[2022] KEHC 16576 (KLR)

Mbugua v Mwaniki (Civil Appeal 94 of 2020) [2022] KEHC 16576 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16576 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 94 of 2020

HK Chemitei, J

December 15, 2022

Between

Peter Kamau Mbugua

Appellant

and

Henry Ndungu Mwaniki

Respondent

(Being an appeal from the judgment of Honorable Mararo (Principal Magistrate), delivered on 4{{^th}}May 2020 in Nakuru CMCC NO. 989 of 2016)

Judgment

1. This appeal stems from an accident that occurred on January 18, 2016 involving motor vehicle registration number KAT 829B along Bahati-Nakuru road at HCA Bismarck area or thereabout, where the appellant’s driver so negligently drove the said motor vehicle that it lost control and got involved in an accident as a result of which the respondent sustained serious bodily injuries.

2. The respondent filed a suit against the respondent claiming inter alia general damages, special damages and costs plus interests. The matter proceeded to its conclusion and the parties entered consent on liability in the ratio of 5:95 against the appellant and the court awarded the respondent general damages for Kshs 1,300,000/= and special damages for Kshs 21,330/= together with costs plus interest at court rates.

3. Aggrieved by the said judgement, the appellant filed this appeal against the lower courts’ judgement based on the following grounds; -a.The trial magistrate erred in law and in fact in failing to awarding damages and costs without basis or proof of the same.b.The learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions on quantum and on applicable principles in determining quantum and for assessment of damages.

4. When the matter came up for hearing the court ordered that the same be canvassed by way of written submissions, which both parties have complied.

Appellant’s Submissions 5. The appellant submitted that the award on damages should be set at Kshs 350,000/= for the injuries sustained by the respondent as they were fractures. That the award of Kshs 1,300,000/= was too high in the circumstances and ought to be considerably reduced. Further, that the injuries had healed at the time judgment was passed and especially of the right tibia.

6. The appellant submitted further that it was trite law that the awards must be within consistent limits and courts awards for damages must be made taking into account comparable injuries or similar and awards. He placed reliance on the cases of Denshire Muteti Wambua v Kenya Power & Lighting Co Ltd [2021] eKLR as quoted in Michael Okello v Priscilla Atieno [2021] eKLR and the case of Kigaraari v Aya [1982-88] 1 KAR 768 as quoted in Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR.

7. The appellant further draws this court attention to several cases regarding soft tissue injuries namely;Jitan Nagra v Abednego Nyandusi Oigo[2018]]eKLR, Zachariah Mwangi Njeru v Jospeh Wachira Kanoga , Nyeri HCCA No of 2012 as quoted in Francis Ndungu Wambui & 2 others v VK (a minor suing through next friend and mother MCWK) [2019] eKLR, Harun Muyoma Boge v Dr. Daniel Otieno Agulo, Migori HCCA No 86 of 2012, Mbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR as quoted in DG (Minor suing through her next friend MOR v Richard Otieno Onyisi [2021] eKLR, Noam Momanyi v G4S Security Services Kenya Limited [2018]eKLR and Wakim Sodas Limited v Sammy Aritos[2017] eKLR both quoted in Gladys Lyaka Mwombe v Francis Natatsi & 2 others [2019] eKLR.

8. In conclusion, the appellant prayed for the cost of the appeal based on the provisions of section 27(1) of the Civil Procedure Act on the court’s discretion to award the same. He also urged the court to uphold the appeal and disturb the judgment by the trial court in terms of quantum.

Respondent’s Submissions 9. The respondent on his part submitted that his injuries were confirmed by Dr Omuyoma and outlined in his medical report and the same were confirmed by the appellant’s doctor and captured in her medical report. That he was admitted on January 18, 2016 and discharged on February 3, 2016 walking with aid of crutches to date. Further, that the plaintiff’s pain was still subsisting at the time he was testifying in court which was 2 years later and therefore the trial court had considered both parties’ submissions in awarding Kshs 1,300,000/=. He drew the court’s attention to the cases of Voi HCCA No 9 of 2017 P.N Mashru Ltd v Omar Mwakon Makenge andGeorge William Awour v Beryl Awour Ochieng Siaya civil appeal No1 of 2020.

10. On whether to disturb quantum of damages awarded to him by the trial court the respondent drew the court’s attention to the case of Arrow Car Ltd v Elijah Shamalla Bimomo & 2 others [2004] eKLR, Gitobu Imanyara & 2 others v Attorney General [2016] eKLR. The plaintiff went ahead to urge the court to find no merit in the appeal and dismiss it with costs to his favour.

Analysis and Determination 11. This being the first appeal, it is this court’s duty under section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co Ltd (1968) EA 123 where Sir Clement De Lestang (V.P) stated that:“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 allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally’’.

