[2022] KEHC 478 (KLR)

Kibue & another v Ngige (Civil Appeal E258 of 2021) [2022] KEHC 478 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 478 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E258 of 2021

JK Sergon, J

May 6, 2022

Between

Simon Kibue

1st Appellant

Ruoho John Mwangi

2nd Appellant

and

Peter Mwangi Ngige

Respondent

(Being an appeal against the judgment and decree delivered by D.W. Mburu (Mr.) (Senior Principal Magistrate) on 16th April, 2021 in Milimani CMCC no. 4288 of 2019)

Judgment

1. The respondent founded a suit against the 1st and 2nd appellants by way of the plaint dated June 13, 2019 and amended on July 7, 2020 and sought for general and special damages, future medical expenses and loss of earnings/earning capacity plus costs of the suit and interest thereon.

2. The respondent pleaded in the amended plaint that sometime on or about the 24th day of May, 2018 while he was driving the motor vehicle registration number KBA 389P (“the first motor vehicle”), the motor vehicle registration number KCD 298B (“the second motor vehicle”) being owned by the 2nd appellant at all material times and being driven by the 1st appellant, lost control and collided with the first motor vehicle, causing the respondent to sustain various injuries which are particularized in the amended plaint.

3. The respondent attributed the accident to negligence on the part of the appellants by setting out the particulars thereof in the amended plaint.

4. Upon service of summons, the appellants entered appearance and filed their statement of defence dated September 26, 2019 jointly to deny the allegations set out in the amended plaint.

5. At the hearing of the suit, the respondent testified and summoned two (2) additional witnesses, while the appellants did not call any witnesses.

6. Upon filing of submissions, the trial court delivered judgment in favour of the respondent and against the appellants in the following manner:Liability 100%a)General damages Kshs.2,000,000/b)Future medical expenses Kshs.4,376,000/c)Loss of earning capacity Kshs.900,000/d)Special damages Kshs.97,462. 50Total Kshs.7,373,462. 50

7. The aforementioned judgment has precipitated the appeal now before this court. To challenge the assessment of damages, the appellants have put forward the following grounds of appeal in their memorandum of appeal dated April 13, 2021:i.THAT the learned trial magistrate grossly misdirected himself in treating the evidence and the submissions on quantum before him and consequently coming to a wrong conclusion on the same.ii.THAT the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on quantum cited in the written submissions presented and filed by the appellants.iii.THAT the learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the respondent, if any, and failed to apply the precedents and tenets of the law applicable.iv.THAT the learned trial magistrate erred in awarding a sum of Kshs.2,000,000/ in respect of pain and suffering and loss of amenities which was inordinately high and in the circumstances, excessive and as such occasioning miscarriage of justice.v.THAT the learned trial magistrate erred in awarding a sum of Kshs.900,000/ in respect of loss of earning capacity which was inordinately high and in the circumstances, excessive and as such occasioning miscarriage of justice.vi.THAT the learned trial magistrate erred in awarding a sum of Kshs.4,376,000/= in respect of cost of future medical expenses which was inordinately high and in the circumstances, excessive and as such occasioning miscarriage of justice.vii.THAT the learned trial magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision that was unsustainable in law.

8. This court directed the parties to file written submissions on the appeal. At the time of writing this judgment, only the submissions by the appellants had been availed for reference.

9. On their part, the appellants submit that the trial court overlooked the principles on awarding damages and further overlooked the authorities cited by the appellants as well as the medical evidence tendered.

10. The appellants further submit that the awards made under the heads of pain, suffering and loss of amenities; cost of future medical expenses; and loss of earning capacity are inordinately high and ought to be interfered with.

11. On damages for pain and suffering and loss of amenities, it is the appellants’ contention that an award of Kshs.800,000/= would suffice and cite the case of Aloise Mwangi Kahari v Martin Muitya & another [2020] eKLR in which the High Court sitting on appeal awarded the plaintiff the sum of Kshs.500,000/= under a similar head for injuries in the nature of a compound fracture and soft tissue injuries. The appellants also cite the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR where a plaintiff who had sustained compound fractures and other soft tissue injuries was awarded the sum of Kshs.400,000/= on appeal, under the same head.

12. The appellants have faulted the trial court for making an award on damages for loss of earning capacity without justification and have drawn the attention of this court to the following decision arrived at by the Court of Appeal in the case of Cecilia W. Mwangi & another v Ruth W. Mwangi [1997] eKLR:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of "loss of earning capacity" can be classified as general damages but these have also to be proved on a balance of probability.”

13. For all the foregoing reasons, the appellants are of the view that the awards made by the trial court under the above heads ought to be interfered with accordingly.

