[2022] KEHC 13872 (KLR)

Gitau v Mucheru (Civil Appeal E175 of 2020) [2022] KEHC 13872 (KLR) (Civ) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13872 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E175 of 2020

JN Njagi, J

October 12, 2022

Between

Regina Wanjema Gitau

Appellant

and

Jeremia Kandithi Mucheru

Respondent

(Being an appeal from the judgment and decree of Hon. K.I.Orenge, SRM, in Nairobi MCC Civil suit No.11107 of 2018 delivered on 21/7/2020)

Judgment

1. The appeal arises from the judgment in the lower court where the trial magistrate awarded the respondent Ksh 1,6000,000/= in general damages against the appellant after the respondent sustained injuries in a road traffic accident involving the vehicle of the appellant. The appellant was aggrieved by the award and filed this appeal.

2. The grounds of appeal are that:1. The learned trial magistrate’s judgment was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.2. The learned magistrate erred in law and in fact in awarding under the head general damages of Kshs 1,600,000/= the same based on the wrong principles of law as the same was excessively high and unjust considering the injuries suffered by the respondent and in view of conventional awards in relation to such claims.3. The learned magistrate erred in fact and in law in finding the entire defence unconvincing and failing to consider the defendants’ submissions and his cited authorities therein.4. The learned magistrate erred in awarding an excessive sum for the nature of the matter in the face of the evidence adduced.

3. The appeal was canvassed by way of written submissions. The firm of Kimondo Gachoka & Co Advocates appeared for the appellant while the firm of Waithaka & Partners Advocates represented the respondent.

4. The injuries sustained by the respondent as contained in the plaint were: Fracture of the right femur

Fracture of 2 ribs

Lung contusion

Blunt soft tissue injury to the chest.

5. In awarding the sum of Ksh 1,600,000/=, the trial court relied on the case of Michael Maina Gitonga v Serah NjugunaaliasSerah Wanjiku Mungai (2012)eKLR where the plaintiff was awarded Ksh 2,000,000/= for head injuries leading to concussions, cut wound and bruises on the scalp, fracture of the left scapula, compound fracture and dislocation of the left elbow, chest injuries with multiple fractures of 5th, 6th and 7th ribs and fracture of the left femur, upper 1/3 shafe. The court also relied on the case of Mehari Transporters Ltd v Damus Muasya Maingi (2013) eKLR where Ksh 1,500,000/= was awarded.

Submissions For The Appellant- 6. The advocates for the appellant submitted that the award of Ksh 1,6000,000/= for the kind of injuries sustained by the respondent was inordinately high. That an award of Ksh 700,000/= would be adequate compensation. They relied on the following cases:a.David Kimathi Kaburu v Dionisius Mburugu Itirai (2017) eKLR where the plaintiff sustained a plated fracture mid shaft femur, intertrochantic fracture, wobbly gait and severe pain on the right hop and entire hip. He was awarded Kshs 630,000/= in general damages.b.Joseph Mwangi Thuita v Joyce Mwole HCCA No 177 of 2011 (2018) eKLR where the plaintiff had sustained fractures of the right femur, compound fracture (r) tibia, compound fracture right fibula, shortening right leg and episodic pain (r) thigh with inability to walk without support. He was awarded Kshs700,000/=.c.Third Engineering Bureau China City Construction Group Ltd V Evalyne Kerubo Rangi (2020) eKLR where, the court held that an award of Ksh 800,000/= would suffice where the plaintiff had sustained a chest contusion, compound right radio fracture, compound right ulna fracture, bruises on the hands, bruises on the right elbow, bruises on the buttock, right tibia fracture and right fibula fracture.

7. The advocates for the respondent on the other hand submitted that the injuries sustained by the respondent were severe as noted in the discharge summary from Coptic hospital and the medical report of Dr Wokabi. That the respondent had lost consciousness and was admitted in High Dependency Unit (HDU) in hospital for 11 days where numerous multiple surgeries were done including metal plating of the fractures. That during the trial he was walking with aid of clutches and was still in pain. That in the premises the award ofKsh 1,6000,000/= was not excessive contrary to what is submitted by the appellant.

