[2023] KEHC 22400 (KLR)

FK (A Minor Suing Through her Mother and Next Friend MKA) v Freight World Logistics Limited & another (Civil Appeal E010 of 2021) [2023] KEHC 22400 (KLR) (22 September 2023) (Judgment)

Neutral citation: [2023] KEHC 22400 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E010 of 2021

FROO Olel, J

September 22, 2023

Between

FK (A Minor Suing Through her Mother and Next Friend MKA)

Appellant

and

Freight World Logistics Limited

1st Respondent

Kahindi Kazungu Nyale

2nd Respondent

(BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HON. MARTIN MUTIA (R.M.) DELIVERED ON 9th FEBRUARY 2021 IN NAIVASHA CIVIL CASE NO 476 OF 2017)

Judgment

1. This appeal is brought against the judgment and decree of Honourable Martin Mutua (RM) delivered on 9th February 2021, where he awarded the Appellant as sum of Kshs 87,795/= plus costs and interest. The appellant was the Plaintiff in the primary suit and had averred that she was a lawful passenger in motor vehicle registration number KAJ 364 N( hereinafter referred to as the 1st suit motor vehicle ) along Nairobi –Mai Mahiu road at Msikitu area, when the 2nd Defendant negligently drove, managed and or controlled motor vehicle registration number KBJ 351 M/ZE 0054 (hereinafter referred to as the 2nd suit motor vehicle), and caused it to violently collided into the 1st suit motor vehicle, thereby causing the appellant to suffer serious injuries. The appellant prayed for General damages, Special damages, costs and interest.

2. The Defendant filed a statement of defense dated 19. 09. 2017 denying all the contents of the Plaint and stated in the alternative that if indeed an accident did occur, it was caused or substantially contributed to by the driver of Motor vehicle KAT 529L and at the opportune time, they would institute third party proceedings as against the proposed third party. Further the defendant stated that, the said accident was caused by circumstance beyond its control and vicariously liability was thus denied.

3. During trial liability was agreed at 10:90 in favour of the appellant and the same was adopted as a judgment of the court. After hearing the suit, the learned magistrate in his judgment delivered on 9th February 2021 awarded the appellant as follows;i.General damages Kshs 90,000ii.Special Damages Kshs 7,550iii.Less 10% contribution (Kshs 9,775)Total 87,795/=iv.Costsv.Interest thereon.

4. Dissatisfied by this decision, the Appellant filed this Appeal seeking to have the judgment on quantum set aside and or reviewed and the same be enhanced plus costs of the Appeal.

5. The Appeal was founded on the grounds that;i.The learned Trial Magistrate erred and misdirected himself in law and in fact in his assessment of damages awardable to the Appellant by awarding damages that were inordinately low in the circumstancesii.The learned Trial Magistrate failed to appreciate and/ or misapplied the principle applicable in the assessment of damages under the circumstancesiii.The learned Trial Magistrate erred in law and in fact in awarding the Appellant an inordinately low award in respect of general damages.iv.The learned Trial Magistrate erred and misdirected himself in law and in fact by not properly analyzing the appellant’s testimony and his witnesses in court, medical documents produced and his submissions on the severity of her injuries.

Facts of the case 6. The appellant’s mother and next friend testified that on 16. 05. 2017, they were passenger’s in the 1st suit motor vehicle, travelling from Nairobi to Kisii. On reaching Musikiti area along Nairobi – Maai Mahui road, they were hit from behind by the 2nd suit motor vehicle, which caused the 1st suit motor vehicle to roll off the road. The minor was injured and was taken to Mahui Mahui health centre for treatment and later sought further treatment at Maximum center and laboratory services. The appellant produced all the documents in his list of documents as Exhibits. Further, she blamed the driver of the 2nd suit motor vehicle for causing the accident as he failed to keep distance and knocked the 1st suit motor vehicle from behind. In cross examination the appellant stated that the minor had not healed and had pains in her body but did not have any document to show that she was being attended to at any hospital. The respondents did not call any witness to testify on their behalf and judgment was entered for the appellants.

7. The Appeal was disposed of by way of written submissions. At the time of writing this judgment, only the Appellant’s submissions were on record.

