[2022] KEHC 15450 (KLR)

Gichuhi v BJT (Minor Suing through Father and Friend BTJ) (Civil Appeal E043 of 2021) [2022] KEHC 15450 (KLR) (14 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15450 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E043 of 2021

SM Githinji, J

November 14, 2022

Between

Teresiah Njeri Gichuhi

Appellant

and

BJT (Minor Suing through Father and Friend BTJ)

Respondent

(Being an Appeal against the Judgment of Hon. S. D. Sitati SRM delivered on 28th April, 2021 in Kilifi Civil Suit No. 448 of 2019)

Judgment

1. The appeal before me is against the award of damages by the trial court in the sum of Kshs 1,618,000/= for general and special damages with liability at 100%. The judgment was delivered on April 28, 2021. Aggrieved by the judgment, the appellant filed a memorandum of appeal on the May 21, 2021. The appeal is mainly on the trial court’s finding in respect of the general damages and the future medical expenses. The grounds of appeal are that: -1. The learned trial magistrate erred and misdirected himself by proceeding on wrong principles when assessing general damages to be awarded to the respondent herein and failed to apply precedents and tenets of the applicable laws.2. The learned trial magistrate erred and misdirected himself by awarding a sum in respect of general damages which was inordinately high, excessive in the circumstances and thus occasioning a miscarriage of justice.3. The learned trial magistrate erred in law and fact by awarding a sum in respect of future medical expenses thus occasioning a miscarriage of justice.4. The learned magistrate erred in law and in fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.

2. It urges the court for the following orders; That: -a.This appeal be allowed with costs.b.The judgment delivered on April 28, 2021 by honourable magistrate SD Sitati, senior resident magistrate in Kilifi Magistrate Court Civil Suit No 448 of 2019 be set aside and the award made therein be reassessed.c.That cost of this appeal be borne by the respondent.

Background 3. Vide a plaint dated April 17, 2019, the respondent filed Kilifi SRMCC No 448 of 2019, BJT (minor suing through father & next friend) BTJ , seeking general and special damages arising from a road traffic accident involving motor vehicle registration number Kxx 6xxxP which occurred along Kilifi-Malindi Road on or about August 29, 2018 at Tezo area.

4. In the plaint its averred that the plaintiff sustained head injuries associated with rapture (tear) of posterior urethra-urinary opening, bladder tear, head injury with loss of consciousness for 30 minutes and a cut on the head (right parietal region). Doctor Ajoni Adede after examining the plaintiff opined as follows;1. Twelve percent (12%) permanent partial disability due to rupture (tear) of posterior urethra- urinary opening, bladder tear, urethra tears heal with narrowing of the urinary outlet (urethral stricture), urethral stricture results in pain and difficulty in retrograde ejaculation and sub- fertility, abdominal operations and repair result in fibrous scar tissue which can cause intestinal obstruction and ureteric obstruction which are surgical emergencies and lower abdominal operation and manipulation of the genital area to insert urine tubes interferes and damages genital area nerves resulting in decreased sensitivity and impotence (neurogenic impotence).2. Ten years from the accident date the urethra stricture will result in urinary retention (blocked urine) and the patient will require an operation to remove the damaged urethra (urethroplasty/ urethral graft) which costs Kshs 350,000/-.3. Even after urethroplasty 50% of the patient get acute urinary retention (urine blockage) manage requires 24-hour admission, urine tube (catheter) for two weeks and oral medication at a cost of Kshs 15,000/.4. The head injury has a risk of life long complications.

5. All these was blamed on negligence of both defendant’s and/or her authorized agent, servant or employee as pleaded in paragraph 4 of the plaint.

6. The defendant filed her defence on the November 27, 2019 denying that she was the registered and or the beneficial owner of motor vehicle registration No Kxx 6xxP as alleged in paragraph 2 of the plaint. The defendant alleged in her defence that the accident and if at all it occurred, was wholly caused by the negligence of the plaintiff. This recital of pleadings formed the basis of the trial.

