[2022] KEHC 217 (KLR)

Kamau v Matei (Civil Appeal 39 of 2017) [2022] KEHC 217 (KLR) (15 March 2022) (Judgment)

Neutral citation: [2022] KEHC 217 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 39 of 2017

MW Muigai, J

March 15, 2022

Between

Stanley Kamau

Appellant

and

Florida Mumbe Matei

Respondent

(Being an appeal from the judgment delivered by the Honourable Senior Resident Magistrate M.A Opanga (Ms.) on the 23 rd day of March, 2017 in Kithimani CMCC NO. 192 of 2013)

Judgment

PLAINT DATED 13/11/2013 1. By a Plaint dated 13th November, 2013 and filed on 10th December, 2013 the Respondent as the Plaintiff sued the Appellant as the Defendant in Kithimani PMCC No. 192 of 2013. The Appellant sought general damages for pain and suffering and loss of amenities, special damages of Kshs. 5,000/-, costs of future medical operation, costs and interest.

2. The cause of action arose from a road traffic accident that occurred on 29th November, 2011 at around 10. 30 am when the Respondent is said to have been lawfully travelling as a fare paying passenger in motor vehicle registration number KBA 588B Mitsubishi Minibus along Matuu- Mwingi Road at Murram area which collided with motor vehicle registration number KAU 917Q Toyota Matatu. The Respondent sustained serious body injuries.

3. According to the Respondent, the Appellant’s driver and/or agent negligent and/or carelessly drove, managed and/or controlled motor vehicle registration number KAU 917Q causing it to lose control, leave its lane to that of motor vehicle registration number KBA 588B.

4. The particulars of negligence against the Appellant are pleaded at paragraph 4(a) to (h) of the Plaint. The Appellant pleaded the doctrine of Res Ipsa Loquitor. The Respondent pleaded operation costs of Kshs. 100,000/- for reduction and internal fixation for the tibia bone fracture.

DEFENCE DATED 6/01/2013 5. The Appellant denied all the Respondent’s averments in the Plaint save for its description. According to the Appellant, if the accident occurred, the same was due to an inevitable accident. The Appellant urged the Trial Court to dismiss the Respondent’s suit with costs.

REPLY TO DEFENCE DATED 21/01/2014 6. The Respondent reiterated the contents of the Plaint. The Respondent urged the Trial Court to strike out the defence with costs and enter judgment against the Appellant in terms of the Plaint.

EVIDENCE 7. PW1, Muli Simon Kioko stated that he is a doctor, a general practitioner stationed in Matuu town. He stated that he examined the Respondent on 11th October, 2013. According to PW1, at the time the Respondent had a treatment card from Matuu District Hospital. He stated that the Respondent was involved in a road traffic accident on 29th November, 2011, admitted on the same day and discharged on 1st April, 2012.

8. According to PW1, the Respondent sustained injuries on both lower limbs. He stated that the Respondent was unable to walk and had pain and swelling on the right thigh and left knee. According to PW1, the Respondent was referred to Thika Level 5 Hospital. PW1 stated that the Respondent was in fair and stable condition but the lower limbs had haematoma/swelling of right thigh. He referred to the X-ray which show a fracture of the right femur bone and tibia bone. He stated that the Respondent had plaster cast on fracture sight. According to PW1, the fracture had healed poorly and he recommended the Respondent to go for internal fixation at Kshs.100, 000/- an estimated costs. According to PW1, the Respondent suffered fracture on both legs.

9. PW1 produced his medical report as exhibit 1. He stated that he charged Kshs. 5,000/- for preparation of the medical report and Kshs. 5,000/- for court attendance as exhibit 2 and 3 respectively. In re-examination, PW1 stated that he was paid Kshs.3, 000/- for court attendance.

10. PW2, Force No. xxxxxx Chief Inspector Dorcas Nyaga Traffic Base Commander Matuu Police Station stated that one David Waweru was driving motor vehicle registration number KBA 588B bus from Mwingi and on reaching kwa Murram area, a matatu registration number KAU 917Q rammed onto the bus. He stated that the matatu was blamed for the accident. According to PW2, the passengers aboard were injured. He stated that Florida Mumbe Matei who was a victim was issued with a police abstract exhibit No.1. He stated that he was paid attendance cost of Kshs.3, 000/- and produced petty cash voucher exhibit No.5. According to PW2, Florida was a passenger in motor vehicle KAU 917Q. He stated that she did not contribute in any way to occurrence of the accident. According to PW2, the matatu driver died on the spot.

11. In cross-examination, PW2 stated that he was not the investigating officer and did not visit the scene. He relied on the police file.

12. PW3, Florida Mumbe Matei stated that on 29th November, 2011 at 10. 30 a.m boarded motor vehicle KBA 588B minibus from Thika going to Mwingi. She stated that at Murram area another Nissan registration number KAU 917Q knocked their motor vehicle from opposite direction. According to PW3 the Nissan came to their side of the road. She blames the Nissan for the accident. PW3 stated that both of her legs were fractured, her thigh and legs were swollen. She stated that she was treated at Matuu District Hospital, Thika Level 5 and Mwingi District Hospital. PW3 produced three treatment cards from Thika Level 5 as exhibit No. 3(a), (b) and (c). She produced motor vehicle copy of records as exhibit 8 and demand letter as exhibit 9.

