[2017] KEHC 8199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CIVIL APPEAL NO. 3 OF 2015

GEORGE NJENGA ……………………….…... 1ST APPELLANT

SOLOMON WAMAE ……………….......…… 2ND APPELLANT

Versus

NAOMI NYARUAI WACHIRA …………..........… RESPONDENT

(being an appeal from the decision and judgment in the Chief Magistrate’s Civil Case No. 23 of 2014 delivered by T. Matheka, Chief Magistrate on 5th August, 2015.

JUDGMENT

1. GEORGE NJENGA and SOLOMON WAMAE, the appellants herein, have filed this appeal against the Nanyuki Chief Magistrate’s award Kshs.500,000 in general damages and Kshs.150,000 for further medical expenses for injuries suffered by Naomi Nyaruai Wachira, the respondent. The respondent was on 23rd September 2013 travelling as a pillion passenger of a motorcycle which collided with a lorry belonging to Solomon Wamae but driven by George Njenga. The only issue which as before the trial court for determination was the quantum of damages. It is the award of general and special damages that is the subject of this appeal.

2. The appellants by their grounds of appeal have raised the following issues for determination by this court:-

(i) whether the award of Kshs.500,000 in general damages was excessive considering the injuries suffered;

(ii) whether the trial court applied the wrong principles in making that award;

(iii) whether the trial court erred in making an award of Kshs. 150,000 for further medical expenses;

(iv) whether the trial court failed to consider the appellants’ submissions and authorities; and

(v) whether the trial court failed to apply the doctrine of stare decisis in considering the authorities cited before it.

3. I shall consider issued (i), (ii),and(iv) together. To consider whether the trial court erred in awarding general damages it is important to pay regard to the injuries the respondent suffered. Dr. Ben Muthiora presented the respondent’s medical report, which report was submitted in evidence, before the trial court by consent. The doctor noted the following injuries:-

Deep scalp wound on the occipital region and bruises on thefrontal region;

Tender neck;

Injury to the right thumb;

Injury to the right shoulder;

Deep cut would on the medial aspect of the right knee; and

Transverse facture of the mid shaft right femur.

The doctor noted in the report that after treatment the respondent had the following conditions:-

Multiple scars on the right knee and forehead;

Scars on the shoulder; and

Walking with a clutch.

4. The appellants in their written submissions before the trial court stated that an award in general damages of Kshs.70,000 was adequate for the injuries suffered by the respondent. The appellants cited before the trial court the following cases:-

(a) KINYANJUI WANYOIKE –V- JONATHAN MUTURI CHOGA (2004) eKLR.

In that case the plaintiff suffered fracture of the femur. He was awarded Kshs.100,000 in general damages.

(b) YUNIS NOOR MOHAMED MANGIA –V- THE AG (2004) eKLR.

In this case the plaintiff suffered 1st degree burns on the right arm and 2nd degree burns on the buttocks, thighs and both feet. The court awarded kshs.120,000 in general damages.

5. The learned trial magistrate (as she then was, now a High Court Judge) noted that the cases cited by the appellants were more than 10 years old.

6. The respondent cited the case KIRINYAGA DISTRICT CO-OPERATIVE UNION & ANOTHER –V- EUSTACE MACHERU WILSON (2014) eKLR where the plaintiff suffered compound fracture of the right elbow joint; transverse fracture of the upper 1/3 right femur; and dislocation of the right hip joint. The court in that case awarded Kshs.1,400,000 in general damages.

7. The trial court after considering all the authorities cited by the parties and on noting that the injuries in this case were less severe compared to those in the KIRINYAGA DISTRICT CO-OPERATIVE case (supra), proceeded to award the respondent Kshs.500,000 in general damages.

8. The Court of Appeal in the case Bayusuf Freighters Limited V Patrick Mbatha Kyengo (2014) eKLR set out the principles to guide an appellant court when considering an appeal on assessment of damages viz:-

“There is no dispute in respect of liability and the only issue in contention is quantum. This court in GEORGE KIRIANKI LAICHENA VS MICHAEL MUTWIRI – CIVIL APPEAL NO. 162 OF 2011 expressed itself as follows:-

‘It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interest for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H. WEST & SON LTD – VS SHEPHARD (1964) AC 326 at page 353:-

“The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of, his own assessment.’

However there are clear principles which have been decanted overtime and will guide us in considering this appeal. In BUTT –VS- KHAN (1981) KLR 349, Law J.A. at page 356 held:-

“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 as figure which was either inordinately high or low.’

9. I have considered the authorities cited before the trial curt and also before this court. I first wish to note, just as the trial court noted, that the appellant’s authorities are over ten year old. In my consideration of the authorities cited I cannot see any basis of interfering with the trial court’s award. The award in my view was moderate, considering the cited authorities. The trial court did not proceed on the wrong principles.

10. It will be clear from the above discussion that the trial court did consider the appellants’ submissions and authorities and there is therefore no basis for the submissions that it failed to consider the same.

11. On issue (iii), above, I wish to state that the trial court did not err in awarding Kshs.150,000 for future medical expenses. I have noted the decision of R. K. Limo J. where the learned judge while considering an appeal, held, that a trial court’s award for future medical expense was too general, and not specific. The learned judge faulted the trial court for considering that claim which had not been pleaded. See STANLEY NTIRITU KIAMBATI – V- JOLIE NGOY MWAMBA alias JOLLY MWAMBA WAMBUA & ANOTHER (2015) eKLR. I however note that the respondent pleaded at paragraph 5 of her plaint for future medical expenses. Further the respondent in evidence in Chief, before the trial court stated:-

“I will go for check up on 29/5/2015. The K nail will be removed in September this year. I experience pain. I live on pain killers. The next removal of the K nail will be Kshs.150,000. I go this figure from Nanyuki Cottage Hospital. I have my appointment card for 29/5/2015. I produce it as P exh. 8. I pray that I be compensated from my costs.”

12. It is also important to note that Dr. Ben Muthiora, through his report submitted by consent of the parties in evidence at the trial, stated that the respondent would require further operation to remove the K nail in her leg.

13. It is important to note that the appellants did not offer any evidence during the trial. The respondents’ evidence on the need for the award of future medical expense was therefore unchallenged. But perhaps more importantly the learned counsel for the appellants did not at all cross examine the respondent on that evidence on future medical expense.

14. It is clear from the above that the facts of this case are distinguishable to those set out in the case STANLEY NTIRITU KIAMBATI (supra).

15. It is important to also realize that it is not in all case that receipts for proof of special damages would always be available. The Court of Appeal in the case JACOB AYIGA MARUJA & ANOTHER –V- SIMEON OBAYO COURT OF APPEAL AT KISUMU CIVIL APPEAL NO. 167 OF 2002stated:-

“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to the very many Kenyans who are even illiterate keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things. In this case, the evidence of the respondent and the widow coupled with the production of school reports was sufficient material to amount to strict proof for the damages claimed.”

16. In view of the above the trial court did not err to award damages for future medical expenses.

17. The last issue raised is indeed a non-issue. The trial court had authorities, all from the High Court, which it considered distinguished, and then applied to the facts in point. Accordingly the court did not fail to apply the doctrine of stare decisis.

18. In the end the appellant’s appeal fails and it is dismissed with costs to the respondent.

DATED AND DELIVERED THIS 2ND DAY OF FEBRUARY 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: ………………………………

For Appellants: ………………………………..

For Respondent: ………………………………

COURT

Judgment read in open court.

MARY KASANGO

JUDGE