The evidence 7. The plaintiff BTJ , who is the father and next friend of the minor, testified as PW1 and relied on his witness statement dated April 17, 2019 as his evidence in chief. He stated that he was the father of BJT , a 4-year-old minor who was involved in the accident on the August 29, 2018. He told the court that the accident occurred as he was on his way to pick his son from school. That his son was walking ahead of him and playing with other children. He also told the court that he saw three motor vehicles approaching from Malindi direction and that the third motor vehicle attempted to overtake the rest of the motor vehicles but collided with an oncoming motor vehicle from the Mombasa direction; it lost control and knocked down his son. He told the court that he witnessed the accident and that the driver failed to hoot and also to apply brakes. He further faulted the driver for driving at a high speed and being on the wrong lane of the road. He told the court that the child was off the road and that he has since not recovered.

8. PW2 CPL Francis Safari Mwango the investigating officer told the court that on the August 29, 2018, he received a report of a road traffic accident at Tezo area along the Kilifi-Malindi Road. He went to the scene but the motor vehicle had left and the victim had been rushed to the hospital.

9. He stated that the motor vehicle was registration number Kxx 6xxP Nissan Matatu which was travelling on the direction of Malindi to Kilifi. His testimony was that the child tried to cross the road from the left side to the right side on the direction towards Kilifi and was knocked down by the matatu. He further told the court that the driver of the matatu was blamed for the accident and produced the police abstract as plaintiff Exhibit 2 (b).

10. PW3 Doctor Ajoni Adede relied on the medical report dated March 20, 2019 as his evidence. The same was produced as plaintiff Exhibit 3.

11. The plaintiff closed its case at this point with the defence also closing their case without calling a witness.

12. The plaintiff then filed submissions dated February 26, 2021 wherein they submitted that they had proved their case on a balance of probabilities and urged the court to find the defendants 100% liable for the negligence of the driver. They further prayed for Kshs 2,000,000. 00 as general damages for pain and suffering and relied on the cases of HCCA 8 of 2017 in EWO (suing as the next friend of a minor COW) v Chairman Board of Governors -Agoro Yombe Secondary School (2018) eKLR and that of Civil Appeal No 25 of 2016 CK v Kenya Power & Lighting Ltd (2021) eKLR where the court discussed the issue of future medical expenses. They further argued that due to inflation trends the trial court should find Kshs 2,000,000. 00 general damages as fair and reasonable.

The trial court’s judgment 13. The trial court made a determination that the plaintiff had sufficiently proved that the accident had indeed occurred as pleaded in the plaint. The trial court was further persuaded by the undisputed evidence of PW1, an eye witness and was of the opinion that a child of four years cannot be responsible for contributory negligence relying on the case of Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) IKAR 1 (1981) KLR. The trial court found that the defendant was vicariously liable for the negligence of the driver of the motor vehicle.

14. On the issue of general damages, the trial court awarded a sum of Kshs 1,250,000. 00 relying on the case Ibrahim Omar Osman & Another v Jonathan Kenga Kitsao Malindi HCCA No 26 of 2019 where the learned judge upheld an award of Kshs 1,200,000/- for rapture of the urethral structure which further had urinary retention and urethral blockage; blunt object injury to the abdomen; blunt object injury to the genitals (penis) and abrasions on the chest. On future medical costs, the trial court awarded a sum of Kshs 350,000/- as laid down in the medical report by Dr Adede being the projected cost of operation to remove the blocked/ damaged urethra as well as Kshs 15,000/- towards the management of the expected acute urinary retention amounting to Kshs 365,000/-

15. The appellant preferred an appeal against the said judgment on the ground that the learned trial magistrate erred and misdirected himself by awarding a sum in respect of general damages which was inordinately excessive and that he erred by awarding a sum in respect of future medical expenses.

Analysis and determination 16. The discretionary jurisdiction of the first appellate court being judicial is to be exercised on the basis of evidence and sound legal principles as was held in the case of Shah, Paul v EA Cargo Handling Services Ltd 1974 EA 75.

