[2017] KEHC 7748 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 66 OF 2015

JOHN NKUNJA MBATI...................................................APPEALLANT

VERSUS

ESTHER MUTHONI MBURI...........................................RESPONDENT

J U D G M E N T

1. The Appellant in this matter was on the 13. 4.2013 sued by the Respondent in the lower court in which suit the Respondent sought general and special damages on account injuries sustained by her on the 23/12/2012 when she was injured while travelling in the Appellants motor vehicle Registration No. KBH 101V as a fare paying passenger.

2. In the suit the Respondent blamed the Appellant for the injuries and gave particulars of negligence against the Appellants driver agent or servant. The Respondent equally set out the particulars of injuries sustained resulting on the loss of left upper limb leading to incapacity as a result of which she was unable to continue with employment as a helper and therefore claimed damages for loss of earning capacity.

3. The Appellant entered appearance and filed a defence in which all the allegations, save for the description of the parties were denied. The Appellant denied ownership of the offending motor vehicle, denied the occurrence of the accident, denied having been the employer of one Samueal Kireri Mangi and that the Respondent was even a fare paying passenger as alleged. Even the particulars of negligence, injury and loss were all denied with an alternative and without prejudice plea that if any such accident ever occurred then the same was as a result of the sole and or substantial contributory negligence of the Respondent.

4. After the preliminaries were dealt with the matter was set for hearing by production of evidence during which hearing the Respondent as plaintiff testified as PW 2 and called Dr. Ajoni Adede as PW 3 and one no. 73616 corporal Hassan as PW 1. For the defence / Appellant, Dr. Jenniffer Mjawira was called to produce a second medical report on the Respondent. That report other than confirming the injuries upon the plaintiff assessed disability at 50% but the doctor confessed having not examined the Respondent but prepared the medical report with whole reliance on the treatment notes on the eve of her court attendances.

5. In the Judgment dated 29/4/2015 the trial court held the Appellant to have been 100% liable to the Respondent and awarded to her general damages of Kshs.1,800,000 for pains suffering and loss of amenities, Kshs.3,315,312 for loss of future earnings and Kshs.2000 for special damages.

6. It is that judgment the appellant now challenges on the single limb on the award of damages on the three grounds of appeal which essentially can be seen said to allege that the damages awarded were erroneous for being too high and therefore exorbitant and exaggerated.

7. It is now trite that the jurisdiction a trial court exercises in assessing damages is a discretionary jurisdiction. Where the damages are on account of personal bodily injuries the courts have acknowledge that it is indeed a difficult tasks for a trial court which an appellate court should sparingly and never freely seek to upset merely because such appellate court would come to a different assessment. See H. West & Sons vs Shepherd [1964] AC 326.

8. For this appeal, I take it that the appellant challenges the two heads of general damages and not the special damages. In order to make a determination, I will proceed from the known facts and principles an appellate court considers on a first appeal and when the court would interfere with exercise of discretion by a trial court.

9. The only issue for determination is therefore whether or not the damages as awarded were so high as to demonstrate an error in principle and therefore inviting this court to intervene. An error in principle would be revealed where the trial court considered a matter it was not entitled to consider, failed to consider a matter it was bound to consider or in the absence of either where the award is outrightly inconsistent with the notions of the need for a commensurate compensation and therefore wholy wrong as to affront the sence of fairness, evenhandedness and justice. As said before general damages were awarded under two heads and I propose to deal with those two heads distinctively.

10. Although the trial court did not unequivocally call each by its name,being a first appellate court and looking at the formula adopted consider that the awards were headed as follows:-

Pains suffering and loss of amenities Kshs.1,800,000

Loss of future earings Kshs.3,315,312

General damages for pains suffering

and loss of Amenities

11. In the words of the author of HALSBURY’S LAWS of England, 4th Ed Vol. 12(1) page 348, the purpose of awarding general damages for pains & suffering is to compensate for the physical and mental distress caused to the plaintiff by the bodily injury. The author says:-

This includes the pain caused by the injury itself and the treatment intended to alienate it, the awareness that of and embarrassment at the disability or disfigurement or suffering caused by anxiety that the plaintiffs condition may deteriorate.

