[2023] KEHC 25006 (KLR)

Leposo v Maina (Civil Appeal E007 of 2020) [2023] KEHC 25006 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25006 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E007 of 2020

HI Ong'udi, J

November 3, 2023

Between

Stephen Gitau Leposo

Appellant

and

Faith Wanjiru Maina

Respondent

(Being an Appeal from the whole of the Judgment delivered at Naivasha by the Honourable Bidali K. Chief Magistrate on 2{{^nd}} December, 2020 in Naivasha C. M’s Civil Suit No. 769 of 2017)

Judgment

1. This appeal arises from the judgment of Honorable Bidali K.Chief Magistrate, in Naivasha Civil Suit No. 769 of 2017 delivered on 2nd December, 2020.

2. Before the trial court was a claim commenced by a Plaint dated 10th October, 2017 in which the Respondent herein (Plaintiff in the trial court) sued the Appellant herein (Defendant in the trial court) seeking general damages, special damages and costs of the suit.

3. The Respondent pleaded that on or around 7th August 2017 he was lawfully travelling as a passenger along the Moi South Lake road in motor vehicle registration number KBZ 780W. At Sawela Lodge, motor vehicle registration number KBF 421H that was being driven by the Appellant recklessly, and/or carelessly lost control and collided with motor vehicle Registration number KBZ 780W that occasioned the Respondent to suffer loss and damages

4. The Appellant denied the claim through his statement of defence dated 9th November, 2017 and prayed for the suit to be dismissed.

5. In the alternative the Appellant pleaded that the accident occurred without negligence on his part and if it did occur it was due to negligence on the part of the driver of motor vehicle registration number KBZ 780W.

6. On 5th February, 2020 a consent was recorded by the parties on liability at the ratio of 90:10 in favour of the Respondent as against the Appellant. This was adopted as the Judgment of the Court.

7. Damages were thereafter assessed by the court and the Respondent was awarded Ksh 490,000/= general damages and Ksh 7,000/= as special damages, less 10% contribution.

8. The Appellant being dissatisfied by the decision of the trial court lodged this appeal through the firm of Kimondo Gachoka & Company Advocates vide a Memorandum of Appeal dated 15th December, 2020 and filed on even date.

9. The Appeal is premised on the following grounds:-i.The Learned Magistrate erred in fact and in Law in awarding the Respondent Kshs. 490,000/= for general damages and Kshs. 7,000 for special damages with costs and interests which amount was exorbitantly high in the circumstances and injuries suffered by the Respondent.ii.The Learned Magistrate erred in fact and in law in holding that the Respondent had proved his case on a balance of probabilities which finding was against the weight of the evidence on record.iii.The Learned Magistrate erred in law and in fact when he failed to consider the Appellant’s evidence on points of law and facts with regard to quantum based on the injuries sustained by the Respondent.iv.The Learned Magistrate’s decision was unjust, against the weight of the evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justicev.That the learned Magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed alongside the Defendants submissions that were guiding in the amount of quantum that is appropriate and applicable on similar injuries as the case he was deciding.vi.The Learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages that were too high in view of the injuries suffered by the Plaintiff.

Submissions 10. The Appellant’s submissions were filed by Kimondo Gachoka & Co. Advocates and are dated 1st January, 2023. Counsel in urging the court to re-evaluate the quantum, submitted that the Respondent mainly suffered soft tissue injuries and apart from the fracture of the radius he did not suffer any other major injury and as such the award given was inordinately inflated.

11. It was counsel’s submission that the learned trial magistrate awarded damages on an erroneous estimate without taking into account comparable awards for comparable injuries. He proposed the sum of Kshs. 200,000 as a maximum all-inclusive amount.

12. He relied on several authorities giving awards on soft tissue injuries, comparable injuries and fractures and the awards given in each case. On soft tissue injuries, counsel relied on; George Mugo & Another V AKM (minor suing through next friend and mother of A.N.K [2018] , George Kinyanjui T/A Climax Coaches & Another Vs Hussein Mahad Kuyala [2016]eKLR and Ndungu Dennis Vs Ann Wangari Ndirangu & Another [2018]eKLR

13. On comparable injuries he relied on the following authorities; Godwin Ireri –vs- Franklin Gitonga (2018) eKLR and Lamu Bus services & Anor –vs- Caren Adhiambo Okello (2018) eKLR

14. Counsel further submitted and placed reliance on the following authorities giving awards on fracture injuries; Maselus Eric Atieno v United Services Limited [2017] eKLR and Isaac Mwenda Micheni v Mutegi Murango [2004] eKLR

15. The Respondent’s submissions dated 4th May, 2023 were filed by Ochieng Owuor & Co. Advocates. Counsel opposed the Appeal and argued that the award was reasonable in the circumstances of this case. He submitted that the awards in the authorities relied on by the Appellant in his submissions in the trial court were not of comparable injuries. Further, that with the passage of time, the awarded amount was justifiable and that this court should not interfere with the discretion of the Learned Trial Magistrate.

Analysis and determination 16. This being a first appellate court, I am guided by the dictum 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 circumstances.

17. Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the court stated with regard to the duty of the first appellate court, as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

18. The Appellant in Gound No. 2 has faulted the trial in holding that the Respondent had proved his case on a balance of probabilities which finding was against the height of the evidence on record.

19. The record is clear that the parties herein entered a consent on liability dated 5th December, 2020, in the ratio of 90:10 in favour of the Respondent. Parties having agreed on liability and recorded a consent on the same, the trial court had only one task, of assessing the quantum of damages. That ground cannot hold water in the circumstances, since the appellant is not challenging the consent.

20. Having considered the other grounds of appeal, the rival submissions and entire record, it is my considered view that the following are the only issues that arise for determination;a.Whether the quantum of damages should be disturbed.b.Who should bear the costs

21. This being an appeal on quantum, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30, where it was held as follows:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

22. The Respondent pleaded the injuries which were confirmed by Dr. Kiamba in his report dated 5th September, 2017 as follows:i.Fracture of the left radiusii.Soft tissue injury of the chestiii.Soft tissue injury of the left shoulder jointiv.Soft tissue injury of the right anklev.Bruises on the occipital region of the scalp.

23. In Harun Muyoma Boge v Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR, D.S Majanja J. expressed himself thus: -“The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”

24. The Court of Appeal in Odinga Jackton Ouma vs Moureen Achieng Odera [2016] Eklr stated that:“comparable injuries should attract comparable awards”

25. The learned trial Magistrate relied on the Court Appeal decision in HCCA No. 28 of 2007 Peris Mwikali Mutua v Peter Munyao Kimata [2008] Eklr in awarding damages. The Respondent in that case suffered the following injuries:i.marked pain and tenderness of the left hip joint;ii.marked swelling and severe tenderness of the left forearm;iii.bruises on the left forearm;iv.fractures of the ulna and radius (colles fracture) of the left distal forearm.Further, the doctor noted in the medical report that the injuries were serious and had left a significant permanent disability. In the present case the Respondent suffered grievous harm according to the doctor’s report.

26. The Appellant relied on the case of Maselus Eric Atieno v United Services Limited [2017] eKLR as a yard stick for comparable fractures. In that case, Majanja J evaluated the injuries and found that they comprise a simple fracture and multiple soft tissue injuries and maintained an award of Kshs 250,000 on appeal. In Isaac Mwenda Micheni v Mutegi Murango [2004] eKLR the claimant was awarded Kshs. 100,000. The injuries were of an almost similar nature but the award was made in the year 2004.

27. In the case of P.N. Mashru Ltd V Omar Mwakoro Makenge [2018] eKLR, the court stated that;…”courts have a responsibility to keep themselves appraised of recent authorities, taking into account inflations which has taken a toll on the value of Kenyan Shilling.”

28. The Appellant stated in his Memorandum of Appeal that the award was exorbitantly high in the circumstances of the injuries suffered. In applying the above stated principles to this appeal, the question arising is whether the award was so inordinately high to make it a wholly erroneous estimate of the damages.

29. From the record I have taken note of the P3 Form filled on 10th August, 2017 by the Medical Superintendent at Naivasha District Hospital. It shows that the injuries were assessed as Grievous Harm. However, a perusal of the injuries stated at Pg2 of the said P3 only shows bruises, inflammation, chest pains, upper limb weakness. There is no mention of a fracture. It is Dr. Kiamba’s report dated 5/9/2017 which makes mention of a fracture. He filed the report from L n’ L Xray & Imaging Centre dated 31st August, 2017. It is this report that confirms that the Respondent suffered a fracture of the distal radius – among other soft tissue injuries. The Appellant did not at any point challenge the findings in the three reports, and that remains the position.

30. I hasten to add and emphasize that, at no point would two accidents ever result in exactly similar injuries or similar set of injuries.

31. The injuries sustained in Peris Mwikali Mutua v Peter Munyao Kimata (supra) were almost similar in nature and related well with the injuries sustained by the Respondent herein. I am therefore unable to find that the trial magistrate erred in fact in failing to appreciate the evidence or that wrong principles of law were applied.

32. I also note that the element of inflation was also factored in by the trial magistrate in the judgment. Further it is clear that the Appellant’s submissions and the authorities relied on by him were considered at page 072 lines 1-3 of the Record of Appeal as follows;“From the cases cited by the parties, it is clear that the courts have considered special circumstances of each case in making awards. The other issue for determination was how to factor in the cost of inflation since most of the cases were determined between 2004 and 2016. ”

33. Having considered the submissions by both parties, cited authorities, comparative cases, the record of appeal and the injuries sustained by the Respondent, I am satisfied that the learned trial Magistrate did not consider irrelevant facts. He correctly applied principles of law in awarding the general damages.

34. The award of special damages amounting to Kshs. 7,000 was proven and the same is confirmed.

35. Consequently, I find that the award made by the trial court was not inordinately high as to lead to an interference by this court. To this end, the Appeal fails and is dismissed with costs to the Respondent. The judgment of the lower court is hereby confirmed.

36. Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 3RD DAY OF NOVEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDI................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR