[2014] KEHC 895 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 193 OF 2012

KENYATTA UNIVERSITY………………………….APPELLANT

VERSUS

ISAAC KARUMBA NYUTHE………..……....…..RESPONDENT

J U D G M E N T

This is an appeal arising from a judgment which was delivered by the Hon. D.G. Karani, Senior Resident Magistrate in Gatundu SRMCC No. 25 of 2011 on 29th March 2012. Isaac Karumba Nyuthe, the respondent herein sued Kenyatta University, the appellant herein for general damages, special damages, costs of the suit and interest following a road traffic accident which occurred on 8th October 2010 along Ruiru – Nairobi road involving the respondent motor cyclist riding motor cycle number KMCC 510 Hadjin and the appellant’s motor vehicle registration number KAY 416V Nissan Bus; and which accident occasioned the respondent serious personal injuries for which he claimed damages; contending that the appellant’s driver, agent or servant then driving and in control of the aforementioned motor vehicle was negligent and was therefore responsible for the accident and the resultant injuries that he sustained.

The appellant filed a statement of defence denying the respondent’s claim that it was in control of the accident motor vehicle and or that it was the registered owner of the motor vehicle registration number KAY 416Y Nissan Bus as alleged by the respondent. It further denied the respondent’s allegations that he was lawfully riding motor cycle number KMCC 510 Hadjin or that it was negligent or responsible for the negligent acts attributed to it or that it was further responsible or at all for the injuries allegedly sustained by the respondent as a result of the pleaded accident.

The appellant further pleaded that if at all the alleged accident occurred as claimed by the respondent, then the respondent was solely or wholly to blame for its occurrence. They blamed the respondent for cycling without due care and attention; cycling on the wrong side of the road; cycling on the lawful path of the motor vehicle registration No. KAY 416V; failing to keep a proper look out; failing to slow down, brake, swerve to avoid the accident; cycling without wearing protective gear; failing to notice the presence of the said motor vehicle; cycling a defective motor cycle, cycling in a zig zag manner; cycling into the said motor vehicle; and cycling while under the influence of alcohol.

The appellant further denied particulars of loss and damage as claimed as well as jurisdiction of the court to hear and determine the suit. During the trial in the lower court, the respondent called three witnesses in support of his case namely; Dr. Jane Ikonya, the respondent himself and police officer PC Ezekiel Ngonde of Ruiru Police Station. The appellant called one witness to testify on their behalf, Mr Makau Mwarata, the driver of the ill fated accident bus.

Briefly, the evidence was that on 8th October 2010 the respondent was cycling motor cycle number KMCC 510A along the Ruiru – Nairobi road near Kenyatta University. He was riding behind a lorry when he saw the appellant’s bus approach from the opposite direction on the wrong side of the road at high speed and it hit him while he was on his correct lane. It was in the morning and the weather was dry. He temporarily lost consciousness and when he came to, he found his leg broken and unable to stand. He was rushed to Kenyatta University dispensary for first aid and later transferred to Kenyatta National Hospital where he was admitted for 2 months. He was treated for the injuries, a metal plate inserted in his fractured leg – right femur and the other injuries involved the head and right knee. He produced a discharge summary from Kenyatta National Hospital and a bundle of receipts for the medical expenses incurred.

Upon discharge the respondent reported the accident to Ruiru police station where he was issued a P3, police abstract report and he was later examined by Dr. Jane Ikonya a private general practitioner at Plainsview Hospital, Ruiru who produced the medical examination report. The P3 showed that he sustained fracture of the right femur and he underwent surgery for internal fixation. The degree of injury was assessed as grievious harm. Dr. Jane Ikonya’s medical examination report revealed the injuries sustained as fracture of right femur, soft tissue injuries to the head and bruises on the right knee. At the time of examination he was in the recovery process with a temporary incapacity of 10-20%.

The internal fixation would require surgery to remove at an estimated Sh. 80,000/-

The discharge summary from Kenyatta National Hospital confirmed a fracture of the right femur and admission from 8th October 2010 to 8th December 2010 with advise for follow up in the fracture clinic. At the time of hearing of the suit in the lower court, the respondent was still using crutches, about one year later.

In his testimony, the respondent blamed the appellant for the accident on account of overspeeding and driving on the wrong side of the road yet visibility was clear. He claimed – that as an electrician he was unable to perform his duties since the accident and the injuries he sustained.

When cross examined, he stated that the appellant’s driver was using a road that had been closed for traffic going to Nairobi. That he was riding downhill at 60 kmph behind a lorry but that he could see the bus as it approached and that when the lorry moved to give way to the oncoming bus, he was hit. He stated that he could not have swerved to avoid the accident but that he applied brakes and hooted. He did not know whether the appellant driver was charged.

The respondent also called PC Ezekiel Ngonde of Ruiru Police Station who confirmed that the accident in question was reported at their station vide OB No. 9th August 2010 and that the driver of the bus was found to blame. He produced the police abstract issued to the respondent as an exhibit. He maintained that the bus driver will be charged although he did not indicate with which specific offence.

The appellant called Makau Mwarala who testified on its behalf that he was the driver of the ill fated accident bus on the material date and time when he was going to pick students from Ruiru and after the flyover as he was joining the highway, he saw an oncoming lorry. He indicated that he was turning right to enter the campus and a motor cyclist overtook the lorry and collided with the bus. He had not seen the motor cyclist previously. He further added that the respondent was overtaking the lorry from the left side which was the wrong side of the road.

The parties closed their respective cases and their advocates were allowed to file written submissions, each urging the court to find in favour of his client.

In his judgment, the trial magistrate found that on liability, and being familiar with the road where the accident occurred, being a one-way traffic, he believed the respondent’s testimony that the bus was being driven on the wrong side of the road, disbelieving the appellant’s testimony that the respondent was overtaking the lorry ahead when he was hit. She found that by driving on the wrong side of the road, DW1 opted to take a short cut which ought not to have happened and that the respondent or any other motorist would not have anticipated any oncoming traffic. He dismissed the defence allegation that the respondent was overtaking the lorry from the left side as the bus should not have been driven in that direction on that road at all in the first instance. He found the appellant 100% liable for the accident.

On quantum, the trial magistrate awarded the respondent Sh. 700,000/- general damages for the injuries he suffered and special damages of Sh. 11,140/- in respect of proven specials, costs and interests.

Being aggrieved by that judgment, the appellant has lodged this appeal citing 8 grounds of appeal namely:

The learned trial magistrate erred in law and fact in failing to appreciate and consider the evidence before him and finding the defendant 100% liable.

The learned trial magistrate erred in law and in failing to appreciate and consider the evidence adduced by the appellant/defendant.

The learned trial magistrate erred in law and fact in finding the defendant 100% liable for causing the accident and in failing to apportion liability between the plaintiff and the defendant.

The learned trial magistrate erred in law and fact in failing to consider the defendant’s submissions and authorities attached thereto wherein the plaintiffs sustained comparable injuries to the respondent herein while assessing general damages.

The learned trial magistrate erred and fact in awarding an amount in general damages at Sh. 700,000/- as the sum was manifestly excessive given the nature of the injuries.

The learned trial magistrate erred in law and fact in awarding special damages which were not specifically pleaded and proven.

The learned trial magistrate erred in law and fact in failing to appreciate that the appellant and or its authorized driver were not to blame for the accident.

The learned trial magistrate’s award was an erroneous estimate of the damages due in the particular case.

The appellant prayed for setting aside of the lower court judgment as entered, and substitute the same with an order dismissing the respondent’s suit and or in the alternative revise the award made and apportion liability. He also prayed for costs of the appeal.

The parties agreed to have the appeal herein disposed of by way of written submissions. The appellant filed theirs on 2nd September 2014 whereas the respondent filed his on 24th September 2014 which submissions were exchanged between the respective parties’ advocates.

The gist of the contentions by learned counsel for the appellant Ms S.M. Chege & Co advocates, was that the learned trial magistrate’s findings were contrary to the evidence on record and that he was in error in believing the respondent’s evidence on how the accident occurred and in dismissing the appellant’s witness’ evidence which was not controverted on how the accident occurred; which failure influenced him to find for the respondent on liability as against the appellant at 100% when it was clear that the appellant’s unrebutted evidence showed the respondent was to blame for the accident for overtaking the lorry on the wrong side.

In addition, the appellant’s counsel faulted the learned trial magistrate for failing to make reference to their written submissions and in awarding damages of Sh. 700,000/- that were not commensurate with the injuries sustained by the respondent as compared to those injuries sustained in the authorities supplied by both parties.

On the other hand, the respondent’s advocates M/s Shem Kebongo & Co Advocates supported the decision of the Subordinate Court on the basis that the evidence of the respondent and his witness the police officer proved on a balance of probability that the appellant’s driver was to blame for the accident; the trial magistrate having taken judicial notice of the rules of the road and his personal knowledge of the scene of accident being a one way traffic, as such, the bus driver ought not to have been driving on that side of the road. He cited Section 60 of the Evidence Act. He also supported the quantum as awarded both on general and special damages on account that comparing similar authorities, the award of Sh. 700,000/- was not inordinately and unjustifiably high.

Both sides relied on several authorities in support of their submissions on quantum but none was availed on liability, and I have considered all the authorities.

My first duty as an appellate court is to revisit the evidence on record, evaluate it and reach my own conclusion in the matter, as espoused in Section 78 of the civil Procedure Act. I nevertheless appreciate that as an appellate court I will not ordinarily interfere with the findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the court is shown demonstrably to have acted on wrong principles in reaching the findings in question. This was the principle espoused in many cases including that of Mwanasokoni – Vs – Kenya Bus Services Ltd [1985] KLR 931. The same was also upheld in Hahn – Vs – Singh [1985] KLR 716 that where in particular there is a conflict of primary facts between witnesses and where the credibility of the witnesses is crucial, the appellate court will hardly interfere with the conclusion made by the trial Judge after weighing the credibility of the witnesses.

And in my evaluation and consideration of the evidence on record and the applicable law, I must give an allowance, in my own conclusion, of the fact that I neither saw nor heard the witnesses.

However, this court is not bound to follow the trial court’s findings of fact if it appears that either it failed to take into account particular circumstances or probabilities or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.

From my above analysis of the pleadings, evidence both orally and documentary as well as written submissions both in the lower court and in the appeal herein, two issues for determination become apparent namely:-

Who was to blame for the accident subject matter of this appeal.

How much general damages would the respondent be entitled to upon determination of issue number one.

On Liability

From the onset, the determination of liability in road traffic accident cases is not a scientific affair as acknowledged by Lord Reid’s graphic presentation in Stapley – Vs – Gypsum Mines Ltd (2) (1953) A.C. 663 P. 681 and as cited with approval by the Court of Appeal in Michael Hubert Koss & Another – Vs – David Seroney & 5 Others (2009) eKLR that

“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it …

The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those fauls which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

I have carefully examined the evidence on record in relation to liability and it is clear in my mind that there was sufficiently high degree of probability that, but for the acts of omission and commission by the respective road users – the appellant’s driver and the respondent motor cyclist; the accident herein would have been avoided.

The appellant has urged the court to find that the bus driver was not 100% liable for the accident and to fault the trial magistrate’s findings based on “scanty” evidence adduced by the respondents on account of the trial Magistrate’s own knowledge of the said road; and that there was no proof that the appellant’s driver was on the wrong side of the road at the material time of the accident.

It is important to note that there was no independent eye witness to this accident, which was a collision along Ruiru – Nairobi road. The police officer who testified on behalf of the respondent was not an investigating officer and only confirmed that the material accident was reported to the police. He did not state that the police visited the scene of accident and drew any sketch plans of the scene and neither did he prove who was to blame for the accident. His testimony that the appellant’s driver was to blame for the accident and that he was due to be charged one year later was totally unsupported as he did not even state what offence the said driver was responsible for. The police abstract only shows that the case was pending under investigations.

