries to the face. In 2006, the Court awarded general damages, pain and suffering and loss of amenities in the sum of Kshs 420,000/=.

18. The above decision is quite comparable with the instant case. The above decision was made in 2006 and it is obvious that there have been huge economic changes/inflations on the value of our currency.

19. This court finds that the award of Kshs. 800,000 though high it cannot be termed excessive to warrant the intervention by this court.In the premises, this court finds no merit in this appeal. The same is disallowed and in view of my orders of costs in the related Civil Appeal No. 34 of 2019, I will make no Order as to costs in this appeal. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE