[2017] KEHC 9607 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 163 OF 2015

MACHARIA FRANCIS MUNDUI............................................1ST APPELLANT

DUDE FILLING STATION LIMITED ......................................2ND APPELLANT

VERSUS

JOEL WANJE..............................................................................RESPONDENT

(Being an appeal from the Judgment delivered on 17th March, 2015 by Hon. Mr. C. Obulutsa (Ag. Chief Magistrate) Milimani Commercial Courts in CMCC No.6849 of 2015)

JUDGMENT

1. The Respondent, Joel Wanje filed the suit in the lower court vide a Plaint dated 24th October, 2012. The claim was for damages arising out of a Road Traffic Accident. The Appellants, Macharia Francis Mundui and Dude Filling Station Limited who were the Defendants in the Lower Court were sued as the driver and owner respectively of motor vehicle registration No. KAP 024Z. The Plaintiff blamed the accident on the alleged negligent manner in which the motor vehicle was driven at the material time.

2. The Plaintiff prayed for judgment against the Defendants jointly and severally for:

“(a) General damages for:-

(i) Pain, suffering and loss of amenities of life.

(ii) Costs of artificial limbs over the years.

(iii) Loss of earnings from October 2012, after trial and before Judgment.

(iv) Diminished or loss of earning capacity.

(b) Lost earnings up to October, 2012 Ksh.358,176/=.

(c) Special damages.

(d) Costs and interest.”

3. The Defendant denied the claim through the Statement of Defence dated 21st June, 2013. The Defendants contended that if the accident occurred, then it was solely or substantially contributed to by the Plaintiff.

4. The Plaintiff filed a reply to the defence and denied any negligence on his part.

5. The Plaintiff’s side called three witnesses. That is the Plaintiff (PW2), a Police Officer P.C. Isaac Muthomi (PW1) and an eye witness, Michael Saka (PW3). The Plaintiff’s case was that he was walking off the road along Lunga Lunga road with two of his colleagues from the office. That the motor vehicle in question came from the direction of Donholm estate and veered off the road and hit him. That the Plaintiff’s both legs were crushed and he was rushed to Mater Hospital where he was admitted and later transferred to Kenyatta National Hospital (KNH). Treatment included the amputation of his left leg. That the Plaintiff’s employment as a graphic designer was subsequently terminated by his employer.

6. Macharia Francis the driver of the motor vehicle in question testified on the Defendants’ side. He adopted his written statement as his evidence. The Defendants’ case was that the motor vehicle was loaded with petroleum products and could not move fast and was at a speed of about 10 Kph. That while he was about to join a junction, he was stopped by pedestrians who informed him that there was a person under the motor vehicle. That he stopped and reversed and it was then he saw a badly injured middle aged man under the motor vehicle.

7. The trial magistrate entered judgment in favour of the Plaintiff on 100% basis liability. Damages were assessed follows:

(a) General damages 3,000,000. 00

(b) Costs of prosthesis 1,200,000. 00

(c) Loss of past earnings 246,246. 00

(d) Special damages 291,365. 00

Total 4,737,611. 00

8. The Appellants were dissatisfied with the said judgment and appealed to this court on the following grounds:

“1. That the learned Magistrate erred in law and fact in failing to consider the appellants’ submissions and authorities while considering his judgment.

2. That the learned Magistrate erred in law and in fact in disregarding the documentary and oral testimony given by the defence.

3. That the learned Magistrate erred in law and in fact by failing to take into consideration the contribution of the respondent in relation to the accident.

4. That the learned trial Magistrate erred in law and in fact in finding that the appellants were 100% liable for the accident against the evidence on record.

5. That the learned Magistrate erred in law and fact in failing to apply proper legal principles regarding liability and thus arriving at a bad decision.

6. That the learned Magistrate erred and misdirected himself when he awarded to the respondent special damages of Ksh.291,365/= even when the said damages were not specifically proved in evidence.

7. That the learned Magistrate erred in law and in fact in awarding the plaintiff the claim for loss of past earnings while the injuries involved did not affect the respondent’s hands and mind which he used as an IT designer.

8. That the learned Magistrate erred in law and fact in awarding special damages based on invoices.

9. That the learned Magistrate erred in law and fact in awarding loss of past earnings while the same was not proved.

10. THE Learned Magistrate erred in law and fact in his assessment of the cumulative cost of artificial leg thereby arriving at an excessive and erroneous estimate.

