[2016] KEHC 1013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCA NO. 1 OF 2016

MAUREEEN WANJA(formally a minor suing through her next friend

LINET MUKWANJERU KIRAITHE) .......................................APPELLANT

- VERSUS -

MICHAEL GICHOVI.................................................................RESPONDENT

(Being an Appeal from the Judgment/Decree of Hon. A. Nyoike - SRM

delivered on the 10th December, 2016 in Chuka CMCC NO.12 of 2014)

J U D G M E N T

1. The Appellant was the Plaintiff in Chuka CMCC No. 12 of 2014. By a plaint lodged in court on 4th February, 2014, the plaintiff alleged that she was a passenger in the Respondent's MV. registration No. KBN 187 L which was involved in a head on collision with MV. registration No. KAN 278 C on 19th August, 2012 along Chuka- Chogoria road. The Appellant blamed the Respondent for the occurrence of the said accident and alleged that as a result of the said accident, she sustained injuries from which she had suffered loss and damage which she claimed against the Respondent.

2. The Respondent filed a defence denying the accident. However, but the parties entered into a consent on liability at 75%- 25% in favour of the Appellant which was adopted by the trial court and left the issue of assessment of damages to the trial court. The Appellant testified on her injuries and after considering that testimony and submissions of learned Counsel, the trial court awarded Kshs.400,000/- general damages and special damages of Kshs.155,588/-. The Appellant was aggrieved with the award of Kshs.400,000/- as general damages and has appealed against that decision. The Memorandum of Appeal set out three (3) grounds of appeal which are to the effect that the trial court failed to consider and appreciate the nature and seriousness of the injuries and thereby arrived at an erroneous assessment of damages which were too low in the circumstances. The appeal therefore is only limited to the quantum of damages.

3. It was submitted for the Appellant that the injuries sustained by the Appellant were serious which had led her to be admitted in hospital for two and a half months. That the Appellant still had metal plates on her left leg at the time of trial. That the trial court nevertheless found that the Appellant had healed. The Appellant relied on the cases of Joseph Ndumia Murage .v. David Kamande NKU HCCC NO. 101 OF 1996 where an award of Kshs.500,000/- was made in 2004; Ahmed Mohamed .v. Abdulhafidh Mohamed Mbs HCCC No. 319 of 2001 and Abdi Salaan Nuron.v. KTDA KERICHO HCCC NO. 26 of 1999 where awards of Kshs.750,000/- and 800,000/- were made in 2004 and 2002; respectively; Rosemary Bulinda .v. Walter Kinyanjui NKR HCCC NO. 86 of 1998 and Paul Odhiambo Musandu .v. Kindam Consortium Kisii HCCC No. 31of 1999 where damages Kshs.650,000/- and 500,000/- were awarded in 2003 and 2000, respectively. Finally, the case of Mwaura Muiruri .v. Suera Flowers Ltd and Anor NKR HCCC NO. 189 of 2009 was cited wherein general damages for Kshs.1,900,000/-for pain and suffering loss of amenities and loss of earring capacity was awarded in 2014.

4. On the other hand, it was submitted for the Respondent that in determining this appeal, this court should be guided by the principles enunciated in Kemfro Africa Ltd .v. A. M Lubia & Anor [1982-88] 1 KAR 72. That an award of damages is meant to give reasonable compensation and not to renew the battered and shattered limbs (West (H) & Sons Ltd .v. Shepherd [1964] AC 326): that the award of Kshs.400,000/- was manifestly excessive considering the awards made in Arkipo Odhiambo Otieno .v. Kenya Bus Services Ltd [2005] eKLR, Kinyanjui Wanyoike .v. Jonathan Muturi Ohogo [2004] eKLR and Mulwa Musyoka .v. Wandia Construction [2004] eKLR. To the Respondent the award should have been between Kshs.100,000/- and Kshs.150,000/- based on the cases he had relied on. Counsel for the Respondent urged the court to dismiss the Appeal.

