[2023] KEHC 25265 (KLR)

Masoudi & another v MJN alias JNM (Minor siung through his next friend and mother) RBO (Civil Appeal E098 of 2021) [2023] KEHC 25265 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25265 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E098 of 2021

KW Kiarie, J

November 14, 2023

Between

Malik Ibrahim Masoudi

1st Appellant

Idi Baraka Lwoya

2nd Appellant

and

MJN alias JNM (Minor siung through his next friend and mother) RBO

Respondent

(Being an Appeal from the ruling in Oyugis Senior Principal Magistrate’s SPMCC No. 1 of 2019 by Hon. Celesa Okore –Principal Magistrate)

Judgment

1. Malik Ibrahim Masoudi and Idi Baraka Lwoya were the defendants in the Oyugis Senior Principal Magistrate’s SPMCC No. 1 of 2019. This case arose from a road traffic accident that happened on July 5, 2016, involving a motor vehicle with registration number KCG 375H and a motorcycle registration number KMDA 627V, in which the respondent was a pillion passenger. The respondent suffered injuries for which the appellant was held 80% liable. He was awarded Kshs.2,000,000 as general damages, and Kshs. 8,270 special damages before factoring in contributory negligence.

2. The appellants were aggrieved by the said judgment and filed this appeal through the firm of Peter M. Karanja Advocate. They raised the following grounds of appeal:a.The learned trial magistrate erred in fact and law in finding that the appellants were 80% liable for the accident, a finding that was not supported by the evidence and pleadings.b.The learned trial magistrate erred in law and fact in holding that the appellants bore the larger liability without analyzing the evidence carefully and by assigning that larger liability based on the high speed of the lorry, a matter that was never proved, and thus made an erroneous decision.c.The learned trial magistrate erred in law and fact in failing to consider the evidence before her carefully and fully and thus failed to realize that the deceased carrying the respondent bore the greater liability causation of the accident as he suddenly swerved his motorcycle onto the lorry’s lane after he hit a bump.d.The learned trial magistrate erred in law and fact, in holding that the appellants’ driver was speeding while the evidence showed the complete opposite.e.The learned trial magistrate erred in law and fact in failing to find that the deceased was wholly or substantially liable for the accident.f.The learned trial magistrate erred in law and fact in failing to apportion liability between the appellants and respondents equally if unable to decide who bore the larger blame.g.The learned trial magistrate erred in law and fact in holding that the appellant failed to control the lorry and thus caused the accident while there was no evidence at all to so establish and she thereby came to an erroneous decision.h.The learned trial magistrate’s judgment is inconsistent with the pleadings and evidence given.i.The quantum of general damages for pain and suffering and loss of amenities is inordinately high erroneous, oppressive, and punitive and amounts to a miscarriage of justice.j.The learned trial magistrate ignored misapprehended and/or paid lip service to the appellant’s submissions and authorities therein cited, and failed to analyze or apply them.k.The learned trial magistrate erred in fact and law in failing to appreciate the principles governing the award of damages, namely that like cases attract similar awards, and ignoring completely the appellants’ submissions thereon.l.The learned trial magistrate erred in law and fact in making an award of kshs.2,000,000/- without giving any reason for such an award or showing what comparable case(s) she was applying and thus made an award that was arbitrary, capricious inordinately high, erroneous, and which amounts to a miscarriage of justice.m.The learned trial magistrate failed to consider all relevant considerations and principles in assessing the quantum of general damages.

3. The appeal was opposed by the respondent through the firm of Ochoki & Company Advocates.

4. As the first appellate court, it is my responsibility to carefully review all of the evidence presented and take into consideration that I did not have the opportunity to observe the witnesses testify and their demeanor. I will follow the principles outlined in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, which states that the first appellate court must examine and assess the evidence that was presented in the trial court, and then come to its conclusions on the matter.

5. During the trial, PC Jackson Kisoi (PW2) gave testimony that a motor vehicle with registration number KCG 375H collided with a motorcycle bearing registration number KMDA 627V, which was in its lane at the time. As a result of the collision, one person died. The driver of the motor vehicle was charged with causing death by dangerous driving and was fined Kshs. 10,000. 00.

