[2024] KEHC 3992 (KLR)

Kamau v Mugo & another (Civil Appeal 42 of 2023) [2024] KEHC 3992 (KLR) (Civ) (8 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3992 (KLR)

Republic of Kenya

In the High Court Nyandarua

Civil

Civil Appeal 42 of 2023

CM Kariuki, J

April 8, 2024

Between

Philip Njihia Kamau

Appellant

and

Peter Muogoya Mugo

1st Respondent

Walter Mutahi Kimini

2nd Respondent

(Being an Appeal from the Judgement/Decree of Hon. Obulutsa, Chief Magistrate delivered on 23{{^rd}} September 2021 in Nyahururu CMCC No. 102 of 2018)

Judgment

1. The Appellant herein brings this appeal against the judgement delivered at Nyahururu on 20th December 2021 in Nyahururu CMCC No. 256 of 2019. The instant appeal is on quantum and the Appellant advanced the following grounds:-I.That the learned trial magistrate erred and misdirected himself in law and in fact in his assessment of damages awardable to the Appellant in awarding damages that were inordinately low in the circumstances.II.That the learned trial magistrate erred in law and fact by ignoring and rejecting the medical documents produced by the Appellant thus arriving at an erroneous decision.III.That the learned trial magistrate failed to appreciate and/or misapplied the principle applicable in the assessment of damages under the circumstances.

2. Reasons wherefore the Appellant proposed to ask this honourable court for orders:- 3. That the judgement/decree of the honorable magistrate delivered on the 20th day of December 2021 in Nyahururu CMCC No. 256 of 2019 on quantum be set aside and the same be enhanced.

4. That this honourable court be pleased to award the Appellant future medical expenses.

5. That the costs of this appeal be borne by the Respondent.

Appellant’s Written Submissions 7. The Appellant submitted that he sustained the following injuries: - Displaced fracture of the left femur

Degloving

Injuries to the left foot

Soft tissue injuries of the right hip joint

Soft tissue injuries of the left elbow

8. That the Appellant in his testimony at the trial court testified on these injuries and confirmed that he had not healed. The injuries were confirmed by Dr. Kiamba who examined the Appellant in his medical report. That the Appellant in his submissions at the trial court submitted for Kshs. 2,000,000/- to be reasonable compensation. He took into consideration the factors of inflation and the age of authority relied on in arriving at the proposed award.

9. It was argued that the documents referred to by trial court’s judgment in page 66 of the record of appeal which documents are at page 13-20 of the record of appeal confirmed the injuries sustained by the Appellant and there was no objection to the production of these documents without calling the makers to state that they ought to have been called and more so the matter proceeded by the way of formal proof hearing. The discharge summary also confirmed the injuries sustained by the Appellant.

10. The Appellant averred that the court did not take into consideration the documents placed on record in evidence that confirmed the injuries sustained by the Appellant on the basis that the same were not produced by the makers yet their production was not opposed and thus no need to have the makers attend court.

11. It was contended that the award made by the trial court of Kshs. 100,000/- was inordinately low as the same is not within the range of awards the court awards for similar injuries as those sustained by the Appellant herein and more so the Appellant having proved the injuries sustained through documentary evidence . reliance was placed on Tridev Construction vs. Charles Wekesa Kasembeli Civil Appeal 121 of 2021 where the court relied on the decision in Kemfro Africa Ltd T/A Meru Express Service Gathogo Kanini vs A.M. Lubia and Olive Lubia (1982-88) KAR 727 at page 730, Kenya Power & Lighting Company Limited vs. Kabage Wanyiri [2016] eKLR

12. In conclusion, the Appellant asserted that taking into consideration the age of the authority cited, the factors of inflation, the severity of the Appellant’s injuries taking into consideration that the Appellant herein suffered 20% permanently disability which are more severe. It was argued that an award of Kshs. 2,000,000/- will be reasonable compensation to the Appellant as general damages. Further, the Appellant stated that the court should award Kshs. 100,000/-as further medical treatment expenses as testified by Dr. Kiamba.

13. Respondent’s Submissions was not found on record thus deemed not filed at the time of preparation of the judgement.

Analysis and Determination 15. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions as was established by the Court of Appeal in the case of Peters –vs- Sunday Post Limited [1958] EA 424.

16. The appropriate standard of review established in cases of appeal are underpinned in the following three principles: - 17. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

18. Having considered the memorandum of appeal and submissions thereto the only issue that arises for determination is on quantum of damages awarded by the trial court.

