[2022] KEHC 14066 (KLR)

Mulwa v China WU YI Company Limited (Civil Appeal 157 of 2018) [2022] KEHC 14066 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14066 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 157 of 2018

MW Muigai, J

October 13, 2022

Between

Timothy Musomi Mulwa

Appellant

and

China WU YI Company Limited

Respondent

(Being an appeal from the judgment of the Hon. A.G Kibiru Chief Magistrate at Machakos in CMCC No.597 of 2017, delivered on 14th day of November, 2018)

Judgment

Plaint Filed 21/9/2017 1. The Appellant herein suing as the Plaintiff, by way of a Plaint dated 15th September, 2017 claimed special damages in the sum of Kshs 20,900/-,general damages for pain, suffering and loss of amenities, costs of the suit and interest against the Respondent herein sued as the Defendant.

2. The cause of action in the Plaint was that on or about 24th February, 2017 along Machakos-Kangundo Road within Kenol area, the Appellant was lawfully riding his motor cycle registration number KMDY 274L when the Respondent’s driver carelessly and negligently drove, controlled and/or managed motor vehicle registration number KBT 763X that it violently hit and knocked down the Appellant who sustained serious bodily injuries on his left leg, left fibula, right thigh and right femur.

Statement of Defence Filed On 29/01/18 3. The Respondent denied each and every allegation contained in the Plaint save for the description of the parties and jurisdiction of the Trial Court as pleaded in the Plaint.

4. The Respondent pleaded that if the accident occurred as pleaded in the Plaint, the same was caused solely by the negligence of the rider of motor cycle registration number KMDY 274L. The Respondent denied the injuries and the loss and damages suffered by the Appellant.

Liability 5. On 7/08/18 before the Trial Court, liability was compromised as follows;“By consent Judgment on liability be entered in favour of Plaintiff against the defendant at 75:25”

Trial Court’s Judgment 6. In his Judgment, the Trial Magistrate assessed the Appellant’s damages in the sum of Kshs 850,000/- as general damages and Kshs 20, 900/- as special damages less 25% contribution and the costs of the suit and interest.

Memorandum Of Appeal Filed On 5/12/2018 7. Aggrieved by the Trial Court Judgment, the Appellant has appealed to this Court citing the following two grounds:-1. That the Trial Court erred in both law and in fact by awarding the Appellant an inordinately low amount as general damages for pain, suffering and loss of amenities2. That the Trial Court erred both in law and in fact by failing to take into account the fact that the Appellant had suffered serious injuries which have permanently changed his gait and diminished his physical strength.

8. The Appellant has urged this Court to set aside the award of Kshs 850, 000/- being general damages and substitute it with a higher award which is commensurate with the injuries suffered by the Appellant. The Appellant has urged this Court to award him costs of the appeal.

Appellant’s Submissions 9. It has been submitted that the Trial Court’s award was not commensurate with the injuries sustained by the Appellant. Reference was made to the medical report dated 31/07/2017 of Dr. Kimuyu J.M who opined that the Appellant had suffered serious bones and soft tissue injuries from which he had not recovered. It has been submitted that at the time the Appellant was being examined by the doctor, he had implants in situ and the doctor observed that he had developed a limping gait, post-surgical scar on the right lateral thigh of 30 cm, right lower limb deviating outwards, healed scar of the left calf region of around 20 cm and right lower limb was shorter by 5 cm.

10. According to the Appellant, the Trial Magistrate failed to take into account that the injuries sustained by the Appellant had significantly reduced the quality of his life and had a huge impact on the Appellant’s mobility.

11. It has been submitted that the Trial Magistrate misapprehended the medical evidence adduced in support of the Appellant’s claim on quantum and ended up with a figure so inordinately low that represents an erroneous estimate. According to the Appellant, an award of Kshs 850,000/- is not commensurate with the injuries sustained by the Appellant. According to the Appellant, the Trial Magistrate failed to take into account the passage of time and the inflationary trends in the country over the years.

12. The Appellant relied on the case of Catholic Diocese of Kisumu v Sophia Achieng Tete (2004) 2 KLR 55, Tunoi, O’Kubasu & Githinji JJA who 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 different figure if it had tried the case 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 wrong principles or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent and entirely erroneous estimate.

