[2022] KEHC 11156 (KLR)

EM (Minor Suing through Father & next Kin EM) v Kimeru Enterprises Limited & another (Civil Appeal E021 of 2021) [2022] KEHC 11156 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11156 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E021 of 2021

EM Muriithi, J

June 16, 2022

Between

EM

Appellant

Minor Suing through Father & next Kin EM

and

Kimeru Enterprises Limited

1st Respondent

Nathan Mutwania

2nd Respondent

(Being an appeal from the Judgment of the Hon. M.A Odhiambo (RM) delivered on 27/2/2020 in Meru CMCC No. 234 of 2019)

Judgment

Introduction 1. The appellant who was the plaintiff in the trial court sued the respondents by a Plaint dated 16/8/2019 seeking General Damages for pain and suffering and loss of amenities, Special Damages plus costs of the suit and interest. The Appellant case was that on or about 13/4/2019, the minor herein was lawfully travelling from Laare to Meru along Meru-Maua highway aboard his motor cycle Registration No. KMCL 694 N when at Ruiri junction, the 2nd Respondent negligently and/or carelessly attempted to overtake at a sharp corner as a result of which he lost control of Motor Vehicle Registration No. KBV 116 W and hit the Appellant’s motorcycle from behind causing it to crash thereby occasioning the minor grievous bodily injury. He pleaded that the aforesaid accident was solely caused by the negligence and recklessness of the 2nd Respondent whose actions the 1st Respondent was vicariously liable for. He pleaded that by reason of the matters aforesaid, the Appellant suffered loss, damage and injuries, and he claimed damages thereof.

2. The Respondents denied the claim through their joint defence dated 3/9/2019.

3. Upon full hearing, trial court found the Respondents jointly and severally 100% liable for the accident and awarded the Appellant General Damages of Ksh. 100,000, Special Damages of Ksh.15,020 together with costs of the suit and interest. The trial court then made a further order that, “…the decretal sum be deposited in a joint interest earning account in the names of the Executive officer Meru law courts and the next friend and father EM until the minor is 18 years old.”

4. The Appellant was aggrieved by this order of the trial court and he appealed setting out in his Memorandum of Appeal dated 11/3/2020 the following 4 grounds of appeal:1. That the learned magistrate erred in law and fact in awarding to the Appellant inordinately low general damages of Ksh.100,000. 2.That the learned trial magistrate erred in law and fact by giving a low award which was not commensurate with the injuries suffered by the Appellant.3. That the learned trial court erred in law and fact by failing to take into account relevant matters while assessing the quantum of general damages awarded to the Appellant.4. That the learned magistrate erred in law and fact by directing that the monies be deposited in an interest account to be opened by the legal guardian and the executive officer which sums shall be released upon the minor attaining the age of majority.5. The court is mindful of its duty as a first appellate court to reevaluate the evidence adduced before the trial court and draw its own conclusions bearing in mind that it did not hear and see the witnesses who testified. (See Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123).

The Evidence 6. PW1, EM, the Appellant herein, testified that he was the father to EM, who was aged 12 years. After adopting his statement dated 16/8/2019 as his evidence in chief, he went on to state that they were aboard a motor cycle on the material day, and his son sustained injuries on the head, leg and hand. The minor currently experienced constant headache and loss of memory.

7. On cross examination, he stated that although the minor still experienced pain, he did not have any document to prove that the minor had been seeing a doctor. Although there were no fractures, the minor sustained serious injuries and he normally took pain killers. He concluded that the minor was a class four pupil in [Particulars Withheld] Primary School.

8. On re-examination, he stated that the minor still attended school, and the teacher said the minor was forgetful, but he did not have a report.

Submissions 9. The parties agreed to canvass the appeal by way of written submissions which were filed on 19/11/2021 and 13/1/2022 respectively. The Appellant faulted the trial court for making an inordinately low award which was not commensurate with the injuries sustained by the minor, and relied on the case of Easy Coach Limited v Emily Nyaga (2017) eKLR, where the court awarded Ksh.700,000 for similar injuries. He submitted that since the minor sustained complex soft tissue injuries, the future disability was assessed at 15% and the minor experienced constant memory loss which was likely to affect his life in future, an award of Ksh.900,000 would suffice in the circumstances.

10. The Respondents reminded the court the principles of when a first appellate court would interfere with findings of fact of the trial court, and supported that argument with the persuasive cases of Ndungu Dennis v Ann Wangari Ndirangu & Another (2018) eKLR and Ann Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2004) eKLR. They faulted the Appellant for failing to produce documents from the minor’s teacher to show that he experienced memory loss, as alluded to by the Appellant. They submitted that the Appellant ought to have procured the attendance of the doctor who prepared the medical report to demonstrate how the disability was assessed bearing in mind that the injuries were soft tissue in nature and the same had healed. They urged the court to find that the decision of the trial court was supported by the evidence on record and after a full appreciation of the same. They submitted that the award was fair and reasonable, and relied on PF (Suing as next friend and father of SK(Minor) v Victor O Kamadi & Another (2018)eKLR and Buds and Bloom Ltd v Lawrence Emusugut Obwa (2016) eKLR in support of that argument, and they prayed for the dismissal of the appeal with costs.

