[2023] KEHC 26776 (KLR)

Mpalia v Wanyama (Civil Appeal E087 of 2022) [2023] KEHC 26776 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26776 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E087 of 2022

REA Ougo, J

December 13, 2023

Between

Stephen Wafula Mpalia

Appellant

and

Violet Nekesa Wanyama

Respondent

(An appeal from the judgment of Hon. Gladys Adhiambo delivered on 23. 9.2022 in Kimilili PMCC No. E161 of 2021)

Judgment

1. Parties in this matter recorded a judgment on liability before the trial court at 80:20 in favour of the respondent. The trial court awarded the respondent Kshs. 600,000/- as general damages and special damages of Kshs. 26000/-, less 20% contribution. The respondent was also awarded costs of the suit and interest at court rates.

2. Vide a memorandum of appeal filed in court on the 26th of September 2021 the appellant avers that his appeal is on quantum on the following grounds;i.That the learned trial magistrate erred in law and fact in adopting or applying the wrong principles in the assessment of general damages payable to the respondent thereby arriving at an erroneous decision and awarding excessive damages in the circumstances.ii.That the learned trial magistrate erred in law and fact in failing to take into account relevant issues or factor in making a determination on damages payable to the respondent and thereby reaching an award that was excessive i.e. Kshs. 600,000/- as general damages.iii.That the learned trial magistrate erred in law and fact by failing into account relevant precedents or authorities with comparable injuries like the ones that the respondent sustained and/ take into account the appellants submissions on the issue of quantum thereby arriving at an excessive amount for general damages awardable to the respondent.

3. The appellant seeks that the appeal be allowed and that the lower court’s judgment and/or decision on quantum/ general damages be substituted with a judgment re-assessing the general damages downwards. Costs of the appeal be awarded to the appellant.

4. The appeal was canvassed by way of written submission. The appellant submitted as follows; that the respondent pleaded the following injuries;a.Fracture of the right olecranon processb.Bruises on the facec.Blunt injuries to the chestd.Blunt injuries to the backe.Blunt injury and bruises to both handsf.Blunt injury and bruises to both legs.

5. According to the appellant the trial magistrate should have awarded damages in tandem with the injuries in line with the well-known principle in law that comparable injuries ought and should attract comparable damages (see Arrow Car Limited vs Elijah Shamalla Bimomo & 2 Others (2004) eKLR). It was further submitted that the award of Kshs. 600,000/- was high for the injuries the respondent and that an award of Kshs. 300,000/- would suffice. Reliance was made in the following cases; Philip Musyoka Mutua vs Leonard Kyalo Mutisya (2018)eKLR where an award of Kshs. 400,000/- was substituted with that of Kshs.300,000/- to the respondent who had sustained a fracture of the distal radius and soft tissue injuries. Gladys Lyaka Mwombe vs Francis Namatsi & 2 Others (2019) eKLR where an award of Kshs. 300,000/- to the respondent who sustained a fracture and soft tissue injuries. The appellant argued that the trial magistrate relied on authorities that had more serious injuries compared to that of the respondent.

6. The respondent on the other hand submitted that the respondent’s medical report from Doctor Sokobe confirmed the fracture and the soft tissue injuries. The said doctor confirmed that the respondent would heal but would require Kshs.100,000/- to remove the implant. Though the respondent was awarded Kshs. 626000/-, the final sum due would be Kshs.500,800/- after the deduction of 20%. It was submitted that the award was reasonable. Reliance was made on the case of Lawrence Musyoka Mulonzi & Another vs Daniel John Kata Ndambuki where a respondent who suffered similar injuries was awarded Kshs. 750,000/- in May 2019.

Analysis and determination 7. I have carefully considered the submissions by parties and the main issue for determination in this appeal is whether the trial court made an excessive award of damages. The assessment of damages is a discretion that an appellate court will not interfere with unless the award is inordinately high or low as to represent an entirely erroneous estimate; it has to be shown that the court proceeded on wrong principles, or that it misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. (SeeButt v Khan Civil Appeal No. 40 of 1977 [1978] eKLR).

8. The appellant in his submissions did not challenge the injuries sustained by the respondent. The factors that a court considers in determining the award to give in damages include the nature and extent of the injuries, the awards made for comparable injuries as well as inflation rates. A court must however bear in mind that no two cases are the same. In the case of Stanley Maore vs Geoffrey Mwenda Nyeri CA No. 147 of 2002 the Court of Appeal had the following to say on the assessment of general damages;“It has been stated now and again that in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable award keeping in mind the correct level awards in similar cases.”

9. The respondent sustained a fracture at the olecranon (elbow) joint and blunt injuries to the chest, back both hands, and both legs. In her evidence before the trial court, she testified that she sustained a fracture of the right arm, she has a metal plate in the said arm she also had injuries in her right leg. She underwent grating because all flesh remained on the road. She sustained bruises on both arms a cut on the forehead and got 8 stitches. She is yet to heal. Doctor Sokobe examined the respondent on 30/7/2019. His opinion and prognosis was that the respondent sustained both bony and soft tissue injuries from which she was recovering well. That she requires the implant removed at an estimated cost of Kshs.100,000/-. He examined him about 15 days after the accident. Doctor Z. Gaya examined the respondent on the 22nd of February 2022. He noted the same injuries as Doctor Sokobe. He noted healed scars- on the face, the right forearm, and the right thigh. The repeat X-ray showed plating of the right olecranon. His opinion and prognosis was that there was a limited range of movement on the right shoulder joint and she needed physiotherapy sessions at an approximate cost of Kshs. 50,000/-. The metal implant on the right arm need not be removed. She had sustained both bony and soft tissue injuries from which she has recovered well. There is no permanent disability awardable according to the accident compensation scales.

10. The appellant cited two cases, in the case of Philip Musyoka Mutua (supra) the plaintiff suffered a closed fracture radius bone, bruises on the forehead and left hand and cut wound on the face. The appeal was allowed and the award of 400,000/- was reduced to Kshs. 300,000/- (a 2018 decision). In the case of Gladys Lyaka Mwombe (supra), the plaintiff had sustained a cut wound on the anterior part of the scalp, a head injury, a spinal cord injury, fracture of the lower tibia and fibula and cut wound on the face. An award of Kshs. 400,000/- was upheld, (a 2019 case).

11. The respondent relied on the case of Lawrence Musyoka Mulonzi (supra). The plaintiff in the cited case suffered the following injuries; subdural hematoma, fracture of the left olecranon process, injury to the chest, right knee, bruises on the forehead injury to the left shoulder and swollen left elbow the plaintiff was awarded Kshs. 750000/-. When I considered all the cited authorities I agree that the case of Lawrence Musyoka (a 2020 case) has comparable injuries with the respondent in the appeal. Doctor Gaya who examined the respondent in 2022 noted that she has a limited range in the right shoulder joint and she will need physiotherapy. I note that his report was adopted by consent in the lower court, thus his opinion that the metal plate need not be removed was not interrogated. Doctor Soboke thought that it would be removed at one point at a cost of Kshs. 100,000/-. I have considered her evidence before the trial court and the two medical reports and in my view, I find no reason to disturb the award by the trial court. It was not excessive, the amount awarded was adequate compensation. The special damages were not contested.

12. The appeal is dismissed. Each party will bear its own costs of the appeal.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF DECEMBER 2023. R.E. OUGOJUDGEIn the presence of;Miss Chepkwony - For the AppellantRespondent - AbsentWilkister - C/A