[2023] KEHC 26403 (KLR)

Muchomba & another v Ndiku a.k.a Mbole (Civil Appeal E046 of 2021) [2023] KEHC 26403 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26403 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E046 of 2021

HM Nyaga, J

December 13, 2023

Between

David Kibui Muchomba

1st Appellant

Abraham Berany

2nd Appellant

and

Shadrack Mbole Ndiku a.k.a Shadrack Mbole

Respondent

(Appeal against judgment and decree on quantum from the Judgment of Hon.R. Ombata, Principal Magistrate delivered on11th May, 2021 in Nakuru CMCC No. 1235 of 2019)

Judgment

1. This Appeal arises from the judgment and decree in the above stated suit.

2. The Respondent sued the Appellants for both general and special damages in respect of a road traffic accident which occurred on 15/11/2019, in which he sustained personal injuries. The Appellants were sued as the lawful and beneficial owners of the Motor Vehicle Registration Number KAR 667 X Toyota Matatu which allegedly hit the respondent who was a lawful pedestrian near Midland Hotel, Nakuru.

3. The claim was fully defended and the trial magistrate delivered a judgement on 11th May,2021 in which she found the Appellants 100% liable for the accident and awarded general damages of Ksh. 500,000/= special damages of Ksh.16,030/=, costs and interest at court rates.

4. The Appellants are aggrieved with the said judgment, but on quantum for general damages only. They lodged this appeal on 13th May,2021 setting out the following grounds of appeal:I.That the Learned Trial Magistrate erred in law and in fact in making an award of Ksh. 500,000/= for general damages to the respondent which award was manifestly excessive in the circumstances hence amounting to an erroneous decision.II.That the trial magistrate erred in law and in fact in awarding the Respondent Ksh. 16,030/= as special damages that was not strictly proved to the required standard in law thereby arriving at an erroneous decision in the circumstances.III.That the Learned Trial Magistrate erred in law and in fact in awarding costs and interest of the suit to the respondent without any legal justification hence amounting to an erroneous decision in the circumstances.IV.That the learned magistrate erred in law and in fact in relying and or taking into account extraneous evidence that was not tendered during the trial thereby arriving at a decision that was plainly wrong in the circumstances.V.That the learned magistrate erred in law and in fact in failing, declining and or ignoring to consider the Appellants’ submissions and legal authorities relied on hence arriving at an erroneous decision in the circumstances.VI.That the learned magistrate erred in law and in fact by over-relying on the Respondents written submissions and legal authorities relied on hence arriving at an erroneous decision on quantum.VII.That the Learned Trial Magistrate’s decision albeit a discretionary one was plainly wrong in the circumstances.

5. The appellants urged this court to allow this appeal, set aside and or vary the whole judgement of the trial court and substitute with a proper finding.

6. The appellants also prayed that the costs of the Appeal be borne by the Respondent.

7. The appeal was canvassed by way of written submissions.

8. The appellants’ counsel filed their written submissions dated 14/7/2023 on 17th July, 2023 whereas the Respondent’s counsel filed his written submissions dated 20/09/2023 on 30/9/2023. I will summarise them as hereunder.

Appellants’ Submissions 9. It was submitted that as per the original treatment notes dated 29th October 2019 the Respondent sustained right hip pain, shoulder bruises and pain, facial bruises and swelling and right pelvic pain, which can be classified as soft tissue injuries and as such the lower court’s award of Ksh. 500,000/= as general damages was inordinately high in light of the injuries herein.

10. The Appellants argued that the treatment notes should form basis of the injuries sustained by the respondent in accident. To this effect, reliance was placed on the case of Timsales Ltd vs Wilson Libuywa [2008] eKLR.

11. The Appellants further referred this court to the case of Kenya Power Lighting Company limited & Another vs Zakayo Saitoti Naingola & Another( 2008) eKLR which cited in the case Jennifer Mathenge vs Patrick Muriuki Maina [2020] eKLR. In the latter case, the court set out the principles to bear in mind on assessment of damages.

12. The Appellants submitted that the sum of Ksh. 80,000/= would suffice as adequate compensation. They relied on the following cases: -a.Ndung’u Dennis vs Ann Wangari Ndirangu & Anor (2018) eKLR where the claimant sustained injuries on the right lower leg and bruises on the back. An award of Kshs. 300,000/= was reduced to Kshs. 100,000/= on appeal.b.Nyambati Nyaswabu Erick vs Toyota Kenya Limited & 2 Others [2019] eKLR where the plaintiff sustained a deep cut injury on the scalp extending to the maxilliary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and was awarded Kshs 90,000/-c.Eva Karemi & 5 others vs Koskei Kieng & another [2020] eKLR where the high court on appeal upheld the trial court general damages of Ksh. 70,000/= awarded to the 1st Appellant who had sustained injuries to her right thigh and general bruises on her lower and upper limbs; Ksh,, 40,000 awarded to the 2nd Appellant who had sustained injuries on the right shoulder pain and cut wound on her mouth; Ksh.45,000/= awarded to the 3rd Appellant for injuries on and pain on her back and right shoulder pain;Ksh.40,000/= awarded to the 4th Appellant for cuts on the chin and right shoulder tenderness;Ksh.60,000 for 5th Appellant for sustained 2cm cut on the forehead, cut wound on the right elbow and right limb (leg and ankle joint); & Ksh. 65,000/= awarded to the 6th Appellant for injuries the bruises on the forehead, hip and left ankle.

