[2022] KEHC 11547 (KLR)

Kensilver Express Limited v Kamathi (Civil Appeal E016 of 2020) [2022] KEHC 11547 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11547 (KLR)

Republic of Kenya

In the High Court at Chuka

Civil Appeal E016 of 2020

LW Gitari, J

May 12, 2022

Between

Kensilver Express Limited

Appellant

and

Priscah Kamathi

Respondent

(An appeal from the Judgment delivered on 19th November 2020 in the Chuka Chief Magistrate’s Court CC No.113 of 2019 by Hon. N. Kahara (SRM))

Judgment

1. This is an appeal against the judgment delivered on 19th November 2020 in Chuka CMCC No. 113 of 2019. The suit was founded on an alleged road traffic accident that occurred on 27th April 2018 along Chuka – Meru Road near Nithi Bridge. The accident involved the Respondent herein, who was travelling as a fare paying passenger aboard the Appellant’s motor vehicle registration no. KAV 379K.

2. The Respondent alleged that the said accident was caused entirely due to the negligence of the driver of the motor vehicle registration no. KAV 379K for which she held the Appellant to be vicariously liable.

3. After full trial, the subordinate court entered judgment in favour of the Respondent against the Appellant as follows:a.Liability 90:10b.General damages Kshs. 600,000/=c.Future Medical Expenses Kshs. 120,000/=d.Special Damages Kshs – 25,709/=Total Kshs. 745,709/=Less 10% Contribution Kshs. (74,571/=)Kshs. 671,138/=

The Appeal 4. Dissatisfied by the said judgment, the Appellant instituted this appeal vide the Memorandum of Appeal dated 14th December 2020. The Appellants contends that the trial court erred in law and fact awarding general damages that was excessively high considering the injuries alleged to have been sustained by Respondent. The Appellant also faults the trial court for making an award of future medical expenses without evidence to substantiate such a claim. Finally, the Appellant contends that the trial court erred by failing to consider its submissions together with the legal authorities supplied therewith. The appellant prays that the Judgment of the trial magistrate be set aside, this court to re-evaluate the medical evidence and make its own assessment of a reasonable and fair amount of damages payable to the respondent. This court to find that the cost of future medical expenses was not proved and dismiss it. That they be awarded costs of the appeal.

5. The appeal was canvassed by way of written submissions.

The Submissions 6. The counsel for the Appellant filed his written submissions on 31st January 2022. It was its submissions that the award of Kshs. 600,000/= as general damages was inordinately high, excessive, and erroneous in the circumstances of the case. It was further its submission that the trial court failed to consider the judicial decisions submitted by the Appellant on quantum.

7. The Appellant relied on the cases of Kipkereb Limited vs. Peterson Ondieki Tai[2016] eKLR and Nelson Njugi Njoki vs. Laurel Investments Ltd [2016] eKLR which awarded Kshs. 30,000/= and Kshs. 60,000/= for soft tissues injuries which the Appellant alleges to be similar to those suffered by the Respondent. The Appellant thus urged this court to set aside the said award and substitute it with an award of Kshs. 100,000/=.

8. Finally, the Appellant submitted that the award of Kshs. 120,000/= for future medical expenses should be reviewed and set aside as the same was not proved. It relied on the case of Zacharia Waweru Thumbi v. Samuel Njoroge Thuku [2006] eKLR to buttress this position.

9. On the other hand, the counsel for the Respondent filed submission on behalf of the Respondent on 3rd March 2022. They submitted that an award of damages is discretionary and that in this case, the award of general damages by the trial court was neither too high or too low to warrant its interference by this court. According to the Respondent, the trial court considered the authorities submitted by the Appellant and found that the suggested awards were inordinately low. The Respondent thus submitted that the trial court exercised its discretion correctly in awarding the Respondent an award that was reasonable in the circumstances.

10. On the issue of the award of future medical expenses, the Respondent submitted that the claim was based on a medical report dated 3rd December 2018 which was submitted as evidence before the trial court by consent of the parties. The Respondent thus submitted that the trial court cannot be faulted for making such an award when the Appellant did not give any evidence to the contrary to show that the same was unwarranted. For these reasons, the Respondent submitted that the appeal should fail.

Issues for determination 11. I have considered the pleadings on record and the respective submissions by the parties. The main issues for determination by this court are:a.Whether the award of Kshs. 600,000 as general damages was excessively high or without any legal justification.b.Whether the award of Kshs. 120,000 as future medical expenses was substantiated by evidence.

Analysis 12. This is a first appeal. The duty of this court as a first appellate court has been expressed in numerous authorities including Gitobu Imanyara & 2 others v Attorney General [2016] eKLR; Peters v Sunday Post Ltd [1958] EA 424; and Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.

13. The common position held in the above authorities is that a first appeal is by way of re-trial. In other words, this court is under the duty to reconsider and re-evaluate the evidence on record and draw its own conclusions. In reconsidering and re-evaluating the evidence, this court must bear in mind and give due allowance to the fact the trial court had the advantage of seeing and hearing the witnesses that testified before it. It is not for this court to review the findings of the trial court simply because it would have reached different results if it were hearing the matter for the first time. [See: Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123]. This court is requested to consider the facts and the law and reach its own independent decision.

