[2018] KEHC 7569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 180 OF 2008

MUTUA KALUKU....................................................APPELLANT

VERSUS

MUTHINI KILUTO ..............................................RESPONDENT

(An appeal arising out of the Judgment of Hon. F.N. Muchemi CM delivered on 24th September 2008 in Machakos Chief Magistrate’s Court Civil Case No. 878B of 2007)

JUDGMENT

The Respondent sued the Appellant in the original trial in Machakos Chief Magistrate’s Court Civil Case No. 878B of 2007 by way of an Amended Plaint filed on 17th June 2008. The Respondent sought special damages, general damages, damages for diminished earning capacity, and costs arising out of a traffic accident that occurred on 12th May 2007. The learned trial magistrate made a total award of Kshs 1,463,975/= to the Respondent in a judgment delivered on 24th September 2008, after taking into account 10% contribution by the Respondent.

Thereafter, two appeals were filed herein. The Appellant being dissatisfied with the said judgment filed a Memorandum of Appeal on 15th October 2012 appealing against the judgment on quantum of damages. The grounds of appeal are as follows:

1. The Learned trial Magistrate erred in law and in fact in awarding judgment of Kshs.900, 000/= on general damages for injuries that do not deserve such a high award.

2. The Learned trial Magistrate erred in law and in fact in awarding judgment of Kshs.720, 000/ - for loss of earnings whilst the Respondent did not prove that he was working and/or earning an income.

3. The Learned trial Magistrate erred in law and in fact in awarding judgment of Kshs. 720. 000/- for loss of earnings whilst the Respondent is still able to continue working as before.

4. The Learned trial Magistrate erred both in law and in fact in failing to consider sufficiently or at all the Appellant’s evidence and submissions as to facts and the Iaw placed before him.

5. The Learned trial Magistrate erred both in law and fact in awarding the Plaintiff a sum that was manifestly excessive in the circumstances.

The Appellant is praying that the appeal be allowed, and for such other or further orders that may be appropriate in the circumstances.

The second appeal is by way of cross appeal and was filed by the Respondent on 2nd February 2016, following his application and a consent by the parties that was recorded in court. The grounds of the cross-appeal are as follows:

1. The Learned magistrate erred in law and fact in awarding general damages of Kshs 900,000/= for the injuries sustained which amount is too low considering the serious injuries suffered by the Respondent.

2. The Learned magistrate erred in law and fact in awarding Kshs 720,000/= for loss of earnings which sum is too low considering that the Respondent cannot work again for his entire life.

3. The Learned magistrate erred in law and fact in failing to consider the evidence and submissions by the Respondent.

4. The Learned magistrate erred in law and fact in relying on insufficient medical evidence and it emerged that the Respondent suffered more severe injuries

5. The Learned magistrate erred in law and fact in awarding damages which are manifestly low in the circumstances.

The Respondent is praying that the appeal be allowed with costs; the court do set aside the award on general damages and loss of earnings and substitute it with an award commensurate to the injuries; the court allows him to call additional evidence on his appeal; and for such other orders the court may deem fit to grant.

The Facts

The Respondent’s claim in the trial Court was that on 12th May 2007, he was travelling as a fare paying passenger in motor vehicle registration KAJ 592 J along Machakos -Masii- Kalawa road. That the Appellant, who was the registered owner of the said motor vehicle, either by himself, his authorized driver, agent or servant, thereupon negligently drove managed, and/or controlled the said motor vehicle that it started reversing and overturned, causing serious injuries, loss and damage to the Respondent.

The Respondent gave the particulars of the Appellant’s negligence, and stated that he suffered a blunt injury to the head with mild concussion. He also relied on the doctrine of res ipsa loquitor.

The Appellant filed a defence in the trial Court dated 18th October 2007 in which it denied that the accident occurred as alleged and the particulars thereof, or that the Respondent was traveling on the said motor vehicle and suffered any damage loss and injury as alleged.

