[2023] KEHC 19126 (KLR)

MNB v DO (Minor Suing thro Grand Father & Next Friend JYO) & 2 others (Civil Appeal E107 of 2022) [2023] KEHC 19126 (KLR) (26 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19126 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E107 of 2022

MS Shariff, J

June 26, 2023

Between

MNB

Appellant

and

DO (Minor Suing thro Grand Father & Next Friend JYO)

1st Respondent

Fahari Cars Limited

2nd Respondent

Mary Wanjiru Mwai

3rd Respondent

(Being an appeal from the judgement and decree of Hon L. Akoth (R.M) in Kisusmu CMCC No. 493 of 2018 delivered on 10th February, 2022)

Judgment

1. The 1st respondent, a minor was travelling aboard a three wheeler vehicle (tuktuk) registration number KTWA 528X along the Kisumu-Ahero road when a motor vehicle registration number KBY 518Y hit the said tuktuk he was travelling in thus occasioning him serious bodily harm. He was admitted in hospital and sought the sum of Kshs 199,445/- in special damages, general damages and future medical expenses.

2. In the defence, the appellant denied the negligence and shifted blame to the owner of the tuktuk and or the 1st respondent.

3. A look at the evidence adduced before the trial court was to the effect that JO (PW-1) is the grandfather to the 1st respondent. The 1st respondent’s mother was also a minor and she together with her son, the 1st respondent sustained injuries. He testified that he was informed of the accident he did not witness.

4. PW-2, DA, the child’s mother stated that the tuktuk was on its rightful lane when the accident occurred. She lost consciousness and the child was taken to Kenyatta National Hospital where he was admitted for one month.

5. PW-3 PC Nyoka Mkwekwe confirmed the accident and that the tutktuk driver had been charged in court over the accident.

6. PW-4 Kevin Ndanya, a radiologist at Avenue hospital testified that the injuries sustained by the 1st respondent were soft tissue in nature according to the CT scan he produced. He confirmed that the injury was a degloving one and would leave a permanent scar.

7. DW-1 was Muhamad Imran from Fahari Motors. His testimony was that the company had sold the motor vehicle to Mary Wanjiru Mwai who was in possession of the vehicle at the time of the accident.

8. At the close of the case, the magistrate held the appellant 100 % liable for the accident, awarded Kshs 1,000,000/- in general damages and Kshs 94,176/- in special damages. This decision aggrieved the appellant who instituted the instant appeal raising the following grounds ;i.The learned trial magistrate erred in awarding general damages of Kshs 1,000,000/- which award was excessive and not commensurate to the nature of injuries sustained.ii.The learned magistrate erred in failing to consider the evidence tendered on quantum during the hearing of the suit.iii.The learned trial magistrate’s exercise of discretion in assessment of quantum was injudicious.

9. The parties filed their respective submissions in disposal of the appeal. The appellant proposed the sum of Kshs 300,000/- in general damages and cited the following authorities; Jubilee Hauliers Ltd & another v Mary Waithera Wanja [2019] eKLR and Moses Wakibi Njoroge Vs PMM & another[2021] eKLR.

10. On the respondents part, the following authorities are cited in support of the award; Hannah Nyawira Maina v James Karanja[2016] eKLR,Tononoka Rolling Mills v James Boso Weru[2015] eKLR, Wycliffe Lumula M’masi v Ernest Waithaka & another[2020] eKLR.

Analysis and Determination. 11. This being a case touching on assessment of damages for personal injuries, the parameters within which the court on appeal can alter the award was stated in Butt vs Khan [1977] 1KAR Law JA stated that“An appellate court will not disturb an award for damages unless it is 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 arrived at a figure which was either inordinately high or low.”

12. The injuries sustained by the 1st respondent in the matter are not disputed, it was degloving of the scalp. The radiologist assessed the injury as soft tissue which could leave a scar.

13. The manner of assessing damages was stated inDiocese of Kisumu v Tete [2004] eKLR where it was held;"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 difference 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 present an entirely erroneous estimate

14. This court has considered the injuries sustained by the 1st Respondent herein and the comparable awards more particularly, inRent Works East Africa Limited v SSM (Minor Suing through SMH as Next Friend) (Civil Appeal E004 of 2021) [2022] KEHC 9969 (KLR) (30 June 2022) (Judgment), Njagi J awarded kshs700,000/- where the minor had sustained severe open degloving facial injury involving the left forehead, nasal-orbital complex, intra-orbital and left nasal region. The eyelids on that side were severely damaged but the globe was intact. That a facial CT-Scan showed no fracture except superficial injuries to the frontal ethmoidal and nasal bones.

15. In arriving at the above award, the court considered other authorities to wit; In Easy Coach Limited v Emily Nyangasi[2017] eKLR the where Kshs 700,000/= was awarded in the year 2018, in In Telkom Orange Kenya Limited v I S O minor suing through his next friend and mother J N[2018] eKLR the respondent had sustained head injury occasioning a depressed skull, fracture of the skull, among other injuries. The High Court on appeal found an award of Kshs 950,000/= to be excessive and reduced it to Kshs 500,000/=.

16. Having considered the above authorities and the time factor between the dates of the award and the instant appeal, I am inclined to find the award of Kshs 1,000,000/- commensurate to the injuries sustained in the circumstances considering that the child had to be admitted for one month.

17. On the balance I find that this appeal is unmeritorious and is therefore dismissed with costs to the 1st respondent.

DELIVERED, SIGNED AND DATED AT KISUMU THIS 26TH DAY OF JUNE 2023MWANAISHA. S. SHARIFFJUDGE