[2022] KEHC 16513 (KLR)

Muthoka v Attorney General & 2 others (Civil Appeal 267 of 2019) [2022] KEHC 16513 (KLR) (Civ) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16513 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 267 of 2019

CW Meoli, J

December 8, 2022

Between

Phillip Mbae Muthoka

Appellant

and

The Attorney General

1st Respondent

Cyprian Lumumba Ngoli

2nd Respondent

Frilo Car Hire Services

3rd Respondent

(Being an appeal from the judgment of Gichobi (Ms) (SRM) delivered on December 24, 2018 in Nairobi Milimani CMCC No 1675 of 2008)

Judgment

1. This appeal emanates from the judgment delivered on December 24, 2018 in Nairobi Milimani CMCC No 1675 of 2008. The suit was brought by Phillip Mbae Muthoka, the plaintiff in the lower court (hereafter the appellant herein) was commenced by a plaint filed on March 18, 2008, amended on January 18, 2011 and further amended on June 04, 2014. Against the Attorney General, Cyprian Lumumba Ngoli and Frilo Car Hire Services Ltd the 1st, 2nd and 3rd defendant in the lower court (hereafter the 1st, 2nd & 3rd respondents, respectively). The appellant’s claim was for damages on account injuries sustained in a road traffic accident that occurred on February 11, 2005.

2. It was averred that at all material times Dickson Yegon, (deceased) was the driver of motor vehicle registration number KAM 767Y attached to the National Security Intelligence Service which Service the said deceased worked in as an employee of the Government of Kenya. It was further averred that the 2nd respondent was also the registered owner of the motor vehicle KAM 767Y, which he alleges to have bought from the 3rd respondent by a sale agreement dated April 12, 2006 and he thereafter allegedly sold to Sammy Muiru Karanja on August 09, 2006.

3. It was averred that the respondents had connived to defeat the appellant’s claim following the accident of February 11, 2005 and were all necessary parties to the suit. That on or about February 11, 2005 the appellant was walking alongside Outer Ring Road Nairobi when the 2nd respondent, and or deceased, acting as employee servant or agent of the National Security Intelligence Services or for gain on behalf of the 3rd respondent or the respondents jointly so negligently drove, managed, or controlled the aforesaid vehicle that it collided with and injured the appellant who sustained serious injuries, loss, and damage.

4. The 1st respondent filed a statement of defence on May 27, 2018 denying the key averments in the plaint and liability and averred that the accident occurred due to negligence on the part of the appellant. The 2nd respondent filed a statement of defence on August 15, 2013 denying the key averments in the plaint and liability. The 3rd respondent on its part filed a statement of defence on August 22, 2014 denying the key averments in the plaint and liability and averred that the accident was solely caused by the negligence of the appellant.

5. The suit proceeded to full hearing during which the appellant and 2nd & 3rd respondent adduced evidence in support of their pleadings. In its judgment, the trial court found in favour of the appellant by holding the 1st respondent wholly liable for the accident and thereafter dismissed the case as against the 2nd & 3rd respondent. The court proceeded to award damages as hereunder: -General damages – kshs 1,800,000/-Special damages – kshs 2,000/-Future medical expenses – kshs 35,000/-Loss of earnings – nilTotal kshs 1,837,000/-

6. Aggrieved with the outcome, the appellant preferred this appeal on quantum of damages which is based on the following grounds: -1. The learned magistrate erred in by finding that the letter relied on by the appellant in support of the claim for lost earnings or diminished earning capacity was never tabled in evidence.2. The learned magistrate erred in failing to make an award for loss of earnings or for diminished earning capacity.” (sic)

7. The appeal was canvassed by way of written submissions. As evidenced by the appellant’s memorandum of appeal, counsel’s submissions were rivetted on the trial court’s denial of damages for loss of earnings or diminished earning capacity. It was submitted that contrary to the court’s finding, the appellant’s supporting documents were produced at the trial. That the appellant had expressly pleaded loss of earning capacity and cited relevant authorities on the issue in its submissions.

8. Calling to aid the decision in Mumias Sugar Co Ltd v Francis Wanalo [2007] eKLR counsel argued that arising from his injuries, the appellant was not in gainful employment during the hearing and would not be able to obtain gainful employment in the future. He reiterated the appellant’s evidence that he earned kshs 500/- daily but sustained 60% permanent incapacity following the accident. Counsel asserted that an award of kshs 2,000,000/- or 1,400,000/- urged by the appellant before the trial court as damages for diminished earning capacity was not unreasonable. The court was urged to allow the appeal by awarding the sums urged in the lower court and to grant the appellant his costs.

9. The 1st respondent against whom judgment was entered neither participated in nor filed submissions in respect of the appeal despite being given ample opportunity to do so.

10. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle vs Associated Motor Boat Co [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.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.”

11. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu (1982 – 1988) 1 KAR 278.

12. This appeal turns on the singular issue of damages, specifically whether the trial court’s denial of damages for diminished earning capacity was well founded. In considering the appeal, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that , short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

13. The same court stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] 1 KAR 5 that:“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”.See also Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No 284 of 2001; (2004) eKLR.

14. Pertinent to the determination of issue in the instant appeal is the appellant’s pleadings, which form the basis his cases before the trial court. The appellant by his further amended plaint averred at paragraph 4 that:“Particulars of injuries Segmented fracture left tibia with metal implants with prolonged admission 9 months.

Severe head injury with loss of consciousness and brain swelling.

Moderate blindness both eyes.

