[2022] KEHC 11108 (KLR)

Lerungum v Azere & another (Civil Appeal 28 of 2019) [2022] KEHC 11108 (KLR) (25 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11108 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 28 of 2019

GWN Macharia, J

July 25, 2022

Between

John Ldesi Lerungum

Appellant

and

Fred Oganda Azere

1st Respondent

Sony Trading Co. Limited

2nd Respondent

((Being an appeal against the Judgement and Decree of the Chief Magistrate's Court at Naivasha CMCC No. 764 of 2016 delivered by Hon. E. Mburu (SRM) on 11th June, 2019))

Judgment

1. This is an appeal against assessment of general damages. It arises from Naivasha CMCC No. 764 of 2016 in which the Appellant sued the Respondents for general and special damages arising from injuries he sustained in a road traffic accident on 31st December, 2012. According to the Plaint, the accident which occurred at Ihindu area along Naivasha–Nairobi Road, involved motor vehicle registration number KBH 283J in which the Appellant was travelling as a lawful fare-paying passenger and motor vehicle registration number KBQ 630C owned by the 2nd Defendant and driven by its authorized driver and/or agent, the 1st Defendant.

2. By consent of the parties, judgment on liability was entered in favour of the Appellant as against the Respondents at the ratio of 10:90. Thereafter, the matter proceeded to trial on quantum. After trial, the learned magistrate awarded the Appellant damages in the sum of Kshs. 502,695/- comprising of Kshs. 450,000/- for general damages, Kshs. 8,550/- for special damages and Kshs. 100,000/- for future medical expenses less 10% as agreed on liability.

3. Being dissatisfied with the quantum of damages, the Appellant lodged the instant appeal and raised three grounds of appeal in his Memorandum of Appeal filed on 27th June 2019. These were:1. That the learned magistrate erred in law and in fact in awarding judgment that was too low when there was overwhelming evidence to support the Appellant's case.2. That the learned trial magistrate erred in law and in fact by failing to consider the Appellant's submissions on quantum payable and therefore awarding general damages which were too low comparable to the injuries suffered by the Appellant.3. That the learned trial magistrate erred in law and in fact by considering extraneous facts and not the principles known in law in awarding damages and thereby ending up with an award both on general damages that were too low in the circumstances of the case before her.

4. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified See: Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123.

5. The only issue for determination before me therefore is whether this court should interfere with the trial magistrate’s general damages award of Kshs. 450,000/-.

6. It is well settled that an award of damages for personal bodily injuries must be commensurate to the injuries suffered. In Harun Muyoma Boge v Daniel Otieno Agulo[2015] eKLR, Majanja J. stated:“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.”

7. It is also well settled that an award of damages is at the discretion of the trial court and hence an appellate court should be slow to interfere with such discretion. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR the Court of Appeal stated thus:“An appellate court will not disturb an award for general 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...”

8. The Appellant pleaded that he sustained the following injuries: comminuted fracture of the right tibial plateau, blunt injury to the anterior chest wall leading to severe soft tissue injury, blunt injury to the neck leading to temporal loss of consciousness and soft tissue injury of both shoulders. This was confirmed by the medical Report and not contested by the Respondent.

9. In his written submissions herein, the Appellant submitted that the award of Kshs 450. 000/= on account of general damages was inordinately low compared to the injuries suffered which were duly pleaded and proved. He submitted that the trial magistrate did not give any reasons for awarding the said amount and neither did she analyze the authorities cited by the parties in their submissions before the court in her judgment. In the Appellant’s view therefore, this is an appropriate case for this court to interfere with the magistrate’s discretion on the award. He urged that an award of Kshs. 1,400,000/- will be adequate compensation in view of the severity of the injuries he sustained in the accident.

10. He relied on Michael Njagi Karimi v Gideon Ndungu Ngunjiri & Anor [2013] eKLR where the plaintiff sustained compound fractures on both lower limbs and right upper limb, lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises on the left elbow as well as on the back extending to the right side of the lumbar region and blunt trauma to the chest. The court awarded Kshs. 2,000,000/- in 2013. Reliance was also placed on Guardial Singh Ghataurhae v Parminder Singh Manku & 3 others [2018] eKLR where a Claimant was awarded general damages of Kshs. 2,500,000/- for the following injuries: comminuted intra articular fracture of the right tibial plateau; metaphyseal fractured right patella; comminuted fracture right distal radius; osteoarthritis of right knee; fracture of four ribs on right side; and severe lacerations, bruises and scarring.

11. The Respondents had not put in their written submissions as at the time of writing this judgment.

12. I have looked at the judgment of the trial court. It is true that the learned magistrate did not give any basis for her award. In his submissions in the trial court, the Appellant proposed an award of Kshs. 1,400,000/- on account of general damages and relied on the case of Michael Njagi Karimi v Gideon Ndungu Ngunjiri & Anor (supra). On the one hand, the Respondent’s proposed an award of Kshs. 200,000/- and relied on the case of Simon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR where the court upheld an award of Kshs. 200,000/- in 2013 for compound comminuted fracture of left tibia fibula with severe friction burn on the left thigh and leg. The Respondent also relied on Kennedy Okoyo Odhiambo v James Kariuki [2011] eKLR.

13. In my view, the cases cited by the Appellant are way on the higher side as they do not reflect the general trend of awards for comparable injuries. On the other hand, the authorities relied on by the Respondent are too low and quite dated.

14. In Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR the Plaintiff sustained compound fractures of the tibia/fibula bones on the right leg; deep cut wound and tissue damage on the right leg; head injury with cut wound on the nose; blunt chest injury and soft tissue injury on the left lower limb involving the high and ankle region. The appellate court set aside the trial court’s award of Kshs 600,000/- on account of general damages for pain, suffering and loss of amenities and substituted it with a general damages award of Kshs 400,000/-. In Naom Momanyi v G4S Security Services Kenya Limited [2018] eKLR, the Appellant sustained a fracture of the left-right condylar tibia, blunt injuries on the back and multiple bruises on the left arm and was awarded Kshs. 300,000/-.In Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR, the appellate court upheld an award of Kshs. 500,000/- for a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe.

15. Looking at the above recent decisions on comparable injuries, it is evident that the trend is to award general damages ranging from Kshs 300,000/- to Kshs. 500,000/-. I therefore find that the trial court did not err in its assessment of general damages for the injuries sustained and I will not interfere with the same.

16. Consequently, the appeal is hereby dismissed for lacking in merit. There shall be no orders as to costs. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 25TH JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:Mr. Owour for the Appellant.Mre.Thairu for the Respondent.