14. In this case, the suit in the subordinate court was instituted vide the Plaint dated 21st January 2019. It was founded on a personal injury claim following the road traffic accident described herein above. The Respondent herein was the Plaintiff in the lower court and prayed for judgment against the Appellant herein for:a.General damages for pain, suffering and loss of amenities.b.Future medical expenses at Kshs. 120,000/=.c.Special damages of Kshs. 25,709. d.Costs of the suit.e.Interest on (a) and (b) above at court rates.

15. From the record, liability was apportioned by consent of the parties in the ratio of 90:10 in favour of the Respondent. The Appellant has not disputed the award of special damages by the trial court. What is challenged in this appeal is the award of general damages for pain and suffering and the award of future medical expenses.

16. As correctly submitted by the counsel for the Respondent Mr. Mutuma, the award of damages is a discretionary exercise that can only be disturbed by an appellate court if it is established that the trial court misdirected itself or took into consideration irrelevant facts or omitted to take into consideration facts which it ought to and as a result ended up in a wrong conclusion. The court will also interfere with the award of damages if they are too high or too low as to amount to an erroneous assessment.

17. This principle was enumerated by the court of Appeal in Child Welfare Society of Kenya vs Republic, Ex-parte Child in Focus Kenya & AG & Others [2017] eKLR which cited with approval the decision in Mbogoh & Another vs Shah [1968] EA 93, as follows:“37. Sir Clement De Lestang V-P in Mbogoh & Another Vs Shah [1968] EA 93 stated thus:“I think it is well settled that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should have taken into consideration and in doing so arrived at a wrong conclusion.””See also Kemfro Africa Limited T/A Meru Express Services & Another –v- Lubia & Another (1952-88) KAR 77 Evaluation of the evidence with regard to the determination of liability will not be done in this appeal in view of the consent on liability entered by the parties. What the court needs to evaluate is whether damages awarded were excessive.

18. Guided by the above authority, the question that arises therefore is whether in awarding general damages at Kshs. 600,000/= and future medical expenses at Kshs. 120,000/= the trial magistrate acted on wrong principles or misapprehended the facts or made a wholly erroneous estimate of the damage suffered.

19. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in the case of Southern Engineering Company Ltd v Mutia [1985] eKLR where it was held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question. This is shown by a passage from an English case in the House of Lords to which reference has often been made in this Court… The passage is from Lord Morris’ speech in H West & Son v Shephard, [1964] AC 326 at page 353, and reads as follows:-“The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”… it is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries. No two cases are precisely the same, either in the nature of the injury or in the age, circumstances of, or other conditions relevant to, the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award.”

20. The Court of Appeal in this case also quoted Lord Morris in Jag Singh v Toong Fong Omnibus Co Ltd[1964] 1 WLR 1382, at p 1385 who expressed himself as follows in respect to a court’s duty in assessment of damages;“It need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”

21. Thus, 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 as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR thus:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

22. In this regard, the Court of Appeal in Mbaka Nguru and Another v James George Rakwar [1998] eKLR stated as follows:“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.”

23. In the present case, the Respondent suffered the following injuries as pleaded on the plaint:-a.Blunt and laceration injuries on the face.b.Blunt and abrasion injuries on both upper limbs.A medical report by DR. Denennis Mbaabu states that as a result of these injuries, the respondent sustained multiple scars some of which are prominent. He further states that the plaintiff suffered plain and blood loss. It further states that scars on the left forearm are definitely prominent, unsightly and could be exercised at a cost of Kshs.120,000/-. The respondent did not adduce evidence before the trial magistrate. The medical report confirms that the injuries were treated appropriately, the wounds healed and the respondent had no complaints eight months later.

24. It was the duty of the advocates to guide the trial magistrate by citing relevant cases for consideration so as to arrive at a fair and reasonable award of damages. This has emerged as a good practice in these matters where comparable awards are considered.

Award of General Damages for Pain and Suffering 25. In the case of Kipkebe Limited v Peterson Ondieki Tai [2016] eKLR cited by the Appellant, the injuries sustained by the respondent were itemized as: a) deep cut wound on the left leg; b) chest contusion; and c) bruises on the left shoulder. The court in awarding Kshs. 30,000/= and noted that “…the Respondent failed to prove that he was injured on material day…” in the circumstances, I agree with the trial magistrate that the case does not constitute a persuasive authority in the determination of this case.

26. The Appellant now proposes a revision of the award under this head to Kshs. 100,000/= citing the case of Nelson Njugi Njoki vs. Laurel Investment Limited [2016] eKLR where the court made an award of Kshs. 60,000/= as general damages where a party had suffered soft tissue injuries.

27. On the other hand, the Respondent proposed an award of Kshs. 800,000/= under this head citing the case of Easy Coach Limited v Emily Nyangasi [2017] eKLR where an award of Kshs. 700,000/= was made. In that case, the Respondent suffered facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wounds. The Respondent was examined 4 months after the accident and the doctor noted that she had not fully recovered. In arriving at the Kshs. 700,000/= award, the court considered the injuries sustained and the time taken to fully recover. In this case, the medical report dated 3rd December 2018 indicated that the Respondent did not have any complaints on the day she was being examined. In my view, this case relates to more serious injuries than those suffered by the Respondent herein. By relying on this case the trial magistrate erred as a result of which she made an award which was in-ordinately too high.

