[2023] KEHC 25388 (KLR)

Kelvin v Runyambo (Civil Appeal E091 of 2021) [2023] KEHC 25388 (KLR) (Civ) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25388 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E091 of 2021

DAS Majanja, J

November 17, 2023

Between

Nkoroi Bundi Kelvin

Appellant

and

Wilson Runyambo

Respondent

(Being an appeal from the Judgment and Decree of Hon. D.W. Mburu, SPM dated 29{{^th}} January 2021 at the Magistrates Court at Nairobi, Milimani in Civil Case No. 1722 of 2019)

Judgment

1. This appeal is against the trial court’s judgment on quantum. The Respondent was injured in a road traffic accident that took place on 17. 10. 2017 while he was walking along the road when he was knocked down by the Appellant’s motor vehicle registration number KAW 701W. After hearing the case, the trial magistrate found the Appellant fully liable and awarded the Respondent Kshs. 850,000. 00 and Kshs. 143,530. 00 as general and special damages respectively. It is the award of general damages that has precipitated this appeal.

2. According to the Plaint dated 17. 03. 2018, the Respondent pleaded that he sustained a mid-shaft fracture of the left tibia and fibula and suffered a swollen tender and painful leg. In his testimony the Respondent confirmed these injuries. He produced a Discharge Summary from PCEA Kikuyu Hospital showing that he was admitted to the hospital on 19. 12. 2017 and discharged on 22. 12. 2017 for treatment of the left leg injury. The Respondent was also examined by Dr G. K. Mwaura on 04. 01. 2019 who prepared a report of even date. Dr Mwaura examined the P3 Medical Report, Discharge Summary, booking sheet and X-ray request form from Kiambu Level 4 Hospital. He confirmed that the Respondent suffered a fracture of the left tibia and fibula which was treated initially by application of plaster of paris and the tibia fracture fixed by a K-nail. When he was examined, the Respondent was heathy and normal. Dr Mwaura noted that the Respondent experiences pain on the left leg upon exertion and cannot walk or stand for a long time. He classified the injury as grievous harm and assessed permanent degree of incapacity at 10%.

3. In support of his plea to be awarded Kshs. 1,000,000. 00, the Respondent cited several cases. In Hussein Abdi Hashi v Hassan Noor [2004] eKLR where the plaintiff sustained a fracture of the left malleoulus and metatarsal and laceration to the ankle, his incapacity was assessed at 20%. He was awarded Kshs. 800,000. 00. In Abdi Salaan Nuron v Kenya Tea Development Authority KRC HCCC No. 26 of 1999 (UR), the plaintiff was awarded Kshs. 800,000. 00 after sustaining a fracture of the right tibia and fibula. He also cited Savco Stores Limited v David Mwangi Kimotho [2008] eKLR where the plaintiff suffered a fracture of the tibia and fibula, fractured left elbow and deep cut on the forehead. He suffered permanent disability at 20% and was awarded Kshs. 800,000. 00/

4. The Appellant urged the court to award Kshs. 300,000. 00. It cited Civicon Limited v Richard Njomo Omwancha and 2 others [2019]eKLR. The court reduced an award of Kshs. 1,000,000. 00 to Kshs. 450,000. 00 for the 3rd plaintiff who suffered a fracture of the right tibia fibula, fracture of four upper teeth, cut wound on the upper and lower lip, swollen and tender upper lip, bruises on the chin, dislocation of the left shoulder and bruises on the right thigh. In Gladys Lyaka Mwombe v Francis Namatsi and 2 Others [2019]eKLR the plaintiff was awarded Kshs. 300,000. 00 for sustaining a fracture of the lower tibia and fibula, a cut wound on the anterior part of the scalp, a head injury, spinal cord injury, neck injury and a cut wound on the face.

5. In making the award, the trial magistrate found that the authorities cited by the Respondent were relevant and involved comparable injuries to those the plaintiff had sustained hence the award of Kshs. 850,000. 00 would be appropriate for pain and suffering.

6. The parties are agreed on the nature and extent of the injuries sustained by the Respondent. The issue presented in this appeal as stated in the Memorandum of Appeal dated 24. 11. 2021 is whether the award was inordinately high and excessive in light of the injuries sustained by the Respondent.

7. As this is an appeal on quantum of damages, the appellate court can only intervene if it is shown that the trial court, in awarding of the damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan [1981] KLR 349).

8. This appeal concerns the award of general damages. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike (see Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR). In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982]eKLR and Jabane v Olenja [1986] KLR 661).9. It is not in dispute that the Appellant sustained a fracture of the left tibia and fibula together with soft tissue injuries. The injuries have healed but have left him with difficulty in walking and permanent disability assessed at 10%. Looking at the cases cited by the Respondent before the trial court, I note that the victims therein suffered more serious and greater disability. Although the cases cited by the Respondent were decided in 2004 and 2008, those cited by the Appellant were more recent and reflective of the trend of damages awarded in cases of where the victims sustained similar injuries.

10. Since the award of general damages was excessive, this court is entitled to intervene. I therefore set aside the award of Kshs. 1,000,000. 00 and substitute with an award of Kshs. 600,000. 00.

11. I allow the appeal to the extent that I set aside the award of general damages and substitute it with an award of Kshs. 600,000. 00. The said sum shall accrue interest at court rates from the date of judgment in the subordinate court.

12. The Appellant shall have costs of the appeal assessed at Kshs. 30,000. 00.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2023. D.S. MAJANJAJUDGEMr Karimi instructed by Wainaina & Karimi Advocates for the Appellants.Mr Wachira instructed by Waiganjo Wachira and Company Advocates for the Respondent.