[2017] KEHC 1549 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 82 OF 2015

JOSPHAT MUNGAI GATERU.....................1ST APPELLANT

JAMES NJUIRI..............................................2ND APPELANT

VERSUS

PAUL MUNGA KAMAU..................................RESPONDENT

JUDGMENT

This appeal arises from the judgment of the lower court in which the respondent was injured in a road traffic accident. Liability was settled at 90% against the appellants and 10% contributory negligence on the part of the respondent after which the suit was listed for assessment of damages.

The trial court relied on the evidence of the respondent and the medical reports produced in evidence to arrive at the awards made therein. In the end the lower court awarded Kshs. 1,500,000/= general damages which was reduced by 10% contributory negligence leaving a balance of Kshs. 1,350,000/=.

The lower court also awarded Kshs. 70,000/= loss of earning after finding that the respondent was in hospital from February, 2010 to October, 2010 a period of 7 months, and being a PSV driver earning a sum of Kshs. 500/= per day.

At the time of the injury the respondent was aged 46 years and the court found that he would have worked up to 55 years. The court used a multiplier of 7 years leading to a sum of Kshs. 840,000/= damages for loss of earning capacity. Special damages going by the receipts produced added to Kshs. 220,980/=. Future medical care was assessed by Dr. Bhanji at Kshs. 2,700,000/= and by Dr. R.P. Shah at Kshs. 700,000/=. The lower court awarded Kshs. 1,200,000/=.

The appellants were aggrieved by that judgment and filed this appeal. The thrust of the appeal is that the lower court erred both in law and fact by disregarding the appellants’ submissions and cited cases thereby arriving at an exorbitant award. The said award was inordinately high and represented an entirely erroneous estimate in view of the injuries sustained by the respondent.

The awards were inconsistent with awards regarding similar injuries and therefore wholly erroneous and should be set aside. On those grounds the appellant seeks to set aside the lower court judgment.

As the first appellate court, I have considered the record before me with a view to arriving at independent conclusions. In so doing, I am guided by the evidence on record and more particularly by the medical reports filed herein.

I have considered decided cases on the principles of setting aside or interfering with the discretion of the lower court. It is now established that the appellate court will disturb the awards of the lower court if such awards are inordinately low or high and that the court applied wrong principles in assessing damages.

The bottom line is that this is a matter of judicial discretion. I must consider if the lower court took into account irrelevant matters or did not take into account a relevant factor. I must also consider whether the lower court misapprehended the law applicable to the situation and that the decision was plainly wrong – see Mbogo Vs. Shah (1968) EA 93, Bashir Ahmed Butt Vs. Uwais Ahmed Khan (1982-88) 1KAR.

The injuries sustained by the respondent are more particularly set out in the medical reports produced by Dr. Banji and Dr. R.P Shah. They are as follows; compound segmental fractures of tibia and fibular bones of left leg, subtrochantaric fracture of femur bone of right thigh, compound fracture of lower third of tibia bone of right leg, fracture of lateral tibial plateau of left knee, injury to ligaments to the right knee.

In addressing the subject of damages, the lower court said as follows,

“I quite agree with the submissions that not all cases can be the same and also the principle in assessing damages as has been established by the superior court, that the purpose of an award of damages is to compensate the plaintiff for injuries suffered but not to enrich the plaintiffs as damages are not a windfall as a result of a plaintiff’s misfortune.”

Although some decided cases were cited before the trial court, there is no direct reference to them in the judgment. It is clear however that the court had read the same because the above citation appears in HCCC No. 401 of 1999 George Kiptoo William Vs. William Sang & Another decided in December, 2004 and cited by counsel for the defendants in their submissions.

The respondent’s counsel had cited several authorities which included HCC No. 456 of 1996 (Nakuru) Irene Wanjiku Gitonga Vs. Kinyanjui Ngethe and 2 others. HCC No. 485 of 1999 (Nairobi) James Onunga Vs. China Jiangsu International and HCC NO. 954 of 2000 (Nairobi) Nzilani Ndari Vs. Boniface Musyoka Ndoo & Another.

I have noted those authorities and the period which has gone by from the time those awards were made. I have also taken into consideration the depression of the shilling, the extent of the injuries sustained by the respondent and the fact that future medical intervention has been recommended by both doctors. I am of the view that the trial court acted within the set principles and the award of general damages cannot be said to be excessive.

The awards with respect to loss of earnings and loss of future earing capacity cannot also be faulted because, the trial court was careful enough to restrict itself within reasonable perimeters as relates to respondents earnings and also the multiplier applicable. It also struck reasonable balance between the reports by two doctors in relation to future medical intervention in making the award in that regard.

I am unable to depart from the assessment of the trial court and therefore this appeal must fail. It is accordingly dismissed with costs to the respondent.

Orders accordingly.

Dated, signed and delivered at Nairobi this 9th Day of November, 2017

A. MBOGHOLI MSAGHA

JUDGE