[2022] KEHC 13567 (KLR)

Muraguri v Njagi & 2 others (Civil Appeal 158 of 2019) [2022] KEHC 13567 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13567 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 158 of 2019

HK Chemitei, J

October 6, 2022

Between

James Kinyua Muraguri

Appellant

and

Francis Wahome Njagi

1st Respondent

Shabir Umar

2nd Respondent

Tays Limited

3rd Respondent

(Being an Appeal from the Judgement of Hon. J.B Kalo (CM) Dated 27th August 2019 In Nakuru CMCC No. 153 of 2015)

Judgment

1. The appellant was involved in a road traffic accident on November 22, 2013 along Nakuru–Nyahururu road as he was a lawful rider of motorcycle registration number KMxx 5xxx Kingbird when the driver of motor vehicle number KBxx 4xxx Nissan matatu owned by the respondents, while in his lawful course of duty so carelessly, negligently and/or recklessly drove, managed and/or controlled the said motor vehicle thereby causing it to violently hit or collide with and knocked down the appellant.

2. As a result, he sustained bodily injuries namely; severe injuries to the neck, muscle spasm due to cervical spine hypo lordosis, compress of the right C6 nerve root, neural foramina stenosis C3/C4, C5/C6 and C6/C7, severe dislocation of the right shoulder joint, injury to the ulnar-nerve, bruises on the dorsal surface of the left hand and cut-wounds on the left hand.

3. When the matter came up for hearing the trial court apportioned liability at 50% to 50% between the appellant and the respondents. The trial court further in its judgement awarded in favour of the appellant general damages of Kshs 800,000/=, special damages of Kshs 138, 122/= and costs of the suit plus interest at court rates from the date of the said judgment.

4. Aggrieved by the said judgement, the appellants filed this appeal against the lower courts award on quantum based on the following grounds;a.That the learned trial magistrate erred in law and fact in rendering/writing a judgment that is not based on proper, careful and/or analytical evaluation and consideration of the pleadings, evidence on record, submissions and the applicable law and principles for award of damages.b.That the learned trial magistrate erred in law and in fact by awarding general damages that were manifestly, obviously and so inordinately low and not in tandem/commensurate with the injuries that the appellant suffered and materials on record.c.That the learned trial magistrate erred in law and in fact by not awarding the appellant herein damages for loss of future earning capacity whereas the same were deserving in the circumstances of this case.

5. When this matter came up for hearing the court directed the same to be heard by way of written submissions which the parties have complied.

Appellant’s submissions 6. The appellant in his submissions identified two issues for determination namely; whether the learned trial magistrate award in general damages was erroneous or inordinately low and whether the trial magistrate erred by not awarding damages for loss of future earnings.

7. On the first issue the appellant submitted that he had particularized in the plaint the injuries he had suffered as a result of the accident and the same were also espoused in the medical report by Dr Kiamba. That the respondents did not tender any evidence in form of a second medical report or otherwise to controvert the said injuries. He placed reliance in the cases of Benson Charles Ochieng & Another v Susan Odhiambo Otieno [2013] eKLR, Dick Omondi Ndiewo t/a Ditech Engineering service v Cell Care Electronics [2015] eKLR and Acceler Global Logistics v Gladys Nasambu Waswa & Another [2020] eKLR.

8. The appellant submitted further that the trial magistrate in his judgment at page 405 of the record of appeal appreciated and agreed with him the nature and seriousness of the injuries he suffered. That therefore the award of Kshs 800,000/= made by the trial magistrate was erroneous as no rationale was given as to how the same was arrived at. The appellant while relying on the case of Tononoka Rolling Mills Limited v Jackson Wambua Nzioka [2019] eKLR, submitted that the trial magistrate erred in principles which entitled this court to interfere with his award.

9. The appellant went on to submit that the said award of Kshs 800,000/= was manifestly or inordinately low and was not commensurate with the injuries that he had suffered. It was his submission that an award of Kshs 6,000,000/= would suffice considering the severity and the extent of the said injuries.