17. I have carefully considered the record as well as the submissions by the parties. What is for determination in my view is whether the general damages assessed by the trial magistrate were excessive, and whether the costs for future medical expenses are justified.

18. To begin, the injuries suffered by the appellant were listed in the treatment notes, the P3 form and the medical report by Dr Ajoni Adede as head injuries associated with rapture (tear) of posterior urethra-urinary opening, bladder tear, head injury with loss of consciousness for 30 minutes and a cut on the head (right parietal region). Doctor Ajoni Adede after examining the plaintiff opined as follows;1. Twelve percent (12%) permanent partial disability due to rupture (tear) of posterior urethra- urinary opening, bladder tear, urethra tears heal with narrowing of the urinary outlet (urethral stricture), urethral stricture results in pain and difficulty in retrograde ejaculation and sub- fertility, abdominal operations and repair result in fibrous scar tissue which can cause intestinal obstruction and ureteric obstruction which are surgical emergencies and lower abdominal operation and manipulation of the genital area to insert urine tubes interferes and damages genital area nerves resulting in decreased sensitivity and impotence (neurogenic impotence).2. Ten years from the accident date the urethra stricture will result in urinary retention (blocked urine) and the patient will require an operation to remove the damaged urethra (urethroplasty/ urethral graft) which costs Kshs 350,000/-3. Even after urethroplasty 50% of the patient get acute urinary retention (urine blockage) managed requiring 24-hour admission, urine tube (catheter) for two weeks and oral medication at a cost of Kshs 15,000/.4. The head injury has a risk of life long complications.

19. I have considered the appellant’s submissions on the quantum of damages and the authorities cited by counsel in their submissions for this appeal. It must be noted that injuries by one person cannot perfectly fit to other person’s injuries. What a court is to consider are the precedents in closely comparable injuries to other person’s and the after effects, for guidance. I wish to point out that the injuries sustained by the plaintiff have long term implications on his health and as stated in the medical report will require surgery to correct the urethra damage.

20. I am guided by the holding in the case of Robert Nsioki Kitavi vs Coastal Bottlers Ltd 1982 -1988 I KAR 891-895 where the court held that it is generally accepted from the laid down legal principles on assessment of quantum that personal injuries are difficult to assess with precision and accuracy so as to satisfy the claimant. The courts discretion has been left to individual judges to exercise judiciously in respect of the circumstances of each specific case. The sum total of the evidence and the medical reports positive findings will form part of the consideration in the award of damages. The trial court will also be expected to apply the principles in various case law and authorities decided by the superior courts on the matter.

21. In the appeal before this court, it is not disputed that the plaintiff sustained injuries that occasioned a 12% permanent partial disability due to rupture (tear) of posterior urethra- urinary opening which will result in urinary retention (blocked urine) and the patient will require an operation to remove the damaged urethra.

22. I have analyzed the evidence and entire judgment by the learned trial magistrate. The observations I make is that the circumstances surrounding the award of damages under the various heads was well considered by the trial magistrate and most particularly I am in agreement with the finding in the decision that was quoted by the trial court on the heading of future medical expenses; Malindi HCCA No 26 of 2019 Ibrahim Omar Osman & another v Jonathan Kenga Kitsao which I have found useful in the foregoing analysis. Based on the evidence, the award on the general damages for pain and suffering as well as the future medical costs were within acceptable limits. I find no grounds to interfere with the decision of the trial court which is reasonably and legally arrived at, in reference to the issue of damages. It is accordingly affirmed.

23. For the above reasons, the appeal is hereby dismissed with costs to the respondent.It is so ordered.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 14TH DAY OF NOVEMBER, 2022. ...................................S. M. GITHINJIJUDGEIn the presence of; -Mr Ng’ang’a holding brief for Mr Kimondo Gachoka & Co Advocates for the AppellantMiss Mona holding brief for Mr Mutisya & Associates Advocates for the RespondentMr Ngigi;- We pray for 30 days stay.Court; -30 days’ stay is granted....................................S. M. GITHINJIJUDGE14/11/2022