[2022] KEHC 15038 (KLR)

Musyoka v Kaguora & another (Civil Appeal E014 of 2020) [2022] KEHC 15038 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15038 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E014 of 2020

RK Limo, J

November 3, 2022

Between

Komu Musyoka

Appellant

and

John Waringu Kaguora

1st Respondent

Bernard Njoroge

2nd Respondent

(Being an appeal against the decree and judgement delivered on 26th day of November, 2020 by Hon. M. Kimani, Resident Magistrate in Kitui, CMCC suit No. 271 of 2017))

Judgment

1. This appeal arose from the Judgement of Hon. M. Kimani RM in Kitui CM’s Court Civil Case No. 271 of 2017. In that case, the appellant sued the Respondent for negligence attributed to them owing to a road traffic accident that occurred on 2nd September, 2016 along Kyusyani –Kanyangi Road involving Motor Vehicle Registration No. KAX 571 ZD 1544 and the appellant who was a pedestrian.The appellant pleaded that he was walking along the road when he was knocked down by the said motor vehicle and as a result he claimed that he suffered the following injuries to wit: -i.Blunt trauma occasioning fracture of right tibia.ii.Fracture of right fibula bone.

2. The Appellant sought judgment against the Respondent herein as follows;i.General damagesii.Special damages at Kshs 5,500/-iii.Future medical expenses at Kshs 150,000/-iv.Costs of the suitv.Interest.

3. An interlocutory judgment was entered on 2nd April 2019, the matter proceeded to formal proof and judgment was entered in favour of the Appellant on 26th November 2020 on the following terms;a.Kshs 300,000/- as general damagesb.Kshs 5,500/- being special damagesc.Kshs 150,000/ -for future expensesd.Costs and interest

4. The appellant was aggrieved by the quantum awarded by the trial and filed this appeal raising the following grounds namely: -i.The Learned Magistrate erred in law and in fact in assessing the general damagesii.The Learned Magistrate erred in law and fact by failing to consider the established principles for assessment of general damages despite the evidence adducediii.The Learned Magistrate erred in law and fact by failing to consider the extent of the injuries sustained by the appellant in assessing the general damagesiv.The Learned Magistrate failed to consider the solid evidence tendered by the Plaintiff’s witnessv.The Learned Magistrate failed to consider submission by the Plaintiff’s counsel and arrived at a wrong conclusion on quantum.

5. The Appellant faults the trial court’s award of Kshs 350,000/- as general damages and further faults the court for relying on the case of Vincent Mbogholi vs Harrison Tunje Chilyalya (2017) eKLR. Counsel submits that the Appellant herein sustained more severe injuries than the ones sustained by the appellant in the aforementioned case.

6. The Appellant further submits that the trial court disregarded the authorities he had presented before the court for consideration. The same are as follows;a.Zipporah Nagila vs Eldoret Express Limted &2 Others (2016) eKLR The plaintiff was awarded general damages of Kshs 2,400,000/- for the following injuries disability on the right leg and right leg not mobile, left leg nor functional, toes cannot touch the ground. She suffered 70% disability on her right foot and it was opined that she required Kshs 1,000,000/- for corrective surgery and specialized shoes for her right leg.b.Dorcas Wangithi Mwaura vs Samuel Kiburu Mwaura & Anor (2015) eKLR where the Plaintiff was awarded general damages at Kshs 2,000,000/- for the following injuries multiple soft tissue injuries, blunt injury to the head, failure fracture to the radius/ulna (left), compound fracture to the right tibia/fibula and compound fracture to the left tibia/fibula. The plaintiff was also admitted in hospital for 1 ½ months

7. The appellant contends that an award of Kshs. 2,500,000 is commensurate with the injuries suffered.

8. The Respondent has opposed this appeal vide written submissions by Counsel dated 13th June 2022.

9. The Respondent submits that the trial court assessment of general damages was proper as the Appellant was said to have healed relatively well. They have placed reliance on the case of Simon Mutisya Kavii vs Simon Kigutu Mwangi (2013) eKLR where the High Court maintained an award of Kshs 200,000/- for communited fracture of left tibia, fibula with severe friction burn.

