[2022] KEHC 15287 (KLR)

Karanja v BA (A Minor Suing through the Father and the Next Friend MMP) & another (Civil Appeal 114 of 2018) [2022] KEHC 15287 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15287 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 114 of 2018

JK Sergon, J

November 11, 2022

Between

David Njohu Karanja

Appellant

and

BA (A Minor Suing through the Father and the Next Friend MMP)

1st Respondent

Wambua Agnes

2nd Respondent

(Being an appeal against the judgment and decree delivered by D.O. Mbeja (Mr.) (Senior Resident Magistrate) on 26th September, 2017 in Milimani CMCC no. 1293 OF 2015))

Judgment

1. BA, the 1st respondent herein, filed a suit against the appellant and the 2nd respondent through her father MMP, vide the plaint dated February 27, 2015 and amended on May 5, 2015 and sought for both general and special damages in the sum of Kshs 3,500/= plus costs of the suit and interest thereon arising out of a road traffic accident.

2. The appellant and the 2nd respondent were sued in their respective capacities as the driver and the registered owner of the motor vehicle registration number KBK 800M (“the subject motor vehicle”) at all material times.

3. The 1st respondent pleaded in the amended plaint that sometime on or about December 12, 2014 while she was lawfully walking along Aero Drome Road, the subject motor vehicle being carelessly driven lost control, veered off the road and collided with her, causing her to suffer serious bodily injuries particularized under paragraph 6 of the amended plaint.

4. The 1st respondent attributed the accident to negligence on the part of the appellant and the 2nd respondent by setting out the particulars thereof in the amended plaint.

5. Upon service of summons, the appellant and the 2nd respondent entered appearance and filed their statements of defence separately on July 1, 2015 and April 29, 2015 respectively to deny the averments made in the amended plaint.

6. At the formal hearing of the suit, the parties recorded a consent on liability in the ratio of 80%: 20% in favour of the 1st respondent and against the appellant and the 2nd respondent, and on production of the bundle of documents on record without calling their respective makers. The parties further consented to filing written submissions on quantum.

7. Finally, the trial court in its judgment awarded general damages in the sum of Kshs 900,000/= and special damages in the sum of Kshs 3,000/= plus costs of the suit and interest thereon.

8. The appellant has sought to challenge the award made on general damages by way of the present appeal. The appellant has therefore put forward the following grounds of appeal vide his memorandum of appeal dated February 26, 2018:i.Thatthe learned trial magistrate erred in law when he made in general damages an award which was inordinately high in the circumstances of this case.ii.Thatthe learned trial magistrate erred in law and fact in not taking into account and/or giving due weight to the submissions before him on the issue of quantum and particularly on the award on general damages and the authorities in support.iii.Thatthe learned trial magistrate erred in law and fact in making an award on general damages which was unsupported by the medical evidence before him.

9. This court directed the parties to file written submissions on the appeal. It is apparent from the record that the 2nd respondent did not put in written submissions or participate in the appeal.

10. On the one part, the appellant by way of his brief submissions dated May 6, 2022 echoed his grounds of appeal that the award made by the trial court on general damages is inordinately high and does not represent awards made in respect to comparable injuries.

11. The appellant is therefore of the view that the award made under the abovementioned head ought to be set aside and substituted with a more reasonable award in the sum of Kshs 250,000/= with reference to the case of Gerald Oyugi v Evans Okeyo Mochere [2019] eKLR where the court awarded the sum of Kshs.300,000/= on appeal and at the instance of a fracture injury, and the case of Bhatyani Randeep & another v Johnstone Kianga Paul[2021] eKLR in which the plaintiff was awarded general damages in the sum of Kshs.250,000/= for an ankle fracture.

12. The 1st respondent on the other part, the respondent through her submissions dated May 13, 2022 contends that the award made by the trial court is reasonable and within normal range of comparable awards made, citing among others, the case of Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLR where the court awarded the sum of Kshs.800,000/= for comparable injuries, and the case of Finlays Horticulture Kenya Limited v Grace Wacugu Chiira[2020] eKLR where the court upheld an award made in the sum of Kshs.1,000,000/= at the instance of a dislocation of an ankle joint and fracture injury.

