[2022] KEHC 12132 (KLR)

Kakuli v Ngase & another (Suing as the legal representatives of the Estate Stanley Alemba Chavasi - Deceased) (Civil Appeal E192 of 2021) [2022] KEHC 12132 (KLR) (Civ) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12132 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E192 of 2021

JN Mulwa, J

July 21, 2022

Between

Peter Mutemi Kakuli

Appellant

and

Inosi Chavasi Ngase

1st Respondent

Finik Kaveza Chavasinya

2nd Respondent

Suing as the legal representatives of the Estate Stanley Alemba Chavasi - Deceased

(Being an appeal against the Judgment and Decree of the Chief Magistrate's Court at Milimani in CMCC No. 1320 of 2014 delivered by Hon. A. N. Makau (PM) on 17th March 2021)

Judgment

1. This appeal arises from Milimani in CMCC No 1320 of 2014 in which the deceased sued the appellant for general and special damages arising out of a road traffic accident which occurred on March 8, 2013 along Namanga road. According to the plaint, on the said date, the appellant negligently drove, managed and/or controlled motor vehicle registration number KAT 340B that it veered off the tarmac strip and crashed onto pedestrians including the deceased. The deceased pleaded that he sustained serious injuries to both his legs as a result.

2. The appellant filed a defence in which he denied the deceased’s claim and in the alternative, alleged contributory negligence on the part of the deceased.

3. Before the suit could be set down for hearing, the deceased died sometime in 2019 due to unrelated causes and was substituted by the respondents herein. Thereafter, parties entered into a consent on liability and the same was apportioned at 85:15 in favour of the deceased. The parties also agreed that the documents be produced without calling the makers and quantum be determined by way of written submissions.

4. In the judgment delivered on March 17, 2021, the trial court awarded the deceased general damages of Kshs 1,800,000/- less 15% (Kshs 1,620,000/-) and special damages of Kshs 3,650/- less 15% contribution (Kshs 3,102/-). The court also awarded the deceased costs and interest. Being dissatisfied with the quantum of damages, the appellant lodged the instant appeal vide a memorandum of appeal dated April 13, 2021 and raised the following grounds:1. The learned trial magistrate misdirected herself and erred in law and fact by awarding general damages for pain and suffering that are so manifestly excessive as to be erroneous.2. The learned trial magistrate misdirected herself and erred in law and fact in failing to properly consider the medical reports on record.3. That the learned trial magistrate misdirected herself and erred in law and fact by failing to properly consider the defendant's submissions.4. The learned trial magistrate misdirected herself and erred in law and fact by failing to find that a court of concurrent jurisdiction had earlier awarded the plaintiff Kshs 1,000,000/= before the said judgement was set aside and there was therefore no basis for departure from the earlier award by such a huge margin yet the injuries had remained the same

5. The appellant sought the following orders:a.That the appellant's appeal be allowed.b.That whole of the award on quantum be set aside,c.That this honourable court do assess the proper damages payable to the respondents.d.That the costs of this appeal be awarded to the appellant.e.Such other and/or further relief as this honourable court may deem just to grant.

6. The appeal was canvassed by way of written submissions. The appellant submitted that the award of general damages was not commensurate with the injuries that the deceased sustained from the accident. It was submitted that from the medical evidence on record, it was clear that the deceased sustained fractures of the tibia and fibula which were not too serious to warrant an award of Kshs 1,800,000/= as general damages. The appellant faulted the trial court for failing to consider comparable awards for similar injuries. He contended that the trial court failed to give reasons for departing from the decision of West Kenya Sugar Company Limited v Andrew Chiroyi Sunguti [2021] eKLR cited by him wherein the court upheld an award of Kshs 500,000/=.

7. Further, the appellant submitted that in the case of Simon Kimote v Agro Solutions Limited [2021] eKLR, the court upheld an award of Kshs 350,000/= for comparable injuries. The appellant also took issue with the fact that the trial court was persuaded by case of Dorcas Wangithi Nderi v Samuel Kiburu Mwaura and another [2015] eKLR cited by the deceased since in his view, the said case entailed more serious injuries than what the deceased had suffered.

8. On the other hand, the respondents submitted that the trial court took into account all the relevant factors in assessing the general damages awarded to the deceased. They submitted that the award made was comparable to awards made in the past for comparable injuries. Reliance was placed on the case of Dorcas Wangithi Nderi v Samuel Kiburu Mwaura and another [supra] and Joseph Musee Mua v Julius Mbogo Mugi & 3 others [2013] eKLR which according to them, involved comparable injuries.

9. The respondents urged that an appellate court cannot interfere with an award made by the trial court simply because it would have awarded a different amount in the circumstances. It was also their submission that the trial court was not bound by the earlier award of Kshs 1,000,000/= which had been set aside because award of damage is a matter of discretion. They therefore urged that the appeal be dismissed with costs.

Analysis and determination 10. The court has examined the record of appeal, the grounds of appeal as well as the parties’ respective submissions and authorities cited. The only issue for determination whether this court should interfere with the learned magistrate’s award on general damages.

11. As a general principal, the assessment of damages for personal bodily injuries is a matter of the exercise of court discretion which discretion must be exercised judiciously taking into account the facts of each case particularly the injuries sustained by the plaintiff and comparable awards previously made for comparable injuries. For this reason, an appellate court will be slow to interfere with such discretion unless it is very necessary. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:'An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.'

12. Further, in Mbaka Nguru and Another v James George Rakwar [1998] eKLR the Court of Appeal stated that:'The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.'

13. In paragraph 4 of the plaint, the deceased pleaded that he sustained the following injuries: fractured right tibia, fractured right fibula, fractured left tibia and fractured left fibula. The P3 form indicates that the deceased sustained bilateral fractures of both tibia and fibulas. According to the medical report of Dr Wokabi, he examined the deceased on January 21, 2014, almost eleven months after the accident. The deceased had pain and general weakness on both legs. The left leg had an obvious bonny protuberance and deformity on the lower shin. There was a slight bonny angulation on the right lower shin.

14. He confirmed that the deceased indeed sustained the said injuries and was operated. The doctor noted that the left tibia was successfully fixed with a metal plate and the right tibia and fibula had been treated conservatively through plaster cast and had clinically united in good position as at the time of examination. The metal plates would have required to be removed in three to four years at a cost of Kshs 100,000/-. Further, the doctor opined that although the deceased was likely to regain strength and vitality considering his age (25 years), there would always be a residual permanent disability of 10%.

15. In arriving at her decision to award the deceased general damages in the sum of Kshs 1,800,000/-, the learned trial magistrate stated as follows:'I have given due consideration to the case law quoted and provided by the parties herein. I have made comparisons on the injuries the plaintiffs therein sustained and those the plaintiff herein sustained. I am accordingly guided by the decisions of the superior courts in determining how much the plaintiff should be awarded as compensation. I also note the injuries the plaintiff sustained as a result of the accident. They were indeed very serious injuries and according to the medical reports he sustained multiple fractures of the fibula and tibula bones, I also consider passage of time and rate of inflation and find Kshs 1,800,000/= to be sufficient compensation.'

16. To begin with, I wish to point out that contrary to the appellant’s assertion, the learned magistrate was not bound by the earlier award of Kshs 1,000,000/- made by Hon Chesang on April 14, 2016 when an interlocutory judgment was entered in the matter. This is because an award of damages, as noted hereinabove, is an exercise of court discretion.

17. I have looked at the authorities cited by both parties. In the West Kenya Sugar Company Case (supra) cited by the appellant, the plaintiff sustained two fractures on the left leg only and was awarded Kshs 500,000/- in general damages. In the Simon Kimote Case (supra) also cited by the appellant, the court upheld an award of Kshs 350,000/= for right femoral fracture lower 1/3, tibia plateau fracture as well as blunt head and neck injury.

18. On the other hand, in the Dorcas Wangithi Nderi case [supra] cited by the respondents, the judge awarded Kshs 2,000,000/= for compound fractures of the right and left tibia and fibula, blunt injury to the head, failure fracture to the left radius/ulna and multiple soft tissue injuries. In the Joseph Musee Mua Case [supra], the court awarded general damages of Kshs 1,300,000/= in 2013 for fractured left tibia and fibula, two broken upper jaw teeth, chest injury, right shoulder injury as well as bruises on the left elbow.

19. I do not think that the injuries sustained by the victims in the cases cited by both parties were comparable to the instant one. As such, this court shall be guided by the following:a.In Damaris Wamucii Kagechu v Joseph Kirui & another [2019] eKLR, the plaintiff sustained fractures on both legs which led to inconvenience in movement associated with pain. Mbogholi J awarded a sum of Kshs 1,500,000/= in general damages for pain suffering and loss of amenities in 2019. b.In Sammmy Mugo Kinyanjui & another v Kairo Thuo [2017] eKLR, the plaintiff suffered fractures of the tibia and fibula bones of both legs. On appeal, the High Court set aside the trial court’s award of Kshs 1,000,000/- and substituted it with a sum Kshs 600,000/- in 2017. c.InPauline Gesare Onami v Samuel Changamure & another [2017] eKLR, the plaintiff sustained fractures of the tibia and fibula bones of both legs in addition to laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft. Omondi J. upheld an award of Kshs 600,000/- in 2017. d.In John Njenga Maina v Humphrey Kinyua Rukeria [2016] eKLR, the appellant sustained fractures of the tibia and fibula of both legs in addition to laceration of the scalp, friction burns on the left hand and elbow, bruises on the left knee and blood loss, physical and psychological pains. Njuguna J awarded the appellant Kshs 750,000/- in general damages in 2016.

20. From the above authorities, it is evident that courts have awarded lesser amounts in the past even in cases where the victims sustained other injuries in addition to fractures of the tibia and fibula of both legs. In the instant case, I note that the learned magistrate awarded general damages without indicating the authorities that she had relied upon so as to arrive at the award of Kshs 1,800,000/-. I hold the considered view that the said award was manifestly high and warrants interference by this court considering past trends. In my assessment, an award of Kshs 1,300,000/= would be sufficient taking inflation into account.

Conclusion 21. Consequently, the appeal has merit and is hereby allowed. The trial court’s award of Kshs 1,800,000/- on account of general damages is hereby set aside and substituted with an award of Kshs 1,300,000/-. The said amount shall be subject to the respondent’s 15% contributory negligence which translates to Kshs 1,105,000/- in general damages. The award in special damages of Kshs 3,102/- shall remain untouched. The total sum to the respondents shall be Kshs 1,108, 102/-.

22. Each party shall bear own costs on the appeal as a result of the circumstances pertaining thereto.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 21ST DAY OF JULY 2022. JN MULWAJUDGE