[2022] KEHC 9822 (KLR)

Muthami v Nyaga (Civil Appeal E022 of 2021) [2022] KEHC 9822 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9822 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E022 of 2021

LM Njuguna, J

July 20, 2022

Between

Martin Muthami

Appellant

and

Emilio Njue Nyaga

Respondent

Judgment

1. The respondent herein was the plaintiff in CMCC No. 143 of 2010 in which he sued the appellant vide a plaint dated April 7, 2010, in which, he claimed damages, costs of the suit and interest.

2. His cause of action is based on a Road Traffic Accident that occurred on May 24, 2008along Embu – Ishiara Road and wherein the plaintiff/respondent was travelling as a fare paying passenger in motor vehicle registration number KAU 669 G when the defendant’s/appellant’s agent and/or servant so negligently drove, managed and/or controlled the said vehicle that he caused an accident as a consequence of which the respondent sustained injuries.

3. The particulars of negligence, those of injuries and special damages are set out in paragraphs 3 and 4 of the plaint. He prayed for orders as set out in the plaint.

4. The appellant filed a defence dated 31. 10. 2014 in which he denied the respondent’s claim. In the alternative, he pleaded that the accident was inevitable notwithstanding the exercise of all reasonable care and skill and further denied that the plaintiff sustained any injuries or suffered loss and damage. In addition, he averred that the doctrine of Res-Ipsa Loquitor was not applicable. The particulars of negligence and those of injuries were also denied and so were those of special damages.

5. On 29. 09. 2015 the parties entered a consent on liability in the ratio of 50:50 which was adopted by the court and thus the court only made a finding on quantum. In his judgment delivered on March 23, 2021, the learned magistrate entered judgment on quantum against the appellant in the sum of Kshs. 1,567,666. 50 and the respondent was further awarded the costs of the suit and the interest.

6. The appellant being dissatisfied with the award on damages has appealed to this court vide a memorandum of appeal dated July 28, 2021in which, he has set out three (3) grounds of appeal with the contention being the award on quantum.

7. The court directed the parties to file and exchange submissions but neither of the parties complied.

8. This being a first appeal, the court is mindful that it is its duty to re-evaluate the evidence adduced before the lower court and, on the basis thereof, come to its own conclusions, bearing in mind, however, that it did not have the advantage of seeing or hearing the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others[1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."

9. This being an appeal on quantum, the injuries that the Respondent sustained are set out in the medical report dated May 11, 2009by Doctor Godfrey Njuki Njiru as fracture dislocation on the right hip joint.

10. At the time of examination, he still had pain with a deformed tender hip and according to the doctor, he suffered grievous harm as a result of the accident.

11. A second medical report dated September 23, 2020was also produced which confirmed the injuries sustained by the respondent as set out in the medical report by Dr. Godfrey Njuki Njiru.

12. According to the doctor who prepared the 2nd medical report, which was later in time, he formed the opinion that the respondent suffered severe harm and sustained a fracture and dislocation of right hip joint; had a surgery for hip replacement using a prosthesis; had a shortening of right lower limb causing him to walk with a limp. He thus assessed his level of permanent incapacity at 20%.

13. As already indicated, the appeal herein is on quantum of damages and the only issue for determination is whether the learned magistrate used the correct principles in assessing the quantum of damages awarded to the respondent.

14. It is trite that awarding general damages is at the discretion of the court. In the case of Savana Saw Mills v George Mwale Mudomo [2005] eKLR, the court stated as follows: -I must state from the outset that the award of general damages is a discretion of a trial court and an appellate court will be slow to interfere with such discretion unless the discretion is exercised on wrong principles of law.

15. Similarly, in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete – Kisumu Civil Appeal No. 284 of 2001, the Court of Appeal reiterated its earlier holding in the case of Kemfro v Lubia [1982 – 88] that;It is trite 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 at 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 the wrong principles (as by taking into account some irrelevant factor or leaving out some relevant one) or misapprehended the evidence and so arrived at a figure so inordinacy high or low as to represent an entirely erroneous estimate”.

16. On the quantum of damages, the respondent’s main complaint is on the award of Kshs. 600,000/= for loss of earning capacity and Kshs. 900,000/= for loss of reduced earning capacity which he avers, were neither pleaded nor proved.

17. I shall now consider whether the trial magistrate erred by awarding loss of earning capacity and reduced earning capacity to the respondent.

18. It is important to note that loss of earning and future earnings are two separate and distinct concepts. This distinction between loss of earning capacity and loss of future earnings was brought out in the case of SJ v Francesco Di Nello & Another[2015] eKLR where the Court of Appeal stated as follows;“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley V John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 at pg. 14 wherein Lord Denning M.R. said as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

19. Loss of earning capacity is therefore compensable. The same must however be specifically pleaded and strictly proved as was held by court in Joel Motanya vs Swan Carriers Limited (2015) eKLR.

20. The Court of Appeal in William J Butler v Maura Kathleen Butler [1984] eKLR noted that;“A plaintiff’s loss of earning capacity occurs where, as a result of his 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 English Court of Appeal made an award under this head in Ashcroft v Curtin [1971] 1 WLR 1731, and by now, it is not a new principle in that jurisdiction.”

21. In the instant case, having perused the record, I find that there was no evidence adduced to prove that indeed he was earning Kshs. 50,000/= as a labourer. The appellant has challenged the award by the trial court under this head and the respondent has not presented evidence before this court to prove that in deed, he was earning Kshs.50,000/= per month prior to the accident.

22. According to the plaintiff’s report by Dr. Ruga, he concluded that the appellant suffered 20 % permanent incapacitation. Furthermore, as held in Douglas Kalafa Ombeva v David Ngama[2013] eKLR;“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.”

23. In the instant appeal and as indicated above, the appellant did not prove that as a result of the injuries sustained, he was exposed to either losing his job in the future or that in case he lost his job, his chances of getting an alternative job in the labour market were slim. Indeed, there was no evidence presented that the chances of gaining employment in the future were diminished – nor was the same pleaded - as a result of the injuries sustained and I fault the trial court’s findings on this limb.[ See Cecilia W. Mwangi & another v Ruth W. Mwangi [1997] eKLR].

24. On whether the trial court erred in awarding damages for reduced earning capacity, in the case of Beatrice Anyango Okoth –v Rift Valley Railways (Kenya) Limited & Another[2018] eKLR, Justice P. J. Otieno on diminished earning capacity held;“…Damages under this heading are awarded where it is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered. It must be differentiated with loss of earning capacity which occurs where there chances of earning are literally erased…”

25. It follows that just like the claim on loss of earning capacity, a claim of reduced earning capacity has to be pleaded and proved by way of evidence. There is no doubt that the injuries suffered by the plaintiff/respondent had an impact on his earning capacity and especially considering the nature of his work.

26. However, upon perusal of the plaint and his witness statement, there is no evidence on what he was earning. In addition, and most importantly, the same was not pleaded in the plaint and therefore it was erroneous for the learned magistrate to have made an award under this head as well.

27. In the end, I find that the appeal has merits and it is allowed. The award made under the heads of loss of earning capacity and reduced earning capacity are hereby set aside.

28. Each party to bear its own costs of the appeal.

29. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………………………for the Appellant………………………………………………for the Respondent