[2018] KEHC 6552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURTOF KENYA AT MERU

CIVIL APPEAL NO. 43 OF 2014

CORAM: D. S. MAJANJA J.

BETWEEN

MORRIS MIRITI................................APPELLANT

AND

NAHASHON MURIUKI.........1ST RESPONDENT

KIEGOI TEA FACTORY...... 2ND RESPONDENT

(Being an appeal from the Judgment and Decree of Hon.D. W. Mburu, Ag PM dated 24th October 2014 at the Chief Magistrates Court at Meru in Civil Case No. 187 of 2013)

JUDGMENT

1. This is an appeal against the award of Kshs. 300,000/= as general damages for injuries sustained following an accident which took place on 1st December 2011 along Maua – Kiegoi road when the appellant was trying to hook onto a lorry, a tractor registration KAR 573P whose driver reversed carelessly causing it to crush the appellant. Liability was agreed in the ratio of 80:20 against the respondents.

2. The thrust of appeal as contained in the memorandum of appeal dated 21st November 2014 is that the award was too low when compared to the injuries sustained by the appellant and that the trial magistrate failed to take into account the appellant’s submissions, the cases cited, inflationary trends and the depreciation of the Kenyan shilling in reaching the award. The appellant prays that the award be enhanced.

3. According to the plaint the appellant sustained the following injuries: tender chest posterior and anterior, multiple bruises on the posterior chest, post traumatic fracture of the 3rd and 4th ribs with bilateral haemophreino thorax, left lung contusion and fracture of the right scapula. The parties agreed that the assessment of damages proceed by way of written submissions based on the documents filed by the parties. I have looked at the reports relied upon by the parties and I do not think there is any dispute as to the nature and extent of those injuries.

4. Dr Mutuku Catherine Mwende examined the appellant on 12th March 2012 and her report largely mirrored what was pleaded in the plaint. She noted that on physical examination the appellant had tenderness on the chest, he was unable to breath well due to trauma and had multiple bruises on the posterior aspect of the chest. She further observed that the appellant had sustained a fracture of the 3rd and 4th right ribs and also a fracture of the right scapula. She recommended regular check-up and avoidance of strenuous activities.

5. The appellant was also examined on 5th May 2014 by Dr Kabugi. In his report he remarked that the appellant was complaining of chest pain after heavy work which was more severe when it was cold. The doctor observed that the appellant had a normal gait, movement of the shoulders was complete but painful at the end of extensions and all other systems were normal. He noted that all the injuries including fractures had healed and he had recovered. He opined that the appellant was predisposed to developing osteoarthritis of the right shoulder and assessed permanent injuries at 10%.

6. The appellant proposed a sum of Kshs. 1,000,000/- as general damages and cited several cases to support the proposal. In Sabina Wanjiku Kiongera & Another v Priscilla Muthoni NBI HCCC No. 5243 of 1989 (UR) where the 1st plaintiff sustained a fracture of the upper third of the left femur, displaced fracture of the head of the left humerus and fracture of the 5th right rib. She was hospitalised for 34 days and underwent 3 operations to fix the fractured femur. She was awarded Kshs. 400,000/- in 1992. In Jane Ochieng & 3 Others v G. Mutua & Another NBI HCCC No. 3281 of 1987 (UR), the 1st plaintiff suffered multiple injuries including cerebral concussion that rendered her unconscious for 3 days, cut wounds and abrasions on the scalp, fractures of the left humerus bone, fracture of 2 ribs of the left chest and blunt chest injury. She was admitted in hospital for 10 days. She was awarded Kshs. 200,000/- in 1992. The claimant was awarded Kshs. 368,500/- in 1993 after sustaining fractures of the midshaft of the left femur, fracture of 3 ribs and the left chest and head concussion in Patrick Kosgei Kipkenda v Enock Cheserela NBI HCCC No. 916 of 1992 (UR). Finally, the appellant cited the case of Jotham Odhiambo Otiende v Bernard Ondiek KRC HCCC No. 17 of 2000(UR) where the plaintiff sustained severe chest injury, fractures of the 7th, 8th and 9th left side ribs, 2nd, 4th, 5th and 6th right side ribs, fracture of the right scapula, fracture of the right side pelvis involving the acetabulum and a lung contusion. He was awarded Kshs. 600,000/- in 2001.

7. The respondents proposed a sum of Kshs. 150,000/- as a reasonable award for general damages. They cited the case of Joyce Wanjiru Kamau v Kenya Canners Ltd & Another NRB HCCC No. 360 of 1989 (UR) where the claimant sustained a fracture of the left collar bone and multiple fractures of the pelvis. She was awarded Kshs. 100,000/- in 2004. In Bildad Mwangi Gichuki v TM-AM Constructions Group (Africa) NRB HCCC No. 1617 of 1998 (UR), the plaintiff sustained a fracture of the pelvis, three ribs and left femur. He was awarded Kshs. 250,000/- in 2000.

8. This appeal concerns the award of general damages. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR 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.

9. In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v GachokiNKU CA Civil Appeal No. 66 of 1981 [1982] eKLRand Jabane v Olenja [1986] KLR 661).

10. The gulf between the cases the parties cited was too wide. The cases cited by the appellant had admittedly more serious injuries. They were in fact more dated, the latest case being about 13 years from the date of the judgment in the trial court. The respondents cited cases with similar injuries to those sustained by the appellant but the cases were also dated and were decided about 10 years prior to the judgment. The decisions were not particularly helpful in that regard and counsel must take the blame for failing to assist the court arrive at a fair decision by citing more recent and relevant cases. As I have noted, the respondent is entitled to fair compensation having regard to the duty of the court to ensure consistent awards across the board.

11. For an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan[1981] KLR 349).Taking into account these principles, I cannot detect any error on the part of the trial magistrate that would warrant interference. Likewise and having regard to the cases cited by the parties, I cannot fault the trial magistrate for awarding Kshs. 300,000/-.

12. The appeal is dismissed. Since the respondents neither attended court nor filed submissions as directed, I make no order as to costs.

DATED and DELIVERED at KISUMU this 31st day of May 2018.

D.S. MAJANJA

JUDGE

Ms Kaume instructed by M. G. Kaume and Company Advocates for the appellant.

J. K. Kibicho & Company Advocates for the respondents.