[2022] KEHC 16972 (KLR)

Gitau v Ngechu & another (Civil Appeal 59 of 2019) [2022] KEHC 16972 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16972 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 59 of 2019

GWN Macharia, J

December 15, 2022

Between

Geoffrey Ndaire Gitau

Appellant

and

John Chege Ngechu

1st Respondent

Satima Co-Operative Society Limited

2nd Respondent

(Being an appeal from the judgment and decree in the Senior Principal Magistrate’s Court at Engineer CMCC No. 90 of 2016 delivered by Hon. H.O. Barasa, SPM on the 15th day of October, 2019)

Judgment

The Appeal 1. The Appeal is on the issue of quantum and in particular the general damages of Kshs 250,000. 00 awarded by the trial court which the Appellant holds to be inordinately low in the circumstances.

2. The Appellant initiated the appeal vide a memorandum of appeal filed on the 11th day of November, 2019 in which he sought that the court sets aside the award of general damages by the trial court and re-assess the same.

3. At the hearing of the appeal, directions were taken that the parties canvass the appeal by way of written submissions.

Background 4. The suit at the trial Court commenced by a Plaint dated the 23rd day of May, 2016. The Appellant faulted the Respondents for negligence leading to an accident involving their motor vehicle registration number KCC 261E along Njambini-Ol Kalou Road at Kanamba. He sustained injuries as a result of the said accident and sought damages for the same. The Appellant as a result of the said accident sustained blunt injury to the neck leading to severe soft tissue injuries, blunt injury to the anterior chest wall leading to severe soft tissue injuries and lung contusion on the left lower lobe.

5. The Respondents did not enter appearance or file a Defence, consequent which a default judgment was entered in favour of the Appellant. The matter then proceeded by way of formal proof. However, the same was set aside by consent of parties and the Respondents were allowed to defend the Claim.

6. The Respondents opposed the Claim by an Amended Statement of Defence dated the 19th day of April, 2017. They denied liability.

Evidence 7. PW1, is the Appellant who testified before the parties agreed to set aside the judgment to allow the Respondents defend the Claim. He testified that on 15th April, 2016 he boarded a matatu registration No KCD 261E at Njabini and at Kinamba area it lost control and overturned. He was seated on the front seat. The vehicle was registered with the 2nd Respondent and he produced Certificate with Registrar of motor vehicles as P Exh 1. He sustained injuries to the chest, neck and ribs. He was treated at Engineer District Hospital and discharged. A receipt for medical fee of Kshs 100/ was adduced as PExh 2(a), the medical report as PExh 2(b) and treatment notes as PExh 3. Other documents that the Appellant -adduced were; x-report (PExh 6), receipts for treatment expenses (PExh 5(a) and (b) respectively, P3 Form (PExh 7(a), Police Abstarct (PExh 7(b), Demand Notice (P.Exh 8), Dr Omuyoma’s Medical Report and receipt for his fees as PExh 9(b) and (b) respectively.

8. The Appellant blamed the driver of the motor vehicle as he was over speeding as allegedly driving at close to 149 km/h. He further stated that he had fastened his seat belt.

9. In cross examination, the Appellant stated that he was first treated at North Kinangop Medical Hospital before going to Engineer District Hospital.

10. PW2, Dr Junius Murimi Ntwiga who testified with respect to the Appellant’s injuries indicated that he was a medical officer at Engineer District Hospital holding a Bachelors degree in medicine and surgery with three years experience. He produced an outpatient card in favour of the Appellant. He confirmed that the Appellant was treated at the facility by his colleague whose handwriting he was familiar with. He confirmed the injuries suffered by the Appellant. The Appellant was subjected to an x-ray and nothing abnormal was detected.

11. The Respondents did not call any witness; they were granted leave to have the medical report by their doctor on record by consent.

Submissions 12. The Appellant filed his submissions on July 9, 2021 urging the Court to revise upwards the award of Kshs 250,000. 00 for general damages to Kshs 600,000. 00 for reasons that the he sustained serious injuries and the award was incommensurate with the said injuries. It was his submission that an award of Kshs 600,000. 00 would not deviate from the facts on injuries he suffered as well as the principles of comparable damages for comparable injuries. In his view therefore, the award of Kshs 250,00. 00 was manifestly low.

