[2022] KEHC 3082 (KLR)

Koru Holy Family Mission Hospital v Koech (Civil Appeal E003 of 2021) [2022] KEHC 3082 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3082 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E003 of 2021

AN Ongeri, J

June 17, 2022

Between

Koru Holy Family Mission Hospital

Appellant

and

Robert Kipkorir Koech

Respondent

(This was an Appeal from the Judgment of Hon. S. K. Mokua (CM) in Kericho CMCC. No.218 of 2019 delivered on 11/12/2020)

Judgment

1. The Respondent was involved in a Road Traffic Accident on 11/4/2019 along Kericho-Kisumu Road when the appellant’s Motor Vehicle Reg. No.KCA 749 E hit the Respondent while he was walking along the Road at Muhoroni Junction.

2. The Respondent sued the appellant for damages sustained during the Accident. The Respondent’s evidence was that he was walking off the Road towards Kisumu at Muhoroni Junction when he heard a Siren. On checking, he saw Motor Vehicle Reg. No.KCA 749E being driven off the Road in his direction.

3. The Respondent sustained serious injuries on the right leg which sustained a fracture. The Police manning a road Block at the scene took him to Kericho District Hospital where he was treated and then transferred to Tenwek Hospital where his right leg was amputated at the knee. The Respondent who was a driver is not able to drive any more.

4. The Appellant’s evidence was that the Motor Vehicle Reg. No.KCA 749E lost control as it was defective and it got into a ditch. The brakes and the steering wheel were dysfunctional at that point and the driver not careless.

5. The Trial Court found the Appellant 100% liable and awarded damages as follows:i.General damages for pain & suffering & loss of amenities……………………………….. ………….Kshs.2,200,000/=ii.Future Medical Expenses…………….Kshs.2,400,000/=iii.Loss of Future earning capacity……Kshs.3,227,940/=iv.Special damages……………………..Kshs. 256,919/=Total…………........Kshs.8,084,859/=……………………

6. The Appellant is aggrieved with the Judgment of the Trial Court and has now appealed to this Court on the following grounds:-i.The learned trial magistrate erred in law and in fact in making the award of general damages that was manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the respondent;ii.The learned trial magistrate erred in law and in fact entering judgment for general damages without considering the applicable principles as established by the precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is inordinately high, arbitrary and unsupportable;iii.The learned trial magistrate erred in law and in fact in awarding damages of Kshs. 2, 400, 000 for future medical expenses which had not been pleaded or proved as required by law and without any regard to precedents put before him and without considering the applicable principles as established by precedents that bound him;iv.The learned trial magistrate erred in law and in fact in applying a multiplier of 30 years while computing the award for loss of future earning capacity and thereby making an inordinately high award;v.The learned trial magistrate erred in law and in fact while computing the award for loss of future earning capacity without any regard for precedents put before him and without considering the applicable principles as established by precedents thereby making an inordinately high award;vi.The learned trial magistrate ignored the appellants submissions and authorities cited;vii.The learned trial magistrate failed to take into account all relevant considerations and principles in assessing the quantum of general and the future medical expenses.

7. The parties filed written submissions in the appeal which are as follows: - the appellant submitted that the trial court took into account a report by Dr. Kiamba that was not produced in evidence but was merely marked for identification whereas it is settled law that documents marked for identification are not evidence and cannot form the basis of a judgment.

8. The appellant also submitted that the trial magistrate did not mention the cases with comparable injuries that he took into account that compelled him to reach the decision that he did, and further that mentioning cases without comparing them to the case at hand is a misdirection warranting interference by the appellate court. It was submitted that had the trial court considered the case cited by the appellant, it would not have made the award that it did.

9. It was submitted by the appellant that the amount of Kshs. 2,400,000 awarded to the respondent as future medical expenses was erroneous as the same being special damages, needed to be specifically pleaded and proved and also that the learned trial magistrate relied on an unproduced medical report. It was submitted that the respondent should only be awarded Kshs. 300,000 for future medical expenses as this was the amount pleaded by the respondent and was stated in the medical report by Dr. Achola.

10. The appellant also submitted that the learned trial magistrate erroneously made an award for loss of future earning capacity at Kshs.3, 227, 940, by taking into account the wrong salary, the wrong multiplier and the wrong disability ration in computing the award for loss of future earning capacity.

11. The respondent submitted that the assessment by the trial court for general damages for pain and suffering were fair appraisal of the amounts payable to the respondent based on previous comparative awards, and that the appellant has not demonstrated how the trial court erred in compilation of general damages for pain and suffering.

12. The respondent submitted that a claim for future medical expenses constitutes special damages and the same was pleaded amongst other prayers in the plaint. It was submitted that the award for Kshs. 2, 400, 000 for future medical expenses was fair, as the respondent who was 25years, would need to replace the prosthesis leg eight times during his lifetime, and it is for this reason that the honorable court awarded Kshs. 2,400, 000.

13. It was also submitted by the appellant that the trial court was fair and awarded proper damages for loss of future earning capacity, as the court considered the injuries sustained, age of the respondent, disability assessment and rate of inflation while arriving at its decision.

14. The issues for determination are as follows:-i.Whether the award of general damages was manifestly excessive.ii.Whether damages for future Medical Expenses was properly awarded.iii.Whether the award for loss of future earning capacity was made without consideration of applicable Principles.

15. On the issue as to whether the award of damages was manifestly Excessive, the Appellant submitted that the Trial Court did not take into Account the Principle that similar injuries attract similar damages.

16. The Respondent’s right leg was amputated at the knee and the degree of disability was assessed at 70% by Dr. W. K. Kiamba and 50% total disability by Dr. Odhiambo J. M Ochola.

17. I have perused the following cases relied on by the Trial Court.1. Francis Macharia & Another v Joel Wanje [2017] eKLR.2. Cosmas Mutiso Muema v Kenya Road Transport Limited & Another [2014] eKLR3. Kurawa Industries Ltd v Dama Kiti & Another [2018] eKLR.(4)CM (A minor suing through his mother and next friend) MN v Joseph Mwangangi Maina [2018] eKLR.

18. I find that the award in these comparable cases were between Kshs.1, 000,000/= and Kshs.3, 000,000/=.

19. I find that the award of general damages Kshs.2, 200,000/= is reasonable in the circumstances of this case.

20. On the issue as to whether the damages for future Medical Expenses were properly awarded, the Appellant’s submitted that the same were not specifically pleaded and proved as required by Law.

21. However, I find that future Medical Expenses are special damages, which have been pleaded and proved, and they are therefore properly awarded.

22. The respondent in his plaint at paragraph 6( e) and (f) pleaded for future medical expenses to purchase an artificial limb and medication at Kshs.300,000 and further future medical expenses to be assessed and awarded by the court based on the medical reports. The Respondent will require to replace the artificial limb every 3-5 years for the rest of his life.

23. I find that the the need for future medical expenses was also supported by medical evidence and proved accordingly.

24. The court of appeal in Tracom Limited & v Hasssan Mohamed Adan [2009] eKLR held as follows: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd v Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

25. In Forwarding Company Limited & Another V Kisilu; Gladwell (third Party) (Civil Appeal 344 of 2018) [2022] KECA 96 (KLR), the court stated as follows “In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances.”

26. On the issue as to whether the award for loss of future earning capacity was made without consideration of applicable Principles, the Appellant submitted that the Trial Court used the wrong multiplicand and salary in computing loss of future earning capacity award.

27. However, there was evidence which was not disputed that the Appellant was 24 years old and was earning 22,000 at the time of the Accident. He produced pay slips to prove the same. The Multiplier of 30 years was reasonable in the circumstances. The Doctor said the Respondent will not be able to work again. The Percentage of Permanent disability is 50-70%.

28. Although the Appellant submitted that the Respondent can be able to drive a vehicle with the artificial limb, in my opinion there is no one who can employ a driver with only one leg.

29. I find that the award of damages herein is not too inordinately high as to warrant interference by this Court. In Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR, the court of appeal stated as follows: “…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

30. In Butt V Khan [1978] eKLR, the court stated as follows: “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. 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.”

31. I find that the Appeal herein lacks in merit and I accordingly dismiss it with costs to the Respondent.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE