[2022] KEHC 1413 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL APPEAL NO.56 OF 2019

ISAAC KANG`ETHE ...............................1st APPELLANT

ANTHONY KIMANI GICHIA ................2nd APPELLANT

VERSUS

ANDREW THUKU LOOREMETA .............RESPONDENT

(from the judgment and decree of Hon. N. Kariuki, SRM, in Nyeri CMCC No.99 of 2017 delivered on 19/9/2019)

JUDGMENT

1. The appellants have filed this appeal challenging the award of Ksh.800,000/- in general damages to the respondent by the lower court after the appellants were found liable for injuries sustained by the respondent in a road traffic accident. The grounds of appeal are that:

1. That the learned magistrate erred in law in awarding general damages for pain and suffering at Kshs. 800,000 which amount is manifestly excessive and high considering the injuries sustained by the Respondent.

2. That the learned magistrate erred in law and in fact in failing to consider the written submission of the appellant on record and the authorities annexed therein in support of the appellants’ case while arriving at the award in damages.

3. That the judgement of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis.

2. The appeal was canvassed by way of written submissions by the respective advocates for the parties, J.K. Kibicho & CO Advocates appearing for the appellants and Wagiita Theuri & Co. Advocates representing the respondent.

3. According to the medical report of Dr. Muchai Mbugua, the respondent sustained the following injuries:

Blunt injury to the left side of the head and neck

Mild head injury

Left facial nerve injury

4. The respondent had at the lower court proposed general damages in the sum of Ksh.800,000/- while making reliance in the case of Easy Coach Limited v Emily Nyangasi(2017)eKLR where Ksh.700,000/- was awarded for facial injuries, injury to chest, injury to back, injury to right hand with cut wound, injury to right leg with cut wound.

5. The appellants had on the other hand proposed a sum of Ksh.150,000/- but cited no authorities on quantum. The trial magistrate went by the submissions of the advocates for the respondent and awarded Ksh.800,000/-.

Submissions -

6. The advocates for the appellants submitted in this appeal that the trial court was obligated to award a reasonable amount. That in arriving at the award the court should take into account the injuries sustained and any long-term effect envisaged. That the respondent herein was re-examined by Dr. P.M. Wambugu whose report indicated that the respondent had shown adequate improvement from his injuries. That the doctor noted that the left facial nerve palsy had resolved and that no total permanent incapacitation occurred.

7. The advocates submitted that the injuries sustained by the respondent were soft tissue in nature with no permanent disability suffered. Therefore, that the award made by the trial court was inordinately high. That the respondent should have been entitled to Ksh.200,000/- in general damages. They relied on the case of Elizabeth Wambui Gichoni v Benard Ouma Owuor (2019)eKLR where an award of Ksh.175,000/- was made to the respondent who had sustained injuries involving the head and neck, deep cut wound leaving keloids, multiple bruises on the chest and chest injuries, cut wound on the buttocks, deep bruises on the left hand and had lost consciousness . They also cited the case of Moraa Maangi v Kerumbe Tea Estate & Another (2011)eKLR where an award of Ksh.200,000/- was suggested for a compound fracture of the right elbow and bruises which had healed leaving no permanent incapacity.

8. The advocates faulted the trial court for failing to follow precedents. They cited the case of Sosphinaf Company Limited -v- James Gatiku NdoloNRB C.A No. 315/2001 where the Court of Appeal stated that –

“The assessment of damages for personal injury is a difficult task. The court is required to give a reasonable award which is neither extravagant nor oppressive. And while the Judge is guided by such factors as the previous awards and principles developed by the court, ultimately what is reasonable award is an exercise of discretion by the trial Judge and will invariably depend on the particuliar facts of each case.”

9. They submitted that the court must ensure that the awards make sense and result in fair compensation. That astronomical awards must be avoided.

10. The advocates for the respondent on the other hand submitted that the respondent had sustained serious injuries that cannot be said to be soft tissue in nature. That Dr. Muchai in his report found that the respondent had sustained blunt injury to the head resulting to fracture of the sphenoid sinus and injury to the left facial nerve. That facial nerve injury causes paralysis of muscle of the face. That at the time of examination he could not close the left eye completely and the mouth was slightly deviated to the right side. That in face of these injuries the award of Ksh.800,000/- was not manifestly excessive as to warrant interference by this court. They urged the court to dismiss the appeal. They relied on the case of China Jiangxi International (K) Limited v Anthony Wambua David alias Anthony David Mulu (2019)eKLR where an award of Ksh.2,000,000/- was upheld for severe head injuries, severe chest injuries, fracture of the mastoid bone and fracture of the 5thand 6th posterior ribs among other injuries.

Analysis and Determination–

11. This being a first appeal, the duty of the court is to re-evaluate and analyze the evidence tendered before the lower court with a view to arriving at its own independent conclusion. This legal principle was stated in Selle -v- Associated Motor Boat Co. Ltd (1968) EA 123,where the Court of Appeal held that-

“An appeal to this court from 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 conclusion, though it should always bear in mind that it has neither seen or heard the witnesses and should make due allowance to this respect in particular this court is not bound necessarily on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistence with the evidence in the case generally.”

12. I have considered the evidence adduced at the lower court, the injuries sustained by the respondent, the award made by the trial magistrate together with the submissions by the respective advocates for the parties. The first thing I have to note is that I have perused the record of appeal and I could not find any report by Dr. Wmbugu that was alluded to by the advocates for the appellants. The proceedings do not indicate that such a document was produced. The only medical report in record is that of Dr. Muchai. This court can only go by the documents that are in record.

