[2022] KEHC 18076 (KLR)

Makokha v Farah (Civil Appeal 37 of 2018) [2022] KEHC 18076 (KLR) (17 October 2022) (Judgment)

Neutral citation: [2022] KEHC 18076 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal 37 of 2018

RK Limo, J

October 17, 2022

Between

Patrick Simiyu Makokha

Appellant

and

Mohamed Farah

Respondent

(An Appeal that arose from the Judgement of Hon. K. Sambu –Senior Principal Magistrate delivered on 11th July, 2018 vide Mwingi SRM’s Court Civil Case No. 72 of 2013. )

Judgment

1. This is an Appeal that arose from the Judgement of Hon. K. Sambu –Senior Principal Magistrate delivered on 11th July, 2018 vide Mwingi Senior Residen’s Magistrate Court Civil Case No. 72 of 2013. In that case the Appellant had sued the Respondent on account of a road traffic accident that occurred on 29th July, 2012 along Mandera-Elwak road involving Motor Vehicle Registration No. KBL 757,on which the appellant was travelling in as a passenger.

2. The appellant had pleaded that he suffered the following injuries namely: -i.A compound fracture of left tibia/fibula displacementii.Blunt injury to the headiii.Blunt Chest injuryiv.Spinal injuryv.Dislocation of the right knee

3. The question of liability was not contested after the parties recorded a consent on the same with the respondent conceding to 85% liability while the appellant agreed to shoulder 15%.

4. The trial court assessed the quantum of damages at Kshs. 300,000 and found that there’s no proof on special damages.

5. The appellant felt aggrieved and filled this appeal raising the following grounds namely: -i.That the trial magistrate erred in law by awarding him Kshs. 300,000 which amount he claims is manifestly low.ii.That the trial magistrate erred by failing to award special damages of Kshs. 12,700. iii.That the trial court erred by not awarding him Kshs. 600,000 as damages for loss of future earnings.iv.That the trial court erred by failing to consider conventional awards in other similar cases and failing to factor in the issue of inflation.v.That the trial court failed to factor in his submissions.

6. In his written submissions through his Counsel M/s Magare Musundi & Co. Advocate, the appellant contends that the award given to him did not reflect reasonable compensation pointing out that the trial court should have been guided by cited authorities showing awards made in respect to similar injuries by other courts. He relies on the case of Bidii Muimi & Anor. versus Patricia Munanie & Anor. [2020] eKLR.

7. He submits that he suffered permanent disability which was assessed by the doctor at 15%. He relies on Zachary Karithu versus Jahon Otieno Ochola [2016] eKLR, Geoffrey Mwaniki Mwinzo versus Ibero & Another [2014] eKLR & Florence Hare Mkaha versus Pwani Tawakl & Another [2012] eKLR.

8. The appellant submits that on the basis of the above authorities he should be awarded 3 million shillings.

9. He further contends that by the mere fact that he suffered permanent disability classified at 15%, he had had proved loss of future earnings and should be awarded Kshs. 600,000 on that head and Kshs. 12,700 Special damages which he submits were pleaded.

10. This court has considered this appeal. The same is unopposed as the respondent did not file any response despite being served as per the affidavit of service on record. That notwithstanding this court will determine this appeal on the merit.

11. This is a first appellate court and the duty of this court is to re-evaluate the evidence tendered and arrive at own conclusion.

12. This court notes from the record that parties upon recording a consent on liability merely proceeded to file written submissions. The appellant did not attend court to prove particulars of special damages and loss of earning. So even if the same were pleaded in the plaint, the law required him to specially prove the same at the trial. The finding of the trial court that he could not award special damages or loss of future earnings in the absence of proof was correct. That finding was sound in law and the same is upheld.

13. The appellant has expressed dissatisfaction about the award on general damages stating that it is too low. I have looked at the authorities cited and in particular the decision in Bidii Muini & another versus Patricia Munaine Mutemi & Another [2020] eKLR but I note that the decision is in respect to a fatal claim and has little relevance to the claim herein. When a court is deciding on quantum on injuries suffered, authorities cited should be relevant in terms of having comparable injuries suffered. I have also additionally noted that the case of Spin Knit Ltd versus Benard Kiplangat Cheruiyot [2022] eKlR is in respect of a victim who suffered burns while at work. The injuries are not comparable to the injuries suffered by the appellant herein.

14. I have re-evaluated the nature of injuries suffered and note that apart from the fracture of the left tibia/fibula bone, the other injuries are soft tissue injuries.The award made by the trial court is a conservative one but I am unable to interfere with it solely on that ground because an award of damages is a discretionary matter. For this court to interfere in such cases the appellant must show that the award is manifestly too low or high that it represents a wrong estimate in principle. In this mater however, I am not satisfied that the award made by the trial court can be termed as manifestly too low. As I have observed, it is fairly within reasonable limit taking into consideration the authorities cited by the parties in that court.For the above reasons I do not find merit in this appeal. The same is disallowed but I will not make any order as to costs because, the respondent did not oppose the appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 17TH DAY OF OCTOBER, 2022. HON. JUSTICE R. K. LIMOJUDGE