[2022] KEHC 3112 (KLR)

Juhudi Kilimo Company Limited & another v Chege (Civil Appeal E12 of 2020) [2022] KEHC 3112 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3112 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E12 of 2020

RN Nyakundi, J

May 17, 2022

Between

Juhudi Kilimo Company Limited

1st Appellant

Koech Aka Ann Letting

2nd Appellant

and

Samsun Ngure Chege

Respondent

(Appeal from decision of CMCC No.764 of 2019 by Hon. D. Milimu – RM)

Judgment

1. What is before this court is an appeal against the quantum awarded in Eldoret CMCC No. 764 of 2019. The respondent instituted Eldoret CMCC No. 764 of 2019 vide a plaint dated 6th September 2019 alleging negligence on the part of the appellants as a result of a traffic accident that occurred on 17th August 2019 along Eldoret – Kapsabet road. As a result of the said accident the respondent sustained severe bodily injuries.

2. The parties entered into consent on liability in the ration 85%:15% in favour of the plaintiff as against the defendant. After full hearing the judgment was entered in favour of the respondent as followsLiability 85%:15%General damages kshs. 900,000Future medical expenses kshs. 50,000/-Special damages kshs. 117,704/-Total kshs. 1,067,704/-Less 15% kshs. 160,155/-Total net award kshs. 907,548. 40

3. Being dissatisfied with the award the appellant instituted the present appeal vide a memorandum of appeal dated 3rd September 2020. The grounds of appeal were as follows;1. The learned trial magistrate erred in law and in fact in awarding general damages that were manifestly excessive with regard to the injuries sustained by the respondent2. The learned trial magistrate erred in law and in fact in Adopting or applying the wrong principles in making a determination and/or applying the wrong principles in making a determination on the general damages payable to the respondent and thereby reaching an award that was excessive.3. The learned trial magistrate erred in law and in fact in failing to take into account relevant factors/issues in reaching a determination on the general damages payable.4. The learned trial magistrate erred in law and in fact in failing to take into account the appellants’ submissions on quantum thereby awarding excessive damages in the circumstances.

4. The appellant cited the case of Tayab vs Kanamu(1983) eKLR Nairobi HCCA No. 29 of 1982 to support the submission that the damages awarded to the claimant ought to correspond to the injuries sustained. The plaintiff, as per the pleadings, sustained the following injuries;Degloving injury to the right hand posteriorlyFracture right 4th metatarsal.Dislocation of the carpal-metacarpal joint – carpal-metacarpal.Lacerations of the tendons of the right hand.Blunt injury to the right knee with bruises.

5. It is the appellant’s case that the amount awarded by the court was excessive. A sum of kshs. 300,000/- to 400,000/- would be reasonable in the circumstances. She relied on the cases of Mbithi William vs Rose Mutheu Mulatia (2019) eKLR and the case of Jitan Magoro vs R.D.O(2018) eKLR where the parties therein were awarded kshs. 400,000/- and kshs. 450,000/- respectively.

6. It is the respondent’s case that the trial magistrate did not misdirect herself when she awarded the general damages of kshs. 900,000/-. It is trite law that in assessment of damages the general method of approach should be that comparable injuries, should as far as possible, be compensated by comparable rewards, keeping in mind the correct levels of awards in similar cases.

7. He restated the injuries that were confirmed by the medical report and cited the case of Michael Njagi Karimi vs Gideon Ndung’u Nguribu & Another (2013) eKLR where the plaintiff was awarded kshs. 2,000,000/- for injuries similar to the respondents’ herein.

8. The respondent urged the court to be guided by the principles in Henry Hidaya Ilanga vs Manyema Manyioka (1961) 1 EA 705 and the case of Odinga Jacktone Ouma vs Moureen Ochieng Odera(2016) eKLR. He submitted that the award by the trial court was fair and reasonable.

9. The respondent urged the court dismiss the appeal and cited the case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 Others (2014) eKLR on the issue of costs.

