[2023] KEHC 24797 (KLR)

Kalingu & another v Ali (Civil Appeal E010 of 2020) [2023] KEHC 24797 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24797 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E010 of 2020

LM Njuguna, J

November 3, 2023

Between

Evergeline Kalingu

1st Appellant

Peter Gathumbi

2nd Appellant

and

Sofia Haji Mohamed Ali

Respondent

(Appeal arising from the decision of Hon. M. Kivuti SRM in Senior Principle Magistrate’s Court at Baricho Civil Suit No.115 of 2015 delivered on 19th December 2019)

Judgment

1. The appellants have filed memorandum of appeal dated 03rd February 2020 challenging the above cited decision and seeking orders that the appeal be allowed, the judgment of the trial court be set aside and costs of the appeal be paid to the appellants. The appeal was premised on the grounds that:a.The learned magistrate erred in law and fact in awarding general damages for pain and suffering at Kshs. 500,000/=, which amount is manifestly excessive and high considering the injuries sustained by the respondent;b.The learned magistrate erred in law and fact in failing to consider the written submissions of the appellant and the annexed authorities; andc.The judgment of the learned magistrate is against the law and weight of evidence on record.

2. The trial court suit was instituted by a plaint wherein the plaintiff stated the particulars that on or about 24th December 2014 at about 8AM, the plaintiff was travelling as a lawful passenger in motor vehicle registration number KBC 840Q near Tana Bridge along Makutano-Nairobi Road, when the said motor vehicle violently collided with motor vehicle registration number KBU 872N, causing the plaintiff to suffer injury, loss and damage. That the accident was caused as a result of negligence by appellants, by themselves or by their employee, servant, agent and/or authorized driver in driving, managing and/or controlling the motor vehicle registration number KBU 872N. That the plaintiff sustained the following injuries:i.Severe head injury involving;1. Concussion2. A deep large 18cm cut extending on the right side of the forehead3. Blunt force trauma on left cheek boneii.Cut wound on the left ankle joint;iii.Bruises on the right upper arm;iv.Contusion associated with hematoma on the left breast;v.Lower abdominal trauma resulting in bloody urine; andvi.Permanent incapacity assessed at 10%.

3. In the plaint, the plaintiff prayed for special damages of Kshs. 547,400/=, general damages for pain and suffering, loss of amenities and loss of future earning capacity, loss of consortium, costs of the suit with interests and any other relief as the court shall deem just. In her witness statement, the plaintiff reiterated the contents of the plaint and produced documents in support of her case.

4. In their statement of defense, the appellants denied the allegations made in the plaint and stated that the respondent is to blame for the accident. The respondent filed a reply to defense wherein she affirmed averments as stated in the plaint.

5. During the plaintiff’s case, PW1 a police officer from Sagana Traffic Base stated that the accident was reported at the station. That details of the accident were that the motor vehicle registration number KBU 872N was travelling towards Makutano when the vehicle developed a puncture and lost control, veered into the oncoming lane and collided with motor vehicle registration number KBC 840Q which was travelling towards Nairobi. He produced the police abstract. He stated that he did not blame the driver of the motor vehicle for a tyre burst.

6. PW2, the respondent, produced documents in support of her case. She explained that she was a passenger seated on the back left-hand-side of the motor vehicle KBC 840Q and after the accident she suffered the injuries as stated in the plaint. She blamed the driver of the motor vehicle registration number KBU 872N for the accident because he veered into her lane and that she couldn’t have known if the motor vehicle KBU 872N had mechanical problems. That the accident occurred on the bridge and that there was nothing they could have done to avert the accident.

7. In the defence case, DW1 was the driver of motor vehicle KBU 872N who stated that on the material day, he was driving the motor vehicle at 60KPH and one of the tyres burst, causing the vehicle to lose control and veer off into the oncoming lane and causing the accident. That the motor vehicle was registered to the 1st appellant and that he (DW1) has 11 years’ experience in driving. He did not blame the plaintiff for the accident.