Submissions 8. The Appellants counsel filed submissions on 13. 01. 2023 and expressed himself on the issue of quantum. Counsel relied on the case of Kemfro Africa Limited t/a Meru Express Services & Another vs A.M. Lubia and Another No.2 (1982-88) L KAR 727, Butt vs Khan [1981] KLR 349, Francis Ochieng & Another vs Alice Kajimba [2015] e KLR, It was contended that based on the medical documents that were produced, including Dr. Omuyoma’s medical report, the Appellant sustained blunt injury to the anterior chest wall leading to soft tissue injuries, blunt injury to the left elbow joint leading to soft tissue injuries , blunt injuries to the left ankle joint leading to soft tissue injuries .The injuries were classified as harm.

9. Further, that the injuries sustained in the case law of Ndungu Dennis vs Ann Wangari Ndirangu [2018] e KLR that was relied upon by the Trial Court in making in its judgment are not comparable to the ones sustained by the Appellant herein. The award of Kshs 90,000 thus did not take into account factors such as inflation, and severity of injuries of the Appellant.

10. The court was urged to enhance the award and increase the award to between Kshs 300,000 and Kshs 500,000. This point was buttressed by the case of Patrick Kinoti Miguna vs Peter Mburunga G. Muthamia [2014] eKLR, Catherine Wanjiru Kingori & 3 others vs Gibson Theuri Gichubi [2005] eKLR and Lucy Ntibuka vs Benard Mutwiri & others [2005] eKLR.

Analysis and Determination 11. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.

12. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 where it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court Is by way of retrial and the principals upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. ( Abduk Hammed saif V Ali Mohammed Sholan(1955), 22 E.A.C.A 270

13. Guided by the above case, the duty of this appellate court is cut out. The only issue raised in this Appeal is that of quantum and the question is whether this court should interfere with it by enhancing the same.

14. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004] eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-“It is trite law that the assessment of general 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 below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

15. Similarly, in Jane Chelagat Bor vs Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-“In effect, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, If the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

16. From the Plaint, the Appellant pleaded that he sustained the following injuries; blunt injury to the anterior chest wall leading to soft tissue injuries, blunt injury to the left elbow joint leading to soft tissue injuries, blunt injuries to the left ankle joint leading to soft tissue injuries. The injuries were classified as harm.. These injuries are also consistent with the injuries captured in the other treatment notes and P3 produced.

17. At the trial court, the Appellant relied on the case of Francis Ochieng & Another vs Alice Kajimba [2015] e KLR which I looked at and in this case, the Respondent sustained the following injuries; cerebral contusion with loss of consciousness for 2 hours, massive haematoma on the right parietal head, sub conjuctual haematoma of the right eye, peri-orbital haematoma, loss of 5 anterior lower and 2 upper teeth, peri-orbital ecchymosis, nuckial stiffness, cut wound on the right hand and the right knee. These injuries are more serious than those sustained by the Appellant in this case and therefore cannot be relied upon to gauge the quantum.

18. In the case of Ndungu Dennis vs Ann Wangari Ndirangu [2018] e KLR that was relied upon by the Trial Court in making its determination, the Respondent sustained the following injuries;“minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg. All these three conclude that the injuries are “soft tissue injuries.”

19. 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. 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 as either inordinately high or low. This was stated in the case of Butt v Khan (1977) KAR 1. Thus, I can only interfere with an award of damages if the aggrieved party satisfies one of two conditions:a.That the trial Court took into account irrelevant factors or left out relevant factors when assessing damages; orb.The amount of damages is so inordinately high or low that the quantum awarded must be a wholly erroneous estimate of damages.

20. The Appellant contends that the award of Kshs 90,000 did not take into account factors such as inflation, severity of injuries of the Appellant and the age of the legal citations. The decision’s relied on by the respondent namely; Catherine Wanjiru Kingori & 3 others Vs Gibson Theuri Gichubi {2005} eKLR & Patrick Kinoti Miguna Vs Peter Mburunga Muthamia (2014) eKLR, are not good law and are manifestly excessive given the nature of injuries suffered. The decision’s in PF (Suing as next friend and father of SK (Minor) Vs Victor O Kamadi & Another (2018) eKLR & Ndungu Dennis Vs Ann Wangari Ndirangu & Another {2018} eKLR are more reflective of the correct quantum awarded for similar injuries.

21. The accident herein occurred in 2017. The award is generally reflective of similar award for similar injuries. I find that no reason to disturb the award of the Trial Court. The court did take into account all the relevant factors in making its determination and it has not been shown otherwise.

Disposition 22. This appeal thus has no merit, the same is thus dismissed with no orders as to costs.

23. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 22ND DAY OF SEPTEMBER 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 22nd day of September, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant