[2013] KEHC 3712 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

Civil Appeal 190 of 2008 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>

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MEHARI TEWOLDGE T/A

MEHARI TRANSPORTERS LTD. ………………………………………… APPELLANTS

VERSUS

DAMUS MUASYA MAINGI ………………………………….………………. RESPONDENT

(Being an appeal from the Judgment of the Chief Magistrate’s Court at Machakos of Hon F. Muchemi (CM) in Chief Magistrate Case No. 188 of 2007 dated 23rd October 2008)

************************************

(Before B. Thuranira Jaden J)

R U L I N G

The Respondent Damus Muasya Maingi filed suit against the appellants Mehari Tewoldget T/a Mehari Transporters claiming damages for the injuries he suffered when he was involved in a road accident on 15/5/2006 involving motor vehicle KAE 724 E and motor vehicle KAS 699 P.

During the trial before the lower court, the parties agreed on liability at 20% against the Respondent and 80% against the Appellants.

The trial magistrate in her judgment awarded the Respondent “Kshs. 1,500,000/= for loss of amenities, Kshs.150,000/= for future operation and Kshs. 641,200/= for medical expenses and other specials proved.”

The appellants were aggrieved with the said judgment and appealed to this court on the following grounds:-

1. “The learned Chief Magistrate erred in law and in fact by entering judgment for special damages of Kshs.641,200/= which was not proved as required by the law.

2. The learned Chief Magistrate erred in law and in fact by making an award of general damages which was manifestly excessive given the injuries of the Respondent.”

The firm of Manthi Masika & Company Advocates appeared for appellant while the firm of L.M. Wambua & Company Appeared for the Respondent.

The appeal was canvassed by way of written submissions which I have duly considered.

This being a first appeal, the court is duty bound to re-evaluate the evidence on record and come to its own findings – See Selle –vs- Associated Boat Co. Ltd (1968) EA 123.

“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 or 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 demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs Ali Mohamed Sholan (1955), 22 E.A.C.A. 270”.

The medical report by Dr M.N. Kuria dated 1/3/2007 was produced to court by Dr. V. Musau (PW1). The injuries sustained by the Respondent were reflected as follows:-

1. “Blunt injury to the chest;

2. Fracture 3 ribs 4, 6, 7 on the right side with puncture of the pleural leading to heamathorax.

3. Blunt injury to the abdomen with a tear in the liver and severe internal bleeding leading to heamoperitoneum;

4. A deep cut on the upper right arm with skin and muscle deficit near the axilla;

5. Many cuts and bruises on the whole right arm;

6. Fracture right scapula; and

7. Several fractures on the right tibia and fibula at the ankle joint.”

The doctor’s report further stated:

“He was admitted at Mater Hospital in serious condition and he underwent urgent laparascopic surgery in the chest and abdomen to stop bleeding and remove the accumulated blood. The tear in the liver was packed with surgicel.

He also underwent endoscopy. Skin grafting was done to close the gaping wound on the right upper arm. He also underwent ORIF with screws inserted to stabilize the fractures at his ankle. He later went through another operation for removal of one screw, 4 others are still in situ.”

The doctor’s conclusion was as follows:-

“This man sustained very severe life threatening injuries which could have killed him if quick action was not taken. He has been to theatre for operation so many times that he lost count. He still needs further surgery for removal of the remaining 4 screws as the approximate cost of Kshs.300,000/=.

The fractured ankle joint will always be unstable and will certainly develop early osteoarthritis.”

Dr Musau(PW1) also produced a duly filled P3 form which reflected similar injuries.

Another report by Dr Wambugu P.M. dated 23/11/2007 was also produced. The injuries sustained by the Respondent were reflected as follows:-

ü“Blunt chest trauma with fractures of the right 4th, 6th and 7th ribs and haemothorax.

üBlunt abdominal trauma with laceration of the liver.

üFracture right scapula bone.

üFriction burns and laceration wounds right upper limb.

üCommunited fractures right tibia and fibula bones with fracture – dislocation of the ankle joint.”

This report shows the Respondent was managed as an inpatient for one month and treatment involved the draining of the haemothorax, cleaning and dressing skin-grafting and the tibia and fibula fractures were openly reduced and internally fixed using metal implants. There was a three day re-admission for the removal of a single transverse tibio-fibula screw followed by several physiotherapy sessions.

