[2023] KEHC 25165 (KLR)

Kilungu v Mungathia (Civil Appeal E025 of 2020) [2023] KEHC 25165 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25165 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E025 of 2020

LW Gitari, J

November 2, 2023

Between

Peter Mugambi Kilungu

Appellant

and

Jadiel Mungathia

Respondent

Judgment

1. The dispute herein arose out of road traffic accident. Before this court is an appeal from the Judgment in Maua CMCC No. 180 of 2019 delivered on 29th October, 2020. The said judgment was issued in the favour of the Respondent herein as against the Appellant in the following terms:a.Liability at 100% in favour of the Respondent against the Appellantb.General damages – Kshs. 500,000/=c.Special Damages – Kshs. 11,000/=Net Award - Kshs. 511,000/=d.Cost of the suit.

2. The Respondent at the trial court contended that on or about 17th December, 2018, he a lawfully driving and adhering to all traffic rules on motor cycle registration number KMCV 689V along Maua-Meru road at Farm Area when the Appellant so carelessly and negligently drove motor vehicle registration no. KAQ 295N Toyota Hiace that he caused the same to hit and knock the Respondent down occasioning him grievous bodily injury. The respondent filed the said civil suit based on negligence on the part of the appellant. At the conclusion of the trial, the trial magistrate awarded the defendant damages as stated above.

3. Aggrieved by the decision of the trial court, the Appellant raised 7 grounds of appeal challenging the aforesaid award, these are:a.That the learned magistrate in law misdirected himself when he failed to consider the applicants submissions on both points of law and facts.b.That the learned magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.c.That the learned magistrate erred in law and misdirected himself when he failed to consider the provisions set out in the Insurance (Motor Vehicle Third Party Risks) Amendment Act, 2013, CAP 405. d.That the learned magistrate erred in law and facts in finding the Defendants/Appellants 100% liable in view of the evidence produced before the trial court and in particular the following:i.That the plaintiff failed to prove his case on liability against the Defendantse.That the learned magistrate having misapprehended and misunderstood the extent and severity of the injuries erred in law and fact in relying on authorities which were irrelevant and thus arrived at an award that is so manifestly high as to be erroneous.f.That the learned magistrate erred in assessing an award, hereunder, which was inordinately high and wholly erroneous estimate of loss and damages suffered by the plaintiff.i.General damages – 500,000/=g.That the learned magistrate erred in awarding an excessive sum for the soft tissue injuries suffered in the face of the evidence adduced and submissions made by the Appellant’s counsel on liability and quantum.

4. The Appellant thus prayed for the orders that:a.This appeal be allowed.b.The entire judgment of the Hon. Tito Gesora – SPM delivered on 29th October, 2020 be set aside and a judgment of this Court dismissing the suit against the Appellant with costs be entered in its place.c.Without prejudice to prayer (b) above, this Honourable Court re-assesses the apportionment of general damages and reduce the same.d.The costs of this appeal and that of the trial court be awarded to the Appellant.e.Such further orders may be by this Honourable Court may deem fit to grant.

5. The Respondent opposed the appeal. The appeal was subsequently canvassed by way of written submissions.

The Appellant’s Submissions 6. The Appellant did not submit on the issue of liability and instead stated that the grounds of appeal can be summed up as one issue of quantum. The Appellant submitted that the trial court’s award of 500,000/= was inordinately high for the injuries suffered by the Respondent. He urged this court to allow the appeal and proposed that the sum of Kshs. 80,000/= will be sufficient compensation for the injuries that Respondent suffered and invited this court to be guided by the cases of:a.Power Lighting Company Limited & Another v. Zakayo Saitoti Naingola & Another [2008] eKLR cited in the case of Jennifer Mathenge v. Patrick Muriuki Maina [2020] eKLR;b.HB (Minor suing through mother & next friend DKM) v. Jasper Nchonga Magari & Another [2021] eKLR;c.Ndungu Dennis v. Ann Wangari Ndirangu & Another [2018] eKLR;d.Eva Karemi & 5 Others v. Koskei Kieng & Another [2020] eKLR.

