[2022] KEHC 14912 (KLR)

Machogu v Bor (Civil Appeal E020 of 2021) [2022] KEHC 14912 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14912 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E020 of 2021

RL Korir, J

November 9, 2022

Between

James Bosire Machogu

Appellant

and

Kenneth Bor

Respondent

(Being an Appeal from the Judgment of Honourable Evans Muleka (PM) dated 17th August 2021 in the Principal Magistrate’s Court at Bomet, Civil Case Number 99 of 2019)

Judgment

1. The Plaintiff (now Respondent) sued the Defendant (now Appellant) for General and Special Damages arising out of an accident that occurred on March 25, 2019 between Motor Vehicle Registration Number KCE xxxC and Motor Cycle Registration Number KMCQ xxxQ.

2. In its Judgment delivered on August 17, 2021, the trial court apportioned 50% of the liability to the rider of the Motor Cycle, 10% to the Plaintiff (Kenneth Bor) and 40% to the Defendant (Joseph Bosire Machogu). The Plaintiff was also awarded General and Special Damages of Kshs 633,864/= plus costs and interest of the suit.

3. Being dissatisfied with the judgment of the trial court, the Defendant/Appellant appealed to this court against the trial court’s findings on quantum of damages vide his Memorandum of Appeal dated August 24, 2021. He raised the following grounds:-i.That the learned trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award of Kshs 1,500,000 which was overly excessive in the circumstances of the case.ii.That the learned trial Magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that was appropriate and applicable in similar injuries as the case he was deciding.iii.That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.

4. The Appellant prayed that this court set aside the trial court’s judgment and replace it with its own assessment.

5. The Respondent/Plaintiff subsequently filed a Memorandum of Cross Appeal dated September 16, 2021 on the following grounds:-i.That the learned trial Magistrate erred in law and in fact by awarding general damages which were inadequate in the circumstances.ii.That the learned trial Magistrate erred in law and in principle by adopting a wrong approach in computation of the general damages and by departing from the trends contained in the authorities cited by the Appellee which were binding on him and adopting a method which was erroneous in the circumstance and thereby occasioning miscarriage of justiceiii.That the learned trial Magistrate erred in law and in fact by holding the rider liable at 40% whereas the same was not a party to the suit and a complete stranger to the proceedings and no evidence was adduced to hold him liable as such.iv.That the learned trial Magistrate erred in law and in fact by holding the Appellee/Respondent liable at 10% whereas the evidence on record did not disclose any negligence and neither was the same proved or at all.

6. The Respondent (who was the Appellant in the Cross Appeal) also prayed that the trial court Judgment be set aside. For clarity of the record, the Appellant and Respondent shall throughout this judgment refer to the Plaintiff and Defendant respectively.

The Plaintiff’s/Respondent’s Case 7. It was the Respondent’s/Plaintiff case that he was involved in a road accident on March 25, 2019 between Motor Cycle Registration Number KMCQ xxxQ where he was a pillion rider and Motor Vehicle Registration Number KCE xxxC which was driven by the Appellant’s driver or agent.

8. It was the Respondent’s /Plaintiff case that the Appellant was negligent in the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint.

9. That as a result of the accident, he suffered the following injuries:-a.Bruises on the face.b.Compound right segmental tibia fracture.c.Bruises on the occipital region.d.Degloving injury on the right leg.e.Right medical malleolar fracture.

10. The Respondent/Plaintiff prayed for Special and General Damages against the Appellants. There is no evidence from the record that the Appellant/Defendant ever took out 3rd party proceedings against the motor cycle rider or the owner.

The Respondent’s Written Submissions. 11. The Respondent/ Plaintiff submitted that it must be proved that he owed the Appellant a duty of care and that duty was breached. It was the Respondent’s further submission that the Appellant attributed the accident to the Respondent’s negligence but he did not adduce any evidence in support of his claim. That the Appellant did not take out third party proceedings against the third party rider.

12. It was the Respondent’s/ Plaintiff’s submission that his evidence as to the circumstances of the accident remained unchallenged and that in any case, he was a passenger in the Motor Cycle and he could not have caused the accident. He relied on the case of Joseph Kahinda MainavsEvans Kamau Mwaura & 2others (2014) eKLR to support his submission.

13. The Respondent/Plaintiff submitted that the trial court’s apportionment of liability was unfounded in law and that the Appellant/ Defendant ought to be held 100% liable.

14. It was the Respondent’s/ Plaintiff’s submission that the injuries he suffered were confirmed by two doctors. That Dr. Jenipher Kahuthu examined him 6 months after the accident and confirmed all the injuries. It was his further submission that the award of Kshs 633,864 was not high. But was inordinately low and ought to be substituted with the award of Kshs 2,000,000. The Respondent/Plaintiff submitted that the injuries in the aforementioned cases were similar to his and that it was trite law that the general method of assessment of damages was to award damages comparable to those awarded in similar injuries. To support his submission, he cited: Patrick Kinyanjui Njamavs Evans Juma Mukweyi (2017) eKLR And Zachary KariithivsJashon Otieno Ochola (2016)eKLR.

The Appellant’s/Defendant’s Case 15. In his Statement of Defence and evidence in the trial court, the Appellant /Defendant denied the occurrence of the accident on 25th March 2019 involving Motor Cycle Registration Number KMCQ xxxQ and Motor Vehicle Registration Number KCE xxxC. The Appellant further denied being the owner of the aforementioned accident Motor Vehicle.

16. It was the Appellant’s/Defendant’s case that if the accident occurred then it was caused by the negligence and carelessness of the Respondent/Plaintiff and the rider and/or owner of the aforementioned Motor Cycle. The particulars of negligence of the Respondent and the rider were contained in paragraph 10 of the Defence.

The Appellant’s/defendant’s Written Submissions 17. The Appellant/ Defendant submitted that the Respondent/Plaintiff failed to prove his case on a balance of probabilities hence the trial court was correct in awarding the liability at 50% for the rider, 40% against him and 10% against the Respondent. That as per the abstract dated April 2, 2019, the Appellant was not blamed for the accident. It was his further submission that the Respondent was guilty of contributory negligence as he stated upon cross examination that he was seated in the middle of the motor cycle which meant that there were 3 people aboard.

18. It was the Appellant’s/Defendant’s submission that the apportionment on liability should not be disturbed. He relied on the following cases; Benter Atieno ObonyovsAnne Nganga & Another (2021) eKLR and Calistus Juma MakhanuvsMumias Sugar Co. Ltd & Another (2021) eKLR to support this submission. That the trial court was correct when it found each party played a role in the occurrence of the accident.

19. The Appellant/Defendant submitted that the award of Kshs 1,500,000 as General Damages was very high and ought to be reduced. That the assessment of General Damages was a discretionary exercise which ought to be exercised judicially with wise circumspect and on legal principles. It was the Appellant’s/Defendant’s further submission that this court would interfere with the award if the trial court took into account an irrelevant factor, left out a relevant factor or the amount awarded was too high or too low.

20. The Appellant/ Defendant further submitted that awards must be within consistent limits and that comparable injuries and comparable awards must be taken into account. That the Respondent did not suffer any permanent incapacity. He relied on the cases of Denshire Muteti WambuavsKeny Power & Lighting Co. Ltd (2013) eKLR and Godfrey Wamalwa Wamba & AnothervsKyalo Wambua (2018) eKLR to support his submission.

21. It was the Appellant/Defendants submission that the Respondent/Plaintiff suffered soft tissue and fracture injuries. In regards to soft tissue injuries he relied on the following cases; George Mugo & AnothervsAKM (Minor Suing Through Next Friend And MotherofANK) (2018) eKLR, George Kinyanjui T/A Climax Coaches & AnothervsHussein Mahad Kuyala(2016)eKLR, Ndungu DennisvsAnn Wangari Ndirangu & Another (2018) eKLR, Pf (Suing As Next Friend And Father Of Sk (Minor))vsVictor O Kamadi & Another (2018) eKLR, Godwin IrerivsFranklin Gitonga (2018) eKLR And Lamu Bus Services & AnothervsCaren Adhiambo Okello (2018) eKLR as comparable case law with comparable injuries which this court could use in awarding damages.

22. In regard to the fractures, the Appellant relied on the following cases; Ndungu Wambui & 2othersvsVk (A Minor Suing Through Next Friend And MotherMCWK)(2019) eKLR, Mbithi Muinde William Vs Rose Mutheu Mulatia (2019) eKLR, Naom MomanyivsG4s Security Services Kenya Limited (2018) eKLR, Wakim Sodas LimitedvsSammy Aritos (2017) eKLR and Gladys Lyaka MwombevsFrancis Namatsi & 2others (2019) eKLR.

23. The Appellant submitted that an award of Kshs 350,000 was sufficient as General Damages for both the soft tissue and fracture injuries. That this amount be subjected to the liability as apportioned in the trial court.

