[2022] KEHC 1952 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO 205 OF 2019

JANE BOSIBORI MAINYA.................................................................1ST APPELLANT

BRIAN ROBERT NYANGWANYA.....................................................2ND APPELLANT

VERSUS

CYRUS KANYOTU MWANIKI...............................................................RESPONDENT

(Being an appeal from the judgment/decree of Honourable J.B. Kalo

Chief Magistrate Nakuru, delivered on 12th November 2019 Nakuru

CMCC NO 1177 OF 2017)

JUDGEMENT

1. The appellants were sued by the respondent who was involved in a road traffic accident involving his motor cycle registration no. KMCS 238 V and the 1st appellant’s motor vehicle KBY 816 Z while he was lawfully riding the said motor cycle along the Eldoret- Nakuru road at Jogoo area on 22nd December 2014. He sustained serious bodily injuries and he sued for general damages, future medical expenses and operations, special damages and costs of the suit.

2. When the matter was set up for hearing the parties recorded a consent on liability of 85% in favour of the respondent and 15% against the appellant. The trial court in its final judgement awarded the plaintiff damages as follows; general damages: Kshs. 800,000/=, Future medical expenses Kshs. 140,000/= special damages: Kshs. 131,886/= plus costs and interests.

3. Aggrieved by the said judgement, the appellants filed this appeal against the lower courts award on liability on the following grounds;

a. THAT the learned trial magistrate erred in law and in fact in awarding excessive general damages not in tandem with the respondent's injuries.

b. THAT the learned trial magistrate erred in law and in fact in awarding excessive general damages not in tandem with decided authorities on similar injuries.

c. THAT the general damages awarded by the trial magistrate are manifestly excessive and inordinately high as to amount to an erroneous estimate of damages.

d. THAT the learned trial magistrate erred in law and in fact in awarding special damages that were neither strictly proved nor specifically pleaded.

e. THAT the learned trial magistrate erred in law and in fact in awarding costs of future medication without the said head of claim having been proved.

f. THAT the trial magistrate’s award and judgment is wholly not in tandem with settled legal principles.

4. The appellants pray that the judgment in the subordinate court be reviewed and set aside and the general damages payable be re-assessed in tandem with the respondent’s injuries and decided authorities. That further, the special damages and costs of future medical expenses be set aside.

5. Parties were directed to canvass the appeal by way of written submissions.

Appellants’ Submissions

6. On the first ground the appellants submitted that the award of Kshs. 800,000/= on general damages by the trial court was too high for the nature of injuries sustained by the respondent being a compound fracture of the tibia and fibula. That the said injuries were not disputed but going by the courts precedents an award of Kshs. 200,000/= was sufficient and the trial court ought to have been guided by precedence. He drew the courts attention to the case of Simon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR. While relying on the case of Kemfro Africa Ltd T/a Meru Express Services & Another v Lubia & Another [1987] KLR 27, the appellants submitted that the appellate court has authority to interfere with quantum of damages if the amount is inordinately high.

7. On the issue whether the trial magistrate erred in law and in fact in awarding costs of future medication without the said head of claim being proved the appellants submitted that said claim was not proved by the respondent and they placed reliance on the case of Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR. The appellant further placed reliance on the case of Postal Corporation of Kenya v Job Gachange Njagi [2006] eKLR where the court held that the award of future medical expenses had no legal basis and does not exist in the known heads of damages, within the law of torts. They urged the court to set aside the said award.

8. In conclusion, the appellants submitted that the learned trial magistrate did not consider the facts pleaded and proved and that he went beyond his duties. They urged the court to allow the appeal and set aside the award of the trial court and substitute the same with an award in observance of the principles of awarding damages and dismiss the suit with costs.

Respondent’s Submissions

9. The respondent submitted that the injuries were supported by the three exhibits, namely, the initial treatment notes the discharge summary, a medical report prepared by Doctor Kiamba who examined the respondent and the p3 form. The respondent on his submissions relied on the authority of Joseph Musee Mua V Julius Mbogo Mugi & 3 Others [2013] eKLR where the plaintiff was awarded Kshs. 1,300,000/= for injuries similar to the respondent’s herein. That further, the trial magistrate in his judgment at page 36 of the record of appeal awarded the respondent Kshs. 800,000/= as general damages which was subjected to 15% contribution. That the amount awarded was not inordinately high based on the circumstances and that the trial magistrate reached the decision based on evidence adduced by the respondent.

10. It is submitted for the respondent that the trial court did not err in awarding the special damages of Kshs. 131, 886/= since the same was pleaded and specifically proved to the required standard. In addition, that the trial court did not err in law and fact on the award of Kshs. 140,000/= for future medical expenses as the same was also pleaded. The court’s attention is drawn to the case of Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR.

11. Lastly, it was submitted that this court should be slow to interfere with a trial court award unless the said award was inordinately high or low or on justifiable legal reasons. That in the instant case, the respondent submitted for Kshs. 2,000,000/= but the trial court instead awarded Kshs. 800,000/=.

12. In conclusion, the respondent submitted that the trial court had discretion in awarding the said amount and he therefore urged the court to dismiss the appeal with costs in its favour.

Analysis and Determination

13. This being the first appeal, it is this court’s duty under section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd (1968) EA123 cited by the appellants where Sir Clement De Lestang (V.P) stated that:

“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 nor 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 demeanor of a witness is inconsistent with the evidence in the case generally’’.

14. I have perused through the entire record of appeal and considered the submissions by counsel for both parties. I note that liability is not contested therefore in my opinion the only one issue for determination is whether the award on quantum was excessive in the circumstances.

