[2022] KEHC 14953 (KLR)

Komu v Vee Vee Enterprises Ltd (Civil Appeal E003 of 2021) [2022] KEHC 14953 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14953 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Appeal E003 of 2021

F Gikonyo, J

November 3, 2022

Between

Martin Mburu Komu

Appellant

and

Vee Vee Enterprises Ltd

Respondent

(Being an appeal from the judgment and decree of Hon. A.N. Sisenda (R.M) delivered on 12thApril 2021 in Narok CMCC No. 184 of 2019)

Judgment

1. The appellant was injured in a road traffic accident which took place on August 29, 2019 along Narok- Bomet Road at TM Junction when motor vehicle registration KBX 009H hit KAY 976Q which had been parked off the road.

2. The judgment of the trial court subject of this appeal awarded general damages in the sum of Kshs 400,000/=, special damages of Kshs 15,160/= Plus costs and interest which award has precipitated this appeal.

3. Liability was settled by consent in the ratio 80:20 in favour of the appellant.

4. The five grounds set out in the memorandum of appeal date April 16, 2021 challenge quantum of damages.

5. The issue therefore is;i.Whether the learned trial court applied wrong principles in assessing general damages at Kshs 400,000 or made an award of damages which was inordinately low.

Directions of the court. 6. The appeal was canvassed by way of written submissions. Both parties filed written submissions.

Appellant’s submissions 7. The appellant submitted that the trial magistrate failed to take into account relevant factors namely injuries sustained by the appellant to the prejudice of the appellant. The trial magistrate failed to take into account relevant matters occasioning her to arrive at wrong findings. Hence, she proceeded on wrong principles and she misapprehended the evidence in some material respect by failing to take into account the injury of complete fracture of the cervical bone and so arrive at a figure of Kshs 400,000 as damages which was inordinately low.

8. The appellant submitted that evidence both oral and documentary was never controverted and challenged in any manner by the respondent.

9. The appellant submitted that an award of Kshs 800,000 was appropriate for injuries suffered by the appellant.

10. The appellant submitted that the trial magistrate misapprehended the evidence by disregarding the injury of complete fracture of the cervical bone sustained by the appellant to assess general damages on the basis of only the fracture of the left acetabular, the trial magistrate fell into an error and did not consider as relevant the injury of complete fracture of the cervical bone sustained by the appellant.

11. The appellant submitted that the appellant has set out grounds for this court to safely disturb the award of general damages of Kshs 800,000 as submitted by the appellant in the lower court.

12. In the end, the appellant prayed that the appeal be allowed, the decree in the trial court be set aside with costs and interest.

13. The appellant has relied on the following authorities;i.Lady justice R E Ougo in Kisii High Court Appeal No 69 of 2020[2021] eKLR Paragraph 18. ii.Janet Kaphiphe Ouma v Marie Stopes International (Kenya) Kisumu HCC No 68 of 2007 Citing the case ofEdward MurigavsDniael D SchulterCivil Appeal No 23 of 1997. iii.Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123. iv.Peters v Sunday Post Limited [ 1958] EA 424. v.Butt v Khan[1981] KLR 349.

Respondent’s submissions. 14. The respondent submitted that the quantum of damages awarded to the appellant was fair, appropriate and commensurate with the injuries sustained by the appellant.

15. The respondent submitted that the appellant has not satisfied any principles which guide the court in arriving at an award.

16. The respondent submitted that the trial magistrate cannot be faulted for finding that the evidence in the medical report by Dr Momanyi was not supported by the treatment notes.

17. The respondent urged this court to find that this appeal lacks merit and dismiss it with costs to the respondent.

18. The respondent has relied on the following authorities;i.Kemfro Africa Limited t/a ‘Meru Express services [1976] & anothervLubia & another (No 2) Civil Appeal No 21 of 1984[1985] eKLR.ii.Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR.iii.Section 107(1) (2) of the Evidence Act.iv.Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao KiokoCA 203/ 2001 [2007] 1EA 139. v.Savanna Saw Mills Ltd v Gorge Mwale Mudomo [2005] eKLR.vi.Loice Wanjiku Kagunda v Julius Gachau Mwangi CA 142/2003.

Analysis and Determination Duty of court 19. Under section 78(2) of the Civil Procedure Act, the appellate court shall have the same powers and shall perform nearly the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted herein.

20. Accordingly, the first appellate court should re-evaluate the evidence and make its own conclusions albeit it must bear in mind that it did not have the opportunity of seeing or hearing the witnesses first hand. See the case of Selle & Anor v Associate Motor Boat Co Ltd 1968 EA 123.

Issues 21. This appeal is on quantum of damages only. Thus, the issue at hand is whether the trial court erred in making the award of damages herein.

22. This court cannot interfere with the exercise of discretion in assessment of damages except where the trial court committed an error in principle or made an award that was inordinately high or low as to be wholly erroneous estimate of damages. SeeKemfro Africa Ltd vs Gathogo Kanini v AMM Lubia & Anotheras follows: -“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

23. The trial magistrate awarded Kshs 400,000/=as general damages; the appellant regards the award as inordinately low. The respondent considers it fair compensation for the injuries sustained.

24. What were the injuries sustained by the appellant?

25. PW1 testified that he sustained injuries on the right leg and head. He was treated at Narok Referral hospital for treatment for two weeks. A metal plate was put into his leg which he still had at the time he testified. He adopted his statement dated December 5, 2021 as his evidence in chief.