AnalysisIn proceeding in this appeal I am cognizant that I must treat the case as a retrial. This principle was aptly stated by the Court of Appeal in Gitobu Imanyara & 2othersvsAttorney General (2016) eKLR, thus:-“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 allowances in this respect”

24. In its appellate role, this court also has a duty to review the evidence adduced before it and satisfy itself that the decision reached was well founded. In the case of Selle & AnothervsAssociated Motor Boat Co. Ltdandothers (1968) EA123, the Court of Appeal pronounced itself as follows:-“…..this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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. . . . “

25. I have considered the Record of Appeal dated November 2, 2021, the Cross Appeal dated September 16, 2021, the Appellant’s Written Submissions dated April 12, 2022, the Respondent’s Written Submissions dated March 16, 2022 and I find that both the Appellant’s Appeal and the Respondent’s Cross Appeal revolve around liability and quantum. I isolate three issues for my determination as follows:-i.Whether the claim was proved to the required legal standard.ii.Who was liable for the accident?iii.Whether the quantum of damages was appropriate.

I. Whether the claim was proved to the required legal standard 26. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 of the Evidence Act provide as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

27. The Halsbury’s Laws of England, 4th Edition, Volume 17, describes such burden of proof as:-“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

28. It is trite law that the burden of proof in civil cases is that of on a balance of probability. (See Court of Appeal case of Kirugi & Another vs Kabiya & 3 others [1987] KLR 347 and Kanyungu Njogu vs Daniel Kimani Maingi (2000)eKLR)

29. It was not in dispute that the Respondent/ Plaintiff was involved in an accident on March 25, 2019. That the accident involved Motor Vehicle Registration Number KCE xxxC and Motor Cycle Registration Number KMCQ xxxQ in which the Respondent was a pillion rider. It was also not in dispute that the Respondent suffered injuries as a result of the said accident.

30. The Respondent produced a Police Abstract dated May 9, 2019 that was marked as P.Exh 5 which confirmed that the accident occurred on March 25, 2019 between a Toyota Probox, Motor Vehicle Registration Number KCE xxxC and Motor Cycle Registration Number KMCQ xxxQ at around 6 p.m.

31. The Respondent also produced a copy of the Motor Vehicle Records dated May 29, 2019 that was marked as P. Exh 6 (a) which indicated that the registered owner of Motor Vehicle Registration Number KCE xxxC was the Appellant/ Defendant James Bosire Machogu. It is my finding that the Appellant was the registered owner of the Motor Vehicle involved in the accident and was a proper party to the proceedings.

32. The Respondent produced a Medical Report dated May 20, 2019, Treatment Notes and a Discharge Summary from Tenwek Hospital that were marked as P. Exh 1, 2 and 3 respectively. It is also salient to note that the Respondent went for a second medical examination before Dr. Jenipher Nyawira Kahuthu who testified as DW1 and produced a Medical Report dated August 26, 2019 and marked as D. Exh 1.

33. 2 is a Charge Sheet for Physical Therapy Aids and it was wrongly produced as the Treatment Notes. This exhibit shows that the Respondent spent Kshs 3,000 for Metallic Crutches. Though P. Exh 2 is of little probative value as far as proof of the injuries is concerned, I am convinced by the other evidence in the Discharge Summary and the two Medical Reports which revealed that the Respondent had suffered various injuries as a result of the accident.

34. In his Defence, the Appellant/Defendant called DW1 (Dr. Jenipher Nyawira Kahuthu) who testified as to her findings when she examined the Respondent. The Appellant/Defendant did not call any witness who could rebut the evidence of the Respondent or shed light on the occurrence of the accident.

35. Flowing from the above, the Respondent/Plaintiff proved that he was a pillion passenger in Motor Cycle Registration Number KMCQ xxxQ when it was involved in an accident with Motor Vehicle Registration Number KCE xxxC and that he suffered injuries. He further proved that the Appellant/Defendant was the owner of Motor Vehicle Registration Number KCE xxxC.

36. It is my finding that the Respondent/ Plaintiff proved his case against the Appellant on a balance of probabilities.

II. Whether apportionment of liability was proper and lawful 37. The Appellant/Defendant appealed specifically on the issue of quantum. He submitted that the trial Magistrate’s finding on liability was sound as he stated that each party had contributory negligence and was at fault in the accident.