15. The plaintiff testified that on 22nd December 2016 he was involved in a road accident and he fractured his left leg and that he was taken to Mediheal, Nursing and Mercy Mission Hospitals. He testified that he spent Kshs. 126,386/= and that he was examined by Dr. Kiamba who prepared two reports at Kshs. 14,000/=. He testified further that a metal was inserted in his leg and that he no longer work or ride a motor cycle due to the injuries sustained. That he also used to earn Kshs 100,000/= per month before the accident but he no longer does. He prayed for compensation as per the plaint.

16. On cross examination, the plaintiff confirmed that he spent Kshs. 126, 486/= on treatment and he used to earn Kshs. 800,000/= from the Dania and Kshs. 100,000/= for the vegetables he planted in 2 acres at Ngorika. He testified that he used to bank his income with Equity Bank but he however had no bank statement. He confirmed that Dr. Lutomia had recommended for Kshs. 140,000/= for removal of implants.

17. The respondent testified that he was examined by Dr. Kiamba and he produced the medical reports as an exhibit Pexh 6a, b, c and d in court. In the said report the doctor confirmed that the respondent sustained compound fracture of the left tibia and fibula. The report also indicated that the same had united but the respondent suffered pain in the lower left limb and that he had prominent scars on the left lower limb. The doctor classified the respondent’s degree of injury as ‘Grievous Harm’and that he would have 8 months’ temporary incapacity and a 20% permanent disability.

18. The assessment of damages by courts in personal injury cases is guided by the following principles:

a. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.

b. The award should be commensurable with the injuries sustained.

c. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.

d. The awards should not be inordinately low or high (See Boniface Waiti & Another –Vs- Michael Kariuki Kamau [2007] eKLR.

19. The appellants and the respondent in their submissions cited authorities which show that damages for amputation of one’s leg would range from Kshs. 180,000 to Kshs.1. 3 million. The trial court awarded Kshs. 800,000/= on 12th November 2019. I have considered the above stated comparative authorities and the principles for assessment of damages stated above. It is my considered view that the award of Kshs. 800,000/= by the trial magistrate in the case under consideration was slightly excessive compared to the cited authorities.

20. The court in SAVCO STORES LTD –VS- DAVID MWANGI KIMOTHO MACHAKOS HCA NO. 12 OF 2005,the plaintiff sustained injuries including; Fracture of the left tibia and left fibula, Fracture of the left elbow, deep cut wound on the left forehead and consequently suffered 20% disability. The appeal court upheld an award for Kshs. 800,000/= for general damage inclusive of future medical expenses.

21. Further, in the case ofNew Original Investments Co Ltd v Bernard Kimatu Muia [2019] eKLRthe court upheld the award by lower court where it awarded Kshs. 2,000,000/= for pain and suffering, Kshs. 128,302/= for special damages, Kshs. 200,000/= for future medical expenses as well as costs of the suit and interest. In that case the doctor confirmed that the respondent had fractures on the limbs which had been surgically managed by plating. That the blunt trauma sustained on the right leg led to a compound fracture of the right tibia necessitating 3 different surgeries involving plating and external fixation. That further the same had been assessed on temporary functional incapacity at 35 months and total permanent disability at 20%.

22. Having looked at the circumstances of the case, I find the award high comparatively. Looking at the cited authorities by the appellant in their submissions the award under those injuries was lower than the current matter. I refer for instance the case of Denshire Muteti Wambua v. Kenya power & lighting Co. Ltd (2013) eKLR.

23. In the premises and considering the issue of inflation and the contribution on liability a sum of kshs. 600,000 would be reasonable in the circumstances.

24. On the issue of future medical expenses I do note that the same was pleaded in the amended plaint contrary to the appellant’s submissions. The medical legal reports produced clearly demonstrated that the respondent would still require future medical correction on the leg.

25. It appears however that there are two different school of thoughts as to whether the same ought to be awarded or not. What is apparent however is that it cannot be awarded if it is not pleaded. The court in Postal Corporation of Kenya v. Job Gachange Njagi (2006) eKLR was of the view that the same could not be awarded as it had no legal basis and does not exist in the headings under the law of tort.

26. This position was not similar in the case of Tracom Limited & Another v. Hassan Mohamed Adan (2009) eKLRwhere the court stated that;

“The award for future medical expenses is challenged on two fronts. First, that it was not specifically pleaded and strictly proved. Second, that the multiplier of 25 years was inflated. We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -

“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal right should be pleaded.”

We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”

27. I shall respectfully align myself with the Tracom case above for the simple reason that future medical treatment as long as there is sufficient medical evidence that it may be undertaken ought as a matter of practice be granted. Of course the same must be handled on a case to case basis. At times the claimant may not undergo the same as he may have healed or for whatever other reasons. The same cannot be denied in my view just because it is not known under headings provided by the law of tort

28. In this case the amount of kshs. 140,000 was suggested by the appellants and they cannot abrogate what they proposed. The respondent had prayed for a sum of kshs. 200,000 as suggested by his doctor but the trial court found that as at the time of the second medical opinion or examination he was progressing well in his healing.

29. Consequently, the trials court’s judgement is hereby set aside and substituted as hereunder;

a. General damages Shs. 600,000

b. Costs of future medical treatment Kshs. 140,000

c. Special damages Kshs. 131,886.

d. Total Kshs. 871,886/=

e. The apportionment of lability shall remain the same. The above sum shall attract interest at courts rates from the date of the trial’s court judgement till payment in full.

f. Each party shall bear their respective costs in this appeal.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 3RD DAY OF MARCH, 2022

H K CHEMITEI.

JUDGE