[2019] KEHC 4593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT ELDORET

CIVIL APPEAL NO. 110 OF 2015

EASY COACH LIMITED..........................................................APPELLANT

VERSUS

RHODA AMULELE OGOMA...............................................RESPONDENT

(Being an Appeal from the Judgment of the Senior Resident Magistrate Honourable G. Adhiambo in Kapsabet Civil Case No. 164 of 2013, dated 9th September, 2015)

JUDGMENT

This is an appeal arising from the judgment and decree of Hon. G. Adhiambo, delivered on the 9th September 2015 in Kapsabet SPMCC No. 164 of 2013.

The grounds upon which this appeal is premised are that: -

1. The learned trial magistrate erred and misdirected herself as to the exact and the nature of the Respondent’s injuries and therefore erred in law in her assessment of damages awardable to the respondent which was manifestly excessive.

2. The learned trial magistrate erred in law and fact in holding that the defendant was liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.

3. The learned trial magistrate erred in law in assessing damages and failed to apply the principles applicable in award of damages and comparable awards made for analogous injuries.

4. The learned trial magistrate erred in assessing special damages and the principles applicable in making an award under special damages.

5. The learned trial magistrate erred in law and fact in making an award and determination in injuries on matters not pleaded.

6. The award by the trial magistrate is inordinately high, and against settled principles.

The respondent herein, Rodah Amulete Ogama, instituted legal proceedings against the applicant in the lower court vide a plaint dated 23rd October 2013 in which the plaintiff/respondent prayed that judgment be entered against the defendants for: -

a) Special damages – Kshs. 35,000/=

b) General damages to be assessed by the court.

c) Costs and incidental to the suit.

d) Interest on a, b, c above at the court rates

e) Any other further relief that the Honourable court may deem fit and just to grant.

In the end, the trial court entered judgment against the defendant as follows: -

Liability: 80:20 in favour of the plaintiff

General damages Kshs. 1,000,000. 00

Add Special Damages Kshs. 28,624. 00

Kshs. 1,028,624. 00

Less 20% Kshs. 205,724. 80

Total Kshs. 822,899. 20

A brief synopsis of the case is that, on or about 9th September 2011, the respondent was abode the appellant’s motor vehicle Reg. No. KBN 374 Mitsubishi Bus as a passenger plying the Nairobi-Kakamega route when an accident occurred and consequently the respondent sustained serious bodily injuries. The motor vehicle was driven at the time by one Robert Nyagaka who was at the time employed by the appellant as a driver. Criminal charges were later instituted against him.

The respondent /plaintiff testified in court that on the 8th of September 2011 she boarded an Easy Coach Bus in Nairobi destined for Kakamega. She claimed that she was seated on the seat right behind the driver. Besides her was her friend Betty Olucho. She claimed that since the Kericho-Kisumu Highway had many road diversions, the driver chose to use the Lessos-Nandi Hills route where then they would proceed to Kisumu then to Kakamega. She further testified that the driver was driving recklessly despite the many calls from the passengers to exercise caution. She claims that she lost consciousness when the accident occurred and that she only remembered being awoken by her friend Betty Olucho, her body being numb.

She claims that she rang her friend who was a police woman and who consequently arranged for an ambulance to be dispatched to the scene of the accident. The plaintiff/respondent recounted that it was until around 3:00 a.m that the ambulance arrived and she, together with other passengers, were rushed to Nandi Hills District Hospital where she was attended to. She claimed that she was transferred to Aga Khan Hospital in Kisumu the next day at around 10:00 a.m. She was later discharged on the 12th of September 2011.

She stated that she paid a bill of Kshs. 24,829/=. She claimed that upon her discharge, she boarded a flight to Nairobi for further medical assistance from her personal doctor.

The plaintiff/respondent was further examined by Theophills Wangata on the 31st of August 2013 who then prepared a medical report on her. She was also examined by a consultant surgeon named Dr. Wakobi who prepared another medical report on her.

At the trial proceedings, the plaintiff/respondent claimed that she was yet to fully recover as she would occasionally experience numbness on the left part of her body. She would occasionally visit the hospital for regular medical attention that included physiotherapy sessions at the MP Shah Hospital. She further claimed that her vision was partially impaired as a result of the accident.