12. It follows that a court assessing damages under this heading is not limited to a definite list of numerable factors to be considered. Each case will depend on its special and peculiar circumstances. The extent of the injury, the duration it persisted including the period of hospitalization or the nature of corrective procedures prescribed and undertaken by the medical experts and the residual effects are just but a few of the factors to be considered. These are all considered in line with previous judicial pronouncements and opinion on comparable cases.

13. It is therefore the extensive of factors to be considered and the facts that human beings react to different situations in unique and different ways that there can never be a hard and fast rule on how to precisely measure damages due to a particular plaintiff. It then falls to the sphere of judicial discretion which wherenever exercised without evidence of manifest error should not and cannot be freely interfered with.

14. Being aware of the foregoing consideration, the fact that the trial court had the benefit of seeing and hearing the plaintiff and her witnesses testify, a benefit this court lacks, I will look at the evidence adduced on the Respondents injuries and mirror the same against the judgment just to find out if any error is revealed.

15. Both the pleadings, the evidence and the two professional medical reports agree on the particulars of injuries suffered but the two reports do not agree on the extent of residual effects of such injuries on the Respondent as far as the percentage of disability is concerned. In the appeal before the court now, the Respondent was proved to have suffered:-

i) Crush amputation of left upper limb.

ii) Fracture of left Clavicle.

iii) Fracture of the 2nd, 3rd & 4th ribs

with resulted in 59% according to Dr. Adede and 50% according to Dr. Jenniffer Mjakina permanent partial disability with fracture sites remaining weak for life even if the bones united, with reduced capacity to work and therefore increased dependency and for a lady there was cosmetic embarrassment leading to loss of self-esteem.

16. For this court as an appellate court to interfere with the trial courts decision in this regard there must be proof of an error. In the submissions filed in court the only apparent reason for faulting the trial court is what the appellant denies the extent of the injuries suffered and that the award is not comparable to the Respondents pleaded and proved injuries. To the appellant, although the Respondent alleged injury to the skull and chest, the medical reports said X-rays from both areas showed no bone injuries. I do not however understand the appellant to say that the injuries proved at trial and based on the decided cases cited did not merit the assessed damages. I also do not understand the appellant to say that an injury to the head and chest if not to the bone is no injury at all.

17. Of critical concern to the court is the fact that to the trial court was cited a decision by Okwengu J, as she then was, in Elizaphan Nyamu vs Ndai Kwa Mwagura, HCCC No. 45 of 1997 made in 2012 in which the major injury was amputation of the upper limb and a sum of Kshs.1,500,000 was awarded. In fact, in the judgment, the trial court had this to say:-

“I find the authority of Elizaphan Njamu vs Ndaikwa Mwagoro, Mombasa HCC No. 45/97 (mispleading of names notwithstanding) relevant because the plaintiff herein like the plaintiff therein sustained traumatic amputation of the right upper limb……. I find that an award of Kshs.1. 8 million is reasonable considering that the plaintiff in this case is about 10 years younger than the one in Mjavi’s case and will live with disability for longer”.

18. On this head, I find no justification to fault the trial court. It committed no error of principle. It did consider the injuries proved before the court and choose to follow a decision that to this court was of comparable injuries and very relevant for such comparison. One could do no better than agree with those apt words of Madam JA in Ugenya Bus Service vs Gachoki [1982] eKLR when the judge said:

“I know that the days of small and stingy awards are gone.

