[2022] KEHC 9772 (KLR)

Koyi v Obanga & 2 others (Civil Appeal 73 of 2017) [2022] KEHC 9772 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9772 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 73 of 2017

JM Ngugi, J

July 21, 2022

Between

Margaret Odhiambo Koyi

Appellant

and

Walter Oduor Obanga

1st Respondent

Kingbird Kenya Ltd

2nd Respondent

Raphael Mwangi

3rd Respondent

Judgment

1. The Appellant was involved in a road traffic accident on 16/09/2010 along Kenyatta Avenue in Nakuru. The accident involved motor vehicle registration number KBB 381H and motorcycle registration number KMCJ 364T, on which the Appellant was riding as a pillion passenger. The Appellant instituted a claim against the owner and driver of the motor vehicle, the registered owner of the motorcycle and its rider vide her Amended Plaint filed in Court on 04/11/2013. She prayed for general damages, damages for loss of earnings and earning capacity and future medication. She also sought special damages, future operation at a cost of Kshs. 100,000/-, costs of the suit and interest.

2. In its judgment dated 22/05/2022 the Trial Court concluded that the 1st and 2nd Respondent were equally to blame for the accident and apportioned liability to the two Respondents at 50% each, together with costs and interest. On quantum, she awarded the Appellant a total of Kshs. 506,600 as follows:General Damages 400,000Special Damages 6,600Future medical expenses 100,000Total 506,600Having apportioned liability at 50% each to the two Respondents, the 1st Respondent was only to pay Kshs. 253,300.

3. The Appellant, being aggrieved by that Judgment has filed the instant appeal vide the Memorandum of Appeal dated 07/06/2017. The appeal is sought on the ground:1. Thatthe Learned Magistrate erred in law and fact in awarding General damages that were inordinately low in total disregard of the severe injuries that the Appellant suffered in the accident.

4. The Appeal was argued by way of written submissions. In her submissions dated 09/03/2022, the Appellant submits that given the injuries she sustained, i.e., a fracture of the left femur and tibia, laceration on the left leg and soft tissue injuries of the chest, the amount awarded by the Trial Court was inordinately low. She relies on the case of Kenya Power & Lighting Company Limited v Mathew Kabage Wanyiri[2016] eKLR where the Plaintiff was awarded Kshs. 1,200,000 and P. W v Peter Muriithi Ngari [2017] eKLR where the Claimant was awarded Kshs. 1,600,000.

5. The Appellant argues that the Trial Court did not consider her severe injuries that is two fractures of the femur. She contends that the Respondents did not adduce any evidence to controvert her evidence and relies on the case of Patrick Kinoti Miguna v Peter Mburunga G. Muthania[2014] eKLR.

6. The Appellant further submits that the Trial Court failed to award her damages for loss of earnings, despite evidence that she had sustained 40% permanent disability. She argues that from her evidence before the Trial Court - that she had been rendered incapable of work, she was deserving of loss of earning capacity. She submits that having been 25 at the time of the accident, a multiplier of 35 years would be applicable given the retirement age of 60 years. She contends that since there was no proof of earnings adduced, the Regulation of Wages (General) (Amendment) Order 2015should have been applicable. She cites the case of Sukaru Industries Limited v Lensa Awuor Nyagumba & another [2019] eKLR and suggests the sum of Kshs 4,408,698.

7. The Appellant invites the Court to vary the award of damages and relies on the cases of Tridev Construction v Charles Wekesa Kasembeli [2005] eKLR and Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M Lubia and Olive Lubia (1982-88) L KAR 727

8. The 1st Respondent’s submissions are dated 10/05/2022. The 1st Respondents submits that compensation for bodily injury should be governed by the principle of restitutio in intregrum. The 1st Respondent relies on West (H) & Son Ltd view Shepherd [1964] A C and Lim Poh Choo v Camden and Islington Area Health Authority[1979] 1 All ER 332 for the propositions that compensation must be reasonable and must be fair to both parties, respectively.

9. The 1st Respondent contends that from the injuries sustained by the Appellant, the award of Kshs. 300,000 would be fair. He urges the Court to rely on T A M (Minor Suing Thro’ her father and next friend J O. M) v Richard Kirimi Kinoti & another [2015] eKLR where the Plaintiff was awarded Kshs. 250,000 in 2015, Ibrahim Kalema Lewa v Esteel Co. Ltd [2016] eKLR where the Appellant was awarded Kshs 300,000, Erick Ratemo v Joash Nyakweba Ratemo [2018] eKLR where the Appellant was awarded Kshs. 300,000 in September 2018 and Thomas Mwangi & another v L W K[2017] eKLR where the Court awarded Kshs 300,000. The 1st Respondent argues that the injuries sustained by the Appellant in this case are less severe than the injuries sustained by the Respondents in the above authorities.

10. On the issue of loss of earnings, the 1st Respondent contends that the Appellant can still work, and she failed to produce any documents as proof of the extent of her inability to work as a result of the accident. The Appellant submits that the Appellant’s incapacity was assessed at 20%, an indication that the Appellant could continue working. According to the 1st Respondent, this claim was not specifically proven, given that it is a special damage claim.

11. The 1st Respondent submits that the Court before interfering with an award of damages, must be satisfied that the Trial Court acted upon some wrong principle of law, the amount was inordinately low or high as stated in Butt v Khan[1981] KLR 349. He submits that the Appellant has failed to satisfy the above requirement. He cites the cases of Omar Athumani Mohammed t/a Paint Work and General Maintenance v Jumwa Kaingu [2021] eKLR, Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR and Eliud Muthui Mwangi v Jacinta Wambui Warui & another[2022] eKLR and urges the Court to dismiss the Appeal.

12. From the foregoing, the appeal herein is solely on the issue of quantum, and I will therefore not interfere with the apportionment of liability by the Trial Court. Accordingly, the single issue for determination is whether the amount awarded by the Trial Court was sufficient.

13. From the Amended Plaint and the evidence before the Trial Court, the injuries sustained by the Appellant are displaced fracture of the left tibia, fracture of the left femur, laceration of the left leg and soft tissue injuries on the chest. In the medical report produced by Dr. Kiamba, the Doctor’s medical opinion was that the Appellant had suffered a 40% permanent disability. The Respondents did not provide any evidence in the form of a medical opinion to counter these findings.

14. In awarding damages for the injuries sustained, this Court is to be guided by the injuries sustained and comparable authorities. The injuries sustained by the claimants in the authorities cited by the Appellant were more severe than those of the Appellant in this case. For instance, in the Kenya Power case, the claimant sustained multiple fractures and loss of function of his hip, while in the P. W case the claimant fractured her left femur, left fibula and tibia, and sustained blunt injuries to the pelvis causing fractures of the pelvis. Conversely, the injuries sustained by the claimants in the authorities cited by the Respondent are more in line with the Appellant’s injuries.

15. In line with ensuring consistency in the awards for similar or comparable injuries and that the awards are within the limits of decided cases, I am of the view that the award of Kshs. 400,000 by the Learned Magistrate was neither inordinately high nor low to warrant interference by this Court on its appellate jurisdiction.

16. Turning to the issue of loss of earnings or earning capacity, the Trial Court declined to award loss of future earnings, reasoning that the Appellant had neither produced evidence of her employment as a waitress nor her incapacitation to the extent of not finding work in the future. The Appellant has on this item urged the Court to use the multiplicand method and to apply the Wage Order at the time.

17. It is trite that the multiplicand method is appropriate where the Court can to some extent, establish the nature of work that the Claimant was involved in or where a claimant’s earnings can be quantified. In the Sukaru Industries Limited case cited by the Appellant, the Court applied the multiplicand method on the basis that the Claimant was a loader at the time.

18. The Court of Appeal in Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, reasoned as follows on the issue of award of loss of earnings where a Claimant cannot prove employment:The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.

19. In the above case, the Court made the distinction between loss of future earnings and loss of earning capacity, the former being an award of special damages and the latter an award of general damages.

20. In the instant case, while the Trial Magistrate was correct in her analysis that the Appellant had not specifically pleaded and proven her employment and was thus not entitled to loss of future earnings, I hold the view that the Appellant would be entitled to some compensation for loss of earning capacity, due the disability she sustained, which would in some way affect her earning capability in the future. The loss of earning capacity, being a head in general damages, does not require proof of employment or liquidated loss. Consequently, in the absence of such evidence of earnings, a lump sum award is appropriate. Here, the evidence showed that the Appellant suffered 40% disability due to the fractures in her legs. From comparable cases, an award of Kshs. 400,000/- seems appropriate for compensating her for this loss.

21. Accordingly, the final award will be as followed:a.General damages for injuries affirmed at Kshs. 400,000. b.Damages for loss of future earning capacity at Kshs. 400,000. c.Special damages affirmed at Kshs.6,600. d.Future Medical expenses affirmed at Kshs 100,000Total Kshs 906,600.

22. The Appellant having succeeded on one claim of damages, each party shall bear its own costs of the Appeal.

23. Orders Accordingly

DATED AND DELIVERED AT NAKURU THIS 21ST DAY OF JULY, 2022JOEL NGUGIJUDGE