[2022] KEHC 11474 (KLR)

Mugah v General Motors East Africa Ltd & 2 others (Civil Appeal 54 of 2019) [2022] KEHC 11474 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11474 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 54 of 2019

GWN Macharia, J

July 14, 2022

Between

Dinah Anyango Mugah

Appellant

and

General Motors East Africa Ltd

1st Respondent

Guardian Angel Coach

2nd Respondent

Richard Nyakundi Mose

3rd Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha CMCC No. 309 of 2017 delivered by Hon. Martin Mutua (Mr), RM on the 30th day of September, 2019)

Judgment

The Appeal 1. The instant appeal is with respect to the judgment by Hon. M. Mutua, RM delivered on the 30th day of September, 2019 in Naivasha CMCC 309 of 2017 where the trial court found in favour of the Appellant in the following terms:a)Liability: 95:5% in favour of the Plaintiffb)General damages: Kshs. 60,000. 00c)Special damages: Kshs. 10,000. 00d)Costs and interests thereon

2. The appellant being aggrieved by the said decision of the learned trial magistrate filed her memorandum of appeal on the 30th day of October, 2019 seeking to have this Honourable Court interfere with the findings of the trial court on quantum.

3. The appellants’ memorandum of appeal outlined Two (2) grounds of dissatisfaction with the decision of the Learned Trial Court, namely:a)That the learned trial magistrate erred and misdirected himself in fact and law by awarding general damages to the appellant that were manifestly low in the circumstances and thus failed to appreciate the principles applicable in the award of damages.b)That the learned trial magistrate erred in failing to consider and critically analyze the injuries sustained, evidence adduced and submissions made on behalf of the plaintiff/appellant and thus arrived at an unjustifiable low award of the injuries sustained.

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

5. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified and give due regard for that. See: Selle &anothervsAssociated Motor Boat Company Ltd &others[1968] EA 123.

6. Further in Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR (Civil Appeal No. 161 of 1999) the court stated:-“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.”

Background 7. The appellant initiated her claim against the respondents vide a plaint dated the 11th day of July, 2017. It was the appellant’s case that she sustained injuries as a result of an accident which occurred on or about the 2nd day of April, 2017 while she was travelling as a passenger along Mahi Mahiu-Nairobi Road. The appellant averred that the said accident was a result of the negligence of the Respondents and/or their servants and/or employees who were in control of motor vehicle registration KBS 244V which lost control and got involved in an accident with motor vehicle registration KCH 845P as a consequence of which she sustained very serious injuries for which she held the respondents liable.

8. It was further averred by the appellant that as a result of the said accident, she sustained the following injuries:a)Deep cut wound on the left parietal region leading to soft tissue injuries.b)Deep cut wound on the left foot leading to soft tissue injuries.c)Soft tissue injuries of the right index finger.

9. As a result of the accident the appellant blamed the respondents fully on negligence and breach of duty of care as particularized in paragraph 5 of the plaint.

10. The appellant sought for judgment against the respondents for:a)Special damages of Kshs. 10,000. 00b)General damages.c)Costs and interests.

11. The respondents filed a joint statement of defence dated the 31st day of July, 2017 in which they denied the occurrence of the accident, negligence on their part and suffering of any injuries by the Appellant as a result of the aforementioned accident.

12. The parties recorded consent on liability in the ratio of 95:5% in favour of the plaintiff.

Evidence 13. The appellant was treated at Naivasha County Referral Hospital and issued with a P3 Form which confirmed the injuries she had sustained. Dr. Obed Omuyoma examined the appellant and prepared a report which was produced in support of her. He confirmed the injuries as particularised in the Plaint.

Submissions 14. The appellant filed her submissions on the 28th day of February, 2022 in which she urged this court to interfere with the findings of the learned trial magistrate on the issue of the general damages for pain and suffering.

15. It was the Appellant’s case that the learned trial Magistrate in making the award on general damages relied on case of Samwel Mburu N Ng’aari, Sarah Wanjiku N Ng’aari, Grace Waithira N Ng’aari, Mary Waithira Mburu & Jeanette Wangui Mburu v Wangiki Wangare & Christopher Kimani Kuruma [2014] eKLR in which the Plaintiff suffered less severe injuries.

