[2022] KEHC 2148 (KLR)

REPUBLIC OF KENYA

IN TH HIGH COURT OF KENYA AT KITUI

HIGH COURT CIVIL APPEAL CASE NO. 36 OF 2018

JM (A minor suing through the father and the next friend CMK......................APPELLANT

VERSUS

GITHUYA TRANSPORTERS (K) LTD..................................................... RESPONDENT

Being an Appeal that arose from the Judgement of Hon. G.W. Kirugumi S.R.M vide Mwingi SRM’s Court Civil Case No. 53 of 2016

J U D G E M E N T

1. This is an appeal that arose from the judgement of Hon. G.W. Kirugumi S.R. M vide Mwingi SRM’s court Civil Case No. 53 of 2016 between the appellant herein who was the plaintiff and the respondent who was the defendant in that case.

2. The case at the lower court was based on claim based on tort of negligence where the appellant JMK a minor suing through next friend CMK had blamed the respondent for causing an accident that involved motor vehicle Registration Number KAZ 149R which was carrying the appellant.

The motor vehicle was involved in an accident at Karaini area and the minor suffered the following injuries namely: -

(i) Traumatic amputation of the right arm below the elbow.

(ii) Bruises on forehead.

(iii) Bruises on both knees.

3. The parties herein agreed on the question of liability where the respondent agreed to 90% liability while the appellant shouldered 10%.

4. The trial court was left to determine the question of quantum and upon evaluation of evidence and authorities cited it awarded the appellant as follows: -

(i) General damages Kshs. 1,500,000

(ii) Loss of future earning Kshs. 300,000

(iii) Future medical expenses Kshs. 360,000

(iv) Special damages Kshs. 9,920

Subtotal 2,169,920

Less 10% contribution Kshs. 216,992

Total Kshs. 1,952,928

5. The appellant felt dissatisfied with the award and filed this appeal raising the following grounds: -

a) That the Learned Magistrate erred in law and in fact in awarding general damages for pain, suffering and loss of amenities of Kshs 1,500,000/- which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant.

b) That the Learned Magistrate misdirected herself in law and in fact by failing to appreciate the evidence adduced by the Appellant that gave rise to an inference that the nature of injuries sustained are serious and grave to attract a higher award.

c) That the Learned Magistrate misdirected herself in law and in fact by awarding general damages for diminished earning capacity of Kshs 300,000/- which is manifestly and inordinately low bearing in mind the extent of incapacitation sustained by the Appellant.

d) That the Learned Magistrate erred in law and fact by failing to consider the Appellant’s authorities on awards made in relation to similar injuries.

e) That the Learned Magistrate misdirected herself in law and fact by failing to appreciate that similar injuries should generally attract similar awards and thereby arriving at an erroneous award.

6. The appellant in her written submissions through counsel has implored upon this court to increase the award made on general damages.

She contends that an award of Kshs. 2,000,000 would have been fair in the circumstance. She relies on the following authorities: -

(i) Francis Kimani Kariuki vs Hudson Wanambiri Kamulamba (2005) eKLRwhere the court awarded the Plaintiff Kshs 1,000,000 on this head for complete loss of his arm.

(ii) Swaleh Sifuna Ali vs Evans Maina & 2 Others (2006) eKLR. The court awarded the Plaintiff Kshs 1,300,000/- where the plaintiff lost his arm as a result of a traffic road accident.

(iii) Robert Joseph Bandu vs Falcon Coaches Ltd & Katana Kalume (2008) eKLR The Plaintiff lost his forearm in this case as well and suffered 70% disability. Similarly, the court awarded him Kshs 1,300,000/- on this head.

(iv) Joseph Ibrahim Alasau vs Steering Ship Contractors & Anor (2008) eKLR.The Appellant in this matter had his arm amputated following injuries sustained while at his place of work. The Court of appeal awarded him Kshs 1,300,000/- on this head.

(v) Grace Belinda Adhiambo v Bowers Okelo & Anor (2017) eKLR. The Plaintiff sustained injuries to her left arm which was amputated. The court awarded her Kshs 1,500,000 on this head.