13. Dr. Muchai testified in court as DW2 and stated that he found the respondent to have sustained a fracture of a bone in the brain, i.e, the sphenoid sinus and left facial nerve injury. He explained in his report that the facial nerve injury causes paralysis of muscles of face. That at the time of examination the respondent could not close the left eye completely and the mouth was slightly deviated to the right side. That he complained of food accumulating in the left cheek and had to manipulate it back into the mouth using his hand. He explained in his report that these were residual signs of the paralysis of the muscles of the face. He also said that the respondent complained of residual pain on the left side of the face which he attributed to the nerve injury.

14. From the report and evidence of Dr. Muchai, it was clear that the respondent had suffered serious injuries in form of a fracture of the sphenoid sinus bone and facial nerve injury. The latter injury had affected the functions of the muscles of the face. I do not agree with the argument advanced by the advocates for the appellants that the injuries were soft tissue injuries. In my considered view, I do not think that a fracture of the bone of the brain can be described as a soft tissue injury. Neither do I think that a nerve injury can be described as such. The respondent therefore suffered a fracture and a nerve injury. The question is whether the award of Ksh.800,000/ for this kind of injuries was excessive.

15. When the respondent testified in court slightly over a year after the accident, he did not make any complains over the brain and nerve injuries. He only complained of pain on the back of the neck. He therefore appears to have fully recovered from the brain and nerve injury.

16. The principles which guide an appellate court in deciding whether or not to disturb an award of damages made by a lower court are well settled. These are as was stated by the Court of Appeal in the case of Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs A. M. M. Lubia & Another (1998)eKLRthat:

“…. It must be satisfied that either 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.”

17. The same principle was stated in Bashir Ahmed Butt v Uwais AhmedKhan (1982-88) KAR 5 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..

18. In making an award of Ksh.800,000/- the trial magistrate had the following to say:

“The plaintiff sustained the following injuries: blunt injury to left head and neck, mild head injury and facial nerve injury. The plaintiff submitted a proposed award of Ksh.800,000/- while the defendants proposed an award of Ksh.150,000/-. The injuries cited by the plaintiff`s authorities are relevant to this case. I find their proposal reasonable in the circumstances……judgment is hereby entered for the plaintiff against the defendant as follows: general damages -Ksh.800,000/-…”

19. The learned magistrate relied on the case of Easy Coach Limited v Emily Nyangasi (supra), to arrive at the award of Ksh.800,000/-. The injuries sustained by the respondent in that case were as follows: facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wound. The most serious injuries were on the right hand which healed with a 10 cm scar with keloid formation on the elbow, and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. An award of Ksh.700,000/- was upheld by the High Court for these injuries.

20. The general method of approach in assessing damages for personal injuries is that comparable injuries should as far as possible be compensated by comparable awards, keeping in mind the correct level of awards in similar cases-seeArrow Car Limited v Elijah Shamalla Bimomo & 2 Others (2004) eKLR. As observed above, the advocates for the appellants did not suggest any amount on quantum in their submissions at the lower court. It is strange to hear them complaining that the magistrate had failed to follow precedents when they had provided no authorities nor offered any guide as to what, in their view, was the reasonable award. Be that as it may be, I have considered the authorities that they cited in this appeal. The injuries in their first authority, Elizabeth Wambui Gichoni, consisted of cut wounds and bruises that had no comparison with the injuries sustained by the respondent in this appeal. The injuries in the second authority, Moraa Mangi v Kerumbe Tea Estate were a fracture of the right elbow and bruises which also had no comparison with the injuries suffered by the respondent herein. The authorities by the appellants were not relevant to the case.

21. The injuries in the case ofEasy Coach Limited v Emily Nyangasithat was relied on by the trial court consisted mainly of wounds that had healed with scars. There was no brain injury nor nerve injury as in this case. I do not think that there was any comparison between the injuries in that case and those sustained by the respondent herein.

22. Similarly the injuries in the case of China Jiangxi Ltd (supra) that was cited by the advocates for the respondent consisted of far more serious injuries that had little comparison with the injuries sustained by the respondent in this appeal.

23. It is sometimes difficult to get comparable injuries in decided cases as no case is exactly the same to another.I endeavored to look for cases with comparable injuries to those of the respondent herein and came across the case of Beatrice Khamede v Eric Wanunu & Another (2019)eKLR where the respondent had sustained multiple fractures of the left shoulder blade, injury to the network of nerves that supply the upper limb (brachial flexus) causing weakness of upper limb. In the case, the recovery of the nerve injury was incomplete and there was substantial hemiparalysis. Permanent disability was assessed at 35%. On appeal the court upheld the trial court`s award of Ksh.800,000/- in general damages.

24. The injuries in the case I have just quoted involved, inter alia, some nerve injuries as was suffered by the respondent herein. However, the injuries in that case were more serious that the injuries sustained by the respondent herein. In that case there was a permanent incapacity of 35% whereas the respondent herein had no permanent incapacity. The respondent in this appeal seems to have substantially recovered from the injuries as he did not raise any complains relating to the brain and nerve injuries when he appeared in court. I am of the view that the award of Ksh.800,000/- made by the trial court in the case of the respondent herein was excessive. Considering that the respondent suffered severe injuries as noted in the report of Dr. Muchai, I am of the view that an award of Ksh.600,000/- is reasonable.

25. The upshot is that the appeal is allowed. I accordingly set aside the award of Ksh. 800,000/- made by the trial court and substitute it with an award of Ksh.600,000/-.

The appellant to have the costs of the appeal.

DELIVERED, DATED AND SIGNED AT NYERI THIS 10TH DAY OF MARCH 2022.

J. N. NJAGI

JUDGE