16. The Appellant relied onJustine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa[2020] eKLR where the court awarded Kshs. 300,000. 00 for deep cut wound on the chin, cut on the lips, injury to the right forearm. The appellant further relied on the authorities of Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR where the Honourable Court awarded Kshs. 300,000. 00 and in Samuel Muthama v Kenneth Maundu Muindi [2009] eKLR where the Court awarded Kshs. 380,000. 00.

17. The respondents filed their submissions on the 20th day of April, 2022 in which they urged the honourable court to affirm the decision of the learned trial magistrate.

18. The respondents urged the honourable court to consider the authority of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR where the minor had sustained injuries to the head and neck, abdomen and limbs and an award of Kshs. 60,000. 00 was made for the soft tissue injuries. Further, the respondents relied on the case of Eva Karemi & 5 others v Koskei Kieng & another [2020] eKLR where awards for general damages in the range of Kshs. 40,000. 00 to Kshs. 70,000. 00 were made for soft tissue injuries.

Analysis and Determination 19. I have accordingly considered the evidence adduced before the trial court as well as the written submissions. This Court is merely tasked with making a determination as to whether the award of Kshs. 65,000. 00 as general damages for pain and suffering was inordinately low to warrant the interference by the court. The court would have to have to bear in mind that comparable injuries should attract comparable damages as was the position in Odinga Jacktone OumavMoureen Achieng Odera [2016] eKLR.

20. The court takes note of the doctrine that the award of general damages is an exercise of discretion by the trial court based on the evidence and impressions on demeanour of witnesses made by the learned trial Magistrate which advantage an appeal court by its mode of delivery lacks. See Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.

21. It is crucial to note that in order for the appellate court to interfere with the award of the trial court, there has to be sufficient grounds and principles as was held in Butt v Khan{1981} KLR 470 and Kitavi v Coastal Bottlers Ltd [1985} KLR 470) that:“Although one would expect that in the normal course of things, the claimant to the accident might get well and restored to his or her original health status prior to the accident sometimes that is not the case in most instances. It is necessary to find the correct bearing which seldom alludes the Judges with expertise and knowledge on the areas of specialization. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirety erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.”

22. I stand guided by the principles on interfering with judicial discretion as laid down in the case of Price andanother v Hilder [1996] KLR 95 which laid down the following guidelines that:“In considering the exercise of judicial discretion, as to whether or not to set aside a Judgment the court considers whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment. The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”

23. Further, in the case of Gitobu Imanyara & 2others v Attorney General [2016] eKLR, the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:‘An appellate court will not disturb an award of damages unless it is so 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 so arrived at a figure which was either inordinately high or low.”

24. I have considered the rival submissions by parties, the evidence on record and the authorities cited by both counsels and appreciate that injuries will never be fully comparable to other person’s injuries. What a court is to consider is that as far as possible the injuries are comparable to the other person’s injuries, and the after effects.

25. It is not contested between the parties that the Appellant sustained injuries which were soft tissue in nature.

26. The honourable court in the case of Stephen Kinini WangonduvThe Ark Ltd [2016] eKLR in offering guidance to conflicting expert opinions noted that:“Expert testimony like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is not obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, provided: it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criterial a court should use to weigh probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of evidence which a court has to take into account. Four consequences flow from this:“Firstly, expert evidence does not trump all other evidence. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest important. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.Secondly a judge must not consider expert evidence in a vacuum. It should not therefore be ‘artificially separated’ from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a Judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.Fourthly, a Judge should consider all the evidence in the case, including that of experts, before making any findings of fact, even provisional ones.”

27. Further, the Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros V Augustine Munyao Kioko CA 203/2001[2007] 1 EA 139 held:“like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

28. The appellant having sustained soft tissue injuries, the following cases are a good guide:i.In the case of LNK (A Minor Suing Through CNK As Next Friend) & 2 others v Simon Gatuni Njukia [2022] eKLR where the appellant sustained cut wounds on the occipital region, neck, right ankle and foot, the Court on appeal revised upwards the award from Kshs. 20,000. 00 to Kshs. 80,000. 00. ii.In the case of PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi & another [2018] eKLR the appellant

29. It is my considered view that the award of Kshs. 60,000. 00 for pain and suffering was commensurate to the injuries suffered by the appellant as they were of less severity to the foregoing.

Disposition 30. In conclusion, I find that the appeal is not merited and the same is dismissed. I direct that each party shall bears its costs of the appeal.

31. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 14TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:Mr Mboga for the Appellant.Mr. Thairu for the Respondents.