13. The Appellant urged this Court to find that the appeal has merit.

Respondent’s Submissions 14. On behalf of the Respondent, it has been submitted that as per the Plaint and upon re-examination by Dr. Kimuyu J.M, the Appellant sustained blunt injury to the left leg, fracture of the left fibula, blunt injury right thigh and fracture of right femur. According to the Respondent, similar injuries were sustained by the Plaintiffs in the cases of Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR where the court made an award of Kshs 400,000/-. In Kenya Power Company Ltd v Zakayo Saitoti Naingola & another (2008) eKLR where court upheld the Trial Court award of Kshs 250,000/-. In Kisumu Civil Appeal No 56 of 2014-Maselus Eric Atieno v Unitel Services Limited, the court upheld the Trial Court award of Kshs 100,000/-. An award of Kshs 100,000/- was made by the court in Isaac Mwenda Micheni v Mutegi Murango [2004]eKLR and in Kisumu Civil Appeal No 183 of 2010-Johnson Mose Nyaundi (Minor Suing through Next Friend & Father Wilfred Wadimbe Nyaundi v Petroleum & Industrial Services Ltd where court upheld then Trial Court an award of Kshs 180,000/-.

15. According to the Respondent, the appeal lacks merit and should be dismissed with costs.

Determination 16. The Court considered the grounds of appeal, submissions filed and the Case-law relied upon by respective parties.

17. The appeal is on quantum and against the Trial Court award of Kshs 850, 000/- as general damages. According to the Appellant the award is inordinately low taking into consideration the serious injuries sustained by the Appellant.

18. This being the first appellate court, it was held by the East African Court of Appeal in Selle v Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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 allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

19. The Appellant urged this Court to substitute Kshs 850,000/- with a higher figure. Essentially the Appellant is seeking this Court to interfere with the Trial Magistrate award on general damages.

Whether to interfere with the Trial Court’s award of Kshs 850,000/- 20. In the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR where the Court set out the parameters under which an appellate court will interfere with an award in general damages and held that: -“An appellate court will not disturb an award for general 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...’

21. Similarly, the same court in Southern Engineering Co. Ltd v Musungi Mutia [1985] KLR 730, held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

22. LJ Nambuye J. (as she then was) in Boniface Waiti & another v Michael Kariuki Kamau [2007] eKLR held:“Having established liability the court proceeds to assess quantum. In doing so it has to bear in mind the following principles.i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.ii.The award should be commensurate to the injuries suffered.iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit.iv.Where awards in decided cases are to be taken into consideration then the issue of own element of inflation has to be taken into consideration.vAwards should not be inordinately too high or too low..”

23. The Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR that-“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

24. The evidence on record by PW1 Timothy Musomi Mulwa is that on 24/2/2017 he was lawfully riding motor cycle Reg KMDY 247 L along Machakos – Kangundo and was hit by lorry Reg No KBT 763Xand sustained injuries.

25. The injuries pleaded by the Appellant are not in dispute. Of importance is to re-evaluate whether Kshs 850,000/- was commensurate to the injuries sustained by the Appellant and relevant principles while awarding damages were judiciously or not applied by the Trial Magistrate. In the Trial Court, the Appellant had proposed an award of Kshs 3,000,000/- while the Respondent had proposed an award of Kshs 180,000/-as general damages.

26. In his judgment, it will be noted that the Trial Magistrate contrasted two decisions relied upon by the Appellant and Respondent with the injuries sustained by the Appellant herein. In HCCC No 384 of 2000 (Nakuru) Esther Wanjiku Kiarie v Joseph Kiarie Ng’anga a decision which the Appellant had placed reliance upon, the Trial Magistrate noted that the Plaintiff therein had sustained 3 fractures, a dislocation and a crush injury to the right finger and in the case of Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR which was relied upon by the Respondent, the Plaintiff had sustained a fracture of the tibia/fibula. In Esther Wanjiku Kiarie case, the Court awarded the Plaintiff Kshs 1,000,000/- while the court in Zachariah Mwangi Njeru case, the court awarded the Plaintiff Kshs 400,000/-.

