[2019] KEHC 5844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL APPEAL NO. 17 OF 2016

JOHN MWANZIA MWILU .....................................................................APPELLANT

VERSUS

GITHINJI WAHINYIA............................................................................RESPONDENT

(An appeal from the judgment of Honorable Mbicha, Resident Magistrate at Kajiado in PMCC No. 103 of 2014, delivered on 14th August, 2015)

BETWEEN

JOHN MWANZIA MWILU......................................................................APPELLANT

VERSUS

GITHINJI WAHINYA...........................................................................RESPONDENT

JUDGMENT

1. This is an appeal from the judgment and decree of Hon. E.A Mbicha RM dated 14th August, 2015 delivered in RMCC No. 103 of 2014, John Mwanzja Mwilu v Githinji Wahinya. The Appellant had sued the Respondent for general and special damages arising from a road traffic accident that occurred in 20th September, 2013, along Isinya-Kajiado road involving Motor vehicle registration Nos. KAN 695C Isuzu Canter and KBC 885J, Toyota Town Ace. The Appellant was a passenger in that Motor Vehicle on that fateful day. The accident was attributed to negligence of the driver to Motor vehicle KAN 695C.

2. The Respondent filed a defence denying liability, loss and damages. The Respondent pleaded in the alternative, that the accident was caused by the petitioner’s negligence or that of the driver of motor vehicle registration Number KBC 885J.

3. Parties recorded consent on liability with the Respondent shouldering 80% against the Appellant’s 20%. They also agreed to file written submissions on quantum and left the court to determine the issue on the basis of those submissions. The medical report by Dr Kimuyu, the P3 Form and Discharge Summary were also admitted by consent.

4. After considering the written submissions, the trial magistrate assessed general damages at Khs. 120,000/- and after applying the 20% liability, the net general damages came toKhs. 96,000/-. Special damages were not proved and were therefore not awarded.

5. Aggrieved with the judgment on quantum, the Appellant lodged this appeal through a Memorandum of Appeal dated 25th August 2015, raising three grounds of appeal, namely that:

1. The learned trial magistrate erred in law and fact by giving an inordinately low award despite the fact that the appellant suffered serious injuries.

2. The learned trial magistrate erred in law by giving a low award not commensurate with the injuries suffered by the appellant.

3. The learned trial magistrate erred in law by failing to take into account matters he ought to have taken into account while assessing the quantum of general damages awarded to the appellant.

6. The Appellant asked the court to set aside the judgment on quantum and in place thereof to assess and award damages that are commensurate with the injuries the Appellant had suffered.

7. During the hearing of this Appeal Mr. Ngolya, learned counsel for the Appellant submitted, highlighting their written submissions dated 25th March 2019, that general damages of Kshs,120,000 awarded by the trial court was inordinately low; that the award was not commensurate with the injuries the Appellant suffered and that the trial court failed to take into account relevant matters in assessing damages.

8. According to counsel, the Appellant suffered serious injuries as shown by the medical report but the trial court did not make reference to that report or the Doctor’s opinion. Learned counsel faulted the trial court contending that there is nothing in the judgment to show that he analyzed this evidence in order to come to the conclusion he did. He urged this court to allow the appeal, set aside the impugned judgment and assess damages at Kshs.600, 000/-. He relied on a number of decisions to support his case.

9. The respondent filed written submissions dated 1st April 2019 but did not attend court during the hearing, although the date had been taken by consent. In the written submissions, the Respondent contended that there is no reason for interfering with the trial court’s discretion; that an appellate court can only interfere with an award of damages if it is inordinately low to represent an erroneous estimate or if the trial court failed to take into account comparable decisions. According to the Respondent, the injuries the Appellant sustained do not warrant interference with the trial court’s award. They relied on various decisions and urged this court to dismiss the appeal.

10. I have considered this appeal, submissions made on behalf of the parties and the authorities relied on, I have also read the record of Appeal and the material relied on in support of this appeal. This being a first appeal it is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.

11. Gitobu Imanyara & 2 others v Attorney General [2016] e KLR the Court of Appeal stated that;

“ [A]n 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 allowances in this respect”

12. And in Peters v Sunday Post Ltd [1958] EA 424, the Court held that;

“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”

13. This appeal is against quantum only. After considering submissions by parties, the learned trial magistrate stated with regard to quantum that the medical report by Dr. Kimuyu dated 13th November 2013 indicated that the plaintiff suffered a blunt chest injury; a blunt injury to the right leg and a blunt injury to the left leg with bruises. The trial court also referred to the plaintiff’s submissions which had recommended an award of Khs. 600,000/- as general damages.

14. The court further referred to the defendant’s submissions which had suggested an award of Kshs. 80,000/- general damages for pain and suffering, and loss of amenities as well as the decisions relied on by both sides in their submissions. The trial court concluded that an award Kshs. 120,000/- would suffice as general damages for pain, suffering and loss of amenities, thus triggering this appeal.