14. I have considered the written submissions by the appellants on appeal and the various authorities cited in support of the same. Moreover, I have considered the evidence which the trial court had the opportunity to look at. It is apparent from the grounds set out in the memorandum of appeal that the appeal relates to quantum.

15. The legal position on this is that the award of a trial court ought only to be interfered with on appeal under the following circumstances as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & another [1976] v Lubia & another (No. 2) [1985] eKLR:a)Where an irrelevant factor was taken into account.b)Where a relevant factor was disregarded.c)Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

16. It is apparent that the appellants are challenging the awards made on general damages, future medical expenses and loss of earnings/loss of earning capacity. I will therefore address the damages under the three (3) heads.

a) General damages for pain and suffering and loss of amenities 17. On the one part, the respondent suggested an award in the sum of Kshs.4,000,000/= under this head and cited the case of Alex Wachira Njagua v Gathuthi Tea Factory & another [2010] eKLR where this court awarded the sum of Kshs.3,000,000/= for blunt injury of the head with a contusion, fracture of the left tibia, fracture of the right fibula, cut wound of the forehead, bruised elbow and bruised knee.

18. On the other part, the appellants proposed a sum of Kshs.800,000/= and relied inter alia, on the case ofCivicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLR where the court assessed the award under a similar head downwards from the sum of Kshs.1,000,000/= to Kshs.450,000/= in the instance of minor fractures for each of the respondents.

19. In making his assessment, the learned trial magistrate in arriving at the sum of Kshs.2,000,000/= drew guidance from various authorities, including the case of Dorcas Wangithi Nderi v Samuel Kiburu Mwaura & another [2015] eKLR where the court upheld an award in the sum of Kshs.2,000,000/= made at the instance of various compound fracture injuries and soft tissue injuries; and the case of Mt. Longonot Medical Services Limited & another v Andason Kitonyo Kinyenze [2017] eKLR in which a plaintiff who had sustained double fractures of the right fibia and also fibula, in addition to facial abrasions and laceration was awarded damages in the sum of Kshs.1,000,000/= under this head.

20. The learned trial magistrate also indicated in his judgment that he had taken into consideration the permanent incapacity assessed between 10% and 22%.

21. Upon my re-examination of the material and evidence, I note that the medical reports dated May 28, 2019 and August 16, 2019 prepared by Doctors G.K. Mwaura and N.H. Bhanji respectively, are consistent with the following injuries pleaded in the amended plaint:a.Fracture of the right thigh bone (femur) and knee jointb.Fracture of the left thigh bone (femur) and knee jointc.Fracture of the left lower leg (tibia and fibula bones)d.Laceration of the right foote.Deep laceration below the left knee joint

22. The first medical report assessed permanent disability at 15% for the left lower limb and 10% for the right lower limb and termed the injuries as grievous harm and soft tissue in nature.

23. Whereas the second medical report referenced above did not indicate any assessment, the same stated that the respondent would unlikely fully recover from his injuries.

24. The appellants tendered a third medical report prepared by Dr. W.M. Wokabi and dated July 29, 2020 confirming the fracture injuries sustained and assessed permanent disability at 10% on the right leg and 22% on the left leg.

25. The medical evidence further indicates that the respondent had metal implants inserted and which would require removal after some time.

26. Upon considering the authorities referenced by the parties, I observed that the one cited by the respondent was decided a few years ago, while those relied upon by the appellants appear to constitute injuries of a less severe nature in comparison to those sustained by the respondent herein.

27. Upon considering the authorities cited by the learned trial magistrate in his ruling, particularly the two (2) fairly recent authorities I have cited above, I find the same to be comparable to the injuries sustained in the present instance.

28. I also considered the case of John Mwangi Munyiri & another v Paul Wachira Njuguna [2020] eKLR where the court awarded the sum of Kshs.900,000/= for injuries in the nature of comminuted compound fracture of the right tibia and fibula with permanent incapacity of between 30% and 50%.

29. Taking the above comparable authorities into account as well as the nature and extent of the injuries sustained, the degree of permanent incapacity and the inflationary trends, I find that while the learned trial magistrate considered comparable authorities, the award arrived at fell on the higher side and ought to be interfered with. In my view, an award of Kshs.1,000,000/= would be reasonable in the circumstances.

b) Future medical expenses 30. On his part, the respondent sought for the total sum of Kshs.4,376,000/= under this head.

31. In his judgment, the learned trial magistrate awarded the aforementioned sum by tabulating it as follows: Kshs.800,000/= for arthrolysis in both knees; Kshs.1,000,000/= for surgery to re-align the deformity of the left lower leg; Kshs.1,000,000/= for surgery for removal of metal implants; Kshs.1,000,000/= for surgical knee replacement and Kshs.576,000/= for physiotherapy being guided by the medical report by Dr. Bhanji.