On 5th June 2008, when the suit came up for hearing in the trial Court, the Respondent and the Appellant recorded a consent on liability at the ratio of 90:10 in favour of the Respondent. Doctor Kimuyu Judy testified as PW1 in support of the Respondent's case. Doctor Kimuyu told the trial court that the Respondent had been examined at Machakos Hospital by Doctor Kuria, whom she had worked with and was familiar with his handwriting. Doctor Kimuyu further testified that as per the report by Doctor Kuria, the Respondent could not talk due to a head injury.

Further, that the history of the patient had been given by the Respondent's wife. A CT scan had also been taken which showed the Respondent had intracranial hemorrhage due to blunt trauma. Doctor Kimuyu explained that she had examined the Respondent physically on the morning of the hearing, and found that indeed he was unable to talk. The doctor further told the court that the wife of the Respondent complained that he was unable to perform sexually or provide support for the family. Further, that he used to do business of cattle trade but he can't do it anymore. The medical report by Doctor Kuria was produced as the Respondent’s exhibit 2.

Doctor Kimuyu also produced a P3 form as the Respondent’s exhibit 1, which indicated that the Respondent was involved in a road traffic accident and sustained a blunt head injury with concussion and internal bleeding. The patient was unable to speak as at the time of examination.

During cross examination, Doctor Kimuyu told the court that she had examined the Respondent on the morning of the hearing and she found that he could hear and obey commands, but could not talk. It was her evidence that the Respondent was not capable of working for any gain. The doctor was of the view that the Respondent did not contribute to the worsening of his condition because even if he had gone to the hospital soon, he would not have been treated for his condition due to the nature of the injuries.

The Appellant did not call any witness, but produced a medical report by Doctor P.M. Wambugu as his exhibit, by consent of the parties.

The Determination

The Appellant and Respondent canvassed this appeal by way of written submissions. The Appellant’s Advocates, M. N. Kamau & Co. Advocates, filed submissions dated 22nd May 2017, while B.M. Mungata & Company Advocates for the Respondent filed submissions dated 19th October 2017.

I will first address a preliminary issue raised by the Appellant in his submissions on the Respondent’s cross-appeal. He stated that the Respondent filed his appeal on 15th December 2016, eight (8) years after the judgment by the trial Court was delivered on 14th October 2008, and that the Respondent has tried to bring new evidence in the appeal. Therefore, that the cross-appeal should not be entertained and should be dismissed.

The Respondent on the other hand responded that the Parties agreed by consent to have the cross appeal filed out of time. It was also agreed by consent that the Respondent be allowed to call additional evidence limited to producing an additional medical report.

I note in this regard that the Respondent indeed did file an application in this appeal on 1st December 2016 by way of a Notice of Motion dated 3oth November 2016, wherein he sought leave to file his cross appeal out of time, and to be allowed to call additional evidence, specifically medical evidence. When the appeal came up for mention on 1st December 2016, the advocate for the Appellant indicated that they did not oppose the application, and the Court thereupon allowed the prayers sought by the Respondent, on condition that the Respondent shall only produce a further medical report during the hearing of the appeal.

In addition, on 27th March 2017 the counsel for the parties herein filed a signed consent dated 8th March 2017 wherein they agreed as follows:

1. “The Cross-Appeal and the additional medical reports be admitted in evidence.

2. The Appeal and Cross-Appeal be disposed of by way of written submissions.”

When the appeal was mentioned on 26th July 2017 and 2nd October 2017, the parties’ counsel reiterated that they would file submission on the appeal and cross-appeal, and the Respondent was also allowed to file his record of appeal.

Therefore, not only did the Appellant consent to the cross-appeal and further medical report being filed by the Respondent, the said pleadings and evidence were also specifically allowed and ordered by this Court upon application by the Respondent, and are therefore properly on record.

On the substantive grounds of appeal raised by the parties, it is evident that the Appellant and Respondent are only contesting the findings of the trial Court on quantum of damages, as the issue of liability was settled by the parties by consent in the trial Court. The issue before this Court for determination therefore, is whether the trial magistrate applied the correct principles of law in assessing the damages payable to the Respondent.