38. The Respondent/Plaintiff disputed the liability of 10% apportioned to him by the trial court. He also disputed the liability of 50% apportioned to the rider of the Motor Cycle as the rider was not a party to the suit in the trial court. He submitted that the Appellant attributed negligence to him and the Motor Cycle rider but did not adduce any evidence. That further, the Appellant never bothered to take out any third party proceedings.

39. The trial court apportioned 50% to the rider of the Motor Cycle, 10% to the Respondent and 40% to the Appellant. When the Respondent was cross examined, he stated that he was the middle passenger, which in my view indicated that there were more than one pillion passengers. The Respondent also submitted that the trial court’s finding on liability was unfounded in law.

40. Having evaluated the arguments and keenly looked at the record, I find that the learned trial Magistrate misdirected himself when he apportioned 50% of the liability to the rider of the Motor Cycle Registration Number KMCQ xxxQ when he knew very well that the said rider was not a party to the trial court proceedings. The claim in the Plaint was directed towards the Appellant and not the rider. There are no third party proceedings in the court record to indicate the rider was enjoined as a party in the proceedings. The rider of the Motor Cycle was wrongfully apportioned liability by the trial court. I adopt the observation by Kimaru J. (as he was then) in Pauline Wangare MburuvsBenedict Raymond Kutondo (2005) eKLR where he stated that:-“The defendant did not deem it necessary to issue a third party notice to enjoin the owner of motor vehicle registration number KAH xxx V to this suit. In the circumstances therefore, it would be moot for this court to apportion liability to a person who is not a party to this suit.” (Emphasis added)

41. A finding and apportionment of liability by a trial court call calls for exercise of judicial discretion based on the evidence adduced and an appellate court can only interfere if the finding is not supported by the evidence on record (See EN v Hussein Dairy Limited & 3 others (2020)eKLR).

42. The Appellant and the Respondent blamed each other for being negligent as to the cause of the accident. Negligence is defined in the Black’s Law Dictionary, 10th Edition as:“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. . . . . The elements necessary to recover damages for negligence are (1) the existence of a duty on part of the defendant to protect the plaintiff from the injury complained of, and (2) an injury to the plaintiff from the defendant’s failure.

43. Negligence is a specific tort that comes from the common law jurisprudence. Generally, in a claim of negligence, the Plaintiff ought to establish that the Defendant owed him a duty of care, that there was a breach of the duty of care and as a result of that breach, the Plaintiff suffered damages. The principles involved in a claim of negligence were established in the case of DonoghuevsStevenson (1932) UKHL 100 , where it was held:“The law takes no cognisance of, carelessness in the abstract. It concerns itself with carelessness only where there is duty of care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. . . the cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in breach of that duty”.

44. Before a claim can succeed in an action for negligence, the damages alleged must be recognized by law. In the case of Anastassios ThomosvsOccidental Insurance Company Limited (2017), the High Court held that:“When it comes to remoteness of damages, the court ought to determine whether there was sufficient cause or proximate connection between the defendant’s negligence and the damages suffered by the Plaintiff that is recognisable as a matter of policy that the Defendant should pay the damages”.

45. In the case of Cotecna Inspection S.AvsHems Group Trading Company Limited (2007) eKLR, the Court of Appeal held that:-“My analysis and evaluation of the evidence, a summary of which is given above, must only be confined to the question as to whether or not that breach of duty was the cause of the losses the respondent suffered and if so, whether the assessment of damages was properly carried out by the trial court. But first, the law. What are the principles to be applied when considering the nexus between the acts of the offending party and the loss suffered by the offended party. I do agree with both learned counsels that there must be a link between the action complained of and the loss incurred. That to me, goes without saying and is a matter of common sense. It underlines the doctrine of remoteness of damages”.

46. A Plaintiff must show that the damages suffered are as a result from the Defendant’s negligence. Without proof of causation, negligence cannot be actionable and/or sustainable. This was addressed by Visram J (as he then was ) in the case of Elijah Ole KoolvsGeorge Ikonya Thuo (2001) eKLR, where he stated:“When will an act or omission be said to be the cause of the Plaintiff’s injuries” a defendant will only be held liable for negligence if his act or omission is either the sole effective cause of the Plaintiff’s injury or the act or omission is so connected with it as to be a cause materially contributing to it. The first case will rarely raise contentions”.