13. In cross-examination, PW3 stated that she was in the bus seated on the third seat from the driver although she didn’t have a ticket.

14. The Appellant’s case was closed without calling any witness but leave was granted to the Appellant to attach an amended medical report to his submissions.

TRIAL COURT’S JUDGEMENT 15. In his Judgment, the Trial Magistrate noted that the Respondent was fare paying passenger in motor vehicle registration number KBA 588B but the Appellant’s driver in control of motor vehicle registration number KAU 917Q drove carelessly without due regard to the safety of other road users and caused the motor vehicle to leave its lane and collide with KBA 588B. The Trial Magistrate found the Appellant to be 100% liable.

16. On quantum of damages, the Trial Magistrate awarded the Respondent general damages of Kshs. 2,000,000/-, costs of future medical expenses of Kshs.100, 000/- and special damages of Kshs.5, 000/- plus costs and interest.

APPEAL DATED 29/3/2017 17. Aggrieved by the Judgment, the Appellant has appealed citing the following grounds:-(1)THAT the Learned Trial Magistrate erred in law and in fact in awarding general damages of Kshs.2, 150,000/- that was excessive and unjust in the circumstances considering the nature of injuries sustained and the conventional awards in relation to such injuries.(2)THAT the Learned Trial Magistrate erred in law and misdirected herself when she failed to consider the Appellant’s submissions on both points of law and facts.(3)THAT the Learned Trial Magistrate decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.(4)THAT the Learned Trial Magistrate erred in law and in fact in unduly disregarding the judicial authorities cited by the Appellants and by instead relying on the authorities cited by the Respondent which were unrelated to the actual injuries sustained by the Respondent.(5)THAT the Learned Trial Magistrate erred in awarding the Plaintiff special damages of Kshs. 50,000/- while the Plaintiff had only pleaded and proved Kshs.5,000/-(6)THAT the Learned Trial Magistrate erred in awarding costs of the suit and interest to the Plaintiff.

18. The Appellant urge the court to allow the appeal by re-assessing the general damages awarded and reduce the award. The Appellant pleaded to be awarded the costs of the appeal and Trial Court.

APPELLANT’S SUBMISSIONS 19. According to the Appellant, the damages were inordinately high, erroneous, and overly excessive and did not match. It is submitted that the Trial Magistrate failed to exercise its discretion fairly by taking into account irrelevant factors and awarded quantum of Kshs. 2,000,000/-. Reliance was placed on several authorities which the court will consider in determination. In this appeal, the Appellant is of the view that a maximum award of Kshs.600, 000/- will be adequate compensation.

20. According to the Appellant, the Trial Court erroneously awarded Kshs.50, 000/-instead of Kshs.5, 000. It is submitted that the Respondent had specifically pleaded special damages of Kshs.5, 000/- hence the award of Kshs.50, 000/- should be reviewed. The Appellant urged this court to allow the appeal with costs and set aside the Trial Court Judgment.

RESPONDENT’S SUBMISSIONS 21. On behalf of the Respondent, it is submitted that he suffered serious injuries to warrant an award of Kshs. 2,150,000/- as general damages. It is submitted that the Respondent suffered fracture right distal femur, fracture left tibia bone, haematoma of the left tibia, pain and tenderness on the right knee and haematoma formation on the right thigh.

22. The Respondents urge this court not to interfere with the Trial Court Judgment and dismiss the appeal with costs for lack of merit. The Respondent placed reliance on several court decisions which the court shall consider in its determination.

DETERMINATION 23. I have considered the submissions filed and cases relied upon by respective parties.

24. This being a first appellate court, its role is well captured in the case of Selle vs. Associated Motor Boat Co[1986] EA 123 as follows:-“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal from the trial court by the high court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect in particular the court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

25. The appeal is against the quantum of damages awarded by the Trial Magistrate.

QUANTUM 26. The Appellant urge this court to re-assess the general damages for being excessive for such injuries and the conventional awards in relation to such injuries.

27. This court is guided by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan [1982-88] KAR where the Learned judges set out the parameters under which an appellate court will interfere with an award for general damages and held that: -“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...’

General damages for pain, suffering and loss of amenities 28. In the Plaint, the injuries pleaded are haematoma of the right thigh, plain and tenderness on the right knee, fracture of the right distal femur, haematoma of the left tibia and fracture of left tibia bone.

29. According to the P3 Form and Matuu District Hospital treatment note, the Respondent sustained fracture on the right femur and left tibia. PW1 stated that upon conducting a detailed body examination, he found that on the Respondent’s lower limbs there was haematoma on right thigh, tenderness of right knee region of severe degree, fracture of the distal femur, haematoma formation on left tibia, tenderness of severe degree and fractured of the left tibia bone.

30. The Trial Magistrate awarded general damages of Kshs.2, 000,000/- to the Respondent. According to the Appellant, the award is inordinately high.

