[2017] KEHC 8195 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CIVIL APPEAL NO. 1 OF 2015

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

SOLOMON WAMAE …………… 2ND APPELLANT

VERSUS

DANIEL WACHIRA MWANGI …… RESPONDENTS

(being an appeal from the decision and judgment in the Chief Magistrate’s Civil case No. 24 of 2014 delivered by T. Matheka, Chief Magistrate on 5th August, 2015 in Nanyuki CMCC No. 24 of 2014)

JUDGMENT

1. GEORGE NJENGA and SOLOMON WAMAE have appealed against the decision before the Nanyuki Chief Magistrate’s court where the said court awarded special and general damages to Daniel Wachira (Daniel).Daniel on 23rd September 2013 was riding his motor cycle registration No. KMCY 810 G along Nanyuki – Meru Road. George Njenga was driving a lorry belonging to Solomon Wamae, being registration No. KBN 436 L, along the same road. An accident between the motorcycle and that lorry occurred for which Daniel blamed George Njenga. Parties before the trial court consented to Liability 80/20 in favour of Daniel. The only issue, therefore, before the Chief Magistrate was quantum of damages. The trial court having considered the authorities cited by the parties awarded Daniel Kshs.800,000 in general damages. The appellants were aggrieved by that award and have filed this appeal to challenge it.

2. Although the appellants have set out six grounds of appeal all of those grounds simply challenge the trial court’s assessment of general damages. Appellants by those grounds state that:-

(i) the trial court failed to find that Daniel’s injuries were not grave and thereby gave an excessively high award of Kshs.800,000 in general damages;

(ii) applied wrong principles in making that award;

(iii) failed to pay attention to the appellants submissions and authorities; and

(iv) failed to pay homage to the doctrine of stare decisis.

3. I will consider issues (i) and (ii)together because they call upon consideration of the same material. Dr. Ben Muthiora’s report, submitted at trial court by consent, revealed the following injuries were suffered by Daniel:-

Pelvic fracture;

Unstable left knee joint;

Unstable left ankle joint;

Soft tissue injuries to the trunk and posterior chest;

Laceration on the anterolateral aspect of the left leg.

4. The appellants relied on three authorities. The first case was JOSHUA MWANIKI NDUATI –V- SAMUEL MUCHIRI NJUGUNA (2005) eKLR. In that case the plaintiff suffered fracture to the pelvis – roof of right acetabulum and fracture to the right side 3 ribs. The High Court in that case awarded Kshs.250,000 in general damages. In the second case Dr. HARISH CUNILAL SHAH – V- RICHARD KIPKOECH SANG & ANOTHER (2004) eKLR the plaintiff suffered cerebral concussion; Laceration of the forehead; fracture of the four ribs on the left side of the chest, with bruising on the chest; and fracture of acetabulum left hip joint without displacement. The High Court in that case awarded Kshs.150,000 in general damages. In the case BILDAD MWANGI GICHUKI –V- TM-AM CONSTURCTION GROUP AFRICA (2000) eKLR.The plaintiff suffered fractured pelvis, fractured ribs(3) and segmented fractured left femur- bone. The court in that case awarded Kshs.250,000 for pain, suffering and loss of amenities.

5. Daniel, the respondent relied on the case MILICENT ATIENO OCHUONYO –V- KATOLA RICHARD (2015) eKLR. This was also a High Court Decision. The plaintiff in that case suffered sustained pelvic injuries with fractures on the right public ramus and diastasis of symphysis pubis. The doctor’s report also showed that the plaintiff had a small abdominal wall haematoma and minimal haemoperitoneum. In the doctor’s opinion the plaintiff suffered severe harm; and that she continued to suffer pain on the fractured site and walked with a slight limp. The High Court in that case in making an award of Kshs. 2 million in general damages was guided by two other High Court decisions. The first one was PEACE KEMUMA NYANG’ERA –V- MICHAEL THUO & ANOTHER CIVIL SUIT NO. 209 OF 2013, (2014)eKLR. In that case the High Court awarded Kshs.2. 5 million in general damages. The second one was FLORENCE HARE MKAHA –V- PWANI TAWAKAL MINI COACH & ANOTHER (2012) eKLR where the High Court awarded Kshs. 2. 4 million in general damages.

6. The trial court in awarding Kshs.800,000 to Daniel in general damages considered the appellant’s authorities and noted the appellants had suggested Kshs.200,000 be awarded in general damages. The trial court also noted that the case relied upon by Daniel, MILICENT ATIENO (supra), showed complex pelvic fracture. Looking at those authorities and the parties’ submissions the trial court awarded Kshs.800,000 general damages.

7. The court of appeal in the caseBayusuf Freighters Limited V Patrick Mbatha Kyengo (2014) eKLR considered the principles that should guide an appellant court and stated:-

“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.’

8. In this court’s view bearing in mind the injuries suffered by Daniel the trial court cannot be faulted for awarding Kshs.800,000 in general damages. There is indeed no reason shown why this court should interfere with the trial court’s award. The authorities cited by the appellant are more than 10 years old compared to the case MILICENT ATIENO(supra) which was decided in 2015. The trial court balanced the awards suggested by the appellants and the respondent in making the final award.

9. In regard to issue (iii) above the appellants erred to stated that the trial court failed to pay attention to their submissions and authorities. When one reads the trial court’s judgment it becomes abundantly clear that it well considered the submissions and authorizes cited before it. That issue is therefore rejected.

10. The trial court equally paid attention to the doctrine of the stare decisis. It considered the authorities cited before it and considering the injuries suffered then struck a balance in its award. The award of general damages in an injury case is not a perfect science. That award in this court’s view, cannot be faulted.

11. In the end the appellant’s appeal 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 Respondents: ……………………………

COURT

Judgment read in open court.

MARY KASANGO

JUDGE