12. Having carefully perused the proceedings, the judgement and the record of appeal as a whole including both parties’ submissions, the issue of liability is settled, therefore the only one issue falls for determination by this court namely; whether the award on quantum was excessive in the circumstances.

13. The principles to be considered by an appellate court in deciding whether to disturb the trial court’s assessment of damages were set out by the Court of Appeal for East Africa in the locus classicus case of Bashir Butt v Khan civil appeal No 40 of 1977 [1978] eKLR thus;“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 at a figure which was either inordinately high or low.”

14. The respondent testified as PW1, that on May 16, 2018 he was involved in a road accident while aboard motor vehicle registration number KAT 829B and as result he sustained injuries on the mouth, teeth removed while some stitched, injured both legs, the right left leg broke femur and tibia also his right hand had no strength. He was treated at P.G.H Nakuru and admitted for two weeks.

15. He testified that he spent Kshs 14,330/= and that he was examined by Dr Omuyoma who prepared a report at Kshs. 7,000/=. He testified further that he could not walk without crutches as his legs still had problems to date. That he blamed the driver of the said motor vehicle for the accident as he was over speeding. He prayed for compensation for injuries, costs and interest.

16. On cross examination, the respondent stated that he was examined by Dr Omuyoma and he produced the medical report as an exhibit PMFI 4a in court. In the said report the doctor confirmed that the respondent sustained fractured neck of the right femur, fracture distal end of the right tibia and fibula, movements at the right joint were restricted because of pain and 3 upper incisors removed and 3 lower incisors were loose, multiple permanent scars on the scalp and face. The doctor classified the respondent’s degree of injury as ‘grievous harm’ and that he suffered 30% permanent disability.

17. The assessment of damages by courts in personal injury cases is guided by the following principles:a.An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.b.The award should be commensurable with the injuries sustained.c.Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.d.The awards should not be inordinately low or high (See Boniface Waiti & another v Michael Kariuki Kamau [2007] eKLR.

18. The appellant and the respondent in their submissions cited authorities which show that damages for amputation of one’s leg would range from Kshs 300,000 to Kshs 1. 2 million. The trial court awarded Kshs 1,300,000/= on May 4, 2020. Upon examining the authorities relied on by the appellant in this appeal, I find that those authorities do not provide comparable injuries to those suffered by the respondent herein. Further, in each of the said cases cited by the appellant, the plaintiffs were not assessed to have some percentage of disability unlike in the case of the present respondent.

19. On the other hand, the authorities relied on by the respondent herein are far more comparable to the injuries sustained by the respondent. For example, in the case of P N Mashru Limited v Omar Mwakoro Makenge [2018] eKLR.

20. This court is alive to the fact that no two injuries can be exactly the same and it must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to compensate a person who has suffered an injury.

21. However, this assessment is not without limits. The court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. This court must therefore be guided by precedents and therefore look at several cases with a view to establishing whether or not the learned trial magistrate applied the correct principles in awarding the respondent general damages.

22. In the case ofBoniface Njiru v Tohel Agencies and Another [2011] eKLR, the plaintiff therein sustained a blunt head injury with loss of consciousness for 24 hours, loss of four upper incisor teeth, fracture of the shaft of the right femur and a compound fracture of the right tibia with soft tissue injuries. The court therein awarded him a sum of Kshs 1,000,000/= general damages for pain, suffering and loss of amenities.

23. Further, in the case of Mary Pamela Oyioma v Yess Holdings Limited [2011] eKLR the court therein awarded the plaintiff a sum of Kshs 900,000/- general damages for having sustained a comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.

24. Also, in Eldoret HCCA No 45 of 2014; Patrick Kinyanjui Njama v Evans Juma Mukwenyi (2017) eKLR the respondent sustained segmental fracture of the right femur mid shaft, segmental fracture of the right tibia shaft and other soft tissue injuries. A metal plate was fixed on the right leg and he was using crutches for mobility. Further surgery was required to remove the metal implant and the degree of disability was assessed at 30%. The trial court’s award of Kshs 1, 500,000/= was upheld.

25. Lastly, in NanyukiHCCA No 5 of 2015;Lucy Waruguru Gatundu v Francis Kinyanjui Njuku(2017) eKLR the respondent sustained fracture of the right femur, right tibia and right fibula segmental fracture. The trial court’s award of Kshs 1,600,000/= was upheld on appeal.

26. In view of the above cited authorities and in line with injuries sustained by the respondent, it is my considered finding that the award of Kshs 1,300,000/= by the trial magistrate in the circumstances of this case was not excessive and also in consideration of the inflationary tendencies.

27. In the premises, I find that the appeal herein lacks merit and hereby dismiss the same with costs to the respondent.

Dated signed and delivered via video link at Nakuru this 15thday of December 2022. H. K. CHEMITEI.JUDGE