[2022] KEHC 3292 (KLR)

Maina v Kenya Wildlife Services; Kensilver Express Limited (Third party) (Civil Case 370 of 2007) [2022] KEHC 3292 (KLR) (Civ) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3292 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 370 of 2007

JK Sergon, J

July 8, 2022

Between

Stephen Ndegwa Maina

Plaintiff

and

Kenya Wildlife Services

Defendant

and

Kensilver Express Limited

Third party

Judgment

1. The plaintiff herein filed a suit by way of a further further amended plaint dated 5th October, 2009 and sought for judgment against the defendant in the following manner:i.General damages.ii.Loss of earningsiii.Special damages at Kshs.850,000/=iv.Costs of this suit.v.Interest of (a) and (b) and (c) above at court rates.vi.Any other or further relief that this court may deem fit to grant.

2. The plaintiff pleaded in her plaint that on or about 16th January 2006, he was lawfully driving motor vehicle registration No. KAM 931M along Embu- Mwea road when motor vehicle registration No. KAR 800L was so negligently driven, managed and or controlled by the defendant’s driver, employee, servant and/or agent that it hit Motor vehicle registration KAM 931M causing the plaintiff serious injuries.

3. The plaintiff further pleaded that the accident was solely and wholly caused by negligence and carelessness on the part of the defendant’s driver or employee for which the defendant is vicariously liable as particularized under paragraph 5 of the plaint.

4. As a result of the said accident the plaintiff sustained grievous injuries to his body, the same has been particularized as follows;-a.Fractured intertrochanteric area right femur.b.Fracture shaft right femurc.Mid tarsal dislocation right footd.Multiple bruises in the whole body.

5. The defendant entered appearance upon service of summons and filed its statement of defence on 18th December, 2007 to deny the plaintiff’s claim.

6. The parties filed a consent on liability on 17th October, 2016 where they agreed that liability be apportioned at 60% :40% against the defendant and also filed another consent on 25th October, 2021 where they agreed on the following terms;i.Special damages are agreed at Kshs.850,000/=ii.Medical reports by Dr.Ashwin Madhiwalla dated 16/9/2008, medical report by Dr.Bodo dated 5/10/2007 and medical report by Dr.Geoffrey C Kibuga all be admitted without calling the makers.iii.Parties to file written submissions on Quantum of damages based on the medical reports.

7. As noted above the issue of liability has already been agreed upon by consent, therefore this court shall not delve into the specific acts of negligence attributed to the defendant, his agent, servant and or driver of the accident motor vehicle. Both parties filed their respective submissions based on three medical reports produced in court.

8. On general damages for pain and suffering, the plaintiff submitted that the earliest medical report was made by Dr.Geoffrey Kibuga who went on to state that the plaintiff was admitted from 16th January 2006 to 6th May 2006 where he underwent our surgeries seeking to unite the fractures however the doctor concluded by stating that the healing was slow due to multiple severe injuries and it was not possible to assess prognosis at that time.

9. The plaintiff further submitted that the Dr.Joab Bodo made medical report dated 5th October 2007 where he confirmed the injuries established by Dr.C.Kibuga of which, the plaintiff was re-admitted again on 30th July 2007 with chronic osteomyelitis right femur, the sequestrate removed incompletely and on 5th October 2007, the plaintiff complained of pain over right thigh and inability to bend the right knee joint.

10. The plaintiff also pointed out the plaintiff had a urethral stricture that required two operations, costing Kshs. 90,000/= to remove dead bone, Kshs. 90,000/= to remove screws, and Kshs. 150,000/= for an operation to allow the knee muscles to flex further. This was stated in an addendum to two medical reports that Dr. Kibuga completed on August 17, 2009.

11. The plaintiff further pointed out that Dr. Ashwin Madhiwala examined the plaintiff at the defendant's request, and after finding a healed surgical scar on the femur, swelling on the right knee, a fixed deformity by the right knee joint, and a slight restriction of hip movement, the doctor concluded that the plaintiff had sustained injuries that would take a long time to heal and had a 40% permanent disability.

12. It is the plaintiff’s contention that the three medical reports' descriptions of the plaintiff's injuries aim to illustrate the physical and psychological suffering the plaintiff has experienced and is still experiencing, and that he is currently awaiting the need for more expensive and painful treatments.

