[2017] KEHC 3066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL DIVISION

CIVIL APPEAL NO. 100 OF 2016

BETWEEN

FRODAK CLEARNING SERVICES...............1ST APPELLANT

BUTALI SUGAR MILLS................................2ND APPELLANT

AND

DANIEL MESHACK SHIKANGA......................RESPONDENT

(Being an appeal from the judgement of Hon. M. L. Nabibya, Senior Resident Magistrate in Butali SRMCC No. 57 of 2015 delivered on the 27th October, 2016)

J U D G M E N T

Introduction

1. The respondent in this appeal Daniel Meshack Shikanga was the plaintiff before the Butali Senior Resident Magistrates Court in Civil Case Number 57 of 2015. In the plaint, the respondent alleged that at all material times to the suit he was employed by the first appellant on behalf of the second appellant. He also alleged that it was a term of his contract of employment that the appellants herein would take all reasonable precautions for his safety while engaged upon the said employment and not to expose him to risk or damage or injury which the respondents knew or ought to have known and to provide a safe and proper system of working and effective supervision of the same.

2. The respondent alleged at paragraph 6 of the plaint that on or about 28. 4.2014, while he was lawfully on duty changing a tyre for tractor registration number KTCA 192A he sustained serious injuries due to the negligence and/or breach of contract on the part of the appellants, their agents and or servants. According to paragraph 8 of the plaint, the respondent suffered traumatic amputation of the left leg above the knee and severe pains incurred during and after the injury. The respondent prayed for both general and special damages, costs of the suit and interest on the amounts awarded.

3. The appellants filed a joint statement of defence, denying all the allegations made against them by the respondent, and in the alternative averred that if any accident occurred, which they denied, then the same was caused solely by the respondent or that he substantially contributed to its occurrence. The appellants asked the trial court to dismiss the respondent’s suit.

Judgment of the learned trial court

4. After hearing evidence from both sides of the case, and after carefully analyzing the evidence, and after carefully considering the law the learned trial court reached the conclusion that the respondent had proved his case against the appellants jointly and severally on a balance of probability and entered judgment as follows;-

(a) Liability;- 100% against the defendants jointly and severally

(b) General damages for pain and suffering and loss amenities;- Kshs.1,500,000/=

(c) Damages for loss of earnings kshs.1. 168,200/=

(c) Special damages kshs.650/=

(d) Total Kshs.2,668,850/=

(e) Costs of the case

(f) Interest on (a) (b) (d) and ( e) above

The Appeal

5. The appellants, being dissatisfied with the entire judgment filed this appeal on the following grounds;-

1) The learned trial magistrate grossly misdirected himself in treating the evidence and submissions on quantum before him superficially and consequently coming to a wrong conclusion on the same

2) The learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the appellants.

3) The learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent (If any) and failed to apply precedents and tenets of law applicable.

4) The learned trial Magistrate erred in awarding a sum in respect t of damages which was inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.

5) The learned trial Magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.

6. The appellants pray that the appeal be allowed with costs and that the judgment of the learned trial magistrate be set aside with costs.

7. From the 5 grounds set out above and from the submissions the appellants’ appeal appears to be against the award of kshs.1,500,000/= and this is what this judgment shall focus on.

First Appeal

8. This is a first appeal, and in the circumstances this court is under a duty to reconsider and evaluate the evidence afresh with a view to reaching its own conclusions in the matter before deciding whether or not the findings of the learned trial Magistrate are sound. Until this process is accomplished, this court would have no basis for either affirming or rejecting the findings of the learned trial Court. The only caution though is that this court does not have the advantage enjoyed by the learned trial court of seeing and hearing the witnesses who testified during the trial. For these propositions see Peters – vs – Sunday Post Ltd [1978]EA 424.

The Respondent’s Case

9. During the hearing of the case the respondent testified that while he was on duty as in charge of tractor KTCA 192A, the tractor got a puncture of one of the front wheels. While he was overseeing the fixing of the tyre he heard a sudden bang, and suddenly, the tractor hit him and it rested on his left leg. Efforts to lift the tractor off his leg were made in vain. The result was that his left leg was completely crushed. He was taken to Webuye District Hospital and admitted for one week and thereafter transferred to Kakamega County General Hospital where he was hospitalized for close to 2 months from 03. 5.2014 to 23. 06. 2014. He produced documents to confirm his employment and hospitalization. He also produced medical documents to confirm the injuries he sustained and costs incurred. The respondent blamed the appellants for the accident as the tractor did not have a handbrake and was also not in good mechanical condition. He said that the tractor was not well maintained.

The Appellant’s Case

10. The appellants called Rodgers Wafula as DW1. He testified that he had worked for the second appellant as supervisor for 5 years. He admitted that the accident involving the respondent was recorded. He also confirmed the respondent’s salary was ksh.6,890/= per month. It was also DW1’s evidence that the first appellant was subcontracted by the second appellant.

