[2022] KEHC 9855 (KLR)

Juma v National Social Security Fund Board of Trustees & another (Civil Appeal 475 of 2019) [2022] KEHC 9855 (KLR) (Civ) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9855 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 475 of 2019

JK Sergon, J

July 8, 2022

Between

Beverlyne Njeri Juma

Appellant

and

National Social Security Fund Board of Trustees

1st Respondent

Finerate Forex Bureau Limited

2nd Respondent

(Being an appeal from the judgment and decree of Honourable E.K. Usui (Ms.) (Chief Magistrate) delivered on 19th July, 2019 in Milimani CMCC no. 4261 of 2019)

Judgment

1. Beverlyne Njeri Juma being the appellant in this instance lodged a suit against the 1st and 2nd respondents vide the plaint dated 14th June, 2016 and sought for general and special damages in the sum of Kshs.196,736/= together with costs of the suit and interest on the same.

2. The appellant pleaded in the plaint that the 1st respondent was at all material times the registered/beneficial owner of the building premises known as L.R. 209/6776 otherwise known as Bruce House located along Standard Street in Nairobi (“the subject premises”), while the 2nd respondent occupied a space in the subject premises and had erected an advertising billboard overhanging the canopy of the subject premises right above the pavement.

3. The appellant pleaded in the plaint that on or about the 1st day of February, 2016 she was lawfully walking along the pavement outside the subject premises when the billboard suddenly fell on her, causing her to sustain the injuries particularized in the plaint.

4. The appellant attributed her injuries to negligence and/or breach of statutory duty of care on the part of the respondents by setting out their particulars in paragraph 7 of the plaint.

5. The 1st respondent entered appearance on being served with summons and filed its statement of defence on 3rd August, 2016 to deny the appellant’s claim.

6. The record shows that interlocutory judgment was entered against the 2nd respondent on 28th September, 2016 for failure to enter appearance and/or file its statement of defence despite having been served with summons.

7. At the hearing of the suit, the appellant testified and called three (3) additional witnesses while the 1st respondent summoned one (1) witness for the defence case.

8. Upon filing of written submissions by the parties, the trial court entered judgment in favour of the appellant and against the 2nd respondent in the following manner:Liability 100%a.General damages Kshs.500,000/=b.Special damages Kshs.196,736/=Total Kshs.696,726/=

9. The trial court however dismissed the appellant’s case against the 1st respondent with no order as to costs.

10. Being aggrieved by the trial court’s judgment, the appellant has now lodged an appeal against the same by filing the memorandum of appeal dated 15th August, 2019 and amended on 20th January, 2020 constituting the grounds hereunder:i.That the learned trial magistrate erred in law and in fact in considering the wrong legal principle against the facts presented to the court and therefore arrived at an erroneous finding.ii.That the learned trial magistrate erred in law and in fact in finding the 1st respondent not liable for the injuries suffered by the appellant and discharging it from liability.iii.That the learned trial magistrate erred in law and in fact in failing to articulate the reasons both in law and fact for discharging the 1st respondent.iv.That the learned trial magistrate erred in law and in fact in failing to appreciate that the 1st respondent, being the registered owner of the building, owed a duty of care to the appellant at the material time.v.That the learned trial magistrate erred in law and in fact in failing to consider the fact that the billboard/signage in question though belonging to the 2nd respondent was not at the material time in the 2nd respondent’s premises but hung in a common area.vi.That the learned trial magistrate erred in law and in fact in failing to find both respondent’s jointly and severally liable for the injuries suffered by the appellant.vii.That the learned trial magistrate erred in law and in fact in awarding an amount in general damages that was so inordinately low considering the injuries suffered.viii.That the learned trial magistrate erred in law and in fact in failing to consider or properly consider the appellant’s submissions both on liability and quantum thus arriving at an erroneous decision.

11. This court gave directions that the appeal be canvassed by written submissions. In her submissions on liability, the appellant argues that the trial court erred in not entering a finding of liability as against the 1st respondent and yet the latter was at all material times the owner of the subject premises and hence ought to have ensured that the billboard in question was appropriately erected by the 2nd respondent so as not to pose a risk to other persons.