8. To support the award, the respondent relied on the following authorities:a.In Silverio Mbiti Njiru & 2 others v Elizabeth Syombua Munyoki (2018) eKLR, where the respondent had sustained soft tissue injuries to the scalp, neck, chest, blunt abdominal injury and fracture of the femur. His degree of permanent disability was 25%. An award of Kshs 1,500,000/= in general damages for pain, suffering and loss of amenities was upheld on appeal.b.InCharles Mathenge Wahome v Mark Mboya Likanga & 2 others (2011) eKLR, where the respondent suffered fracture of the right femur, a minor cut on the back of the head and bruises of the right hand. There was, attendant to the fracture, a complication of pulmonary embolism (which was life threatening) which sent him to the intensive care unit for several days. His permanent disability was assessed at 25% by his doctor and 5% by the appellants doctor. His award of Kshs 1,500,000/= was upheld.c.InJoseph Musee Mua v Julius Mbogo Mugi & 3 others (2013) eKLR, the plaintiff therein suffered a fracture of left tibia and fibula, two (2) broken upper jaw teeth, chest and shoulder injuries. His nerves were also affected. He had shortening of the left leg and as a result, he suffered 5% disability. The court awarded Kshs 1,300,000/= general damages.d.In Mehari Tewoldge T/A Mehari Transporters Ltd V Damus Muasya Maingi (2013 eKLR, the respondent sustained blunt injury to the chest, fracture 3 ribs 4,6,7 on the right side with puncture of the pleural leading to hemithorax, blunt injury to the abdomen with a tear in the liver and severe internal bleeding leading to hemoperitoneum, deep cut on the upper right arm with skin and muscle deficit near the axilla, cuts and bruises on the whole right arm, fracture right scapula; and several fractures on the right tibia and fibula at the ankle joint. His permanent disability was assessed at 8%. He was awarded general damages of Ksh 1,500,000/=.

9. The respondent distinguished the awards made in the cases cited by the appellant in that in the case of David Kimathi Kaburu v Dionisius Mburugu, the respondent did not require fixation of the fracture with external metal and his injury had healed without any permanent disability. That in the Joseph Mwangi Thuita case the claimant did not suffer any permanent incapacitation.

Analysis And Determination– 10. This being a first appeal, the court is duty bound to re-evaluate and re-analyze afresh the evidence on record and draw its own conclusions. The Court of Appeal in Selle v Associated Boat Co Ltd (1968) EA 123 put this duty as follows:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen or heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 EACA 270”.

11. The appeal is on award of general damages. The principles upon which an appellate court may interfere with an award of damages made by a lower court are settled. These are as was stated by the Court of Appeal in Butt v Khan [1981] KLR 349 where, as per Law, JA held that:-“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 at a figure which was either inordinately high or low.”

12. Other principles which guide courts in assessment of personal injury claims are that: -1. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2. The award should be commensurable with the injuries sustained.3. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5. The awards should not be inordinately low or high (See Boniface Waiti & another v Michael Kariuki Kamau (2007) eKLR.

13. The respondent`s medical report was prepared by Mr Wokabi, consultant surgeon, who noted that the respondent had sustained a fracture of the right femur, fractures of 2 ribs and lung contusion. That he was operated on and the fracture was fixed with a metal K-nail. That a test tube was inserted into the right chest cavity. When the surgeon examined him on July 5, 2018 which was close to two years after the accident, he was walking with aid of clutches. He had a scar on the outer aspect of the right thigh. He had another scar on the chest wall where the chest tube had been inserted. An x-ray report confirmed presence of fractures of the 5th and 6th ribs. In the opinion of the surgeon, the respondent suffered a lot of pain from the major injuries he sustained on the right leg and chest. He also suffered pain after the surgical procedures that he underwent. The lung injury had resolved well and there was no permanent disability expected from the chest injuries. The broken ribs were expected to unite fully. He assessed permanent disability on the leg at 10%.

14. I have considered the submissions by the respective advocates for the parties vis-à-vis the injuries sustained by the respondent. I find the injuries sustained by the claimants in the cases cited by the appellant to have been less severe than those suffered by the respondent in the instant matter. I have reassessed the medical report of Dr Wokabi and agree with him that the respondent herein suffered serious injuries. The lung contusion injury was a very serious injury of which the respondent had to undergo an operation. He was also operated on the fractured leg. The report of Dr Wokabi indicated that the respondent was walking with the aid of clutches two years later after the accident thereby connoting the severity of the injury. Disability was assessed at 10%.

15. I find the awards in the authorities cited by the advocate for the respondent to have offered a more comparable guide on the possible amount of damages awardable to the respondent. Taking into consideration the severity of the injuries suffered by the respondent, I do think that the award of Ksh 1,600,000/= was inordinately high as to be an erroneous estimate of the damages that ought to have been awarded to the respondent. In the premises I do uphold the award.

16. The upshot is that the appeal herein lacks merit and is consequently dismissed with costs to the respondent.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF OCTOBER 2022. J. N. NJAGIJUDGEIn the presence of:No appearance for Appellant.Mr. Waithaka for Respondent.Court Assistant: Ubah.30 days R/A.