5. Since this Appeal is limited only to the quantum of damages, the jurisdiction of this court is well settled. That this court will not substitute its discretion for that of the trial court in awarding damages; that before interfering with the trial court's decision on damages, this court must be satisfied that the trial court in assessing damages applied a wrong principle of law as by taking into account an irrelevant factor or leaving out a relevant factor or the amount is so inordinately low or high as to amount to an erroneous estimate of damages. (see: Henry Hidaya Ihanga .v. Manyena Manyoke [1967] EA 705 and Butt .v. Khan [1981] KLR 349)

6. In Jackline Syombua .v. BOG Ekalakala Secondary School Embu Hccc No. 118 of 2006 (UR)the court held:-

"The task of assessing damages in a case such as this is difficult one. The court must nonetheless be guided by relevant precedents. In assessing compensatory damages the court will always bear in mind that the purpose of awarding damages is not to pay as it were for the loss or injury the plaintiff has suffered. Damages only assuage the pain or loss suffered by the plaintiff because no amount of money can replace a lost limb."

In Kigaraari .v. Aya [1982-88] 1 KAR 768 the court held:-

"Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed to members of the public, the vast majority of whom cannot afford the burden in the form of increases in insurance and increased fees."

In this regard, while assessing damages, the court has to be guided by the principle that comparable damages is to be awarded for like or comparable injuries. The same should not be so inordinately high or low as to be disproportionate. The court must also take into consideration the element of inflation.

7. In her plaint, the Appellant pleaded that as a result of the accident, she had suffered the following injuries:-

a. fracture mid-shaft left

b. fracture/dislocation right knee joint

c. multiple cut wound on left upper arm

d. cut wound on the knee region interiorly

e. laceration left side of the face.

f. fracture to 4 ribs on the left side of the chest.

She testified that as a result of the injuries, she lost consciousness and only regained the same while in hospital. She was admitted for well over two (2) months, between 19th August, 2012 and 24th October, 2012. The examination by Dr. Njiru G.N confirmed the said injuries vide the medical report dated 26th June, 2013. It was confirmed that there were complications of Osteomyelitis left femur bone and right knee joint. The Appellant complained that she was yet to fully recover at the time she testified before the trial court.

8. On the foregoing, the trial court held that the fractures had healed well and awarded Kshs.400,000/- general damages. The trial court indicated that it had carefully analysed the submissions and authorities relied on by the parties. The trial court did not indicate which authorities persuaded it to give the award it did. The cases relied on by the Appellant were; Abdi Salaan Nuron .v. K.T.D.A (supra) where Kshs.800,000/- was awarded in 2002. In that case save for contusion of the right side of the pelvis and fracture of the patellar running vertically, the rest of the injuries were similar to those of the Appellant. In the present case, the Appellant had in addition suffered four (4) fractured ribs. The case of Ahmed Mohamed .v. Abdulhafidh Mohamed Banragah (supra) was also cited where Kshs.750,000/- was awarded in 2004. Save for mal-union of the fracture of the femur, the injuries were similar in the present case. The Respondent relied on the case of Mulwa Musyoka .v. Wadia Construction (2004) eKLR where Kshs.150,000/- was awarded for fracture of femur and tibia left leg. The case of Leslie John Wilkins .v. Buseki Enterprises [2015] eKLR was also cited. That latter case was however on material damage and could be of no help to the court.

9. The reason why this court has delved into the cases cited for the trial court is to show that contrary to what the trial court stated, it would seem that the trial court did not appreciate the seriousness of the injuries suffered and the awards made for comparable injuries. In this court's view, by failing to state the basis for ignoring the cases where awards for comparable injuries were in excess of Kshs.750,000/-, the trial court failed to consider a relevant fact. That the Appellant had not fully recovered at the time of trial, that in addition to the fractures of the shaft femur and dislocation of right knee joint, she fractured 4 ribs on the right side.

10. I have looked at the cases relied on by the Respondent, the injuries are far less serious as compared to those suffered by the Appellant in this case. The injuries suffered by the Appellant are comparable to those in the case of Ahmed Mohamed .v Abdulhafidh Mohamed Bamragah(supra). In this regard, the award of Kshs.400,000/- was too low as to amount to an erroneous estimate. I will set aside the award of Kshs.400,000/- and substitute therefor with an award of Kshs.700,000/-.

11. Accordingly, the appeal is hereby allowed as follows:-

a. General damages - Kshs.700,000/-

b. Special damages - Kshs.155,588/-

Total - Kshs.855,588/-

Less 25% - Kshs.213,897/-

Total - Kshs.641,691/-

Costs to the Appellant both here and the court below.

It is decreed accordingly.

DATEDand delivered at Chuka this 3rd day of November, 2016.

A.MABEYA

JUDGE