On the other hand, the learned trial magistrate in believing the respondent that the appellant’s driver was to blame for the accident because he was driving on the wrong side of the road and that being familiar with that road himself, he was aware that it was a one way traffic and therefore the appellant driver ought not to have been diving on the said road in that direction as he was using a short cut which was a wrong cut has been faulted by the appellant.

My careful examination of the above finding by the learned magistrate is that he was simply stating the rule of the road and not descending into the arena of the dispute and therefore he was not clouded by the dust of the dispute. It should be noted that that piece of evidence as adduced by the respondent was not shaken at all during cross examination, that the respondent driver was driving - on the wrong side of the road. In defence, the said driver did not deny that fact as testified by the respondent motor cyclist that he was driving on the wrong side of the road. He simply stated that the lorry gave him way and as he was turning, the respondent whom he had not seen previously overtook the lorry ahead and was knocked. The bus driver further did not state that traffic had been allowed to go the opposite direction following the ongoing construction that the respondent alluded to in cross-examination.

Counsel for the appellant submitted that “Thika Road was still under construction meaning it was constantly changing and drivers allowed to use roads they normally would not.” And that “the respondent was not keeping a proper look out which is expected since he was a novice motor cycle rider.”

With due respect, to the learned counsel, his submission amounts to adducing evidence of fact which is not permitted. Nothing would have prevented the appellant driver from testifying on these facts which counsel was introducing in submissions. The bus driver did not refer to the issue of the road being closed or drivers being allowed to go into the wrong direction.

In civil cases like the one before me, the standard of proving who was to blame for the accident is that of on a balance of probabilities. And the burden of proving that standard is upon the party who alleges as espoused in Section 107 of the Evidence Act Cap 80 Laws of Kenya that:

“whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

Counsel for the appellant submitted that the evidence adduced by the respondent was not enough to show that the appellant’s driver was wholly to blame for the accident at 100% and that therefore the learned trial magistrate’s finding on liability was erroneous. He also submitted that the evidence as adduced was scanty. But there was no submission on what level of contribution the appellant or respondent should bear in the circumstances.

As I have stated above, there was no independent eye witness to this accident and therefore it is the respondent’s word against the appellant’s driver’s word on how the accident took place, that the court must assess and determine who was to blame, on a balance of probabilities. And on whether the respondent adduced enough evidence to demonstrate that it was the appellant’s driver to blame for the accident, this court takes refuge in the provisions of Section 107 and 108 of the Evidence Act that he who alleges must prove the fact which is alleged.

In Muthuku – Vs – Kenya Cargo Services Ltd (1991) KLR 464, the court observed that

“… in my view, it was for the appellant to prove, of course upon a balance of probabilities, one of the forms of negligence as was alleged in the plaint. Our law has not yet reached the stage of liability without fault…”

The respondent in his pleadings before the lower court pleaded particulars of negligence against the appellant among others:

Driving motor vehicle registration No. KAY 416Y Nissan Bus in a careless manner.

Driving an excessive speed in the circumstances of the road.

Failure to slow down, brake, swerve or act in any other reasonable manner to avoid the said accident.

Failure to keep a proper look out to other road users or at all.

...

…

… driving on the wrong side of the road.

… failure to take regard of other road users

…

…

Driving without due care and attention.

The respondent also relied on the doctrine of Res ipsa loquitor, the provisions of the Traffic Act and the High Way Code.

The appellant on the other hand alleged the respondent was to blame for the accident as he was overtaking the lorry from the left side of the road hence ramming into the appellant’s vehicle. As stated earlier, no sketch plan or eye witness testified to this accident. However, the testimony of the respondent that the appellant’s driver was driving on the wrong side of the road on a one way traffic road as observed by the trial magistrate was not rebutted.