They were decidedly miserly in any event, like Kshs.20,000 for loss of forearm or Kshs.50,000 for loss of an eye. Even without the curse of inflation, they were niggardly. I remember but forget them”

19. Before the trial court the Appellant proposed an award of Ksh.800,000/= and relied on the decision inAhmed Jumale Jwalevs Ahmed Abdurkadir HCCC No. 1994 of 2000 where an award of Kshs.500,500 was made for injury leading to amputation of the humerus. Indeed on that case the plaintiff was aged 37 years old while in this matter the Respondent was 30 years old. The one distinction is that other than the age of the decision the plaintiff herein is a lady whose self-esteem had been administered a fact not disclosed in the Duale’s case.

20. All in all the trial court exercised a discretion which the appellant has failed to demonstrate was marred with an error.

Loss of future earning

21. Under this heading the appeallant has submitted that this is an award made as part of general damages and that the multiplier of 30 years adopted by the trial court was erroneous.

22. The law is that damages for loss earnings is separate and distinct for damages for reduced or diminished earning capacity which only applies where the plaintiff is at the time of trial is in employment but fears of job loss in the future and the disadvantage of inability to get a comparable job due to the injury. See Fairley vs John Thomson [1973]2 Lloyd’s Rep 40 and Moeliker vs Reyrolle & Co. Ltd [1977] 1 WLR 132.

23. Closer home, the court of Appeal in Mumias Sugar Co. Ltd vs Francis Wanalo [2007] eKLR game the formular of assessing loss of future earnings to be:-

“Assessed on the ordinary multiplier/multiplicand Basis”.

24. Based on those principles of law, I once again find that in calculating the damage for loss of future earnings the trial court committed no error in principle neither did it misapprehend any material facts at all. In Butter vs Butler [1984] KLR Nyarangi Ag. JA, made the distinction even more obvious when he said:-

“There was no evidence before the trial judge; that the respondent has before been in salaried employment. There could therefore be no claim for loss of future earnings. However, having been injured to the extent of not being able to find a suitable job, the respondent had lost her capacity to earn”.

25. In this appeal, the Respondent led evidence to the effect that at the time of accident she was employed at EPZ as a manual worker and a payslip was produced to prove that she earned Kshs.9,450 (EXH P.8). She added

“I would work in the textile section. I would check and pade textiles. I was not sacked but I could not do the job. I depend on well-wishers. I cannot even wash my own clothes.”

26. In awarding damage for loss earnings the trial court expressed itself in the following words:-

According to the plaintiffs’ identity card no. 22558467 she was born in 1982. At the time of the accident, she was 30 years old. I find that a multiplier of 28 years is reasonable. The plaintiff earnings are given in the payslip as Kshs.9867. This is before NHIF, NSSF and the late hour deductions. I find that the figure of 9867 should be the multiplicand because NHIF and NSSF deductions were part of her earnings in health and pension scheme”

27. In the submissions filed in this appeal, this finding by the trial court is faulted on the basis that the trial court “should have taken judicial notice of the fact that in less than 10 years the claimant would have found a job she can do with prosthesis arm the subordinate court should also have taken into account the vagaraes of life expectancy in Kenya. On the basis of those submissions the Appellant submits that the applicable multiplier should be 10 and not 28 years.

28. In my finding, there was no basis in law and even facts placed before court for any judicial notice that within 10 years the Respondent would have found another job. To the contrary the court ought to have taken notice of the scarcity of jobs in this county and the prevalent unemployment among young people including highly educated and qualified. Had I sat, I could have taken such notice and come to the said multiplier noting that the statutory retirement age is 60years.

29. In any event the choice of a multiplier is a decision grounded on judicial discretion and not amenable to be disturbed unless it is arrived at bereft of reason. See Board of Governors, Kangubiri Gilrs High School & Another vs Jane Wanjiku & Another [2014] eKLR where the court said:

The choice of a multiplier is a matter of the courts’

discretion must be exercised judiciously with a

reason.

30. I find no demonstrated error proved against the trial court to entitle me, on this appeal, to disturb the courts finding and I therefore find no merit in the appeal and therefore dismiss the same in its entirity with costs to the Respondent.

Dated at Mombasa this 17th day of February 2017.

P.J.O. OTIENO

JUDGE