Active sinus left mid- shin discharging pus to date.

The plaintiff requires future medical care and operation to remove the metal implant at an estimated cost of kshs 35,000/-. And the plaintiff is severely disabled to the extent of 65% and prays for damages for diminished earning capacity. Plaintiff was working as a driver at a daily salary of kshs. 500/-. He is unable to drive or work now...……………….And the plaintiff claims general damages for pain, suffering, loss of amenities of life, special damages and damages for loss of earning capacity” (sic)

15. In its judgment, the trial court after restating and examining the respective parties’ evidence stated as follows: -“…Loss of earningsThe claim under this head is in the nature of special damages. There is nothing on record to form basis for award of the same and none is made. The letter alluded to by counsel for the plaintiff in his written submissions was never tabled in evidence.”

16. The distinction between lost earnings and diminished earning capacity is now settled. The Court of Appeal in S J v Francesco Di Nello & Another [2015] eKLR while making the distinction stated that: -“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 or 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 Llyod’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.”

17. The court proceeded to state that: -“The correct position as in the Fairley case (supra) was restated by this court in the case of Cecilia Mwangi & Another v Ruth W Mwangi CA No. 251 of 1996 as hereunder:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved.”In the authority of Butler v Butler [1984] KLR 225, the issue of awarding damages for loss of earning capacity was carefully considered and Chesoni Ag JA (as he then was) said:“Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading … Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable.”

18. The appellant had pleaded diminished or loss of earning capacity in his plaint. As pleaded, this was not a special damage claim as the trial court asserted and could as well have been awarded under the head of general damages if the court found that the appellant’s earning capacity had diminished owing to injuries sustained. Nevertheless, the onus was on the appellant to prove his claim. The plaintiff testified as PW2. He testified that due to poor eyesight and the bone infection all arising from his injuries, he was unable to work even though his mobility had improved. He stated that:“Before the accident I was a driver and mechanic working with Seven 14 Limited, dealing with refrigeration. I was being paid kshs 500/- per day.… “I can drive a car but cannot see properly so l cannot drive at high speed.”

19. Secondly, the trial court’s assertion that the appellant had not tendered evidence of employment was erroneous. The bundle of documents filed on September 18, 2014 and produced by the plaintiff at the trial as P.Exh.3 contains a letter by Seven Fourteen Ltd dated December 02, 2004 the contents therein which read as follows;-“Appointment letterWe are glad to inform you that you have been accepted by the management of Seven Fourteen Ltd to be on of their casual employee. The terms and conditions of employment will be as follows;1. You will work as a driver/mechanic for the company2. You will be expected to report every morning at 8. 00am to 5. 00 pm at your working station and on Saturdays 8. 00am to 1. 00pm3. You will be paid on daily basis that is kshs 500. 00 per day.” (sic)

20. Dr Wokabi who gave evidence as PW1 highlighted the sequela arising from the appellant’s brain injury and fracture. He stated that as of 2008 when he examined the appellant, he had developed partial blindness and had a bone infection leading to sinus and oozing of pus from the fracture site, although the fractures had united well. He assessed the degree of permanent incapacity at 60%. It appears that the respondents did not refer the appellant for a second medical examination by their own doctor and did not challenge his medical evidence in any significant manner.

21. The Court of Appeal in Mumias Sugar Company Ltd (supra) restated the findings in Butler v Butler (1984) KLR 225. In that case, a plaintiff who was not in employment before suffering injuries that rendered her incapable of ever finding a suitable job, was awarded damages for loss of earning capacity. The court stated:“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 plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his 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 the future…..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 factor into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

22. In James Mukatui Mavia v M A Bayusuf & Sons Limited [2013] eKLR the same court in addressing the method of assessing loss of earning capacity stated: -“The method evolved by the courts for assessing loss of earning capacity, for arriving at the amount which the claimant has been prevented by the injury from earning in the future is by taking the figure of the claimant’s present annual earnings less the amount, if any, which he can now earn annually, and multiplying this by a figure which, while based upon the number of years during which the loss of earning power will last,[the multiplier] is discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over the years. Adjustments may be made to the resulting amount on account of other contingencies of life.”

23. Based on the appellant’s evidence, the consequence of his injuries was diminished or loss of earning capacity as a driver/mechanic. Though not totally incapacitated, the appellant could not return to his trade or indeed easily obtain another form of employment or trade. He was aged 49 at the time of judgment and barring vicissitudes of life, would probably have been in gainful employment as a driver for another 11 years. Assuming the appellant worked six days weekly, his monthly income when last employed was about kes 12000/- per month. Thus, the award for lost earning capacity is calculated as follows: shs 12000/- x 12 x 11 x 60%= 950,400/-. This appears a reasonable award because the appellant was not rendered totally incapacitated and could potentially, engage in a different income generating activity. Moreover, the court is alive to the fact that this figure represents a gross advance payment.

24. The court will therefore allow the appeal, by setting aside the finding in the lower court’s judgment in respect of damages for lost earning capacity. The court will substitute therefor a finding that the appellant was entitled, in addition to general damages, to damages for lost earning capacity in the sum of kes 950,400/- (Nine Hundred and fifty Thousand Four Hundred). The judgment of the lower court is varied to that extent only. The appellant is also awarded the costs of the appeal and interest.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 8THDAY OF DECEMBER 2022C MEOLIJUDGEIn the presence of:For the appellant: Mr KaburuFor the 1ST respondent: N/AC/A: Adika