7. On General damages for loss of future or diminished earning capacity, counsel submits that the Appellant sustained a permanent incapacity of 65% which was not disputed by the Respondent. Counsel further submits that the injuries sustained will affect the minor’s prospects in the job market in future. The Appellant is praying for an award of Kshs 3,000,000 on this head. Counsel submits that this court be guided by the decision in Butler V Butler (1984) KLR 225 where the Court of Appeal judges discussed considerations to be made by the court when making an award of damages for loss of earning capacity. The judges made a determination that this claim could be considered on its own or together with an award for general damages. The court also held that some of the factors to consider on this head include age, qualifications of the claimant, their remaining length of working life, their disabilities if any and previous service if any. The Appellant further relies on the case ofMumias Sugar Company Limited vs Francis Wanalo (2007) eKLRwhere the court awarded a global figure of Kshs 500,000/- for loss of future earning capacity.

8. The respondent has opposed this appeal through written submissions by counsel dated 12th March 2021.

9. The Respondent submits that the trial court did not err in awarding Kshs 1,500,000/- being an award for injuries sustained. The Respondent has relied on the cases of Joseph Ibrahim Alasau v Steering Ship Contractors (2008) eKLRand Loise Njoki Kariuki v Bendricon Wamboka Waswa & Anor (2012) eKLRwhere the court awarded Kshs 1,300,000/- and Kshs 1,500,000/- respectively being an award for general damages for pain, suffering and loss of amenities.

10. On the award for general damages for diminished earning capacity/loss of future earning capacity, the Respondent submits that the trial court’s award of Kshs 300,000/- was fair. Further, that the minor was 4 years old at the time of the accident which made it difficult to ascertain the income she would make in future. It submits that her potential earning power was not diminished hence the trial court’s award should be upheld. The Respondent has relied on the case ofNdoro Kaka Kakondo vs Salt Manufacturers (K) Ltd (2016) eKLRwhere the court distinguished between damages for loss of future earning capacity and/or diminished earning capacity and loss of earnings.

11. The Respondent submits that it relied on Dr Wainaina’s report who in her opinion stated that the minor would require a prosthesis which would costs Kshs 100,000/- after every four years. The Respondent also relies on the doctor’s assessment of the minors’ disability which she stated was at 60%.

12. This court has considered this appeal and the response made. The appeal is only on quantum because the issue of liability was settled by consent at 90% to 10% in favour of the appellant.

13. This is a first appeal and being the 1st appellate court the duty of this court is to re-evaluate and review the evidence adduced in the lower court and check whether the decision is well grounded. In Selle and Anor. versus Associated Motor Boat Co. Ltd. & Others (1963) EA 123 that the principle was well laid out in the following observation made by the court;

"…...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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….."

14. Assessment of damages in cases related to road traffic accidents is a discretional matter based on trial court’s finding and guided by past decisions in respect to victims with similar injuries. It is usually difficult to get two cases with exactly the same injuries. What is important is to check generally the kind or nature of injuries with a view to ensuring some degree of uniformity of awards are made in courts in Kenya. In the case of Francis K. Righa versus Mary Njeri (Suing as the legal representative of the estate of James Kariuki Nganga [2021] eKLR.

The Court of Appeal citing Butler versus Butler (1984) eKLR 225provided guidelines on the role of the court in assessment and reassessment of damages when it observed as follows: -

“...that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision...”

15. Besides the above views, in Abdi Werdi Abdulahi versus James Royo Mungatia & Anor. [2019] eKLR court also made the following observations: -

“But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.”

16. In this matter the appellant did plead that she suffered the following: -

(i) Traumatic amputation of the right arm below the elbow

(ii) Bruises on the forehead.

(iii) Bruises on the knees.

The major injury was what led to amputation of the right arm below the elbow. The trial court using its discretion and guided by the cited authorities with similar injuries awarded Kshs. 1. 5 million.

17. The question posed going by the principle in ‘‘Butler versus Butler’’ is whether the award was so inordinately low that no reasonable court could have arrived at the figure. To answer that question, the decision of EW (Suing as next friend and mother to BM (a minor) versus Kenya Power and Lighting Co. ltd. & Anor. [2015] eKLRcomes in handy. In that case, a plaintiff aged 5 years suffered amputation of the right upper limb and burns on anterior abdomen after being electrocuted by a live wire and was awarded Kshs. 1. 5 million in general damages for pain and suffering. The award was upheld on appeal by the Court of Appeal.