Submissions

11. At the close of the hearing both parties filed written submissions which submissions were considered by the trial court before issuing judgment as indicated above.

Hearing of this appeal

12. The appeal proceeded by way of written submissions. The appellants’ submissions filed by M/S L.G. Menezes & Company advocates are dated 10. 6.2017. Citing the case of Peters – vs – Sunday Post Limited (above) counsel submitted that though “It is a strong thing for an appellate Court to differ from the findings of a question of fact, of a judge who tried the case and who had the advantage of seeing and hearing the witness,” it was clear in this case that such interference is necessary because in counsel’s view, the learned trial court acted on wrong principles in reaching the findings on damages. In the first place, counsel contended that the respondent’s counsel’s opinion for an award of kshs.1,500,000/= as general damages was not supported by any authority. The appellants had proposed kshs.450,000/= as being sufficient to compensate the respondent who they said had suffered “ only traumatic computation of the left leg.” Reliance for appellants’ opinion was based on the case of Silvanus Ondieki Ochola – Vs – Delta Hauliage Services & another, Kericho HCCC. No. 92 of 2007 where the court had awarded kshs.800,000/= for what counsel said were more serious injuries. Counsel also submitted that the trial court fell into error in relying on the case of Simon M’Mugaa – vs – Kioga Mukwano T/A Kioga Mukwano Transporters & 2 others because the plaintiff’s injuries in that case were more serious compared to those in the instant case.

13. On the other hand the respondent through his advocates M/S Kitiwa & Company Advocates submitted that from the medical report prepared by Dr. Aluda PEXH 6(a) – the injuries suffered by the respondent were very severe and that the respondent’s left leg, which was amputated above the knee remains a permanent feature with 50% permanent disability. Regarding the Silvanus Case (supra) counsel submitted that the authority was decided more than 10 years before judgment in the instant case. Counsel also submitted that in the Kioga Mukwano Transporters case, (above) the plaintiff’s leg was amputated a few inches below the knee and he was admitted in hospital for one month. The plaintiff’s incapacitation rate was put at 35% and the court awarded kshs.2,000,000/= in general damages. Counsel submitted that the respondent’s incapacity which is put at 50% should be a good enough reason for this court not to interefere with the trial court’s award, especially considering that the respondent was hospitalized for a total of 2 months, when he spent one week at Webuye District Hospital and a further 7 weeks at Kakamega County General Hospital.

14. On whether a court should rely on an authority not cited by counsel respondent’s counsel submitted that there is no law outlawing such course of action. Counsel also submitted that the trial court’s action amounted to impartiality which demands that like compensation be given for like injury and that in the circumstances, the appellants’ complaints against the judgment of the learned trial court have no basis and that the appeal should be dismissed.

Analysis and Determination

15. I have myself carefully reconsidered the evidence on record and also carefully considered the judgment of the learned trial Magistrate, parties’ submissions, the law and a plethora of decided cases. As noted by Justice (R) Kuloba in his book MEASURE OF DAMAGES FOR BODILY INJURIES, LAW AFRICAN PUBLISHING 2006, the award of damages is a matter of judicial discretion, and unless it is clear to the appellate court that the trail court has either acted on wrong principles or has made an award that is either too high or too low, then the appellate court should be slow in interfering with the findings of the learned trial court. In all circumstances, damages must be fast commensurate with the injuries sustained.

16 My considered view in this matter is that the learned trial magistrate neither applied wrong principles nor made an award that is too exorbitant in the circumstances. I accept the reasoning by the learned trial magistrate, leading to the award of kshs1,500,000/= as general damages for the injuries suffered by the respondent. I would also like to point out that the Silvanus case (supra) on which the appellant’s wish to rely for their proposal to reduce the quantum was made at a time when the value of the Kenya shilling was at its strongest. That position has drastically changed over the last 10 years, and it would be unreasonable to say that he sum of kshs.800,000/= in 2007 had the same value in 2015.

17. In any event, the respondent proved that he went through an excruciating experience and he is 50% incapacitated. I would also like to point out that the sum of kshs.450,000/= which had been proposed by the appellant was inordinately too low to be considered by the trial court.

Conclusion

18. In conclusion, I am satisfied that this appeal lacks merit and the same is hereby dismissed. The respondent shall have the costs of this appeal and the costs of the trial as ordered by the court below.

It is so ordered.

Judgment delivered, dated and signed in open court here at Kakamega this 3rd day of October 2017

RUTH N. SITATI

JUDGE

In the presence of;-

……………Mr. Ngome holding brief for Mr. Mbega…………..for Appellant

…………Mr. Akwala for Mr. Kitiwa………………………..for Respondent

…………Polycap………………………………………………..Court Assistant