It is an established principle of law that that an appellate court will only interfere with quantum of damages where the trial court either took into account an irrelevant factor or left out a relevant factor, or where the award was too high or too low as to amount to an erroneous estimate, or where the assessment is not based on any evidence (see Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727, Peter M. Kariuki v Attorney General CA Civil Appeal No. 79 of 2012 [2014]eKLRandBashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

In the present appeal, I have read the trial court's decision on quantum, and note that the trial magistrate awarded general damages for loss of amenities of Kshs 900,000/=, damages for diminished earning capacity of Kshs 720, 000/=, and special damages of Kshs 6,640/=.

On the award of general damages, the Appellant urged that the damages awarded were manifestly excessive, and relied on the decisions inErick Onyango Ndege vs Nairobi Deluc Services Ltd, NBI HCCC 5452 of 1990 and Wairimu Njui vs Kaberi & Anor,NBI HCCC 2116 of 1980 to argue that the claimants therein sustained similar injuries and were awarded Kshs 250,000/= and 220,000/= respectively.

The Respondent on the other hand urged that the Appellant has not proved that the trial court made an error of law or fact to justify this court to disturb this award and reduce it. Further, that there is also no evidence that the trial court proceeded on the wrong principle in awarding Kshs. 900,000/= for pain and suffering as to represent a wrong estimate.

According to the Respondent, the amount of general damages awarded by the trial court for pain and suffering was inordinately low and should be enhanced by the court, for reasons that the injuries he suffered and the effect of the injuries were extremely serious. It was contended that according to the medical evidence, the Respondent is unable to talk, work and cannot perform sexually, and the award should therefore be enhanced to ksh 1,500,000/= as proposed in the Respondent’s submissions and on the basis of the authorities he relied on.

I am guided by the legal principles that apply to an award of damages in such circumstances, which are that a sum should be awarded which is in its nature of a conventional award, in the sense that awards for comparable injuries should be comparable, and the amount of the award is influenced by the amounts of awards in previous cases in which the injuries appear to have been comparable, and is adjusted in light of the fall in the value of money since such awards were made. See in this regard Kemp & Kemp on The Quantum of Damages, Volume 1 paragraphs 1-003. In my view to be comparable, the previous cases must have been made at the time or close to the time the injuries were suffered by a claimant, hence the provision for adjustment.

The Respondent in the trial Court produced a medical report by Dr. M.N Kuria dated 31st July 2007 that showed that he was mute, and had suffered internal injuries in the form of a brain concussion and intercranial bleeding. Further, that it was difficult to determine whether he would recover his mental capabilities and needed follow up with a neurologist. The Appellants on the other hand relied on the medical report by Doctor P.M.Wambugu dated 25th March 2008, wherein it was observed that the Respondent had signs of mutism and a CT Scan raised suspicions that he had sustained post-traumatic haemorrhage in the left basal ganglia. Further, that the Respondent required further evaluation by a psychiatric team.

In the further medical report by Dr. C.K. Musau dated 18th May 2017, the main finding as per the report was mutism caused by a head injury from the accident, as a result of which the Respondent developed a resolving left basal ganglia bleed, and that the blood clot was much bigger and must have had affected the adjacent motor part of the speech center.

It is thus not contested that the Respondent suffered a head injury and mutism from the accident. Other side effects which are alleged are his inability to work and loss of libido. I have reviewed the authorities relied on by the Appellants and Respondent. I note that the Plaintiff in Erick Onyango Ndege vs Nairobi Deluc Services Ltd, NBI HCCC 5452 of 1990 suffered similar injuries to those suffered by the Respondent herein and was awarded 120,000/=. However the said judgment was delivered in 1992, over 15 years prior to the accident in the present appeal, and inflation must therefore be taken into account.

The judicial authorities relied on by the Respondent although involving head injuries, did not have similar effects as in the present appeal and are therefore not comparable. In one of the decisions, namely Rosemary Wanjara Baiba vs Benson Irungu, HCCC No. 577 of 1991, the Plaintiff’s right hand was in addition amputated above the elbow.

In the circumstances I find that the award of the trial magistrate of Kshs 900,000/= was reasonable taking into account inflationary trends.

