[2020] KEHC 1749 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

(CORAM: R. MWONGO, J)

CIVIL APPEAL NO. 101 OF 2015

JOSEPH K GATITIKA...........................1ST APPELLANT

PETER KURIA WANYEKI.....................2ND APPELLANT

VERSUS

FELISTA MUTHONI...........................1ST RESPONDENT

NAIROBI CITY COUNCIL..............2ND RESPONDENT

AGGREY MUKOTSWE AINEA........3RD RESPONDENT

( Being an appeal from the judgment of Hon E Kimilu SRM delivered on 6th October, 2015 in CMCC No 465 of 2015)

JUDGMENT

Background

1. The 1st Respondent/plaintiff was a passenger in a matatu KAR 240C which was involved in an accident with Lorry KAV 313 E, on 21st June 2008. The 1st Appellant was the owner of the matatu, whilst the 2nd Appellant was the insured and or reputed owner of the matatu. The 2nd respondent was the owner of the Lorry which was driven by the 3rd Respondent.

2. The injuries sustained by the 1st Respondent/plaintiff were:

I. Severe injury on her lips, mouth chest and all her limbs

II. Loss of both upper incisors and canine teeth

III. Injury to left eye, and scarring to the eyelid; permanent poor vision

3. After a hearing, the trial court entered judgment in favour of the 1st Respondent and against the 1st Appellant, 2nd Respondent, and 3rd Respondent in the following terms:

“I enter judgment in favour of the plaintiff against the defendants as follows:

1. Liability 60:40%

2. General damages Kshs 700,000/=

3. Special damages Nil

4. Total Kshs 700,000/=

5. Costs and interest thereon”

4. The aspect of liability was determined and apportioned pursuant to a judgment in a test suit, namely, Naivasha CMCC 466/208 John Kamau Muhia v Gatitika and Others. The appellants are dissatisfied only with the trial court’s judgment on quantum.

5. The only ground of appeal is that the damages awarded were excessive in light of the injuries sustained by the1st Respondent. The defendant had proposed an award of Kshs 60,000/= in the lower court relying on Shalimar Flowers Ltd v Noah Muniango Matianyi Civil App No 17/2008 Nakuru.

6. On her part, the plaintiff had proposed an award of Kshs 1,500,000/= relying on Nairobi HCCC No 86/2006 Joseph Musee Mua v Julius Mbogo Mugi & Others [2013] eKLR where the plaintiff was awarded Kshs 1,300,000/= for pain an suffering for injuries to the chest, loss of teeth and cut to the leg; and Nakuru HCCC No 209/2009 Michael Maina Gitonga v Serah Njuguna [2012] eKLR where the plaintiff was awarded Kshs 1,500,000/= for injuries to the chest and fracture of the right tibia and fibula.

7. The trial court considered the authorities against the injuries and made its award.

8. The appellant submits that the plaintiff’s evidence contradicts that of PW2, the doctor’s evidence; that loss of her eyesight was not permanent and in any event that she forgot to mention it in her evidence; that the allegation of loss of clear eyesight was an exaggeration since the initial treatment notes indicate blurred vision. The appellants rely on three cases and pray that the award be reduced to 100,000/=- 150,000/=.

9. The respondents support the award, and urge the court not to interfere with the award. They remind the court that following Shah v Mbogo 1968 EA 423 it should not interfere with the lower court’s exercise of discretion unless the trial court: took into account an irrelevant fact; or left out of account a relevant fact; or the award is so inordinately high or low as to be a wholly erroneous estimate of the damages.

10. I agree with the Court’s sentiments in the case of Peters v Sunday Post Limited [1958] EA 424, cited in Ndungu Dennis v Ann Wangari Ndirangu & Another [2018]eKLR and availed by the appellant, where the Court of Appeal for Eastern Africa stated:

“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has the advantage of seeing and hearing the witnesses.

11. The Doctor’s report shows the injuries as follows:

i. Scarred cut wood(sic wound?) left lower lip

ii. Lost both upper incisors and canine teeth

iii. Poor vision left eye with scarred lateral eyelid

…

Pain anterior chest wall

Painful walking controlled by analgesic

Opinion: Had permanent loss of teeth, permanent scarring of left eyelids with permanent poor vision”

12. On careful perusal of the trial court’s judgment I note that the trial magistrate took into account the injuries exactly as stated by the doctor in his medical report. She stated that the doctor:

“…made an opinion that the plaintiff sustained permanent loss of teeth, permanent scarring of the left eyelid with permanent poor vision. The degree of injury was assessed as maim”

13. The plaintiff’s evidence regarding her eyes was that as a result of the accident she sustained an “injury to the eye”. Whilst her language is not exactly the same as the doctor’s, I am not satisfied that it amounts to an exaggeration, and neither did the trial court exaggerate the injuries.

14. The appellant on appeal relied on the following cases: the Ndungu Dennis case(supra) where the court on appeal reduced the award to 90,000/= from 350,000/= for soft tissue injuries to lower left leg and back; in George Kinyanjui T/A Climax Coaches & Another v Hussein Mahad Kuyale [2016]eKLRthe High Court reduced the award to 100,000/= from 650,000/= on finding that the injuries were multiple soft tissue injuries including tenderness in the neck, chest, lumbo saxral spine, left shoulder, and that injuries to the teeth were not the result of the suit accident; and in George Mugo & Another v AKM[2018]eKLR the court awarded 70,000/= down from 300,000/= for blunt injuries to left shoulder, left arm and chest interior; bruises of left wrist region

15. The injuries to the plaintiff in the present case are more serious as the plaintiff has suffered permanent poor vision and permanent loss of four teeth: upper incisors and upper canines, the teeth used to cut and tear food.

16. In the result, nothing has been placed before me by the appellant that has persuaded me to interfere with the trial court’s award as being excessive.

17. The appeal is therefore dismissed with costs.

18. This judgment has been ready for delivery since February, 2020 and the parties have not been present jointly on dates appointed for delivery. The court has therefore directed that the judgment be read or deemed to have been read in the presence of such of the parties that attend the delivery hereof.

19. Orders accordingly

Dated and Delivered by video-conference from Nairobi this 21st Day of May, 2020

RICHARD MWONGO

JUDGE

Delivered in the presence of:

1. Mr Kariuki, For the Applicant

2. Mr Muriithi, For the Respondent

Court Clerk: Quinter Ogutu