In addition, it was not shown by the appellant’s driver that the road had been opened for him and other motorists to use and go in the wrong direction thereby warning the would be lawful users of that road that notwithstanding it being one way, vehicles were allowed to come from the opposite direction into that road. If that were the case, nothing stopped the appellant’s driver from testifying to that effect.

On the other hand, the respondent testified that he saw the appellant’s driver come from the wrong direction at high speed, the lorry ahead of him (the respondent) gave way and the appellant’s driver knocked the respondent.

The appellant’s driver testified in addition that the respondent was overtaking the lorry from the left side of the road when he was knocked. Be as it may, the trial magistrate clearly stated that from the evidence adduced and his own knowledge of that part of the road, the appellant’s driver was to blame as he was not, in the first place expected to use that part of the road and therefore no motorist would have expected to encounter him going the wrong direction. The appellant’s driver evidence that the respondent was hit when he was overtaking the lorry which had slowed down from the wrong side of the road, was also not rebutted, in as much no two wrongs make one right, the trial magistrate chose to believe the respondent’s testimony without referring to this part of the evidence which was not rebutted by the respondents, and the fact that the respondent saw the appellant’s driver before the accident, coming from the opposite direction, and him being behind a lorry, yet he does not state what evasive action he took to avoid being hit. He does not state that he was hit suddenly, or that the appellant’s driver lost control of the motor vehicle and hit him. Therefore, in as much as the appellant’s driver was driving on the wrong side of the road, the road was clear, with two lanes and the weather was clear too. There was nothing obstructive and from the record it is clear that the respondent saw the appellant’s driver ahead of the lorry which was ahead of him.

I am inclined to believe the appellant’s driver’s version that the accident occurred when the respondent was overtaking the lorry from the wrong side and the respondent, most probably, did not see the oncoming bus that is why he could not take an evasive action as he did not expect a motor vehicle to come from the opposite side of a one way traffic road. I also believe the respondent’s evidence that the appellant’s driver emerged from the wrong side of the road hence the accident in question. Although the appellant submits that the said driver was not charged with any offence despite the police officer testifying that he would be charged one year later, I believe that this being a civil case, the standard of proof is not equivalent to that required in criminal cases and therefore whether or not the bus driver should have been charged with a traffic offence related to driving on the wrong side of the road, was in the discretion of the police, having regard to the circumstances of the case.

In my findings as above, I am cautious and relying on the case of Yusuf Haji – Vs – Elisha Ambani CA 118/1998 (UR) that the finding of a trial court as to the degrees of blame to be attributed to two more torts involve an individual choice or discretion and should not be interfered with on appeal except in very exceptional circumstances.

I am also aware of the decision in the case of Karanja – Vs – Malele (1983) KLR 142 and Berkeley Steward Ltd, David Coltel & Jean Susan Colten - Vs – Lewis Kimani Waiyaki [1982-88] 1KAR 101-108 that where there is no crucial evidence on who was to blame between the two parties, both should be held equally to blame.

However, the distinction I draw in this case from the Berkeley Steward case is that is not disputed that the appellant’s driver drove on the wrong side of the road without being authorized or directed by any traffic sign or officer to do so, and neither is it controverted that the respondent overtook the lorry from the wrong (left) side of the road. In the circumstances, they endangered each other’s lives and the lives of other road users who would ordinarily be expected to use that road. However, having found that that was the case, and having believed the said driver’s testimony which the trial magistrate did not refer to, that the respondent too had his share of blame as he was overtaking the lorry from the wrong side of the road and therefore failed to take care of his own safety, I find the respondent too had a duty of care to his own safety and by overtaking the lorry on the wrong side of the road, failed to pay regard to his own safety.

As I have stated above, I have cautioned myself that as an appellate court, I should hesitate to interfere with the findings of fact or the exercise of the trial magistrate’s discretion in apportioning or assessing blameworthiness. Nonetheless, I find that the trial magistrate failed to properly assess the evidence which was before him, and the determination he made that because the appellant’s driver was driving on the wrong side of the road, and the magistrate’s own knowledge of the road clouded his ability to determine whether, in the circumstances of this case the respondent had a share of the blame. I therefore come to the conclusion that it is necessary to interfere with the finding of the trial magistrate that the appellant’s driver was wholly to blame for the accident involving the respondent.