Determination 10. Upon perusing the submissions, pleadings and record of appeal, I have identified the following issues for determination;

Whether the award for general damages by the trial court was excessive 11. The appellant is asking the court to interfere with damages awarded by the trial court. In the Court of Appeal, in Mkube v Nyamuro[1983] LLR at 403, Kneller JA & Hancox Ag JJA held that-“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

12. Further, it is trite law that an award for general damages should be comparable to awards in similar cases. In the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR the Court of Appeal held:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”The rule for measuring damages for pain and suffering, past, present and future is that there is no standard by which to measure it except the enlightened conscience of impartial trial magistrates. The award of general damages for pain, suffering, shock and loss of amenities for injuries suffered by any claimant is to some extent arbitrary underpinned is the power of judicial discretion. In addition, it depends upon the facts and peculiar circumstances of each case in which such damages rest in the sound judgment of the trier of the facts in question. While the fundamental rule of the law is to award compensation formed with reference to the passed awards it is not mathematical formulae. Occasionally, courts have made attempts to find some sort of a formula to minimise the uncertainties in this branch of law, nevertheless the jurisprudence is work in progress.In this appeal it remains to be considered whether the method used by the trial magistrate in determining the total amount was an error as a matter of law. It may be that it was a novel one but it generally does not follow that the appeals court ought to invalidate it. In my opinion an assessment of damages for pain, suffering and loss amenities incorporates a subjective parameter. That is in contrast with assessment on loss of earnings or the cost of medical treatment. I take strong view that pain and suffering with partial or permanent disability damages cannot be reduced to mathematical formulas.

13. For the appeal to succeed the threshold is clearly set out in the aforementioned cases. Given that the matter in dispute is quantum, it is prudent that the court look at comparable awards for similar injuries in order to establish whether the award was erroneous. In Sophia Wanjiru Njuguna v Kyoga Hauliers Kenya Limited [2020] eKLR the court awarded the appellant kshs. 1,200,000/- up from kshs. 700,000/- by the trial court. The injuries sustained were; Fracture of the right tibia fibula distally, De-gloving injury of the left ankle joint with tendon tear, Dislocation of the left ankle joint, Fracture of the right shoulder blade and De-gloving injury on the right arm. which were similar to those in this suit but slightly more severe.

14. In Reuben Mongare Keba v L P N [2016] eKLR the court allowed the appeal and awarded the respondent kshs. 800,000/- in general damages where the injuries were; Fracture of the tibia-fibula bones of right leg, Dislocation of the right hip joint, Bruises on the chin, Fracture of the right femur and Degloving injury of the right leg. Which are similar injuries to those sustained by the respondent.

15. I note that the trial court did not cite any comparable authorities in arriving at the award but it however considered the submissions of the parties and this included the authorities submitted therein. In this regard through experience as a trier of facts compensation for pain and suffering with loss of amenities can never be perfect. What courts attempt to do is to be fair. I concur with the exposition in the persuasive authorities in Halsbury, Vol 10 para 111, The S.S Valeria (1922) 2 A.C 242, per Lord Dunedn at p. 248, Phillips v L & S.W. Ry,supra, footnote 16; Rushton v National Coal Board (1953) 1W.L.R 292}, Harwood v Wyken Colliery CO.(1913) 2 K B 158. “The courts contextually made the following observations on the same subject matter of this appeal. The inherent difficulty in assessing damages with certainty is no ground for awarding only nominal damages." The general rule is that"in calculating damages you are to consider what is the pecuniary sum which will make good to the sufferer, so far as money can do so, the loss which he has suffered as the natural result of the wrong done to him". Money will not constitute restitutio in integrum in fact, because there cannot be "complete" or "perfect" compensation for physical or mental hurt.- But the award must be fair, just, commensurate with the injury sustained and sufficiently adequate to put the injured party, so far as money can place him, in the same position as if he had not been wronged., but not in a better one.”I reiterate that previous awards are a pointer to some form of guide to the kind of damages which may be fair to the facts of any particular claimant. It is never a jig-saw fit. The discrepancies on comparison of past awards and the impugned decided cases can only be interfered with on appeal if there is evidence of the court being over-generous in which an estimate of it, is considered erroneous. Allowance in any award must be made taking into account inflationary trends of the exchange rate of our currency. This approach inspires me not to interfere with the decision of the trial court.

16. For those reasons the appeal lacks merit as a consequence it is dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET VIA EMAIL THIS 17TH DAY OF MAY 2022. R. NYAKUNDIJUDGE