Dr Wambugu’sopinion was that the fractures were united and the metal implants are due for removal at a cost of Kshs.35,000/=. The Respondent was left with scars that were of cosmetic concern and had already developed osteoarthritic changes across the ankle joint. The doctor concluded that the Respondent is unlikely to ever fully exert himself using the injured limb and estimated the degree of permanent incapacity at 8%.

The Respondents submitted for an award of Kshs.600,000/= as General Damages. The Appellants relied on the following authorities:-

George Kiptoo Williams vs William Senek & Another (2004) e KLRwhere the plaintiff was awarded Kshs.560,000/= as General Damages for the following injuries:

(a)“ cut wound on the occipital region with lacerations on the left temporal region of the head;

(b)Sublaxation of the cervical vertebrae C1, C3 and C4;

(c)Fracture of the 2, 3, 4, 5, 6, 7, & 8th ribs of the left side of the chest;

(d)Fracture of the body of the left scapula;

(e)Cut wound on the left hand and left arm.”

Hogh Francis Edwards –vs- Kenya Bus Service Ltd & Ano. 3 KLR 1994where an award of Kshs.800,000/= was made of General Damages for severe compound fractures to the upper end of left tibia, below the knee, neck, and left knee.

The Respondent’s counsel supported the lower court’s judgment. He relied on the following case:-

Edward Nzamili Katana vs Motors Group Ltd and Shar Punja Hira (2006) e KLRwhere Kshs. 2,000,000/= was awarded as General Damages for the following injuries:-

(a)“Head injury leading to concussion;

(b)Cut wound and bruises of the scalp;

(c)Compound fracture dislocation of the left elbow;

(d)Chest injury with multiple fractures of the left 5th, 6th and 7th ribs; and

(e)Fracture of the left femur upper 1/3 shaft.”

The authorities cited by both the Appellant’s counsel and the Respondent’s counsel clearly demonstrate awards of General Damages that have attracted less amounts of figures for more severe injuries while the authority cited by the Respondent reflects a higher award for less severe injuries. There are a legion of authorities which can support either side.

However, the award of General Damages in the case at hand cannot be described as inordinately high or low as to represent an entirely erroneous estimate.

As stated by the Court of Appeal in the case of:

Kemfro Africa Limited t/a Meru Express Services & Another vs A.M. Lubia and another (No.2) (1982-88) L KAR 727 at page 703 that:-

“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case at first instance.

The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

The injuries sustained by the Respondent were very severe and left him with permanent incapacity. The Kshs.1,500,000/=, General Damages on Kshs.150,000/=, cost of future medical operation are reasonable and I will not disturb the same.

The Respondent was further awarded Kshs.641,200/= as special damages. The plaintiff produced invoices from Mater Hospital for a total of Kshs.638,153 (Exh.4). He also produced a receipt for Kshs.3,000/= (Exh. 6) for the fee for the medical report and receipt for Kshs.200/= (Exh. 7) for the fee for the police abstract. All these special damages claim were specifically pleaded in the plaint except the fee for payment for the medical report. The law on special damages is clear. The special damages must be specifically pleaded are specifically proved.

The Respondent produced the receipt for the police abstract. However for the claim of Kshs.638, 153/= medical bill was not strictly proved by the Respondent. Although the Respondent stated in his evidence in chief that he was producing the receipt for the medical bill, what was produced was an invoice. During cross-examination, the Respondent stated that the medical bill was paid by his employer and he did not obtain the receipt for the same. The Respondent’s explanation that the employer was carrying out deductions on his salary for the medical bill did not help because no pay slips were produced to confirm that position.

Failure by the Respondent to produce documents to strictly prove the payment of the Kshs.638,153/= medical bill by the plaintiff has left a question mark as to whether it was the Respondent who met that expense. The only claim for special damages strictly proved is Kshs.200/=.

I will therefore set aside the award of Kshs.641,200/=, special damages award and substitute the same with the sum of Kshs.200/=.

The total award therefore comes to Kshs.1,650,200/= less 20% contribution. The final figure comes to Kshs.1,320,160/=.

The costs of the lower court to the Respondent. Each party to meet own costs for the appeal.

………………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 11thday of April 2013.

………………………………………

JUDGE