Apportionment of Liability

Having come to that conclusion in relation to liability, it is clear to my mind that there was a sufficiently high degree of probability but, for the acts of omission and commission by both the respondent and the appellant’s driver, the accident herein could have been prevented, the next question is what is the extent of contributory negligence to be apportioned to each of them. This court is not in a position to assess the demeanour of the parties and witnesses who testified before the trial magistrate and I give an allowance for that, and largely rely on recorded evidence since the credibility of the respondent and the appellant’s driver did not arise. The respondent testified that he was riding at 60 kmph. On the other hand, the question of the appellant’s driver’s estimated speed did not arise. He only stated that he had indicated that he was turning right to enter Ruiru campus when the motor cycle rider respondent while overtaking the lorry ahead of him collided with the bus and that the point of impact was on the road. Neither side’s evidence suggests that the respondent’s or appellant’s driver’s speed was excessive in the circumstances. The respondent however testified that he applied brakes and hooted and that the appellant’s driver came at high speed, without indicating what that high speed was, yet he did not escape the accident as there is no evidence of him taking an evasive action, if he had seen the appellant’s vehicle at a considerable distance on his side of the road and ahead of the lorry and as visibility was clear, and having seen the lorry ahead of him move to give way to the oncoming bus.

I would, in the circumstances, apportion liability at 80% and 20% against the appellant’s driver and the respondent respectively.

Quantum of Damages

The second issue for determination in this appeal is on quantum of damages payable to the respondent.

The grounds of appeal relating to quantum of damages are grounds number 4, 5, 6 and 8 of the memorandum of appeal. In summary, the appellant’s contention is that the trial magistrate erred in law and in fact in awarding the respondent damages that were either not pleaded and proved, in the case of special damages and or excessively inordinate general damages which estimate was erroneous in the circumstances of the case.

In awarding the respondent Sh. 700,000/- general damages for pain, suffering and loss of amenities, the trial magistrate relied on the respondent’s testimony in court that he sustained a fracture of the right femur, soft tissue injuries to the head and bruises to the right knee which injuries were confirmed by the medical report produced by Dr. Jane Ikonya and the discharge summary. Dr. Ikonya estimated permanent incapacity at 10-20% and that at the time of the hearing the respondent had not fully healed as shown by the fact that he was still on crutches one year since the accident in the trial magistrate’s view, this by itself showed that the injuries sustained by the respondent were serious. He also took into account the cited authorities, the fact that the respondent had spent over two months in hospital, a time lapse since the cited authorities were decided and inflationary trends.

The respondent supports the award herein as being reasonable compensation.

As has been held severally, the assessment of quantum of damages is a matter for the discretion of the individual trial magistrate or judge so long as that discretion is exercised judicially and with regard to the general conditions prevailing in the country generally, and to previous comparable and relevant decisions. In order for an appellate court to interfere, therefore, it has to be demonstrated that the award was inordinately high as to represent an entirely erroneous estimate of the compensation to which the respondent was entitled. (See Southern Engineering Co. Ltd – Vs – Mutia [1985] KLR 730).

I have carefully examined the record on the general damages awarded by the trial magistrate for the injuries sustained by the respondent which, according to the pleadings, testimony and medical report are as follows:

1) Fracture of the right femur

2) Soft tissue injuries to the head

3) Bruises on the right knee

The P3 form only records fracture of the right femur. Similarly, the discharge summary from Kenyatta National Hospital only records the fracture of right femur injury sustained besides the surgery and internal fixation that was done. The injury was classified as grievous harm. The appellant/defendant’s counsel in the lower court proposed a sum of Sh. 150,000/- relying on the authorities of NRB HCC 265/2004 Kinyanjui Wanyoike – Vs – Jonathan Muturi Choga (authority attached) wherein the plaintiff sustained injuries involving

a) Fracture of the right femur

b) Dislocation of the right ankle

c) Soft tissue injuries

The court awarded him Sh. 100,000/- general damages on 9th December 2004.