28. The Respondent herein was examined on 27th November 2018 by a Dr. Mbaabu. As per the medical report dated 3rd December 2018, the said doctor formed the opinion that the Respondent suffered pain and blood loss from the multiple extensive open wounds she sustained on the head and both forearms. These open wounds healed leaving multiple scars on the respective areas. The report concluded that some of the scars on the Respondent’s left forearm were prominent and unsightly. On this basis, the trial court concluded that the Respondent was left with degloving scars which is an indication of more serious injuries than mere soft tissue injuries.

29. The trial court then relied on the case of Kakuzi Limited v Stephen Njoroge Mungai & Another [2020] eKLR where the injured party was awarded Kshs. 1 million in general damages for sustaining; fracture left radius/ulna, deglocing injury left forearm, degloving injury right wrist joint, degloving injury right knee and deep cut wounds left thigh. In my view, these injuries were more serious than those suffered by the Respondent herein.

30. In addition, Dr. Mbaabu’s report was a second medical report and the injuries indicated therein go beyond those indicated in the initial treatment notes. The Respondent was first treated at P.C.E.A. Chogoria Hospital and the discharge diagnosis indicated soft tissue injuries as per the Discharge Summary Form dated 2nd May 2018. In my view, therefore, trial court erred by fully relying on the second medical report and not considering the initial report. Furthermore, the Respondent was bound by her pleadings as per paragraph 6 of the Plaint dated 21st January 2019, she had pleaded that she suffered soft tissue injuries and not degloving injuries.

31. In the case of Fred Barasa Matayo v Channan Agricultural Contractors [2013] eKLR:“The court reviewed downwards an award of Kshs.250,000/= to Kshs.150,000/= to moderate soft tissue injuries that were expected to heal in eight months’ time.”

32. In Dickson Ndungu v Theresia Otieno & 4 Others {2014} eKLR:“The court reviewed the award of Kshs.250,000/- to Kshs.127,500/= for soft tissue injuries which produced no complains.”

33. Further, in Purity Wambui Muriithi v Highlands Mineral Water Company Ltd[2015] eKLR:“The award of Kshs.700,000/= was reduced to Kshs.150,000/= for injuries to the left elbow, pubic region, lower back and right ankle.”

34. The above authorities are persuasive. What is portrayed is that they tend to show a consensus on awards for similar injuries that is, soft tissue injuries attract similar awards. An award that significantly depart from these judicial opinions is clearly based on erroneous assessment. Considering the injuries suffered by the Respondent, I opine that the Appellant has made out a case to warrant this court to interfere with the award of damages under this head.

Future medical expenses 35. The Court of Appeal in the case of Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated: -“…once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”I, agree with the finding of Matheka J, in the case of Geoffrey Kamuki & Another –vs- RKN (Minor suing through her late father and next friend ZKN [2020] eKLR, where he stated: -“…To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment among other things. It is not always clear at that time of filing the case what these future costs may be. The prognosis could change for the better or for the worse depending on the circumstances. Is it not for the same reason that defendants will often seek second medical opinions in injury-based claims? Where they believe that the plaintiff has healed from their injuries, they do so to influence the ultimate award of general damages for pain and suffering. This happens even when the case is already before court and it may well be in the middle of the trial. A plaintiff such as this one ought not to be denied the award because she did not have a figure in mind. It was pleaded, and if the appellant was disputing it, the right place would have been at the trial. Respondent could have done so by bringing evidence to controvert it…”

36. According to the aforementioned medical report of Dr. Mbaabu, the prominent and unsightly scars on the Respondent’s left forearm could be excised at a cost of Kshs. 120,000/= if surgery is done in a medium cost hospital or nursing home. He proposed that the cost would be as follows:a.Hospital and theatre charges Sh. 40,000/=b.Surgeon’s fees Sh. 40,000/=c.Anaesthetist fees Sh. 20,000/=d.Incidentals Sh. 20,000/=Estimated cost of surgery Sh. 120,000/=

37. Dr. Mbaabu’s report was admitted in evidence without any objection from the Appellant. In her judgment the trial magistrate observed that the appellant did nto dispute this. The appellant cannot at this stage be faulted for doing what she was by law supposed to do where a party’s claim is not opposed. The respondent tendered reasonable evidence to prove the claim for an award of future medical expenses. As such, I opine that the award under his head was correct and does not warrant interference by this court.

Conclusion 38. The upshot of the foregoing is that the present appeal partly succeeds with regard to the award of general damagesI order as follows:1. The Judgment of the trial magistrate on award of general damages is set aside.2. It is substituted with an award of Kshs.150,000/- general damages for pain and suffering.3. The award of Kshs.120,000/- being costs of future medical expenses is upheld.4. The appellant will get half the costs of this appeal and half the costs before the trial court.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF MAY 2022. L.W. GITARIJUDGE