10. On the second issue, the appellant submitted that he had pleaded and sought for general damages for loss of future earnings in his plaint but the same was not awarded by the trial magistrate. He submitted further that trial magistrate confused the said claim with the claim of loss of future earnings, therefore applying the wrong principles. The appellant placed reliance in the case of Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR where the court held that a claim for loss of future earning capacity was different from that of a claim for loss of future earnings. He urged the court that he be awarded Kshs 2,000,000/= for the same and that his appeal be allowed with costs plus interests.

Respondents submissions 11. The respondents in their submissions while relying in the cases of Nairobi High Court Civil Appeal No 152 of 2003 Stat pack Industries vs James Mbithi Munyao (unreported) and Calystus Makokhav Hussein Osore Munyifwa[2005]eKLR, submitted that the appellant was bound to establish the acts or omissions by them which resulted into the accident but he did not. They added that the appellant had failed to prove liability or negligence on their part unequivocally and on a balance of probabilities hence his claim should fail.

12. On quantum the respondents submitted that Dr Kiamba during cross-examination confirmed that he had not produced any license to show that he was a qualified medical doctor. That he also confirmed the injuries appearing in the appellant's discharge summary from Provincial General Hospital, were right shoulder dislocation and wounds on left hand. Additionally, he confirmed that the severe injuries to the neck were missing in the discharge summary and that the appellant was in a fair general state of health with vital signs within normal limits and the dislocation had reduced.

13. The respondents submitted further that PW3, Purity Maina the records officer Bahati Sub County Hospital confirmed the appellant had only suffered a dislocation of the right shoulder at the time of treatment. Additionally, that PW4 Benjamin Tanui the records officer Provincial General Hospital confirmed that the appellant suffered a right shoulder dislocation and cut wound on left dorsal of right hand following the road accident. Also, that it was his evidence that an open reduction of the dislocation was done.

14. The respondent went on to submit that during cross-examination PW4 confirmed that the appellant was only treated for shoulder dislocation and there was no recommendation from the doctor to the effect that the appellant was unable to use the injured rib ever or at all.

15. The respondents placed reliance in the cases of Catherine Njoki Mungai v Peter Ngotho Njenga Nairobi HCC No 1990 of 1991; Anar Kassam v Bharatkumar D Patel [2003] eKLR and submitted that an award of Kshs 800,000/= on account of dislocation of shoulder would have been sufficient compensation for the appellant.

16. The respondents submitted that the appellant never discharged the burden of proving how or in what way his earning capacity was affected by his injuries on balance of probabilities as required under section 107 of the Evidence Act. They urged the court to dismiss the claim for general damages for loss of future earning capacity. They court’s attention was drawn to the case of SJ vs Francesco Di Nello & Another [2015] eKLR. The respondents also urged the court to dismiss the appellant’s appeal with costs as it had no merit.

Analysis and Determination 17. This being the first appeal, it is this court’s duty under section 78 of the Civil Procedure Act to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. This principle of law was well settled in the case of Selle v Associated Motor Boat Co Ltd (1968) EA 123 cited by the appellants where Sir Clement De Lestang (VP) stated that:'An 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 allowance in this respect. In particular, this 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’’.

18. I have carefully perused the proceedings, the judgement, and the record of appeal as a whole including the parties' submissions. Two issues fall for determination namely; Whether the award on quantum was manifestly low in the circumstances and whether the trial magistrate erred in law by not awarding damages for loss of future earning capacity.

19. The principles to be considered by an appellate court in deciding whether to disturb the trial court’s assessment of damages were set out by the Court of Appeal for East Africa in the locus classicus case of Bashir Butt v Khan Civil Appeal No 40 of 1977 [1978] eKLR thus;'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.'

20. The appellant testified that he was examined by Dr Kiamba who testified and produced the medical report as exhibit P Exh 1a in court. In his report Dr Kiamba confirmed that the appellant sustained severe injuries to the neck leading to normal spine curvature, compression of nerve at the level of C6, narrowing of the neural foramina stenosis, severe dislocation of the right shoulder joint that had to be rectified by open radiation and internal fixation with screws, injury to the ulnar nerve, minor bruises of the left hand, muscle power in the right hand was zero with complete loss of sensation, developed arthritis and muscle wasting. he testified that the degree of injury was grievous harm with a permanent disability of 70%.

21. It is trite law that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The appellant herein sustained injuries which were attested to by the doctor Kiamba.

