[2022] KEHC 3206 (KLR)

Meeme & another v Kinyua (Civil Appeal E041 of 2020) [2022] KEHC 3206 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3206 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E041 of 2020

TW Cherere, J

July 7, 2022

Between

Joseph Meeme

1st Appellant

Laare Kamukunji Stores Ltd

2nd Appellant

and

Faith Kathure Kinyua

Respondent

(Being an appeal from the judgment and decree in Maua CMCC No. 136 OF 2018 by Hon. Tito Gesora (CM) on 10th December, 2020)

Judgment

1. By a plaint filed on 02. 10. 2018, Respondent pleaded that on 12. 02. 2018, she was lawfully walking along Kiengo-Mutuati when she was knocked down by 2nd Appellant’s motor vehicle KBR 738K (accident motor vehicle) which was allegedly driven negligently by the 1st Appellant as a result of which she suffered injuries.

2. Appellants by their statement of Defence amended dated 22. 11. 2019 and filed on 26. 11. 2019 denied the claim and blamed Respondent for causing the accident.

The trial 3. Respondent testified that 2nd Appellant lost control of the accident motor after it hit a bump, swerved off the road and hit a motor cycle and was making an attempt to flee from the scene when he knocked her from where she was standing off the road. A police abstract tendered as PEXH.1 reveals that the accident involving Respondent occurred and was pending under investigations.

4. 1st Appellant conceded that there was an accident between the accident motor vehicle and a motor cycle on the material date but denied that Respondent was injured in that accident.

5. At the conclusion of the trial, the learned trial magistrate entered judgment on liability at 100% against Appellants jointly and severally and proceeded to award damages as follows:1)General damages Kshs. 1,000,000/-2)Special damages Kshs. 229,205/-3)Costs of future medical expenses Kshs. 300,00/-4)Costs of the suit5)Interest

The Appeal 6. Appellant was dissatisfied with the lower court’s decision on both liability and quantum contending that the finding that Appellants were liable was against the weight of evidence, some special damages that were awarded were not pleaded and that the award on general damages was inordinately excessive.

7. In their submission filed on 14. 02. 2022, Appellants reiterated the grounds of appeal and urged the court to substitute the award for general damages with a lower sum.

8. Respondent by submissions filed on 17. 05. 2022 urges the court to uphold the award by the trial court and dismiss the appeal.

Analysis and Determination 9. I have considered the evidence at the trial and the submissions and the authorities cited by counsel on behalf the parties.

10. Evidence by Respondent that 1st Appellant reversed off the road in an attempt to flee from the scene of crime was corroborated by her witness Morris Mwenda MÍmaana who stated he was at the scene of crime and witnessed the occurrence of the accident as described by the Respondent.

11. From the foregoing, I find that the trial magistrate’s finding that 1st Appellant drove negligently was well founded and the finding on liability as agonist the Appellants is confirmed.

12. On quantum, Respondent was treated as an inpatient for 20 days. A medical report dated 06. 04. 2018 by Dr. Nicholas Koome reveals that Respondent suffered:i.Soft tissue injuries on anterior chest wallii.Posterior dislocation on right hip jointiii.Dislocation right patellaiv.Bruises anterior knee

13. As at the time of examination which was about 2 months after the accident, Respondent’s injuries were healing with residual joint pain and stiffness. The doctor recommended physiotherapy.

14. A second medial report dated 30. 01. 2019 by Dr. Wambugu reveals that Respondent suffered:i.Posterior dislocation on right hip jointii.Blunt trauma right kneeiii.Multiple Bruisesiv.Soft tissue injuries on anterior chest wall

15. As at the time of examination which was about 12 months after the accident, Respondent’s injuries had healed with scars on knee joint, pain on hip joint with onset of osteoarthritis on right joint for which the doctor assessed permanent incapacity at 4%.

16. At the hearing, Respondent prayed for Kshs. 2,000,000 and cited the following authorities:a)Cold Car Hire Tours Limited vs. Elizabeth Wambui Matheri[2015] eKLR where the Respondent suffered a comminuted fracture of the right acetabulum and a dislocation of the right hip joint resulting in total hip replacement and the High Court on 11th February 2015 upheld an award of Kshs. 1,400,000/-as general damagesb)PN Mashru Limited v Omar Mwakoro Makenge[2018] eKLR where the Respondent suffered fracture of the femur distal third, fracture of the temporal bone with hematoma, head injury to the right frontal parietal bone with brain oedema, left subdural hematoma and the High Court on 20th February 2018 upheld an award of Kshs. 1,200,000/-as general damages

17. Appellants offered Kshs. 200,000/- and placed reliance ona)Francis Muiruri Mwangi v John Ngugi[2015] eKLRwhere the high Court on 08. 05. 2015 was awarded Kshs. 120,000/- on 20 May 2004 for injuries on the right elbow involving dislocation and bruisesb)Samuel Ndirangu Ng'ang'a v Lucy Wambui Wachira [2013] eKLR where the High Court on 15. 03. 2013 upheld an award for 250,000/- for dislocation of the hip joint.

18. The learned trial magistrate found that Respondent had residual complications from the injuries she suffered and awarded Kshs. 1,000,000/- in general damages.

19. Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that the court’s decision is clearly wrong, because the court has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo v Shah (1968) EA 93 and Kemfro Africa Limited t/aMeru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1985] KLR).

20. The Court of Appeal in Stanley Maore v Geoffrey MwendaNYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and stated that:Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases. (Emphasis added).

21. Concerning assessment of damages, Kneller JA in Kemfro Africa Limitedt/aMeru Express Services (1976) &Anor. vs Lubia &Anor (supra) at page 35 stated as follows:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

22. I have considered the cases cited by the Appellants and they relate to less serious injuries than those suffered by Respondent. The injuries suffered by the victims in the authorities cited by Respondent are comparable to the injuries suffered by the Respondent herein. I therefore find that the award of Kshs. 1,000,000/- awarded to the Respondent is reasonable.

23. The sum of Kshs. 229,209/- incurred by the Respondent before filing the suit was specifically proved and was appropriately awarded.

24. As at the time, Respondent testified, she was still undergoing physiotherapy which eth doctor recommended to ease the effects of osteoarthritis that had set on her hip joint. Considering that Respondent proved that she was paying Kshs. 2,000/- for each physiotherapy session, I find that future medical is reasonable.

25. From the foregoing analysis, I have come to the conclusion that this appeal has no merit and it is dismissed with costs to the Respondent.

DATED AT MERU THIS 07 TH DAY OF JULY 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant s - Ms. Wahome for Muchui & Co. AdvocatesFor Respondent - Mrs.Muia for Muia Mwanzia & Co. Advocates