11. That the learned Magistrate erred in Law and fact in making an award on quantum that was excessive as to amount to an erroneous estimate of loss or damage suffered by the Respondent.”

9. The Appellants prayed that the appeal be allowed and:

“(a) This court be pleased to set aside the judgment of the trial court and to make a fresh finding on liability apportioning liability equally between the parties.

(b) That this Court be pleased to set aside the award of damages and to make a fresh assessment of damages.

(c) Costs of this appeal be awarded to the Appellants.”

10. During the hearing of the appeal, the respective counsels for the parties herein opted to file written submissions. I have considered the said submissions and the authorities cited.

11. This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. See for example the case of Selle v Associated motor Boat Co. & others [1968] E.A. 123 where it was stated as follows:-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

12. The grounds of appeal can be condensed into two. That is the question of liability and quantum of damages.

13. On liability, the Plaintiff’s (PW2) evidence that he was walking off the road when the accident occurred was corroborated by that of the eye witness (PW3). The evidence of PW3 was that the motor vehicle veered off the road while it was negotiating a junction and in the process hit the Plaintiff.

14. The evidence of the police officer (PW1) reflects that the accident is pending under investigations. No traffic offences were preferred. Although the copy of the investigations diary produced reflects that the Plaintiff was crossing the road, the statement recorded at the police station by (PW3) does not reflect that the Plaintiff was crossing the road but states that the Plaintiff was on the roadside.The statement recorded by the driver does not reflect that the Plaintiff was crossing the road. It is therefore not clear where the police officer who made the entries in the investigations diary obtained the information regarding the crossing of the road from.

15. The evidence of the driver (DW1) established that he did not know how the Plaintiff was knocked down by the motor vehicle. The driver’s evidence does not reflect whether the vehicle remained on the road throughout without going off the road. Thus the evidence by the Plaintiff’s side that the motor vehicle veered off the road is uncontroverted by the any other evidence.

16. After evaluating the evidence on record, I am satisfied that the Plaintiff proved his case on liability on 100% basis. I have no reason to differ with the findings of the trial magistrate who had the benefit of seeing the witnesses testify and observed their demeanour.

17. The trial magistrate assessed general damages at Ksh.3,000,000/=. The Appellant in ground No11 of the grounds of appeal has termed the award of quantum as excessive. The medical report by Dr. Wokabi dated 6th June, 2012 stated that the Plaintiff sustained the following injuries:

(a) Major severe crash injury of the left leg in the region of the thigh and knee. The leg was amputated above the knee.

(b) Complete fracture of the left femur. This fracture healed after conservertive treatment.

(c) Extensive avulsion wound on the right thigh. He lost a lot of skin and muscles. X-rays done revealed presence of fracture of the right femur. Surgical toilet was done and later skin grafting of the extensive wounds done.

(d) Deep abrasions on back of the right hand. This wound was done surgical toilet and dressed.

18. The Plaintiff was slowly mobilized with crutches which he was still using on the date of the examination. The medical report reflects that the Plaintiff requires to be fitted with an artificial limb at a cost of Ksh.150,000/= and that such a limb would require to be changed every five years. The fracture of the right leg united well. Physiotherapy sessions were recommended twice a week for six months at a cost of Ksh.50,000/=.

19. During the hearing in the Lower Court, the Plaintiff submitted for an award of Ksh.4,000,000/= for pain, suffering and loss of amenities. He relied on the following cases:

(a) Mombasa HCCC 70 of 1997 – An award of Ksh.2,000,000/= was made in 2006 for multiple fractures with plating.

(b) James Katua Peter Machakos HCCC 135 of 2001 – An award of Ksh.2,000,000/= was made for fractures of the hip requiring total hip replacement in year 2008.

(c) James Njau Kariuki Eldoret HCCC 2 of 2005 – An award of Ksh.3,000,000/= was made in year 2007 for multiple fractures of the hip.

(d) Jackson Mutuku Ndetei Civil appeal No. 6 of 2003 – An award of Ksh. 2,000,000/= was made in year 2007 for amputation of a leg and fractures of the other leg.

(e) NBI HCCC 492 of 2010 – An award of Ksh.2,500,000/= was made for amputation of a hand in year 2012.

(f) NBI HCCC 410 of 2006 – An award of Ksh.3,000,000/= was made for multiple fractures with permanent incapacity of between 24 and 25% per both doctors assessment. This was in April, 2014.

