[2018] KEHC 4926 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 55 OF 2017

GERALD IRERI HARRISON...........................1ST APPELLANT

FELISTA IRERI..................................................2ND APPELLANT

DAVID MWANGI IRERI....................................3RD APPELLANT

V E R S U S

DANSON NGARI......................................................RESPONDENT

J U D G M E N T

1. This appeal arises from the judgment of Hon. S.K. Mutai Embu Civil suit No. 37 of 2017. The respondents successfully sued the appellants for damages for injuries sustained in a road traffic accident. He was awarded damages all inclusive in the sum of Kshs.2,061,360/= plus costs of the suit.

2. The appellants were aggrieved by the judgment and lodged this appeal relying on several grounds regarding the finding of full liability against them and for quantum of damages. The grounds of appeal precisely are as follows:-

(a) That the leaned magistrate erred in law and in fact by assessing liability at 100% in favour of the plaintiff despite the fact that there was no evidence whatsoever showing the appellants as being wholly to blame for the accident.

(b) That the learned magistrate erred in law and in fact in awarding damages and costs of Kshs. 2,061,360/= in total disregard of the appellants submissions and existing court awards in similar cases.

(c) That the learned magistrate misdirected himself by failing to consider the appellant's submissions, medical reports and evidence that would have reduced the award significantly.

(d) That the honourable learned magistrate misdirected himself by awarding a figure that is inordinately too high in the circumstances of the case and cdeviating from existing and established judicial principals on accident claims.

3. By consent of the parties, this appeal was argued by way of written submissions. The firm of Simiyu, Opondo Kiranga & Co. represented the appellants while that of Guantai and Associates represented the respondents.

4. The appellants ventilated several issues in their submissions. Firstly, it was argued that liability ought to have been apportioned at the rate of 50:50 based on the fact that the respondent at the time of the accident was not wearing a helmet and had no driving licence as a motor cycle rider.

5. Secondly, it was contended that damages for loss of earnings were wrongly awarded in that the respondent did not suffer any permanent disability. Further that the said damages were not pleaded and no evidence was adduced to support such a claim.

6. In this regard, the case of DANIEL KOSGEI NGELECHEI VS CATHOLIC TRUSTEE REGISTERED DIOCESE OF ELDORET & SMIMON MONYARI ORACHI Civil Case No. 111 of 2006 was relied on where in reference to damages for loss of earnings it was held:-

...what this means is that a party cannot prove them during the hearing through the production of documents/evidence. It also means that a party is bound by his/her pleadings and short of what is not specifically referred to in the plant cannot be granted by the court. Moreso, special damages are determined by what is real and can be assessed based on determinable loss or expenditure.

7. Thirdly, it was further submitted that the general damages awarded were inordinately high and were not based on comparative decisions. The principles guiding courts in award of damages were not complied with.

8. The respondent argued that it was the duty of the appellants driver to watch out for other road users and take the necessary steps to avoid the accident. The appellants having failed to tender any evidence in support of their case, there was only one logical conclusion the court could make on liability which it rightfully did.

9. On quantum, the respondent stated that the injuries suffered by the respondent were of serious nature which caused paralysis of one side of the body and left ugly scars on the face which diminished his cosmetic value thereby affecting his morale and psyche. According to the respondent, the damages awarded to the respondent were therefore deserved.

10. The duty of the first appellate court was explained in the case of KEMFRO AFRICA LTD T/A MERU EXPRESS SERVICES [1976] & ANOTHER VS LUBIA & ANOTHER (No.2) [1985] eKLR. The court observed:-

….The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

11. The issues for determination in this case are as follows:-

(a) Whether the learned magistrate erred in his finding of 100% liability against the appellants.

(b) Whether the magistrate misdirected himself in awarding damages for loss of earnings.

(c) Whether the quantum of damages was inordinately high.

(d) Who between the parties will bear the costs of this appeal.

12. The respondent's case was that on 7/08/2016, he was riding his motor vehicle when the driver of the appellant's motor cycle No. KBZ 689 K hit him from behind. He fell on the ground and became unconscious. He gained his consciousness in hospital where he was in a lot of pain due to the injuries he sustained. PW2 his mother rushed to the scene upon receiving information about the accident. She found the respondent lying down on the road unconscious.

13. The radiologist report of Dr. J. Mutai of Embu Children's hospital in his report dated 7/08/2016 states that the respondent suffered the following injuries:-

(a) Depressed fracture of the right frontal bone at the supra orbital region with hemorrhagic contusion under the frontal robe.

(b) Soft tissue injuries – swelling on the frontal scalp and right periorbital region.

14. The medical report of Dr. D.K. Mbugua dated 11/07/2017 found similar injuries as that of Dr. Mutai.

15. The appellant was to put in his statements and documents within a period of thirty (30) days pursuant to a consent recorded on 4/07/2017. However, no filing of statements or documents was done.

16. The appellants fault the finding of 100% liability arguing that liability ought to have been apportioned between the parties. It is proposed that it be split into 50:50. The reasons given are that the plaintiff was not wearing a helmet or any other protective gear at the time of the accident and had no motor cycle riding licence. It was further argued that had he won a helmet, the injuries would not have been so severe. The appellant argues that the respondent was the author of his own misfortune.

17. The respondent argues that the police abstract supports his case as to where and how the accident occurred and that he was not to blame. Further that he denied riding recklessly or negligently at the time of the accident. It is further argued that since the appellants did not adduce any evidence, they cannot bring it in at this late stage.

18. The appellants relied on the case of SILAS NTONJIRA VS MUKIRI IKOTHA & ANOTHER [2017] eKLR where the appeal was dismissed on the ground that the appellant had no driving licence among others.

19. I do not find this authority relevant in that it refers to the dismissal of the appeal for lack of merit but not specifically to the issue of apportionment of liability. The court in dismissing the appeal found that the appellant was the author of his own misfortune as shown in the evidence adduced by both parties. The lack of a valid driving licence was not the only issue that led to the dismissal. There were various other grounds established by the respondent. He had adduced evidence in support of his case during the hearing.

20. In this appeal, the appellants did not adduce any evidence to the effect that the respondent was not wearing a helmet or that he had no driving licence. That being the position, the opportunity to defend their case was lost when the appellant failed to file his statements.

21. The NTONJIRA case is not relevant to this case in that unlike the case before me, it dealt with a case where the accident occurred at night around 8. 30 p.m. Further, the defendant adduced evidence that the motor cycle of the plaintiff had no headlights at the time of the accident. In this appeal, the accident occurred in broad daylight at around 1. 30 p.m. in clear visibility. In theNTONYIRI case, the court had a basis of apportioning liability since the motor cycle rider was partly to blame for the accident.

22. The trial magistrate had only the evidence of the respondent to consider in his judgment. The police abstract did not attribute any negligence to any of the parties since the matter was still pending under investigations at the time the abstract was issued. It was clear from the respondent's evidence that he was hit from behind by the appellant's driver and fell unconscious immediately. In my view, the appellant's driver was in a position to avoid the accident in broad daylight. In the absence of any evidence to the contrary, I am of the considered view that the appellant's driver was to blame for the accident.

23. It is my finding that the learned magistrate reached the correct finding of 100% liability against the appellants.

24. The appellant relied on the case of ARROW CAR LTD VS BIMOMO & 2 OTHERS CA 344 OF 2004 which was cited with approval in the case of JULIUS CHELULE & ANOTHER VS NATHAN KINYANJUI eKLR [2013] which laid down the principles as to when an appellate court can interfere with the award of damages.

25. The appeal court must be satisfied that either the magistrate or the judge in assessing damages, took into account an irrelevant factor or left out a relevant one or that short of this, the amount awarded was so inordinately low or so inordinately high that it must be a wholly an erroneous estimate.

26. The said decision sets out the relevant principles that ought to guide this court in determining the issues raised in respect of the quantum of damages.

27. Dr. Mbugua states that the appellant suffered the following injuries:-

(a) Compound depressed fracture of the skull on the right frontal region of the head.

(b) Mild traumatic brain injury.

28. In his conclusion, the doctor says that the patient developed ptosis (droppings) of the left eye and he said he could not see properly using the left eye. Dr. Mbugua recommended that the patient be examined by an ophthalmologist. The record bears no report of an ophthalmologist meaning that no evidence of reduced vision adduced by the respondent.

29. The respondent in the submissions argued that he was entitled to damages for loss of earnings as well as special and general damages. The plaint pleaded for only general and special damages but left out the claim for loss of earning capacity. As I have already said there was no evidence adduced by the respondents in support of that claim.