31. According to the Black’s Law Dictionary Free Online Legal Dictionary 2nd Edn.-“General damages are the damages and injuries that directly result from an action or the failure to take action of the defendant.”

32. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that:-“…General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty…”

33. In Mcgregor on damages 15thEdition1988 paragraph 153, its observed as follows:“pain and suffering is now almost a term of art. In so far as that can be distinguished, pain means the physical hurt or discomfort attributable to the injury itself or consequent upon it.It thus includes the pain caused by any medical treatment which the plaintiff, might have to undergo. Suffering on the other hand denotes the mental or evidential distress which the plaintiff may feel as a consequence of the injury: anxiety, worry, fear, torment, embarrassment and the like, it is not however, usual for Judges to distinguish between the two elements?Whereas loss of amenity is deprivation of the plaintiff of the capacity to do the things which before the accident he was able to enjoy, and due to the injury he is fully or partially prevented from participating in the normal activities of life.”

34. According to PW1, the Respondent sustained injuries on both lower limbs. She was unable to walk. She had pain and swelling on right thigh and left knee. She had plaster cast on the fracture sight. She was on analgesics. According to PW1, the fracture had healed poorly. The Appellant stated that she had not fully recovered. The Discharge Summary from Thika Level 5 Hospital show that the Respondent was discharged 4 months 4 months later on 1st April, 2012.

35. In assessing damages the general principle is that comparable injuries should as far as possible attract comparable awards as the Court of Appeal stated in Mbaka Nguru and Another vs. James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR 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.” See Kigaraari vs. Aya (1982-88) 1 KAR 768.

36. The Appellant placed reliance on the following decisions. In my view the cases of Jitan Nagra vs. Abidnego Nyandusi Oigo[2018] eKLR, Mbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR, Joseph Mwangi Thuita vs. Joyce Mwole[2018] eKLR, Reuben Mongare Keba vs. L P N[2016] eKLR and EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR reflect similar injuries sustained by the Respondent.

37. The four decision relied upon by the Respondent in my view establish severe injuries sustained by the Plaintiffs therein. The Plaintiffs in the cases had multiple injuries that required several surgeries in the future. In this case PW1 was of the view that the Respondent would only require an open reduction and fixation operation for the tibia bone fracture. In my view Kshs.2, 000,000/- for injuries sustained by the Respondent is inordinately high.

38. On the other hand, the proposed compensation of Kshs.600, 000/- by the Appellant is not so low but taking into account the severity of the injuries, period spent in hospital and inflationary rate, the award requires to be enhanced to a reasonable compensation comparable to the injuries sustained by the Respondent. I find the decisions of Reuben Mongare Keba vs. L P N [2016] eKLR and EWO (suing as the next friend of a minor COW) vs. Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR comparable where court upheld Kshs.800, 000/- for similar injuries.

39. In my view an award of kshs. 800,000/=will sufficiently compensate the Respondent for the injuries sustained. The award of Kshs.2,000,000/- is set aside and substituted with Kshs.800, 000/-.

Award of Special damages of Kshs.50,000/-instead of Kshs.5,000/- 40. In his judgment, the Trial Magistrate awarded special damages of Kshs.5,000 as pleaded in the Plaint but in the total award the Trial Magistrate seem to have erroneously added Kshs.50,000/-. It is a typographical error. The same is substituted with Kshs.5,000/-.

Costs of suit and interest 41. As regards costs of suit, the Appellant contend that the Trial Magistrate erred to award.

42. Section 27(1) of the Civil Procedure Act confers the court with discretion to award costs. See Justice (Retired) Richard Kuloba,Judicial Hints on Civil Procedure, 2nd Edition, page 99.

43. It is trite that costs follow the event. In Republic vs. Rosemary Wairimu Munene, Ex-Parte Applicant vs. Ihururu Dairy Farmers Co-operative Society Ltd JR. Application No. 6 of 2014 the High Court at Nyeri held that:-“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.

44. The Plaintiff being the successful party was entitled costs and interest unless her conduct was such that she would be denied costs or the successful issue was not attracting costs. See Orix (K) Limited vs. Paul Kabeu & 2 others[2014] eKLR.

45. Section 26(2) of the Act provides for award of interest on the principal sum awarded by the Court while under Section 27(2) interest may be awarded on costs of the suit. The Respondent succeeded in her claim before the Trial Court hence entitled to costs of suit and interest. The ground fails.

46. The Appellant has not submitted on the costs of future of medical operation hence the award remain unchallenged. The award is upheld.

DISPOSITION 47. Accordingly, the award that ought to have been made to the Respondent was as hereunder :-(a)General damages Kshs. 800,000/-(c)Costs of future medical operation Kshs. 100,000/-(d)Special damages Kshs. 5,000/-Kshs. 905,000/-

48. The appeal has succeeded partly. In the premises, the Court will award half of the costs of the appeal to the Appellant. The Appellant will pay full costs of the Trial Court.

49. The general damages shall attract interest at Court rates from the date of judgment of the Trial Court while special damage will attract interest from the date of filling the suit.

Orders accordingly.DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15THDAY OF MARCH, 2022. M.W MUIGAIJUDGE