[2019] KEHC 12061 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 312 OF 2014

JOSEE MWANGI..............................................APPELLANT

VERSUS

DAVIS NYAKENYANYA ONSARE..............RESPONDENT

(Being an appeal from the judgment delivered on 26th June, 2014 by Hon. C.O. Obulutsa (Ag. Chief Magistrate) at Chief Magistrate’s Court at Milimani Commercial Court Civil Case No. 6562 of 2013)

JUDGMENT

1. The Respondent by way of the further Amended Plaint dated 14th November, 2011 sued the Appellant, Josee Mwangi, for damages for injuries sustained when the Respondent was involved in a road traffic accident on 22nd December, 2009. The Respondent prayed for judgment for:

a) General damages for – (i) Pain suffering and loss of amenities of life

(ii) Cost of artificial legs over the years

(iii) Futures loss of earnings

(iv) Future dental costs

b) Special damages Ksh.205,740/=

c) Costs of the suit

d) Interest of (a),(b) and (c) above

2. By the consent of the parties judgment on liability was entered at 85% against the Appellant and 15 % against the Respondent. The case subsequently proceeded for assessment of damages.

3. The Respondent’s particulars of injuries were given as follows:

a) Below knee amputation of the left leg.

b) Compound fracture of the distal tibia and fibula including the right ankle joint.

c) Loss of upper central incisor tooth

d) Stiff right ankle joint

e) 60% permanent incapacity

4. The trial magistrate in his judgment entered judgment for the Respondent for Ksh.5,610,429. 00, costs and interest. The breakdown was as follows:

a) General damages Ksh.2,500,000. 00

b) Lost earnings Ksh.249,685. 00

c) Loss of future earnings Ksh.3,217,320. 00

d) Cost of tooth bridge Ksh.26,000. 00

e) Cost of future prosthesis Ksh.600,000. 00

f) Special damages Ksh.7,500. 00

Total Ksh.6,600,505. 00

Less 15% Kshs.990,075. 75

Total Ksh.5,610,429. 00

5. The Appellant was dissatisfied with the judgment and appealed on grounds that can be summarized as follows:

(a) That the trial magistrate erred in awarding general damages for loss of earning capacity and loss of earnings.

(b) That the wrong multiplicand and multiplier were applied.

(c) That the award of Ksh.2,500,000/= general damages was unreasonable and excessive.

(d) That the trial magistrate erred in making the award for the cost of the dentures and the limb prosthesis.

(e) That the trial magistrate relied on unverified and contradictory evidence.

6. The appeal was canvassed by way of written submissions which I have considered.

7. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“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 (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

8. The Respondent, Davis Nyakenyanya testified. His evidence was that he was injured on both the left leg and the right leg and the head. That his left leg was amputated and he lost some teeth. That at the material time he was working as a guard with Radar Security Company where he earned Ksh.8,700/= per month. That he lost his job in February 2010 and he now engages in casual work and has also embarked on computer training. He gave his level of education as a form four leaver and also a trained driver.

9. Dr. W. M Wokabi, a Consultant Surgeon produced his medical report as an exhibit. He also produced the report by Dr. Wambugu as an exhibit.

10. The medical report by Dr. Wokabi described the Respondent’s injuries as follows:

a) Left leg severely crushed and mangled and was amputated below the knee.

b) Fracture of right tibia and fibula malleolus with extensive wound over the right ankle joint and was treated by immobilization of the leg in a plaster cast.

c) Loss of upper incisor tooth

11. The doctor’s opinion was that the Respondent will require an artificial leg for the rest of his life. He gave the cost of the prosthesis as Ksh.100,000/= and stated that it would require to be changed every 5 years. The doctor’s further opinion was that the right leg fractures united but with deformation and restriction of the movement of the right ankle joint which will remain permanently painful and stiff. Functional disability was assessed at 60% with inability to carry out strenuous guard duties and many other tasks. One tooth bridge was recommended to replace the lost upper incisor tooth. The cost was given as ksh.30,000/=.

12. The report by Dr. P. M. Wambugu dated 1st March, 2012 is essentially in agreement with the report by Dr. W.M. Wakobi on the injuries sustained and the degree of incapacitation. The cost of the leg prosthesis is given as Ksh.90,000/= and replaceable every 4-6 years. Dr. Wambugu gave the estimated cost of the tooth bridge as Ksh.24,000/=. The period of management of the Respondent as an inpatient was given as about four months.

