[2024] KEHC 2193 (KLR)

Gona v Salim (Civil Appeal 205 of 2018) [2024] KEHC 2193 (KLR) (4 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2193 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 205 of 2018

DAS Majanja, J

March 4, 2024

Between

Pascal Gona

Appellant

and

Abdalla Ali Salim

Respondent

(Being an appeal from the Judgment and Decree of Hon. G. Kiage, RM dated 13th September 2018 at the Magistrates Court at Mombasa in Civil Case No. 1118 of 2017)

Judgment

1. This is an Appeal against the quantum of damages awarded by the Subordinate Court in the judgment dated 13. 09. 2018. The Appellant was injured on 09. 09. 2016 as she was boarding the Respondent’s motor vehicle at the Barsheba Stage along the Old Mombasa Road. The parties settled the issue of liability by consent on the ratio 90:10 against the Respondent. The trial Court awarded the Appellant a net sum of Kshs. 671,409. 00 made of Kshs. 500,000. 00 as general damages, Kshs. 96,000. 00 as future medical expense and Kshs. 150,000. 00 as special damages.

2. The Appellant appeal is based on the Memorandum of Appeal dated 09. 10. 2018 in which he contends that the award of general damages was inordinately low, that amount awarded for future medical expenses did not take into account that he was still undergoing treatment two years after the accident and that the Court failed to award him damages for loss of earning capacity and that he suffered permanent incapacity and for loss of earnings.

3. The facts of the suit are not disputed. According to the plaint dated 31. 05. 2017, the plaintiff sustained a “severe degloving tissue loss excavating injury on the left lower limb”. He produced the P3 Medical Form dated 09. 09. 2016 which confirmed that he sustained multiple bruises on the left lower limb from the upper thigh, knee and lower leg. There was evidence of haematoma deep to the subcutaneous tissue and extensive frictional burns due to trauma. The doctor concluded that the injuries were grievous harm.

4. The Appellant was treated at Jocham Hospital where, according to the Discharge Summary, he was admitted from 16. 09. 2016 to 01. 10. 2016. The Appellant also produced the Medical Report of Dr. Ajone Adede who examined him on 17. 02. 2017. At the material time, the Appellant complained of pain on the injured limb and was using crutches and had a bandage covering 6% of the body surface and early scarring interfering with the left ankle joint movement. He noted that permanent disability would arise from tissue loss, scarring, disfigurement, cosmetic embarrassment, and interference with joint movement. He concluded that, “accurate assessment of scarring can be made at quantum”.

5. At the trial, the Appellant proposed Kshs. 1,500,000. 00 for general damages. He cited Agnes Wanjiku Ndegwa v Kenya Power and Lighting Company [2014] eKLR. In that case, the plaintiff sustained severe and extensive bruises all over the body which left scars all over the body which turned itchy and painful in cold weather, extensive disfigurement in the thighs and buttocks, extensive burns to the shoulder, chest and neck leaving a stiff neck, extensive burns on both legs, feet and toes with the result that she was unable to stay flat on both feet, and inability to do any laborious tasks. She was awarded Kshs. 1,300,000. 00 as general damages.

6. On future medical expenses, the Appellant relied on the fact that he was still undergoing treatment and demonstrated that he was spending at least Kshs. 8,000. 00 monthly on medical expenses. He urged the Court to award Kshs. 288,000. 00 as he would be undergoing treatment for at least 3 years.

7. The Respondent urged the Court to award Kshs. 400,000. 00 based on H. Young Construction Company Ltd v Richard Kyula Ndolo [2014]eKLR where the plaintiff sustained degloving injuries to the left leg, with loss of stud over calf muscles and blunt injury to the left ankle leg. The Appellant Court reduced an award of Kshs. 350,000. 00 to Kshs. 250,000. 00.

8. General damages are damages at large as the Court is guided by decided cases to ensure that similar injuries attract, so far as is possible, similar amounts. Both sides cited cases that were not particularly helpful to the Court. The case cited by the Appellant had little or no similarity with the injuries suffered by Appellant. The plaintiff in that case sustained more severe and debilitating injuries. The case cited by the Respondent, had similar injuries but the case is dated having been decided in 2014. The trial court being guided by what was cited came to the conclusion that Kshs. 500,000. 00 was adequate. Since the court was guided by the decisions the parties cited to it, I cannot fault the trial magistrate’s decision as it was based on the material before the court.

9. The trial magistrate rejected the Appellant’s claim for future medical expenses on the ground that Dr. Adede did not affirm that the plaintiff would require to continue with the treatment. Further, the Court noted that based on receipts for treatment, the Appellant had last gone for treatment on 12. 03. 2018, a period of 9 months, hence there was no basis for awarding such a sum as he had not demonstrated continuous treatment. The trial magistrate however held that the plaintiff was still bandaged and would require treatment for a reasonable time of one year hence the award of Ksh. 96,000. 00. I do not consider this a misdirection as it was based on evidence that the Appellant was still undergoing treatment and it was not clear from the medical evidence how long this treatment would last.

10. I do not find any error in the manner the Subordinate Court dealt with the assessment of damages to warrant interference.

11. The Appeal is dismissed with costs assessed at Kshs. 20,000. 00.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED andDELIVERED atMOMBASA this_4TH_day of MARCH 2024. OLGA SEWEJUDGEHCCA NO. 205 OF 2018 JUDGMENT Page 2