47. In the case of Anastassios Thomos (supra), Njuguna J stated that:-“In the work of Charles worth & Peray on Negligence, 7th Edition, it is state as follows;“Evidence of causation must be given on behalf of the plaintiff. Before a case can be considered, either direct or circumstantial evidence must be called on behalf of the plaintiff. Whatever evidence is so called, it must tend to show how the accident happened and how, as a result, he sustained his personal injuries or suffered his damage. Such evidence also must show that on a balance of probabilities, the most likely cause of the damage was the negligence or breach of duty of the defendant, his servant or agent and not solely the negligence of some other person. If he fails to establish that the defendant caused the harm, of which he complains, or some part of it, then his action will fail. Such a failure will result whether this happens to be expressed in terms of lack of result or for reasons of remoteness.It is a question of law, whether the evidence adduced allows a reasonable finding of causation, but it is a question of fact, whether any particular head of damages is so caused by a defendant’s negligence or breach of duty”.

48. The Respondent/Plaintiff adopted his witness statement as evidence and this statement contained the particulars of the negligence that he alleged against the Appellant. The Appellant/Defendant chose not to cross examine the Respondent on the particulars of negligence and further, the Appellant/ Defendant did not provide any evidence to rebut his evidence and shift the negligence to the Respondent. The Appellant’s witness testified to the injuries sustained by the Respondent and that evidence was of a medical nature. It is my finding that the Respondent/Plaintiff proved causation by the Appellant as he linked the cause of action by the Appellant/Defendant as the sole cause of the accident.

49. The Respondent/Plaintiff stated that he a middle passenger. As earlier stated, this meant that the Motor Cycle had more than one pillion passenger. This was contrary to the National Transport and Safety Authority (Operation of motorcycles) Regulations 2015. Regulation 7(1) provided:-“Responsibilities of a Passenger(1)Every passenger in a motorcycle shall —(a)properly wear a helmet and reflective jacket whenever being carried on a motorcycle;(b)not board or be carried on a motorcycle that already has a passenger except as provided by Regulation 7 (2) (a);(c)not board or be carried on a motorcycle that is carrying any load;(d)sit astride in the seat fixed behind the rider’s seat.”

50. The only exception as provided for under Regulation 7(2) (a) was for a child who is less than thirteen years and such a child may be carried together with an adult provided the child is seated between the rider and the adult and wears a helmet designed for children. The Respondent described himself as an adult of sound mind who resided and worked for gain in Sotik within the Republic of Kenya.

51. The Traffic Act Cap 403 Laws of Kenya provides for the law relating to traffic on the road. Section 68(3) of the Traffic Act provides:-“A failure on the part of any person to observe any provisions of the highway code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.”

52. It is my finding that though the Respondent/Plaintiff proved negligence on the part of the Appellant/Defendant, he had to bear some share of liability as he broke the law by boarding a Motor Cycle that already had a passenger contrary to the National Transport and Safety Authority (Operation of motorcycles) regulations 2015.

53. It appears to me that the Motor Cycle rider or owner thereof bore some blame. However, as I have already found, the Respondent/Plaintiff did not sue him and the Appellant/Defendant did not take out 3rd Party Proceedings against him. It is therefore left for the parties to the suit to share the liability.

54. I proceed to apportion liability at 80:20 in favour of the Respondent/Plaintiff.

III. Whether the quantum of damages was appropriate. 55. In regard to General Damages, the Respondent/Plaintiff stated in paragraph 5 of the Plaint that he suffered the following injuries:-a.Bruises on the face.b.Compound right segmental tibia fracture.c.Bruises on the occipital region.d.Degloving injury on the right leg.e.Right medical malleolar fracture.

56. The Medical Report (P.Exh 1) by Dr. Morebu Peter Momanyi who examined him on May 20, 2019 confirmed the aforementioned injuries. He concluded that the Respondent required Kshs 200,000 to remove the metal implant. The Respondent underwent a second medical examination on August 26, 2019 before Dr. Jenipher Kahuthu. She found that the Respondent had segmental tibial shaft fracture with k nail in situ in satisfactory position. She estimated that he would Kshs 40,000 to remove the metal implant.