22. In Charles Oriwo Odeyo vs Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -a.An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.b.The award should be commensurable with the injuries sustained.c.Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.d.Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.e.The awards should not be inordinately low or high.

23. Further, the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002 [2004] eKLR held as follows;'It has been stated now and again that in 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.'

24. Also, 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.'

25. In the instant case, the trial magistrate awarded the appellant an amount of Kshs 800,000/= as general damages and Kshs 138,122/= as special damages and also cost of the suit. The appellant regards the award as inordinately low in comparison to the injuries he sustained.

26. It is the appellant’s submission that he deserved an award of Kshs 6,000,000/= taking into account the severe injuries he suffered. He however failed to cite any authority to support or justify his claim for the said award.

27. The respondents on the other hand in their submissions proposed an award of Kshs 800,000/= as sufficient compensation on account of dislocated shoulder. They placed reliance in the case of Catherine Njoki Mungai v Peter Ngotho Njenga (supra) and Anar Kassam v Bharatkumar D Petal (supra). I note that the respondents based their argument on the testimony of PW3 and PW4 regarding the injuries suffered by the appellant and not the medical report done by an expert who was PW1 doctor Kiamba. The respondents however did not cross appeal.

28. In view of the above, having considered the award of damages by the trial court, recent authorities, the injuries sustained by the appellant, keeping in mind that no injuries can be completely similar, time and inflation and the fact that the appellant suffered a degree of permanent disability at 70% I find that the case with similar injuries as those sustained by the appellant in the instant case is that of George Kiptoo Williams vs William Sang and Another [2004] eKLR, as was cited with approval by Odunga J( as he then was) in Joseph Kimanthi Nzau v Johnson Macharia [2019] eKLR, in which the plaintiff suffered cut wound on the occipital region with lacerations on the left temporal region of the head, fracture of the skull on the occipital region, subluxation of the cervical vertebrae C1, C3 and C4, fracture of 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ribs of the left side of the chest, fracture of the left scapula and cut wound on the left hand and left arm. General damages for pain, suffering and loss of amenities was assessed at Kshs 560,000/= on December 17, 2004.

29. Justice Odunga however noted that in the said case judgement had been delivered on November 11, 2015 which was 11 years later and while considering the inflationary tendencies he agreed that the said award was so inordinately low as to represent an entirely erroneous estimate and proceeded to award on general damages Kshs. 800,000/= in the case at hand.

30. Further, in the case of Maintenance Ltd & another v W A (A minor suing through next friend and father S K H [2015] EKLR, OkwaNy J found no reason to interfere with the trial court award of Kshs 800,000/= on injuries that were classified as to have caused the respondent therein 'grievous harm.' In addition, the medical report, P3 form and treatment notes produced as exhibits reveal that the nature of the injuries were such that they could have long term effects on the health of the minor respondent with the possibility of developing epilepsy in future. Also the doctor who testified before the lower court found the degree of disability at 70%.

31. In view of the foregoing, it is my considered finding that the award of general damages of Kshs 800,000/= as awarded by the trial magistrate was not inordinately low in the circumstances.

32. Looking at the second issue, which is whether the trial magistrate erred in law by not awarding damages for loss of future earning capacity, the appellant during his cross examination in the trial court confirmed that he was a teacher and he earned an average salary of Kshs 48,000/= per month. He also confirmed that he was still working and also earned his salary even after the accident.

33. This court is guided by the principles to be considered under this heading as articulated in the case of Buttler vs Buttler [1984] which states as follows;'A person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well paid as before the accident are lessened by his injury.The factors to be taken into account in considering damages under the head of loss earning capacity will vary with the circumstances of the case, and they include such factors as age. The qualifications of the claimant, his remaining length of working life, his disabilities and previous service'

34. Taking cue from the above cited authority, there was no material placed before the trial court to suggest that the appellant would suffer any loss in terms of his future earning capacity. There was evidence that as a teacher he continued earning from his career and the accident did not impede him in any way or at all. If there was any impediment, then it was incumbent upon the appellant under the provisions of section 107 of the Evidence Act to table the same before the trial court.

35. Consequently, and in view of the above findings on the two issues, this court does not find the appeal meritorious and the same is hereby dismissed with costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 6TH DAY OF OCTOBER, 2022. HK CHEMITEI.JUDGE