The Respondent’s Submissions 7. On liability, it was the Respondent’s submission that he Appellant should be held 100% liable for the occurrence of the subject accident as Respondent was not in a position to prevent the occurrence of the accident.

8. On damages, the Respondent submitted that taking into account the inflation of the shilling since the decisions in Habiba Abdi Mohamed v. Peter Maleve Nairobi HCCC No. 950 of 1998 and the case of Ali Malik Brothers Motor (K) Limited and Another v. Emmanuel Oduor Onyango NRB HCCA No. 252 of 2016 [2018] eKLR, an award of Kshs. 700,000/= should be made under the head of damages for pain, suffering, and loss of amenities.

9. On future medical expenses, it was the Respondent’s submission that an award of Kshs. 150,000/= should be made under this head as he is still bound to be dependent on painkillers, antibiotic and regular wound care routine so as to prevent the wounds from being infected and becoming cancerous.

10. Finally, the Respondent submitted that he incurred Kshs. 11,000/= which should be awarded as special damages as the same was specifically pleaded and also proved in court during the hearing of the suit and the same was not opposed.

Issue for Determination 11. I have carefully considered the judgment of the trial court, the grounds of appeal and the record of appeal as well as the submissions by the parties. The main issue that arises for determination by this court is the quantum of damages.

Analysis 12. This is a first appeal. It is therefore this Court’s duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter. [See also: Williamson Diamonds Ltd v Brown [1970] EA 1]

13. Guided by the said authorities, I now turn to the evidence that was presented before the trial court.

14. The Respondent testified as the only witness in this matter. He adopted his statement dated 17th December, 2019 and stated that the vehicle that hit him came from its side to his side where he was stationary. He produced as exhibits a demand notice, receipt of demand notice, medical report, P3 form, police abstract, receipt of medical report, and treatment notes. He further stated that he was hit on the head below the eye and the side of the head. That he cannot exert his bones and that for a long time he could not rise from the bed. In addition, he stated that his back hurts so much.

15. There is obviously a relationship between the award and the nature of injuries suffered. The burden upon the claimant is in justifying the compensation on the threshold outlined in Cornilliac v St. Louis [1965] 7 WIR 491. This is simply for the trial court to take into account:a.The nature and extent of the injuries sustained.b.The nature and gravity of the resulting physical disability.c.The pain and suffering which had to be endured.d.The loss of amenities suffered; ande.The extent to which, consequentially, the claimant’s pecuniary prospects have been materially affected.

16. The particulars of injuries as itemized in paragraph 4 of the plaint are:a.Bruises on both knuckles.b.Bruises right lateral elbow joint.c.Bruises on the right superior anterior iliac bone.d.Multiple bruised lacerations on the right knee and also lower limb anterior aspect.e.Bruises on the left lower limb anterior aspect.The medical report by doctor Bulle Said Rahoy states that the respondent had sustained cut wounds on the scalp and face. He sustained soft tissue injuries to the chest, back, right shoulder and left lower limb. Chest X-ray and head CT scan done were normal. The respondent complained of chest pains, back pain, right shoulder pain and left lower limb pain. The doctor’s conclusion was that the respondent suffered harm as a result of the accident.In an appeal against an award of damages, the duty of the court is to determine whether the trial court adopted wrong principles in the assessment of damages. An appellate court will not normally interfere with the assessment of damages by the trail court except where in the exercise of discretion the trial court adopted wrong principles of the law, or awarded damages that was inordinately high or low as to make it an entirely erroneous estimate of the damages to which the plaintiff was entitled. These are the principles in the case of Butt-v- Khan (1981) KLR 349. The court stated inter alia that;“it must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”It has been held by the Court of Appeal in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mweiya, (deceased) –v- Kiarie Shoe Stores Limited (2015) eKLR that-“As a general rule, assessment of damages lies in the discretion of the trial court and an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate……..”Thus the assessment of damages for injuries suffered is left at the discretion of the court which is supposed to be guided by these principles. Other principles which courts have developed are that comparable injuries should attract comparable awards which have been made by the courts.