10. They submit that an award of Kshs 400,000/- in general damages would proper and sufficient.

Opinion 11. This being a first appeal, the duty of the first appellant court was well stated in Selle vs. Associated Motor Boat Co. [1968] EA 123 where the court of Appeal stated: -“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which 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 demeanour of a witness is inconsistent with the evidence in the case generally.”

12. This appeal is on quantum hence the only issue for determination is whether the trial magistrate made a correct assessment of the damages in relation to the injuries sustained by the Respondent.

13. An award of damages is a discretionary matter for a trial court and this court as an appellate court can rarely interfere unless it is demonstrated that the award is manifestly too low or too high to reflect an erroneous estimate or if it can be shown that the trial court failed to consider a relevant issue or took into consideration an irrelevant one.

14. That principle is re-stated in the Court of Appeal decision in the case of Gitobu Imanyara & 2 Others versus A.G. [2016] eKLR where the court held;“…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…..’’

15. The trial court in its judgement awarded the Appeal Kshs. 350,000 as general damages for the injuries suffered which is not disputed in this appeal. The injuries are: -i.Segmental of right tibia.ii.Fracture of right fibula.The injury is on the same foot and the trial court found that it had headed well. The doctor estimated the cost of removing metal implants as Kshs. 150,000 which the trial court awarded as future medical expenses.

16. The trial court considered the decision in Vincent Mbogholi versus Harrison Tunje Chilyalya [2017] eKLR and found that an award of Kshs. 350,000 as general damages would suffice.

17. The general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards. The Court of Appeal stated in Mbaka Nguru and Another v James George Rakwar [1998] eKLR that:“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.’’

18. Ngugi J in Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR stated as follows;“On my part, taking into consideration the nature of the injuries in this case and the global impact on life quality it has had on the Plaintiff while taking into consideration the guiding principle that in assessing damages for pain, suffering and loss of amenities is to both take into consideration the prevailing conditions in Kenya while ensuring that uniformity must be sought in the award of damages……’’

19. This court has considered the following comparable decisions;a.Amritlal S. Shah Wholesalers Ltd & Another V Joshua Ekeno [2012] eKLR where the plaintiff sustained compound fractures of the tibia and fibula, the appellate court upheld an award of Kshs. 350,000/-b.Tabro Transporters Ltd v Absalom Dova Lumbasi [2015] eKLR where the plaintiff sustained multiple soft tissue injuries and fracture of the left tibia and fibula, the appellate court set aside an award of Kshs. 500,000 and substituted it with an award of Kshs. 400,000/- as general damages.c.Zachariah Mwangi Njeru v Joseph Wachira Kanoga [2014] eKLR the plaintiff sustained comminuted fracture of the tibia and fibula the court set aside an award of Kshs. 800,000/= and substituted it with an award of Kshs. 400,000/d.EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR the appellete court upheld an award of Kshs. 800,000 where the plaintiff had suffered femur fractures and fractures of the tibia fibula. There were additional injuries in this case of femur fractures.e.Harun Muyoma Boge v Daniel Otieno Agulo [2015] eKLR where the plaintiff sustained multiple injuries and fracture of right tibia and fibula the appellate court set aside an award of Kshs. 150,000/= and substituted it with an award of Kshs. 300,000/=.

20. Flowing from the above is clear that the award by the trial court was not and cannot be termed as inordinately too low to attract intervention by this court. This court would not have interfered with the award but in view of the generous offer of the Respondent who has proposed to increase the award to Kshs. 400,000, this court will set aside the award of Kshs. 350,000 and in its place the Appeallant is awarded Kshs. 400,000 as general damages. The other awards will remain undisturbed. I will also not make any order as to costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 3RD DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE