[2022] KEHC 1091 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 54 OF 2018

LUNGA LUNGA TRANSPORTERS LTD......................................................1ST APPELLANT

AHMED ABDIRAHIM.....................................................................................2ND APPELLANT

-VERSUS-

FELISTUS NGWAU KAKII alias FELISTER GAKII.......................................RESPONDENT

(Being an appeal from the judgment of the Senior Principal Magistrate’s Court

at Makindu Law Courtspronounced by Hon. Magori on 13th July 2018

in PMCC No. 248 of 2016)

JUDGMENT

1. In a judgment delivered on 13/7/2018 the learned magistrate entered judgment for the respondent (plaintiff in the trial court) against the appellant (defendant in the trial court), based on liability at 85:15 from the decision in test suit No. 261 of 2016, and awarded damages as follows –

General damages ………………………….…. Kshs. 300,000/=

General damages for loss of earning …… Kshs. 200,000/=

Special damages ……………………………….Kshs. 3,100/=

Total damages ………………………………… Kshs .503,100/=

Less 15% contribution ………………….… Kshs. 75,465/=

Net award ……………………………….…….. Kshs. 427,635/=

Plus costs and interest

2. Dissatisfied with the above award of damages by the trial court, the appellants have come to this court on appeal through counsel on the following grounds –

1) That the learned magistrate erred and misdirected himself in law and fact in awarding manifestly (high) and excessive general damages to the respondent of Kshs.503,100/= contrary to laid down precedents for analogous injuries.

2) The learned magistrate erred both in law and fact in awarding the respondent an amount of Kshs.200,000/= for diminished earning capacity.

3) The learned magistrate erred and misdirected himself in law and fact by applying the wrong (principle) and or did not apply the correct law, tests, doctrines and principles relating to evidence produced by the plaintiff.

4) The learned magistrate erred in law and in fact by taking irrelevant matters and or by not taking relevant matters/evidence into consideration.

3. The appeal was canvassed through filing written submissions. In this regard, I have considered the submissions filed by Mugambi Mungania & company for the appellants and S.N Ngare & company for the respondents. I note that each counsel has relied a number of decided court cases.

4. This is an appeal on quantum of damages. In considering the appeal, I have to bear in mind that this being an appeal on quantum of damages, the principles to be applied by an appellate court in deciding whether to interfere with an award of damages of a trial court, have been considered in several decided court cases. In my view, it will suffice if I cite the case of Kemfro Africa Ltd & Another –vs- Lubia & Another (1982 – 88) KLR in which the Court of Appeal stated as follows –

“In deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge, an appellate court must be satisfied that the Judge in assessing 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 damage”.

5. I note that at the trial, the respondent (who was plaintiff) called two witnesses. Pw1 was Dr. Dorcas Kavuli Musyoki of Makindu Sub-county hospital who examined the respondent Felister Kakii and charged Kshs.2,000/= and Kshs.10,000/= a total of Kshs.12,000/= for both the medical report and the court attendance to testify. The doctor assessed permanent disability suffered at 30%.

6. Pw2 was the respondent Felistus Nthuka Kakii whose evidence was that she worked at Leopard Beach Hotel in Ukunda and was involved in a road traffic accident on 3/3/2016 when she was a passenger in a bus. She was injured and though she used to work as a room steward, now she works as a linen attendant, which is lighter duty as a result of the accident.

7. The appellant (defendant) did not call any witness but by consent their medical report of Dr. Wokabi dated 8/11/2016 was produced in court as evidence.

8. The appellant has now come to this court, challenging the quantum of damages awarded by the trial court. The appellant’s counsel particularly attacks the award of Kshs.300,000/= for general damages and that for Kshs.200,000/= for future diminished earing capacity. Counsel argues that the two awards are either inordinately high or not justified at all.

9. With regard to the award of Kshs.300,000/= for general damages, counsel proposes a figure of Kshs.100,000/=. Having considered the entire evidence on record, and the fact that the learned magistrate adopted the appellants’ doctor’s lower assessment of permanent incapacity suffered of 8% by Dr. M. W. Wokabi for the appellant, who did not testify and be cross examined, and taking into account the injuries confirmed by Dr. Wokabi in the report dated 8/11/2016 that the respondent had suffered complete dislocation of right shoulder, not able to carry or lift heavy objects and that the complaints of the appellant were justified, in my view the general damages figure of Kshs.300,000/= was not manifestly excessive. I will thus not disturb this figure.

10. With regard to the award for diminished earning capacity of Kshs.200,000, counsel for the appellants has argued that the award is misplaced and should be set aside altogether.

11. Again, considering the evidence on record, the respondent Pw2 clearly stated that she used to work as a room attendant doing more strenuous work with her hands, and is now performing lighter duties of linen attendant due to the accident. This has not been controverted, which is evidence of reduced capacity to do work, or the work she was employed to do. In addition, Dr. Wokabi noted in his report that the respondent had pain in the right shoulder and was not able to carry or lift heavy objects, and that though rehabilitation of the joint is optimally achieved, she has some genuine complaints.

12. Thus in my view, it cannot be said that the award for loss of future earning capacity has no basis in law. It is also to be borne in mind that this award is a one-off fixed figure for loss of capacity for a lifetime. In my view therefore the learned magistrate, who saw the respondent testify to determine her demeanor, was entitled to award a reasonable amount of damages for lost future earing capacity based on the medical evidence on record. The figure of Kshs.200,000/= in my view, is not inordinately high or unjustified.

13. For the above reasons therefore, I find no merits in the appeal. I dismiss the appeal, uphold the decision of the trial court and award costs to the respondent.

Delivered, signed & dated this 29th day of March, 2022, in open court at Makueni.

......................

George Dulu

Judge