8. The trial court held that the 2nd appellant had admitted the facts as pleaded by the respondent and stated that the appellants were 100% liable for the accident. On quantum, the trial court awarded Kshs. 500,000/= as general damages, noting effluxion of time and severity of the injuries, and Kshs. 466,683 as proven special damages.

9. In the instant appeal, the court directed the parties to proceed by way of written submissions and both parties complied.

10. In the appellants’ submissions, reliance was placed on the case of Selle & another Vs. Associated Motor Boat Co. Ltd and Others (1968) EA 123 where the duty of an appellate court was discussed. They also relied on the case of Joseph Kyalo Maundu Vs. Moses Musau Mulela & Another (2019) eKLR where the court relied on the principles laid down in the case of Butt Vs. Khan (1978) eKLR and urged the court to review the findings of the trial court. Further reliance was placed on the case of Simon Taveta Vs. Mercy Mutitu Njeru (2014) eKLR. It was the appellants’ case that the initial medical report indicate that the respondent would suffer 10% permanent disability but the subsequent medical report did not state as much. They also relied on the case of Sosphinaf Company Limited Vs. James Gatiku Ndolo (2006) eKLR where the court stated that awards for general damages should be reasonable. The appellants suggested an amount of Kshs. 150,000/= based on the cases of Nickson Kazungu Karisa & another Vs. Isaas Solfa Muye (2020) eKLR, Daniel Gatana Ndungu & Another Vs. Harrison Angore Katana (2020) eKLR and Kigaraari Vs. Aya (1982-88) 1KAR 768.

11. The respondent in her submissions reminded the court that it had the responsibility of drawing its own conclusions on appeal based on the trial court’s record, as were the sentiments in the case of Selle & another Vs. Associated Motor Boat Co.Ltd and Others (1968) EA 123. She relied on the cases of Kemfro Africa Ltd & Another Vs. Lubia & Another (1982-88) KLR and Catholic Diocese of Kisumu Vs. Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001 in her argument that the court should not interfere with the findings of the trial court.

12. It was her case that the ownership of the appellant’s motor vehicle had been established and that it is the one that caused the accident. For this, she cited the cases of Joel Muga Opija Vs. East African Sea Food Limited (2013) eKLR and Eunice Nafula Temba Vs. Multiple Hauliers E.A. Ltd (2017) eKLR. That the 2nd appellant should have stopped after the tyre-burst if indeed he was going at the alleged speed of 60KPH. She relied on the cases of Nzioka David & Another Vs. Jacinta Nduku Musyoki & Another (2019) eKLR, Robert Gichuchu Maina Vs. John Kamau (2004) eKLR and Abdul Halim T/A Tawfique Bus Services Vs. Justus Thuranira (suing as legal representative of the estate of Kithinji M’irura (dcd)) Nyeri Civil Appeal No. 305 of 2005.

13. That the appellants did not produce an inspection report to show that the motor vehicle was in good condition. On liability, she urged the court to maintain the finding at 100% by the appellants. On quantum, the respondent produced documents in support of her claim as regards the injuries sustained. She urged the court to consider an award of general damages in the range of Kshs. 2,000,000/= to Kshs. 2,500,000/= as in the cases of John Katonga Mulonzi Vs. Murgian Transport (K) Ltd Machakos HCCC No. 112 of 1989, Eberege Tea Factory Co. Ltd & Another Vs. Sabina Moraa (suing through the next friend and uncle Robert Ondieki Ongaga) (2021) eKLR and Gerald Musungu Otwani (suing through father and next friend Fedinand Emmanuel Otwani) Vs. Kulsum Alibhai & Another, Mombasa HCCC No. 250 of 2003. She urged the court not to disturb the award of the trial court, citing the case of Gitobu Imanyara & 2 Others Vs. Attorney General (2016) eKLR.

14. I have considered the trial court’s record, the pleadings and submissions by the parties at trial, the grounds of appeal and the submissions in this appeal. In my view, the issue for determination is whether the general damages awarded by the trial court are excessive.

