[2022] KEHC 10331 (KLR)

Kensilver Express Limited v Nzangu (Civil Appeal E039 of 2021) [2022] KEHC 10331 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10331 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E039 of 2021

LM Njuguna, J

July 20, 2022

Between

Kensilver Express Limited

Appellant

and

Bernard Ngei Nzangu

Respondent

(Being an appeal from the judgment of Hon. S. Ouko (R.M) in Runyenjes S.R MCC No. 81 of 2017 and delivered on 09. 09. 2021)

Judgment

1. The appellant herein has moved the court vide a memorandum of appeal dated 08. 10. 2021 and has proffered the following grounds:i)That the learned magistrate erred in both law and fact when she awarded a sum of Kshs. 700,000/= as damages for injuries suffered which amount is manifestly excessive and high in the circumstances and connotes an erroneous estimate of the damages suffered.ii)That the learned magistrate erred in fact and in law by failing to follow rules of precedents in awarding general damages.iii)That the learned magistrate erred in both law and in fact for considering irrelevant matters in arriving at the said decision in favour of the respondent as against the appellant.

2. The respondent herein was the plaintiff in SRMCC No. 81 of 2017 in which he sued the appellant vide an amended plaint amended on 19. 11. 2018, in which, he claimed general damages, special damages, future medical expenses, costs of the suit, interest and any other relief the court may deem fit to grant.

3. His cause of action is based on a Road Traffic Accident that occurred on or about 21. 03. 2017 along the Nairobi – Meru Highway when the appellant and/or driver of Motor Vehicle Registration No. KCK 381B drove in a reckless, careless and negligent manner allowing it to collide with MV KAZ 038R as a result of which the respondent was injured hence occasioning him loss and damage.

4. The particulars of negligence, those of injuries and special damages are set out in paragraphs 6 and 8 of the plaint. He prayed for orders as set out in the plaint.

5. In its defence, the appellant listed the particulars of negligence of the respondent and that of the driver of the Motor Vehicle No. KCK 381B in paragraph 5 of the defence and further denied the respondent’s claim for any special or general damages or any other prayers sought in the plaint and instead, urged this court to dismiss the suit with costs.

6. The appellant further denied that the respondent was a passenger aboard Motor Vehicle Registration No. KCK 381B as alleged or that the motor vehicle registration KAZ 038R was driven negligently, recklessly and/or carelessly or that it caused an accident as alleged by the respondent. In the alternative and strictly without prejudice to the foregoing, it averred that if at all an accident occurred, which is denied, then the same was wholly caused and/or majorly contributed to, by the negligence of the respondent and the driver of the motor vehicle registration number KCK 381B.

7. On 07. 11. 2019 the parties entered a consent on liability which was adopted by the court in the ratio of 70:30 in favour of the respondent. Thus the court only made a finding on quantum. In her judgment delivered on 09. 09. 2021, the learned magistrate entered judgment on quantum against the appellant in the sum of Kshs. 700,000/= and the respondent was further awarded the interests at the court rates from date of filing the suit till payment in full plus costs of the suit.

8. The appellant being dissatisfied with the award on damages has appealed to this court vide the memorandum of appeal dated 08. 10. 2021 in which, they have set out the grounds which only challenges the quantum of damages as being excessive.

9. When the appeal came up for hearing, the court directed the parties to file and exchange their submissions but only the appellant complied.

10. The appellant submitted that it was aggrieved by the judgment of the learned trial magistrate on grounds that the quantum was inordinately high. Reliance was had on the case Joseph Kyalo Maundu v Moses Musau and another [2019] eKLR. The appellant submitted that taking into account the injuries and any long term effect envisaged, an amount of Kshs. 400,000/= was reasonable and relied on the cases of Morris Miriti v Nahashon Muruiki & another [2018] eKLR andGeorge Kinyanjui t/a Climax Coaches & another v Hassan Musa Agoi (2016) eKLR. In the end, the appellant urged this court to set aside the finding of the trial magistrate and allow the appeal herein.

11. This being a first appeal, the court is mindful that it is its duty to re-evaluate the evidence adduced before the lower court and, on the basis thereof, come to its own conclusion; bearing in mind, however, that the court did not have the advantage of seeing or hearing the witnesses. In Selle & Another v 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..."

12. The injuries suffered by the respondent as shown by the medical report from Runyenjes Level 4 District Hospital are as follows:i)Ct wound on the right ear.ii)Two rib fractures.iii)Severe chest pain.

13. A second medical report dated 03. 03. 2020 was also produced which confirmed the injuries sustained by the respondent as set out in the medical report from Runyenjes Level 4 District Hospital but opined that in as much as the respondent suffered the injuries, he had healed well with no permanent disability and that he assessed the degree of the injuries as harm.

14. As already indicated, the appeal herein is on quantum of damages and the only issue for determination is whether the learned magistrate used the correct principles in assessing the quantum of damages awarded to the Respondent.

15. The court has perused the two medical reports that were tendered in evidence. It is trite that awarding general damages is at the discretion of the court. In the case of Savana Saw Mills v George Mwale Mudomo[2005] eKLR, the court stated as follows: -I must state from the outset that the award of general damages is a discretion of a trial court and an appellate court will be slow to interfere with such discretion unless the discretion is exercised on wrong principles of law.

16. Similarly, in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete – Kisumu Civil Appeal No. 284 of 2001, the Court of Appeal reiterated its earlier holding in the case of Kemfro v Lubia [1982 – 88] that;It is trite that the assessment of general 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 below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out some relevant one) or misapprehended the evidence and so arrived at a figure so inordinacy high or low as to represent an entirely erroneous estimate”.

17. Notably, it must be understood that money can never compensate a person for the injuries sustained. It is merely an assessment of a sum of money that a court deems to be reasonable in the circumstances to assuage a person who has suffered an injury. However, this assessment must be reflective of the prevailing inflationary trends and is not without limits because a court must be guided by precedents.[See Court of Appeal in Stanley Maore vs Geoffrey Mwenda Nyeri CA No. 147 of 2002].

18. Further, in the case ofKigaraari vs Aya(1982-88) 1 KAR 768 it was held that:-“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”

19. In the case of Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR, the court therein set aside the quantum of Kshs. 650,000/= and replaced the same with a sum of Kshs. 400,000/= general damages where the respondent therein had sustained bruises on the scalp, neck, abdomen, lower back, cut wound on the left thumb, left palm and left foot near the ankle joint, sublaxation of the left shoulder joint and fractures of 3rd and 9th ribs.

20. In the case of Gabriel Kariuki Kigathi & another v Monica Wangui Wangechi [2016] eKLR where the respondent sustained fracture of the neck, bilateral rib fractures, bilateral lung contusion, injuries to both hands, injuries to both legs, the court set aside the award of Kshs. 800,000/= general damages and in its place awarded an amount of Kshs. 400,000/=.

21. In view of the above authorities, the court is of the considered view that a sum of Kshs. 500,000/= is reasonable less 30% contributory negligence.

22. In the end, the judgment of the trial court on general damages in the sum of Kshs. 800,000/= is hereby set aside and in its place, an award of Kshs. 500,000/= is made.

23. Each party to bear its own costs of the appeal.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE........................ for the Appellant........................ for theRespondent