57. In the case of Kigaragarivs. Aya (1982 - 1988) I KAR 768, it was stated:-“Damages must be within limits set out by decided cases and also within limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance or increased fees.”(See case of Spin Knit Limited v Benard Kiplangat Cheruiyot (2022) eKLR)

58. Further, the Court of Appeal in Charles Oriwo Odeyovs. Appollo Justus Andabwa & Another(2017) eKLR observed that:-“The assessment of damages in personal injury case by court is guided by the following principles: -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high (See Boniface Waiti & another Vs Michael Kariuki Kamau (2007) eKLR.”(See also the Court of Appeal case of Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730)

59. In awarding of damages, the court should do its best to reach an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards. It is also salient to note that no two cases are exactly similar.(See Francis Ndungu Wambui & 2 others vs VK (a minor suing through next friend and mother MCWK) (2019) eKLR

60. It was not in dispute that the Respondent suffered soft tissue injuries on the face and on the occipital region and a fracture of the right leg. I have find the following cases quite helpful in terms of comparison:-i.FM (Minor, Suing Through Mother and Next Friend MWN) vs JDK & Another 2020 eKLR, where an award of Kshs 60,000 was substituted with Kshs 100,000 for blunt soft tissue injuries to the head, neck, thorax, abdomen and limbs.ii.Channan Agricultural Contractors LtdvFred Barasa Mutayo (2013) eKLR where the High Court reviewed downwards an award of Kshs. 250,000 to Kshs. 150,000 for moderate soft tissue injuries that were expected to heal in eight months’ time.”iii.Pauline Gesare OnamivSamuel Changamure & Another (2017) eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs. 600,000.

61. The Court of Appeal in Catholic Diocese Of KisumuvsTete (2004) eKLR set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.As by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985]KLR 470).In Kitavi v Coast Bottlers Ltd (Supra) Kneller JA said at page 477 para10:““It is now settled law that what the appellant was entitled to was a reasonable compensation assessed with moderation and conformity with the general method of approach, local courts have taken. Guidelines and brackets for various injuries are useful aids to some hope of consistency but awards will very much depend on the facts of each case and any attempt to standardize “or rigidily” classify them will be in vain and wrong…”

62. Guided by the case law above and the injuries suffered by the Respondent, I find that the Kshs 1,500,000 awarded as General Damages by the trial court was excessive. It was not comparable to decided cases that had almost similar injuries. After factoring in inflation, I substitute the award of Kshs 1,500,000 with the award of Kshs 800,000 for the soft tissue injuries and fracture to the right leg.

63. The Respondent prayed for future medical expenses and operations. The two Medical Reports indicated that he would need Kshs 200,000 and Kshs 40,000. In the case of Tracom Limited & AnothervsHasssan Mohamed Adan (2009) eKLR, the Court of Appeal stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”(See Court of Appeal case of Sheikh Omar Dahman T/A Malindi Bus vs. Denis Jones Kisomo Civil Appeal No. 154 of 1993)

64. I find, being guided by the case law above; that the Respondent having not specifically pleaded the future medical expenses, cannot be granted the same. In the case of Mbaka Nguru & Anor.vsJames George Rakwar(1998)eKLR, the Court of Appeal stated that:-“A mere reference to future medical expenses in a medical report produced at the trial was not sufficient to justify an award.”

65. With regards to the other pleaded Special Damages, the Respondent particularized them as follows:-Medical Expenses Kshs 38,814Medical Report Kshs 6,500Transport Expenses Kshs 30,000Copy of Records Kshs 550

66. The Respondent produced an annexed receipt dated May 20, 2019 in P.Exh1 which indicated that he had paid Kshs 6,500 for the Medical Report, a receipt dated April 6, 2019 indicating that he had spent Kshs 30,000 for transport, an invoice from NTSA dated May 29, 2019 indicating that he had paid Kshs 550 for the Motor Vehicle Search and a bundle of receipts from Tenwek Hospital indicating that he had spent Kshs 38,814 for medical expenses. I am satisfied that the Respondent pleaded and proved his claim for special damages and the same is awarded at Kshs 75,864.

Conclusion 67. These then are my final orders:-i.The Appellant’s/Defendant’s dated of Appeal August 25, 2021 succeeds to the extent that the General Damages awarded to the Respondent /Plaintiff are reduced from Kshs 1,500,000 to Kshs 800,000ii.The Respondent’s/Plaintiff Cross Appeal dated September 16, 2021 succeeds only to the extent that liability apportioned to the motorcycle rider is extinguished. The cross appeal however fails to the extent that the liability apportioned to the Respondent/ Plaintiff is increased from 10% to 20%.iii.I set aside the Award of the trial court and substitute it as follows:-General damages Kshs. 800,000Less 20% contribution 160,000640,000Special Damages 75,864Total 715,864iv.The Respondent/Plaintiff shall have costs of the suit in the lower court and interest thereon while each party shall bear their costs in both the appeal and cross appeal.Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF NOVEMBER, 2022. ……………………………R. LAGAT-KORIRJUDGEJudgment virtually delivered to parties at their emails