26. The appellant produced exhibits as per the list of documents dated December 5, 2019 as treatment note (P Exh 1), P3 form (P Exh2), medical report (P Exh 3) police abstract (P Exh 4) receipts for special damages (P Exh 5), copy of records (P Exh 6) and demand notice (P Exh 7)

27. The appellant further testified that he had not fully healed. He was having a painful leg during cold season and was walking with a limp and unable to drive as the metal plate is yet to be removed.

28. Dr Morebu Momanyi (P Exh3) and plaint indicated a complete fracture of the cervical bone, multiple displaced fracture of the left acetabular and deep cut wound on the right heel.

29. The appellant cited an authority in which the appellant was awarded Kshs 800,000/=. The respondent relied on authorities with awards ranging from Kshs 350,000/= to Kshs 500,000/=.

30. The medical report by Dr Morebu Momanyi confirmed the injuries in the P3 form and pleaded in the plaint. The respondent did not adduce any medical evidence to controvert the appellant’s evidence.

31. The trial court having perused the documents produced in court noted that the treatment notes from Narok Referral hospital only made reference to left acetabular fracture. There was no mention of the fracture of the cervical bone as stated by the medical Report by Dr Momamyi. She therefore proceeded to assess general damages on the fracture of the left acetabular.

32. On the weight a court of law should attach to expert opinion, the court in the case of Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR held that:“Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less.... This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this.Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.”

33. In the case of Henry Binya Oyala v Sabera OItira [2011] eKLR the court held that the primary source of information on injuries sustained is by the victim, and that evidence of a medical officer is not mandatory. It was also held that a victim’s own statement with regard to injuries should not be dismissed merely on ground that it was not matched by initial treatment from hospital.

34. I think that where a party becomes aware or honestly believes that there exist serious discrepancies in the expert reports, it is the responsibility of that party to procure the expert or provide expert opinion in court for proper testing or scrutiny of the evidence by the court and parties to enable the court to reach an informed decision on the issue at hand. In this case, the respondent did not provide expert evidence. The appellant too merely threw their expert reports to the court.

35. I will nonetheless, seek to find out whether there is a reasonable causal connection made between the injury identified in the medical report and the accident that took place at TM Junction.

36. The appellant relied on the P3 form dated September 26, 2019: in the history part of the form the doctor stated:“The patient was involved in a RTA on August 29, 2019 at 4P.M. he was hit from behind by a lorry while on his car. The patient sustained multiple fracturs.”

37. In section B of the P3 Form the doctor examined the appellant and stated as follows under the headings;head and neck,““…...complete fracture of the cervical bone’.thorax abdomen“‘Multiple displaced fracture of the left acetabular’lower limbs“‘A cut wound about 2cm on the right heel.’’

38. The doctor filling in the P3 Form on September 26, 2019 therefore appears to have relied on the findings and treatment information from Narok referral hospital. However, the discharge summary from Narok hospital was not made available for consideration by the trial court.

39. The medical report of Morebu Momanyi indicates he relied inter alia on information by and examination of the appellant, as well as x-rays of the appellant. I treat his report to be more thorough and comprehensive; the manner treatment notes are prepared ordinarily may be scattered and may not carry such details as would a thorough medical report.

40. I find that the complete fracture of the cervical bone, was sustained as one of the injuries arising out of the accident of August 29, 2019.

41. For these reasons, I find that the trial court erred in not taking into account the complete fracture of the cervical bone in the assessment of damages.

42. Thus, the injuries suffered by the appellant are as follows: complete fracture of the cervical bone, Multiple displaced fracture of the left acetabular and a cut wound on the right heel.

43. The appellant suffered multiple injuries. He suffered two fractures: complete fracture of the cervical bone and multiple displaced fracture of the acetabular and deep cut wound on the right heel. Dr Morebu Peter Momanyi made the following observations. The appellant currently is unable to walk without support thus cannot undertake his daily chores. recovery is expected to take a very long time. He requires physiotherapy with occupational therapy. He also noted that permanent disability is anticipated. He noted current complaints as neck pain and pain on the left hip. The appellant was walking using crutches.

44. The trial court relied on the case of Vincent Mbogholi v Harrrison Tunje Chiyalya [2017] eKLR where the court made awards of Kshs 500,000/= for Fracture of the left tibia leg bone (medial malleolus). I find that the authority relied upon by the trial court had only one fracture, but it was relied upon on the basis that the complete cervical fracture was not sustained in the accident. It is not however appropriate authority in light of the injuries now established by the court.

45. The cases cited by the appellant had more comparable injuries to those sustained by the appellant and are more recent.

46. Taking into account the nature of the injuries and the residual effects on the appellant, I consider the damages awarded to be inordinately low under the circumstances. Consequently, I find that an award of Kshs 800,000/- would be more appropriate as general damages. Accordingly, I set aside the award on general damages by the trial court, and in lieu thereof, award the appellant a sum of Kshs 800,000 in general damages.

47. The award on special damages was not challenged. However, from the documents produced, special damages proved is: -a.Medical reports Kshs 6,500/=b.Receipts Kshs 15,160/=Thus, total Kshs 21,660/=- is so awarded in special damages.

48. In the end, I allow the appeal on quantum and set aside the judgment of the trial court thereto. For avoidance of doubt the final judgment is as below: -i.General Damages Kshs 800,000ii.less 20% contribution Kshs 160,000iii.Sub-Net total Kshs 640,000/-iv.Special Damages Kshs 21,660/=Total Kshs 661,660/=

49. The appellant shall have the costs and interest on the award.

50. The appellant shall also have costs of the appeal. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS3RD DAY OF NOVEMBER, 2022. ................................F. GIKONYO M.JUDGEIn the presence of:1. Mr. Kasaso – CA2. Bunda holding brief for Ochilo for Appellant3. Hannah Murithi for Respondent - absent