[2023] KEHC 25556 (KLR)

Karanja v Wambui (Civil Appeal E169 of 2021) [2023] KEHC 25556 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25556 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E169 of 2021

A Mshila, J

November 17, 2023

Between

Peter Kuria Karanja

Appellant

and

Henry Kamiru Wambui

Respondent

(Being an appeal from the original judgment delivered by Honourable B.M.Ekhubi (CM) on 9th September, 2021 in Thika CMCC NO. 810 of 2016)

Judgment

Background 1. By a Plaint filed on July 28, 2016, the Respondent herein sued the Appellant claiming compensation for injuries sustained on or about the 24th day of March, 2016 while the Respondent was crossing at a zebra crossing on Thika-Nairobi Super-Highway at Juja Town, when the Appellant negligently managed motor vehicle registration number KBV 355R that he violently knocked down the Respondent and severely injured him on his left hand dorsum and fractured right leg ankle joint and knee joints as a result of which the Respondent suffered loss and damage.

2. The Appellant filed his Defence denying that he was the driver of the accident motor vehicle. He denied the occurrence of the accident and the negligence attributed to him. Further that the Respondent solely caused the accident if any.

3. The matter proceeded to a full hearing. The trial court found that the Respondent has proved his case on a balance of probabilities and apportioned liability at 100% in favour of the Respondent against the Appellant.

4. On quantum, the Honourable Trial Magistrate entered judgment as follows:a.General damages…..........................................Kshs. 1,000,000/=b.Special damages……………………………....Kshs. 2,000/=Total Kshs. 1,002,000/=c.Plus costs and interests

5. The Appellant is dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In his Memorandum of Appeal, he has listed eight grounds of appeal as follows:-a.That the learned trial magistrate erred in fact and in law and misdirected himself in finding that the Respondent is entitled to general damages of Kshs. 1,000,000/= which amount is excessive for a soft tissue injury.b.That the learned trial magistrate erred in fact and in law and misdirected himself in finding the Appellant 100% liable when indeed the Respondent was to blame for the accident as he was running and playing on the road.c.That the learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and liability and relevant authorities on quantum and liability and relevant authorities on quantum and liability cited in the written submissions presented and filed by the Appellants.d.That the learned trial magistrate proceeded on wrong principles on wrong principles when assessing the damages and liability to be awarded to the respondent (to apply precedents and tenets of law applicable).e.That the learned trial magistrate failed to apply himself judicially sand to adequately evaluate the evidence and exhibits tendered on quantum and liability thereby arriving at a decision unsustainable in law.f.That the learned magistrate erred in law and in fact in arriving at his said decision.g.That the learned trial magistrate’s 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.h.That the learned trial magistrate erred in fact and law in failing to consider conventional awards in cases of similar nature.

6. The court directed the parties to canvass the appeal by way of written submissions.

Appellant’s Submissions 7. The Appellant submits that according to the Plaint and the medical report from Protection House surgical clinic dated 4/7/2016, the Respondent sustained deep abrasions on the back of the left leg, fractures right tibia, fibula and pain and suffering. That according to the P3 Form, the Respondent sustained soft tissue injuries on both the left and the right foot. The Appellant’s medical report was said to indicate that the Respondent sustained soft tissue injuries. It was submitted that the award of Kshs. 1,000,000/= for soft tissue injuries was said to be high. The Respondent was faulted for failing to produce the initial treatment notes. Reliance was placed in the case of Timsales Ltd vs Wilson Libuywa (2008) eKLR. An award of between Kshs. 30,000/= to Kshs. 100,000/= was said to be adequate. Reliance was placed on among other cases the case of JK (A minor suing through father and next friend NKM vs Jasper Nchonga Magari & another (2021) eKLR. The court was urged to allow the appeal on quantum as well as costs.

Respondent’s Submissions 8. The Respondent submit that according to Dr. Wokabi he suffered deep abrasions on the back of the left hand, fractures right tibia fibula and pain and suffering. That the doctor assessed the degree of incapacity at 15%. It was stated that the doctor in his testimony indicated that some x-rays failed to show the fractures due to pathological healing. It was submitted that the Appellant had not pleaded anything substantial to allow this court to disturb the finding of the trial court. Reliance was placed in the Court of Appeal case of Loise Wanjiku Kagunda vs Julius Gachau Mwangi CA 142 OF 2003. The court was urged to dismiss the appeal with costs to the Respondent.

Trial Court’s Evidence 9. During the hearing at the trial court, No. 83551 CPL James Odhiambo (PW1) attached at Juja Police Station performing traffic duties testified that an accident was reported involving motor vehicle KBU 355R and a pedestrian along Thika-Nairobi Highway. That the Appellant reported that he had knocked down the Respondent while he was crossing the road and that he had taken him to JKUAT medical centre. That he issued the police abstract.

10. Dr. W. Wokabi (PW2) wished to produce the medical report prepared in relation to the Respondent. In cross-exam he stated that he relied on the xray and reports from Thika Level 4 Hospital. He indicated that from the xrays no definite fracture was seen. That he confirmed disability based on physical examination and WIBA scales. He stated that the Respondent had injured 5 fingers on his left hand.