15. As I have already stated, this appeal is against quantum only. Quantum is at the discretion of the court and an appellate court will not normally interfere with the exercise of the trial court’s discretion unless it is shown that that the trial court failed to take into account relevant factors or took into account irrelevant factors in assessing damages; or that the quantum is inordinately high or low to amount to an erroneous estimate or the court acted on a wrong principle of law.

16. It has long been held that an Appellate court should not disturb quantum because, as the appellate court, it is of the opinion that had it heard the case in the first instance it would have given a higher award. An appellate court will only disturb an award on clear and sound principles of law.

17. In that regard, the Court of Appeal stated in Gitobu Imanyara & 2 others v Attorney General (supra) that;

“[I]t 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.”

18. In Butt v. Khan[1981] KLR 349,Law, J.Aobserved 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.”

19. And in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v. A.m. Lubia and Olive Lubia(1982 –88) 1 KAR 727, it was held that;

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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

20. The Appellant has argued that the trial court awarded inordinately low damages and in doing so, failed to take into account relevant factors. The relevant factors the court is accused of not taking into account were on the nature of injuries the Appellant sustained and the Doctors’ opinion when it awarded general damages of Kshs, 120,000/-.

21. I have perused the record of the trial court. From the learned trial magistrate’s short judgment, it is clear that he referred to the medical report and decisions cited by the parties. It is therefore clear to me that the trial court considered the evidence on record including the medical report before making a determination. I say so because in the case before him he was only considering the issue of quantum whose basis was the medical report and comparable decisions since liability had been determined by consent

22. For my part, I have re –evaluated, reanalyzed and reassessed the evidence on record including the P3 form which was filled one week after the accident with regard to the injuries the Appellant sustained. The medical report by Dr. Kimuyu dated 13th November, 2013 also confirmed those injuries. These were the same injuries the trial court made reference to in its judgment. These were; blunt injuries to the chest, right leg and blunt injury with bruises to the left leg. The medical report further confirmed that these were soft tissue injuries and recovery was expected with no permanent incapacity.

23. Although counsel for the Appellant faulted the trial magistrate for not taking into account relevant factors, including the doctor’s opinion, I do not find anything in the doctor’s opinion that would have made the trial court arrive at a different decision from the one it reached. The Appellant suffered soft tissue injuries which were expected to heal with no possibility of permanent incapacity. The Appellant did not adduce other medical evidence to show that the doctor’s opinion had changed but which the trial court had failed to take into account or had ignored to warrant this court’s interference.

24. On quantum, the applicable principle is that similar injuries should as much as possible attract similar awards thus maintain a level of similarity and predictability in awards. Assessment of damages is a difficult exercise. This was appreciated in Ugenya Bus Service V Gachiki(1976-1985) EA 575 where the court observed that general damages for personal injuries are difficult to assess accurately so as to give satisfaction to both parties; that there are so many incalculables and the imponderables vary enormously making it a very heavy task. When the court struggles to make a reasonable award, it does not aim for precision or to give complete satisfaction but do the best it can.

25. InGicheru v. Morton and Another[2005] 2 KLR 333, the court opined that in assessment of damages, it must be borne in mind that each case depends on its own facts; that no two cases are exactly alike, and that awards of damages should not be excessive. This principle had been emphasized in Mohamed Juma v. Kenya Glass Works Ltd, CA NO. 1 OF 1980, where the court observed that an award of general damages should not be miserly, should not be extravagant but should be realistic and satisfactory and therefore it must be a reasonable award.

26. And in Southern Engineering Company Ltd V Mutia [1985] e KLR, it was held that the measurement of the quantum of damages is a matter for the discretion of the individual judge which has to be exercised judicially and with regard to the general conditions prevailing in the country generally and prior decisions which are relevant to the case in question. The Court further stated that in considering the correctness or otherwise of an award of damages appealed from, the appellate court would require the appellant to show that the award was so inordinately high(or low), as to represent an entirely erroneous estimate of the compensation to which the respondent (or appellant) was entitled.

27. Regarding comparable wards, I have considered awards in Purity Wambui Muriithi v Highlands Mineral Water Company Ltd[2015] eKLR, where the Court of Appeal revised downwards an award by the High Court of Kshs. 700,000/- to Kshs. 150,000/- for injuries to the left elbow, pelvic region, lower back and left knee; Dickson Ndungu Kirembe v Theresia Atieno & 4 Others [2014] e KLR where the High Court reviewed downwards an award of Kshs. 255,000/- to Kshs. 127,500/- for soft tissue injuries which had no complications and in Ndungu Dennis v Ann Ndirangu & another [2018] e KLR the appellant had suffered soft tissue injuries, and the court reduced an award of general damages of Ksks. 300,000 to Kshs, 100, 000/=general damages.

28. Taking the above decisions into account, the Appellant has not shown that on the basis of the injuries he sustained, the award of Kshs. 120,000 was inordinately low as to represent an entirely erroneous estimate of the compensation to justify interference by this court. For the above reasons, I am not satisfied on the merit of this appeal.

29. Consequently, this appeal is dismissed. Costs being discretionary the order I make is that each party shall bear own costs.

Dated, Signed and Delivered at Kajiado this 4th Day of July 2019.

……………………….…………

E. C. MWITA

JUDGE