20. On the other hand the Defendants submitted for an award of Ksh.800,000/= as general damages. The following precedents were relied as:

(i) Jane Otieno v Mombasa Liners Limited & another [2005] eKLR:

The Plaintiff suffered a crash fracture to the right leg leading to it ‘s amputation below the knee, fracture of the left radius and ulna which was markedly displaced, deep cut on the left leg and injuries to the left shoulder and elbow. She was 48 years at the time of the accident. General damages for pain and suffering were assessed at Ksh.800,000/= Damages for loss of earning capacity was assessed at Ksh.300,000/= adopting a multiplier of 10 years

(ii) Simon Mburu Wanjiku v Charles Wamugu Wamiti [2009] eKLR:

The plaintiff suffered severe multiple communited fracture of the right tibia/fibula necessitating amputation above the knee.The doctor assessed permanent incapacity at 50%. He was awarded Ksh.800,000/= general damages for pain and suffering which was confirmed on appeal. He was aged 30 years and the court considered a multiplier of 20 in assessing loss of future earnings.

21. I have considered the submissions by the counsels for the respective parties. The award of Ksh.3,000,000/= is within the range of similar injuries and this court will not disturb the same. I am guided by the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia and olive Lubia 91985) 1 KAR 727,where the Court of Appeal observed:-

“....the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.....”

22. It is noted that the trial magistrate made no award for the loss of earning capacity. The trial magistrate observed that the Respondent was able to continue working productively as a graphic designer. There is no cross-appeal in respect of this claim. The same is not therefore one of the grounds of appeal being considered by this court.

23. The Respondent was awarded the sum of Ksh.246,246//= as loss of earnings for eleven months from the date of injury to the date of filing suit. Loss of earnings is a special damage claim. It has to be specifically pleaded and proved. (See for example Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR).

24. In the case at hand, the Respondent produced his employment documents in court. Although the Respondent testified that his employer terminated his services following the accident, no documentary evidence for such termination was tendered in court. No explanation was given for lack of such evidence, seeing that the Respondent was able to produce his letter of employment which is a document that came earlier. No oral evidence from the employer was called either. Although the Respondent specifically made a claim for loss of past earnings, the same was not proved and I set the same aside. In any event, taking into account the award of Ksh.3,000,000/= general damages award, an award under this head will either be an overlap with the award of general damages or make the award inordinately high when looked at as a composite figure. (See for example Mumias Sugar (Supra)).

25. In the plaint, the Plaintiff failed to give the particulars of special damages although he made a claim for the same. The Plaintiff had the plaint amended orally in court on 26th January, 2015 and the court ordered that “Plaint amended to read special damages as provided.” It is not clear where same was provided. Special damages must be specifically pleaded and proved. In the case at hand, the particulars of the special damages claimed were not specifically pleaded. Same could not be proved if not pleaded. I set aside the award of the Ksh,291,365/= special damages. In any event the plaintiff in his evidence stated that the KNH bill of Ksh.450,000/= was paid by National Hospital Insurance Fund (NHIF) and the Mater Hospital bill of Ksh.269,265/= was paid by his employer. Payment of the sum of Ksh.269,265/= awarded as special damages to a large extent would thus amount to double payment.

26. The Plaintiff’s age is given in the medical report as 38 years in the year 2012. At the material time in year 2011 he was about 37 years of age. The cost of the artificial limb was given in the medical report at Ksh.150,000/= every five years. If one was to use a multiplier of six times, that would take the age for purchasing the last prosthesis to 67 years of age to last up to 72 years, God willing. Ksh.150,000 x 6= Ksh.900,000/=. This in my view is reasonable as it will be paid in a lumpsum. The sum of Ksh.1,200,000/= awarded by the Lower Court is on the higher side.

27. In the upshot the total award to the Respondent reads as follows:

(a) General damages Ksh.3,000,000/=

(b) Costs of prosthesis Ksh. 900,000/=

(c) Loss of earnings Nil

(d) Special damages Nil

Total Ksh.3,900,000/=

28. Consequently, the judgment of the Lower Court is hereby set aside and substituted with one for Ksh.3,900,000/=. The Appellant to bear the costs in the Lower Court. This appeal was about 18% successful. Appellant to bear 82% of the costs of the appeal.

Dated, signed and delivered at Nairobi this 14th day of Nov., 2017

B. THURANIRA JADEN

JUDGE