13. On costs, the Appellants submitted that the same to be awarded to them in line with the provisions of Section 27 of the Civil Procedure Act.

Respondent’s Submissions 14. The respondent submitted that the evidence on record proved that he sustained fracture of the clavicle and other multiple injuries.

15. That the treatment notes in the 3rd entry for 9:44 pm clearly indicated “Hairline # proximal clavicle” which is an acronym for a Hairline Fracture and Proximal Clavicle whereas the P3 form which was filed in the same hospital indicated that he sustained Fracture of the Right Clavicle, and in addition the said fracture was captured in the medical report by Dr. Kiamba.

16. He argued that all the above medical documents were produced by consent of both parties and there was no contrary evidence adduced by the Appellants to prove otherwise and as such the trial magistrate cannot be faulted for relying on the same or holding that he suffered fracture of the clavicle and other multiple injuries. To bolster his submissions, he relied on the following cases;a.Benson Charles Ochieng and Anor. vs Susan Odhiambo(2013) eKLR, where the court held that the Appellant’s choice not to refer the respondent to be seen by the doctor of their choice for a second opinion left the medical evidence by the respondent uncontroverted.b.Dick Omondi Ndiewo T/A Ditech Engineering Service vs Cell Care Electronics [2015] eKLR where the court held that the evidence of an expert can only be challenged by evidence of another expertc.Eldoret Express Company Limited vs Nandabelwa (Civil Appeal 120 of 2017) [2022] KEHC 3226 (KLR) (5 May 2022) (Judgment) for the proposition that The Appellant having consented to the production of the only evidence on record cannot at the appellate stage, seek to impugn its authenticity.d.Acceler Global Logistics vs Gladys Nasambu Waswa & another [2020] eKLR- where the court held that defendant’s failure to call evidence in support of his case left the evidence adduced by the plaintiff unchallenged.e.M M (minor suing through the mother and next friend M N M vs Family Bank Limited & another [2018] eKLR for the proposition that submissions cannot take place of evidence and where a party fails to prove their case by evidence submissions cannot come to their aid.

17. The respondent urged the court to uphold the award on general damages and dismiss the appeal with costs to him considering the same was challenged on ground of mistaken injuries alone which has been demonstrated.

Analysis & Determination 18. This appeal is against quantum only.

19. This being a first appeal, parties are entitled to expect a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.

20. In Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR, the Court of Appeal stated that;“[A]n 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 nor heard the witnesses and should make due allowances in this respect”

21. In Peters vs Sunday Post Ltd [1958] EA 424, the Court held that;“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”

22. Similarly, in Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the same stated with regard to the duty of the first appellate court;“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

23. With the above in mind, I will now proceed to determine the Appeal.

24. Having considered the record of appeal, the submissions and the authorities relied on by the respective parties, I opine that the only issue for determination is whether the quantum for general damages awarded by the trial court was manifestly excessive.

25. It is imperative to note that an appellate court would not easily interfere with the trial courts’ discretion on this issue unless it found that the trial court applied wrong principles in arriving at the finding. As stated by the Court of Appeal in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini vs A M. Lubia and olive Lubia (1985) 1 KAR 727:“.... 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 court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.....”

26. The same Court in Odinga Jackton Ouma vs Moureen Achieng Odera [2016] eKLR stated that- “comparable injuries should attract comparable awards”

27. The contest is with regard to the injuries suffered by the Respondent. According to the Appellant, the injuries that were sustained by the Respondent based on the initial treatment notes were in the nature of soft tissue injuries. The respondent on his part has argued that his medical evidence on record confirmed that he sustained fracture of the clavicle and other multiple injuries. This issue is crucial and must therefore be determined first as assessment of damages is wholly premised on the injuries sustained.

28. As per the plaint dated 30th November,2020, the Respondent pleaded that he sustained the following injuries: -i.Fracture of the right clavicle.ii.Soft tissue injuries of the forehead.iii.Soft tissue injuries of the neck.iv.Friction burns on the right scapular region.v.Friction burns on the right lumbar region of the back.vi.Abrasions on the left lumber region of the back.vii.Frictions burns on the right shoulder extending to the hind arm.viii.Bruises on the occipital region.ix.Injury to the right eye-had periobital oedemax.Soft tissue injuries of the right hip joint.

29. The treatment notes from Rift Valley Hospital dated 29th October 2019 at page 17 of the record of appeal indicates that the respondent sustained injuries to the head, hip and the shoulder. Under the impression recorded at 9:44 pm shows injuries as Soft tissue injuries of the hip and “hairline # proximal clavicle.”

30. The injuries pleaded match with those stated in the P3 form and the medical report by the Respondent’s doctor.

31. It is clear therefore from the treatment notes, P3 form and the Medical Report that the Respondent sustained a fracture of the right clavicle and other injuries which are soft tissue injuries in nature.

32. The Appellants have raised this appeal principally because they believed the respondent did not sustain a fracture but soft tissue injuries only. Based on that belief they were of the view that the award on general damages were excessive.

33. The evidence on record is clear on the injuries sustained by the Respondent. I am in concurrence with the trial magistrate as to their nature or extent.

34. Having looked at the authorities cited by the parties both in the lower court and in this appeal, I have no reason to find that the award by the trial magistrate was manifestly excessive. It is within the range of damages awarded for similar injuries.

35. Consequently, I uphold the award of Ksh. 500,000/- as general damages by the trial court and proceed to dismiss the appeal with costs to the respondent.

36. It is so ordered.

DATED AND DELIVERED AT NAKURU THIS 13THDAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutN/A for parties