12. The appellant submits that both respondents owed her a duty of care to ensure her safety while visiting the subject premises and that they did not demonstrate the steps taken towards securing the subject premises and hence ought to have been held liable jointly and severally, while citing the case of Soma Properties Limited v H A Y M [2015] eKLR where the Court of Appeal stated the following in respect to the provisions of the Occupier’s Act:“This provision, imposes a duty of care on an occupier and proceeds to define the standard of care necessary to fulfil that duty. The words “reasonable” and “reasonably” used in the above extract emphasize the standard of care expected of an occupier. It is a standard measured against the care to be exercised by a reasonably prudent person in all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected. The standard of reasonableness is not one of perfection. Thus an occupier will escape liability if it is established that in the circumstances of the case, there were reasonable systems in place to secure the premises against foreseeable risk and danger.”

13. On quantum, it is the submission by the appellant that the award of Kshs.500,000/= made on general damages is inordinately low and urges that the same be substituted with a suitable award in the sum of Kshs.3,000,000/= citing the case of Duncan Kimathi Karagania v Ngugi David & 3 others [2016] eKLR in which the court awarded damages in the sum of Kshs.4,000,000/= for injuries similar to those sustained by the appellant herein.

14. In its submissions, the 1st respondent contends that the trial court arrived at a correct finding on both liability and quantum, further contending that the tenancy agreement that subsisted between itself and the 2nd respondent did not extend to signage, billboards and other outdoor advertisements and hence the 2nd respondent was fully liable for the accident, having put up a billboard at the exterior part of the subject premises.

15. On quantum, the 1st respondent is of the view that the award made by the trial court under the head of general damages for pain, suffering and loss of amenities is reasonable and within range, and quotes inter alia, the case of Ndungu Dennis v Ann Wangari Ndirangu & another [2018] eKLR where the High Court sitting on appeal awarded the sum of Kshs.100,000/ under a similar head at the instance of injuries related to those suffered by the appellant.

16. The respondent therefore urges this court to uphold the finding by the trial court and to dismiss the appeal with costs.

17. I have considered the rival submissions and authorities cited on appeal. This being a first appeal, I am required to re-evaluate the evidence placed before the trial court.

18. It is noted that the appeal lies against both liability and quantum, specifically the award made under the head of general damages for pain, suffering and loss of amenities. I will therefore address the grounds of appeal under the two (2) limbs.

19. On liability, the appellant gave evidence before the trial that on the material date, she was on her way back to school when the billboard fell on her and caused her to lose consciousness following which she came to at the hospital.

20. In cross-examination, the appellant gave evidence that she trained at all material times at the University of Nairobi.

21. Triza Ayuma Mzee who was PW2 stated that she was in the company of the appellant and walking along Standard Street headed to Pension Building where they were training when the billboard fell on the appellant.

22. The witness also stated that at the time of the accident, they were at the canopy of the pavement of the subject premises.

23. In cross-examination, the witness stated that the billboard belonged to the 2nd respondent.

24. Stephen Juma Onyango who was PW3 testified that he is the father to the appellant and that on the material date, he received a call regarding the incident and that when he visited the subject premises, he saw the billboard on the pavement and thereafter went to the 3rd floor where the appellant was receiving first aid, before she was taken to Nairobi Hospital for further treatment.

25. Isaack Mueni Tuwei who was DW1 testified that he had been an employee of the 1st respondent for the past 14 years and adopted his signed witness statement.

26. The witness testified that the 2nd respondent was at all material times an employee of the 1st respondent vide the tenancy/lease agreement which was tendered in court and that the 1st respondent was responsible for the ongoings in the building while the 2nd respondent was responsible for its section outside the building, which was where the billboard had been put up.

27. It is the evidence of the witness that the 2nd respondent was obligated to clear with the County Government for authority to put up the billboard.

28. In cross-examination, it is the evidence of DW1 that while the 1st respondent had given consent to the 2nd respondent to put up a billboard, it fell upon the 2nd respondent to maintain and secure it to ensure the safety of other persons.

29. The learned trial magistrate in arriving at her decision reasoned that while it is not in dispute that the 2nd respondent was at all material times a tenant/occupier of the subject premises being owned by the 1st respondent, it is also not in dispute that the billboard that fell upon the appellant belonged to the 2nd respondent.

30. The learned trial magistrate further reasoned that the appellant was a passerby when she sustained her injuries and hence the 2nd respondent being the occupier of the subject premises pursuant to the tenancy agreement owed her a duty of care in ensuring the safety of passersby when it put up the billboard but it did not.

31. Consequently, the learned trial magistrate found the 2nd respondent liable but discharged the 1st respondent from liability.