27. The Appellant sustained two fractures as the Plaintiff in the case of Zachariah Mwangi Njeru, but the decision had been decided 4 years ago and taking into account the inflation rate and the passage of time, the award of Kshs 400, 000/- would not be commensurate to the injuries sustained by the Appellant herein. On the other hand, the case of Esther Wanjiku Kiarie established more serious injuries than the injuries sustained by the Appellant herein. The Plaintiff had 3 fractures, dislocation and crush injuries whereas the Appellant herein has two fractures and blunt injuries.

28. The Medical Documents presented included the following documents;a.Jirani Diagnostic Centre Medical Centre of 31/7/2017indicated injuries as;Blunt injury to the left legFracture of the left fibulaBlunt injury right thighFracture of right femurb.Physical Examination;Clinically stableWalking with a limping gaitPost-surgical scar on the right lateral thigh of 30 cmRight Lower limb deviating outwardsHealed scar of the left calf region of 20 cmRight Lower limb is shorter by 5 cmTimothy suffered above serious bones and soft tissue injuries after this RTA and he has not recovered and still has inserted implants in situThis will require removal plus reconstructive surgery at and estimated coat of Ksh 350,000/-surgery costs estimated for a private setting.

29. Medical Examination Report P3 Form of 26/5/2017 indicates;Head & Neck – Blunt injury to scalp (swelling)Thorax& Abdomen- Bruises on both shouldersUpper Limbs –Lower Limbs- Fracture Right Femur; Interlocking Nail, Cut wound left leg stitchedApproximate age of injuries-3 monthsProbable type of Weapon causing injury-Blunt/SharpTreatment if any received; surgery, stitchingClinical results of the injury sustained and the assessed degree- grievous harm.

30. Shalom Hospital Machakos-Date of admission- February 2017 & Date of Discharge March 2017- surgery undertaken on the Complainant

31. The road traffic accident between the Plaintiff and Defendant is confirmed by the Police Abstract and the Consent on liability recorded by the parties respective Counsel in the Trial Court.

32. The medical records outlined above confirm that the Plaintiff/Appellant sustained injuries that were/are not only soft tissue injuries but serious bones and soft tissue injuries that resulted in surgery that inserted implants of interlocking nail on the leg.The Appellant will require removal plus reconstructive surgery at and estimated cost of Ksh 350,000/-surgery costs estimated for a private setting.

33. The Appellant’s right lower limb is shorter by 5 cm and walks with a limping gait. The injuries sustained by the Appellant had significantly reduced the quality of his life and had a huge impact on the Appellant’s mobility.

34. The authorities cited by the Respondent in the Trial Court and considered were/are of soft injuries without permanent effect and adverse impact of one’s life. In the instant case, the P3 form classified the injuries as grievous harm. The authorities cited were of 10-15 years ago and inflationary trends were not taken into account.

35. In the instant case, the Appellant underwent surgery and incurred costs and medical prognosis is that there is likelihood of another surgery. Secondly, the Appellant’s gait hinders walking properly and is of a permanent nature due to shortening of the limb.

36. Therefore, since the medical reports were not challenged or controverted by any other evidence on record or another medical report from the Respondent, this Court finds the award of Ksh 850,000/ -inordinately low without factoring the impending surgery estimated at Ksh 350,000/-.

37. Consequently, the Court finds that Kshs 850,000/- as general damages is inordinately low and is increased to Ksh 1,000,000/- general damages to cater for impending surgery and taking into account inflationary trends and cost of medical care expected to improve the Appellants mobility.

Disposition 38. The Appeal is upheld with regard to quantum as follows;

39. In conclusion, judgment is entered for the Appellant against the Respondent in the following terms;a.General damages……………Kshs. 1,000,000/=b.Special damages……………………Kshs. 20,000/=Total .............. Kshs 1,020,000/=c.Less than 25% liability by Appellant ... Kshs 255,000/-Net .................................... Kshs 765,000/-With interest & Costs.Judgment accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022. (VIRTUAL/PHYSICAL CONFERENCE)M.W MUIGAIJUDGE