30. The appellants argue that the global figure of Kshs. 2,000,000/= included loss of earning capacity. The judgment does not explain what the global figure represented. It is therefore right to say that the figure was for general damages for pain and suffering.

31. The respondent urged the court to award him Kshs.800,000/= general damages. The magistrate awarded Kshs. 2,000,000/= which was more than what the respondent had asked for. The applicants proposed a figure of Kshs.600,000/= for general damages in their submissions.

32. The magistrate did not state which authorities he used to arrive at the quantum of damages awarded to the respondent. He made a general statement that he had considered all the authorities and submissions of the parties. In pursuance of the principles of award of damages, the court has an obligation to make award based on comparative decisions. This is a crucial factor which was completely disregarded in this judgment.

33. This being the first appellate court, I will proceed to make my own conclusion as to the quantum of damages.

34. The plaintiff relied in the following cases:-

i. LUCY NTIBUKA VS BERNARD MUTWIRI & OTHERS [2007] eKLRwhere the plaintiff suffered head injuries and lacerations of the right eye and left arm and was awarded Kshs.500,000/= in 2007.

ii. CHARLES ORODI VS GIDEON MANGU [2000] eKLRwhere the plaintiff was awarded Kshs. 80,000/= for soft tissue injuries and lacerations on the forehead.

35. I would not regard this decision of CHARLES ORODI as comparative to the injuries suffered by the respondent herein. The respondent herein suffered more serious injuries whereas the authority deals with minor injuries.

36. I hold a similar opinion on the respondent's cases that follow of:-

i. GLOBAL TRUCKS LTD VS TITUS OSULE OSORE [2013] eKLRwhere the High Court set aside an award of Kshs.300,000/= and instead awarded Kshs.200,000/= for soft tissue injuries.

ii. KAMENJU CHARLES VS GIDEON MUIA MUTISYA [2014] eKLRwhere an award of Kshs.170,000/= was made for soft tissue injuries.

37. Except the first decision of LUCY NTIBUKA, the other cases are not relevant to the respondent's case. It is surprising why the counsel decided t rely on the said cases which are not comparative to the injuries sustained by the respondent.

38. I now turn to the appellant's authorities as follows:-

ALI ISSA ALI VS EA PORTLAND CEMENT CO. LTD Civil Appeal No. 349 of 2011 where the appellant was awarded Kshs.600,000/= for a skull injury causing a permanent depression of the scranium and scar of permanent nature. The award was made on 8/02/2018 which is about six (6) months ago. I find this authority relevant and comparative to the respondent's injuries

39. I have carefully observed that the appellants had argued against the award of damages for loss of earning capacity and the decisions cited set out the principles guiding the court in such claims. It seems that after the counsels were served with the respondent's submissions which sought for the award of loss of earnings, they decided to make a counter response in their submissions.

40. The learned magistrate did not determine whether the award for loss of earnings was payable in the circumstances of the case before him. This was an issue in dispute that ought to have been determined. Disregarding it was a serious omission in the judgment considering that the issue had already been brought to his attention by the appellant.

41. The determination of the court in this issue ought to have considered the law regarding the said claim, the pleadings and evidence, if any in support of the claim.

42. I am of the considered opinion that the magistrate omitted to take into account relevant factors in the award and erroneously proceeded to award a global figure which is not clear as to what damage heads it covers. Damages for loss of earning capacity may only be awarded in cases where the working capacity of the plaintiff has been diminished by the injuries suffered, where it has been pleaded and where evidence has been tendered.

43. I find the case of LUCY NTIBUKA relevant to this case save for the fact that the award was made in 2007. Factors of inflation must be taken into account in making the award herein.

44. I am of the considered opinion that an award of Kshs,800,000/= will adequately compensate the respondent which I hereby make.

45. There was no issue with the special damages and the amount of Kshs.61,360/= will be left undisturbed.

46. The award of Kshs.2,000,000/= is hereby set aside and substitutes with Kshs.800,000/= as general damages for pain and suffering. Consequently, I find that the amount of Kshs.861,360/= is payable to the respondent plus costs of the suit in the lower court.

47. Each party will meet its own costs of the appeal.

48. The appeal is hereby allowed.

49. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF JULY, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Guantai for respondent

Mr. Okech for Simiyu, Opondo, Kiranga & Co. for the appellants