[2023] KEHC 24796 (KLR)

Kenya Power & Lighting Company Ltd v Mariku (Civil Appeal E002 of 2021) [2023] KEHC 24796 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24796 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E002 of 2021

LM Njuguna, J

November 3, 2023

Between

Kenya Power & Lighting Company Ltd

Appellant

and

Jennifer Wamwirua Mariku

Respondent

(Appeal arising from the decision of Hon. G.M. Mutiso in Senior Principal Magistrate’s Court at Wang’uru Civil Suit No. 89 of 2018 delivered on 01st December 2020)

Judgment

1. Before me for determination, is a memorandum of appeal dated 06th January 2021, through which the appellant prays that the appeal be allowed, the trial court’s award of general damages be set aside and reduced, cost of the appeal alongside any other orders the court shall deem fit to issue. The appeal is premised on the grounds that the learned magistrate erred in law and fact by awarding excessive damages in comparison to the injuries sustained, and that the trial court reached an erroneous decision by failing to consider the defendant/appellant’s submissions at trial.

2. The brief facts of the case are that vide plaint dated 05th June 2018, the plaintiff/respondent claimed special and general damages and costs of the suit against the defendant/appellant for negligence. The particulars of the negligence were that on or about 16th September 2017 the plaintiff was walking home from Kandongu Shopping Center within Mwea Sub-county in Kirinyaga County when she was electrocuted by live wires which were loosely dangling between two electricity supply poles along Mbari-Kandongu road, as a consequence of which she sustained serious bodily injuries. The Plaintiff/ respondent blames the defendant/ appellant for negligence or breach of statutory duty of care leading to her injuries. Particulars of the injuries were:i.Superficial burns to the left upper limbs;ii.Left upper limb neuritis; andiii.Soft tissue injuries.

3. In its defense, the defendant/appellant stated that the plaintiff was negligent by failing to be watchful of the hanging wires and thereby endangering her life and failing to take reasonable action to avoid the accident. They termed the suit as bad in law and fatally defective.

4. The parties consented to a liability ratio of 80:20 in favour of the plaintiff/respondent. The court considered the evidence adduced and arguments made by the opposing sides and awarded general damages for pain and suffering of Kshs. 600,000/=, special damages of Kshs. 72,700/= with interest and costs of the suit. Considering the liability ratio, the award was Kshs. 538,160/=. The defendant/appellant seeks appeal only on the general damages awarded.

5. The court directed that this appeal be canvassed by way of written submissions. Both parties filed their written submissions.

6. The appellant, in its written submissions, urged the court to exercise its appellate jurisdiction by re-evaluating the evidence adduced and make its own findings as was stated in the case of Selle & Another Vs. Associated Motor Boat Co. Ltd & Others (1968) EA 123. It was their case that the appellate court must only disturb the award of damages if the same was inordinately high or low. That in this case, the court should review it as it was too high. For this, they cited the case of Bashir Ahmed Butt Vs Uwais Ahmed Khan [1982-88] KAR 5. That the plaintiff/ respondent had been examined by two doctors. Dr. Kane stated that the plaintiff had 2% permanent incapacity while Dr. Wambugu stated that the plaintiff had made a full recovery and did not need any future treatment. That the trial court was guided by the case of Mary Wairimu Njuguna Vs Kenya Power & Lighting Company Limited (2018) eKLR which was only meant to be a guide for the court’s discretion as was stated in the case of Denshire Muteti Wambua Vs. Kenya Power and Lighting Co. Ltd (2013) eKLR. They stated that the court ought to have awarded a much lesser award in comparison with similar cases where the plaintiffs suffered soft tissue injuries as the trial court had established. Reliance was placed on the cases of Paul Kuria Wamae Vs. Caroline Muthoni Kabae (2015) eKLR, Eastern Produce (K) Limited Vs. Joseph mamboleo Khamadi (2015) eKLR and Godwine Ekesa Okello Vs. Paramount Engineering (2005) Limited (2020) eKLR. That an award of general damages in the range of Kshs. 60,000/= to Kshs. 100,000/= would suffice.

7. The plaintiff/respondent submitted that the damages were commensurate with the injuries, which were not just soft tissue injuries but also nerve damage to a certain extent. That the case of Mary Wairimu Njuguna Vs Kenya Power & Lighting Company Limited (2018) eKLR (supra) was a good authority as was properly relied upon by the trial court in making its findings. That the other cases relied upon by the defendant/appellants were relating to different injuries and so could not properly guide the court in its decision. She urged the court to uphold the decision of the trial court.

8. In my view, the issue for determination herein is whether the damages awarded by the trial court was excessive given the circumstances of the case.

9. In determining this issue, I shall re-evaluate the evidence placed before the trial court as was stated in the case of Okeno Vs. Republic (1972) EA 32 wherein the court held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

10. There are two medical examination reports; one by Dr. Kane dated 25th January 2018 and another by Dr. Wambugu dated 06th November 2019. The former stated that the plaintiff/respondent suffered soft tissue injuries and left upper limb neuritis which will cause 2% permanent disability. While the latter report opined that the burns had healed relatively well and that the plaintiff/respondent would only suffer psychological trauma. The medical examination report (P3) from Kimbimbi Hospital where the plaintiff/respondent was first treated, indicated that she suffered superficial 2nd degree burns on the upper limbs caused by electrocution.

11. The court relied on the case of Mary Wairimu Njuguna Vs Kenya Power & Lighting Company Limited (2018) eKLR (supra) where the plaintiff had suffered electric shock, electric burns, blisters, conjunctivitis, kidney shutdown, nerve damage and awarded Kshs. 800,000/= which was upheld on appeal. The trial court in the instant matter concluded that there was no permanent disability eminent and found that the injuries were only categorized as soft tissue injuries. Going by this conclusion, I do find that the award of general damages is inordinately high as the nature of injuries in the case compared to those in the case of Mary Wairimu Njuguna Vs Kenya Power & Lighting Company Limited (2018) eKLR (supra) are less severe.

12. In the similar case of Daniel Gatana Ndungu & another Vs Harrison Angore Katana [2020] eKLR the court reduced the award of general damages for soft tissue injuries from Kshs. 350,000/= to Kshs. 140,000/= and was guided by the following cases:a.Fred Barasa Matayo Vs 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.”b.In Dickson Ndungu Vs 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.”

13. This court is alive to the fact that no amount of money can compensate the injuries and pain suffered by the plaintiff/respondent. These were the sentiments of the court in the case of H. West & Son Ltd -Vs-Shepherd (1964) AC. 326 in which Lord Morris of Borth-y-Gest stated as follows;“... but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. ln the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

14. However, this court is obligated to serve justice and so it endevours to do. Therefore, having considered the submissions, pleadings, and the relevant caselaw, I find that the award of general damages is inordinately high. The appeal herein succeeds and I hereby make orders as follows:a.The trial court’s award of general damages for pain and suffering is hereby set aside and substituted with an award of Kshs. 300,000/=. The same shall attract interest from the date of the judgment of the trial court.b.Each party to bear its own costs of the appeal.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………………………for the Appellant……………………………………………for the Respondent