In HCC 2118/92 NRB Peter M’Thirigi – Vs – James G. Wachura where the plaintiff sustained:

a) Fracture of the right femur and the thigh was unable to unite at the fracture site after 4 weeks, a plate and screws were then fixed on the fractured femur and plaster pains applied for 3 months.

b) Bruises on the chest and shoulders and the plaintiff was on crutches for 4 years and had been hospitalized before then for more weeks, which case was decided on 19th May 1999, the court awarded him Sh. 150,000/- general damages for pain, suffering and loss of amenities.

The respondent’s advocates submitted for a sum of Sh. 800,000/- general damages relying on the authority of NKR HCC 86/98 Rosemary Bulinda – Vs – Peter Kinyanjui Gakumu & Others, Muga Apondi J decided on 22nd October 2003. In that authority, the plaintiff suffered the following injuries

a) Comminuted fracture of the right femur

b) Cut wound on the right leg 7cm x 3cm

c) Cut wound on the leg 14cm x 3cm and the plaintiff lost her job.

The Judge awarded her general damages to the tune of Sh. 650,000/-

On appeal herein, the appellant submitted that an award of Sh. 250,000/- would be adequate compensation for the respondent, relying on the authority of James Makahi Maina – Vs – M.A. Bayusuf & Sons Ltd [2013] eKLR where the plaintiff suffered fracture of the neck and middle 1/3 of his right femur, hospitalized for 2 months, suffered shortening of his leg by ½ cm. The Court of Appeal awarded him Sh. 450,000/- general damages.

He also submitted the cases of Kimilimi Hauliers – Vs – Samuel Kangongo [2011] eKLRwhere the respondent sustained fracture to the distal end of his left femur at the knee joint, a dislocation of the left ankle and other blunt injuries and was hospitalized for 3 months. As a result, he was left with a shortened left leg and a deformed left ankle and required total knew replacement with permanent incapacity assessed at 40%. The Court of Appeal upheld the High Court’s award of Sh. 600,000/- general damages for pain, suffering and loss of amenities.

He submitted that the injuries sustained by the plaintiffs in the above cited authorities were more serious than the ones sustained by the respondent herein and hence, there was no justification in the lower court awarding him Sh. 700,000/- which he considers inordinately high and an erroneous estimate.

The respondent in urging this court to uphold the award of the lower court urged the court to consider the principles laid down in Butt – Vs – Khan (1977) 1KAR Law JA that

“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and arrived at a figure which was either inordinately high or low.”

He relied on the cases of Rosemary Bulinda – Vs – Peter Kinyanjui Gakumu & 5 Others NKRU HCC 86/98 (Supra) and Phillip Kipkemboi Ngeno – Vs – Modern Constructors Ltd Kisii HCC 47/99 wherein the plaintiff sustained injuries as follows:

a) Head injuries – not specified

b) Unconscious for 2 days

c) Fracture of femur

d) Loss of 1 tooth

e) Loss teeth

Hospitalized for 1½ months and as at 2004 when judgment was delivered the injuries were healed with no permanent incapacity, relying on Mukesh Parmer & Another – Vs – Kenya Transporters NRB HCC 861/91 where the plaintiff was in a coma for 2 months but no other injuries disclosed. The Judge – Kaburu Bauni J awarded Sh. 600,000/-.

I have considered all the rival submissions by counsels for and against the award of Sh. 700,000/- in favour of the respondent by the learned Magistrate. I have also considered the principles laid down in various authorities on interference of the award of damages by an appellate court, having regard to the fact that in awarding damages, the trial judge exercises judicial discretion.

It is clear from the authorities cited by the respondent both in the lower court and in the appeal herein that the injuries sustained by claimants in those cases were much more serious with the only commonality being fracture of the right femur. On the other hand, I find the authorities submitted by the counsel for the appellant more relevant and comparable to the injuries sustained by the respondent herein. The trial magistrate had this to say

“Both have cited decided cases which I find to be relevant to the instant case.”