On the award of damages for diminished earnings, the Appellant submitted that the Respondent was not entitled to this award for the reasons that this head of damages was not pleaded; the Respondent is still able to work and earn a living despite his condition; and that he did not prove he was working and/or earning an income. The Respondent on his part submitted that this prayer was clearly pleaded in the Respondents amended plaint dated 17th June 2009. Upon perusal of the said Amended Plaint and the memorandum of appeal by way of cross-appeal dated 1st December 2016, this Court finds that the said head of damage of diminished earnings was indeed pleaded and appealed against.

On whether the Respondent was working, the Respondent submitted that PW1 testified that the Respondent was doing cattle trade before the accident, and after the accident he was incapacitated and could not trade, which evidence was not controverted by the Appellant. Further, that it is not only documentary evidence that can prove income, and reliance was placed on the decision in Nicholas Njue Njuki vs Elid Mbugua Kahuro, (2014) e KLR in this regard. Reliance was also placed on the decision in Gachoki Gathuri (suing as legal rep. of the Estate of James Kinyua Gachoki (Deceased) vs John Ndiga Njagi Timothy & 2 Others(2015) e KLR that trial Court correctly resulted to the minimum wage to ascertain the earnings of the Deceased in the circumstances

However, that the trial Court made an error on the multiplicand and multiplier it used, and should not have subjected the minimum wage of Kshs 5,000/= to deductions. Therefore that the court erred in using ksh 4,000/= instead of ksh5,000/= as per the minimum wage.

On the multiplier used, it was urged that the court also ran into error by adopting a multiplier of 15 years. It was submitted that the Respondent was aged 35 years and this is not in dispute and was in private business, and the retirement age by then was also 60 years. It was submitted that a multiplier of 20 years was proper in the circumstances. The Respondent thus urged the court to set aside the multiplicand of ksh 4,000/= and substitute it with ksh 5,000/= which will work as follows: Ksh 5,000/= x20x12= ksh 1,200,000/=.

To assess loss of earning capacity in the future, the court must consider to what extent the plaintiff’s ability to earn income will be affected in the future and for how long this restriction will continue. The traditional approach adopted by the courts when calculating a claim for future loss is to assess what lump sum is needed to compensate the claimant for the future loss.

The starting point in this calculation will be to determine what annual net loss the Claimant will incur in the future (the "multiplicand"). In a claim for future loss of earnings, this would be the annual loss of earnings. The multiplicand will then be multiplied by a “multiplier". The multiplier is assessed having regard to the number of years between the date of the settlement and the date when the loss stops. In a claim for future loss of earnings, this may be the date when the Claimant would, but for the injury, have retired.

In the present appeal, the evidence adduced shows that the Respondent is totally incapacitated and cannot work again. In addition, as there was no proof of his earnings before the accident, the proper approach as adopted by the trial magistrate was to use the minimum wage at the time of Kshs 5,000/=. However it is indeed the case that the minimum wage cannot be subjected to statutory deductions, as it is below the threshold required for such deductions.

It was not disputed that the Respondent was 35 years at the time of the accident and would have retired at about the age of 60 years. A multiplier of 20 years is thus reasonable in the circumstances, taking into account that the Respondent will receive an early capital sum to compensate his loss which can be invested to produce an income, and his career might have been interrupted as a result of the normal risks of life. I therefore find that the loss of future earnings was Kshs 5,000 x12x20 = 1,200,000

Lastly, the award of special damages was not contested by the Appellant.

The Appellant’s appeal therefore only succeeds to the extent that the wrong principles were applied by the trial Court in assessing the Respondent’s diminished earnings. I accordingly set aside the judgment and total award of Kshs 1,463,975/= by the trial court, and substitute it with judgment and a total award of damages of Kshs 1,895,976/= to the Respondent, which has been computed as follows:

(a) General damages for

Pain and suffering 900,000. 00

(b) Diminished earnings 1,200,000. 00

(c) Special damages 6,640. 00

2,106,640. 00

Less 10% contribution 210,664. 00

Total 1,895,976. 00

The Appellant shall meet 90% of the costs of this appeal.

It is so ordered.

DATED AT MACHAKOS THIS 19TH DAY OF FEBRUARY 2018.

P. NYAMWEYA

JUDGE