19. I stand guided by the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR where the Court of Appeal stated that in an appeal against assessment of damages, an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined thus:The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

20. On the issue of quantum, the Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, held that :-“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘An appellate court will not disturb an award of 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.”

21. Further, in dealing with the appeal on quantum I will rely on the decision of the Court of Appeal in Bashir Ahmed Butt V Uwais Ahmed Khan [1982-88] KAR 5 where the court held that;“An appellate Court will not disturb an award of 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”

22. Additionally, In the case of Savanna Saw Mills Ltd Vs Gorge Mwale Mudomo (2005) eKLR the court stated as follows:“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

23. The Appellant herein urged the court to enhance the award of general damages from Kshs. 100,000/- to 2,000,000 based on the pleaded injuries as indicated in Dr. Kiamba’s medical report as alleged by the Appellant. The Appellant submitted that he suffered following injuries from the medical report:- Displaced fracture of the left femur

Degloving

Injuries to the left foot

Soft tissue injuries of the right hip joint

Soft tissue injuries of the left elbow

On the other hand, the trial magistrate on page 4 of his judgement dated 20th December 2021 indicated that ;“This being a case on accident, I note that the x-ray request form dated 3. 7.2019 allegedly from North Kinangop Catholic Hospital does not indicate who did the x-ray and it is also not signed but indicates that the same was requested by Dr/Co kelvin. The plaintiff did not consider it wise to call the said dr. kelvin to testify as his witness and produce the documents he is alleged to be the author this is the same case to the one dated 5. 7.2019, allegedly requested by Dr/Co Rigicha.The P3 form dated 8. 8.2019 and allegedly signed by a Dr. Kibet and stamped with a stamp reading medical officer in charge JM Kariuki (Olkalou) Hospital P.O. Box 221-20303, Ol kalou was not produced by a doctor who ought to have testified on the nature and extent of injuries incurred by the plaintiff.No testimony was given over the medical-legal report dated 10. 9.2019 and allegedly signed by Dr. W. K. Kiamba.……………………………………………………………………In the upshot, the court is left to exercise its authority and fulfill its duty in deciding similar matters and I will be guided by the conventional amount of Kshs. 100,000. 00/- under this head”.

24. Having gone through the trial record, it is my considered view that the trial magistrate erred in law and in fact in asserting that the documents produced by the Appellant and admitted as evidence by the trial court with no objections could not be relied on because the authors of the documents had not produced them. I wholly agree with the Appellant’s averments that the court did not take into consideration the documents placed on record in evidence that confirmed the injuries sustained by the Appellant on the basis that the same were not produced by the makers yet their production was not opposed and thus there was no need to have the makers attend court.

25. In my considered view, the documents produced by the Appellant were not objected to during hearing and therefore they should have been relied on by the trial court as it was not obligatory to call the authors of the documents and the same was not objected by the Respondents herein.

26. In that case, going by Dr. Wellington K. Kiamba’s report dated 10/9/2019, I find that the Appellant’s injuries were as follows :- Displaced fracture of the left femur

Degloving injury of the left foot

Soft tissue injuries of the right hip joint

Soft tissue injuries of the left knee joint.

Soft injuries of the right elbow and knee joints

27. The doctor noted that the cost of future treatment will be at least Kshs. 100,000/-. He classified the decree of injury as grievous harm.

28. Accordingly, I find that the trial magistrate’s award of Kshs. 100,000 was inordinately low and did not take into account the Appellant’s pleaded injuries. However, it is my view that the Appellant’s proposal of Kshs. 2,000,000/- is manifestly high and the cases he relied on do not present injuries comparable to his. It is my considered finding that Kshs. 500,000 would however be appropriate for the injuries suffered. I will also award Kshs. 100,000/- for future medical treatment.

29. In the upshot, the appeal succeeds in the following terms; -

30. The Appellant is awarded the following costs: -i.General damages……………………………………………………..Kshs. 500,000/-ii.Special damages………………………………………………………Kshs. 127,050/-iii.Future medical treatment expenses …………………………………Kshs. 100,000/-iv.Total……………………………………………………………………Kshs. 727,050/-v.Costs of the appeal and trial suit.

DATED AND DELIVERED AT NYANDARUA THIS 8th DAY OF APRIL 2024……………………………………CHARLES KARIUKIJUDGE