13. The 1st respondent further contends that there is nothing to indicate that the trial court acted on wrong principles of law or that it misapprehended any of the facts presented before it, and hence there is no reason for this court to interfere with the award being challenged.

14. I have considered the contending submissions on appeal and the authorities relied upon. I have also re-evaluated the evidence which the trial court had the opportunity to look at.

15. It is clear that the appeal lies against quantum, specifically the damages under the head of general damages for pain and suffering. It is therefore proper and reasonable for me to address the three (3) grounds of appeal contemporaneously under that head.

16. In her submissions before the trial court, the 1st respondent proposed the sum of Kshs 1,300,000/= as constituting a suitable award under that head and cited inter alia, the case ofSavco Stores Ltd v David Mwangi Kamotho [2008] eKLR where the court made an award in the sum of Kshs 800,000/= for comparable injuries, whereas the appellant proposed the sum of Kshs 260,000/= with reliance on the case ofParodi Giorgio v John Kuria Macharia [2014] eKLR where the High Court sitting on appeal revised downwards the award made on general damages from the sum of Kshs.350,000/= to the sum of Kshs 200,000/=.

17. The learned trial magistrate; upon weighing and taking into consideration the rival positions; settled on an award in the sum of Kshs 900,000/= under that head, though I note that he did not cite any guiding authorities to that effect.

18. The medical reports and related evidence tendered indicate that the injuries suffered by the 1st respondent are in the nature of a compound/bimalleolar fracture of the left ankle joint.

19. In one of the medical reports dated June 17, 2015 and prepared by Dr P M Wambugu, permanent incapacity was assessed at a degree of 2%.

20. Upon my consideration of the authorities cited by the parties in that respect, I am of the view that those cited by the 1st respondent constituted injuries of a slightly more severe nature in comparison to those suffered in the present instance. I find the authorities cited by the appellant to be slightly more comparable in terms of the injuries suffered, though they were decided a few years ago.

21. I therefore took into account the case ofHussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] eKLR where the court upon considering injuries in the nature of fractures of the right tibia and fibula leg bones (lower 1/3 bimalleolar ankle fracture), dislocation of the right ankle, bruise on the right leg and pain in the injured areas, with a permanent incapacity of 18%, awarded the sum of Kshs.600,000/= on appeal. It is noteworthy that the degree of permanent incapacity in the above-cited case is higher than that assessed in the present instance.

22. I similarly took into account the case ofDG (Minor suing through her next friend MOR v Richard Otieno Onyisi [2021] eKLR in which the court awarded general damages in the sum of Kshs.400,000/= at the instance of left tibia fracture, bruises on the left foot and bruises on the left leg, with no assessment being made on permanent incapacity.

23. In view of the foregoing circumstances, I reason that the award made by the learned trial magistrate is on the higher side, thereby necessitating interference.

24. Taking into account the abovementioned authorities, the injuries sustained, the assessment made on permanent disability and inflation factors, I find an award of Kshs 500,000/= to be more suitable in the circumstances.

25. On the subject of consideration of the submissions and authorities cited by the appellant, as well as the medical evidence tendered at the trial; however; upon my perusal of the impugned judgment, I have not come across anything to indicate that the learned trial magistrate overlooked the same.

26. The upshot therefore is that the appeal succeeds in respect to the award made on general damages for pain and suffering. The trial court’s award in the sum of Kshs 900,000/= made under that head is hereby set aside and is substituted with an award in the sum of Kshs 500,000/=.

27. Accordingly, judgment on appeal would now read as follows:i.General damages Kshs 500,000/=ii.Special damages Kshs 3,000/=Grand total Kshs 503,000/=Less 20% contribution Kshs 100,600/=Net total Kshs 402,400/=iii.Costs of the suit are awarded to the 1st respondent to be borne by the appellant and the 2nd respondent jointly and severally.iv.The 1st respondent shall also have interest on special damages at court rates from the date of filing the suit and interest on general damages at court rates from the date of judgment until payment in full.v.In the circumstances, a fair order on costs is to order which I hereby do that each party bears their own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ……………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent…………………………… for the 2nd Respondent