18. Similarly, in C.M (a minor suing through the mother and next friend MN versus Joseph Mwangangi Maina [2018] eKLR a minor aged 7 years who was involved in a road accident and suffered amputation of his left limb was awarded Kshs. 2,000,00/-.

19. It is therefore apparent that the award by the trial court in this instance cannot be termed as ‘‘inordinately low.’’ An award of general damages as I have observed above is a balancing act and discretional as well depending on the facts of each case. The appellant herein has not faulted the trial court’s decision for applying wrong principle or taking into consideration extraneous or irrelevant matters or failing to take relevant facts into consideration. As a matter of fact, the appellant has submitted that an award of around Kshs. 2 million would have been fair which is almost the amount awarded by the trial court. This court as an appellate court cannot substitute an award from the lower court exercising its discretion unless the condition in ‘‘Butler versus Butler’’ are met. The court of appeal in Kenfro Africa Ltd T.A as Meru Express Service, Gathogo Kamini versus A.M. Lu`bia & Olive Lubia (1987) eKLR 30 the court stated as follows: -

‘‘An appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance.’’

20. This court on the basis of the foregoing, finds no basis to interfere with the award made by the trial court on general damages.

21. On the question of loss of future earning, the appellant faults the trial court’s award of Kshs. 300,000 terming it too low and has asked this court to increase it tenfold to Kshs. 3 Million submitting that her disability has dented her livelihood of fairly competing with others in the job market.

22. The evidence tendered at the trial court shows that the appellant was very young at the time of the accident and was schooling. She was 5 years which means she is still growing and will over time learn to live with the new reality.

23. The assessment of damages in respect to diminished earning capacity is also discretional matter and it depends on the circumstances of each case. Where a victim is an adult and employed, there is general consensus that the person’s concerns that the person’s earning capacity is diminished when say he loses an arm in an accident. The same is not applicable where the victim is a child such as in this instance because the person is still growing of course the issue of permanent disability cannot be disregarded.

24. In the case of Mumias Sugar Co. versus Francis Waraho [2007] eKLR, the court was faced with a similar scenario while the victim of the accident was a minor. In assessing loss of future earnings, the court observed that it was not possible to ascertain what income she would make since she was still a minor and gave a token award of Kshs. 500,000 as damages for future earning capacity noting that it might be very true that she could reach her near full potential in future. The court observed as follows: -

“....that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision….”

25. In Mumias Sugar case, the disability sustained was assessed at 15%. In this present instance, the disability was assessed at between 60-65% which in my view is a substantial difference. The global award made by the trial court on this head was a bit on the lower side considering the degree of the appellant’s disability. It is important however to balance the scales of justice carefully because the party compensating which usually is an insurance company (where the motor vehicle involved in the accident was covered) and the reality in Kenya is that most insurance companies are facing bleak future because of high awards made by courts when assessing damages. This companies should be allowed to thrive otherwise most companies will shy away from insuring motor vehicles especially PSVs. These observations for avoidance of doubt, are in obiter dietum and though they have no bearing in the decision reached in this appeal, the issue cannot be disregarded.

Having said that it in my considered position that where the degree of disability is high, the award of damages on diminished future earnings should be commensurate. I am not persuaded that an award of Kshs. 3 million is justified in the circumstances but an award in the region of Kshs. 800,000 in fair in the circumstances. I will therefore set aside the award of Kshs. 300,00 awarded through the next friend Christine and in its place award to the appellant Kshs. 800,000. I will however give a rider that, that amount be deposited in an interest earning account until the minor reaches the age of 19 at which time she will be old enough to decide how to utilize the funds. This order is given without any prejudice to the arrangements made between the appellant and counsel on how the other amounts awarded would be utilized suffices to state that whatever arrangements reached, the best interest of the minor should be considered.

In summary this court partly allows this appeal and the appellant is awarded the following in damages;

(i) General damages Kshs. 1,500,000

(ii) Loss of future earnings Kshs. 800,000

(iii) Future medical expenses Kshs. 360,000

(iv) Special damages Kshs.9,920

Subtotal Kshs. 2,669,920

Less 10% Kshs. 266,920

Total Kshs. 2,402,928

The appellant will have 30% costs in this appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF FEBRUARY, 2022.

HON. JUSTICE R. K. LIMO

JUDGE