13. The plaintiff therefore submitsthat Kshs. 4,000,000/=, the maximum amount of money that may possibly compensate him for his injuries. On this the plaintiff relied on the following authoritiesa.In the case of HCC No.410 of 2006 Rebbecca Mumbua Musembi v Lucy K Kinyua (2014) eKLR, the court noted the following at paragraph 13 Having taken into account the submissions, cases cited the authorities cited by the plaintiff’s Counsel, the severe injuries sustained which have affected the plaintiff’s life and will continue to affect her life as long as she lives, enduring the pain and suffering and aftereffects as stated by the doctors this Court awards the plaintiff Kshs.3,000,000/= (Three Million) for pain and suffering and loss of amenities…..b.In HCCA NO.88 OF 2017 John Kipkemboi and Another v Morris Kedolo (2019) eKLR at paragraph 3 ,the court was urged to award a sum of Kshs.3,000,000/= where the plaintiff’s incapacitation was found to be 50% just like the plaintiff in this case.c.In HCCC NO.75 of 2012 Duncan Kimathi Karagania v Ngugi David & 3 Others (2016) eKLR ,the court considered inflationary trends and the injuries sustained by the plaintiff and awarded Kshs.4,000,000 /= in general damages in 2016

14. On loss of earnings, the plaintiff submitted that the accident occurred in 2006 when he was 37 years old and in gainful employment as a bus driver earning a salary of Kshs.10,895/= according to the salary voucher.

15. The plaintiff contends that he would have worked to retirement at 66 years and that he 29 years to work and feed his family of which his deformity on his right leg means he cannot drive again at least for gainful employment and as for the formulae works as follows;Kshs (10,895x12x29) = 3,791,460/=

16. The plaintiff therefore humbly prays for an award of Kshs.3,000,000/= under this head to take interest of vastitudes of life and the fact that the said sum would be received in a lump sum. On this the plaintiff relied on the case John Kipkemboi and Another v Morris Kedolo (supra) where the court reiterated the following at page 5 Damages under the heads of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now quantified separately…… The factors to be considered are the age and qualifications of the claimant, his remaining length of working life, his disabilities…..

17. In reply, on the issue of quantum the defendant relied on the case of Tayab v Kinangu (1982-88) 1KAR 90“In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay.”

18. The defendant further relied on the following casesa.In the case of Isaac Karumba Nyuthe v Kenyatta University Nairobi HCCA No.193 of 2012 the court awarded the plaintiff a sum of Kshs.350,000/= as general damages for pain and suffering.b.In the case of Ibrahim Kalema Lewa v Esteel Company Limited NBI HCCA No.475 of 2012 eKLR The High Court awarded a sum of Kshs.300,000/= for general damages for pain and suffering.

19. The defendant submitted that due to inflationary trends, a sum of Kshs.450,000/= would adequately compensate the plaintiff less liability.

20. On loss of earnings, the defendant submitted that the alleged accident occurred on the 16th January 2006 while the plaintiffs salary voucher is dated 31 October 2006 that is nine months after the accident, the salary voucher proves that the plaintiff continued working after the occurrence of the accident meaning that his employment was never affected.

21. The defendant contends that in the absence of any evidence to show and prove that the plaintiff’s earnings were affected after the accident, they urged the court to disregard this prayer of loss of earnings as prayed. On this argument the defendant relied on the case of Kenblest Limited v Musyoka Kitema (2020) eKLR where Justice Ruth Sitati disallowed a prayer for loss of earnings after she found that the appellant continued to work after an accident hence the claim was not proved.

22. I have considered the pleadings by the plaintiff and the defendants and the documentary evidence adduced, the submissions by both counsels for the parties and the authorities relied on in support of the quantum for damages.

23. It is trite as envisaged under Section 107 of the Evidence Act Cap 81 Laws of Kenya that when a person is bound to prove the existence of any fact it is said that the burden of proof lay on that person and that whoever desires any court to give any judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .

24. The court must exercise its discretion judiciously in assessing general damages for pain, suffering and loss of amenities. It must be guided by decided cases but also give regard to what is affordable within the limits of the economy. In Kigaragari v Aya (1982-88) 1 KAR 768 and Chege v Vesters (1982-88) 1 KAR, 1021 the court in this regard noted that:-“Damages must be within limits set out by decided cases and also within limits that the Kenyan economy can afford. Kenya 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 of insurance cover or increased fee …...”

25. Further, the court of appeal in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR noted in this regard 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.’

26. Under the general damages under pain and suffering, I rely on the HALSBURY’S Laws of England 4th Ed. Reissue Vol 12(1) at page 348, paragraph 883 states that general damages for pain and suffering are awarded for physical and mental distress to a plaintiff, including pain occasioned by the injury itself, treatment necessitated by the injury and any embarrassment, disability or disfigurement or anxiety suffered by the plaintiff. In the circumstance of the plaintiff, it is not in dispute that he is entitled to damages for pain and suffering a fact admitted by the defendant, the issue is the quantum.

27. The plaintiff under this head claims the sum of Kshs. 4,000,000/= citing inflation and that the court before 2019 based on above cited authorities awarded the sum of Kshs. 4,000,000/=. The defendant on the other hand submits that Kshs. 450,000/= would be adequate compensation to the plaintiff in the circumstances citing several authorities.

28. The medical reports filed with three doctor’s detailed injuries which attempted to illustrate both physical and psychological pain that the plaintiff endured and continues to endure and that he still awaits to undergo further surgeries which are painful and costly.

29. The plaintiff cited various authorities in support of his claim of Kshs. 8,000,000/=, I have looked and considered the same.In Bernard Mutisya Wambua v Swaleh Hashil (supra) where the court awarded 6,500,000/= the circumstance are different from the plaintiff case as the plaintiff suffered loss of his right hand in addition to other paralysis which was considered 100% permanent disability.

30. In Charlene Njeri Kuria v Gitu Geoffrey and Another (2016) eKLR where the court awarded 5,000,000/= the disability was at 60% disability with partial paralysis of the lower limbs. And in Emmanuel Kombe Nzai vs Basari Company Limited & Another (2017) eKLR where the court awarded 6,000,000/= the plaintiff suffered 80% disability with paralysis of the lower limbs. The link between the above authorities is that the plaintiff in this instant case had a permanent disability at 40%.

31. More recently, the High Court in C M (a minor suing through mother and next friend M N v Joseph Mwangangi Maina [2018] eKLR awarded the sum of Kshs. 2 million as general damages for pain and suffering where the minor leg below the knee was severely crashed and devitalized and was amputated.

32. Therefore applying the above principles to this case and considering the injuries suffered by the plaintiff and their resultant effects and taking into account the submissions and authorities of the parties, its notable that the injuries sustained in the plaintiff authorities were more serious than the instant one’s and the defendant authorities on the other hand points to lesser injuries and the figure of Kshs. 450,000/= suggested dates back to the year 2012. In view of the foregoing cited authorities the commensurate and sufficient compensation for pain and suffering and loss of amenities for injuries suffered by the plaintiff is an award of Kshs 4,000,000/= factoring inflation.

33. On the issue of loss of earnings, in the case of The Court of Appeal in Mumias Sugar Company Limited v Francis Wanalo (2007) eKLR stated in this regard that:“…The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

34. The Court of Appeal enumerated the principles to be considered in respect of a claim for loss of earning capacity in the case Butler v Butler (1984) KLR 225 as follows: -a.A person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well paid as before the accident are lessened by his injury;b.Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages;c.Damages under the heads of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them;d.Loss of earning capacity can be a claim on its own, as where a claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial;e.Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included it is not improper to award it under its own heading; andf.The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any.

35. The plaintiff claims in his submissions that he is 39 years old and worked as a bus driver earning a net salary of Kshs. 10,895/= and that after the accident he cannot continue doing his job and even doing a driver again is difficult due to injuries sustained and in this regard he is claiming the sum of Kshs.3,000,000/=.

36. From the record nothing except the salary voucher dated 31/10/2006 that is nine months after the said accident and that the plaintiff did not tender any evidence to show that as a result of the accident, he was expose to either losing his job in the future or that he had lost his job, his chances of getting an alternative job in the labour market were slim. In the circumstances and considering the age of the plaintiff a global figure of Kshs. 1,000,000/= would suffice.

37. On future medical expenses, the plaintiff has pleaded for damages and costs of future medical expenses, he has claimed the costs of removing dead bone at the sum of Kshs.90,000/=,Kshs.90,000/= to remove screws and Kshs.150,000/= for operation to enable the knee muscels to flex further. In the circumstances the court will award a sum of Kshs. 330,000/= .

38. I rely In Kenya Bus Services Ltd v Gituma, (2004) EA 91, the Court of Appeal stated in this regard that:“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 damages and is a fact that must be pleaded, if evidence thereon 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 the infringement of a person’s legal rights should be pleaded”.

39. In the end, judgment is entered in faovur of the plaintiff and against the defendant giving rise to issuance of the following awards:i.General damages for pain and suffering Kshs. 4,000,000/-(Four Million).ii.General damages for loss of earning capacity – Kshs. 1,000,000/- (One Million)iii.Special damages –Kshs.850,000/=(Eight hundred and fifty thousand)iv.Future medical expense-Kshs.330,000/=.Total Kshs. 6,180,000/=v.Special damages to attract interest at court rates from the date of filing while general damages to attract interest at court rate from the date of judgment until the date of full payment.vi.The plaintiff is awarded the costs of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant..................................... for the Third Party