6. According to Malik Ibrahim Masoudi, the motorcyclist was speeding when he hit a bump and swerved into the lane of the lorry he collided with.

7. Based on two different accounts of the events, the learned trial magistrate concluded that the respondent's version of the events was more credible. This was because if the accident had happened the way the appellants claimed, it would have been unlikely for Malik Ibrahim Masoudi to be charged with causing death by dangerous driving. Even if he had been wrongly charged, he could have appealed against the conviction and sentence. I, therefore, find no basis to interfere with the finding on liability by the trial magistrate.

8. The respondent suffered the following injuries:a.Compound right femur fracture;b.Right radius fracture; andc.Metacarpal bone fracture.

9. At the time of the examination the doctor observed that the respondent was in fair general condition. He had healed surgical scars on the right thigh and tenderness on the same thigh. The prognosis was that he would require an operation to remove a metal implant and that permanent disability was anticipated.For these injuries, he was awarded Kshs.2, 000, 000/= general damages. The appellants have argued that the award was inordinately high.

10. An appellate court will only interfere with an award of the trial court in general damages if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 on page 356 Law JA stated:…an appellate court will not disturb an award of damages unless it is so, inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.

11. At the trial court, the appellants had submitted that an award of Kshs. 600,000/= would be adequate compensation. On the other hand, the respondent had proposed an award of Kshs.2, 000,000/=.

12. The respondents relied on the following decisions:a.James Gathirwa Ngungi vs. Multiple Hauliers (EA) Limited & another[2015] eKLR

13. In this case, the plaintiff sustained personal injuries as follows:Particulars of injuriesi.Compound comminuted fracture of the right tibia;ii)Compound comminuted fracture of the right fibula;iii)Fracture of the left proximal radius;iv)Fracture of left ulna;v)Head injury;vi)Deep cut wound of the parietal region about 4cm;vii)Soft tissue injury and bruises of both hands multiple facial cuts and lacerations; andviii)Pathological /re-fracture of the right leg.Residual injuriesa)Re-fracture of the right leg;b)Many sinuses on the right leg with pus;c)Bone exposure;d)Chronic bone infection and dead bone;e)Restriction in walking;f)Difficult in walking;g)Restriction in mobility of the fore arm;h)Difficulties in squatting;i)Weakness of the left upper limb;j)He cannot carry or lift heavy objects;k)Walks with aid of clutches;l)Restriction of movement of the left limb; andm)Pain due to prolonged surgery procedure.He was awarded Kshs.1,500,000/= as general damages.

14. Hellen Atieno Oduor vs. S.S Mehta & Sons Ltd & Muthitu Nanua [2015] eKLRa.Fracture of the right tibia and fibula;b.Multiple fractures of the ribs, on the right side of the chest (3rd,4th 5th, 6th,7th, and 8th);c.Chest injury and hemothorax;d.Blunt abdominal trauma;e.Fracture of the right scapula; andf.Surgical scars on the right knees interiorly and right ankle joint medially.The plaintiff was awarded General damages of Kshs. 1,500,000/-

15. The appellant relied on two cases:a.Eston Mwirigi Ndege & another v Joseph Macharia Kawira [2019] eKLR. In this case, the respondent suffered fractures of the right femur, right arm, and right forearm and was admitted for 3 months. He was assessed to have suffered 15% incapacity. General damages were assessed at Kshs.500,000/=.b.Sammy Mugo Kinyanjui & another v Kairo Thuo [2017] eKLRThe respondent had slight tenderness in the forehead, neck, chest, abdomen, right knee, and both legs; fracture of the right tibia; fracture of the left tibia and fibula. There was no permanent disability, a wheelchair was nevertheless recommended. an award of Kshs 600,000 was found to be sufficient.After thoroughly examining the authorities presented by both parties, I have concluded that the injuries sustained by the respondent in this case are less severe than the ones in the cases that were cited as references. Hence, I find that the award granted for general damages was excessively high and thus I set aside the original award made by the trial magistrate and substitute it with an award of Kshs. 1,000,000. 00, with a 20% deduction for contributory negligence. Additionally, since the appeal was partially successful, the appellant is entitled to half of the costs.

Delivered and signed at Homa Bay this 14th day of November, 2023KIARIE WAWERU KIARIEJUDGE