17. Personal injury claims invokes an area of law where the approaches should be “that comparable injuries should as far as possible, be compensated by comparable awards keeping in the correct measure of awards in similar cases.” (See: Rahma Tayab & Another v Ann Mary Kinaru [1987-88] 1KAR 90)

18. The Appellant relied on the case of HB (Minor suing through mother & next friend DKM) v. Jasper Nchonga Magari & another [2021] eKLR where high court confirming the judgement of the trial court upheld the award of Kshs. 60,000/= where the claimant stated that he suffered injuries to the forehead while the medical report produced indicated that the claimant sustained blunt object injury to the head and neck, thorax, abdomen and limbs.

19. The Appellant also relied on the case of Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR where the High Court substituted an assessment of quantum for general damages from Kshs. 100,000/= to Kshs.300,000/= where the injuries suffered were soft tissue injuries to the lower right leg and to the back.

20. Further, he relied on the Eva Karemi & 5 others v Koskei Kieng & another [2020] eKLR where the High Court upheld the trial court’s assessment of quantum on general damages where the 1st appellant was awarded Kshs. 70,000/-. She sustained injuries to her right thigh and bruises on her lower and upper limbs. The 2nd appellant was awarded Kshs. 40,000/- for injuries on the right shoulder pain and cut wound on her mouth. The 3rd appellant was awarded Kshs. 45,000/- for injuries and pain on her back and right shoulder pain. The 4th appellant was awarded Kshs. 40,000/- for cuts on the chin and right shoulder tenderness. The 5th appellant was awarded Kshs. 60,000/ for injuries sustained; 2cm cut on the forehead, cut wound on the right elbow and right limb (leg and ankle joint). The 6th appellant was awarded Kshs. 65,000/- for injuries sustained being bruising on the forehead, hip and left ankle.

21. On the other hand, the Respondent relied on the case of Habiba Abdi Mohamed v. Peter Maleve [2000] eKLR, the plaintiff suffered injuries on her left arm and her head and face. The court awarded general damages of Kshs. 400,000/=. The Respondent relied on the case of Ali Malik Brothers Motors (K) Ltd & Another v. Emmanuel Oduor Onyango [2018] eKLR, the high court upheld the award of Kshs.700,000/= as general damages where the Respondent suffered a fracture of the pelvic sprain of hymen and cuts of the (r) knee.

22. In this appeal, the Appellant faults the trial court for awarding an amount that is so excessive and invites this Court to find that the trial court’s conclusion that was founded on wrong principles. The Appellant argues that the learned trial magistrate erred by relying on wrong principles to arrive at the high award given that what the Respondent suffered were soft tissue injuries. Taking into consideration that the actual injuries suffered by the Respondent were soft tissue injuries to both knuckles, right lateral elbow joint, right superior anterior iliac bone the right knee and also lower limb anterior aspect. The injuries were harm. The P3 form defines harm as any bodily hurt whether temporary or permanent. It means that the injuries were not server and did not leave any permanent mark or disability. The only treatment was pain these were clearly soft issue injuries. An award of damages for pain and suffering is meant to compensate but not to enrich the victim. An award of Kshs.500,000/- was manifestly excessive with the consequence that it invites this court to interfere with the award.

23. In Purity Wambui Muriithi v Highlands Mineral Water Company Ltd [2015] eKLR, the Court of Appeal revised downwards an award by the High Court of Kshs. 700,000/= to Kshs. 150,000/= for injuries to the left elbow, pelvic region, lower back and left knee.

24. Given the policy goal of Courts to try to compensate comparable injuries as far as possible by comparable awards, these two factors call for this Court to revise the quantum awarded to the Respondent. I find that an award of Kshs. 150,000/= would be adequate to compensate for the injuries suffered by the respondent. The special damages pleaded were proved.

ConclusionFor the reasons give above I find that the appeal has merits. I order as follows:-1. The Judgment of the trial magistrate awarding the respondent kshs.500,000/- as general damages is set aside.2. It is substituted with an award of Kshs.150,000 general damages for pain and suffering.3. Kshs.11,000 special damages.4. The finding of 100% on liability against the appellant is upheld.5. I award the appellant the costs of the appeal and of the proceedings in the sub-ordinate court.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF NOVEMBER 2023. L.W. GITARIJUDGE