[2023] KEHC 25552 (KLR)

Murage v Mutisya & another (Civil Appeal E065 of 2023) [2023] KEHC 25552 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25552 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E065 of 2023

SM Githinji, J

November 16, 2023

Between

Edward Murage

Appellant

and

Michael Musyoka Mutisya

1st Respondent

Lucas Makopa

2nd Respondent

(Being an Appeal from the Judgment and Decree of Honourable Court delivered on 8th May, 2023 by Hon D.S.Sitati – SRM in Kilifi PM’s Court Case No.E162 of 2021)

Judgment

CORAM: Justice S.M. GthinjiMr. Odhiambo for the AppellantMr. Kazungu for the 1st Respondent 1. By this appeal, the appellant herein challenges part of the judgment and decree of Hon. D.S Sitati –SRM delivered in Kilifi PMCC No. E162 of 2021 delivered on 8th May 2023 wherein judgment was entered in the following terms;a.Liability 100 %b.General damages for pain and suffering Kshs. 850,000c.Loss of earning capacity Kshs. 200,000d.Future medical costs Kshs. 299,500e.Special damages Kshs. 139,851f.Costs of the suit

2. Aggrieved by the judgment, the appellant brought the instant appeal on the following grounds;1. The learned trial magistrate erred in law and in fact in holding that the plaintiff had proved its case to the required standard and that the defendant was solely to blame for the accident thereby arriving at an erroneous and legally unsustainable decision.2. The learned trial magistrate erred in law and in fact in holding that the defendant had failed to prove his case against the third party by holding the defendant was solely to blame for the accident thereby arriving at erroneous and legally unsustainable decision.3. That the learned trial magistrate erred in law and in fact in holding that the plaintiff had proved its case of negligence against the defendant and the defendant failed to prove his case as against the third party by failing to appreciate the proximate cause of the accident and the doctrine of causation and blameworthiness.4. That the learned trial magistrate erred in law and in fact by holding the defendant was 100% liable contrary to the weight of evidence on record, considered extraneous and irrelevant factors, misunderstood and misapplied the correct law on causation and blameworthiness arriving at a decision unsustainable in law hence occasioning a miscarriage of justice.5. That the learned trial magistrate erred in law and in fact by awarding damages under the head of loss of earnings and future medical expenses contrary to the weight of the evidence on record and binding case law thus occasioning a miscarriage of justice.6. The award for damages under the loss of earning capacity and future medical expenses were arbitrarily made without due regard to binding judicial precedent, the parties’ submissions and in considering irrelevant factors hence inordinately high.7. The learned trial magistrate misapprehended the evidence and misapplied, misunderstood and or overlooked the correct legal principles, binding judicial precedent especially on the probative value of the testimony of a police officer thereby arriving at an erroneous decision.

Evidence at Trial 3. Pw1 No. 94600 PC David Awour the investigating officer produced the Police Abstract as PEX6 and the P3 form as PEX5. He told the court that the defendant was driving from Mombasa to Kilifi and improperly overtook other motor vehicles and collided with the plaintiff’s motorcycle and went on and hit another motor vehicle KBB 941X Nissan Matatu heading from Mombasa to Kilifi direction.

4. Pw2 Dr. Kiema produced the medical report dated 26/5/21 for the plaintiff as PEX 1 and receipt for Kshs. 2,000 as PEX2. He added that the plaintiff suffered 25 % permanent disability.

5. Pw3 Michael Musyoka Mutisya the plaintiff adopted his witness statement dated 3/06/21 as his evidence. He produced as PEX 3, 4, 7, 8 and 9 documents as per the list of documents, even dated. He added that he fractured his right thigh and injured his left foot, three toes were fractured and lost flesh. He also added that the right thigh was inserted a metal and the left leg was grafted. He blamed the owner of the Suzuki for the accident.

6. Dw1 Edward Murage the defendant adopted his statement dated 05/07/21 as his evidence. He told the court that he did not cause the accident as it was the plaintiff who was crossing without a reflector jacket when he knocked him.

Analysis and Determination 7. The appeal was canvassed by way of written submissions. I have considered this appeal and the grounds it’s founded upon, submissions by parties and the authorities relied on. I have also perused the trial court’s record and the impugned judgment. This being a first appeal, it is by way of a retrial, and parties are entitled to this court’s reconsideration, reevaluation and reanalysis of the evidence on record in order to reach at its own independent conclusion. The court should however bear in mind that the trial court had the advantage of seeing the witnesses testify and give due allowance for that.

8. From the grounds of appeal, I pick two issues which this court need determine;1. Whether the trial court erred in determining that the defendant was wholly to blame for the accident.2. Whether the award for loss of earning capacity and future medical expenses was justified.

Liability 9. As held by the Court of Appeal in Micheal Hubert Kloss & Another vs. David Seroney & 5 Others [2009] eKLR:“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley vs. Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally…’”

10. From the evidence by Pw1 who was the investigating officer, the appellant was to blame for the accident having overtaken when it was not safe to do so. Pw3 the plaintiff told the court that indeed the appellant was overtaking without due regard. In the circumstance, the appellant owed a duty of care to the 1st respondent in that he should have kept a proper look out and only overtake when it was clear and safe to do so. This seems not to be the case as it is the appellant who knocked the 1st respondent. Accordingly, I cannot interfere with the trial court’s attribution of negligence solely to the appellant.

On loss of Earning and Future Medical Expenses 11. The parameters under which an appellate court will interfere with an award in general damages was stated by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR as follows:“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...”

12. Now I shall address the question of whether the trial court was right in awarding loss of earning capacity to the 1st respondent. The Court of Appeal in Mumias Sugar Company Limited vs Francis Wanalo [2007] eKLR stated that;“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market; while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering, and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or appropriate financial loss that the plaintiff has suffered as a result of the disability.151. In Butler V Butler [1984] KLR 225 at 232 Kneller JA stated:“Loss of earning capacity is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained by Lord Denning M.R. in Fairely vs John Thompson (Design & Contracting Division) Ltd [1973]2Lloyd’s Rep 40,42(CA)…..Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of the general damages.”

13. Damages under the head of loss of earning capacity can be classified as general damages but these have also to be proved on a balance of probability. (See Cecilia W. Mwangi & another vs Ruth W. Mwangi [1997] eKLR).

14. Disability as a result of the accident on the part of the 1st respondent was assessed at 25%. No doubt the 1st respondent’s capacity to earn was greatly diminished. The trial court it its judgment stated that it was confirmed that the plaintiff was a boda boda rider and still had a metal plate in the right thigh. Further, that he relied on a crutch to walk around. The court then proceeded to award Kshs. 200,000 being a global award which decision was informed by the fact that there was no evidence of actual earnings to warrant adoption of a mathematical formula. There is no doubt that the 1st respondent was a boda boda rider. With a plate on his right thigh, it’s certain the same would impede his work and affect how he made a living. It follows that there is diminution in his earning capacity. Based on the principles enunciated in the authorities I have set forth above, am persuaded that the assessment of damages by the trial court on this head was correct.

15. As regards future medical expenses, the Court of Appeal in the case of Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated:-“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

16. The trial court awarded Kshs. 299,500 for future medical expenses being the cost of pain killers for a period of one year, physiotherapy sessions, purchase of crutches and provision of removal of interlocking intramedullary nail. There was no evidence contesting the same in the trial court. In my view, the trial court made a careful consideration in awarding the same and therefore I find no sound reason to interfere with the same.

17. In the end, the appeal fails for lack of merit and the same is hereby dismissed with costs to the Respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 16THDAY OF NOVEMBER, 2023. ...................................S.M.GITHINJIJUDGEIn the absence of; -1. Mr Odhiambo for the Appellant2. Mr Kazungu for the 4th RespondentParties be notified....................................S.M.GITHINJIJUDGE16. 11. 2023