Analysis and Determination 11. The issues for determination from the grounds of Appeal are two-fold:a.whether the award of General Damages of Ksh.100,000 was inordinately low in view of the injuries suffered by the Appellant; andb.whether the trial court erred in ordering the decretal sum to be deposited in a joint interest earning account in the names of the Executive Officer Meru law courts and the next friend EM until the minor is 18 years old.Whether the award of General Damages of Ksh.100,000 was inordinately low in view of the injuries suffered by the Appellant

12. The principles under which an appellate court may interfere with the award of the trial court on quantum were considered in leading case Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5, where it was held that:“An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. That it must be shown that the trial Court proceeded on wrong principles or that it misapprehended the evidence in some material respect and thereby arrived at a figure which was either inordinately high or low.”

13. The injuries sustained by the minor herein were itemized in the medical report by Dr. Muthuri Kenneth to be healed abrasion on the left forehead, healed abrasion left elbow and healed abrasion right thigh and right knee. The doctor opined that the minor sustained life-threatening injuries and he assessed the degree of injury as harm with disability at 15% due to head injury with recurring headache and memory loss. The Appellant testified that, “the child sustained injuries on the head, leg and hand. The child has constant headache….The child still has loss of memory.” On cross examination, he stated that, “the child still experiences pain….He normally take pain killers.”

14. In the case of Savanna Saw Mills Ltd v Gorge Mwale Mudomo (2005) eKLR the Court restated the position that: -“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

15. It must be noted that a person’s injuries will never be fully comparable to another’s injuries and no amount of money can never fully compensate a person who has sustained any injuries, no matter how small the injuries may appear to be. What the courts must strive to do is to award a reasonable sum in the circumstances. (See H. West & Son Ltd v Shepherd (1964) A.C.326).

16. It is clear that all the injuries sustained by the minor had since healed, but he was said to have persistent headache and memory loss. To support the projection of requirement of future medical requirements, however, the appellant was, on the balance of probability test, required to give cogent evidence supported by expert medical reports on the child. As submitted by the Respondent, it might have been useful for the appellant to call evidence from the minor’s teacher as to the alleged regular headaches and memory loss, and the reporting doctor to justify his assessment of life-threatening injury with 15% disability on account only of tissue injury. The Appellant admitted in cross-examination that the minor did not have any fractures and the injuries were in essence soft tissue in nature. This court, therefore, finds that the trial court’s award of general damages of Ksh.100,000 for the tissue soft injuries was reasonable in the circumstances.Whether the trial court erred in ordering the decretal sum to be deposited in a joint interest earning account in the names of the Executive Officer Meru law courts and the next friend EM until the minor is 18 years old.

17. There was no dispute that the Appellant was the minor’s father and the trial court in its judgment acknowledged that fact. The Appellant in his testimony stated that, “EM is my son.” The Appellant went further to produce the minor’s birth certificate which showed that he was the minor’s biological father. The court accepts the fact that it was the Appellant, as the minor’s care giver and legal guardian, who raised and took care of the minor’s needs, and the decretal sum would naturally be utilized towards sustaining and providing for the child. There was no evidence to the contrary.

18. This court might understand the concern under which the trial court labored that the funds should be utilized and exhausted by the next friend, without the consent of the minor (not having attained the age of consent), and without benefitting the minor who is the injured claimant herein and hence the direction that decretal sum to be deposited in a joint interest earning account in the names of the Executive Officer Meru law courts and the Appellant until the minor attained the age of 18 years.

19. I would have been sympathetic to such logic had the award been more substantial as to allow the father as the next friend utilize part of it for the present upkeep and care of the child while reserving a portion of the award for investment for the child future needs and welfare. However, the modest value of the award, coupled with the fact that the Appellant was the next friend and father who continues to care and provide for the child keeping the money from him until the child attains the age 18 may not be appropriate if the father were then unable to keep up with his role as provider in the meantime.

20. To deny him access to the money is to deny the minor means of enjoy his life at the present, which may prejudice his future enjoyment of the money if he, for instance, drops out of school or suffers destitution in the present. Such eventuality would not be in the best interests of the child which the court is enjoined always to look out for under article 53 of the Constitution and section 4 of the Children Act. The award money should help make present provision for the child and, to the extent possible, be invested for his future welfare.

21. There is no evidence before the court that the plaintiff appellant is so as to make him unfit to control the affairs of his minor child. With respect, this court does not see the basis for the order for deposit of the modest award in an account in the joint names of the father as the next friend and the Chief Executive Officer of the Court until the child attains 18 years.

Conclusion 22. In conclusion, this court finds that the appellant’s appeal has no merit on the principles of appellate interference with the trial court’s discretion in assessment of damages. However, the trial court’s order that the decretal sum be deposited in a joint interest earning account in the names of the Executive officer Meru Law Courts and the Appellant shall be reviewed and set aside for having been made without proper basis on the facts of this case.

Orders 23. Accordingly, for the reasons set out above, the Court makes the following Orders:1. The appellant’s appeal herein dismissed.2. The decretal sum will be paid to the appellant, as the next friend and father of the minor Ezekiel Mwenda.3. The Respondent shall pay the decretal sum to the appellant, as the next friend and father of Ezekiel Mwenda.

24. Costs in the Cause.

Order accordingly.

DATED AND DELIVERED ON THIS 16TH DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Kithome L. Mutinda & & Co. Advocates for the Appellants.M/S Gitonga Kamiti & Kairaria & Co. Advocates for the Respondents.