32. Upon my re-examination of the medical evidence tendered, I observed that a general conclusion was arrived at that the respondent would require further medical treatment. Moreover, Dr. Bhanji provided a detailed breakdown of the medical expenses that would be incurred by the respondent.

33. In view of the foregoing circumstances, I am satisfied that the award made by the learned trial magistrate under this head is supported by the evidence on record and I see no reason to interfere with the same.

c) Loss of earnings/ loss of earning capacity 34. Under this head, the respondent gave evidence that he was a matatu driver at all material times and earning a monthly salary of Kshs.30,000/= though he did not have any documentary proof of earnings.

35. The respondent further submitted that in the absence of proof of earnings, the minimum wage regulations would become applicable. Therein, the respondent urged the trial court to apply a minimum wage for a car driver (Kshs.17,500/=) together with a multiplier of 10 years to be tabulated as follows:Kshs.17,500 x 10 x 12 = Kshs.2,100,000/=

36. The appellants on their part submitted that since the respondent would eventually make a full recovery and would therefore be able to return to gainful employment, he was not entitled to any award under this head.

37. The learned trial magistrate reasoned that the respondent would likely work 6 days per week and earning Kshs.1,000/= per day and therefore adopted a figure of Kshs.15,000/= per month.

38. The learned trial magistrate also estimated that upon undergoing surgery, the respondent would likely have gained full recovery within five (5) years and therefore applied that sum as a multiplier. In turn, the award for loss of earning capacity was tabulated as follows:Kshs. 15,000/ x 5 years x 12 = Kshs.900,000/=

39. Upon my study of the medical evidence, I note that the medical report by Dr. Bhanji indicated that the respondent was unlikely to make a full/complete recovery, while Dr. Wokabi mentioned in his medical report that the respondent would be able to resume his employment as a driver eventually.

40. From the foregoing, it is apparent that there is no indication as to the time it would take for the respondent to return to his usual employment duties. Be that as it may, going by the evidence tendered, it is clear that the respondent’s ability to earn an income would be impeded for some time by the injuries sustained.

41. On the issue of proof of earnings, I associate myself with the following reasoning adopted by the court in the case of Hussein Shariff Ali v Grace Karea Mutia (Suing as the legal representative of the Estate of John Mutua (Deceased)) [2021] eKLR:“This Court agrees with the submissions made by the Respondent that proof of earnings is not limited to production of documents and certificates. See the case of Jacob Ayiga v Simon Obayo (Suing as personal representatives of the Estate of Thomas Ndaya Obayo) [2005] eKLR. To hold otherwise would do injustice to a lot of Kenyans who are illiterate and some of who have no records of their employment.”

42. I am therefore convinced that even in the absence of proof of earnings or employment, the respondent had reasonably demonstrated that he worked as a matatu driver.

43. Concerning the loss of earnings, I concur with the position taken by the appellants that these constitute special damages and therefore ought to be pleaded and proved accordingly. In addition to the authorities cited in the appellants’ submissions on this subject, I am guided by the case of Douglas Kalafa Ombeva v David Ngama[2013] eKLR where the Court of Appeal held that:“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.”

44. That notwithstanding and as earlier noted, the earning capacity of the respondent would be diminished as a result of his injuries.

45. In assessing the same and contrary to the figure applied by the learned trial magistrate, I will apply a multiplicand of Kshs.18,319. 50 being the minimum wage for a car/light van driver pursuant to the Regulation of Wages (General) (Amendment) Order, 2018.

46. On the multiplicand, in the absence of any clear indication as to how long the respondent would take to make a full recovery, I will apply a multiplicand of 5 years similar to that applied by the learned trial magistrate, which I find to be a reasonable estimate. I will also apply an average degree of incapacity of 20% being guided by the assessments made in the medical reports. The same shall be tabulated as follows:Kshs.18,319. 50 x 5 x 12 x 20/100 = Kshs.219,834/=

47. Consequently, the appeal succeeds. The trial court’s award of Kshs.2,000,000/= made under the head of general damages for pain, suffering and loss of amenities is hereby set aside and is substituted with an award of Kshs.1,000,000/=, whereas the award of Kshs.900,000/= for loss of earning capacity/ diminished earning capacity is hereby set aside and is substituted with an award of Kshs.219,834.

48. For the avoidance of doubt, the judgment on appeal is as follows:a.General damages Kshs.1,000,000/=b.Future medical expenses Kshs.4,376,000/=c.Loss of earning capacity Kshs. 219,834/=d.Special damages Kshs. 97,462. 50Total Kshs.5,693,296. 50e.The respondent shall have interest on special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full. In the circumstances, I hereby order that each party bears its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. J. K. SERGONJUDGEIn the presence of:…………………………… for the 1st and 2nd Appellants…………………………… for the Respondent