13. The Appellant cited the cases below to buttress the foregoing submission:a.Gabriel Kariuki Kigathi & another v Monica Wangui Wangechi [2016] eKLR where the High Court substituted an award of Kshs 800,000. 000 with Kshs 400,000. 00 for a claimant who had sustained a fracture of the neck, bilateral rib fractures, bilateral lung contusion, injuries to both hands and Injuries to both legs.b.West Kenya Sugar Co Limited v Isaiah Wakhungu Kharida [2019] eKLR where the Court substituted an award for general damages in the sum of Kshs 650,000. 00 with Kshs 450,000. 00 the claimant who sustained a fractured skull, blunt injury to the neck and chest.

14. The Respondents on the other hand urged the Honourable Court to find that the injuries were soft tissue in nature and uphold the findings of the trial court. The Respondents, inter alia, cited the cases of.a.George Mugo & another v AKM (Suing through next friend and mother of AKN) [2018] where the High Court awarded a sum of Kshs 90,000. 00 for tissue injuries.b.George Kinyanjui T/A Climax Coaches & another v Hussein Mhad Kuyala [2016] eKLR where the Respondent sustained injuries on his chest, neck, knees and lost two teeth and the High Court on appeal reduced an award of Kshs 650,000. 00 to Kshs 109,890. 00; upon realizing that the loss of teeth was unrelating to the accident in question, and the Respondent had only sustained soft tissue injuries.c.Lamu Bus Services & another v Caren Adhiambo Okello [2018] eKLR, where the Claimant sustained a dislocation of the left shoulder joint, a deep cut wound on the left thigh and a blunt injury to the left thigh and an award of Kshs 200,000. 00 was reduced to Kshs 130,000. 00.

Analysis and Determination 15. Being the first appellate court, this court has a duty to re-examine and re-evaluate the evidence on record and arrive at its own conclusion. This position was emphasized in the case Abok James Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR (Civil Appeal No 161 of 1999) in the following manner:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

16. After a careful analysis of the evidence adduced before the trial court and the respective rival submissions, I have arrived at the issue for determination to be whether the award of Kshs 250,000. 00 as general damages was inordinately low to warrant the interference by this Court having in mind that comparable injuries should attract comparable awards as was the position in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR.

17. Of important note is that in order for an appellate court to interfere with the award of the trial court, there has to be sufficient grounds and principles as was held in Butt v Khan [1981] KLR 470 and Kitavi v Coastal Bottlers Ltd[1985] KLR 470 that:“Although one would expect that in the normal course of things, the claimant to the accident might get well and restored to his or her original health status prior to the accident sometimes that is not the case in most instances. It is necessary to find the correct bearing which seldom alludes the Judges with expertise and knowledge on these areas of specialization. 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 a figure which was either inordinately high or low.”

18. This court is further guided by the principles on interfering with judicial discretion as laid down in the case of Price and another v Hilder [1996] KLR 95 that:“In considering the exercise of judicial discretion, as to whether or not to set aside a Judgment the court considers whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment. The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”

19. Further, in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR,the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, JA 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.”

20. I have considered the documents by parties on record. The parties agree that the appellant sustained soft tissue injuries to the neck and chest as well as a contusion of the left lung. The authorities cited by the appellant clearly indicate that the parties therein suffered more severe injuries as compared to the present case. On the part of the respondents, they cite authorities which the injuries though close to those sustained by the appellant, were less severe in nature.

21. The Appellant having sustained soft tissue injuries to the neck and chest as well as left lung contusion, of good guidance is the case of Morris Miriti v Nahashon Muriuki & another [2018] eKLR. In the case, the Appellant sustained the following injuries: tender chest posterior and anterior, multiple bruises on the posterior chest, post traumatic fracture of the 3rd and 4th ribs with bilateral haemophreino thorax, left lung contusion and fracture of the right scapula. The court affirmed an award of Kshs 300,000/- for general damages.

22. In view of the foregoing I find no fault on the part of the learned trial magistrate in awarding Kshs 250,000. 00 for general damages having, taken into account the nature of the injuries sustained by the appellant.

Disposition 23. The upshot of the above is that the instant appeal against quantum of damages fails and the same is hereby dismissed with each party to bear its own costs of the appeal. Special damages were not in dispute in this appeal as the same were specifically pleaded and proved.

DATED AND DELIVERED AT NAIVASHA THIS 15TH OF DECEMBER, 2022. GW NGENYE-MACHARIAJUDGEIn the presence of:1. Mr Owour for the Appellant.2. No appearance for the Respondents’ counsel-duly notified online.