In other words, she had considered the respondent’s injuries with those comparable injuries in the cited authorities. However, as I have stated, had the trial magistrate analyzed and compared the two rival submissions on the specific injuries sustained by each of the plaintiffs in the cited cases, he would have found that indeed the only common factor in the different authorities was the fracture of the femur.

In my view, he fell in error by awarding Sh. 700,000/- general damages to the respondent, whose injuries were not as serious as those contained in the cases cited by the respondent’s advocate.

I have analyzed those authorities and having cautioned myself of the limits the law places on the appellate court on matters of interference with the discretionary powers of the trial court in making awards, and even after taking into account inflationary trends in Kenya and the degree of permanent incapacity.

I find that the award of Sh. 700,000/- for a fracture of femur, soft tissue injuries on the head and bruises on the knee was inordinately high and an erroneous estimate of damages. I therefore interfere with the said award and set it aside. In so doing, I pay regard to the range of limits of current thought, and remembering that in this sphere there are inevitable differences of thought and view, not because the award by the trial magistrate does not correspond with the figure of my own assessment, but because it is not commensurate with the injuries sustained and comparable awards made at that time.

Based on the authority of James Mukathi Maria – Vs – M.A. Bayusuf & Sons Ltd [2013] eKLR (CA) where general damages for Sh. 480,000 were awarded for fracture of femur and hospitalization for 2 months with shortening of his leg by ½ cm hence reduced to walk with a limping gait and bearing in mind the fact that the above authority is very recent, although the injuries sustained by the plaintiff therein were much more serious, I award the respondent Sh. 350,000/- general damages for pain, suffering and loss of amenities.

As for special damages, the respondent pleaded as follows in his plaint:

a) Medical report Sh. 3,000/-

b) Police abstract Sh. 200/-

c) Motor vehicle search Sh. 500/-

d) Medical expenses Sh. 2,140/-

In the summarized prayers for general damages he pleaded for:

a) …

b) Special damages: Sh. 5,840

The trial Magistrate awarded the respondent Sh. 11,140 on account of proven special damages.

The law regarding special damages is that not only must they be specifically pleaded but that they must also be strictly proved to attract an award as was held in CA 154/92 (UR) Charles Sande – Vs – Kenya Co-operative Creameries Ltd.

The trial Magistrate therefore fell in error in awarding to the respondent unpleaded doctor’s attendance fees of Sh. 6,000/- as parties are bound by their pleadings. Furthermore, the Sh. 6,000/- could only be claimed as part of the costs of the suit at an appropriate time.

Accordingly, I disallow it and set aside the award thereof by the trial magistrate. The respondent proved the following special damages as pleaded:

a) Medical report Sh. 3000/-

b) Copy of records search Sh. 500/-

Total Sh. 3,500/- which I accordingly award the respondent.

The bundle of receipts from Kenyatta National Hospital for Sh. 64,410/- were not pleaded. The trial Magistrate correctly disallowed the claim for future medical expenses as it was not pleaded.

In the result, I allow the appellant appeal as follows:-

On liability:

I apportion liability at 80% to the ratio of 20% against the appellant’s driver and the respondent respectively.

On Quantum.

a) General damages: Sh. 350,000/- less 20% contribution.

b) Special damages represent what a party has actually expended for services rendered. I award Sh. 3500/- as pleaded and proved not subject to contribution.

c) Costs of the lower court are awarded to the respondent.

d) Each party shall bear their own costs of this appeal.

I further order that the decretal sum plus costs of the lower court as deposited in counsels’ joint interest earning account shall be released to the parties hereto as awarded and in the appropriate proportions to wit:-

To the plaintiff/respondent shall be paid the sum of Sh. 350,000/- as general damages less 20% contribution plus Sh. 3500/- special damages and costs as taxed

Dated, signed and delivered at Nairobi this 13th Day of November, 2014.

R.E. ABURILI

JUDGE