11. Henry Kamiru Wambui (PW3) wished to adopt his witness statement recorded on 27/7/2016 as his evidence in chief. He stated that he was treated at Thika Level 5 Hospital where a plaster was put on his leg and it lasted for 2 months. He stated that he conducted a search on motor vehicle registration number KBV 355R and that his advocate wrote the demand letter. A P3 form was issued at Juja Police Station. He blamed the driver as he was knocked down at a zebra crossing. He sought for grant of the prayers in the plaint. He stated that he cannot use his left hand due to the incapacitation. The Respondent closed his case.

12. No. 79440 CPL Linet Makuti produced the abstract for the accident between the parties herein and motor vehicle KBV 355R that occurred on 24/3/2016.

13. Dr. Ruth Ichamandie produced the report prepared by Dr. Jenipher Kahuthu dated 31/3/2021. She opined that the Plaintiff suffered soft tissue injuries and that the initial x-rays confirmed no fracture or dislocation. That another x-ray was conducted on 1/2/2019 and the same confirmed no permanent disability as the Respondent had normal movement of the right knee and ankle joining the left raw.

Issues for Determination 14. Having read and considered the submissions by the parties and the case law relied upon, the main issue for determination is whether the damages awarded were inordinately high.

Analysis 15. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."

Whether the damages awarded were inordinately high. 16. On quantum, the Appellant alleges that the Honourable Magistrate awarded damages that were excessive for soft tissue injuries.

17. General damages awarded at the lower court can only be interfered with if it is “so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the (court) 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.” (Refer to Butt –vs- Khan, Nairobi Civil Appeal NO. 40 of 1977).

18. A similar view was expressed in by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General (2016) eKLR thus:-“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.”

19. The appellate court has jurisdiction to only interfere with the assessment of damages by a trial court if it is demonstrated that the trial court:-a.Took into account an irrelevant factor orb.Left out of account a relevant factor or,c.The award is so inordinately high that it must be a wholly erroneous estimate of the damage. See the case ofKemfro Africa Limited t/a “Meru Express Services (1976)” & another vs Lubia & another (NO.2)(1985) eKLR.

20. The report prepared by Dr. Wokabi indicated that the Respondent sustained deep abrasions on the back of the left hand, fractures right tibia fibula, pain and suffering. The doctor was sure that the Respondent sustained fractures but the same were not seen in the x-rays due to pathological healing.

21. The Respondent testified that he was treated at Thika Level 5 hospital where a plaster was put on his right leg and that it lasted for 2 months.

22. The Appellant’s doctor one Dr. Ruth Ichamandie produced the medical report on behalf of Dr. Jenipher Kahuthu who opined that the Respondent sustained soft tissue injuries and that the initial x-rays confirmed that there was no fracture or dislocation. A repeat x-ray was conducted and the same showed no fractures and that there was no permanent disability as the Respondent had normal movement of the right knee and ankle joining the left raw.

23. The Appellant submitted that an award of between Kshs. 30,000/= to Kshs. 100,000/= would be adequate. He relied on among other cases the case of JK (A minor suing through father & next friendNKM vs Jasper Nchonga Magari & another (2021) eKLR where the award of Kshs. 30,000/= was upheld for soft tissue injuries.

24. The trial magistrate stated that the Respondent sustained deep abrasions on the back of the left hand and fractures of the right tibia and fibula with 15 % permanent disability. The trial court awarded Kshs. 1,000,000/=.

25. Courts have held that comparable injuries should be compensated by comparable awards. Refer to the case ofDenshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd (2013) eKLR on the general method of assessment of damages being that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.Guided by the above sentiments, this court is inclined to interfere with the award of Kshs. 1,000,000/= as assessed by the trial court. The Respondent sustained soft tissue injuries and has healed well. The P3Form is found to support the Appellants that the Respondent sustained only soft tissue injuries; the initial x-rays also confirm that the Respondent did not sustain any fracture or dislocation. Dr. Wokabi testified that a fracture can fail to be seen in an x-ray due to pathological healing but in the instant case the x-rays were conducted immediately after the accident as such healing had not taken place. It then means that most probably the Respondent did not suffer any fractures that ought to have been seen in the x-rays. The trial court in failing to consider this evidence by the Appellant’s doctor made an error and arrived at an erroneous estimate of the damage to which the Respondent was entitled.

26. In the circumstances and bearing in mind awards for comparable injuries, the award of Kshs. 1,000,000/= is substituted with an award of Kshs. 250,000/.

Findings and Determinations 27. This court makes the following findings and determinations;i.The appeal is found to be partially meritorious on the issue of quantum;ii.The judgment of the lower court on liability and special damages of Kshs. 2000/- is upheldiii.Judgment on the award of general damages in the sum of Kshs.1,000,000/- is hereby set aside and substituted with an award of Kshs. 250,000/-;iv.The Respondent shall have costs and interest at court rates in the trial court.v.Each party to bear their own costs on Appeal.Orders Accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 17TH DAY OF NOVEMBER, 2023. A.MSHILAJUDGEIn the presence of;Mourice – Court AssistantMachoka – h/b for Keya – for RespondentNjuguna – for Appellant