Later on, she went to Nandi Hills Police Station where she recorded a statement and a P3 form consequently filled and issued on 16th November 2012. The same was produced as evidence and marked PMF14.

She was also issued with a police abstract serial NO. 0131139 in relation to the road accident.

The appellant herein has raised an appeal on the quantum of general damages awarded, as per its written submissions, and that being the case, I will limit the determination of this appeal to the question of general damages awarded only.

The fundamental question that this court asks itself is whether the trial magistrate premised her determination on the wrong principles of law as to make an unreasonable award for the damages.

The appellate jurisdiction bestowed upon this court with regards to interference with the lower court findings, though largely discretionary, it is important to note that such discretion should be exercised judiciously within the precincts of law. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) IKAR278 stated that:

“A court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to haveacted on wrong principles in reaching the findings he did”

Further, the Court of Appeal in the case of Kenfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30, held as follows:-

‘The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it 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 low or so inordinately high that it must be a wholly erroneous estimate of the damages.’

The medical report produced in evidence and marked as P exhibit 8 indicated that the plaintiff/respondent suffered an 18% permanent disability on the spinal column, whose adversity could only be mitigated through medications with painkillers, anti-inflamatory drugs and physiotherapy. The same medical report indicated that this abnormality could not have pronounced itself immediately after the accident as that would have occasioned permanent disability on her. The appellant’s defence that these complications arose way after the occurrence of the accident, and that the same could not be attributed to the accident, therefore does not suffice.

In the case of Clara Nyaruma Oketch Vs. Akamba Bus Service Nairobi HCCC No 3506/85, the plaintiff suffered soft tissue injuries and perforation of the left eye described by the doctors as severe and permanent and the scars were also described as unsightly and embarrassing to a young lady; the court assessed the general damages at

Kshs 250,000/-.

In the case of MwanaJuma Ali Vs. Nairobi Bus Union, Nairobi HCCC No 369/87, the plaintiff sustained bruises on the head, nose, right side of the face, front left side of the chest, abdomen, lower back plus perforation of the left eye. The medical reports described the injuries as perforation of the left eye with resultant cataract and soft tissue. It was concluded that as a whole the residual factors are in form of scars with no interference with function serve for the eye that has lost visibility. Permanent disability is due to reduced vision. General damages were assessed at Kshs. 300,000/=.

There is a likelihood that the respondent in this case may never fully regain her wellbeing. What this court ought to do is find an adequate compensation, albeit a reasonable one, for the loss occasioned by the accident. Better description was given by Potter JAin Tayab v Kinany (1983) KLR14, who statedas follows:

“But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.”

Evidence on record has shown the extent of the injuries that were occasioned on the respondent as a result of the accident. It is also apparent that the respondent still suffers from the ripples of the accident and there is uncertainty as to when she will completely heal, if ever.

All the relevant circumstances taken into consideration in totality, I find that the assessment by the trial magistrate was unreasonably high considering the many precedents that have set the damages for similar injuries considerably lower than the one awarded by the trial magistrate. Cognizance is also taken of the period in time the above mentioned list of judicial precedents were adjudicated upon. Even with the ever rising rate of inflation, and an economy ever on the heels of rising cost of living, this court, still contends that the general damages awarded by the trial magistrate were exorbitantly high and is hereby varied as follows: -

1. The Kshs. 1,000,000/= general damages awarded is hereby varied by half, to Kshs. 500,000/=

2. The special damages awarded to the tune of Kshs. 28,624, is hereby maintained.

3. Apportionment of liability is hereby maintained at 80; 20% in favour of the plaintiff/respondent, as per the consent by the parties in the trial court proceedings.

The Net Damages payable to the plaintiff (less 20% liability) is Kshs. 422,899. 20/=. Each party to bear its own costs.

It is so ordered.

S. M GITHINJI

JUDGE

DATED, SIGNED and DELIVERED at ELDORET this 10th day of July, 2019

In the absence of:

Mr. Murimi for the appellant and presence of Mr. Ngigi holding brief Mr. Ochoki for the respondent

Ms Sarah – Court assistant