32. Upon my re-evaluation of the evidence tendered before the trial court, I agree with the reasoning taken by the learned trial magistrate in respect to who should bear liability in the present instance for all the foregoing reasons which I have set out hereinabove and which I need not regurgitate.

33. I am satisfied that the learned trial magistrate correctly found that the 2nd respondent; being the occupier of the subject premises and the owner of the billboard in question; owed a duty of care to passersby. I borrow from the case of Soma Properties Limited v H A Y M [2015] eKLR cited in the appellant’s submissions where the Court of Appeal elaborately stated the following on occupier liability:“…the Occupiers’ Liability Act (the Act), which came into effect on 1st January, 1963. The Act imposes a duty on the land owners to those who come onto their land to ensure their reasonable safety while on the land. Section 2 of the Act provides:2. Rules as to duty of occupier of premises to visitorsThe rules enacted by sections 3 and 4 of this Act shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.3. ……………….Extent of occupier’s ordinary dutyAn occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.(4)For the purposes of this Act, “the common duty of care” is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” (Our emphasis)This provision, imposes a duty of care on an occupier and proceeds to define the standard of care necessary to fulfil that duty. The words “reasonable” and “reasonably” used in the above extract emphasize the standard of care expected of an occupier. It is a standard measured against the care to be exercised by a reasonably prudent person in all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected. The standard of reasonableness is not one of perfection. Thus an occupier will escape liability if it is established that in the circumstances of the case, there were reasonable systems in place to secure the premises against foreseeable risk and danger.”

34. Flowing from the foregoing circumstances, I am of the view that the appellant did not tender any credible evidence to satisfy the trial court as to why it ought to be held jointly and severally liable with the 2nd respondent.

35. Going by the evidence set out hereinabove, I am satisfied that the learned trial magistrate arrived at a proper finding on liability and I see no need to disturb her finding.

36. On quantum, it is trite law that this court can only interfere with the award of a trial court in instances where an irrelevant factor was taken into account, a relevant factor was disregarded or the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. These principles were laid out by the court in the case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR cited in the 1st respondent’s submissions.

37. As earlier noted, the appellant is challenging the award on general damages for pain, suffering and loss of amenities on the basis that the same is inordinately low.

38. On her part, the appellant suggested an award in the sum of Kshs.3,000,000/= similar to that proposed on appeal, whereas the 1st respondent did not make any proposals.

39. The learned trial magistrate awarded the sum of Kshs.500,000/= but did not cite any supporting authorities.

40. The pleadings and medical evidence tendered show that the respondent sustained head injuries leading to loss of consciousness and headaches, with Dr. A.O. Wandugu terming her injuries as grievous harm and consistent with blunt force. The doctor adds that the appellant runs the risk of developing epilepsy and was therefore put on anti-epilepsy drugs.

41. The medical evidence also shows that the appellant was admitted in hospital for about a week before being discharged.

42. Upon considering the proposed award by the appellant, I find the same to fall on the higher side and the suggested authorities constitute injuries of a more serious nature.

43. I therefore considered the case of Prem Gupta & another v Grimley Otieno & 3 others [2018] eKLR in which the court awarded the sum of Kshs.800,000/= under the same head at the instance of injuries including head injuries resulting in loss of consciousness; chronic headaches and risk of epilepsy. I equally considered the case of P N Mashru Limited v Omar Mwakoro Makenge [2018] eKLR where the court upheld an award of damages in the sum of Kshs.1,200,000/= made to a plaintiff who had suffered head injuries as well as other severe injuries which were termed as grievous harm in nature.

44. Upon my consideration of the impugned award therefore, I am convinced that the award made by the learned trial magistrate fell on the lower side and I will substitute it with a more reasonable award in the sum of Kshs.1,000,000/=.

45. The upshot is that the appeal succeeds to the extent of the award made on general damages. Consequently, the trial court’s award of Kshs.500,000/= is hereby set aside and is substituted with an award in the sum of Kshs.1,000,000/=.

46. For the avoidance of doubt, the judgment on appeal is as follows:i.General damages Kshs.1,000,000/=ii.Special damages Kshs. 196,736/=Total Kshs.1,196,736/=iii.The appellant shall have interest on special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full, to be paid by the 2nd respondent.iv.The dismissal order against the 1st respondent is hereby upheld.v.The 1st respondent shall have the costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. .........................J. K. SERGONJUDGEIn the presence of:................. for the Appellant................. for the Respondent