13. On the award of general damages for pain, suffering and loss of amenities, the Appellant’s counsel submitted for an award of Ksh.1,200,000/=. The following authorities were relied on:

(a) Salome Wakarindi Wachira v SignonFreights Ltd & 3 others [2007] eKLR where an award of Ksh1,200,000/= was made in the year 2007 for an above knee amputation of the right leg.

(b)Dauglas Erick Nyakundi Masira v Rongai Workshop Ltd & another [2009]eKLR where an award of Ksh.700,000/= was made as general damages for a fracture of the right humerus of the right arm and segment fracture of the tibia and fibula together with a below knee fracture of the right leg.

14. The Respondent’s counsel supported the award of general damages for pain, suffering and loss of amenities and relied on the following authorities:

a) Macharia Francis Mundui & another v Joel Wanje [2017] eKLR where an award of Ksh.3,000,000/= was confirmed for an award of general damages for an above knee amputation of the left leg.

b) John Kinyua Murage & 2 others v Joseph Onyango Obura [2018]eKLR where general damages were assessed at Ksh.2,500,000/= for compound fractures of the right tibia, skin and muscle loss of the right leg behind the knee, permanent disability was assessed at 45%.

15. Taking into account the Respondent’s injuries and the range of awards in comparable injuries, I am not persuaded that the awards by the trial court for pain, suffering and loss of amenities should be disturbed.

16. Loss of earnings is a claim for special damages. It has to be specifically pleaded and proved (See for example Mumias Sugar Co Limited v Fracis Wanalo [2007] eKLR.)

17. In the case at hand, the trial court awarded Ksh.249,680/= for lost earnings. The Respondent pleaded in paragraph 5 of the further Amended plaint that he lost past and future earnings. To prove the same, the Respondent’s evidence was that he was not issued with pay slips but that he used to be paid through his bank account. The record reflects that the Respondent produced his bank documents and a Dosh form (Directorate of Occupational Safety and Health Services) duly filled in by his employer. The Dosh form reflects that the Respondents monthly salary was Ksh.8,937/=. However, there were no particulars of the special damages claim in the further amended plaint to reflect the number of months which this claim falls under or the total claimed. The same was not specifically pleaded and therefore ought not to have been awarded.

18. On the loss of future earnings, the Court of Appeal in the case of SJ v Francesco Di Nello & another [2015]eKLR expressed itself thus:

“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

19. In the case at hand, the Respondent pleaded that he lost his job and prayed for loss of future earnings. The evidence adduced by the Appellant proved his earnings at Ksh.8,937/=. The Respondent’s further evidence that he could no longer be able to carry out the work of a security guard was corroborated by the medical evidence. The trial magistrate applied a multiplier of 30 years. Taking into account the vicissitudes of life, this was on the higher side. This court’s view is that a multiplier of 20 years is reasonable. This comes to Ksh.8,937 x 12 x 20 = Ksh.2,144,880/=

20. The award of Ksh.600,000/= as the costs of the leg prosthesis makes a provision for change of the same five times at Ksh.100,000/=. Taking into account that the price will not remain constant, the amount is reasonable. The average cost of the tooth bridge awarded at Ksh.26,000/= is also reasonable. There was no complaint over the award of special damages at Ksh.7,500/=.

21. This court’s total award is therefore as follows:

(a) General damages Ksh.2,500,000/=

(b) Lost earnings Nil

(c) Loss of future earning Ksh.2,144,880/=

(d) Cost of tooth bridge Ksh.26,000/=

(e) Cost of future prosthesis Ksh.600,000/=

(f) Special damages Ksh.7,500/=

Sub Total Ksh.5,278,380/=

Less 15% contribution Ksh. 791,757/=

Total Ksh.4,486,623/=

24. The judgment of the lower court is set aside and substituted with a judgment for Ksh.4,486,623/=. The appeal having been partially successful, each party to bear own costs. Costs in the lower court remain with the Respondent.

Dated, signed and delivered at Nairobi this 7th day of Nov., 2019

B. THURANIRA JADEN

JUDGE