15. It is worth reiterating that the appellate court makes its decision purely based on the record and findings of the trial court as was held in the case of Okeno vs. Republic (1972) EA 32 wherein the court held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

16. The trial court noted that the respondent had relied on the cases of John Katonga Mulonzi Vs. Murgian Transport (K) Ltd Machakos HCCC No. 112 of 1989, Eberege Tea Factory Co. Ltd & Another Vs. Sabina Moraa (suing through the next friend and uncle Robert Ondieki Ongaga) (2021) eKLR and Gerald Musungu Otwani (suing through father and next friend Fedinand Emmanuel Otwani) Vs. Kulsum Alibhai & Another, Mombasa HCCC No. 250 of 2003. The learned magistrate further noted that these cases, as relied upon by the respondent at trial and in this appeal, were not wholly applicable in the present case as the injuries therein were far much severer than the ones sustained by the respondent. The trial magistrate awarded general damages at Kshs. 500,000/= keeping in mind the evidence adduced.

17. The scope of an award of general damages is limited to certain parameters, noting that no amount of money is enough to compensate for bodily injuries. In the case of John Kipkemboi & Another Vs. Morris Kedolo (2019) eKLR where the court stated:“The assessment of damages in personal injury case by court is guided by the following principles: -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained;2)The award should be commensurable with the injuries sustained;3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts;4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account; and5)The awards should not be inordinately low or high (See Boniface Waiti & another Vs Michael Kariuki Kamau (2007) eKLR.”

18. Further, I also note that there is no amount of money that can compensate the respondent herein for the pain and incapacity she suffered physically, emotionally and in all other spheres of her life. This was echoed in the case of H. West & Son Ltd Vs Shepherd (1964) AC. 326 in which Lord Morris of Borth-y-Gest stated as follows;“... but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. ln the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

19. I have perused the three medical reports by Dr. S.K. Ndegwa dated 06th February 2015 and Dr. Cyprianus Okoth Okere dated 22nd February 2019 produced by the plaintiff and a further medical examination report authored by Dr. P.M Wambugu which was produced by consent of the parties during hearing of the defense case. The report by Dr. Cyprianus Okoth Okere showed that the respondent had been treated and recovered but there are scars left. He classified the injuries as severe harm. The report by Dr. S.K. Ndegwa showed that the respondent would suffer 10% permanent injury but there is no mention of the same in the other reports. The report by Dr. P.M Wambugu stated that the respondent had undergone treatment for the neural and soft tissue injuries and has since made adequate recovery.

20. Comparatively, in the case of Peter Njuguna Vs Francis Njuguna Njoroge (2015) eKLR, the court awarded Kshs. 230,000/= for bruises on the occipital region of the scalp, deep cut on the forehead, bruises on the chest and lower back, bruises on the right elbow, bruises on both hands, tender left knee joint and broken tooth. In the case of Francis Omari Ogaro Vs JAO (minor suing through next friend and father GOD (2021) eKLR, the court reduced an award of Kshs. 250,000/= to Kshs. 180,000/= on appeal for similar injuries. In the present case, it is my view that an award of the trial court is high and should be reviewed downwards.

21. In conclusion, I have considered all the pleadings and submissions at the trial court, the submissions of the parties to this appeal, relevant case law and the provisions of the law. The appellant did not challenge the trial court’s findings on liability and therefore, the same shall remain unsettled.

22. I do find that the appeal is meritorious and is hereby allowed. I hereby make the following orders:a.Liability is held at 100% by the appellant;b.Special damages (medical expenses) Kshs. 466,683/=;c.General damages for pain and suffering of Kshs. 500,000/= as awarded by the trial court is hereby set aside and substituted with Kshs. 350,000/=;d.Costs of this appeal to be borne by the respondent: ande.Interest on general damages to run from the date of the judgment of the trial court until payment in full and that of special damages to run from the date of filing of the plaint.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………....………………………………………………...…..for the Appellants………………………………..……………………………………………...…....for the Respondent